2004 PLP 735 (MLD)

(ii) Whether the defendant Gul Zaman refused to bifurcate the plot in dispute? (iii) What should the order be? Before the learned Arbitrator plaintiff alongwith two witnesses filed their affidavits in evidence but they have not been cross-examined by the defendant. The learned Arbitrator gave the following findings:-- "That the plaintiff Muhammad Yousuf examined himself as well as his two witnesses as and there can be no other opinion except to believe the version of the plaintiff. As such on the basis of evidence on record I am of the view that the plaintiff has proved his case and first two issues are answered in affirmative in favour of the plaintiff Muhammad Yousuf, I therefore, hold that the plaintiff is entitled to 50% share in the Plot No.R-83, Block 9, Karachi Administrator Employee Cooperative Housing Society admeasuring 150 square yards seeking its division/bifurcation through the concerned office/authority. The plaintiff is also entitled to 50% share from the rent of the disputed plot for the last three years from the date of filing of the suit till the property is in occupation of the tenants. I leave the party to bear their own costs. I have given my award on this 9th day of June, 1999. Under section 17 of the Arbitration Act, 1940 it is the duty of the Court to examine and see that whether there was any reason for modifying the award notwithstanding that any effective parties have failed to file objection to the award. I have examined the award keeping in view section 17 and section 26-A of the Arbitration Act. Section 26-A was incorporated by Arbitration Amendment Ordinance read as under:-- "26-A. Award to set out reasons: (1) The arbitrator or umpire shall state in the award the reasons for the award in sufficient detail to enable the Court to consider, any question of law arising out of the award. (2) Where the award does not state the reason in sufficient detail, the Court shall remit the award to the arbitrators or umpire and fix the time within which the arbitrator or umpire shall submit the award together with the reasons in sufficient detail: Provided that any time so fixed may be extended by subsequent order of the Court. (3) An award remitted under subsection (2) shall become void on the failure of the arbitrator or umpire to submit it in accordance with the direction of the Court." From the bare perusal of the section, it appears that the arbitrator or umpire shall state in the award reasons for the award in sufficient detail to enable the Court to consider any question of law arising out of the award and where the award does not state the reason in B sufficient detail then Court shall remit the award to arbitrator or umpire and fix the time within which arbitrator or Umpire shall submit the award together with the reasons and sufficient details and in case arbitrator fail to give the reasons within the time fixed by the Court the award shall be become void. In the case of Mabool Associates Ltd. (supra) relied upon by the plaintiff's advocate the learned Judge refused to upset the findings of the arbitrator, on the issue, which is otherwise well-reasoned, based upon record and fulfils the requirements of section 26-A of the Arbitration Act. In the case of Messrs Waseem Construction Co. (supra) relied upon by the learned Advocate for the plaintiff, the learned Judge held that notwithstanding the amendment introduced by insertion of section 26-A into Arbitration Act, the Court cannot act as a Court of appeal in respect of the findings of facts arrived by the arbitrators. In the case of Messrs Hafeez Construction Co. (supra), High Court held that although section 26-A provides that the arbitrator shall state in the award the reasons for the award in sufficient details, yet it is nowhere made compulsory for the arbitrator to frame issues and to give separate findings on each of the issues in the strict sense. None of the case-law discussed hereinabove support the case of the plaintiff the award given by the learned arbitrator in fact a non -speaking award. In the case of Messrs Awan Industries Ltd. v. The Executive Engineer, Line Channel Division .and another (1992 SCMR 65) the Hon'ble Supreme Court held: "The provision of section 17 of the Arbitration Act, which imposes a duty on Courts to see that there is no cause to remit the award or any of the matters referred to arbitration for reconsideration or to set aside the award. This can be done by the Court suo motu, apart from the application which a party may make for either remission of the award or its reversal. Where, therefore, an award is found to be nullity because of the invalidity of the arbitration agreement or, for any other reason, or the award is prime facie illegal and not fit to be maintained, the Court has power under section 17 of the Act to set it aside without waiting for an objection to award being filed or without considering any application for setting it aside, if there be any, and irrespective of the question whether or not any objection to the award was filed or whether the objection, if filed, was not within time." In the case of Mst. Afroz Jehan v. Mst. Noor Jehan and others (1998 CLC 1318) Mr. Saleem Akhtar, J. (As he then was) held that a section 26-A of the Arbitration Act provides that arbitrator shall state reason in sufficient detail. The learned judge further held that where reasons in sufficient details are not given the Court shall remit the award. The learned Judge further held that by this provisions a duty is not only cast upon the appointed arbitrator, to give reasons for the award but also makes incumbent on the Court to examine the award to see whether sufficient reasons have been given to enable the Court to consider any question of law arising out of the award. The terms `reason' has been defined in Black Law Dictionary as: `A faculty of the mind by which it distinguishes truth from falsehood, good from evil, and which enables the possessor to deduce inference from facts or from proposition. Also an inducement, motive, or ground for action, as in the phrase `reasons for an appeal'. The terms `reason' has also been defined in Chamber 20th Century Dictionary as: `Ground, support, or justification of an act or belief: a premise, esp. when placed after its conclusion: a motive, or inducement: an underlying explanatory principle: a cause: the mind's power of drawing; conclusion and determining right and truth the exercise of this power: sanity: conformity to what is fairly to be expected or called for: moderation: fair treatment, e.g. satisfaction by a duel, or doing one's fair share in drinking: a remark, a sententious saying (Shak.): proportion (Sepns)- v.t. to exercise the faculty of reason: to deduce inferences from premises: to argue: to debate: to converse (Shak.1 .--" v.t. to examine or discuss: to debate: to think out: to set forth logically: to bring by reasoning. I have examined the award to see whether sufficient reasons have been given by the learned sole arbitrator in his award or not. From the perusal of the award It appears that sole arbitrator has not given any reason to his award for hi., findings except that defendant failed to cross-examine the plaintiff's witnesses and their evidence, as such is un-shattered. In my opinion the learned arbitrator ought to have given reasons for holding that plaintiff has 50 % share in the property in question. It was incumbent upon the arbitrator to examine the evidence before him after discussing the same and documents, if any, give the findings whether the plaintiff has any right in the property in question or not. For these reasons award is remitted to the learned sole arbitrator to give reasons within 30 days from the date of the receipt of the order and in case the learned arbitrator fails to give the reasons within stipulated time, the award will stand set aside. H.B.T./M-18/K Order accordingly.