Muni Lal Verma, J. - (1.) THE disputants including Mehar Chand are real brothers being sons of Tulsi Ram. They owned joint properties located within the limits of tehsil Phillaur and at Howrah. They too bad joint business at Phillaur and Howrah. Since disputes had arisen between them, they by agreement executed on November 2, 1962, appointed Shri Gurditta Ram and Shri Anant Ram as Arbitrators and referred the various disputes to them for arbitration. One of the terms of the said reference was that in the event of difference of opinion between Shri Gurditta Ram and Shri Anant Ram, they could appoint an Umpire whose decision would be final. The Arbitrators, viz., Shri Gurditta Ram and Shri Anant Ram, therefore, appointed Shri Devi Chand Dhiman as Umpire, even before the commencement of the arbitration proceedings. The Arbitrators Shri Gurditta Ram and Shri Anant Ram. along with the Umpire gave the award on December 15, 1962. Therefore, Kehar Chand and Kishan Chand (now the Appellants) moved application under Section 14 of the Arbitration Act (hereinafter called the Act) on March 5, 1963 in the Court of the Senior Subordinate Judge, Jullundur, for filing of the award and making the same the rule of the Court. The award was filed Dharam Chand (now Respondent No. 1) filed objections under Sections 30 and 33 of the Act, pleading, inter alia that the Arbitration Tribunal had not been constituted in accordance with the agreement arrived at between the parties and the Arbitrators Shri Gurdirta Ram and Shri Anant Ram had been guilty of misconduct because they had allowed themselves to be led and dominated upon by the Umpire, via. Shri Devi Chand Dhiman and were allowed themselves to be influenced by Shri Jetly, legal practitioner, in making the award. They (the Arbitrators) did not afford opportunity to him to adduce evidence and they had gone beyond the scope of the reference in directing the transfer of his ( Dharam Chand's ) share in the joint properties to Mehar Chand. Kehar Chand and Kishan Chand instead of dividing the same by mates and bounds and the award was otherwise invalid because they, viz., Shri Gurditta Ram and Shri Anant Ram, had directed him (Dharam Chand) to get the land of the factory. Messrs Dhiman Iron and Steel Company, Phillaur which did not belong to him, transferred in favour of Mehar Chand, Kehar Chand and Kishan Chand. The said objections were resisted by Kehar Chand and Kishan Chand and they controverted the material allegations made by Dharam Chand. Hence, the following issue was settled on merits: Whether the award dated December 15th, 1932 is liable to be set aside on the grounds mentioned in para 2 of the application of the Respondent ?
(2.) THE trial Court returned verdict on the said issue in the affirmative and consequently the objections raised by Dharam Chand prevailed and the application moved by Kehar Chand for making the award the rule of the Court, was dismissed. Dissatisfied with the said result, they viz., Kehar Chand and Kishan Chand came to this Court in appeal. In support of the appeal, Mr. G. R. Majithla, Learned Counsel for the Appellants, raised the contentions that the Arbitrators were legally bound to appoint the Umpire and that Dharam Chand had been appearing before the Arbitration Tribunal, so he was estopped on principle of waiver or acquiescence from questioning the appointment of Shri Devi Chand Dhiman as Umpire or the validity of the award, and the division of the joint properties had been effected by mutual adjustment and the same constituted partition by metes and bounds for all intents and purposes, and thereby assailed the finding recorded by the trial Court on the aforesaid issue and the judgment rendered by it as unsustainable. Section 3 of the Act provides that an arbitration agreement, unless a different intention is expressed therein, shall be deemed to include the provisions set out in the First Schedule into far as they are applicable to the reference, it is provided by Rule 2 of the First Schedule of the Act that if the reference is to an even number of Arbitrators, the Arbitrators shall appoint an Umpire not later than one month from the latest date of their respective appointments. Therefore, Mr. Majithia was right in contending that the appointment of Devi Chand Dhiman as Umpire by Shri Gurditta Ram and Shri Anant Ram Arbitrators even prior to the commencement of the arbitration proceedings was warranted by law notwithstanding that Clause (b) of paragraph 4 of the agreement of reference provided that they could appoint the Umpire in the case of difference of opinion between them on any matter.
(3.) I may also agree with Mr. Mijithia who is supported by judgment in Firm Gaurishankar Shyamsunder v. Bihari Lal : AIR 1952 Nag. 314, that the participation of Shri Devi chand in the arbitration proceedings will not be a sufficient ground for setting aside the award. Shri Devi Chand could even sit along with the Arbitrators and bear the evidence and the effect of Dharam Chand's appearing before the Arbitrators and the Umpire may constitute waiver or acquiescence on his part to the extent that he may not be able to challenge the appointment of Shri Devi Chand as Umpire by the Arbitrators prior to the commencement of the arbitration proceedings or his (Shri Devi Chand Dhiman's) participation in the arbitration proceedings. But, the act of Dharam Chand's appearing in the arbitration proceedings with the knowledge that he (Shri Devi Chand Dhiman) had been appointed as Umpire by the Arbitrators and that Shri Devi Chand Dhiman was participating in the arbitration proceedings cannot be construed as his assent to the Arbitrators viz., Shri Gurditta Ram and Shri Anant Ram, seeking advice from Shri Devi Chand Dhiman or the latter's influencing them in the matter of making the award. The award, when read carefully, leaves no manner of doubt that the decisions were taken and the award was made unanimously by the Arbitrators (Shri Gurditta Ram and Shri Anant Ram) and the Umpire (Shri Devi Chand Dhiman). The award is signed by all the time of them. It is also mentioned in first paragraph of the award that Shri Devi Chand Dhiman had been appointed as Umpire by Shri Gurditta Ram and Shri Anant Ram and the third paragraph rendering to the decisions taken, contains the word "we", which means Shri Gurditta Ram, Shri Sant Ram and Shri Devi Chand Dhiman. The most important question for determination is whether Shri Devi Chand could participate in the deliberations of Shri Gurditta Ram and Shri Anant Ram before any differences had arisen between them. My answer to the said question would be in the negative. Since Shri Devi Chand Dhiman was the Umpire and bis decision was to be final, Shri Gurditta Ram and Shri Anant Ham could not over rule him even if they had agreed among themselves, and neither of tie Arbitrators could afford to disagree when Shri Devi Chand Dhiman had agreed with the other. Therefore, Shri Devi Chand could not confer with Shri Gurditta Ram and Shri Anant Ram, and he could not mould their decisions and similarly Shri Gurditta Ram and Shri Anant Ram could not seek any guidance from Shri Devi Chand in raking decisions. Since it is evident from the award that Shri Devi Chand Dhiman had deliberated with Shri Gurditta Ram and Shri Anant Ram and, as such, the possibility of his -moulding the decisions of Shri Gurditta Ram and Shri Anant Ram with his advice cannot be excluded. I am supported in this view by Chouthmal Jivajjee Poddar v. Ramchandra Jivajjee Poddar : AIR 1955 Nag, 126 and Maganlal Gangaram Rathor v. Ramji Benoarji : AIR 1966 M.P. 177. The said view is further fortified by the provisions contained in rules 4 and 5 of the First Schedule of the Act which specify the functions of an Umpire. Rule 4 of the said Schedule provides that if the Arbitrators have allowed their time to expire without making an award or if they have delivered to any part) to the arbitration agreement or to the Umpire notice in writing stating that they cannot agree, the Umpire shall forthwith enter in lieu of the Arbitrators. Rule 5 of the said Schedule says that the Umpire shall make his award within two months of entering the reference or within such extended time as the Court may allow. It is, thus, clear from the provisions contained in the said Rule 4 and 5 that an Umpire is not an Arbitrator ab initio and he cannot act as a third Arbitrator. It is only when the Arbitrators fail to make an award within the time allowed to them or fail to agree with each other that the Umpire comes into the picture and replaces them (the Arbitrators). When the award shows, as the award in the case in hand does, that the conclusions recorded in the award were arrived at as a result of deliberation between the Umpire and the Arbitrators, it would amount to illegality because the participation of the Umpire in the deliberations had moulded the decision of the Arbitrators. Thus I have no hesitation in agreeing with the trial Court and accepting the contention advanced by Shri D. S. Nehra, Learned Counsel for Dharam Chand, that the act of Shri Gurditta Ram and Shri Anant Ram Arbitrators in allowing Shri Devi Chand Dhimam Umpire to participate in the deliberations for taking decision amounted to judicial misconduct on their part and, therefore, the award suffers from an illegality which vitiates it.;