ABDUL MAJID Vs. ALI ASHRAF

JUDGEMENT

(1.) This application has been made in connection with a suit which is pending before the Munsif of Hajipur and in which the dispute between the parties has been referred, at their instance, to the arbitration of five persons. It appears that the award which was submitted to the Munsif had been signed by four of the arbitrators only and so he has remitted it to them with the direction that all of them should join in the award and submit it to him by a certain date. The petitioner now challenges the correctness of the order and it is contended on his behalf that the Munsif ought to have set aside the whole award under para. 15, Schedule II, Civil Procedure Code, and proceeded with the trial of the suit. It is, however, clearly stated in the petition filed in this Court on behalf of the petitioner that the fifth arbitrator could not take part in the proceeding as he had fallen ill.

(2.) The first point to be considered is whether the Munsif was competent in the circumstances of the present case to proceed under para. 14(c), Schedule II, Civil Procedure Code. Under this paragraph the Court may remit the award or any matter referred to arbitration to the re consideration of the arbitrator where an objection to the legality of the award is apparent on the face of it. In the present case the award did not bear the signature of one of the arbitrators and it further appears that he had taken no part in the proceedings. In these circumstances it seems tome that the Munsif was fully justified in remitting it to the arbitrators under para. 14. In this connection the learned Advocate for the petitioner strongly relies on Champsey Bhara & Co. V/s. Jivraj Balloo Spining and Weaving Co., Ltd. 50 IA 324 : 73 Ind Cas. 436 : AIR 1923 PC 66 : 47 B 578 : 44 MLJ 706 : 25 Bom. LR 588 : (1923) MWN 596 : 33 MLT 419 : 28 CWN 397 : (1923) AC 480 : 92 LJPC 163 : 129 LT 166 : 39 TLR 253 : 38 CLJ 130 : LR 4 APC 99 (PC), and contends that a Court can proceed under para. 14 only when in the award or in a document incorporated with it, for instance, a note appended by the arbitrator stating the reasons for his decision, there is found some legal proposition which is the basis of the award and which is erroneous. In my judgment the observations made by their Lordships of the Privy Council in that case must have been intended by them to apply only to that particular type of cases which they had before them and cannot be taken to be exhaustive.

(3.) It was, as I have already stated, also contended on behalf of the petitioner that the present case was governed by para 1,5, Schedule II, Civil Procedure Code, and that the whole award would have been set aside by the Munsif on the ground of the misconduct of the arbitrators; and in support of this contention reference was made to Thammiraju V/s. Bapiraju 12 M 113, where it was held that the absence of one of the arbitrators at some of the proceedings amounted to misconduct and the other arbitrators who proceeded with the inquiry in the absence of the former were also guilty of misconduct. Now, I fully recognize that the word misconduct as used in para. 15 does not necessarily imply any corruption or moral turpitude on the part of the arbitrators. I doubt, however, if the proposition to at the mere absence of an arbitrator from some of the proceedings will constitute misconduct is not too wide. It is well settled that the word misconduct is used in the sense of neglect of such duties and responsibilities as devolve on arbitrators acting judicially under the Civil Procedure Code and it appears to me that it will be unreasonable to hold that even where the absence of the arbitrator from some .of the proceedings is due to some justifiable cause (as it was obviously In this case, the arbitrator being admittedly ill) it will necessarily amount to misconduct. However that may be, even assuming that the present case falls under para. 15 also, it was open to the Munsif to set aside the award acting under para. 15 or remit it to the arbitrators under para. 14. In this case he has taken the latter course and it is obvious that the order cannot be interfered with in revision. The learned Munsif has made it quite clear in his order that if after the submission of the a ward by all the arbitrators any objection is filed by any of the parties to the suit on the ground of misconduct on the part of any arbitrator or arbitrators or any other ground, the objection would be heard and decided in due course. This observation will sufficiently protect the interests of the parties. The application is dismissed with costs. Hearing fee one gold mohur.