' The respondent, Muhammad Ismail filed a suit for pre-emption against the petitioner, Muhammad Shard. During the pendency of the suit they agreed to settle the dispute involved in the suit through arbitration. Two arbitrators were appointed by the petitioner and two by the respondent. It was agreed that in case the arbitrators were not able to give a final decision, they would refer the matter to an umpire whose decision shall be final. What actually happened after some deliberations was that the arbitrators could not agree to decide the dispute and, therefore, an umpire was appointed by them. The umpire directed the arbitrators to record their respective findings so as to enable him to give his verdict. The arbitrators appointed by the petitioner had submitted their findings to the umpire but the arbitrators nominated by the respondent were yet to do so when the petitioner made an application, under section 11 of the Arbitration Act, 1940, for removal of the arbitrators nominated by the respondent. His application was dismissed by the Civil Judge who was seized of the suit. Being dissatisfied with the order of the learned Civil Judge in this behalf the petitioner has come up in revision to this Court.
2. Learned counsel for the petitioner contended that as alleged by the petitioner in his application the two arbitrators appointed by the respondent were not independant persons inasmuch as they had asked him to transfer the disputed land to the respondent after receiving the litigation charges, etc. And had threatened that if he would fail to do so, they would decide the matter against him. It was, therefore, urged by him that the said arbitrators were liable to be removed for having misconducted themselves. On the other hand, it was submitted by learned counsel for the respondent that having appointed the umpire, the arbitrators had become functus officio and, therefore, the application made by the petitioner was not competent. He relied on the following commentary appearing at page 561 of the Arbitration Act by N. D. Basu (Fourth Edition):- "Where the umpire took up the burden of umpirage following the disagreement, the arbitrators would have nothing further to do with the reference and it would be the umpire who functioned alone in lieu of the arbitrators. [New Great Insurance v. Behari Lal (1958 B L J R 488)).
3. It is not disputed that the petitioner had applied for removal of the arbitrators nominated by the respondent when all the arbitrators in the case had appointed an umpire. After the appointment of the umpire, the arbitrators sought to be removed had also submitted their findings as required by the umpire. Thus, there was nothing further to be done by them in connection with the arbitration proceedings. I am, therefore, in agreement with the learned counsel for the respondent that the arbitrators whose removal was desired by the petitioner had become functus officio when the petitioner bad applied for their removal. In this view of the matter, his application was misconceived and was rightly rejected by the learned trial Court.
4. This petition is, accordingly, dismissed. There shall, however, be no order as to costs.