GOPAL CHANDRA DAS Vs. KSHETRA MOHUN BHUIA

JUDGEMENT

(1.) THIS is a Rule on the opposite party to show cause why the order of the Munsif, dated the 9th February 1918, should not be set aside. What happened was this: There was a dispute between the plaintiff and the defendants. That gave rise to a suit. Better counsels prevailed and the suit was referred by the Court to the arbitration of a certain gentleman by the consent of both parties. The terms of the reference provided that the arbitrator should determine the case after hearing the evidence and that, if one of the parties failed to appear before him, he should have power to proceed to hear the reference ex parte. The plaintiff on the date fixed for the trial did not turn up, although the arbitrator waited for two hours. Then instead of proceeding to hear the case ex parte, the arbitrator considered that he had power to deal with the matter as a Civil Court had, if the plaintiff was in default. That is not so. The arbitrator ought to have proceeded to hear the evidence of the other side. But instead of doing that, he made an award. The award was then sent to the Court and, on an application to file the award, the plaintiff objected on the ground that he had a reasonable ground for not appearing before the arbitrator and gave some excuse for being absent. The learned Judge said that that was not the proper way but that the plaintiff ought to have applied under the provisions of Order IX, Rule 9, Code of Civil Procedure. Of course, the learned Judge was clearly wrong in that view. The plaintiff having acted on the suggestion of the learned Judge and having made an application under Order IX, Rule 9, Code of Civil Procedure, the learned Judge then set aside the award of the arbitrator and restored the matter to his own file. The learned Judge was obviously wrong in doing that. It is quite clear that if the arbitrator in this case had left undetermined the matters referred to him for arbitration under the provisions of Clause 14 of the Second Schedule to the Code of Civil Procedure the Court might remit the award or any of the matters referred to arbitration for re-consideration to the arbitrator. That being so, the learned Judge, when a proper case was made by the plaintiff to excuse his absence and when it was shown that the arbitrator had made his award without hearing any evidence at all, ought to have remitted the award or the matters referred to arbitration for re-consideration by the arbitrator. The proper order to make in this case is that the order of the learned Munsif should be set aside and instead thereof, under the provisions of Section 115, Code of Civil Procedure, we should make an order remitting the award in the matter referred to arbitration for re-consideration by the same arbitrator on the ground that the award has left undetermined the matters referred to arbitration. There will be no order as to costs of this Rule.