1. Perma Construction (Pvt.) Limited, petitioner herein,challenged the appointment of Mr. Muhammad Tahir Chaudry. Advocate as sole Arbitratior by filing a petition under sections 5, 11, 12 and 20 of the Arbitration Act, 1940, in the Civil Court, Lahore. The petition was contested by the respondents and the Learned Civil Judge, Lahore by an order dated 24-5-1994 dismissed the petition. Hence this revision petition.
2. Admitted facts between the parties are that petitioner Messrs Perma Construction (Pvt.) Limited in December, 1990 entered into a contract with respondent No,1 Oberoi Textiles Limited, whereby the petitioner-Company was asked to construct main building and other unit of the Mills and a Housing Colony. It is stated thatthe petitioner started construction of work in February, 1991. The work was in progress when respondent No, I stopped making the payments and ultimately forcibly took over the possession of the site on 31-12-1991. It is also alleged that the respondent took over the machinery and equipment and materials of the petitioner. The petitioner issued a notice for arbitration to the respondent and without replying the notice the respondent informed the petitioner that Mr. Muhammad Tahir Chaudry, Advocate, Lahore has been appointed as sole Arbitrator. The petitioner challenged the appointment of Mr. Muhammd Tahir Chaudhry as sole Arbitrator by filing a petition under sections 5, 11, 12 and 20 of the Arbitration Act, 1940, in the Civil Court, Lahore, the same was contested by the respondent and the learned Civil Judge by an order dated 24-5-1994 dismissed the petition.
3. The learned counsel for the petitioner has argued that the Civil Judge has failed to consider that the appointment of the Arbitrator was to be regulated between the parties under clauses 3.18.1 of the agreement. According to him, the order of priority of appointment of a specific arbitrator was given which was that the Arbitrator shall be a retired Judge of Supreme Court of Pakistan or of High Court or an Advocate having not less than 10 years standing.According to the learned counsel, under the above-stated clause it was incumbent on the respondent that first they were to appoint a retired Judge of the Supreme Court or of the High Court and in case a Judge of the Supreme Court or High Court was not available, only then the Advocate could have been appointed. Further argued that under the clause of the agreement the venue of the arbitration was Karachi and therefore, the appointment of the Advocate as sole. Arbitrator from Lahore was not warranted.
4. Reliance has been placed on the case reported as Messrs Manor Singh Sahat & Company v.
5. Jaugindera Singh Kalra and another, AIR 1984 Patna page 3.
6. Conversely, the learned counsel for the respondent has argued that under the above stated clause of the Arbitration Agreement, i,e, 3.18.1 the appointment of an arbitrator was a right to be exercised by respondent No,1 and according to the arbitration agreement there is a condition precedent that in case of any dispute between the parties the matter shall be referred to an Arbitrator, who shall be retired Judge of Supreme Court or of High Court or an Advocate High Court or Supreme Court having not less than 10 years standing. According to him, in the instant case the Advocate having 10 years standing in the field was appointed as Arbitrator and his appointment was in accordance with the terms and conditions mentioned in the arbitration agreement. Further argued that the word "or" appearing in the agreement would be disjunctive and not conjunctive and anyone of the three persons, i,e, a retired Judge of the High Court or Supreme Court or an Advocate having standing of 10 years could have been appointed as sole Arbitrator. Reliance has been placed on the case of Ahad Yousaf reported in 1986 CLC 1284; and the case Hakim Ali Bhatti v. Qazi 'Abdul Hakim 1986 CLC 1784. Further argued. that the Court has power under sections 5 and 11 of the Arbitration Act (X of 1940) to remove the Arbitrator on the ground that the Arbitrator has failed to use all reasonable despatch in entering and proceeding with the reference and making .Award, and secondly where he misconducted himself or proceeding. The learned counsel argued that the Arbitrator cannot be removed on the ground of his appointment being not according to the wishes of the petitioner. Reliance has been placed on the case reported as Province of the Punjab and others v. Messrs Industrial Machine Pool, Lahore PLD 1978 Lahore 829.
7. It is admitted position between the parties that according to the arbitration agreement in case of any dispute between the parties the matter shall be referred to an Arbitrator who will be appointed by the respondent and he shall be retired Judge of Supreme Court or of High Court or an Advocate of Supreme Court or of High Court having not less than 10 years standing. There is no aispute about the fact that Mr. Muhammad Tahir Chaudhry, Advocate High Court is not disqualified having ten years standing in the field to be appointed as sole Arbitrator and his appointment was made by the respondent under the terms of the agreement. The argument of the learned counsel for the petitioner that it was incumbent upon the respondent that first they were to appoint a retired Judge of the Supreme Court or High Court and on non-availability of the Judge only then the Advocate could have been appointed has no force because in clauses 3.18.1 of the agreement, it was stated that the retired Judge of the Supreme Court or High Court or an Advocate could have been appointed.
8. 'I have lifted the meaning of the word 'or' from the Concise Oxford Dictionary, according to which 'or' is meant as under:- " 'or' Conj. Introducing second of two alternatives (white or black)."
9. The word 'Or' came for interpretation in the case of Ahad Yusuf 1986 CLC 1284 and Hakim Ali Bhatti v. Qazi Abdul Hakim 1986 CLC 1784. In Ahad Yousaf' case was an election matter before the Chief Election Commissioner and while interpreting section 37(5) of the National and the Provincial Assemblies Ordinance (XI II of 1970) clauses (a) and (b) it was held:- "The use of the word 'or' between the two clauses of subsection (5) of section 37 is disjunctive and not conjunctive and the remedy, therefore, as provided by this provision is alternate coeval and co-existent."
10. Similar interpretation 'of the word 'or' has been made in the case of Hakim Ali Bhatti v. Qazi Abdul Hakim (supra) and while interpreting. the provisions of representation of the Peoples Act, (LXXXV of 1976) meaning of word 'or' has been given as under:- "Meaning of word 'or', held, would he used to indicate alternative between different or unlike things."
11. In view of the above, the contention of the learned counsel for the petitioner that it was incumbent on the respondent that first they were to appoint a retired Judge of the Supreme Court or High Court and in case of non-availability of the Judge only then the Advocate could have been appointed is repelled.
12. The Arbitrator appointed under the Agreement is not revocable except with the leave of the Court uncle- sections 5 and 11 of the Arbitration Act (X of 1940) unless contrary intention expressed in the arbitration agreement. However, Arbitrator can be removed by a Court only on two grounds, viz (1) failure to use all reasonable dispatch in entering on or proceeding with reference and making Award, and (2) where he mis-conducted himself or proceedings. The case of Manor Singh & Company (supra) is not helpful to the petitioner, because it was held in the said case that the Court can exercise power for appointment of a new Arbitrator in place of, named Arbitrator if the arbitrator neglects to act for a long time. In the case reported as Province of Punjab and ' others (supra) this Court while interpreting section 5 and 11 of the Arbitration Act (X of 1940) held:- "Arbitrator or umpire, however, can be removed by Court only on two grounds, viz. failure to use all reasonable dispatch in entering on and proceeding with reference and making award and secondly where he misconduct himself or proceedings."
13. In the present case, the arbitration proceedings have not yet been started, therefore, the above stated grounds are, not available to the petitioner.
14. As far as the venue of the proceedings at Karachi is concerned, there is no dispute about the fact that the Arbitrator shall take the proceedings 'in Karachi as it agreed between the parties in the agreement.
15. In the impugned order dated 24-5-1994 passed by the Civil Judge, Lahore, neither any detect of jurisdiction has been pointed out be the learned counsel for the petitioner nor there is any illegality or irregularity committed by the learned Civil Judge. Therefore, no interference is called for in exercise of revisional jurisdiction of this Court under section 115, C.P.C.
16. For what has been discussed above, this revision petition has no force and the same is dismissed.