' SAEEDUZZAMAN SIDDIQUI, J.-This appeal is directed against the order of a learned Single Judge of this Court exercising jurisdiction on the original side. The learned Single Judge by the impugned judgment dismissed the objections filed by the appellant against the award and made it rule of the Court.
2. Mr. Mansoor-ul-Arfin, the learned counsel for the appellant, while challenging the impugned order, raised following contentions before us:-
(i) That the award given by the Umpire was based on no evidence and as such the learned Single Judge should have refused to make it the rule of the Court.
(ii)That the award is based on an incorrect proposition of law which is apparent on the face of record and as such on this ground also the learned Single Judge should have set aside the award and accepted the objections filed by the appellant.
(iii) That there was no material on record before the Umpire to hold that respondents Nos. 1 to 4 were the partners of Amir Carriers and in any case the reference to the arbitration having been made only by respondent No. 1 without express and written authority of respondents Nos. 2 to 4, the reference was incompetent in law in view of section 19(2) of the Partnership Act.
' Before considering the above contentions of the learned counsel we may state here some of the facts which will be relevant and necessary for decision of the above points.
3. The respondents Nos. 1 to 4 were plying a Public Transport Bus bearing No, KAU 9642 under the name and style of Amir Carriers. On or about 14-9-66, a proposal form was filled and submitted to the appellant, on behalf of Amir Carriers signed by respondent No. 1, for issuance of a comprehensive insurance policy in respect of the above bus. The appellant after accepting the above proposal form issued insurance policy in favour of Amir Carriers bearing No, H/AP/MV/4818 dated 15-9-1966 in respect of the above bus. This policy was valid for a period from 15-9-1966 to 14- 9-1967. On 21-12-1966, the above bus met with an accident and was burnt by fire, which resulted in total loss. Accordingly a notice was served on behalf of Amir Carriers, through an Advocate, calling upon the appellant , to pay a sum of Rs, 60,000, for which amount the above bus was insured. The case, as disclosed in the notice was, that the bus caught fire due to mechanical defect, which resulted in total loss and destruction of the bus. The appellant on the other hand denied the claim of the respondents on the ground that the fire which took place in the bus was not due to any mechanical defect or accident but was caused by a mob which set the bus on fire following an accident in which the bus knocked down a scotterist. In these circumstances a reference was made in terms of clause 8 of the Insurance Policy, which provided for adjudication of the dispute by two Arbitrators and an Umpire. Accordingly the two Arbitrators and the Umpire sitting together heard the parties and gave the award, which was challenged before the learned Single Judge as aforesaid and was made rule of the Court. In terms of the award the appellant was directed to pay a sum of Rs, 50,000, to respondents Nos. 1 to 4. Having stated the above facts we now proceed to examine the contentions of Mr. Mansoor-ul-Arfin, Advocate, the learned counsel for the appellant, advanced before us.
4. The first contention of the learned counsel for the appellant is, that the award of the Umpire holding that the fire took place as a result of a mechanical defect and as such the appellant was liable to pay the sum awarded, is based on no evidence at all. Since in the award the Umpire had referred the evidence of several persons examined on both the sides besides making reference to documents produced by them before him, we enquired-from the learned counsel for the appellant as to how it is contended that the award was based on no evidence. In reply the learned counsel submitted that although evidence was led on both sides but there was no direct evidence connecting the fire which took place in the bus with the accident or the mechanical defect. In order to understand the contention of the learned counsel we ourselves looked into the evidence recorded in the proceedings and found that in the statement before the Arbitrators and the Umpire, the driver of the bus stated in clear terms, that after the accident while he was driving the bus in panic he found smoke coming out of the engine which had caught fire. The Umpire relying on this evidence and the other evidence produced in the case, came to the conclusion that the fire had broken out in the bus due to some mechanical defect after accident which resulted in the total loss. In or view, in these circumstances the award given by the Umpire cannot be described as based on no evidence. It is totally different to say that the award is based on insufficient evidence than to describe it as based on no evidence. After looking into the record of arbitration proceedings we have reached the conclusion that there was some evidence before the Umpire to hold that the fire which led to the destruction of the bus, was accidental and arose from some defect or reason which may be mechanical. Whether the evidence before. The Arbitrators and Umpire was sufficient or not to reach this conclusion, was not open to scrutiny by the learned Single Judge while dealing with the validity of the award under section 33 of the Arbitration Act. It was open to the Umpire to have believed the evidence produced by one party while disbelieving the other and also to base his award on such considerations. The question of appreciation of the evidence by the Umpire was accordingly not open to challenge in the proceedings before the learned Single Judge. A Court while examining the legality of the award under section 33 of the Arbitration Ac could not substitute its own finding on appreciation of the evidence, in place of the one given by the Arbitrators or the Umpire, even if the Court has reached a different conclusion on that evidence. The proceedings before the Arbitrators or the Umpire are in the nature of proceedings before a drones Tribunal and strict compliance of procedural law or the Law of Evidence cannot be insisted upon in such proceedings. We are accordingly of the view that the contention of the learned counsel for the appellant that the award was based on no evidence, has no substance.
5. The next contention of the learned counsel for the appellant is based on the ground that in clause 6 of the insurance Policy, which covered the risk, it was stipulated that the burden of proving that the loss occasioned due to fire was not for reasons other than the mechanical defect or the accident as mentioned in the exception clause, was also on the respondents. Accordingly the learned counsel urged that this burden was wrongly placed on the appellant by the Umpire in the award. Our attention was invited to the last paragraph at page 2 of the award to contend that the Umpire proceeded to examine the case as if it was for the appellant to prove the exceptions provided in clause 6 of the Policy. The learned counsel strongly relied upon the following observations in the award:- "Taking into consideration the facts of this case is the light of the above principles as well as the strict rules of evidence I find that on the whole the evidence led by the claimant is more reliable, direct relevant and unbiased than that of the respondents (the underlining) is by us to indicate the emphasis laid by the counsel for the appellants on these words).
' The learned counsel for the appellant also placed reliance on the following observations made towards the end of second paragraph at page 4 of the award:- "This evidence not being direct does not provide any clue to the origin of the fire which according to Ivamy should have been strictly proved."
6. The first of the above two observations made by the Umpire in his award appears immediately after a quotation from a book entitled "General Principles of Insurance Law by E. R. Hardy Ivamy".
The passage at page 344 from the above book which was reproduced by the Umpire in the award dealt with the general principles of proving losses by fire. According to learned counsel, the first observation made by the Umpire in the award and specially the underlined words after reproduction of the passage from Ivamy's abovementioned book amounted to shifting of the burden of proof on appellant which had the effect of producing an error of law apparent on the face of award. The argument of the learned counsel for the appellant is, that this observation was based upon the principles relating to proof of losses by fire in insurance cases enunciated in the aforesaid passage from the book which stated that the burden of proof in such case rested on insurer. Firstly the quotation reproduced by the Umpire from the book referred to above did not only lay down the extent of burden of proof in such cases on the insurer as well as assured but it also stated the manner of proof by either party in such cases. It is, therefore, not correct to argue that the Umpire had proceeded to give the award solely on consideration of burden of proof in the case in the light of the principles enunciated in the above-referred passage from the above book. In fact the Umpire had given his own reasons for preferring the evidence led by the respondents over the evidence produced by the appellant in the case. In the paragraph which immediately followed the above observation, the Umpire had discussed the entire evidence produced by the respondents in support of their claim and in the last five lines summed up his conclusion in the following words:- "The case of the assured is, therefore, not only prima facie but satisfactorily proved."
' We have, therefore, no doubt in or mind that the conclusion reached by the Umpire was not based solely upon the consideration that the burden of the proof was on the appellant to prove the exceptions mentioned in the Policy, but independent of that, the Umpire had reached the conclusion that the respondents had satisfactorily proved on record that the cause of fire in the bus, which led to its destruction, was on account of accident and mechanical defect. The second observation which the learned counsel for the appellants, relied upon, was recorded by the Umpire at the end of the next two paragraphs which followed the paragraphs we have just referred. In the said following two paragraphs the Umpire extensively referred to the evidence led by the appellant in the case in support of the pleas raised by it and discarded the evidence for reasons given therein. It was, after having found so, that the Umpire made the aforesaid second observation, which in or opinion only meant that the evidence in support of the case set up by the appellant was not direct and did not provide any clue to the origin of the fire. This observation by no means can be stretched to mean that the sole ground .On which the award proceeded was, that the burden was not discharged by the appellant. In fact prior to this, in the earlier paragraphs, as stated by us, the Umpire had reached a conclusive finding that the case of respondents was fully established on the basis of the evidence led by them. The conclusion reached by the Umpire on the basis of the evidence was correct or not is not for us to determine in these proceedings nor was it open to learned Single Judge to say so, while considering the validity of the award under section 33 of the Arbitration Act. After reading the award as a whole, we are of the view that the award did not proceed on the sole ground of failure of the appellant to discharge the burden of proof in the case, as contended by the learned counsel for the appellant. The award was based on positive conclusions arrived at by the Umpire on the evidence regarding the claim of respondents. There is yet another stronger reason which has persuaded us to hold that the contention of the learned counsel for the appellant cannot be accepted on this score. In order that an error is held to be apparent on the face of the record, such error must appear in the award itself. The words "apparent on the face of the record" have been subject of interpretation in a large number of cases and it is by now a well settled law that to hold that a particular error is apparent on the face of the record such error must be discoverable by reading the award itself and not by reference to other materials, namely the record and proceedings before the Arbitrators or Umpire. Judging the contention of the learned counsel in this perspective, it is clear that the alleged error of law pointed out by the learned counsel for the appellant cannot be found in the award itself. To find out the alleged error pointed by the learned counsel we must necessarily refer to the proceedings before the Umpire as the clause in the Insurance Policy relied upon in this regard has not been referred to or reproduced in the award. It was then sought to be argued by the learned counsel that since clause 8 of the Policy was reproduced in the award, the whole of the policy with all its clauses should be deemed to have been incorporated in the award and could be looked into by us. We are unable to accept this contention in view of what is stated hereinafter. The learned counsel has relied on the case of Muhammad Sadiq Muhammad Afzal v. Ministry of Industries, Department of Supply and Development, Government of Pakistan (1), in support of his contention. According to the learned counsel in the case referred to above, learned Judges of the Division Bench, who decided the above case, in order to discover the error of law in the award, had referred to certain clauses in the agreement which did not form part of the award. With due deference to the argument of the learned counsel there is no {{FOOT NOTE}}
(1) PLD 1966 Kar. 412 {{FOOT NOTE}} ' indication in the above case that such a course was adopted by the Court. We have looked into the original case from which the appeal arose and was decided in PLD 1966 Kar. 412, which is reported in PLD 1962 Kar.
113. Although from the fact stated in the original case also it is not very clear whether the disputed clause which was the subject-matter of interpretation in the above case was fully reproduced in the award but from discussion at page 116 of the report in paragraph 8, it is clear that in the argumentative part of the award reference to clauses 1 and 2 of the contract were made by the Arbitrator to deduce certain legal inferences on interpretation of those clauses which the Court found to be erroneous and which was held to have produced an error of law apparent on the face of the Award. Be that, as it may, the point in or opinion has been clearly stated in the case of Pakistan through Secretary, Ministry of Industries v. Messrs Asian Associated Agencies Limited (1), decided by another Division Bench of this Court. The learned Judges of the Division Bench in this latter case after reviewing case-law on the point recorded their opinion at page 163 of the report in the following terms:- "The position in the instant case appears to be precisely the same as in the above reported case, for the reference or allusion to the contract has been made very guardedly in the Award and solely for the purposes of earmarking the dispute in question. We are, therefore, of the opinion that the contract has not been incorporated in the Award and cannot be looked into by the Court for the purposes determining whether there is an error of law on the face of the Award."
' The learned counsel attempted to argue that there appeared to be a conflict on the question of law decided by the above two Division Benches, and further urged that in order to resolve this alleged conflict the case may be referred to a larger Bench. We find no justification to follow the course suggested by the learned counsel for the appellant as in or view there appears to be no conflict in the proposition of law laid down in the aforesaid cases. The conclusion on the point of law in the case in PLD 1966 Kar. 412 was recorded at page 417 portion marked 'B' of report while in PLD 1974 Kar. 155, it appears at page 159 portion marked 'A' & 'B' of the report. We have not been able to discover any inconsistency in the conclusions arrived at in the two cases on the point in issue. It may further be noticed that on both occasions the learned Judges of the two Division Benches, who decided the aforesaid cases, based their conclusions on the leading case on the point namely Champsey Bhara Company v. The Jivraj Balloo Spinning & Weaving Company Limited (2). In order to find out ourselves the permissible extent of examination by the Court of the record of arbitration proceedings, while considering the question of "errors apparent on the face of award". We have examined in detail the above-referred Privy Council case which was the basis of decisions not only in the two above-mentioned Division Bench cases but also series of other cases on this point including the case of A. Z. Company v. S. Moula Buksh Muhammad Bashir (3), decided by Supreme Court. In Champsey Bhara Company v. The Jivraj Balloo Spinning & Weaving Company Limited, the Award which was challenged before the Court its narrative part contained references to several letters exchanged between the parties, in addition to a reference that the contract between the parties was made subject to the Rules and Regulations of the Bombay Cotton Trade Association Limited. The Award was set aside in appeal, by a Division {{FOOT NOTE}}
(1) PLD 1974 Kar. 155 (2) AIR 1923 P C 66
(3) PLD 1965 SC 505 {{FOOT NOTE}} ' Bench of the Bombay High Court on the ground that the Award was based on misinterpretation of clause (52) of the Bombay Cotton Trade Association Regulations which produced an error apparent on the, face of record. This clause (52) was not reproduced in the Award of the Arbitrator.
Their Lordships of the Privy Council while laying down the scope of the expression "An error in the law on the face of the Award" came to observe at page 69 of the report, after having laid down the rule which has been referred to and relied upon in the above two Division Benches and many other cases including the case of A. Z. Company in the following terms:- "It does not mean that if in a narrative a reference is made to a contention of one party that opens the door to seeing first what that contention is, and then going to the contract on which the parties rights depend to see if that contention is sound. Here it is impossible to say, from what is shown on the face of the award, what mistake the arbitrators made. The only way that the learned Judges have arrived at finding what the mistake was is by saying: ' Inasmuch as the Arbitrators awarded so and so and inasmuch as the letter shows that then buyer rejected the cotton the arbitrators can only have arrived at the result by totally misinterpreting clause (52)". But they were entitled to give their own interpretation to clause (52) or any other article, and the award will stand unless, on the face of it they have tried themselves down to some special legal proposition which then when examined, appears to be unsound. Upon this point, therefore, Lordships think that the judgment of Pratt, J., was right and the conclusion of the learned Judges of the Court of Appeal erroneous."
' The aforesaid observations of the Privy Council reproduced by us leave no doubt in or mind that in order to make an error apparent on the face of Award, such error must necessarily be discoverable by reading the award itself and not by referring to other material and proceedings before the Arbitration which does not form part of the Award. We are, therefore, unable to accept the contention of the learned counsel for the appellant that there was "an error of law apparent on the face of the award", given by the Umpire which vitiated the award.
7. On the last contention, the learned counsel for the appellant, raised two-fold arguments before us. Firstly, it was contended that there was no material on the record before the Arbitrator to hold that Amir Carriers was a partnership firm in which respondents Nos. 1 to 4 were the partners. In the alternative, it was argued that even if it be held that Amir Carriers was a partnership concern and that the respondents Nos. 1 to 4 were its partners, the reference to the Arbitration was entirely illegal, as one partner cannot refer the dispute to the Arbitration on behalf of the other partners in view of the provisions of section 19(2) of the Partnership Act. The contentions of the learned counsel have not impressed us at all. The Umpire in his judgment reached a conclusion that Amir Carriers was a partnership firm and that the respondents Nos. I to 4 were its partners. This conclusion of the Umpire was based upon documentary evidence produced before him in the case. We may here refer to one of these documents namely a letter addressed to respondent No, I by the Government of Pakistan, Ministry of Communication on 9-5-1966, in connection with the running of the disputed bus in partnership in which the names of respondents Nos. 2 to 4 are mentioned as partners of Amir Carriers. There are other documents and correspondence exchanged between the parties in which Amir Carriers was described as a partnership firm. In add4ion to the above, we found in the record of proceedings before the Arbitrator and Umpire, the original proposal form submitted to the appellant by the Amir Carriers on the basis of which the appellant issued the insurance policy referred to earlier, in their favour. This document was produced by the appellant in the Arbitration proceedings, which was signed by respondent No. 1 as Managing Partner of Amir Carriers.
Accordingly the argument of the learned counsel that there was no evidence before the Umpire to hold that Amir Carriers was a partnership firm and that respondents Nos. 1 to 4 were its partners, is without any force. The other argument of the learned counsel that respondent No. 1 had no authority to make a reference to arbitration in the absence of an express authority in writing by respondents Nos. 2 to 4, has equally no force. All that is to be shown in terms of section 19(2) of the Partnership Act, that, if a dispute has been referred to Arbitration by one D of the partners of the firm, such partner had actual authority on behalf of the other partners to do so. It is not the requirement of the law that such authority on behalf of other partners should be in writing or in express terms. Such authority may be implied and can be inferred by conduct of other partners before and after the making of such reference. In the case before us it is not disputed that before referring the dispute to arbitration, correspondence was exchanged with the appellant in the name of Amir Carriers which ordinarily included all partners of the firm. It is also not denied that respondents Nos. 2 to 4 at no time repudiated the authority of respondent No. 1 to make the said reference or raised any objection thereto. The fact that reference to arbitration was signed only by respondent No. 1, was not by itself sufficient to prove lack of actual authority in respondent No. 1 to make reference to arbitration on behalf of respondents Nos. 2 to 4. In or opinion, the conduct of respondents Nos. 2 to 4 in the case, before and after the said reference, was sufficient to lead to the conclusion of an implied authority in favour of respondent No. 1 on behalf of respondents Nos. 2 to 4 to make the reference to arbitration and in any case it stood ratified and accepted in the circumstances of the case. There is an added reason to hold that the action taken by respondent No. 1 referring the dispute to arbitration, cannot be challenged by the appellant in this manner, as the competency of respondent No. 1 to make reference to arbitration could only be challenged by other partners of the firm namely respondents Nos. 2 to 4 and not by a stranger. It is not disputed before us that, at no time after the reference was made by respondent No. 1, respondents Nos. 2 to 4 raised by objection to the authority of respondent No. 1, to make such a reference. The reference was in the names of all the respondents and was signed by respondent No. 1 for self and on behalf of the respondents Nos. 2 to 4. The Umpire in his award stated that respondent Nos. 1 had sworn before him that he had the authority from respondents Nos. 2 to 4 to make the reference. We accordingly hold that reference to arbitration made by respondent No. 1 was a valid reference. The view taken by us on the implied authority of a partner to make reference to arbitration and the scope of objection to such authority by strangers, is in accord with the view expressed by one of us in the case of Muhammad Azam Muhammad Fazil & Co. v. N. A. Industries, Karachi (1), and the learned counsel was unable to advance any argument to persuade us to take a different view. {{FOOT NOTE}}
(1) PLD 1977 Kar. 21 {{FOOT NOTE}}
8. Mr. Narain Das, the learned counsel for the respondents, also referred us to the cases of President, Union of India v. Kalinga Construction Co. Ltd. (1) and Suleman Hall Muhammad & Co. v.
State Bank of Pakistan (2). The view taken by us on the scope of authority of Court to interfere with an award while examining its validity under section 33 of the Arbitration Act is also supported by the cases referred by the learned counsel for respondents.
9. In view of the above discussion we find no merit in the appeal which is dismissed with costs. {{FOOT NOTE}}
(1) AIR 1971 SC 1646 (2) PLD 1960 Kar. 78 {{FOOT NOTE}}