1. ' This revision has been filed against the Judgment of the learned IIIrd Additional District Judge, Karachi, dated 9-5-1973 read with order dated 1-10-1973. This dispute arose out of a building contract dated 29-8-1967 which contained an arbitration clause. The arbitration clause in the agreement is as follows:- "That in all cases of differences that may arise between the parties of the first and second part. The decision of the architect Shaheen Yousifzia shall be final and binding on both the parties."
2. ' The applicant who is a building contractor started the work of construction of the bungalow of the respondent on Plot No, 13-B situated on 10th Street of the Pakistan Defence Service Co-operative Housing Society. As the work proceeded running bills were submitted by the contractor for payment to the owner. And according to the contractor they remained unpaid causing delay in the completion of the work. On the other hand the owner also entertained a grievance against the contractor and claimed damages on account of delay in completion of the work. A stage arose when the parties started blaming each other for breach of contract.. The owner raised the claim, claiming damages on account of delay in the completion of the Bungalow. While the contractor on account of non-payment of the certified running bills not only stopped the work but exercising his lien retained the possession of the construction on the plot. These details are however not important at this stage because controversy has by now narrowed down to a very limited compass namely that the award is ex parte and without notice to the respondent. Before I examine the contentions raised in this revision I should briefly refer to some basic facts. Henceforth I will call the appellant as contractor and the respondent as owner.
3. ' On 30th July the owner wrote a long letter to the arbitrator in which, after blaming the contractor for delay in completing the work as per contract, she in paragraph 5 of this letter wrote to say:- "Under the circumstances will you please arrange to terminate his contract immediately and arrange for a settlement keeping in view the penalty clause in the contract document. I do not want him on the site with effect from the 1st of August, 1968 and I am starting work myself from that date and further dealings with him will through you as the sole arbitrator according to contract."
4. ' What happened thereafter was that the arbitrator sent a letter dated 5-8-1968 (not 5-7-1968) to both the parties in which he wrote as follows:- "Dear Madam/Sir, ' In response to your letter dated 30th July, 1968 on the subject noted above you are requested to please attend my office at 4-30 p.m. On 8-8-1968 along with necessary documents required in connection of the above-noted case for settlement. '
5. Thanking you. Yours faithfully, (Sd.) (Shaheen Yousifzai) Architect."
6. ' It is this letter on the interpretation of which the whole contro versy has arisen.
7. ' The owner's contention is that the arbitrator, after receiving her letter dated 30-7-1968 had informed her that he had terminated the services of the contractor as desired by her and there was nothing to worry. As such she did not attach much importance to this letter and did not deem it necessary to attend the office of Arbitrator on the 8th August, 1968. She further contends that this letter was delivered to her on 8th itself leaving no time for her to make any enquiries. After this it remained a hotly contested issue whether any further notice was sent for hearing of this case by the arbitrator. The arbitrator has mentioned in his award that he sent a fresh notice to the parties which are Exh. 5 but it is vehemently denied by the owner/respondent that this letter was ever sent.
8. On this part of the case the statement of the arbitrator may be reproduced. In his cross- examination he has stated as under:- "I had sent another notice to defendant on 12th of August which was received by the defendant on 15th of August produce postal receipt and A.D. (Exhs. 6 and 7.) This notice was received by the defendant. I had received Exh. 7 on 21st October, 1968 as it was missing from my record. I produce entry of my diary of 21-8-1968 (Exh. 8).
9. ' The respondent/owner on the other hand denies that she ever received such letter. This is a pure question of fact on which I have to rely on the findings of the lower Court. The lower Court has believed the version of the owner/respondent and for obvious reasons I cannot substitute my own assessm ent on this point in the provisional jurisdiction.
10. ' The arbitrator's contention is that he received a statement of claim from the contractor/applicant which incidentally was also filed on the 30th July, 1968. On receipt of this statement he commenced the arbitration proceedings and the notice, dated 5-8-1968 quoted earlier should be taken to be a notice for start of arbitration in the dispute raised by the contractor. The arbitrators further proceeds to say that as there was no response from the side of the owner he was left with no option but to record the evidence of the contractor which he did and gave an award in favour of the contractor which no doubt is ex parte but the owner/respondent has to thank herself for it because it was on account of her deliberate non-appearance that ex parte pro ceedings were drawn against her and an award was given.
11. ' This ex parte award came up for confirmation before the learned Civil Judge. Objections under section 30 were filed by the owner. The learned Civil Judge overruling those objections confirmed this award. On 29th May, 1972, the owner filed an appeal. The learned first appellate Court has allowed the appeal for the owner and has set aside the award by the judgment, dated 29-5-1972 against which this revision has been preferred.
12. ' The learned counsel for the applicant has raised objections which are purely questions of fact and which have been thoroughly examined and rejected by the learned IIIrd Additional District Judge in his appellate order. It is a long judgment and reasons are advanced to show that in the circumstances of the case it cannot be said that a proper notice was given by the arbitrator for hearing the dispute which has resulted in this award. As a matter of fact the findings go to the extent of showing that in the so-called notice dated 5-8-1968 no reference has been made to show whether the arbitrator had received any statement of claim from the contractor which was going to be examined on the 8th of August,' 1968 for which the owner/respondent was called to attend, nor a copy of such a claim was enclosed with this notice. In this situation it cannot be said that the non-appearance of the owner before the arbitrator was deliberate justifying the ex parte award.
13. Arbitration proceedings are quasi-judicial proceedings in which valuable rights of the parties are determined. The basic requirements for such proceedings as for any other before any tribunal are that the parties should have due notice of hearing of the cause before the tribunal and should have full knowledge and information of the claims and allegations filed against them by their adversary. So that they may appear fully prepared to face those claims and offer their explanation and put up their side of the story. Not only this, they must have full satisfaction that full opportunity was afforded to them, and they have put forth their case for the appraisement by the tribunal and the tribunals conduct is above board. Unless these basic requirements are not fulfilled the decision of the tribunal will not inspire confidence and whenever such a decision is placed before a regular Court for approval or confirmation the Court should and ought to be reluctant to confirm such a decision.
14. ' Whatever may be the merits of the contention of the owner there is no doubt that these proceedings were conducted in a manner which to say the least would amount to a legal misconduct on the part of the arbitrator. Without examining the judgment under review on other points I would only quote the following passage from the judgment to show that even if the assessm ent of the learned IIIrd Additional District Judge is open to scrutiny on other counts the following observation in the judgment cannot be said to be open to any exception. And this reason alone is sufficient to set aside the award as has been done by the learned 111rd Additional District Judge. The learned Additional District Judge has summed up his findings in the following sentence:- "I find the award does not say anything about letter (Exh.4) which was sent by the appellant (owner) to the arbitrator. The arbitrator has admitted in his statement in the trial Court that he had instituted the arbitration proceedings on the basis of this letter. It is surprising that this letter did not find any place in the award. The award on the contrary refers to the letter of the respondent and made it quite clear that the arbitration proceedings has been instituted on its basis. Moreover the arbitrator while being examined by the learned trial Court stated that he has started arbitration proceedings at the instance of both the parties. If this were so he was bound to inform both the parties about such others' claim. He did not do so. I also find from the award that it clearly stated that on the reference of the respondent the appellant was summoned but did not appear. This again is contrary to the facts and contrary to the deposition of the arbitrator himself who in his statement admitted that he had instituted the arbitration proceedings on the reference of the appellant."
15. ' The learned Judge then proceeds to record the gist of his conclusion which are as follows:- "All this leads to a confused situation where one is not sure as to what was the basis of the institution of the arbitration proceedings."
16. There can be no better comment than the above on these arbitration proceedings. I affirm these findings and would also agree with the learned 111rd Additional District Judge that this award should not be made rule of the Court. So far as the question of filing a suit is concerned the observations of the learned Additional District Judge in this regard are objected to by the learned counsel for the applicant. But these observations are not operative part of the decree. The parties are free to make a choice whether to pursue their claim through a regular suit or not. This is not germane to these proceedings and the learned counsel should have no apprehension about these observations.
17. ' This revision is, therefore, dismissed with costs.