1. ' Award was filed by the learned sole Arbitrator in Court on 15-6-1999. Notices were issued to the parties. However, defendant could not be served in the ordinary way and vide order dated 13-1- 2003, the defendant was ordered to be served through publication. The Additional Registrar (Original Side) by his order dated 19-2-2003 ordered to issue notices to defendant through publication in Daily Jang. Notice was published in Daily Nawa-e-VVaqt on 17th March, 2003. After service upon the defendant through publication as well as by pasting the notice at the last known address since no objection was filed undersections 30 and 39 of the Arbitration Act, the matter was fixed for order on award in Court.
2. ' I have heard Mr. Abdul Wajid Wyne for the plaintiff. I have also gone through the award as well as documents filed alongwith award by the learned sole Arbitrator.
3. ' The learned Advocate for the plaintiff argued that an arbitrator is not required to file issue or documents. In support of his contention he relied upon case of (1) Messrs Waseem Construction Co. v. Province of Sindh (1999 CLC 1081), (ii) Messrs Hafeez Construction Co. v. Messrs Javedan Cement Ltd. (1989 CLC 885) and (iii) Messrs Maqbool Associates Ltd. v. Messrs Sindh Sugar Corporation Ltd. (1990 CLC 55).
4. ' It appears that the dispute is between the two real brothers in respect of the rights in Plot bearing No.R-83 Block 9, Karachi Administrator Employees Cooperative Housing Society admeasuring 150 square yards. The case as set up by the plaintiff in his claim before the Arbitrator was that the plaintiff and defendant has been jointly carrying on business of shuttering of wooden in the year 1966 and plot in question was purchased in the name of plaintiff at the costs of Rs.19,000. The property in question was purchased in the name of defendant being elder brother and it was agreed that the lease of the plot will be obtained in the name of plaintiff and defendant with equal share therein from the society. The construction was raised on the plot by the parties jointly. The ground floor and first floor of the property in question have been let out and the upper floor was occupied by the plaintiff and defendant. The joint business was discontinued in the year 1996 and thereafter the plaintiff and defendant started their independent business. The rent of the property in question was equally shared but since December, 1999 the defendant refused to give the share in the rent to the plaintiff.
5. ' An agreement was executed between the parties on 5th April', 1976 whereby parties agreed that if in case dispute arises between the parties at any time with regard to division/bifurcation title or otherwise effecting any manner relating to society the house shall be referred to decide by the sole Arbitrator Mr. Mir Zaman Khan son of Khalid Zaman whose award shall be final and conclusive.
6. ' Matter was referred to Mr. Bashir A. Memon as a sole Arbitrator vide order dated 13th November, 1997. The learned sole Arbitrator issued notice to defendant which was received by his son. Mr. Iqbal Rad, Advocate appeared before the Arbitrator and undertook to appear on behalf of the defendant but no Vakalatnama was filed by him.
7. ' The learned . Arbitrator after narrating the facts of the case framed following three issues:--
(i) Whether the plot in question was purchased by the joint funds of the parties in equal ratio?
(ii) Whether the defendant Gul Zaman refused to bifurcate the plot in dispute?
(iii) What should the order be?
8. ' Before the learned Arbitrator plaintiff alongwith two witnesses filed their affidavits in evidence but they have not been cross-examined by the defendant. The learned Arbitrator gave the following findings:-- "That the plaintiff Muhammad Yousuf examined himself as well as his two witnesses as and there can be no other opinion except to believe the version of the plaintiff. As such on the basis of evidence on record I am of the view that the plaintiff has proved his case and first two issues are answered in affirmative in favour of the plaintiff Muhammad Yousuf, I therefore, hold that the plaintiff is entitled to 50% share in the Plot No.R-83, Block-9, Karachi Administrator Employee Cooperative Housing Society admeasuring 150 square yards seeking its division/bifurcation through the concerned office/authority. The plaintiff is also entitled to 50% share from.The rent of the disputed plot for the last three years from the date of filing of the suit till the property is in occupation of the tenants. I leave the party to bear their own costs. I have given my await on this 9th day of June, 1999.
9. Under section 17 of the Arbitration Act, 1940 it is the duty of the Court to examine and see that whether there was any reason for modifying the, award notwithstanding that any effective parties have failed to file objection to the award.
10. ' I have examined the award keeping in view section 17 and section 26-A of the Arbitration Act.
11. ' Section 26-A was incorporated by Arbitration Amendment Ordinance read as under:-- "26-A. Award to set out reasons:
(1) The arbitrator or umpire shall state in the award the reasons for the award in sufficient detail to enable the Court to consider, any question of law arising out of the award.
(2) Where the award does not state the reason in sufficient detail, the Court shall remit the award to the arbitrators or umpire and fix the time within which the arbitrator or umpire shall submit the award together with the reasons in sufficient detail: Provided that any time so fixed may be extended by subsequent order of the Court.
(3) An award remitted under subsection (2) shall become void on the failure of the arbitrator or umpire to submit it in accordance with the direction of the Court."
12. From the bare perusal of the section, it appears that the arbitrator or umpire shall state in the award reasons for the award in sufficient detail to enable the Court to consider any question of law arising out of the award and where the award does not state the reason in sufficient detail then Court shall remit the award to arbitrator or umpire and fix the time within which arbitrator or Umpire shall submit the award together with the reasons and sufficient details and in case arbitrator fail to give the reasons within the time fixed by the Court the award shall be become void.
13. ' In the case of Mabool Associates Ltd. (supra) relied upon by the plaintiff's advocate, the learned Judge refused to upset the findings of the arbitrator, on the issue, which is otherwise well-reasoned, based upon record and fulfils the requirements of section 26-A of the Arbitration Act. In the case of Messrs Waseem Construction Co. (supra) relied upon by the learned Advocate for the plaintiff, the learned Judge held that notwithstanding the amendment introduced by insertion of section 26-A into Arbitration Act, the Court cannot act as a Court of appeal in respect of the findings of facts arrived by the arbitrators. In the case of Messrs Hafeez Construction Co. (supra), High Court held that although section 26-A provides that the arbitrator shall state in the award the reasons for the award in sufficient details, yet it is nowhere made compulsory for the arbitrator to frame issues and to give separate findings on each of the issues in the strict sense.
14. ' None of the case-law discussed hereinabove support the case of the plaintiff the award given by the learned arbitrator in fact a nonspeaking award.
15. ' In the case of Messrs Awan Industries Ltd. v. The Executive Engineer, Line Channel Division and another (1992 SCM R 65) the Hon'ble Supreme Court held: "The provision of section 17 of the Arbitration Act, which imposes a duty on Courts to see that there is no cause to remit the award or any of the matters referred to arbitration forreconsideration or to set aside the award. This can be done by the Court suo motu, apart from the application which a party may make for either remission of the award or its reversal. Where, therefore, an award is found to be nullity because of the invalidity of the arbitration agreement or, for any other reason, or the award is prime facie illegal and not fit to be maintained, the Court has power under section 17 of the Act to set it aside without waiting for an objection to award being filed or without considering any application for setting it aside, if there be any, and irrespective of the question whether or not any objection to the award was filed or whether the objection, if filed, was not within time."
16. ' In the case of Mst. Afroz Jehan v. Mst. Noor Jehan and others (1998 CLC 1318) Mr. Saleem Akhtar, J.
17. (As he then was) held that a section 26-A of the Arbitration Act provides that arbitrator shall state reason in sufficient detail. The learned Judge further held that where reasons in sufficient details are not given the Court shall remit the award. The learned Judge further held that by this provisions a duty is not only cast upon the appointed arbitrator, to give reasons for the award but also makes incumbent on the Court to examine the award to see whether sufficient reasons have been given to enable the Court to consider any question of law arising out of the award.
18. The terms 'reason' has been defined in Black Law Dictionary as; ' A faculty of the mind by which it distinguishes truth from falsehood, good from evil, and which enables the possessor to deduce inference from facts or from proposition. Also an inducement, motive, or ground for action, as in the phrase `reasons for an appeal'.
19. ' The terms 'reason' has also been defined in Chamber 20thCentury Dictionary as: ' Ground, support, or justification of an act or belief: a premise, esp. When placed after its conclusion: a motive, or inducement: an underlying explanatory principle: a cause: the mind's power of drawing conclusion and determining right and truth: the exercise of this power: sanity: conformity to what is fairly to be expected or called for: moderation: fair treatment, e.g. Satisfaction by a duel, or doing one's fair share in drinking: a remark, a sententious saying (Shak.): proportion (Sepns)- v.i. To exercise the faculty of reason: to deduce inferences from premises: to argue: to debate: to converse (Shak.) .--" v.t. To examine or discuss: to debate: to think out: to set forth logically: to bring by reasoning.'
20. ' I have examined the award to see whether sufficient reasons have been given by the learned sole arbitrator in his award or not.
21. From the perusal of the award appears that sole arbitrator has not given any reason in his award for hi! Findings except that defendant failed to cross-examine the plaintiff's witnesses and their evidence, as such is un-shattered. In my opinion the learned arbitrator ought to have given reasons for holding that plaintiff has 50% share in the property in question. It was incumbent upon the arbitrator to examine the evidence before him after discussing the same and documents, if any, give the findings whether the plaintiff has any right in the property in question or not.
22. ' For these reasons award is remitted to the learned sole arbitrator to give reasons within 30 days from the date of the receipt of the order and in case the learned arbitrator fails to give the reasons within stipulated time, the award will stand set aside.