P L D 1954 Baghdad﷓ul﷓Jadid 56 (PLP)

ABDUL RASHID, J.‑This is a petition for revision against the decree of the Sub‑Judge at Hasilpur, dated 28th December 1953, passed in favour of the respondents on the basis of an award. The respondents brought a suit against the petitioners for the recovery of Rs. 621‑12‑0 on account of price of wheat and a loan of Rs. 100 as shown in the account‑book of the respondents' firm working at Khairpur in tehsil Hasilpur. In their written statement the petitioners did not own the claim of the respondents with respect to the loan of Rs. 100 and only admitted their claim for Rs. 332 on account of price of wheat but at the same time they alleged that there were mutual dealings between the parties and that after setting off the sum due to the respondents, Rs. 968 were still payable to the petitioners, for which they would sue the respondents if so required. The petitioners further pleaded that the present suit in the name of the firm was not maintainable, as the firm of the plaintiffs‑respondents was not duly registered. On the pleadings of the parties, the Court framed necessary issues in the case and also examined some witnesses of the plaintiffs, when on 29th November 1952 both the parties applied to the Court that their case be referred to M. Abdul Aziz appeal‑writer for his arbitration. The Court accordingly referred the case to the arbitrator, who recorded the evidence of both the parties, examined their account‑books and on 11th April, 1953, made an award for Rs. 474‑8‑0 and also for costs of the suit in favour of the plaintiffs‑respondents, and the Court passed a decree in terms of the award. In the first place the counsel for the petitioners has attacked the validity of the award on the ground that the application to refer the dispute to arbitration did not bear the signatures of the defendants‑petitioners Muhammad Amin and Muhammad Moqim. Now the examination of the application shows that Muhammad Din one of the defendants had signed it personally and also as Mukhtar of the aforesaid two defendants. Also the proceedings before the arbitrator A clearly indicate that all the defendants remained present before him either personally or through their recognized agent and led their oral as well as documentary evidence ii, the case. After the filing of the award, the defendants put in their written' objections in Court on 19th April, 1953. , In that application Muhammad Amin and Muhammad Moqim defendants did not put forth any objection to the effect that they had not agreed to the arbitration. On the other hand they challenged the award on the allegation that the applica tion in question was on behalf of Allah Ditta plaintiff only. The plea of absence of signatures by the two defendants on the application in question was not taken in the grounds of revision petition, nor was the leave of this Court sought for an additional argument on the point. The defendants are therefore at this stage estopped by their subsequent conduct from contesting the reference to which they have been a party during the award proceedings. I may also observe in passing that the mere fact that a party himself did not sign the application will not invalidate the reference, when it has been signed by his Mukhtar or duly authorized pleader on his behalf (see A I R 1927 Lah. 362). The same principle was laid down in A I R 1925 P. C. 79 in which it was held that where all the parties agree to the reference and apply to the Court for the same, the fact that one of them has not signed the application will not invalidate the reference, as Section 21 of the Arbitration Act does not require the application to be actually signed. As there is satisfactory evidence of the participation of both the parties in the proceedings of the award, it is now not open to the defendants to maintain that they were not a party to the arbitration. I therefore overrule this objection of the learned counsel as devoid of any force. The counsel for the petitioners has further assailed the award and the decree on the ground that the award was bad as having been made after the expiry of the period allowed by the Court. In the order of reference dated 29th November 1953, the Court had fixed 13th December 1952 for filing of the award but the record of the case was sent to the arbitrator as late as 6th December 1952, and the award was made on 11th April 1953. Thus the arbitrator took five months in recording the evidence of the parties. The defendants themselves are also party to blame for this delay in the proceedings, as during the examination of the evidence, they absented themselves on 22nd January 1953, and it was on 7th February 1953, that they applied for setting aside the ex parse proceedings. As the date originally fixed by the Court for filing the award was very short‑hardly a week had been left at the disposal of the arbitrator after the despatch of the record to him by the Court‑it appears that the Court afterwards left it to the discretion of the arbitrator to complete the award within a reasonable time. Hence I overrule this contention of the learned counsel, as the delay in filing the award may at the most amount to a mere irregularity and the award cannot be impugned on that ground. Moreover, according to the provisions of section 31 of the Arbitration Act such objection ought to have been taken in the trial Court which was alone competent to decide it. The defendants have, however, failed to take up this objection at that stage and also in their petition for revision in this Court. They are therefore precluded from raising this plea at this late stage before me. The learned counsel for the petitioners has also referred to certain acts of "judicial misconduct" on the part of the arbitrator which apparently means an erroneous breach of duty by him in not strictly complying with the rules of procedure and evidence which is alleged to have resulted in miscarriage of justice. The only grounds of misconduct on which the petitioners' counsel has relied are the following:‑ (1) That the arbitrator has erred in law by accepting the entries in the account books of the plaintiffs as correct, without any other corroborative evidence in support thereof; (2) That the arbitrator was wrong in holding that the plaintiffs were members of a joint family and had a joint business among them; (3) that the arbitrator had without any reason rejected the documentary evidence of the defendants; and (4) that the arbitrator had fixed the award for the principal and the costs of the suit at Rs. 551 and that the Court had no jurisdiction to enhance the amount. I however find no jurisdiction to enhance the amount in any of these grounds. With regard to the first ground the perusal of the record shows that the arbitrator based his opinion not only on the entries in the account books of the plaintiffs but also on the oral evidence produced by them in support of their claim. As the proceedings show the arbitra tor who is a law knowing professional man appears to have acted in accordance with the strict rules of procedure and evidence so far as possible and no act of fraud or misconduct has been alleged against him by either party. As laid down in A I R 1924 Sind 51 so long as an arbitrator acts within his jurisdiction and without fraud and misconduct an award cannot be set aside by the court unless there is an error in law which is patent on the face of the record. Arbitrators are judges of both facts and law and therefore an error in law does not vitiate the award. In fact an arbitrator is not bound by the technical rules of procedure or of the Evidence Act which the courts are required to follow. Again it was held by Tek Chand and Dalip Singh JJ. in A I R 1930 Lah. 280 (2) that an arbitrator is fully justified in rejecting in part the case set up by either party and ascertaining the real facts according to his own view of the evidence and a counsel is not entitled to attack the findings of facts given by the arbitrator on the evidence led by the parties, Whether his conclusions are right or wrong is not a matter which is open for consideration by the trial Court or appellate Court in revision. Now examining the award in the light of the above observations, we find that the arbitrator has discharged his duties very satisfactorily in considering the evidence on both sides and has followed the procedure correctly. He has also rejected the three sums in the claim of the plaintiffs aggrega ting Rs. 147‑4-0 as not verified by entries in his account books. He has also acted legally in not accepting the entries in the account books of the defendants at that stage, as copies of the account had not been filed by them with their written statement, nor did they show therein the sums on the credit side of the plaintiffs. Thus the arbitrator passed the award after fully considering all the circumstances before him, with the result that the award has been rightly upheld by the trial court. There has also been really no alteration or modification in the amount of the award by the Court below. The award fixes the principle amount payable to the plaintiffs at Rs. 474/8/0 and the only variation which has been made by the lower court is with regard to the calculation of costs of the whole suit. This by itself is no sufficient ground for setting aside the award as invalid. As I find no substance in any of the grounds stated above I dismiss this revision petition. The parties shall bear their own costs in this Court. A. H. Petition dismissed.