' This is an appeal under section 39 of the Arbitration Act against an order passed on 28th June, 1976 by the learned Senior Civil Judge, Lahore refusing to make an award a rule of the Court.
2. There was a dispute between the appellant and the respondent as to whether the appellant was responsible for demurrage paid on release of wheel tyres. The demurrage was Rs, 43,558. There being a dispute about the liability. Mr. Mukhtar Hussain retired XEN (Track) of the Railway Department was appointed as the sole arbitrator. After hearing the parties and taking into consideration all the evidence, he gave the following award:- "The Pakistan Railways have incorrectly withheld the sum of Rs, 43,585 (Rupees forty-three thousand five hundred and eighty-five) and therefore, are directed to pay this amount forthwith to Messrs International Equipment Co., Lahore."
3. An application was thereafter submitted on 9th September, 1975 on behalf of the appellant for making this award the rule of the Court. The respondent raised objections under section 30 of the Arbitration Act that the Arbitrator had misconducted himself and the proceedings in so far as (a) he had not considered the provision relating to the submission of the shipping documents nor the basic facts that the appellant's excuse for the late delivery of shipping documents was incorrect "in that the inspection notes which according to the petitioner (appellant) caused the delay in the submission of shipping documents was no part of the shipping documents and there was no justification for the petitioner to withhold the shipping documents just for the sake of unnecessary part thereof (b) that whatever the reasons, the petitioner may have had for late submission of the documents, the respondent had contributed no reason whatsoever, for the late clearance of the goods and as such as regards the demurrage if payable as they necessarily are, it is the petitioner in any case who has to meet this liability and by no stretch of imagination and for no reason whatsoever can this liability be put on the shoulder of the respondent. (c) That the Arbitrator has written the Award, intentionally shutting up all chances of judicial scrutiny by the Court causing thereby grave miscarriage of justice".
4. The learned Court framed the following issues :- (1)Whether the Arbitrator has misconducted in giving the award in dispute? 0. P. R.
(2)Relief.
5. After recording the evidence of the parties including the evidence of the Arbitrator, who was produced by the appellant, the learned Court proceeded to consider the merits of the case which could be done only by the Arbitrator and held that the question of responsibility for the delivery of shipping documents before the arrival of the vessel as laid down in the reverse of the previous order is incidental to the question for decision before the Arbitrator and if it is found that the Arbitrator erred in interpreting the instructions on the reverse of the purchase order, it would be an error of law apparent on the face of the record and Court would be competent to set aside the award.
6. After hearing the learned counsel for the respondent I am of the view that this order is not sustainable in law. The Court had no jurisdiction to go into the question of merits. The Judge had only to see whether there A was an error apparent on the face of the award as distinguished from an error apparent on the face of the record. This principle has been brought out in the authorities relied upon by the learned counsel for the respondent, Pakistan v. Asian Associated Agenciesand Mst. Umar Bibi and others v. Bashir Ahmad and others. In the latter case it was held : "It is no doubt a well-established principle of law that if a mistake of law appears on the face of the award of an arbitrator, that makes the award bad, and it can be set aside but it is equally clear that if a specific question of law is submitted to an arbitrator for his decision and he does decide it, the fact that the decision is erroneous does not make the award bad on its face so as to permit of its being set aside. Otherwise it would be futile ever t.) submit a question of law to an arbitrator."
7. Moreover I am of the view that the petition itself did not fall under the provisions of section 30. The objector had clearly stated that the award did not give any reason. In view of this the points taken in grounds (a) and (b) of the objection petition clearly amount to asking the Court to decide the merits of the case rather than go into the question of misconduct of the Arbitrator or to put it differently instead of finding out any error apparent on the face of the award the Court was being asked to first determine the merits of the case and then see whether the award was in accordance with the determination of the issues on merits arrived at by the Court. Certainly this is not the manner in which the finding of misconduct can be given against the proceedings conducted by the Arbitrator. The Court in fact has nothing to do with the merits of the case. It has only to judge the misconduct which may be even legal but for legal misconduct it has to see whether on the face of the award there is an error of law apparent. If the award itself is without any reason, I do not understand how the Court can go into the merits of the case and then determine that error. This will be clearly going out of the limited ground laid down by section 30. There being no error apparent on the face of the award nor the petition being within the scope of section 30 of the Arbitration Act the petition should have been dismissed and the award should have been made rule of the Court.
8, I allow this appeal with costs throughout, set aside the order of the learned trial Court and make the award a rule of the Court. PLD 1974 Kar, 155 PLD 1968 Lab. 6291 2 1 2