1. ' SAID MUHAMMAD KHAN, J.-This is an inter-Court appeal which arises out of an application under section 20 of the Arbitration Act.
2. Briefly the facts resulting in this appeal are that applicant-appellant had secured a contract from respondent No, 3 for the construction of culverts on the road from Jarri Kass to Akalgarh on the 5th of February, 1966. The case of the appellant is that when he had constructed almost all the piers of culverts, it rained heavily during the night of the 19th of January, 1967 and there was heavy flow of water in the 'nullah' which resulted in extensive pressure against the eastern bank which resulted in uprooting three of the 10 piers. It is further contended by the appellant-applicant that the Engineer Incharge made a spot inspection and ordered the applicant to rebuild the damaged piers which was accordingly done, but again, the piers were damaged due to heavy rainfall. In the written statement, the non-applicant-respondents contended that the appeal was time-barred and further that post of S. E. Town Circle having been abolished for more than two years ; the agreement clause, with regard to the Arbitration, has become redundant. The learned Single Judge of this Court framed two issues, namely : (1)- Is the application time-barred ? 0. P. D.
(2) Has the application become infructuous as the S. E. Mentioned in the arbitration agreement has ceased to function as the post has been abolished long ago ? 0. P. D.
3. ' The learned Single Judge decided issue No, 2 in favour of respondents-defendants and held that agreement, with regard to the arbitration, could not be enforced because the post of S. E. Town Circle had been abolished.
4. ' We have heard the learned counsel for the parties and have gone through the record. The main point which requires determination is that if a persona designata is visualized as arbitrator in the agreement, what would be the effect, if the office falls vacant on account of abolition of the post or due to some other cause. Under section 8(1) (b) of the Arbitration Act, a vacancy of Arbitrator can be supplied if any appointed arbitrator or umpire neglects or refuses to act or is incapable of acting, or dies and the arbitration agreement does not show that it was intended that vacancy should not be supplied in case of the aforesaid contingencies. For determining the intention of the parties, one has to consider the attending circumstances and wordings A of agreement clause itself and the fact whether the arbitrator is identified in the agreement by name or as pesonal designata. This question has been subject of consideration by various judicial authorities.
5. In AIR 1961 Him. Pra. 35, it was held that where the parties had agreed to refer the dispute with reference to the office, the intention of the parties was that the arbitration should be conducted by the holder of that office and none else and on refusal of such an arbitrator, another arbitrator could not be' substituted and the vacancy could not be filled in. In the aforesaid case, the dispute was to be referred to the Registrar Co-operative Societies, in view of the agreement between the parties.
6. An application was filed by the respondent for filing of the agreement and for making reference for arbitration. The Registrar Co-operative Societies expressed his unwillingness to arbitrate, on account of his being, otherwise, busy. It was held that another arbitrator could not be substituted because the Registrar Co-operative Societies was agreed upon as arbitrator by reference to his office and when the parties, named arbitrator with reference to his office, it was the trait peculiar to the office which weighed with the parties and it might reasonably be assumed that they never intended to supply the vacancy.
7. ' In another case reported as AIR 1955 Raj. 30, it was held that intention of the parties was not' to supply the vacancy because in agreement, the relevant clause read as "Chief Engineer shall be the sole Arbitrator and Judge in case of a dispute ", which was to exclude possibility that parties intended to replace him. Although in the aforesaid case, much stress was laid on the phrase "the sole Arbitrator and Judge", but the fact that arbitrator was mentioned by reference to office also weighed with the learned Judges.
8. ' The matter also came up for consideration in another case, reported as PLD 1962 Lah. 948, wherein the Secretary, for the time being, to the Government of 'India' in the Army Department was to be appointed arbitrator. The aforesaid office ceased to exist after the partition of 'India' and as such no other person could be appointed as arbitrator, supplying the vacancy as visualized under section 8(1) (b) of the Arbitration Act.
9. ' In another case, reported as PLD 1956 Lah. 442, the contract provided for reference of dispute to the arbitrator holding the post' of Secretary, Civil Supplies. It was not clear whether the Secretary who held the office at the time of the execution of the agreement or the Secretary holding the office at the time of the dispute, was to act as arbitrator. Mr. Justice Rehman, C. J. Observed that agreement clause being ambiguous, was unenforceable and had been vitiated.
10. ' The learned counsel for the appellant relied on a case reported as PLJ 1973 Lah.
138. The facts of this case were that the Chancellor of the University was to be appointed as sole arbitrator by virtue of his office in case of a dispute. In this case, it was held that in principle, there was no difference between the appointment of an arbitrator who is specifically named in the agreement and an arbitrator who is described by virtue of his office. His Lordship, Mr. Justice Aftab Hussain was of the view that if the argument that in case, an arbitrator was mentioned by reference to his office, was treated on different footings from one who was named specifically in the agreement clause it would mean that the power to refer the matter to arbitration would vest in arbitrator, rather than it was decided on the principle bilateralism ; the case is also distinguishable from the present one on the ground that in the instant case, the office of the arbitrator has been, altogether abolished, while in case which was dealt with by the learned Judge, the arbitrator i. e.
11. The Chancellor refused to act as an arbitrator.
12. ' We have weighed the reasoning given by the learned Judge in this case and we are of the opinion that for judging the intention of the parties whether they intended to supply the vacancy or not, the identification in agreement naming such person specifically and mere, by reference to office, would make a difference while ascertaining the intention of the parties. When a arbitrator is agreed upon with reference to his office, fair inference would be, that the parties agreed because of peculiar traits of the office and no because the person holding the office, was acceptable to the parties on account of personal character, integrity or impartiality. This inference would more justified when it is not mentioned as to whether the person holding the office at the time of agreement, is to act as an arbitrator or a person holding the office at the time of dispute between the parties or at the time of accrual of cause of action is to be appointed as an arbitrator. An unqualified reference to arbitrator by his office, irrespective of the time when such person is holding the office, is clearly indicative of the fact that the factum of 'office', weighed with the parties, rather than the person holding the office. Therefore, if an arbitration is necessitated, it would imply that party had no intention to supply the vacancy in case, the office becomes non- existent.
13. ' The learned counsel for the appellant has also cited PLD 1952 Lah. 563, wherein it was held that in absence of contract, to the contrary, there was a presumption that the vacancy would be supplied.
14. Under section 8(1) (b) of the Arbitration Act, although the burden, to prove that the vacancy was not intended to be supplied, lies upon the party who pleads so. The intention of the parties may be gathered from the agreement and other relevant material. It is not necessary to discharge onus of proof by proving a contract to that effect.
15. ' The other authority cited, was PLD 1970 Lah.
840. The facts of that case are absolutely different and have no relevancy to the facts of the instant case. In that case, two arbitrators and one umpire were appointed. The dispute was to be referred to the umpire, in case of difference of opinion between the two arbitrators. One arbitrator refused to act as such. The Court, without supplying the vacancy, referred the matter to the umpire. It was held that without supplying the vacancy and without, there having been any difference of opinion between the arbitrators, the matter could not have been referred to the umpire.
16. ' The upshot of the above discussion is that the office of the Superintending Engineer Town Circle, having become non-existent, the arbitration clause' D of the agreement has become unenforcable and is vitiated. On the aforesaid) view of the matter the appeal is hereby dismissed with costs.