P L D 1965 Dacca 258 (PLP)

Learned Subordinate Judge heard the parties on all the points, but finally decided the question before him on one issue, only, that the defendant‑petitioner received no notice of the said arbitration proceedings. He, therefore, remitted the award back to the arbitration Tribunal for re‑consideration after giving proper notice to the parties and after considering all the matters involved in the case. This application is directed against the aforesaid order, which was passed by the learned Subordinate Judge on 21st September 1961. At the hearing of the Rule, Mr. Asrarul Hussain appearing for the petitioner, has urged that the award not having been set aside, the learned Subordinate Judge had no jurisdiction to remit the arbitration proceedings back to the Tribunal of Arbitration. He has further argued that the remitting of the Award on the ground of non‑service of notice is not permissible under section 16 of the Arbitration Act, 1940. We have examined the order passed by the learned Subordinate Judge and it seems to us that he has not given any decision on various points that were raised before him, in view of the fact that he has come to the conclusion that there had been, in the eye of law, no determination in the absence of petitioner, by the Tribunal of Arbitration of the points which it was called upon to adjudicate. He has come to a finding affirmatively in favour of the defendant‑petitioner that they did not receive notice of the proceedings. He, therefore, passed the order which has been impeached before us. On an examination of the aforesaid order we are of the opinion that the position resolves itself thus: It is true that the award purports to determine the issues which the Tribunal of Arbitration was called upon to determine; but since such purported determination of the issues was made behind the back of the defendant‑petitioner, they cannot be treated as legal determination of those issues. In our opinion, this is the only sensible view which can be taken of the matter. An adjudication made behind the back of the parties is no adjudication at all iri the eye of law. In these circumstances we think that it is permissible to remit the award back to the Tribunal of Arbitration inasmuch as legally there has been no determination of the issues raised before it. Mr. Asrarul Hussain has expressed some misgivings about the fact that in the order as passed by the learned Subordinate Judge there is no express direction that the impeached award has been set aside. The learned counsel has further submitted that this may give rise to future misunderstanding when the Tribunal of arbitration proceeds to determine the matters raised before it. In these circumstances, we propose to dispose of the Rule in terms of the order which is set out hereunder The impugned award is set aside and it is directed that the arbitration proceedings be sent back on remand to the said Tribunal of Arbitration for a fresh adjudication on all the issues that may be raised by the parties before it on a proper notice served on the defendant‑petitioner and the plaintiff‑opposite‑party. The defendant‑petitioner would be free to raise all the contentions permissible by law. There will be no order as to costs of this application. Let this order be communicated to the Court below with the utmost expedition. ABU MD. ABDULLAH, J.‑

I agree. S. Q Order accordingly.