The brief facts giving rise to this appeal are as follows: The appellant filed an application under section 20 of the Arbitration Act before the Trial Court for appointment of the Arbitrator. The learned trial Court by its order dated 2-2-1982 appointed Mr. Justice (Rtd) Bashir-ud-Din Ahmad Khan as Arbitrator to resolve the dispute between the appellant and the respondent.
2. The learned Arbitrator on 15-2-1982 issued notice to the parties for their appearance before him and filing "concise statements" of their respective claims. The appellant submitted their claim before the Arbitrator describing the background of their appointment as sole selling agent vide agreement dated 2-8-1976 executed between the parties; to promote the sale of the products of their principal, and the termination of their agency.
3. On 9-12-1982 the learned Arbitrator issued notice to the appellant requiring him to produce evidence on 13-1-1983. It was not a pre-emptory notice showing the intention of the Arbitrator to proceed ex parte in case the appellant failed to attend proceedings before him on 13-1-1983. The learned Arbitrator proceeded ex parte against the present appellant and the appellant submitted application before the Arbitrator that he could not appear before him due to serious illness of his sister and left Lahore for Sanghar where the sister of the appellant was living at that time but the learned. Arbitrator dismissed the application on the ground that he had already submitted award before the Court for making rule of the Court.
4. The appellant filed an application under section 33 read with section 30 of the Arbitration Act before the trial Court for setting aside the ex parte Award dated 13-1-1983. The learned trial Court dismissed the same without applying its mind to the facts of the case; hence the present appeal.
5. The learned counsel for the appellant vehemently urged that as the Arbitrator did not give pre- emptory notice indicating his intention to proceed ex parte in case of the appellant's default in making appearance before him on 13-1-1983, the ex parte Award dated 13-1-1983 without considering the claim of the appellant is against the mandatory provision of the Arbitration Act. He relied upon the following judgments:-- "Juggilal v. General Fibre Dealers Ltd." (AIR 1955 Calcutta 354).
"Prem Nath L. Harsaran Dass and another v. O.M. Parkash L. Ram Kishan Das" (AIR 1956 Punjab 187).
6. It is pertinent to mention here that a notice was sent to the respondents by this Court, who refused to receive the same; as per report of the Process Server, so he opted not to appear before this Court.
7. I have given my anxious consideration to the arguments of the learned counsel for the appellant and also gone through the record. It was the duty and obligation of the Arbitrator to give pre- emptory notice but in the present case the learned Arbitrator did not give pre-emptory notice indicating his intention to proceed ex parte. In other words it is the duty of the Arbitrator to inform the party that he intends to proceed with the reference at a fixed time and place whether that party attends or not. If this notice is sent and he fails to appear in such situation alone is the Arbitrator at liberty to proceed ex parte against him. If no notice of requisite nature was given, can it be said by the omission to give such notice, no prejudice caused to the respondent? In my view, the answer must be in the negative.
8. In this view of the matter, as the basic order is without lawful authority the whole structure built on it will fall on the ground, therefore, I set aside the impugned judgment and remand the case to the learned trial Court to examine the record of the Arbitrator's proceedings to find out whether the plea taken by the appellant about pre-emptory notice is proved on the record and then proceed further in accordance with law.
9. The appeal is, therefore, allowed in the terms stated above.
10. The parties are directed to appear before the trial Court on 31-7-1997.