The revision petition is directed against the order of the learned trial Court dated 3-5-1975, disallowing before. Cross-examination the so-called "fishing" of material from the record of the arbitration proceedings.
2. It is stated that a contract was placed on the petitioner-Company by the Director of Industries and Commerce (Supply Wing) Government of the Punjab, Lahore, for the supply of 14 Kingcold air- conditioners for installation in the passenger buses of the Punjab Road Transport Board. A letter of credit was opened in favour of Messrs Antar Industries Inc., New York, but when they showed some reluctance to proceed with the shipment of the goods on schedule, the letter of credit was transferred with the concurrence of the respondents to Messrs Climatic Air, Los Angels, the principals of Messrs Freezit Ltd., Lahore. The air-conditioners could not be installed for the reason that they were not of the required specification. The petitioner-Company was asked to refund the amount of foreign exchange involv--ed in the establishment of the letter of credit and insurance charges and a sum of Rs.44,653 in Pakistan currency was required to be refunded. On this dispute.
Mr. Mansoor Ahmed, the Deputy Director (Development) was appointed an arbitrator, who gave an award against the petitioner-Company and to get the award set aside, an application under section 30`33 of the Arbitration Act was filed in the Civil Court by the petitioners company on 10-11- 1968.
3. In support of their application, the petitioner-Company examined three witnesses and closed their case. In rebuttal, Mr. Mansoor Ahmed. Arbitrator was produced. During cross-examination, as is alleged by the petitioner, an application was made by the petitioner Company for summoning of the file from the office of the Director of Industries to facilitate the witness to answer questions put to him in cross-examination. The request was allowed but for one reason or the other the cross- examination could no start. Ultimately, on 3-5-1975, the witness appeared in Court and the summoned file was also available. It is stated that before the learned counsel of the petitioner could resume cross-examination, he made a request to the Court that he may be allowed to inspect the file to know as to how an in what circumstances the witness was appointed as an arbitrator and what correspondence he had with the respondents in relation to the arbitration proceedings especially to find out if he had submitted a draft of the proposed award for approval to the Director of Industries, but the learned counsel for the respondents objected to the inspection on the ground that it would amount to "fishing". The learned trial Court disallowed such fishing and directed the learned counsel for the petitioner-Company to cross-examine the witness without "fishing". The learned counsel, thereupon, refused to continue with the cross-examination and showed his inability to do so unless he had inspected the file. The learned trial Court explained all what had happened during trial and considered it fit to move the learned District Judge for transfer of the case to some other competent Court. Against this order the petitioner-Company has made the present revision petition.
4. It was contended that by disallowing the so-called "fishing", the petitioner had been refused an opportunity to inspect the file which was summoned at their request to establish that the arbitrator had misconducted the proceedings, and that the petitioner had reasonable apprehensions that the arbitrator took certain proceedings behind the back of the petitioner and had been receiving instructions from the Director of Industries, respondent No. 2 to arrive at the award and that he sent a draft of the award for approval of the Director of Industrie-3. It was stated that the petitioner came to know all of this at a late stage that the arbitrator had himself remained connected with the contract of the air-conditioners and it was for that reason that he was chosen by the respondents to act as an arbitrator, According to the petitioner, all these facts could be ascertained and established only after the relevant record was inspected.
5. A great stress was laid during arguments that the application was given under Order XI, rules 14 and 18, C. P. C. For the production and inspection of the file and the learned trial Court had allowed the application and thereafter had no jurisdiction to refuse the prayer for inspection. From the perusal of the record, it is found that the application made by the petitioner on 29-10-1970 did not relate to the inspection of the record. The application was made under Order X111, rule l read with section 151, C. P. C, for summoning the Government file. It was stated that is reply to quite a few of the questions put to the witness (the arbitrator) in cross-examination, he had been stating that he did not remember the facts orally. To get positive answers with regard to those questions and many other questions, the presence of the files of the respondents in the case in Court Room at the time of further cross-examination of the arbitrator was highly necessary. It was further stated that on 26-10-1970 the petitioner Company wrote a letter to respondent No. 2 for letting it know the numbers of all the files relating to the contract in dispute and the arbitration proceedings but they have refused to supply this information to the petitioner-Company and for that reason the petitioner was not in a position to give the number of files relating to the aforesaid case. It was, therefore, prayed that all the files relating to that contract be summoned from respondents Nos. 2 and 4 in advance of the next date of hearing. The learned trial Court on 29-10-1970 allowed the prayer and ordered that the concerned clerk with the relevant record be summoned for the next date of hearing provided the process fee and diet money are paid in Court. On many subsequent occasions either the file or the witness was not present and ultimately on 3-5-1975 the arbitrator was present in the witness-box for further cross-examination and the required files had also been brought. At that time, before commencing with the cross-examination, the learned counsel for the petitioner made an oral request for inspection of the file, which was objected to by the opposite-- party, stating that inspection would amount to fishing out questions which should not be allowed and the learned trial Court was justified in refusing the oral prayer for the ostensible reason that "fishing" was required. The learned trial Judge, in other words, had in his mind the nature of the application and the purpose for which the files were requisitioned. The petitioner wanted the files for the purposes of the witness so that he may answer precisely the questions put to him in cross- examination and not that the petitioner may search out questions from the file. There is no prayer in the application for the inspection of the files so as to say that the prayer was once accepted by the learned trial Court. In other words, there was no application made under Order XI, rule 18, C. P. C.
To enable the petitioner to inspect the file for facilitating the questions in cross-examination. This being the position, the petitioner could not claim inspection and the learned trial Court, while refusing to grant the prayer, did not refuse to exercise jurisdiction vested in it nor it exercises jurisdiction not vested in it.
6. It was contended that "fishing" was a strange expression and for this reason the inspection of files could not be refused. The word "fishing" is not defined anywhere nor is it technically used anywhere in the law B of evidence. This term in the ordinary sense, would mean searching out or trying to get some information indirectly. It was explained by the petitioner that the Arbitrator bad miscorducted the proceedings and that there were apprehensions against him that he had acquired instructions from one of the parties to the arbitration clause and sent a draft for approval of the award to be announced and all these facts could be gained only when the record was examined. The ground's now given are not found out from the record of the trial Court and there was no such application ever given on this subject, therefore, there was no purpose with the petitioner to go into the summoned files and the learned trial Court was justified in refusing to accept such a prayer.
7. It was argued that inspection could be refused only if some privilege was claimed under section 123 of the Evidence Act. Under that section, no one would be permitted to give any evidence derived from unpublished official records relating to any affair of the state except with the permission of the officer at the head of the Department concerned, who would give or withhold such permission as he thought fit. But in this case, the learned counsel for the respondents did not raise any objection under section) 23 or 124 of the Evidence Act. It was an objection simply on the grounds that production of the files was not for the purpose of "fishing" out questions, and as already observed, the files were summoned for the benefit of the witness so that he may answer the question correctly and not for facilitating the petitioner to create questions.
8. There is no miscarriage of justice done by the learned Trial Court nor has it committed any error of law or of jurisdiction. There is, therefore, no justification in interfering with the impugned order. For the reasons stated above the revision petition is dismissed with no order as to costs.