1. ' NASIM HASAN SHAH, J.-This appeal, by the leave of this Court, is directed against the judgment of a Division Bench of the Sind and Baluchistan High Court at Karachi passed on 1.12-1972 in Constitutional Petition No, 194 of 1969.
2. ' The dispute relates to Plot No, 5 Block No, 3, situated in Delhi Co-operative Housing Society Limited, Karachi (hereinafter called the Society). According to the appellant herein, he was a member of the Society holding five fully paid ordinary shares of Rs, 50 each therein and a share certificate stood duly issued in his favour. On 18-12-1952, he was allotted the plot in question and also paid the development charges in respect of the said plot amounting Rs, 6,000 in four equal monthly instalments, whereafter its physical possession was delivered to him on 18-8-1956.
3. ' The case of the appellant further is that on 25-10-1966 he submitted the building plan to the office of the Society for approval of the building proposed to be constructed by him on the plot but, instead of taking any action thereon, the Society informed him that the plot in question had been allotted to Muhammad Idrees (respondent No, 1 herein) on 6-5-1954. The appellant protested against this allotment in favour of the said respondent, which according to him, was illegal, as it was made after the plot had already been allotted to him. However, as he failed to get any relief from the Society, he was obliged to file an application under section 54 of the Sind Co-operative Societies Act, 1925 (hereinafter referred to as the Act) before the Registrar of the Co-operative Societies, Karachi, on 17-11-1966 for reference of the dispute to arbitration. The Registrar, accordingly, referred the dispute for arbitration by three Arbitrators, namely, one arbitrator to be nominated by him and one arbitrator each to be nominated by the two contesting parties. It may be mentioned here that respondent No, 1 had, in the meanwhile, transferred his rights in favour of respondents Nos. 2 and 3 ; hence all three of them (namely, respondents 1 to 3 herein) constituted the defendants in the dispute. In reply to the plaint filed by the appellant, written statements were filed before the Arbitrators by the three respondents on 29-3-1967 jointly, while the Society filed its written-statement on 22-4-1967 wherein it supported the stand taken by the said respondents.
4. ' Coming now to the arbitration proceedings themselves it is important to mention that during the course of the said proceedings, an application was moved on 24-4-1967 by respondents 1 to 3 requesting 'That the file of the Delhi Co-operative Housing Society Ltd. Karachi, as maintained in the office of the Registrar, Co-operative Societies, Karachi, may kindly be summoned as this file contains material evidence relating to the above case". In the same application, it was further requested "that the file maintained in the office of the Karachi Co-operative Housing Societies Union, Karachi, in respect of the Delhi Co-operative Housing Society Ltd. May also please be summoned which also contains the material evidence".
5. ' However, before this application was moved, the Society had already, on the same day (24-4- 1967), been directed to produce the following records :-
(i) Allotment Certificate Book or Register or counterfoils of Allotment Certificates issued between 1952 to 1953 and in particular during December, 1952.
(ii) Counterfoils of share certificates or Share Register showing number of shares issued to various shareholders bearing Serial Nos. 301 to 400.
(iii) Register of Plots.
(iv) Counterfoils of Receipts Nos. 801 to 900 and 201 to 300.
(v) Counterfoil of Physical Possession Certificate No, 7, dated 18-8-1956.
(vi) Proceedings Book of the Managing Committee Meetings for the years 1952-53 and 1965-66.
6. ' And on this very day viz. 24.4-1967, Mr. Chishti, on behalf of the Society, had appeared before the arbitrators and produced before them a letter sent by the President of the Society stating that the late Secretary of the Society had taken certain records to Rawalpindi with him, where he died in a motor car accident and now only the following records were available and which were being submitted on behalf of the Society :-
(i) Cash Book for the period August 1948 to June, 1950.
(ii) Cash Book for the year 1955-56.
(iii) Authenticated list of allottees of plots as in 1956.
(iv) Extracts of the relevant resolutions of 9-7-1965 of the Managing Committee of the Society authorising the President to perform the functions of the Secretary in addition to his duty and the decision of the Managing Committee with regard to the membership of Mr. Abdul Basit.
7. ' It was stated specifically on behalf of the Society that neither any allotment register nor a counterfoil book of certificates of the allotment nor the counterfoils of Share Certificates nor any share register nor any register of plots was available with the Society. Similarly, the counterfoils of certificates of possession were also reported not to be available with the Society ; nor also the Proceedings Book for the year 1952-53. However, when the application dated 24-4-1967 filed by respondents 1 to 3 for summoning the record came up, before the Arbitrators for consideration, the arbitrators still ordered thereon :- "The representative of the defendants requested that the file of the Society in the Registrar's Office as well as in the office of the Housing. Union may be summoned and examined. The Registrar's Nominee has requested Registrar, Co-operative Societies to make the record available. The Board of Arbitrators will examine the record on 2,-,-4-1967 at 11-00 a. m. And Award will be given on 3-5- 1967 at 3-30 p. m."
8. ' This was done and after the meeting of the Arbitrators, which took place on 26-4-1967, it was observed :- ' "The three arbitrators met on 26-4-1967 and examined the records of the Society which were on the files of the Registrar, Co-operative Societies, Karachi. Copies of the Audit Note recorded by Mr. Masood Mirza from 1-7-1952 to 30-6-1961 were obtained and placed on record The Nominee of the defendant also requested for a copy and the Registrar's Office has been requested to supply to him a copy ' On 3-5-1967, the award was delivered by the Arbitrators. The arbitrators by a majority of two to one (the majority consisted of the appellant's nominee and the Registrar's nominee) gave the award in favour of the appellant, while the arbitrator of respondents Nos. 1 to 3 disagreed. By this award, it was held that the allotment in favour of the appellant was valid and proper and that the subsequent allotment of the plot in question in favour of the Ist respondent without not ice to the appellant and without cancellation of his allotment was illegal. As a consequence of this award, full rights over the plot in question were given to the appellant.
9. ' The respondents Nos. 1 to 3 challenged the validity of the majority award dated 3-5-1967 by filing an appeal under section 56 of the Act before the Registrar, Co-operative Societies, Karachi. Mr. Mushtaq Ahmad, Deputy Registrar, exercising the powers of the Registrar, accepted the appeal on the ground that the stand of respondent No, I that he was validity allotted the plot in question vvas confirmed by the allotment register which bad accidentally been found "in his office". According to the learned Deputy Registrar, the said register alongwith Share Registers Nos. I & II were pending with some cases in his office and lying in some store room, while the Society believed that the said registers were lost and misplaced and reported accordingly. He went on to observe that the perusal of the said registers and the entries made therein established that it was Muhammad Idrees, respondent No, 1, who was the rightful allottee of Plot No,
5. In view of this finding, the learned Deputy Registrar proceeded to accept the appeal of respondents Nos. I to 3 and to set aside the award given by the arbitrators. This order of the Deputy Registrar was passed on 5-2-1968.
10. The appellant, feeling aggrieved by the above order dated 5-2-1968, challenged it by filing a revision under section 64-A of the Act before the Secretary, Co-operation Department, Government of West Pakistan (respondent No, 5 herein). The learned Secretary to the Government (respondent No, 5) was pleased to accept the said revision by his order dated 15-6-1968 but only on a question of law, namely, that the appeal preferred by respondents Nos. 1 to 3 under section 56 of the Act was not competent. He pointed out that an appeal under section 56 of the Act can be filed against the award of a nominee of the Registrar alone and not against an award by Board of Arbitrators. Hence, the appellate order of the Deputy Registrar dated 5-2-1968, which was directed against the award passed by, a Board of Arbitrators was not within the ambit of section 56 of the Act and the same was, accordingly, set aside vide order dated 15-6-1968. However, while accepting the revision on the above ground, the following further observation was made by the learned respondent No, 5, in the closing para. Of his order :- "This order will not bar the Registrar to examine the matter under section 54-A or the parties to agitate before him under the same section. I have not examined the claims of the parties and other facts of the case at all."
11. ' At this stage, we may profitably advert to the case of another claimant Muhammad Yamin Lutfi, respondent No, 4 herein, who had tried to become a party to the dispute, when the matter was pending with the Secretary to the Government, Co-operative Department (respondent No, 5).
12. According to Mr. Lutfi (respondent No 4) the plot in dispute, namely, Plot No, 5, Block No, 3 was actually allotted to him as long ago as 26-3-1951, as a result of a ballot held by the Society on that day viz, on 26-3-1951. Whereupon, he paid a total sum of Rs, 5,330 to the Society towards the price of the aforesaid plot. Subsequently, the Society illegally cancelled the aforesaid allotment on the alleged grounds that due to alterations having been made in the general lay out plan of the Society by the Karachi Improvement Trust the whole position of the plots in Block No, 3 had been effected and that as a result thereof it had become necessary to make fresh allotments. In consequence thereof, Plot No, 48, measuring 709 sq. Yards in Block No, 3 was allotted to him instead of Plot No,
5. However, despite his best efforts, he could not secure possession of either of the aforesaid plots from the Society. This obliged him to apply to the Registrar, Co-operative Societies, Karachi for reference of the dispute to arbitration under section 54 of the Act. Ultimately, the arbitrator made an award in his favour on 10-12-1966 to the effect .That the defendants should hand over to the plaintiff, within two months from the date of this award, peaceful possession of Plot No, 5 or Plot No, 48 or another plot of one thousand square yards or more in the Society's area or purchase from the open market and give him, a plot of similar area in the Society's lands The said award of the Registrar's nominee was challenged by the Society by filing an appeal under section 56 of the Act, but the Deputy Registrar, Co-operative Societies, Karachi, who heard the appeal by his order dated 29-8-1968 dismissed the same and confirmed the aforesaid award. Since then he had been making strenuous efforts to get the aforesaid award executed, but all his efforts had proved futile. In the meanwhile, he had come to know about the dispute which existed concerning the same Plot viz. Plot No, 5, Block No, 3 between respondents 1 to 3 and that in regard thereto, a revision was pending before respondent No, 5.
13. Hence he had applied to be made a party to the proceedings pending before him. This prayer was made through an application dated 10-6-1968 to the Secretary to Government of West Pakistan, Co-operative Department (respondent No, 5). The learned Secretary (respondent No, 5) disposed of this application also on the same day, on which he accepted the revision petition filed by the appellant, namely, on 15-6-1968, in the following terms :- "In view of the fact that the revision petition has been disposed of on law point and has not been heard on facts, the question of impleading the applicant as a party does not arise. Even otherwise also the course open to the applicant was to seek original remedy either in arbitration or otherwise.
14. If the case is again taken up by the Deputy Registrar as Registrar under section 54-A of the Co- operative Societies Act, 1925, the applicant may be heard there. This application should be added on to the record."
15. ' We may now turn to the events which occurred after the two orders were passed by the Secretary to Government in Co-operative Department (respondent No, 5) on 15-6.1968, whereby under his first order, he had allowed the revision of the appellant directed by him against the order of the Deputy Registrar dated 5-2-1968, but while doing so he had observed that the said order would not debar the Registrar to examine the matter under section 64-A of the Act ; and by the second order, passed on respondent No, 4's application to be impleaded as a party he observed that if the Deputy Registrar, as Registrar took up the matter again under section 54-A of the Act, the applicant (respondent No, 4) may be heard there.
16. ' In pursuance of the above-mentioned orders passed by respondent No, 5, Mr. Mushtaq Ahmad, Deputy Registrar, with powers of the Registrar, decided to take up the case under section 54-A, suo motu. In these proceedings, he also allowed Mr. Lutfi (respondent No, 4) to participate. After hearing all the parties concerned, he decided, by his order dated 21-11-1968, to remit the case back to the nominee of the Registrar in purported exercise of the powers conferred under section 54(b) and (c) for fresh arbitration. The reasons given for reaching this decision are apparent from the following extract of his order :- "During the course of hearing under section 56 in this case it came to my notice that some registers and files concerning Delhi Co-operative Housing Society are lying with this office. When these registers were examined they were found to be "Allotment Registers" and "Membership Registers". These registers are most valuable and valid documents for determining disputes and have direct bearing on this dispute also. Moreover, some important statements were also found out in the office file which throw light on the allotments made by the Society. These statements were also found from the Karachi Co-operative Housing Societies Union. The Arbitrators have not been able to assess these registers and statements referred to above while giving award.
17. Documents with Mr. Idrees and Mr. Basit for making claim over this plot have not been examined 'and assessed properly. As these documents are of very material evidence the award of the Nominee is incomplete and is therefore remitted in exercise of section 54(b) and (c)". (Underlining is ours).
18. ' So far as Mr. Lutfi (respondent No, 4) was concerned, it was observed that :- "There is another claimant Mr. Lutfi who cropped up at revisional stage with the Government whose claim needs assessm ent and award cannot be completed without giving him hearing also".
19. (Underlining is ours)
20. ' It is manifest from the above extracts from the order of the learned Deputy Registrar that he was setting aside the award of the arbitrators on the ground that he considered that it was incomplete which defect came under the purview of sub-clause (1) of clause (b) of section 54-A(1) of the Act and the case was being remitted for fresh arbitration on that ground.
21. ' Dissatisfied by the order dated 21-11-1968 passed by the learned Deputy Registrar, with powers of the Registrar, the appellant challenged the same by filing a revision under section 64-A of the Act before respondent No,
5. This revision was, accordingly, considered by the Secretary to the Government of West Pakistan, Co-operation Department (respondent No, 5), who was pleased to accept it by his order dated 8-3-1969. His reasons for doing so are apparent from the following observations extracted from his order :- "The Deputy Registrar could remit the matter to the Arbitrator for reconsideration under section 54(b), had any of the matters referred to arbitration been left undetermined in the award or if the award was indefinite and not capable of execution, which is not the case. He could set aside the award and refer it to arbitration afresh under section 54(c), if the illegality of the award was held apparent or the award was held as vitiated by corruption or found perverse. The order of the Deputy Registrar is not based on any of the grounds enumerated above. He has referred the dispute to the New Nominee for deciding afresh because some more evidence has been brought to his notice. In view of the provisions of section 54 of the Act, this was not a valid ground for fresh reference of the case to arbitration. I, therefore, accept the petition and set aside the order of the D.
22. R. C. S., Karachi dated 21-11-1968."
23. ' Dissatisfied with the above order of respondent No, 5, dated 8-3-1969, respondents Nos. 1 to 3 challenged the same through a Constitutional Petition before the High Court of Sind and Baluchistan at Karachi.
24. ' Several contentions were raised before the learned Judges of the High Court in support of the above petition, but the contention, which ultimately found favour with the learned Judges, was that the award could be set aside because it was bad for "misconduct" inasmuch as the arbitrators failed to examine and consider the material evidence, namely, the files of the respondent-Society, as maintained in the office of the Deputy Registrar, Co-operative Societies, Karachi and the bills maintained in the office of the Karachi Co-operative Housing Societies Union, Karachi relating to the case, in spite of a written request made to them on behalf of the respondents Nos. 1 to 3 for summoning this record.
25. ' The learned Judges, in this behalf, referred to the application made by the respondents on 24.4- 1967 for summoning the files of the Society, as (Hers in italics) ' maintained in the offices of the Deputy Registrar, Co-operative Societies, Karachi and the Karachi Co-operative Societies Union, Karachi since these files allegedly contained material evidence, relating to the case but, it was observed, that no order to summon these files was passed nor the same were seen and went on to add that so far as the record in the Registrar's Office was concerned, the two original registers, namely, allotment register and share register were not examined. These circumstances, observed by the learned Judges, indicated that all relevant material was not seen and considered by the Arbitrators, though an express request was made on behalf of the respondents for summoning these materials. The conclusion expressed was that the arbitrators were not justified in refusing to summon the records sought by the respondents Nos. 1 to 3 and the majority award would vitiate on this account. Hence in setting it aside, the Deputy Registrar had acted in accordance with the provisions contained in clauses (1) and (ii) of subsection (c) of section 54-A (1) of the Act. On this view of the matter, the order dated 21-11-1968 made by the Deputy Registrar, Co-operative Societies, Karachi, in the proceedings under section 54-A was found to be in accordance with law and that of the Secretary to the Government of West Pakistan, Co-operation Deartment dated 8-3-1969, whereby he set it aside, was erroneous.
26. Accordingly, the last-mentioned order dated 8-3-1969 was declared by the learned Judges of the High Court vide their judgment dated 1-12-1973 to have been passed without lawful authority and to be inoperative. This appeal, by the leave of this Court, is directed against the aforesaid judgment passed by the High Court.
27. ' Mr. Akhtar Mahmood, learned counsel for the appellant, in support of this appeal, submitted that the judgment of the High Court suffered from factual and legal errors. For instance, the observation of the learned Judges that the records were neither seen nor examined by the arbitrators was erroneous. In this connection, he referred to the order of the Arbitrators passed on 26-4-1967, wherein it was clearly mentioned :- "that the three Arbitrators met on 26-4.1967 and examined the records of the Society which were on the files of the Registrar, Co-operative Societies, Karachi. Copies of the Audit Note recorded by Mr. Masood Mirza from 1-7-1952 to 30-6-1961 were obtained and placed on record."
28. ' In the Audit Note of Mr. Masood Mirza it was mentioned that :- "since a true and correct position in regard to the allotments was not available the allotment register should be prepared properly and put for verification." ' and the Arbitrators in their award dated 3-5-1967 observed :- ' "More than six years have not gone by and the Society has been unable to produce any such Register. The only record which defendant No, 4 (Society) has been able to produce before us is a sheet of paper containing 62 names which were typed but four of which were erased and some other names inserted in manuscript without any initials or signatures of any one. Besides this, three names were scored with a blue pencil without indicating the reason for scoring them out. We have marked this sheet of paper as Exhibit 'A'. No one in his proper senses will accept this paper as anything but rubbish."
29. ' In fact, the application dated 24-4-1967 was finally disposed of by order dated 26-4-1967 (reproduced above already) and no grievance was made against this order nor any further request was made to summon the records in spite of the fact that the Award was ordered to be announced on 3-5-1967.
30. ' It is further submitted that the view of the learned Judges that the Deputy Registrar had acted in accordance with the provisions contained in clauses (1) and (ii) of subsection (c) of section 54-A
(I) of the said Act, is an error of law, patent on the face of the record, as the Deptuy Registrar had not acted under this provision of law at all.
31. ' Similarly, Mr. A. K. Brohi, learned counsel for respondent No, 4 challenged the correctness of the judgment of the High Court by stressing that the case of respondent No, 4 had not received any treatment at the bands of the learned Judges of the High Court.
32. ' So far as the contention of Mr. Brohi is concerned, we find that it is not tenable. The case of respondent No, 4 was adequately dealt with in para. 10 of the judgment of the High Court, wherein it was observed that :- "the arbitrators were neither called upon to determine the claim of respondent No, 5 (respondent No, 4 before us) nor was the respondent No, 5 (respondent No, 4 before us) a party to the proceedings before them. The arbitrators were only concerned with the respective claims of the petitioners (respondents Nos. 1 to 3 before us) and the respondent No, 3 (appellant before us)."
33. ' The learned Judges went on to add that :- "It would appear from the observations in his order dated 21-11-1968 that the respondent No, 5 (respondent No, 4 before us) had "cropped up at the revisional stage" i. e. Long after the majority award was made and that too in an independent proceeding."
34. ' In these circumstances, the contention of Mr. Brohi that the case of respondent No, 4 had not received any attention at the hands of the teamed Judges of the High Court, cannot be sustained.
35. As for the finding of the learned Deputy Registrar in his order dated 21-11-1968 that the award of the arbitrators was incomplete also because of the fact that respondent No, 4's case was not decided, suffice it to say that the award delivered by the arbitrators would be incomplete only if it did not determine the matter which was referred to arbitration. Since the dispute between respondent No, 4 and the other contestants was never referred to the arbitration, the award could not be deemed to be incomplete if nothing was said therein about respondent No,
4. In fact, not being a party before the Arbitrators there was no question of his claim being discussed or determined by them.
36. He is holder of an award made on 10-12-1966 in his favour, which does not appear to have been ever set aside. According to this award, he was entitled to the possession of Plot No, 5 or Plot No, 48 or another plot of 1,000 sq. Yds. Or more in the Society's area or by purchase from the market which the Society was bound to provide him. In terms of this award, in case Plot No, 5 or Plot No, 48 cannot be given to him, resort can be had to the other options mentioned in the award. The Society, we may observe, is bound in law to implement this award and it is high time that it did so. Coming now to the case of the appellant vis-a-vis respondents Nos. 1 to 3, it will be seen that the High Court found, while upholding the order of the Deputy Registrar, Co-operative Societies dated 21-11-1968, that it was covered by the clauses (i) and (ii) of subsection (c) of section 54-A (1) of the said Act.
37. This provision may be reproduced hereunder for purposes of convenience :- "S. 54-A.-Registrar's power to set aside the award and order the dispute to be referred back to.
38. Arbitration :-
(1) In the case of any award made by the arbitrators under section 54, the Registrar, if he is not one of such arbitrators, may of his own motion or on the application of any of the parties to the award, by an order in writing recording reasons therefor, (a)
39. (b)
(c) set aside the award and order that the dispute shall be referred to arbitration in the manner provided in the said section ; ' Provided that.
40. ' Provided further that no order under clause (c) shall be made unless the Registrar is of opinion that-
(i) an objection to the legality of the award is apparent on the face of it, or
(ii) the award has been vitiated in consequence of corruption or misconduct on the part of the arbitrators, or
(iii) the award is in any way perverse."
41. ' The learned Judges in the High Court considered that in this case as the two original registers (allotment register and the share register), which existed in the office of the Registrar, were not considered by the arbitrators (though an express request was made on behalf of the petitioners (respondents Nos. 1 to 3 herein) for summoning these materials, the majority award by the arbitrators stood vitiated on account of misconduct on their part and that the Deputy Registrar could order accordingly under clauses (1) and (ii) of subsection (c) of section 54-A of the said Act.
42. ' This finding cannot be sustained for many a reason ' Firstly, respondents Nos. 1 to 3 bad never requested for summoning the two original registers, namely, the allotment register and the share register, as is evident from the application submitted by them on 24-4-1967 (the terms of which have been reproduced already above) nor was the refusal to summon them made a ground of objection by the respondents Nos. 1 to 3. Even the nominee of the defendants in his note of dissent, to the arbitration award did not say anything to this effect. Para. 5 of his note of dissent, in this connection, is relevant and may usefully be reproduced below :- "5. The record maintained in the office of the Registrar Co-operative Societies was examined by the Registrar's Nominee, the plaintiff's arbitrators and myself on 26-4-1967 from quotations have been made by the Registrar's Nominee in the Award. For reasons best known to my learned brother, Registrar's Nominee, he has omitted to mention that in the said record there were found several lists of allottees sent by the Society pertaining to different years. An examination of all these lists revealed that the name of the plaintiff was nowhere mentioned amongst the allottees. If the plaintiff was a genuine allottee there could be no reason for the omission of his name from all the said lists. These lists however, contained the name of defendant No, 3 as an allottee of Plot No, 5."
43. ' The fact is that at that stage, all parties believed that these registers had been lost and were not available ; hence nobody either summoned them nor therefore was their non-production made a ground of a grievance. It was only Mr. Mushtaq Ahmad, Deputy Registrar, while hearing the appeal, preferred under section 56 of the Act before him, that be accidentally discovered that the said registers had been lying in a store room in his office. It was at this stage that the existence of these registers became known, for the first time, to the parties. Obviously, the summoning of these two registers, in pursuance of the application filed by respondents Nos. 1 to 3 on 24-4-1967, was neither desired nor possible, because, at that stage, all the parties believed that these registers alongwith some other record of the Society had been lost in the car accident at Rawalpindi, in which the late Secretary of the Society had also lost his life. It is quite clear that in not summoning the above- mentioned registers, the arbitrators had not committed any "misconduct".
44. ' Secondly, the Deputy Registrar, in his order dated 21-11-1968, had, in fact, found the award of the arbitrators to be bad, not the ground of misconduct but on the ground that it was incomplete, inasmuch as certain important documents had not been taken into account while making the award. Hence he appears to have acted under clause (b) of section 54-A(1) of the Act and not under clauses (i) and (ii) of subsection (c) of section 54-A (1) of the Act. Hence, the true point, which required decision, as noticed by the learned respondent No, 5 in his order dated 8-3-1969 also, was whether the Registrar could refer the case for deciding the dispute afresh on account of the discovery of further evidence, which was not known to the parties when the award was delivered.
45. ' As pointed out by the learned respondent No, 5, the Registrar could have exercised the powers of remitting the case for determining afresh under clauses (i) and (ii) of subsection (c) of section 54- A only if the illegality of the award was apparent on the face of the record or the award was found to be vitiated by corruption or was found to be perverse. However, the order of the Deputy Registrar was not based on any of the aforesaid three grounds. On the other hand it was based on the ground that the award was incomplete. This indicated that he had acted under clause (b) of section 54-A(l) of the Act. However, since an award could not he held to be incomplete on the ground of having left some question undetermined because some evident C was discovered after the delivery of the award, the case did not fall within the mischief of clause (b) of, section 54-A(1) of the Act either. The judgment of the High Court, which proceeds on the basis that the award was set aside and the matter referred to the arbitration afresh under clauses (i) and (ii) of subsection (c) of section 54-A of the Act, is, therefore, not correct. Moreover, it does not make it clear as to exactly what defect has been found in the award, namely, whether it suffered from any illegality which was apparent on its face or whether the award stood vitiated on account of the misconduct on the part of the arbitrators or was, in any way, perverse. It appears that the High Court considered that in refusing to summon certain relevant D records, the arbitrators had committed "misconduct". But, as it has been shown above, the arbitrators had never refused to summon the relevant records and, in fact, had seen all the relevant records which were produced before them. The case was really one of discovery of fresh evidence after the delivery of the award.
46. ' The Deputy Registrar considered that in view of this fresh evidence, the award had become incomplete and, therefore, remitted the same for reconsideration acting under clause (i) of subsection (b) of section 54-A (1) of the Act, where under if any matter has been left undetermined in the award, the case can be remitted for arbitration afresh. The Secretary of the Government, Co- operation Department (respondent No, 5 herein) found that the Registrar was not empowered to remit the award for reconsideration for deciding the case afresh on this ground that the award was incomplete on the basis of having ignored some evidence which was discovered after the award was delivered. The High Court also did not find this view of respondent No, 5 to be untenable. Nor, indeed, has the learned counsel of the respondents Nos. 1 to 3 urged anything before us to show that an award can be set aside under section 54-A of the Act if fresh evidence becomes available, after the delivery of the award.
47. We ourselves are of the view that the opinion of the learned respondent No, 5 that an award cannot be declared as bad and remitted for reconsideration on the ground of discovery of new evidence, after the delivery of the award, is correct because no such ground exists in section 54-A of the Act.
48. The finding of the High Court, therefore, that the order of the learned respondent No, 5 dated 8-3- 1969 was without lawful authority, cannot be sustained. The discussion made above shows that the said order was quite in accordance with law while the order of the learned Deputy Registrar dated 21-11-1968 was not sustainable in law. The said order was, therefore, rightly set aside by the learned respondent No, 5 vide his order dated 8.3-1969. This appeal must, accordingly, succeed and the judgment of the High Court dated 1-12-1972 has to be set aside.
49. ' The result will be that the order of respondent No, 5 dated 8-3-1969 is found to have been passed with lawful authority and is fully operative. By the said order, the order of the Deputy Registrar dated 21-11-1968 stands set aside. Consequently, the award delivered by the arbitrators on 3-5-1967 revives and becomes operative and has to be acted upon.
50. ' The appeal succeeds in the above terms, but the parties are left to bear their own costs.