1. ' Mr. Iqbal Kazi has referred us to the orders dated 6-11-1995 and 15-1-1996 which we, to the relevant extent, reproduce below:-- "Dated: 6-11-1995 ' Contention of the learned counsel (for the appellant) is that the matter has been remanded to the learned Single Judge by the Supreme Court of Pakistan to consider whether or not notice was served on the respondent before the impugned award was rendered by the Sole Arbitrator.
2. Learned counsel does not question the recall of the award for want of notice but maintains that because the arbitration clause in the agreement was admitted the learned Single Judge, at the time of recall of the award through the impugned order, should have opined about appropriate recourse to arbitration proceedings in terms of such clause.
3. ' Dated: 15-1-1996 ' Mr. Iqbal Kazi (for the respondent) has pointed out that, because the arbitration clause was silent as to the mode of appointment of the arbitrator, in virtue of section 3, paragraph 1 in the Schedule would have applied and that, in turn, would have led to the invocation of section 8 in the Arbitration Act but the appellant did not seek necessary appointment from the Court upon invocations of section 8. That being so, it is urged that the appointment of the arbitrator, who then proceeded to render the award, was totally illegal. The matter could not be referred back to him upon setting aside of his award according to this reasoning. Mr. Deewan Bashir Ahmed seeks time. Adjourned to 30-1-1996, as suggested."
4. ' It is now maintained by Mr. Iqbal Kazi that none had appeared from the side of the appellant on 29-2-1996 (the last date) and no different is the position today. In the circumstances because time was granted to the counsel for the appellant to address the Court and since that learned counsel has failed to do so the principle incorporated in rule 3 of Order XVII, as applied to appeals under section 107 of the Code of Civil Procedure may be invokable. Such provisions are as under:-- "Order XVII, rule 3, C.P.C.
5. ' Court may proceed notwithstanding either party fails to produce evidence, etc.--Where any party to a suit to whom time has been granted fails to produce his evidence, or to cause the attendance of his witnesses, or to perform any other act necessary to the further progress of the suit, for which time has been allowed, the Court may, notwithstanding such default, proceed to decide the suit forthwith. (Emphasis added).
6. ' Section 107 C.P.C.
7. ' Powers of Appellate Court.--(I) Subject to such conditions and limitations as, may be prescribed, an Appellate Court shall have power--
(a) to determine a case finally;
(b) to remand a case;
(c) to frame issues and refer them for trial;
(d) to take additional evidence or to require such evidence to be taken.
(2) Subject as aforesaid, the Appellate Court shall have the same powers and shall perform as nearly as may be the same duties as are conferred and imposed by this Code on Courts of original jurisdiction in respect of suits instituted therein."
8. Applying the foregoing, time having been granted learned counsel for the appellant to dilate upon the specific question 'raised, we, in terms of Order XVII, rule 3 read with section 107, C.P.C., proceed to determine the case finally.
9. ' Now section 3 and para. 1 in the First Schedule to the Arbitration Act are as below:-- "Section 3.Arbitration Act.
10. "3. Provisions implied in arbitration agreement.--An arbitration agreement, unless a different intention is expressed therein, shall be deemed to include the provisions set out in the First Schedule in so far as they are applicable to the reference.
11. ' Para 1, First Schedule
1. Unless otherwise expressly provided, the reference shall be to a sole arbitrator."
12. ' In terms of the provisions above reproduced, unless a different intention be expressed in an arbitration agreement, such agreement is deemed to include the provisions set out in the First Schedule in so far as be applicable to the reference. The learned counsel for the respondent says that there is nothing in the agreement whereby an intention may be gathered to exclude the provisions in the First Schedule, appended to the Arbitration Act. What is more, according to the learned counsel, the purported arbitration clause neither names the arbitrator nor expressly or otherwise provides for a reference other than to a sole arbitrator, upon this reasoning and applying para. 1 in the First Schedule read with section 3 in the Arbitration Act, it must be found that the reference in the matter could have been to a sole arbitrator alone.
13. ' According to the facts discussed in the orders above reproduced, the appellant, pursuant to the arbitration clause in the agreement, proceeded to name an arbitrator of his own but that could be done only in term of section 8 in the Arbitration Act because the appointment was to be of a single arbitrator. Section 8 in the Act is this:-- "Section.8, Arbitration Act
8. Power of Court to appoint arbitrator or umpire.--(1) In any of the following cases-- ( .) where an arbitration agreement provides that the reference shall be to one or more arbitrators to be appointed by consent of the parties, and all the parties do not, after differences have arisen concur in the appointment or appointments; or
(b) if any appointed arbitrator or umpire neglects or refuses to act, or is incapable of acting, or dies, and the arbitration agreement does not show that it was intended that the vacancy should not be supplied, and the parties or the arbitrators, as the case may be, do not supply the vacancy; or
(c) where the parties or the arbitrators are required to appoint an umpire and do not appoint him; any party may serve the other parties or the arbitrators, as the case may be, with a written notice to concur in the appointment or appointments or in supplying the vacancy.
(2) If the appointment is not made within fifteen clear days after the service of the said notice, the Court may, on the application of the party who gave the notice and after giving the other parties an opportunity of being heard, appoint an arbitrator or arbitrators or umpire,.As the case may be, who shall have the like power to act in the reference and to make an award as if he or they had been appointed by consent of all parties."
14. Since the appellant was obviously acting in terms of section 8(1) (a) of the Act as the respondent, allegedly, had failed to agree to a sole arbitrator, the appellant had to serve a notice on the respondent in writing, requiring the latter to concur in the appointment. In the event, the respondent failed to concur and a period of 15 clear days, after due service of the said notice, had gone by, the appellant would have been entitled to move the Court for seeking necessary appointment. Even if we assume that all the conditionalities of section 8, pursuant to section 3 read with para. 1 in the First Schedule to the Arbitration Act, were complied with by the appellant, it seems to be an admitted position on the record that the appellant never moved for seeking requisite appointment of the sole arbitrator pursuant to section 8(2) of the Arbitration Act. Thus, the appointment was bad in law and the learned Single Judge was right, upon remand of the case as above discussed, not to refer the case back to the arbitrator, nominated by the appellant.
15. ' The position discussed here is different from that which prevails under section 9 of the Arbitration Act. Section 9 runs thus:-- "Section 9, Arbitration Act
9. Power to party to appoint new arbitrator, or, in certain cases, a sole arbitrator.--Where an arbitration agreement provides that a reference shall be to two arbitrators, one to be appointed by each party, then, unless a different intention is expressed in the agreement,--
(a) if either of the appointed arbitrators, neglects or refuses to act, or is incapable of acting, or dies, the party who appointed him may appoint a new arbitrator in his place;
(b) if one party fails to appoint an arbitrator, either originally or by way of substitution as aforesaid, for fifteen clear days after the service by the other party of a notice in writing to make the appointment, such other party having appointed his arbitrator before giving the notice, the party who has appointed an arbitrator may appoint that arbitrator to act as sole arbitrator in the reference, and his award shall be binding on both parties as if he had been appointed by consent: ' Provided that the Court may set aside any appointment as sole arbitrator made under clause (b) and either, on sufficient cause being shown, allow further time to the defaulting party to appoint an arbitrator or pass such other order as it thinks fit.
16. ' Explanation.--The fact that an arbitrator or umpire, after a request by either party to enter on and proceed with the reference, does not within one month comply with the request may constitute a neglect or refusal to act within the meaning of section 8 and this section."
17. It will at once be seen that whereas under section 8, for want of concurrence in the appointment of the arbitrator(s), aid and attention of the Court is necessary, the appointment, in terms of section 9 of the Act, by the party not in default can ipso facto, upon the requirements being met, becomes final and no recourse to Court needs to be made. This is what distinguishes sections 8 and 9. The appellant in these proceedings may have over-stepped his prerogatives, possibly, because of his confusing the applicability of section 9 in place of section 8 in the Arbitration Act, which squarely applied. Be that as it may, law is to be applied as it is and not as it is erroneously supposed to be.
18. ' The appeal, therefore, must fail on merits. It is dismissed.