1. A. S. CHOWDHURY, J.----This appeal and the Civil Revision Case No. 210 of 1968 have been heard together and are being disposed of by this, judgment.
2. This appeal is at the instance of defendant No. 1 Province of East Pakistan and directed against the judgment and decree passed by Mr. A. K. Faizuddin Ahmad, Subordinate Judge, 3rd Court, in Title Suit No. 82 of 1966, on 12-9-67.
3. The plaintiff's case, briefly stated, is that he was appointed a contractor for earth filling work at Kamalapur Railway Station in pursuance of an agreement entered between him and the defendant No. 1. It is claimed that the plaintiff was executing his work properly and, in fact, placed 7,49,591 a. Of earth on the site, only to be surprised by an abrupt letter dated 7-3-66, cancel--ling the contract. He further stated that he, however, continued with his work until 12th March and placed a further quantity of earth at a huge cost. It is admitted by him that he received an amount of Rs. 51,041 under four running account bills. He thereafter claimed that he was to be paid for the work already done a sum of Rs. 29,232 and he also demanded the refund of Rs. 2,400 deposited as earnest money. Abrupt cancellation of the contract entailed damages and he therefore, claimed compensation of Rs. 10,400. It is further asserted that in pursuance of the agreement for arbitration the plaintiff called upon the Arbitrator to proceed with the arbitration but as he did not take any step whatsoever, the plaintiff prayed for his removal.
4. The suit was contested by the defendants and all material allegations were denied. It was asserted that the contractor did not start the work in time and that after he started the work, he did not execute the work earnestly although reminded on several occasions and, when it was found that it would .Not be possible to complete the work by the target date because of the negligence of the plaintiff, the contract was cancelled and he was informed about it. It was also asserted that the plaintiff's work was finally measured and he signed the measurement book and the claim for loss as made by the plaintiff was fictitious and frivolous and that it was stoutly asserted that he was not entitled to any relief whatsoever.
5. On a review of the oral evidence and the material placed before the learned Judge, he reached the conclusion that the defendant No. 3, the Superintending Engineer of defendant No. 1, "failed to act with reasonable dispatch" and that the plaintiff was entitled to the reliefs prayed for. He accordingly decreed the suit on contest against the defendant No. 1, and, ex parte against the rest.
6. He ordered removal of the defendant No. 3 from the post of the sole arbitrator as prayed for by the plaintiff.
7. The plaintiff-examined himself as witness in this case and he has affirmed the statement made in the plaint. He has stated "No measurement was taken and recorded in M. B. In respect of my works from 5-3-66 to 12-3-66. In terms of contract, Rs. 30,000 is due on account of the work done by me and Rs. 2,400 on account of earnest money paid by me. I have also claimed Rs. 10,400 as compensation for illegal termination of my contract."
8. The plaint in this case was filed, it may be stated here, on 8-10-66, that is, nearly Co ur months after the Superintending Engineer was called upon to enter into the reference.
9. No one has been examined by the-defendant in support of its case.
10. Mr. Khondkar Mahbubuddin Ahmed asserts that no oral or documentary evidence was adduced by the defendant-appellant and Mr. S. A. Chowdhury, learned Advocate for the appellant, failed to point out that any such evidence was adduced on their behalf. We have, however, looked into the order-sheet and find the order dated 7-9-67 is in the following terms "Parties ready by filing hazira. The suit is taken up for hearing. P. W. 1 Md. Abdur Rashid examined and cross-examined. Documents filed marked Exhs. 1 and 2 for the plaintiffs. Evidence closed. To 9- 9-67 for argument."
11. This order indicates that the assertion made by Mr. Ahmed is correct.
12. Be that as it may, the question before us is if the arbitrator is liable to be removed as prayed for.
13. The claim for removal is founded on subsection (1) of section 11 of the Arbitration Act. I read it now : "The Court may on the application of any party to a reference, remove an arbitrator, or umpire who fails to use all reasonable despatch in entering on and proceeding with reference and making the award."
14. On a perusal of the plaint and the written-statement it is clear to us that the dispute had arisen between the two parties who agreed to an arbitration in case such a dispute arose between them.
15. It is also clear that the plaintiff addressed a letter dated 21-6-66, to the Superintending Engineer, Dacca (Building) Circle 11, Dacca, Segunbagicha, Dacca 2, on arbitration regarding earth work in Gr.
16. 1 in the Kamalapur Station Yard, Turn Table and Loco Shed area. This letter is marked Exh. 1 and printed at page 37 of the Part II of the paper book. That letter reads as follows :- "With reference to our letters mentioned above, we write to inform you that disputes have arisen between the two parties to the contract in respect of the works noted hereinabove and that the said disputes are presenting due to the failure of the Executive Engineer to act bona fide and according to law.
17. We are attaching herewith one statement of our claims showing the amount due to us against the works in question and the same is not being paid to us in spite of repeated demands and requests.
18. On the contrary, it appears that a final bill has been drawn up at the instance of the Executive Engineer in utter disregard of facts and violation of law and rules on the subject to our great detriment and loss. Further withholding of our funds have been causing us serious injury and damage.
19. We, therefore, hereby call upon you to constitute yourself as the sole Arbitrator in the matter in terms of the contract, enter into the reference to hear the parties and make and sign your Award in respect of our claims against the works in question and we give you notice that on your failure to enter into the reference within two weeks from the date of receipt of this notice, we shall be free to take necessary steps for enforcement of our rights under the contract, as we may be advised."
20. Mr. S. A. Chowdhury learned Assistant Government Pleader appearing for the appellant submits that no reference was at all made, and the letter quoted above is a complete answer to his contention.
21. Next argument made by the learned Assistant Government Pleader is that the reference was incompetent inasmuch as it was signed by the plaintiff as proprietor of Rashid Brothers and Company. Mr. Ahmed's contention, however, is that the plaintiff signed in the same manner as he did in the contract itself. We have checked the contract and we have found that the plaintiff signed as proprietor of a firm on the contract also. Therefore, this contention has also no substance.
22. Next point urged by the learned Assistant Government Pleader is that the arbitrator did not fail to act with reasonable dispatch. His contention is that 4 months did not elapse from the date of issuing the letter, Exh. 1 and as such it cannot be said that the arbitrator failed to act with reasonable despatch. He also relies on some decisions to which reference is not necessary for they were not under section 11 of the Arbitration Act and as such we have no intention to burden our judgment with decisions which are not applicable to the relevant section of the statute. When we asked the learned Assistant Government Pleader, he submitted that he could not get any decision on section 11 of the Arbitration Act. But his contention is that the reasonable time would be a much longer time than 4 months and, therefore, the arbitrator did not merit his removal in this case. He also attempted to derive support from section 3 of the First Schedule of the Act to his argument that at least 4 months should have elapsed before the arbitrator was called upon to enter on a reference. Mr. Khondkar Mahbubuddin Ahmed in reply to this contention says that if section 3 of Schedule 1, is properly read it would be seen that the order of removal has been rightly passed. So far as the entering on the reference is concerned it is to be within four months. He elaborates his contention by saying that the arbitrator on receipt of the notice should have taken some step in the matter and he argues his client waited until four days before the expiry of four months and he cannot wait longer than four months, for, after that period the arbitrator would not be entitled to make any award. This contention of Mr. Ahmed, in our opinion, is of substance. Section 3 of First Schedule reads as follows "The arbitrators shall make their award within four months after entering on the reference or after having been called upon to act by notice in writing from any party to the arbitration agreement or within such extended time as the Court may allow."
23. It will, therefore, be seen that the arbitrator did not comply with the requirements of section 3 of First Schedule on which reliance was placed by the learned Assistant Government Pleader for, in that section it was clearly stated that an arbitrator shall make his award within for months "after having been called upon to act by notice in writing from any party to the arbitration". We have just seen that he was called upon to act on 22-6-66 and the law required him to make the award within four months from that date. In view of his silence for such a long time, it is rightly urged that he has failed to use all reasonable dispatch in entering on the reference. It should be realised that he has to make the award within four months after having been called upon to act. The arbitrator is to act with promptitude. Moreover, he was requested by the letter Exh. 1 to enter on the reference within weeks from the date of the receipt of that letter. These facts clearly indicate that he failed to use all reasonable despatch in entering on the reference for the purpose of making an award. That being so, the arbitrator was liable to be removed. I would at this stage say that section 3 of the Act says ---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."
24. The applicability of section 3 of the First Schedule is there--fore, clear. The Assistant Government Pleader himself also relied on section 3 of First Schedule. It is indeed attracted by the section 3 of the Act. The learned Subordinate Judge also recorded a finding "that the defendant has not acted with reason--able despatch" and we are in complete agreement with this finding of fact.
25. The learned Assistant Government Pleader has also argued that the arbitrator not having expressed his willingness to accept the reference, he could not be asked to enter on the reference.
26. This contention is also without substance. The arbitrator has been named in the contract itself and the arbitrator is an employee of the first party of the contract and he has been named by the designation. Therefore, in this case the question of consent does not arise. We are, therefore, of opinion that the learned Judge was right in ordering the removal of the arbitrator, as he found that he failed to act with all reasonable despatch as required bylaw.
27. Mr. Ahmed also raised a preliminary objection as to the maintainability of this appeal by reason of the provision of section 39 of the Act, although we have expressed our opinion on merits and we have affirmed the order of the learned Subordinate Judge, we would like to express our opinion on the question of maintainability. We are of opinion that the appeal does not lie. But in the interest of justice we have treated the appeal as an application under section 115 of the Code of Civil Procedure.) It is a well recognised principle of law that an appeal is a creature of the statute. In this case the impugned order was passed under section 11 of the Act against an order of removal of C an arbitrator. Section 39 provides for an appeal only against certain specified matters, in none of which this impugned order is referred. In that view of the matter we have held that the appeal is non-maintainable and convert it as an application under section 115 of the Code of Civil Procedure as stated above.
28. This revisional application is therefore rejected and the judgment and order of the learned Subordinate Judge passed on 12-9-69 removing defendant No. 3 is affirmed.
29. One other point regarding incompetency of the appeal by reason of Clause 17 of the contract is that there was no occasion for making reference, for the security deposit would be refunded, the bail would be finalised and other connected matters would be disposed of only six months after the completion of the work and after granting of the final certificate. This ground is devoid of substance, for, the plaintiff is aggrieved by the abrupt cancellation and after the cancellation by the defendant No. 1, the plaintiff cannot be asked to wait for six months as required by clause 17 of the cancelled contract. The learned Assistant Government Pleader is of opinion that the allegations made in the plaint would show that it would be an appropriate case under sections 8 and 9 of the Act and not under section 11 of the Act. We are of opinion that this contention is without any force whatsoever. Sections 8 and 9 enable the parties to appoint a new arbitrator in place of one who neglects or refuses to act. Section 11 makes provision for removal when a person fails to use all reasonable despatch and the findings of fact arrived at by the trial Court and affirmed by us in this case clearly indicate that subsection (1) of section 11 of the Act is the appropriate section under which the relief should be asked for and the plaintiff rightly invoked the aid of subsection (1) of section 11.
30. Mr. S. A. Chowdhury, learned Assistant Government Pleader, also presses the revisional Application No. 210 of 1968. In this application the order called in question is in the following terms and it is quoted in extenso "The matter for appointment of an arbitrator is taken up for consideration. The defendants do not suggest any name in writing. The learned G. P. Suggest verbally that Mr. K. M. Hassan a retired Judge of the High Court may be appointed arbitrator. It is brought to my notice that Mr. K. M. Hasan is going to the world Court. Let Mr. Habibur Rahman Sharif Advocate High Court be appointed Arbitrator to arbitrate over the claim in dispute between the parties and make an award by 4-12-
67. Let a writ of Arbitrator be issued accord--ingly. Arbitrator will get his remuneration on submitting his Bills in due time."
31. We have already seen that the Superintending Engineer was removed by an order made on 12-9-
67. Thereafter a prayer was made for appointment of an Arbitrator. The learned Judge appointed Mr. Sharif an Advocate of the High Court. A verbal suggestion was made for appointment of Mr. Justice Hasan but it appears that it was brought to the notice of the Court that he was going to the world Court. Since there was no statement to the effect that the consent of Mr. Justice Hasan was obtained, it was safer for the learned Judge to appoint Mr. Sharif. At any rate, it was a matter of discretion and we cannot say that the learned Judge erred in law in appointing Mr. Sharif when a mere verbal suggestion was made for appointment of Mr. Justice Hasan and when it was also intimated to the Court that there was possibility of Mr. Justice Hasan being away from the country.
32. There was no challenge to that intimation. At any rate, this in our opinion cannot be brought within the ambit of section 113 of the Code of Civil Procedure. It is taken in ground No. 1 that the learned Judge acted beyond his jurisdiction in refusing to appoint Mr. Justice Hasan. It seems to us that this ground is a misconceived one for the learned Judge never refused to appoint Mr. Justice Hasan. He did not appoint him in view of an intimation of the possibility of his being away from the country having been conveyed by someone in the proceeding. At any rate, no Judge acts beyond his jurisdiction, if he appoints someone in preference to another persons whose consent was not obtained.
33. Next ground taken in the revisional application is that the "Court below ought to have appointed any one of the retired Judges of this Hon'ble Court to act as an arbitrator in the matter". We cannot set aside the order of appointment for we are not aware of any law or any rule or any precedent or any principle which requires that a retired Judge of this Court must be appointed as an arbitrator.
34. Another ground taken is that "a qualified Engineer or the Superintending Engineer ought to have been appointed as Arbitrator in the fitness of the case". A person who is in the profession of law has to acquire some experience in all spheres of life, and r s such a lawyer would be able to deal with the matter also. Moreover, there is also a view that a person who is not a specialist on the subject may take a detatched view of the matter and his vision will be guided by a broad outlook. This ground is also of no substance whatsoever.
35. Another grievance made in the petition is that "the learned Court below acted beyond its jurisdiction in appointing Mr. Habibur Rahman Sharif, Advocate an Arbitrator in spite of serious objection on behalf of the defendant-petitioner." We have set out the order in extenso and it does not appear that any objection was taken to his appointment far from any `serious objection'. Mr. Ahmed on the other hand urges that initially the defendant submitted to arbitration by Mr. Sharif, for, an applica--petition was made to him for extension of time for filing written --statement. The three grounds noticed above did not appear to have been taken before the learned trial Court. At any rate, we have considered them and indicated why they are devoid of substance.
36. We, are, therefore, of opinion that this revisional application is a frivolous one and it is rejected and the Rule is accordingly discharged without any order as to costs.
37. NURUL ISLAM, J.-I agree.