1. This is an application under sections 5. 11 and 12 of Arbitration Act, 1940, praying that the authority of the sole arbitrator may be revoked and another sole arbitrator may be appointed. Briefly the facts are that the applicant was awarded the contract by Karachi Port Trust which contained the following arbitration clause "Any dispute regarding the quality of materials or workmanship or accuracy of measurements or reasonableness of the rate for any item or any other question of an Engineering or Technical nature shall be decided by the Engineer and "his decision shall be final and binding on all the parties.
2. Any other dispute of whatsoever nature (including the interpretation of this or any other relevant document) arising under this Con--tract (except as to any matters, the decision of which is specially provided for by these conditions) shall be referred 'to a sole arbitrator to be appointed by the Chairman, Karachi Port Trust, who shall have absolute discretion either to appoint an officer of the K. P. T. Or any one else as the sole arbitrator. The decision of such sole arbitrator. Shall be final and conclusive and shall be binding on all the parties to the contract and the provisions ;of the Arbitration Act, 1940 and any statutory modification there--of and the rules framed thereunder shall be deemed to apply to and be incorporated in this contract.
3. The Contractor shall not stop the work during, the pendency of the arbitration proceedings, but he shall continue to execute the work with full speed. However, the Chief Engineer shall have the power to ask the contractor in writing to stop the work, in full or in part if he considers this necessary."
4. When the dispute arose between the parties Mirza Tahir Ahmad, Executive Engineer presently designated as Project Engineer of the defendant was appointed as sole arbitrator. It is an admitted position that except that he has issued notice as sole arbitrator be was not connected with this work.
5. This application has been moved mainly on the two grounds which have been pressed before me.
6. The first ground is that the Arbitrator is a junior Officer who will be required to scrutinise and give decision on certain matters which have already been dealt with, by his superior officers including the Chief Engineer and Chairman of Karachi Port Trust and therefore, it is not expected that justice will be done by him. The second ground is `that the applicants had made a. Report against the Engineering Department of Karachi Port Trust with regard to the mal--practices which were investigated by a high powered committee of the Trustees of Port of Karachi and one Executive Engineer and Chief Engineer were reprimanded and warning was issued to them. In view of this it is apprehended that the entire Engineering Department is against the plaintiffs and no justice is expected from the arbitrator.
7. A bare look on the arbitration clause in the agreement will show that the Chairman, Karachi Port Trust shall have absolute discretion either to appoint an officer of the Karachi Port Trust or any one else as the sole arbitrator whose decision will be final and conclusive. In view of this clear clause in the arbitration agreement it is not possible to specify which of the officers may be applied by the Chairman Karachi Port Trust. It is sufficient if he is qualified and competent to act as an arbitrator and had not dealt with the matter in any other capacity which may create bias or cause prejudice to the other side. The plaintiffs had left it entirety to the sole discretion of the Chairman and unless they establishes that the sole arbitrator is biased or that he has acted in a manner which disqualifies him froth acting as an arbitrator it will be difficult to revoke his authority, Mr. Khalilur Rehman's, the learned counsel for the plaintiffs has referred to PLD 1960 Dacca 81, in which the well-known principle has been reiterated that the parties cannot be relieved of their contractual obligation and unless the Court is satisfied that substantial miscarriage of justice will be done, the authority of the sole arbitrator cannot be revoked. In the present case in fact no substantial ground has been made out except the aforesaid facts which are based on merely presumption and apprehension. It is not the case of the plaintiffs that they had made any complaint against the sole arbitrator personally or that he was in any manner involved in the investigation carried out by high-powered committee. Generally it should not be presumed that if person is a junior officer he would in all probability try to please his senior officer while acting as a sole arbitrator in a matter. Moreover the plaintiffs with eyes open bad agreed to such a condition and unless substantial grounds are shown which may disqualify the sole arbitrator this application cannot be granted.
8. Mr. Waheed Farocqui, the learned counsel for the defendants has contended that in view of the amendment in the Arbitrator Act where--by section 26-A has been added a sole arbitrator has to give a reasoned award and therefore if there is any miscarriage of justice the award can be challenged in Court as the award will be speaking award, The provision of section 26-A has to a great extent removed the doubts and anomalies which were created by a non-speaking award.
9. The stay granted is discharged.