1. ' Both these appeals involve identical points of facts and law, therefore the same are being decided by common judgment.
2. Relevant facts briefly stated are, that on 6-4-1986 appellant Professor Shaukat Hussain filed a civil suit in the Court of Senior Civil Judge, Quetta seeking rendition of accounts, declaration of his share in the estate left over by his father late Rehmat Hussain Qureshi, partition and possession.
2. Alongwith the suit an application under Order 40 Rule 1 C.P.C. For appointment of Receiver was also filed. Respondents Nos.1, 2, 5, 7 and 10 filed rejoinder to said application, on 14-5-1986 squarely denying existence of joint business. It was however explained that only two immovable properties were left over by their deceased father. Similarly respondents No,6 and 8 filed rejoinder on 23-7- 1986 whereas respondents 3, 9 and 12 filed their rejoinder on 20-8-1986 denying the claim put forth by appellant. Another application under Order 39 Rules 1 and 2 C.P.C. Seeking interim injunction restraining respondents from alienating or transferring the property was also submitted. Said application was equally opposed by the respondents. Subsequently on 21-9-1986 aforementioned respondents jointly filed written statement repudiating claim of appellant as regards share in the business. Ownership of late Rahmat Ali Qureshi was admitted only in respect of two properties i.e one shop and another house. Later on case was transferred to the Court of Additional District Judge, Quetta. It may be seen that trial Court by means of order dated 4-10-1986 directed appointment of care-taker/receiver for looking after business in sweets shop styled "New Pak Sweet House Liaqat Bazar, Quetta". The order was challenged by respondents in Civil Misc. Appeal No,13 of 1986. During the pendency of said appeal parties agreed for settlement of their dispute through arbitration. Therefore, with the consent of parties order for appointment of receiver/care- taker was suspended subject to furnishing one surety in the sum of Rupees fifty thousand and duplicate signed copy of arrangement arrived at' between the parties was forwarded to the trial Court for making reference as prescribed by law. Learned trial Court on 3-11-1986 referred the matter for adjudication, through arbitration. Said order is reproduced below for ready reference:- ' The award of arbitrators namely M.A. Rashid dated 21-6-1987 and Mian Abdul Hameed dated 30- 6-1987 as well as of the umpire Mr. Moquim Ansari dated 22-7-1987 were filed in the Court.
3. Whereafter both the appellants i.e, Professor Shaukat Hussain and Sharafat Hussain filed objections on 20-8-1987. Respondents filed reply to said objection on 20-9-1987. Neither any issue was framed nor any evidence was led by the parties. However application for summoning the arbitrators moved by appellants was dismissed by trial Court on 20-12-1987. Subsequently on 2nd August, 1988, statement of respondent Mst. Raisa Begum was recorded purporting to be under Order XIV Rule 4 C.P.C. Admittedly appellants were not provided opportunity of cross-examination. Ultimately learned Additional District Judge, Quetta by means of judgment dated 29-10-1988 overruled the objections making majority award as rule of the Court. Both these appeals have assailed aforementioned judgment.
3. Mr. Khalid Malik, learned counsel for appellant vehemently urged that umpire could not participate in the proceedings drawn by the arbitrators. According to him functions of umpire commences only when difference of opinion arises between nominated arbitrators. According to him interference of umpire despite objections raised by appellant was patently illegal vitiating the whole proceedings. Reliance has been placed on the observation in case Chouthmai.Jivraj Jee v.
4. Ramchandra Jivrajjee Poddar 1 and others (AIR 1955 Nagpur 126). Learned counsel further stated that arbitrators have also seriously erred in failing, to record statements of parties or evidence intended to be adduced before them. It was also canvassed that though Mst. Raisa Begum was not examined by the arbitrators but statement allegedly delivered by her to umpire Mr. Moquim Ansari was considered by the arbitrator Mian Abdul Hameed, causing serious prejudice to appellants.
5. ' Whereas Mr. Basharatullah, learned counsel for respondents attempted to argue that Mr. Muhammad Moquim Ansari was the third arbitrator and not umpire therefore, the objection raised by appellants be ignored. However, alternately it was argued that mere presence or participation of umpire in the early stage of proceedings does not materially affect validity of award. He tried to emphasise that non-recording of evidence or consideration of any writing by the arbitrators is not detrimental to the propriety of award.
6. ' Learned Advocate-General assisting the Court on the point of law argued, that participation of umpire in the proceedings was apparently improper. He maintained that position of umpire was that of judge between the arbitrators therefore his function would commence only in the event of difference among them.
7. ' I have carefully gone through record of the case and considered arguments addressed by learned counsel for the parties. Evidently agreement for arbitration executed by the parties as well as order of trial Court dated 3-11-1986 expressly indicates that Mr. Moquim Ansari was appointed as Umpire, therefore, emphasis of Mr. Basharatullah Advocate that Mr. Moquim Ansari should be deemed as third arbitrator is clearly contrary to record and patently misconceived.
8. ' Now turning to next submission the question for determination would be stage of proceedings when 'Umpire' can participate. To understand this aspect it would be appropriate to refer the meanings of word 'Umpire'.
(i) Black's Law Dictionary revised fourth Edition page (1692) defines Umpire as under:- "UMPIRE. One clothed with authority to act alone in rendering a decision where arbitrations have disagreed. Hughes v. National Fuel Co.121 W. Vs. 392, 3 S.E.2nd 621.626.
9. ' When matters in dispute are submitted to two or more A arbitrators, and they do not agree in their decision, it is usual for another person to be called in as "Umpire" to whose sole judgment it is then referred. Brown. And see Ingraham v. Whitmore 75 III 30, Tyler v. Webh, 10B Mon (Ky) 123: Lyon v.
10. Blossom 4 Duer (NY.) 325. An "Umpire" strictly speaking, makes his award independently of that of the arbitrators. Dennis v. Standard Fire Ins.Co.90 N.J.Eq. 419,107 A 161,163".
11. ' Ballentines's Law Dictionary, third Edition P.1310 explains it as follows:- "Umpire. A person selected by arbitrators, pursuant to the authority of the submission to decide the matter in controversy when the arbitrators are unable to agree, and standing by virtue of his selection as the sole arbitrator of the issue originally submitted to the arbitrators 5 Am J Arb & A 82.
12. One chosen to decide the issue or issues in an arbitration when the arbitrators are in deadlock, and having the power to settle the matter by his sole award. Chandos v. American Fire Ins. Co.84 Wis 184.54 NW 390. A person selected by referees to participate .In the decision on the inability of the referees to come to agreement on the decision 45 Am JIst Ref 27. An official in a game or sport such as baseball, who applies the rules of the game and settles disputes.
(iii) Wharton's Law Lexicon, fourteenth Edition P.1021 describes it, "Umpire. A submission to arbitration usually provides that in case of arbitrators not agreeing in en award the matters in dispute shall be decided by a third person who is called an umpire. The umpire's authority commences when arbitrators are unable to agree, but if there be a time limit for the award, his authority absolutely commences from such time. The umpire when called upon to act, is generally invested with the same powers as the arbitrators, and bound by the same rules and has to perform the same duties. See Arbitration and Arbitrator, and consult Russell on Arbitration."
13. ' Perusal of these definitions clearly indicates that Umpire acts only when there exists differences between arbitrators themselves. Therefore, jurisdiction of 'umpire' commences only, after difference of opinion appears between the arbitrators and not before. Accordingly if 'umpire' acts and takes part in the deliberations before difference arises between the arbitrators, he may even unconsciously influence their conclusion, thus his active participation at earlier stage would certainly constitute illegality. In this view broad principle of law discussed in case A.I.R.1955 Nagpur 126, is followed.
4. Additionally it is obligatory for the arbitrators to entertain evidence adduced by parties which is relevant for the determination of dispute referred to them. Besides, in my opinion, none of the arbitrators or 'umpire' is at all vested with any jurisdiction individually or collectively to record the statement in the absence of parties or at least without providing them opportunity of rebuttal. In the instant case statement of Mst. Raisa mother of the parties appears to have been placed before the 'Umpire' as mentioned in her deposition recorded in the trial Court on 2-8-1988. Undisputedly without allowing any opportunity of cross-examination said statement has been taken into consideration by Arbitrator C.Abdul Hamid. Apparently proceedings have been drawn by the 'Arbitrators' as well as 'Umpire' in an irregular manner. The evidence secured in the absence of other party could not be legitimately considered by any of the arbitrators. As already observed participation of the 'umpire' from the initial stage in spite of objection, cannot be rectified. Trial Court has seriously erred in ignoring above discussed glaring defects which were certainly fatal to the validity of award. I am accordingly inclined to hold that award has been improperly procured, and objections about its illegality are quite apparent on the face of record.
14. ' In such eventuality learned counsel for appellant relying on the observation of (i) Nalini Mohan Choudhri v. Malda Co-operative Urban Bank Ltd. (AIR 1957 Calcutta 23) and Khan Bahadur Allah Bakhsh Gabol v. Raise Begum (PLD 1960 Kar. 455); contented that award could not be remitted to same Arbitrator. I am afraid, such contention is not sustainable because section 16 of the Arbitration Act caters for such situations. It however may be true when misconduct is established against the 'Arbitrator' or 'Umpire' but not in the event of apparent illegalities or technical defects.
15. Principle laid in aforequoted judgments is therefore not attracted to the facts of this case. The circumtances in which Court is empowered to remit the award to same arbitrators or 'Umpire' are explicitly enumerated in aforesaid provision. It hardly needs any elucidation that powers which trial Court enjoys under the law are undisputedly exercisable by appellate forums, also. In the instant case on account of patent illegalities and glaring defects, Awards of the 'Arbitrators' and 'Umpire' were liable' to be remitted to them within the purview of section 16(1)(c) of Arbitration Act.
16. Learned trial Court has grossly erred in relying on extraneous factors and ignoring aforediscussed aspects by failing to remit the award in above terms.
17. ' For the foregoing reasons appeal is accepted, judgment of trial Court dated 29-10-1988 is set aside and awards of the 'Arbitrators' and 'Umpire' being of no legal effect are remitted to them for recording proceedings and giving the award afresh after fair opportunity to the parties keeping in view observation made in this judgment.
18. ' Appeals disposed of accordingly, with no order as to costs.