1980 PLP 1768 (CLC)

S. 24-Arbitration proceedings-No arguments addressed by par ties-Conclusion arrived at by arbitrators, held, result of misconduct of proceedings on their part. (e) Arbitration Act (X of 1940)- S.24-Arbitration proceedings-Parties not willing to go to arbitration-Reference appearing to have been enforced on them Reference to arbitrators, held, not valid. Saeed for Appellant No. 1. Syed Tassadiq Hussain, for Appellants Nos. 2 to 7. Syed Zain-ul-Abedin Shah for Respondents. There are as many as four civil suits instituted by Mst. Bibi Khair-un Nisa and her husband Syed Zain-ul-Abedin Shah pending in the Court of Additional Sub-Judge, Muzaffarabad. It was in an appeal against an interlocutory order before this Court filed by Syed Bunyad Ali Shah and others against Mst. Bibi Khair-un-Nisa and Mst. Rehmlt Begum respondents that the learned Chief Justice was pleased, to direct4he three persons, namely, Syed Abdul Qayyum Gilani, Pir Ahmed Shah and Aulad Ali Shah, to arbitrate the matter in controversy between Syed Bunyad Ali Shah appellant and Syed Zain-ul-Abedin Shah and Mst. Bibi Khair-un-Nisa respondents and who was constrained to do so because he did not like that a large number of litigations should go on lingering for years together between the parties and when at first they were advised to enter into a compromise, the parties (Syed Bunyad Ali Shah and Syed Zain-ul-Abedin Shah) declined to enter into a compromise as advised disclosing to the learned Judge that they had even tried to arrive at a compromise through arbitrators named above (outside the Court prior to the institution of the suits) and so also no compromise could be arrived at between the parties as the arbitrators were unable to assemble this way or that way. On this disclosure, my learned brother summoned tire arbitrators so as to tie entrusted with the responsibility of determining the matter in controversy between the parties specified above. All the cases pending in the trial Court were sent to the arbitrators wino after going through the record made an award on 7-8-1977. Against this award, objections were filed by both the parties to the arbitration proceedings. Significantly, it is to be noted that one of the arbitrators. Syed Aulad Ali Shah is one of the appellants in the appeal itself before this Court. A perusal of the award shows that the property in dispute was also touched in relation to the very interest of the arbitrator himself who is an interested party in the cases sent to the arbitrators. He and the other appellants excluding Syed Bunyad Ali Shah were not parties to the arbitration proceedings and so the determination of his share alongwith some others out of the property in dispute who were also not a party to the arbitration proceedings, was obviously beyond the scope of the reference made to the arbitration. The order of reference, if it can be termed as such, clearly shows that the dispute between Syed Bunyad Ali Shah and Syed Zain"ul-Abedin Shah including his wife was made a subject of reference and the remaining persons interested in the subject-matter were not joined as a party to the arbitration proceedings. Thus the reference to the arbitration for want of consent of other interested persons in the cause or appeal is void and as such is without jurisdiction and invalid against all the parties i.e. even against those who have joined the reference. Moreover, this Court was only competent to refer the matter in controversy between the parties in a suit in which an appeal or revision is pending before this Court because in other suits of Bibi Khair-un-Nisa and Syed Zain-ul-Abedin Shah the objectors were not contending before this Court. It could only be the trial Court which could make a valid reference for such of the cases which were not before this Court on its' original side o appellate one. The reference in respect of the cases having not come to this Court in revision or appeal or otherwise transferred to its file, no reference could legally be submitted to the arbitrators in respect of those cases. Obviously, it can only be the trial Court which could be approached to make a submission to the arbitrators if so consented by all the in terested parties. Again, we find that the award is even based on some secret inquiry held by the arbitrators, Thus the arbitrators were influenced in arriving at the decision of the cases by secret inquiry. That being so, an inquiry behind the back of the parties who were to be heard) in presence of each other, by the arbitrators unless authorised to do so, cannot be allowed in law to make private inquiry and allow themselves to be influenced by such an inquiry which either party had no opportunity to meet. The secret inquiry behind the back of the parties is against the rut of natural justice and so there has been a clear violation of the principle of natural justice in the instant award. . Furthermore, no arguments could be addressed by the parties and sot the conclusions arrived at by the arbitrators are obviously the result of misconduct of proceedings on their part. The award, as a whole, is assailed by Mst. Bibi Klrair-un-Nisa and her husband, whereas Syed Bunyad Ali Shah attacks it in respect of one case only. Syed Bunyad Ali Shah contended that no opportunity was granted to him to adduce the evidence which h6 wised to adduce. He is right to say so. The contending parties to the arbitration proceedings appears to me not willing to go to arbitration which could be able to settle the matter in controversy between the parties once for all. And I may say that the instant reference also appears to have been forced on them. For the reason' above, there was no valid reference to the arbitrators an even legal misconduct on the part of se-called arbitrators is there. Therefore, accepting the objections of the parties to the arbitration proceedings, the impugned award is set aside and the matter is dropped to be remitted for arbitration.. The appeal and the revision petition pending in this Court are allowed to be taken up for disposal according to law. The remaining of the cases which shall also be deemed to have been pending in the Court of Additional Sub Judge, MuaatTarabad, shall be sent .down to him for proceeding with them in accordance with law. Petition allowed: