- (1.) On October 20, 1970 Kaura Ram Petitioner and Gobind Ram, respondent No. 1 entered into an agreement to refer certain dispute which had arisen between the parties relating to partition of some immovable property to the joint arbitration of respondent Nos. 2 and 3. The agreement was that in case of difference of opinion between respondent Nos. 2 and 3 the matter will be decided by respondent No. 4 who was to act as the umpire. The arbitrators did not enter on the reference despite repeated requests. This led to the filing of an application by the petitioner in the trial Court under Section 8(1)(b) of the Arbitration Act, 1940 (hereinafter called the Act). The application was contested by respondent No. 1. This led to the framing of five issues. When the evidence of the petitioner on these issues had concluded and part of the respondents' evidence had been led and the case had been adjourned to September 18, 1973 for the recording of the remaining evidence of respondent No. 1, he (respondent No. 1) made an application dated September 10, 1973 (copy Annexure 'A' to the revision petition) wherein he prayed that the application was not maintainable under Section 8 of the Act and that this question should be first heard and decided before recording the remaining evidence of respondent No. 1. The application dated September 10, 1973, was contested by the present petitioner. In his written reply dated September 18, 1973, he averred that respondent No. 1 had taken up an objection in paragraph 2 of his original written statement as to the maintainability of the application, but not having claimed any issue on that point, the objection should be deemed to have been waived. On merits, he reiterated that the petition was maintainable and that the application of the respondent No. 1 was not bona fide and was misconceived. On September 28, 1973 the trial Court recorded the statement of the counsel for respondent No. 1. He stated that he had to lead no evidence on the application except for the original arbitration agreement dated October 20, 1970, being read by the Court. Some arguments were heard on November 15, 1973. This is apparent from the order passed by the trial Court on that day. That order reads as under :- "Arguments on the question of leading evidence of the first party heard. I have gone through the alleged arbitration agreement. It contains that the vacancy should not be supplied. In view of the recorded agreement of arbitration, oral evidence regarding the intention of the contents of a document is not competent and is disallowed. To come up for arguments on the preliminary issue on November 26, 1973."
(2.) After hearing arguments of the parties on the adjourned date, the trial Court passed the order under revision on December 3, 1973. It held that the application under Section 8 was not maintainable as he spelt out from the arbitration agreement an intention on the part of the parties not to supply any vacancy on the arbitration board. Not satisfied with this and aggrieved by the order of the trial Court, the unsuccessful petitioner has come up to this court.
(3.) The sole question involved in the proceedings before me in whether the arbitration agreement dated October 20, 1970 (a certified copy of which has been shown to me and read out in court) does or does not show that it was intended that the vacancy should not be supplied. This question arises because of the phraseology of Clause (b) of sub-section (1) of Section 8 of the Act. The operative part of Section 8 reads as under :- "8(1) In any of the following cases - (a) ... ... ... (b) If any appointed arbitrator or umpire neglects or refuses to act, or is incapable of acting, or dies, and the arbitration agreement does not show that it was intended that the vacancy should not be supplied, and the parties or the arbitrators, as the case may be, do not supply the vacancy; or (c) ... ... ...; any party may serve the other parties or the arbitrators, as the case may be with a written notice to concur in the appointment or appointments or in supplying the vacancy. (2) If the appointment is not made within fifteen clear days after the service of the said notice, the Court may, on the application of the party who gave the notice and after giving the other parties an opportunity of being heard, appoint an arbitrator or umpire, as the case may be, 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.";