Mithal J. - (1.) THIS is a Civil Revision converted from an appeal directed against the order of the Civil Judge, Roorkee at Saharanpur by which he allowed the application by the respondent-applicant moved under Sections 5, 8, 12 and 13 of the Indian Arbitration Act under Section 5 and has appointed one Sri Hukum Singh, retired Chief Engineer of the Punjab P.W.D. as an Arbitrator in his place. The Union of India has come up in appeal.
(2.) A preliminary objection was taken on behalf of the respondent applicant that an appeal does not lie against the order purporting to be under Section 5 of the Arbitration Act. Section 5 of the Arbitration Act reads as under : "The authority of an appointed arbitrator or umpire shall not be revocable except with the leave of the court, unless a contrary intention is expressed in the arbitration agreement." Section 39 of the Act provides for appeals and it reads as under : Section 39(1). An appeal shall lie from the following orders passed under this Act (and from no others) to the court authorised by law to hear appeals from original decrees of the Court passing the order :- An Order :- (i) superseding an arbitration; (ii) on an award stated in the form of a special case; (iii) modifying or correcting an award; (iv) filing or refusing to file an arbitration agreement; (v) staying or refusing to stay legal proceedings where there is an arbitration agreement; (vi) setting aside or refusing to set aside an award; Provided that provisions of this Section shall not apply to any order passed by a Small Cause Court. (2) No second appeal shall lie from an order passed in appeal under this Section, but nothing in this Section shall affect or take away any right to appeal to the Supreme Court". The order which is appealed against is one for granting leave to the respondentapplicant to revoke the authority of the appointed Arbitrator and for appointing another Arbitrator in his place. The nature of none of these orders is covered under sub-cls. (i) to (vi) of Section 39 set out above. It is quite obvious that an order granting leave to party to revoke the authority of an appointed Arbitrator is not appealable. Even the order appointing another Arbitrator is not appealable. In our opinion, therefore, the preliminary objection is correctly taken and no appeal lies from the order under consideration. At this stage the learned counsel for the appellant moved an application for permission to convert the appeal into a revision. After having heard the learned counsel for the parties at length and also taking into account the matters of importance involved in the case, we deem it proper to allow this application and permit the appellant to convert his appeal into a revision. It is needless to say that the scope in the revision would he much narrower than in the appeal and we will confine ourselves to the jurisdictional, error, if any, committed by the trial court.
(3.) THE learned counsel for the Revisionist firstly argued that the respondent-applicant had no right to revoke the authority of the appointed Arbitrator because the Arbitrator had not been appointed by the parties. On the other hand he contended the Arbitrator had been appointed by the Additional Chief Engineer C.P.W.D. as provided in Cl.25 of the Contract. THE contention of the learned counsel for the petitioner is that the right under S.5 to revoke an authority of an Arbitrator has been given only to the parties and to no one else. Since in the instant case the Arbitrator had been appointed not by the parties themselves but by the Additional Engineer C.P.W.D. as their nominee, the parties as such have no right to revoke the authority of the Arbitrator. THE learned counsel for the respondent, however, has urged before us that parties contemplated in Section 5 means the parties to the arbitration agreement. Our attention has been drawn to Section 4 of the Arbitration Act which reads as under : "THE parties to an arbitration agreement may agree that any reference thereunder shall be to an arbitrator or arbitrators to be appointed by a person designated in the agreement either by name or as the holder for the time being of any office or appointment". It is argued that the word 'parties' used in the Section contemplates only the parties to the arbitration agreement and has not been used in respect of the 'person' who is authorised by them to appoint an Arbitrator on their behalf. For such a 'person' the word 'person' has been used in this Section. On the analogy of Section 4 it has been argued that it is the parties who appoint the Arbitrator either by themselves or through the employment of some other agency agreed to by them. Nonetheless the appointment of the Arbitrator is solely done by the parties themselves. After careful consideration of the provisions of the Ss.4 and 5 of the Arbitration Act we are of the view that the contention of the learned counsel for the respondent is correct. The person who has the authority to appoint has always got the authority to withdraw or to revoke the appointment. The parties cannot be left without remedy in such a case. We are, therefore, of the view that the parties or any of them were fully competent to apply for leave of the Court under S.5 to revoke the authority of the appointed Arbitrator.;