' This F.A.O. Is directed against the order dated 20-5-2002 passed by the learned Civil Judge, Hafizabad, whereby, he dismissed the application filed under sections 30/33 of Arbitration Act, by Sarfraz Khan while accepted application filed by Saleem Akhtar and observed that the award made be treated as rule of the Court.
2. Briefly the facts relevant for the disposal of this F.A.O. Are that one Saeed Akhtar son of Hayat Muhammad, who was owner of the property in dispute died in the year 1985 and his inheritance was sanctioned vide Mutation Na.12071 dated 25-8-1985 in favour of the petitioners and respondents Nos.1 and 3 according to their legal shares as they are his brothers and sisters.
Respondent No.2 was appointed as arbitrator vide written agreement dated 27-5-1998 for the settlement of dispute. He delivered his Award on 14-11-1998. The objections were filed by the appellants to the said Award under sections 30/33 of the Arbitration Act wherein he alleged that respondent No.2/Arbitrator has not properly decided the matter. Respondent No.3, was earlier with the appellants, in the objection petition but thereafter he withdrew his objections to the award.
Respondent No.1 contested the objections. On 28-6-1988 Saleem Akhtar Khan respondent No.1 also filed an application for making of award as rule of the Court before the Civil Court, Hafizabad. The said application as well as the objections were consolidated and the learned trial Court framed the consolidated issues on 25-1-2000. Both the parties produced their respective evidence. The learned trial Court after hearing both the parties accepted the .Application of respondent for making award the rule of Court and dismissed the application of the appellant which order is being assailed herein.
3. The learned counsel for the appellant contends that the arbitrator has misconducted himself; he has exceeded from the mandate given to him in the arbitration agreement Exh.R.1 and that no reason has been given by the arbitrator for his award Exh.R.2. Mst. Azmat-un-Nisa, appellant No.3 lodged a claim of Rs.4,22,177, while appellant No.2's claim to the tune of Rs.3,04,585 but the same was not considered in its true perspective. The claim so filed by the appellants was not made part of the record.
4. Conversely, the learned counsel for the respondents stated that the arbitrator has not misconducted himself. He entered into the reference in accordance with the consent of the parties to the dispute, strictly in accordance with Exh.R.1 and reasons have been supplied in the award.
5. Exh.R.1 is an arbitration agreement. It provides that the dispute between the parties in regard to settlement of pecuniary liability be referred for resolution of Muhammad Abass son of Malik Habib Ahmad, the sole arbitrator. The power granted to the arbitrator by the parties in Exh.R.1 was limited to the settlement of dispute of the pecuniary liability. It did not confer power on him to decide division of the immovable property of the deceased between the parties. The contentions of the learned counsel for the appellant of arbitrator having transgressed his limits stand substantiated from the record.
6. The learned arbitrator has not given reason for his decision in clear violation of section 26-A of the Arbitration Act. The award, without reason, is not sustainable in the eye of law. Section 26-A provides that where arbitrator had not given reason for award in sufficient detail the matter be referred to him for reconsideration. In the present case, such course cannot be adopted, for simple reason, that the arbitrator has not remained neutral person. During the pendency of objection proceedings before the Civil Court one of the party namely Sarfraz Khan appointed him as his special attorney by power of attorney dated 24-4-2001, attested by Consul for Pakistan Birmingham. The Arbitrator appeared in Court as R.W.1 on 7-3-2002. At this juncture, he was not appearing in the capacity of arbitrator alone but on behalf of* Sarfraz Khan respondent and watchful of his interest, being his attorney. The arbitrator has to conduct himself in fair and partial manner. Once he is constituted as attorney of one of the party his statement in Court is not of an independent neutral person. The arbitrator having, thus, misconducted himself, the award is, also, liable to be set aside on this score.
7. The Court, while hearing objection to the award are not required to undertake appraisal of evidence to discover the error or infirmity thereon. The arbitrator in his statement as R.W.1 admitted that he did not record the evidence of the parties and rather prepared rough notes which was later on destroyed. Documentary evidence given by the parties did not form part of the proceedings of the Award. While he was under cross-examination, he admitted that the documents are available with him which he could produce, if asked for. The recording of oral evidence by the arbitrator may not be of much relevancy but the documentary evidence should have annexed by him so that the Court could have examined his reasoning in construing evidence. Documentary evidence and its examination is of added importance for the reason that the appellants pleads of submitting their claim of amount which were much on higher side than mentioned by arbitrator. Had the claims filed by the the genuineness of their plea could have appellants in writing been placed on record, been examined and adjudicated upon.
8. In view of the above discussion, this appeal is allowed, the judgment of the learned trial Court dated 20-5-2002 is hereby set aside and the award dated 14-11-1998 is declared to have been made without lawful authority and will be deemed to have been set aside.