1. ' The respondent in this arbitration suit, who is a Barrister-at-Law practising at Karachi, has been a member of the Sindh Club since 1968, whereas the applicant, a partner in the firm of Surridge and Beecheno, Advocates and Solicitors, also functioning at Karachi, was the President of the Sindh Club when disputes between the respondent herein and the Sindh Club happened to be "inevitably leading to litigation" and when the applicant and the respondent, apparently attempting to arrest the drift, entered into a written agreement to refer all such disputes to the sole arbitration of Mr. Justice (Retd.) Dorab F. Patel, formerly a Senior Judge of the Supreme Court of Pakistan, who also happened to be a member of the Sindh Club. Award was duly rendered by Mr. Justice (Retd) Dorab F. Patel on March 27, 1984 which, in turn, became the subject-matter of this suit and in respect of which only the respondent has filed objections, purportedly, under sections 15, 16, 30 and 33 of the Arbitration Act, 1940.
2. ' As narrated by the learned sole arbitrator, respondent Mr. Samad Khan had to vacate his previous residential accommodation upon the return of his landlord from Europe, the latter deciding to move into his own house and Mr. Samad Khan having failed to resist the landlord's personal requirement up to the level of the Supreme Court of Pakistan Mr. Samad Khan thus shifted with his family to the Sindh Club in 1977 and was provided with Room No,28 in what is known as the Married Block of such Club, where he has been putting up ever since.
3. ' Mr. Samad Khan, who has argued his own case, in essence, has maintained that the management of the Sindh Club, which is, allegedly, monopolized by a certain group has been ill-motivated towards him, he having been questioning their so-called mechanics, remorselessly employed for perpetuation of power and, as a result, neither the rules of the Club, which are used as instruments of concentration of power in a set group of individuals, have been allowed to be set right nor he himself has been spared the consequences of the challenge registered by him in that the accommodation, which he occupies in the Sindh Club has been subjected to frequent, allegedly, mala fide, enhancements of tariff, non-commensurate either with law or facts on the ground.
4. According to the same contention the learned sole Arbitrator, while he accepted bulk of the submissions made by Mr. Samad Khan, some how, did not deem fit to accord any relief to him. On the other hand, Mr. EA. Nomani, another partner of Messrs Surridge and Beecheno, Advocates and Solicitors, who represents the applicant here, has urged that Mr. Samad Khan is interested only in ensuring a static tariff for himself and a corresponding denial of revenues to the Sindh Club and that the rest of the grievances have only been trumped up to camouflage the base motives of Mr. Samad Khan.
5. ' In this litigation, having elements of personal tinge from either side, I have had to hear the matter at quite some length. Before going further, it would be in order to succinctly record the respective contentions of the parties in these proceedings.
6. ' Mr. Samad Khan, as objector to the Award, has raised the following questions:
(i) The learned sole arbitrator has used personal knowledge in adjudicating the disputes before him, which circumstance alone has vitiated the Award.
(ii) There is a failure to decide all the disputes on the part of the learned arbitrator and that also vitiates the award..
(iii) Relationship between the members and the Committee in a members' Club is contractual and such contract is contained in the Rules and Bye-laws.
(iv) A party to a contract cannot vary its terms merely by issuance of a notice and, at the bare minimum, rentals of resident members of the Club, already in occupation of chambers, cannot be altered except through bilateral arrangements.
(v) The Court has jurisdiction to go behind a rule to test its validity. The same applies to Bye-laws.
(vi) A committee of management in a members' Club is required to hold the balance evenly between members, in the present case between the resident and other members.
(vii) Under rule XXV of the Sindh Club Rules, the Committee can fix charges only for Rooms and nothing else and such too if and when necessary.
(viii) Notice dated 15-5-1980, revising the tariff, is ultra vires, mala fide and illegal.
(ix) The findings of the learned arbitrator regarding scrutineers, relative to elections in the context of rule VIII, is not supported by due reasons.
(x) The distinction drawn by the learned sole arbitrator in the context of charges for room and occupancy, similarly lacks due reasons.
(xi) The sole arbitrator has misconducted the proceedings by refraining to decide all the matters referred to him and, instead, assuming the role of an advisor and relinquishing that of an arbitrator.
7. ' Rebutting what has been asserted by Mr. Samad Khan Mr. E.A. Nomani has contended as under:-- -
(i) Both the parties had agreed to the arbitrator's use of personal knowledge and, besides, such is not one of the objections to the award. At any event, in the context in which use of personal knowledge is objected to, there is sufficient evidence on the record to the same effect, rendering the objection meaningless.
(ii) There has been no refusal or failure on the part of the sole arbitrator to decide any question referred to him. Where necessary the learned arbitrator has struck down an offending rule. Thus rule VIII, sub-rule (8), clause (2) and rule VIII, sub-rule (8), clause (4) have been struck down. On the other hand, rule VIII (12) upon the findings of the learned arbitrator, stands amended and the original rule has been restored. Rest of the objections have been overruled or appropriate recommendations have been made.
(iii) The sole arbitrator could not assume the role either of the General Body of members or of the Committee, as seems to be the objective of the respondent-objector.
(iv) The whole exercise on the part of the respondent is mala fide, as the manifest intention is to make the room tariff static, with a view to ensure financial advantages, which arc not admissible.
(v) The Court cannot sit in appeal on the findings of the learned arbitrator and even where, on the same material, it might have come to a different conclusion, the findings in the Award cannot, in law, be upset.
8. ' It would be appropriate, now, to record a few words about the reference and the respective statements of claim preferred by the parties before the sole arbitrator. The reference is based on an arbitration agreement signed somewhere in March, 1983, between the applicant and the respondent the former acting on behalf of the Managing Committee of the Sindh Club. It covers "all disputes and differences between them" and is to the sole arbitration of Mr. Justice (Retd.) Dorab F.
9. Patel. The applicant, in an, apparently, un dated Claim, demands an Award for Rs.7,600 alongwith interest at 14% per annum and a declaration that a revised rent of Rs.180 per day shall be payable by the respondent in future and further that the latter shall abide by all lawful decisions of the Managing Committee with regard to any revisions of the tariff in time to come. The respondent, in his statement of Claim, upon a detailed recital of facts, maintains that certain Rules of the Club were invalid on grounds of being arbitrary, unreasonable, in violation of the principles of natural justice, contrary to public policy and mala fides, and specified decisions of the Managing Committee, including notices mentioned, together with some deliberations of the General Body, were likewise illegal. Corresponding enhancement of rentals in respect of Chamber No,28 is also claimed to be illegal. Elaborate evidence was led by the parties on the above and cognate questions. While the contentions of the parties, for and against the Award, have been spelled out I do not consider it necessary either to deal with them separately or seriatim though, at the same time, effort shall be made to ensure that all the questions agitated, many of which are inter- connected, are duly and adequately addressed.
10. ' It would be useful now to advert to the recital of disputes in the Award and more particularly in relation to the Rules with which the sole arbitrator has commenced his discourse. Thus the learned arbitrator records that Mr. Samad Khan, following upon his eviction from the rented premises, shifted to the Sindh Club with his family in April, 1977 and was accommodated in Room No,28 in the referred "Married Block", where he has lived ever since. Shortly after he moved into the Club Mr. Samad Khan was co-opted on the Committee, since he was a resident member. He was dropped from the Committee in 1978, according to the learned arbitrator because, meanwhile, he had contested at the elections and lost. The following year, Mr. Samad Khan tabled a resolution for amendment of the rules of the Club so that a resident member (who was a permanent member) shall have to be, mandatorily, co-opted on the Club's Committee. Such a move was labelled before the learned arbitrator as mala fide. However, below detailed is how he deals with the question:- "But even if it is assumed that thwarted ambition led Mr. Samad Khan to move this resolution, the resolution merely attempted to restore the relevant rule of the Club as it had stood for about a 100 years until its abrupt and unexplained amendment in 1973."
11. ' The referred resolution itself came up at the half-yearly General meeting on 26-4-1979. The then President of the Club (not the applicant here), denounced Mr. Samad Khan and his supporters as "the Mafia of the Permanent Residents". This occasioned a letter, dated 11-6-1979 from Mr. Samad Khan "to know what the President of the Club meant " by the words "the Mafia of Permanent Residents". The learned arbitrator does not disapprove of this letter and, on the contrary, observes as under:--- "The Committee could We taken this opportunity to withdraw the unfortunate expression used on the 26th of April, 1979 without any loss of face whatsoever but I have to state with great regret that no reply was sent to Mr. Samad Khan."
12. Mt. Samad Khan, inter alia, has objected here that the sole arbitrator should not have left the matter at that and "the unfortunate expression", as the learned arbitrator called it, should have been expugned from the record. Mr. Samad Khan may have had some ground for such an objection if the remark had figured on the Club record and the sole arbitrator had chosen to dispose of the controversy merely by recording an adverse observation in the quoted words. Such then could have tantamounted to leaving a matter referred undecided, the legal requirement spelling out an obligation for arbitrators to decide all cardinal points, differences or disputes referred. See Ganes Narain Singh v. Malida Koer, (10 I.C. 450), Gaja Sinva Rao v. Sujat Ali, AIR 1952 Hyd.46, Indian Mineral Co. v. Nilm Association, AIR 1958 All 692 and Union of India v. Sharma and Sons AIR 1968 Raj. 99 etc. But my query on the subject reveals that nowhere on the record this remark finds any mention. Where could it thus be expunged from? Surely, it could not be expunged from the letters of Mr. Samad Khan wherein alone it finds mention. Besides, even regrets do not belong to a genus which can ordinarily be extracted or enforced. In this situation, no better treatment could be accorded to the matter particularly when the person himself who made the offending remark had long since ceased to hold office. At any event, while passing such a remark may have had some bearing in examining good faith, expungement thereof, if only verbal, did not constitute the main difference or dispute in the reference calling for a treatment of a specific character. The learned arbitrator's treatment on the subject, in the circumstances, was therefore, wholly unexceptionable.
13. ' Reverting back, to the aforesaid resolution placed in the half-yearly General meeting of 26-4-1979, such was deferred, pending the report of a Sub-Committee to which the matter was referred. The Sub-Committee, in due course, reported that a resident member should be coopted on the Committee of the Club provided that, at the time relevant, there were three Permanent Members residing in the Club. The matter was placed before the half-yearly general meeting on 25-10-1979, where Mr. Samad Khan's resolution was rejected, but in circumstances, which will presently be dilated upon in the words of the learned arbitrator himself, the counter-proposal of the Sub- Committee, designated for the purpose, itself was, almost unaccountably, withdrawn.
14. ' Mr. Samad Khan, the respondent herein, then attempted to have the Election Rules for the President and members of the Club's Committee altered, because he was of the opinion that these Rules were illegal, inter alia, being against the principles of natural justice and public policy. Thus the respondent tabled another resolution which came up in a Special Meeting of the General Body on 5-10-1980. This resolution, according to the learned arbitrator, "generated a lot of heat" and once again the matter was referred to a Sub-Committee. According to the learned arbitrator, the Sub- Committee submitted its report but without expressing any opinion on the resolution for the examination.of which it had primarily been constituted. The position taken before the learned arbitrator, as recorded by him, was that such resolution had been withdrawn either unanimously or by the seconders and the other requisitionists. On the other hand, Mr. Samad Khan denied that the resolution had been withdrawn. On the subject, the learned sole arbitrator observes us under:--- ' and this controversy further soured the relations between Mr. Samad Khan and the Committee."
15. ' Taking up now, Rule VIII, sub-rule (12), such sub-Tule, which, according to the learned arbitrator, was more than a 100 years old before its amendment, read as under:-- "If at any time the Committee does not include a member resident in the Club Chambers; the Committee shall appoint one of the permanent members so resident to the Committee. The member so appointed shall cease to be on the Committee on ceasing to reside in the Club."
16. ' The quoted sub-rule was amended in April, 1973 by substitution of the above underlined word "shall" with the word "may". As recorded by the learned arbitrator, such amendment, according to respondent Mr. Samad Khan, was mala fide but according to the Committee it was necessitated because in the year 1973 there was no Permanent Member residing in the Club. The learned arbitrator has, admirably, analysed the situation as under:-- "Now, even if no Permanent Member was residing in the Club in 1973 (and only Permanent Members can be on the Club's Committee) the result would only have been that a resident Member would not have been co-opted to the Committee in 1973, but the fact that the Rule could not be given effect to in a particular year was no ground for abolishing a rule which had stood the test of time.
17. And, on the other hand, Members of the Committee do not have and do not claim to have any powers of reading the future. Therefore, I am unable to understand why the Committee recommended the amendment of this Rule merely because its Members thought that no Permanent Member was residing in the Club in April, 1973. Further this assumption that no Permanent Member was residing in the Club in April, 1973 is not correct. We even know the name of the Permanent Member who resided in the Club almost throughout 1973, therefore, the amendment of 1973 was proposed and carried on a total misconception of the facts.
18. ' However, unlike previous years, the Permanent Member who was residing in the Club in 1973 was a Pakistani, and for the first time there was no European born Member living in the Club in that year, therefore, Mr. Samad Khan submitted that the amendment and the decision to recommend it were mala fide. The irony of this argument escaped Mr. Nomani's attention.
19. ' The fact that Mr. Samad Khan proposed the restoration of the old rule does not alter the fact that room service in the Club has been declining, nor does it alter the fact the old rule had been in force for about a hundred years when it was amended on a total misconception of facts by the Committee, and it is possible that Members would have rejected the amendment of the rule, if they had been correctly informed about the facts. I, therefore, do not doubt Mr. Samad Khan's bona fides at all, and similarly I do not doubt the bona fides of the Committee, because I am sure that the timing of the 1973 amendment had escaped its attention. But, in the circumstances, I would have expected the Committee to welcome a resolution for restoring the old rule, because it would have enabled the Committee to correct its own mistake. Instead the Committee opposed Mr. Samad Khan's resolution. Despite this, the resolution was referred to a Special Sub-Committee, and the resolution as well as the proposals of that Sub-Committee came up before Members at the next Half-yearly Meeting in October, 1979. Mr. Samad Khan's resolution was defeated whilst the Committee withdrew the proposals of its own Sub-Committee. The proposals were of a very tepid nature and were an attempt to strike a compromise between the old rule and those who objected to its restoration. Therefore, I expressed my surprise at the Committee's decision to withdraw the proposals of its own Sub-Committee, and that led to a heated controversy between the learned counsel.
20. ' According to Mr. Sarnad Khan, the withdrawal of the Sub-Committee's proposal was a deliberate ploy, because the President had withdrawn the proposal without explaining why the Committee was withdrawing its own proposals. Mr. Nomani criticised very harshly the evidence thus given by Mr. Samad Khan, but he fought shy of examining the then President or any Member of the Club to give evidence about the reasons given by the President for withdrawing the Sub-Committee's proposals. He only relied on the minutes of the Half-yearly Meeting of 25th of October, 1979. But these minutes merely stated "after some discussion the proposed amendments to Rule VIII (12) by the Committee were withdrawn". This minute does not even state that the President had addressed the Members. No doubt the withdrawal could only have been made by him, but if he had given the reasons for withdrawing the Committee's proposals, it would have been so stated in the minutes. I have, therefore, no doubt in my mind that Mr. Samad Khan's version of what happened at this meeting is correct, and I am constrained to observe that it would have been better if the President had given the Committee's reasons for withdrawing its own proposals. After all it is a Members'
21. Club. However, I would refrain from going further into the submissions advanced on this point, because, for the reasons which I will presently give, Mr. Samad Khan's special resolution of 1979 is still before the Members as part of his attempt to reframe rule VIII."
22. ' While Mr. Samad Khan has contended that the learned sole arbitrator should have struck down rule VIII, sub-rule (12), altered in April, 1973, in the aforequoted circumstances as mala fide, unreasonable and oppressive because the learned abitrator had been empowered by the reference to exercise the same powers as the Court, I have been informed by Mr. E.A. Nomani that, as per directions of the learned arbitrator, a General Body meeting was held of the Sindh Club members on 14-6-1988 and rule VIII, sub-rule (12) was re-amended so as to restore it to its original form. As such, no useful purpose would be served in re-activating the controversy on this point more so because the object which the learned arbitrator wanted to achieve by his strong worded disapproval of what transpired has been achieved.
23. ' Turning to the controversy pertaining to election procedure in the Sindh Club, a special resolution in that direction, as said above, was moved by respondent Samad Khan and seconded by one ZA.
24. Khan (late) and came up before the General Body of members on 5-10-1980.
25. ' A great deal of comment has been occasioned from the side of the sole arbitrator as to this requisition. No better treatment of the subject is possible than what the learned arbitrator has recorded in his Award. The following are the relevant excerpts:-- "I now turn to what happened at the Special General Meeting, and both sides agree that Mr. Samad Khan was allowed to address the House, that he explained the proposals to the Members and that this led to an extremely heated discussion. One Member then got up and said that the Club would not be the same again if a vote was taken on the proposals, whilst another Member suggested that the proposals should be examined by the Special Committee together with any other proposals that Members might like to make. According to Mr. Nomani, this suggestion was accepted by the House, and the result was that the meeting was adjourned, presumably to await the Special Committee's report.
26. ' However, what happened to the resolution moved by Mr. Samad Khan and Mr. Z.A. Khan? The minutes of the Special General Meeting read:--- "After some further discussion, the proposers agreed to withdraw their proposals from the meeting and the following resolution was proposed and carried nem con."
27. ' As soon as Mr. Samad Khan had received a copy of these minutes, he had challenged them as false. The next development, therefore, was that, according to the minutes of the next Half-Yearly General Meeting, what had happened on the 5th of October, 1980, was " certain amendments to the rules were proposed but the House resolved that these be withdrawn. A new resolution was then unanimously carried asking the Committee to appoint a Special Committee to look into the matter." These two versions of what happened at the Special General Meeting of the 5th of October, 1980 are patently inconsistent, and I regret to say that I cannot place any reliance on the minutes, therefore, I have to decide what happened at the Special Meeting of 5th of October, 1980, on the evidence produced before me.
28. ' According to Mr, Nomani, Mr. Samad Khan's resolution was rejected by the consensus of the House, but as it is clear from the evidence that tempers were running high when this consensus was assessed, I cannot but express my. scepticism about the expression "consensus of the House".
29. Apart from the premium it puts on aggressive or organized minorities, this concept opens the door to wishful thinking from which none of us is free. It is true that the evidence has proved that the Members fully approved of the proposal for a Special Committee to examine Mr. Samad Khan's proposals and other proposals that Members might make. This, however, does not mean that Mr. Samad Khan's proposals were rejected. On the contrary, Members would not have referred Mr. Samad Khan's proposals to a Special Committee if they had decided to reject them. Therefore, the point for determination is whether Mr. Samad Khan and Mr. ZA. Khan had agreed to withdraw the special resolution. I ay this, because, according to Mr. Samad Khan, a special resolution could not be withdrawn without the consent of the proposer and the seconder. Now, Mr. Samad Khan was emphatic not only that he had not withdrawn his resolution, but he also asserted emphatically that he had objected in very strong terms to the attempt to make him withdraw his resolution. He also denied that Mr. ZA. Khan had ever agreed to withdraw the special resolution. I have just referred to the problem of wishful thinking when tempers are roused, therefore, I will not go by Mr. Samad Khan's evidence alone, although I must say that I was impressed by the manner in which he stood in his cross-examination on this particular point.
30. ' Next, as to the other evidence, Mr. Campbell Gallaher said that he was not sure about his recollection of the precise turn of events at this stormy meeting of the 5th of October, 1980 because of the passage of time. But the witness examined by the Club was one of the requisitionists, and he began by supporting the extreme position originally taken by the Committee that the special resolution had been withdrawn even by Mr. Samad Khan. The witness also said that he had withdrawn the resolution on behalf of the requisitionists. The witness was naturally not clear about the law and I would not reject his evidence on this ground. However, I could see that he was confused and gave inconsistent replies, because his recollection of the events was hazy. But Wing Commander Maroof Ali, who was examined by the Club, only to prove the rising expenses for the maintenance of the Club was present at this stormy meeting and Mr. Samad Khan, therefore, cross-examined him about it, as he was entitled to do. Wing Commander Maroof Ali candidly admitted "that Mr. Samad Khan stood by his proposals to the very last, but I do not remember the precise words poken by him. There were other people speaking but my recollection is that Mr. Samad Man was isolated and that he stood by his proposals". Finally, although the Committee did not send any of its Members to give evidence, I examined Mr. Nusrat Bukhari, a Member of the Committee, on a totally different point. He gave his evidence honestly and I have accepted the Committee's contention on this other point solely on the basis of Mr. Nusrat Bukhari's evidence.
31. Now, as he was also present at the stormy meeting of the 5th of October, 1980, Mr. Samad Khan cross-examined him about it, and he candidly admitted that neither Mr. Samad Khan nor Mr. ZA.
32. Khan had withdrawn their special resolution. I am, therefore, satisfied that Mr. Samad Khan's recollection of the facts is correct. Therefore, when the Special Committee's report was placed before the Members, the special resolution moved by Mr. Samad Khan should also have been put to the vote. It is admitted that it was never put to the vote and this is a patent illegality which was admitted by Mr. Nomani, but he relied on the ruling in Foss. v. Harbottle ((1843) 2 Hare 461)."
33. ' In the result, the sole arbitrator has found that the requisition was still pending before the General Body and shall have to be dealt with as such. This view is substantially correct. The reason why I have quoted, in some detail, from the various observations of the learned sole arbitrator is, however, also calculated to accord due place to the foregoing controversies in the overall setting of . these disputes.
34. ' It has been urged before me that the learned sole arbitrator should have dealt with the requisition, on his own, in the same way in which he approached the problem relevant to some other rides and ought either to have struck down the offending rules embraced in the requisition or made appropriate directions. This contention has assumed some importance because, according to the common version of the parties, the requisition was, subsequent to the Award, taken up and rejected by the General Body with minor exceptions covered by the directions issued by the learned arbitrator. Since the controversy involves an assertion that the learned arbitrator failed to determine all the specific questions referred, it requires adequate examination. It needs little reiteration and has not been seriously questioned before me that it would, ordinarily, be fatal to an award if it does not finally decide all the essential points of dispute or differences in the submission or leaves them or any of them suspended in the air. Reference on the point, has already been made to Ganes Narain Singh v. Malida Koer (10 I.C. 450), Gaja Sinve Rao v. Sujat Ali AIR 1952 Hyd. 46 and Union of India v. Sharma and Sons AIR 1968 Raj 99 etc. A notable exception to the rule, however, may be furnished by cases where the dispute(s) remaining undecided are separable and do not affect the award in its entirety. In such situations the Court may, if the ends of justice would be better so served, restrict the redress to such offending severable matter(s) alone. The non- offending part may then be made rule of the Court. If authority for the proposition is needed A.Z.
35. Company v. S. Mawla Bukhsh Muhammad Bashir PLD 1965 SC 505 may be referred.
36. ' Now, the challenge directed to the rules may be seen. It essentially pertains to such part of the rules as involve. the mechanism of elections at the Club, which, in turn, assumed proportions because on working of such rules there, allegedly, emerged a degree of perpetuation in administrative power.
37. ' It would seem that the election .procedures of the Sindh Club are contained in rule VIII. Elections are to be held, year to year, at the October Half-yearly General Meetings. Permanent Members alone can stand for and are to elect a President, Vice President (indirectly) and 8 Committee members pursuant to the rule. The learned arbitrator has, already and correctly, found that at the elections, members can vote for the President and the Committee only separately and that vote for the President (on failure of a candidate) shall not count as a vote for the Committee as, unfortunately, for decades it did in the past. The rule, according to this direction, is stated to have already been modified. Likewise, the provision with regard to destruction of the voting record, before announcement of the results, has also been modified in accordance with the opinion expressed by the learned sole arbitrator. All this, having been duly warranted on general principles and law and, besides, both the sides being in agreement concerning the same, the foregoing amendments, resultantly, getting included in rule VIII aforementioned, are and shall be deemed to have been made rule of the Court.
38. Taking up the vires of the rules, a large variety of material falls under that genus, the most commonly encoutered being rules framed under statutory mandate. Another category comprises of rules which govern or relate to the affairs of bodies, corporate or otherwise. Yet another frequently occurring set of rules involves service matters, whether under Government, semi- Government or autonomous bodies or concerning corporate or private employees. Rules falling in the first two classes have to be reasonable, free from arbitrariness and oppression besides generally conforming to law. See, inter alia, Kruse v. Johnson 1895-99 All. E.R.
105. If not, the Court has power to rescind and avoid them though there is authority that mere unreasonableness would not be enough to strike down an otherwise valid rule and that something more must co-exist to bring about such result. Service Rules stand at a somewhat different and even variable pedestal though, at the minimum, these, as well, cannot stand if illegal or beyond the scope of the rule-making power or retrospective (without having due sanction of law) or mala fide in character. In Cowey v. Liberian Operations Ltd. 1966 Lloyds Reports 45 an English Court went to the extent of allowing three thonths' notice pay to an employee solely on the ground that there was such a provision in the contract between him and his previous employer within the knowledge of the defendant and even though subsequent to his current employment, through a circular, the term had been expressly fixed for one month's termination notice from either side. The foregoing propositions are not disputed. The learned arbitrator himself proceeded on an assumption that the rules, being considered here, can be declared void and set aside if found unreasonable, arbitrary, oppressive or mala fide. No cavil is made from either side to the learned arbitrator's so proceeding.
39. From this it follows that the learned arbitrator, by consent, having been assigned the same powers as those of the Court in like situations, was invested with due powers of striking down or retracting from the rules. It, therefore, can legitimately come up for consideration, even though, at the instance of only one of the parties, as to how the power was exercised and further whether it calls for interference in this Court. Some principles may call for a re-statement here: It is now settled law that the proceedings before an arbitrator are of a quasi-judicial nature. Where discretion vests in an arbitrator such as to be exercised judicially.. If conclusions in an award are based on reasons, now an obligation under the newly-added section 26-A of the Arbitration Act, 1940, and such are bad, it would be open to attack them. See, inter alia, the opinion of Mc-Nair, J., in Demolition & Construction Co. v. Kent River Board, 1963 LLoyds Rep 7.
40. ' Specifically now dealing with the cognate objections, touching the rules, one which has very strongly been urged from the side of the respondent is that pertaining to the nomination of scrutineers by the outgoing Committee for what, allegedly, in effect, may come to determination of the outcome of the elections. The learned arbitrator has brushed aside this objection on the ground that there is no substance in the same, such involving merely a clerical function attributed to the scrutineers. Normally this finding about the role of scrutineers would be correct. If the scrutineers were merely to conduct the counting of the votes and if, as has now been endeavoured to be assured by the sole arbitrator, the record of the election is adequately preserved, without any fears of interpolation, for a sufficient period of time, there can be little exception to what the sole arbitrator has recorded concerning the functions of such scrutineers. Still no generalisations on the subject are possible and the outcome would be dependent upon the specific facts and circumstances of each election. As to the incidental question whether the Court, acting in relation to the Arbitration Act, would be within jurisdiction to examine the implications of the applicable rule and whether the Court's interpretation can run counter to what an arbitrator, in his wisdom, may have opined on the subject, the answer is not at all in doubt. Construction of a Rule, Bye-law or Regulation and even of a contract between the parties is always a question of law. No amount of finality attaching to arbitrations can take away the jurisdiction of the Court to determine such a question. Even as regards legislation the House of Lords in Davies Jenkins & Co. Ltd. v. Davies (1967)
41. 1 All E.R. 913 declared it as "well accepted that the beliefs and assumptions of those who frame the law do not make the law". In State v. Zia-ur-Rehman PLD 1973 SC 49, as to the exclusive jurisdiction of the Superior Courts to construe the Constitution, Hamood-ur Rehman, C.J., observed that the jurisdiction in relation to the Supreme Court was so fundamental that, "it can be taken away by abolishing the Court itself." Coming nearer to the subject, it would be useful to reproduce the following excerpt from the judgment of Denning, L.J., in Lee v. Showmens Guild of Great Britain, (1952) 1 All. E.R. 1181:--- "So'also they cannot permit a domestic tribunal to deprive a member of his livelihood or to injure him in it, unless the contract, on its true construction, gives them power to do so. I repeat "on its true construction" because I desire to emphasize that the true construction of the contract is to be decided by these Courts and by no one else. Counsel for the defendant guild argued that it was for the committee of the guild to construe the rules, and, so long as they put an honest construction on them, then their construction was binding on the members, even though it was a wrong construction. I cannot agree with this contention. The rules are the contract between the members.
42. The committee cannot extend their jurisdiction by giving a wrong interpretation to the contract, no matter how honest they may be. They have only such jurisdiction as the contract on its .true interpretation confers on them, not what they think it confers. The scope of their jurisdiction is a matter for the Courts, and not for the parties, let alone for one of them. This is how the House of Lords approached the problem in the Carpenters' case (6), and I think we should follow their example."
43. ' Quoting another portion from the cited judgment of Denning L.J., the matter was approached thus in Baker v. Jones (1954) 2 All. E.R. 553:--- "With this statement of the law I respectfully agree. The interpretation of the rules is a question of law which the Courts will examine. In my view, therefore, the provisions in the B.A.W.LA. rules making the central council the sole interpreter of the rules and their decision in all cases final, is contrary to public policy and void."
44. ' Question, therefore, which resultantly arises is whether, in the context of the Sindh Club Rules, as they stand, the function of the scrutineers is really one of a clerical nature. The reply not being as simple as the question, an endeavour is made below to look for the solution.
45. ' Now, in so far as the rules are concerned, there is a clear mandate in 'such rules that the elections in the Club would be by "ballot" and elaborate procedure is provided for submission of nominations, placement of a ballot box for receiving the ballot papers and for counting thereof after the ballot is dosed. The ordinary dictionary meaning of the word "ballot" is "a secret vote or method of voting by putting a ball or ticket or paper into an urn or box". The foregoing is the ordinary English connotation of "ballot" but such in the U.S. has been extended to open voting. It would be preferable to apply the ordinary English meanings of the word "ballot" because the Sindh Club, as originally formed, was one meant and devised for British European subjects only. Another reason why that interpretation has to be preferred is because rule VIII aforesaid, where it envisages an open vote says so expressly. Thus, this is how the matter has been dealt with in rule VIII (11): "Should the result of the ballot be doubtful, in consequence of two or more members having obtained an equal number of votes, the General Body shall decide by ballot which of the candidates is elected. Any objection which may be raised in regard to the election at the Half- Yearly General Meeting shall be settled by the open vote of_the members present at that meeting."
46. (underlining is mine)
47. ' It is thus patently clear that even where the result of the ballot is doubtful in consequence of two or more members having obtained an equal number of votes that issue also is required to be decided by ballot. However, only an objcetion raised in regard to the election at the Half-Yearly General meeting, "shall be settled by the open vote of the members present at that meeting." To make assurance doubly sure, as to the implications of elections by "ballot" under the Sindh Club Rules, the question not having been mooted earlier on, I again heard the parties and both the sides agreed that the concept of secret ballot was clearly rooted in the rules.
48. ' Now it would be of advantage to record the historical background in which the Sindh Club was formed. This is necessary to adequately determine the vires of the sub-rule concerning the nomination of scrutineers and cognate matters. The learned arbitrator, while striking down the provisions for destroying the election record prior to the announcement of results, has dealt with the subject in the following manner:-- "The answer to this question is to be found.in the history of the Club.
49. ' The Club was founded in 1871 and was for Europeans only. It began with a membership of only 76.
50. It is a matter of common knowledge and it was admitted by Mr. Nomani that the membership of the Club was dominated for many decades by the higher ranks of the Civil Services and of the Forces. Membership was of course open to the professions and to the business community. But I would recall that the gentlemen of the business community were then described as the boxwallas.
51. This approach to the business community was based on the archaic view that gentlemen only joined the services, the Church and the professions. We are fortunate to have outgrown this prejudice.
52. ' Now the result of this prejudice was that the Club was managed for long decades by an extremely small and well-knit group of members united by bonds of class and race and very high standards of honesty and integrity. Election disputes could have arisen very seldom in such a group. But, in the event of such a dispute arising, Members knew that the legal forum for such disputes in Karachi was the Court of a subordinate Judge, therefore, litigation would have meant that disputes amongst the higher ranks of the services would be decided by a very subordinate member of the services. That would have been very unpleasant for a Club, the majority of whose members came from a very well-disciplined service. Further, the lower ranks of the subordinate judiciary were generally manned by Indians. The idea of a dispute between Members of the Sindh Club being decided by an Indian would have been anathema to Members of a Club which excluded Indians.
53. Therefore, the provision for the immediate destruction of election records provided a very simple solution for all these problems by making litigation impossible."
54. ' It is in the foregoing light the provision as to scrutineers has also to be viewed. However, another aspect of the matter pertaining to destruction of the polling record, which, apparently, escaped attention of the learned arbitrator was the fact that the ballot papers under the rules (See rule VIII, sub-rule 6) are supposed to bear the signatures of the members voting and evidently secrecy of the polls may have been unduly jeopardized if the relevant record was maintained indefinitely or fell into wrong hands. Hence also the inordinate device of destroying such record before the advent of that prospect. But, it is here that the role of scrutineers assumes disproportionate importance. It is these scrutineers alone who would be in a position or have the means to know as to who voted for whom. If, therefore, the outgoing committee was to nominate scrutineers,, as indeed under the rules they have done for over a hundred years, the Committee members repeating could have been armed with a possible artifice to know the details of what had transpired, for or against, at the polls. What is more, even the voter would be under no illusion as what was held for him in the guise of this singularly loaded device. What independence or detachment could thus be expected from him? I, therefore, regret to say that while the impression generated by rule VIII was of an election by ballot, in fact, what was being given by one hand was actually sought to be taken away through the other. In no other reasonable way can signatures on ballot papers and their scrutiny by the nominees of the outgoing Committee and destruction of the record, even prior to the declaration of results, can be explained. Add to this the fact that in a small group of people, of which the Club was constituted at the time of its formation, signatures could readily and easily be identified by the nominees of the very people many of whom may be seeking re-election. To keep appearances or maintain faith as gentlemen, however, the strategem of destruction of the record seems to have been utilised. This was, at the very least, preposterous. One wonders as to what the learned arbitrator were to say concerning "the extremely small and well- knit group of members united by bonds of class and race and very high standards of honesty and integrity", as the relevant description in the quoted excerpt from him goes, had he occasion to advert to this position.
55. ' The matter does not stop here. Alone privy to the result, the scrutineers would hand over the tabulated version thereof to the Chairman, himself none other than the outgoing President, who would then declare the same. The ballot papers themselves would have stood destroyed by then.
56. Currently, of course, under direction from the learned arbitrator, the ballot papers, fortunately, shall have to be sealed and handed over to the Secretary, evidently a paid employee, with whom the requirement of retention for a month has since been imposed. In this state of things, even as of now, I am unable to pursuade myself that the scrutineers in the Club merely perform a clerical function. The root cause of the trouble arises from members' verifiable signatures on the ballot papers though there can be hardly any two opinions that misuse or duplication of the ballot papers, if that alone was the consideration for requirement of the signatures, can always be safeguarded against in numerous unexceptionable modes. It thus seems clear to me that for the Court's leaving the matter in the present shape is fraught with patent dangers and may even tantamount to an open licence for possible illegalities. I would take the occasion here to refer to a very pertinent observation in R. v. Sussex Justices (1923 All E.R. 233) which, though made in another context, may equally apply, since conduct of electoral process calls for no less purity than dispensation of justice itself. This is what was said in that case: "The answer to that question depends not on what actually was done, but on what might appear to be done. The rule is that nothing is to be done which creates even a suspicion that there has been an improper interference with the course of justice."
57. ' Another cognate aspect pertaining to the elections and involving the same rule comprises of voting members not being required to cast votes for all the Committee seats thus engendering possible negative voting. Mr. Samad Khan's objection on that score seems to have been overruled by the learned arbitrator on the ground that Mr. Samad Khan, in urging such issue, was attempting to introduce the procedure prevailing at the Federal and Provincial Elections in the club. The arbitrator could reject the contention on the ground that, if otherwise valid, the elections rules may not have been amenable to being re-cast in a particular format. However, what was urged before him was more. It was contended that the blank space(s) left in such mode of voting could be filled in at unscrupulous hands thereby bringing about results quite different from those intended by the electorate. This was a serious objection particularly in the light of the unduly disportionate role assigned to scrutineers. Even under the present dispensation unutilised voting spaces in ballot papers left to lie, at the least for a month, could provide sufficient temptation, time and space for possible tampering at unscrupulous hands. Granted that it is neither contrary to any law that all committee seats should necessarily be voted for nor can such an objection be sustainable on principles of public policy, on both of which considerations the sole arbitrator is right, still due safeguards could be visualised to ward off all prosepcts of tampering with such unfilled spaces in the ballot papers. In that such questions have either been inadequately addressed or left untouched the Award is liable to be remitted back. The matter will come up before the learned arbitrator alongwith the other related question of scrutineers as dilated upon below.
58. ' Reverting to the dispute concerning scrutineers, it being an admitted position now that the concept of "ballot" involves, by necessary implication, secret ballot any procedure in the rules whereby the secrecy of ballot is violated, any, even jeopardised, all or any of the provisions in the rules found to be contravening that requirement would, to such extent, be void and of no effect.
59. One such provision relative to this aspect, is the stipulation for the appointment of scrutineers by an outgoing committee in the Club. Not only this, as adverted to above, when the matter is more closely examined, it would be found that the requirement for members to sign the ballot paper, in token of casting it, is the fundamental and the basic element, which either negates the sanctity or the secrecy of the ballot or, at least, has the potential of negating it. It has already been found, and indeed with this the learned arbitrator does not disagree, that amongst the powers of the Court in such a matter, concerning such an infraction of fundamental principles, is a power to find and declare the contravening rule as unenforceable. This power and this jurisdiction rests, inter alia, on an arbitrary, unreasonable and unfair rule being contrary to natural justice, to public policy and to the fundamentals of all acceptable norms and thus unenforceable. Because the learned arbitrator, as seen above, by covenant between the parties, was conferred with the same powers as of the Court, which, in fact, he has actually exercised in some respects, he could uncontrovertedly do as much in the present context as well. That this was an issue before him would, inter alia, clearly arise on the basis of the amendments, which were proposed in the requisition brought by the members spearheaded by Mr. Samad Khan and just as the finding that such requisition was still pending before the General Body did not deter or preclude the learned arbitrator from deciding questions involving other infringing rules, the same salutary approach could also be applied to this issue.
60. Even so, I quite agree with Mr. E.A. Nomani that the learned arbitrator had no mandate to arrogate to himself the powers of the General Body. However, that exclusion should apply only in so far as framing or amending the rules is concerned. The learned arbitrator, much as the Court, would still be not precluded in declaring any specific rule to be bad, giving, of course, due lawful reasons for so holding. He could, if it was required, also recommend and direct necessary consequential amendments or alterations. By and large similar approach was adopted in other matters by the learned arbitrator and I must find against Mr. Samad Khan relevantly on all such matters. The matter of scrutineers, signed ballot papers and blank unfilled spaces therein remains, however, an exception. In that such, question in its totality, has either escaped or not been adequately addressed or treated, the matter shall have to go back for appropriate determination or, if so deemed fit, due recommendations by the learned arbitrator to the general body, with or without giving any specific directions, as he has, in deference to the powers of the General Body, done elsewhere at an earlier point of time. In all circumstances, however, the requirement would be to ensure that no potential is left in the rules whereby the secrecy or effectiveness of ballot can possibly be jeopardised.
61. ' Having dealt with the question involving the Vires of the Club Rules, it emerges now to consider the question of tariff. In the contention of Mr. SA. Samad Khan there was no warrant for the committee to revise the tariff in the context, of residential accommodation already in the occupation of Club members. Such, according to Mr. Samad Khan, on the principle in Harington v. Sendall ((1903) 1 Ch. 921), could not be brought about except by mutual consent between the resident members and the Committee in the Club. Re Harington, it may bear pointation pertained to upward revision of subscription in a members' club, constitution of which did not contain any provision for amendments. In such behalf, it was said by Joyce, J., that raising of subscription by the majority in the General Body, as against the dissent of the minority; in the. absence of a power to amend, was impermissible. The case may only remotely be applicable to the constitution of the Sindh Club where, as will be seen below, there is an express mandate in rule XXV for necessary revision. At the same time, the instances that the learned arbitrator has himself cited, derived from the evidence led before him, do indicate a visible realisation on the part of the management that a person who has chosen to permanently reside in the Club, on certain unescapable assumptions, is not subjected to any capricious upward revision of room rentals. Thus periods of long residence have carried the benefit of discounts. Permanent residence by members, apparently, impelled by available space, was encouraged rather than discouraged and, on occasions, revised room charges were scaled down to attract flagging occupancy. There are at least a couple of previous instances when, following upon or in anticipation of differences, the revised tariff in relation to the then permanent members in occupation was worked out differently than as applicable to prospective occupants. The element of "necessity" in relevant rule XXV has thus a peculiar bearing in the context of permanent residents at a given point of time. Even though previous accommodations to the respondent, as found by the sole arbitrator, do not constitute abdication of powers of the committee to revise the charges, if necessary, such do, if I may say so, to an extent, condition it. The rule applicable may somewhat be of the following nature, as stated by Denning, L.J., in Charies Richard, Ltd. v. Oppenheim ((1950) 1 All. E.R. 420):--- "If the defendant, as he did, led the plaintiffs to believe that he would not insist on the stipulation as to time, and that, if they carried out the work, he would accept it, and they did it, he could not afterwards set up the stipulation in regard to time against them. Whether it be called waiver or forbearance on his part, or an agreed variation or substituted performance, does not matter. It is a kind of estoppel. By his conduct he made a promise not to insist on his strict legal' rights. That promise was intended to be binding, intended to be acted on and was, in fact, acted on. He cannot afterwards go back on it.
62. Now, Club Rule XXV postulates that "charges for rooms, meals and supplies " shall be subject to such modification as the Committee may, from time to time, consider necessary". The sole arbitrator has rightly found that it is this rule which applies to the facts involved in the case in preference to rule VIII, sub-rule (19) pertaining to "the interior economy of the Club", the last mentioned rule limited to framing of bye-laws on the subject of interior economy. Still the learned arbitrator has also found that more than one measures adopted by the committee resulted in avoidable losses to the Club, the bill in turn to be defrayed by members because the acts involved therein were initiated in good faith. At the same time, the principle of overall economy in management and of enhancement of tariff only when "considered" and not merely thought "necessary" cannot be given the go-by solely on the K premises of good faith. I think the rule spelled out in Bromley LBC v. Greater London Council ((1982) 1 All E.R. 129), may not fall too short of applicability. It runs thus:--- "It appears to me that the GLC owned a duty both to the travelling public pnd to the rate-payers. Its duty to the travelling public is to provide an integrated, efficient and economic service at reasonable fares. Its duty to the rate-payers is to charge them as much as is reasonable and no more. In carrying out those duties, the members of the GLC have to balance the two conflicting interests: the interest of the travelling public in cheap fares and the interest of the rate-payers in not being overcharged. The members of the GLC have to hold the balance between these conflicting interests. They have to take all relevant considerations into account on either side. They must not be influenced by irrelevant considerations. They must not give undue weight to one consideration over another, lest they upset the balance. They must hold the balance fairly and reasonably. If they come to a decision which is, in all the circumstances, unjust and unreasonable, then the Courts can and should interfere."
63. ' On a fair reading of the matter, it is plain to me that the rules of the Club (an admittedly unregistered body), which constitute a contract between the Committee, on the one hand, and members, on the other, the latter of whom are co-owners of all the assets, properties and effects of the Club, clearly carry a mandate, though a reasonable one, for revision of the tariff pertaining to room accommodation etc. but that can only be, as envisaged in rule XXV, to the extent it be "considered" and found "necessary". In such matters there must be a detached exercise of mind.
64. The scales must be held evenly by the committee. There should be no tilt either way. Those who have staked their shelter by taking a fair dispensation for granted should not be made to go back disappointed. Respondent Mr. Samad Khan can, therefore, plausibly say that the revision of tariff has to be within rational limits, never arbitrary and always in the spirit of good fellowship, in other words free of all taints of bias. It was, accordingly, for the learned arbitrator to determine whether these requirements were fulfilled relative to the revision of the charges questioned by the respondent. It is by now axiomatic that when decision of a dispute is dependent on a particular question or issue raised before a domestic forum it is the duty of such forum first to adjudicate upon that particular issue and then render decision in the case.
65. ' Here it arises for consideration whether in order to address the controversy pertaining to the tariff it is permissible to go into the evidence which was available before the learned arbitrator. Mr. EA.
66. Nomani, referring to the opinion of Waheeduddin Ahmed, J in Suleman Haji Muhammad & Co. v.
67. State Bank of Pakistan PLD 1960 Kar. 78, has urged that the Court is not competent to delve into the evidence not set out in the award nor, on review of evidence, could come to a different conclusion and set aside the award. In short, the Court cannot constitute itself into a Court of Appeal over the decision of an arbitrator. Reverberations of the same line of thinking are to be found in Demolitioir and Construction Company v. Kent River Board ((1963) 2 Lloyds Reports 7) where Mc-Nair, J., said that question of lack of evidence in relation to an award could properly be raised only if the arbitrator had set out the whole evidence and the stated conclusion would not properly arise on such evidence or when it was thought that the arbitrator was acting without evidence, the Court could require him to state a case. Similar is the enunciation of Ghulam Rasool Shaikh, J., of this Court in Trading Corporation of Pakistan v. Aslam Sayeed & Comany (PLD 1973 Kar. 65). These rules, however, are neither absolute nor without exception. Besides, since then, a material shift in law, if not a total change, had occurred with the insertion of section 26-A in the Arbitration Act, which requiring reasons in sufficient detail, reads as under:-- "26-A. Award to .set out reasons.---(1) The arbitrators or umpire shall state in the award the reasons for the award in sufficient detail to enable the Court to consider any question of law arising out of the award.
(2) Where the award does not state the reasons in sufficient detail, the Court shall remit the award to the arbitrators or umpire and fix the time within which the arbitrator or umpire shall submit the award together with the reasons in sufficient detail: ' Provided that any time so fixed may be extended by subsequent order of the Court.
(3) An award remitted under subsection (2) shall become void on the failure of the arbitrators or umpire to submit it in accordance with the direction of the Court."
68. Previous to the introduction of section 26-A it was discretionary for an arbitrator not to mention any reasons for the award and once an arbitrator chose not to ascribe any reason for his conclusions the matter stood excluded from close scrutiny of the Court unless the case was alleged to be one of no evidence, when the arbitrator could be called upon to state a special case. There is also, however, some authority that in relation of awards involving no evidence the record, including the evidence, could be perused. Even in behalf of such awards reasons wherefor were detailed wholly or in part, the jurisdiction of the Court, by and large remained limited to such reasons as found mention or such evidence as was discussed in the award. Of course, the rule, then as now, has always been that if the reason(s) cited for an award is bad, it is open to a party to question it.
69. Arbitration is a modern device for resolving disputes. It is calculated to ensure speedy disposal, on the one hand and a substantially, informal and matter of fact dispensation on the other. A degree of sanctity, however, is attached to adjudications upon arbitration. The Court is expected to be extremely circumspect in making interference in such matters though illegalities or misconduct, either of the arbitrator or in the proceedings, leave the award open to due correction. Misconduct itself is a term of art. It may not involve any moral turpitude and often does not. While left undefined by statute, it has very broadly been interpreted to mean a failure, howsoever innocent or honest, to discharge an essential duty on the part of an arbitrator, resulting in substantial miscarriage of justice between the parties.
70. ' The introduction of section 26-A in the Act, making reasons for an award obligatory, as opined by Naimuddin, J., in the Division Bench judgment of Karachi Metropolitan Corporation v. Associated Constructors Ltd. (1984 CLC 1077) enables the parties to know and agitate and the Court to, correspondingly, consider any question of law emerging from non-examination of relevant matters, or flowing upon irrelevant or extraneous considerations or matters or an erroneous view of law or material facts or evidence. As to reasons given by an arbitrator, such, I may add, have to be based upon the evidence produced before him and the law applicable to it. An award inconsistent with law was never sustainable and so also one which is erroneous on the face of it. An award is also bad if the findings incorporated therein are perverse or unsupported by the evidence adduced or tantamount to deciding a dispute question without duly going into relevant evidence.
71. See the conclusions of Muhammad Yousuf Saraf, J., in the Division Bench cases of Ghulam Rasool v.
72. Government of Azad J&K (PLD 1971 AJK 127).
73. It has often been said that there is a difference between sufficiency of evidence and want of it, in the first of which situations, room for dissent is limited but not so, as to the other. Even before the amendment of the Act in the shape of section 26-A, when a non-speaking award, as a generalisation, could go unchecked, the principle was different if such was challenged, as founded on no evidence. In the face of such challenge the Court, inter alia, could peruse the record including the evidence. Likewise, the time honoured principle remains that no sanctity attaches to an award which not only is not abased on due evidence but is opposed to it. The impugned award in these proceedings, not unexpectedly, is an extremely well composed determination. It neither lacks in lucidity nor in elaboration. Still objection has been that it is opposed to material evidence, fails in taking note of vital documentary material and suffers from erroneous assumptions of law.
74. Manifestly for these reasons, both sides have gone into minute examination of the record, within, the limitations prescribed by law, the essential details shall, therefore, have to be looked into.
75. ' On the above score of revision of tariff, it is borne on the record that in 1977, when the respondent came to occupy the Club accomodation, which, as regards him, has ever since remained the same, room tariff, per diem, was Rs.45 but, at that time, such tariff, compulsorily included all meals to be paid for separately. However, as an incentive, for permanent residents 20% discount was also allowable, thereby reducing the net payment to Rs.36 per day. Subsequently, the per day rental for the disputed chamber was enhanced to Rs.80 with similar ingredients but no discount. In fact, there was a move, though abortive, to limit the period of permanent residence as well. The respondent refused to accede to the enhancement. The issue, however, was resolved in a meeting between the parties held on 19-6-1979 and the respondent w.e.f. 1-7-1979 agreed to the tariff at Rs.80 per diem with an Air-Conditioner superadded, electricity bill to be shared equally between the Club and the member. On 15-5-1980 a cyclostyled notice was issued stipulating that all chambers in the Married Block would be chargeable on the basis of double occupancy, irrespective of the fact whether a couple or an individual occupied it. Mr. SA. Samad has ever since been challenging this notice on the two-fold grounds of being ultra vires the powers of the committee and mala fide, since it was directed against him only, his chamber alone, being in occupation of a single person, all the rest being subject to double occupancy. Next, through letter, dated 17-6-1982 w.e.f. 1-7-1982 a further revision to Rs.100 and 140 per day respectively for single and double occupancy was claimed but as regards the Married Block sought to be enforced on double occupancy alone. Mr. Samad Khan agreed to pay Rs.100 for single occupancy together with Rs.15 per child but declined to pay at the double occupancy rate of Rs.140. The matter went to arbitration. However, before that the Committee started billing the respondent at Rs.180 per day w.e.f. January 1983. In the legal context it is difficult to find fault with the conclusion of the learned arbitrator that the agreement of June, 1979, did not constitute an abdication on the part of the committee never to vary the tariff, applicable to the respondent. Yet the power of variation was not arbitrary. Still more, the pleas of mala fides in the context of manifest belligerency required to be more closely examined. In the relevant context there was evidence before the sole arbitrator, essentially in the shape of the deposition of Wing Commander, Maroof Ali, Secretary of the Sindh Club, who, on 2-7-1983, deposed in detail about the rise in the price structure namely, as relative to the items used in providing breakfast as well as costs of services. Evidence revealed that as between 4-4-1977 when Mr. Samad Khan moved into the Club and 2-7-1983, date of the deposition, the rise in prices and costs ranged between 50% and 100% (the last applicable to electricity). It has been pointed out by Mr.EA. Nomani and rightly so that not merely the price structure but other ingredients such as expenses towards additions, alterations and improvements in the Club may come to be reckoned in order to re evaluate the tariff at a given time. The learned arbitrator has also noted that there have been some losses in the Club and such were incurred in good faith though the sole arbitrator has not failed in decrying the same, at the very time approbating Mr. Samad Khan for his vigilance and sense of duty, as a member. These liabilities, if in good faith, can also enter the reckoning. However, it was neither practicable for the learned arbitrator nor is it possible for the Court to determine accurately the extent of re-evaluation and re-fixation. Only approximations can be worked out. On this basis, revised room rental at the rate of Rs.100 per day had earlier been found to be acceptable by Mr. Samad Khan himself with the addition of Rs.15 per child, if in occupancy. On the other hand, the tariff, with additional and compulsory meals as its incident, was Rs.36 per day in 1977 and the maximum rise in the price structure involving goods and services relevantly, at the highest, on evidence could be no more than 100%. Substantial revisions, therefore, were agreed to from time to time by Mr. Samad Khan on mutually acceptable terms. On an overall basis, there may have been material before the learned arbitrator even to accept almost a three-fold rise from Rs.36 per day in 1977 to Rs.100 per day effective from 1-7-1982. Further, nothing much, on this reasoning, seems to have changed upto 2-7-1983, when details were deposed to. However, the main controversy in such context- was the element of a charge of Rs.140 per diem, on double occupancy basis, irrespective of the fact whether, at a given time, there was only a single occupant, previously without exception chargeable on single occupancy. The applicant side rationalised it by saying that the inherent nature of accommodation in the Married Block justified this change. Applicant Mr. Gallaher deposed that, in his opinion, the revision in the charges fairly and reasonably arose. To counteract, it has been urged that opinions of witnesses have never bound either a jury or a Court. The learned arbitrator, however, referred to his own knowledge of the accommodation and agreed. Elsewhere, on the same source of knowledge he has found room service to . be deteriorating and even rats infesting the premises. It is relatedly urged by Mr. Samad Khan that the learned sole arbitrator was not empowered by the reference to introduce his personal knowledge and resulting findings are, therefore, bad. This is correct in so far as authorisation as per submission is concerned. Mr. Nomani has, on the other hand, contended that apart from the learned arbitrator's personal knowledge the findings can also be verified on available evidence. He is also right though again partially. In the current state of law, being, to an extent, empowered to examine cognate evidence, I find that such evidence does subsist. At the same time, however, irrebutable documentary evidence is to the effect that all other accommodation in the Club, even though largely suitable for double occupancy, is being charged on actual occupancy, single or double. The compulsory peculiar rate on double occupancy has been made applicable to the Married Block only. Questipns of law which thus arise are whether this could fairly be done, in a members' club, in relation to the respondent and whether the outcome has resulted upon mala fides. On the first question, it seems to me that ever since 1977 having charged the respondent on actual occupancy and the committee having billed the respondent correspondingly, there arose a kind of estoppel supportable on the authority of Re Charles Richards cited above etc. It was not unilaterally and in routine that the essential terms of occupancy of a permanent character between part owner (member) and the joint owner (club) could be altered much less when contrary representations were held out and accepted. The principle of considerations of necessity as enshrined in rule XXV of the rules also provides adequate safeguards against such recourse. As to mala fides, I have, at the outset, quoted in extenso from the learned arbitrator himself and on such material itself it is difficult to divest mala fides altogether particularly when the respondent stands singled out and finds himself alone in this treatment. There is, therefore, a manifest error of law in enforcing a charge of double occupancy against the respondent, irrespective of actual such occupancy. This cannot be allowed to hold.
76. ' Now may be approached the finding relative to transformation of the tariff to Rs.180 per day as from the date of the Award viz. 27-3-1984. The sole basis for the increase last mentioned in the words of the learned arbitrator himself is "the continuous rise in prices since 1982". Now in so far as the claim of Rs.180 per day is concerned such was inserted in the Statement of the Claim before the learned arbitrator which must have been filed somewhere in or about May, 1983 and all that the learned arbitrator had before him was the deposition of the Club Secretary recorded, as aforesaid, on 2-7-1983. Any phenomenal rise in prices as from 1982 is, therefore, without any material on the record, more so because in the evidence nothing whatever has been said on the subject by any of the witnesses produced by the Club, the only relevant witness limiting himself to the overall changes in the price structure as from 1977 and up to 2-7-1983, when his statement was recorded.
77. Besides, there is no specific quantification of such price rise, if any. Mr. EA. Nomani suggested that the arbitrator could take judicial notice of the matter but even for that there is no material on record. As has already been observed, revision in the tariff can only be to the extent considered "necessary". Findings with regard to the increase @ Rs.180 per diem from the date of the award much as @ Rs.140 upto it, irrespective of double occupancy, cannot, therefore, be sustained and to this extent the award is set aside. The Club can, however, prospectively and subject to lawful considerations further revise the tariff and the findings of the learned arbitrator in that behalf are unexceptionable.
78. ' Subject to the foregoing, purely for the determination of the questions affecting the Rules the case shall go back to the learned arbitrator for adequate determination. The rest of the award, except the portion retracted or remitted back for reconsideration is made rule of the Court.