B.Dayal, J. - (1.) THESE seven First Appeals From Orders have been connected together as common questions of fact and law arise in all these cases. The appellant in all the cases, Shri Om Prakash, entered into certain contract with the military department during war period, in respect of which, there were disputes and according to an arbitration clause in the agreement the matter was to be referred to an arbitrator. In appeals Nos. 220, 221, 223 and 224 of 1952 the contracts provided for arbitration by the Director of Farms General Head Quarters, Simla, in appeals Nos. 222 of 1952 and 226 of 1962 the Officer-commanding Lucknow was to be the arbitrator and in appeal No. 225 of 1952 the contract provided that the arbitrator would be a certain Quarter Master at Delhi, The case of the appellant is that all these posts were abolished after the war and the officers mentioned in the respective agreements did not exist. Consequently, the appellant talked over the matter with the military officers and it was agreed that some new arbitrator had to be appointed. For this purpose the appellant filed seven applications in respect of the seven agreements under Section 8 of the Indian Arbitration Act for appointment of an arbitrator. In each of these applications it was alleged that the relevant posts had been abolished, that it had been agreed that a fresh arbitrator be appointed and such an arbitrator could be out of one of the three names agreed to between the parties. The prayer ultimately in those applications was : "One of the above mentioned officers mentioned in paragraph 8 be appointed to act as an arbitrator who shall have like power to act in the reference and to make an award as if he has been appointed by the consent of parties." This was simply an application under Section 8 of the Arbitration Act for the appointment of an arbitrator. The effect of such an appointment has been provided for in Sub-section (2) of Section 8, the relevant part of which is as follows: "Who shall have 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." THESE words had been repeated in the prayer of the applications themselves. The position was therefore quite clear to the parties that the effect of appointment of the arbitrator in pursuance of those applications would merely be substitution of a new arbitrator in each of the seven agreements for the names mentioned therein. There was, however, no prayer whatever asking the Court to refer the matter to such an arbitrator. On the 13th of February, 1950 the Court appointed Col. Ranbir Singh as an arbitrator in all the seven cases and farther directed that all the papers be sent to the arbitrator and he was to give his award within two months from that date. A parwana was to be sent to the arbitrator. Obviously this part of the order directing a reference to the appointed arbitrator by the Court was wholly without jurisdiction. After appointment of the arbitrator the Court became functus officio. It was for the parties to approach the arbitrator and to make the reierence. However, Col. Ranbir Singh received pleadings of the parties and fixed some dates for the hearing. On the 24th of October, 1950 the Government Counsel wrote to Col. Ranbir Singh that he should return all the papers to the Court and not to proceed with the arbitration as he was considered unable to decide questions of law that would be involved. Accordingly Col. Ranbir Singh returned the papers to the Court and on the 27th of October, 1950 the Court asked for new names without giving any information of this order to the appellant. On the 3oth of October, 1950, the appellant made an application asking the Court to review its order dated the 27th of October, 1950. Before this review application could be decided, the defendant proposed three names on the 3rd of November, 1950. On the 18th of November, 1950 the Court rejected the review application holding that Col. Ranbir Singh had himself refused to act and it was just and proper that the work should be done by another arbitrator. Both the parties filed their independent list of arbitrators which did not contain any common name. After hearing counsel for both the parties, the Court ordered on the 13th of February, 1951 that D.O.F.G.H.Q. Simla be appointed arbitrator in all the seven cases. It further directed that all the cases be referred to him and he must file his award within one month. The papers appear to Have been forwarded to the D.O.F.G.H.Q. Simla and Brig. H. L. Bhandari claiming" to be the relevant officer gave notice to the appellant that he should appear with all his papers and evidence before him in Meerut, fixing 2nd of May, 1951 as the date of hearing. This notice was issued on the 5th of March, 1951 and was received by the appellant on the 8th of March, 1951. On receipt of this notice, the appellant applied to the Court on the 8th of March, 1951 that the order appointing D.O.F.G.H.Q. Simla as an arbitrator be reviewed and among others the main ground indicated was that this officer had already been mentioned as an arbitrator in four of the agreements but since office had been abolished it had become necessary to appoint a fresh arbitrator. Since there was no such office, the appointment of any person by that designation was improper. The appellant, however, did not apply to the Court along with this application for stay of proceedings before the arbitrator. The result was that the arbitrator continued his activities and actually reached Meerut on the date fixed. Instead of applying to the Court for stay of proceedings, the appellant sent a letter to the arbitrator saying that he had applied for a review of the order by which he was appointed an arbitrator, that he had no confidence in him and that he should not proceed further in the matter of arbitration. The arbitrator replied that he had been asked by the Court to decide the matter and he would continue to do his duty unless the Court ordered otherwise. This reply of the arbitrator was received by the appellant either on the 1st or and of May, 1951. After receipt of this reply, the appellant made an application to the Court on the 4th of May, 1951 for stay orders. The Court ordered that further proceedings before the arbitrator be stayed. But when the order reached the arbitrator he had already made the ex parte awards and same day they were filed in Court. Against these awards the appellant made seven applications for setting aside of the awards on the 24th of May, 1951 in which a number of grounds were taken. But it is not necessary to refer to all of them. Objections to the awards were rejected by the Court and a decree was passed in terms thereof. Against this order, the appellant has filed these appeals.
(2.) THE first question raised by the learned counsel for the appellant is that under Section 8 of the Indian Arbitration Act the parties could not appoint a man of their own choice and therefore the appointment of Col. Ranbir Singh as an arbitrator was itself invalid. That point, however, need not be decided in detail. It is enough to say that the appointment was made by the Court and it is not relevant whether the man appointed had been chosen by the parties or not. Moreover Col. Ranbir Singh having returned the papers there is no use going into the question whether his appointment was valid. The second question raised by the learned counsel is that the removal of Col. Ranbir Singh by the Court was wrong. This point also does not need much discussion. On receipt of the letter from the Government Counsel Col. Ranbir Singh himself returned the papers and refused to act as an arbitrator. In these circumstances there was no question of his removal by the Court. Nobody had applied for his removal and the Court had not passed any order removing him.
(3.) THE third point contended for by the counsel for the appellant is that Brig. Bhandari was never appointed as an arbitrator and he had no jurisdiction to take up the matter. As stated above, the Court had not appointed any person by name but had appointed D.O.F.G.H.Q. Simla. Whether Brig. Bhandari was the officer having that designation is a question of fact and whether he had the authority to act as such will depend upon the finding whether he was an officer of that designation. Brig. Bhandari has been produced as D. W. 4, He has stated that he was holding the post of the Director of Farms (D.O.F.) General Head Quarters Simla at the time when he received the papers. But in cross-examination he stated that at the time of agreement there were two independent corps, one called the Veterinary and Remount and the other Military Farms Department. Each one had a Director of its own. After the war both these corps were amalgamated and the new corps is now known as Remount Veterinary and Farms and he is the Director. This statement shows that Brig. Bhandari was the Director of the new corps that came into existence in 1947-48 and the old corps of the Military Farms was completely abolished. Since the corps itself whose Director was called the D.O.F. was abolished, it is difficult to say that the Director of the new amalgamated corps who may now be called the Director of Remount and Veterinary Farms is the same officer who was called the Director of Farms. If the position had been that the two corps had remained in existence and the same person had been appointed Director of both the corps it was possible to hold that Brig. Bhandari was the Director of Farms and was also at the same time Director of the Veterinary and Remount. But the corps themselves having been abolished, we are of opinion that there remained no officer who could be called the Director of Military Farms. THEre is therefore force in this objection raised by the learned counsel for the appellant. THE contention of the respondent which was acceptable to the Court below, that mere amalgamation of the two posts in the same officer does not mean that the post of the Director of Military Farms has been abolished, is not correct. Since the Court appointed the Director of Farms as the arbitrator at the time when there was no Director of Farms, Brig. Bhandari had no jurisdiction to take up the matter and assume duties of an arbitrator.;