MOHAMMAD AIJAS ALI KHAN Vs. BASANT RAI

JUDGEMENT

(1.) This is a revision from an order disallowing objections to an award. A preliminary objection is taken that no revision lies. Inasmuch as the applicant wished to challenge the validity of the order of reference itself, we cannot hold that no revision can at all be entertained. On the merits there is no force in the revision at all. It was not absolutely necessary for the Court below to frame issues noting the points in dispute between the parties and refer them specifically to the arbitrator. The points of conflict were apparent from the pleadings and the order of the Court below shows that the whole case was referred to the arbitrator and he was called upon to decide all questions that were in dispute between the parties, and therefore there was no irregularity in this respect.

(2.) The next objection is that the arbitrator had refused to act and the Court therefore was not authorized to refer the matter back to him. It is even suggested that the Court forced him to arbitrate. This is quite wrong. As a matter of fact, the arbitrator had never actually refused to arbitrate. What happened was that time had been extended but the arbitrator found that he was too busy in February and could not take up the matter, and that he would be out of the station in March 1928 and would not be able to arbitrate. He accordingly reported this to the Court and returned the papers. He never expressly said that he declined to arbitrate. The Court no doubt first fixed 5 March 1928 for the parties to nominate a fresh arbitrator, but the procedure laid down in Rule 5, Schedule 2 as to notice was not followed. On that date the plaintiff intimated that the arbitrator was willing to arbitrate if further time were allowed. The Court then inquired, from him and he expressed his willingness to arbitrate in the month of April. The papers were then accordingly sent back to him and he delivered his award. We think that there had been no refusal on his part and the Court had jurisdiction to send the papers back to him and to extend the time. The lower Court has itself found that there was no refusal and we must accept that finding.

(3.) The next point urged is that the Court below had no power to refer the question of jurisdiction to the arbitrator. A plea had been taken that no part of the cause of action had arisen at Agra, but that plea was dependent on questions of fact as well as of law. The arbitrator had full power to decide such a question of jurisdiction, and we do not think that the Court below acted illegally in referring this matter to him. Ghulam Khan V/s. Mohammad Hassan [1902] 29 Cal. 167. There is accordingly no force in this revision, and we dismiss it with costs.