' Mr. Ali Muhammad G. Shaikh, Secretary, Ministry of Housing and Works. Government of Pakistan, Islamabad had directly sent this award by registered post addressed to a learned Judge of this Court (Syed Deedar Hussan Shah, J.) whereafter the office treating the same to be proceedings under Rule 282 of the Sindh Chief Court Rules (D.S.) read with section 14(1) of the Arbitration Act, 1940 has treated the same as suit. Pursuant to a notice from this Court, the plaintiff has filed his objections (C.M.A. No,4609 of 1996) to the Award.
2. In an earlier Suit bearing No,422 of 1994 the present plaintiff filed an application under section 20 of the Arbitration Act, 1940 (hereinafter referred to as the Act, 1940), for filing of arbitration agreement in Court and for referring the dispute to one sole Arbitrator. On 5-10-1995, by consent of the parties the dispute was referred to the sole arbitration of the Secretary, Ministry of Housing and.
Works, Government of Pakistan, Islamabad. Pursuant to the said order the learned Arbitrator had sent this award dismissing the claim of the plaintiff. Following is the operative portion of the Award, dated 25th July, 1996.
"...Therefore, I, Ali Muhammad G. Shaikh, Secretary, Ministry of Housing and Works, appointed as sole Arbitrator by the Sindh High Court at Karachi in Suit No,422 of 1994 render and announce my award whereby I hold the plaintiff (M/s. Eastern Services (Pvt.) Ltd. Failed to furnish any claim. A copy of the plaint provided by the defendant does not specifically contain any claim in specific terms and it appears that the suit was filed to obtain a preventive order from the Court in respect of encashment of bank guarantee. In the absence of any specific claim, contained in the plaint and for want of any proof on the part of the plaintiff, I hereby reject the suit."
3. I have heard Mr. S. Irtiza Hussain Zaidi, for the plaintiff. The defendant has filed reply to the objections of the plaintiff on 3rd October, 1996 and supported the Award but thereafter, they tried to come forward to plead their case before this Court despite issuance of several notice. It was contended by Mr. S. Irtiza Hussain Zaidi that no notice was served upon the plaintiff for appearance before the Arbitrator. This claim has been raised in the objections (C.M.A. 4609 of 1996) which has been verified on solemn affirmation. It was further argued that the learned Arbitrator has not complied with 'the requirements of Rule, 282 of the Sindh Chief Court Rules (O.S.). In Rule 282(1) it is provided that Arbitrator or the umpire, as the case may be, shall also send, with the award a copy of arbitration agreement, the depositions and documents which may have been taken on record and proved and also a copy of notice given to the parties together with receipt or acknowledgment thereof. It is an admitted position that the learned Arbitrator his not forwarded to this Court the file of the proceedings in order to ascertain whether any notice was issued to the plaintiff; if so, in what manner, and whether it was served or not. In absence of the original file of the arbitration proceedings, it could not be judicially determined whether the plaintiff was served; and whether defendants were present before him and if so, on what dates. No material is available to ascertain in what manner has hearings before the Arbitrator was conducted.
4. It is to be noted that the office vide note, dated 5th August, 1996 pointed out the above defect in the following words.
"The Arbitrator has forwarded the original award (Two stamp papers) addressed to My Lord Mr. Justice Deedar Hussain Shah and the same was received by this Branch on 30-7-1996.
' It is submitted that the Award submitted by the Arbitrator is not in accordance to Rule 282 of Sindh Chief. Court Rules (O.S.).
' Perhaps the Award be returned to the Arbitrator for submitting the same as per rule mentioned above."
5. In view of the above office objection the Additional Registrar O.S.(I) issued direction calling file of arbitration proceedings alongwith depositions, documents and the copy of notice given to the parties alongwith receipt and acknowledgment thereof. Despite passing of more than three years learned Arbitrator has not forwarded the same to this Court.
6. In alternative it was further contended by Mr. I.H. Zaidi that it was only one date i,e,, 23rd July, 1996 when the plaintiff could not appear before the Arbitrator which fact is reflected in the Award itself.
The learned Arbitrator proceeded in haste and only after two days i,e,, 25th July, 1995 passed the impugned award without further notifying the parties of his intention to pronounce award which act is not sustainable in law. Reliance is placed by Mr. I.H. Zaidi on section 14(2) of the Act, 1940. For convenience sake provisions of section 14(2) of the Arbitration Act, 1940 is reproduced as follows:-- - ' Section 14.---(1) .............................
(2) The arbitrators or umpire shall at the request of any party to the arbitration agreement or any person claiming agreement or any person claiming under such party or if so directed by the Court and upon payment of the fees and charges due in respect of the arbitration and award and of the costs and charges of filing the award, cause the award or a signed copy of it, together with any depositions and documents which may have been taken and proved before them, to be filed in the Court, and the Court shall thereupon give notice to the parties of the filing of the award.
(3) ."
(Emphasis laid).
7. A perusal of subsection (2) of section 14 of the Act, 1940 will show that the arbitrators or umpire, as the case may be, shall also send together with the award any deposition and documents which may have been taken on record and proved before him. The legislatures have not provided any consequences for not sending these records alongwith award to the Court. These requirements alongwith some other items were incorporated in Rule 282 of the Sindh Chief Court Rule (O.S.). Therefore, 282(1) requires that alongwith above said documents, the arbitrators or umpire shall also .Submit a copy of the notice given to the parties together with receipts or acknowledgment thereof. Mr. I.H. Zaidi has not addressed on the point whether this direction is directory or mandatory. However, I am fully conscious of an earlier decision of this Court in Messrs Overseas Cotton Company v. Messrs S.M. Fuzail & Company (PLD 1958 (W.P.) Karachi 27 at 28) where the objection of non-compliance of section 14(2) and Rule 282 was answered in the following manner: "..So far as the first objection is concerned, the contention of Mr. Ibadatyar Khan was that the Umpire was required under the Sindh Chief Court Rules as also under subsection (2) of section 14 of the Arbitration Act to file the award together with any depositions and documents which may have been taken and proved before him. The Umpire no doubt, has failed to comply with this provision, but, to my mind, this is a mere irregularity and does not affect the merit of the case. Moreover, this objection is a belated one which had not specifically been taken in the grounds of objections. If it had been so taken, the other side may have called upon the Umpire to file the documents that may have been with him...."
8. In Messrs M.A. Rashid & Company v. The Punjab Small Industries Corporation and another (PLD 1986 Lah.254), the Lahore High Court has taken another view and went to the extent of holding that section 14(2) contemplates that the award has to be filed alongwith depositions and documents which may have been taken and proved before the arbitrator and it is only after the filing of the award alongwith deposition and documents that the Court can give notice to the parties of the filing of the award. To elaborate this view, the Lahore High Court has made the filing of these documents precondition for filing an award in the Court. There may be some cases where sending of deposition and other documents may not be relevant but where one of the parties to the proceedings has raised objection that he was condemned unheard and was deprived of his rights to the principle of natural justice, then in order to resolve this controversy, it is necessary that a reference be made to the case file of the arbitration proceedings. In the instant case, it is alleged by the plaintiff that only one notice was issued and that he was never served in respect of subsequent proceedings. This question can only be adjudicated upon after making reference to the file of the Arbitrator which is not available in the instant case.
9. There is another angle to look at this case. From the Award, it is apparent that the first date of hearing was fixed on 23rd July, 1996 and the award was announced on 25th July, 1996. It is clear that no second notice for the second date of hearing was issued to the plaintiff. Nowhere in the reasoning of the award it has been mentioned by the Arbitrator that notice was given to the parties for proceeding ex parte and for making of award. This question was dealt with earlier by this Court in the case of Progressive Methods (Pvt.) Limited v. Shaheen Air Port Services and others (1998 CLC 1638) where it was held that an Arbitrator could not non-suit a party for his single default. It was further held that as a rule of prudence -and convenience, an arbitrator should express his intention to proceed ex parte by issuing further notice to a defaulting party. Reference was made to para.590 page 306 of Volume II Halsbury's Laws of England 4th Edition and several other decisions from Indian jurisdiction. In the aforesaid circumstances, I am of the considered view that it was not just and fair on the part of learned Arbitrator to non-suit the plaintiff for his single default in appearance when he has forwarded reasons for his inability to reach Islamabad within time through a telegram and thereafter, to proceed in haste within 48 hours by dismissing the claim of the plaintiff.
10. As a result of above discussion, I am of the considered view that these are the errors apparent on the face of record which fully warrants interference of this Court. Accordingly, the award, dated 25th July, 1996 is hereby set aside and remanded back to the same Arbitrator . To conduct the proceedings strictly in accordance with the provisions of Arbitration Act, 1940 and to re-submit his award within a period of 4 months.
11. Suit stands disposed of alongwith listed application in view of .The above direction.