LODHA, J. - (1.) THIS revision application is directed against the order of the learned District Judge, Jaipur City dated 8. 4. 1970 whereby the application dated 2-4-1970 filed by the petitioner M/s. Jai Drinks Private Ltd. , for revoking the appointment of Shri J. R. Bhalla as an umpire was dismissed.
(2.) THE non-petitioner entered into an agreement with the petitioner for constructing a factory for the latter, and it was provided in the agreement dated 3-5-1966 that all the disputes and differences arising in connection with the contract would be referred for decision to a single arbitrator or two arbitrators, one to be appointed by each party and the arbitrators so appointed would before taking upon themselves the burden of reference, appoint an umpire. Certain disputes, having arisen between the parties, notices were exchanged between them to appoint arbitrators as provided in the agreement, but that having not been done the non-petitioner Magan Behari Lal filed an application under sec. 20 of the Indian Arbitration Act in the Court of District Judge, Jaipur City on 20-3-1969 praying that the petitioner be directed to file the arbitration agreement in the Court and that the disputes arising between the parties be referred to arbitration as provided in the arbitration agreement. In the course of proceedings before the learned District Judge an application signed by learned counsel for both the parties was submitted on 1-8-1969 stating therein that the parties have mutually agreed to appoint Shri J. R. Bhalla as an umpire, and it was further stated that Prof. C. D. M. Jhabvala has been appointed as arbitrator by the non-petitioner, and Shri A. Sen Gupta, the other arbitrator by the petitioner. On this application the learned District Judge ordered that by agreement of the parties Shri Bhalla was appointed as an umpire and Shri Jhabvala and Shri Sen Gupta were also appointed as arbitrators. The matter was then referred to the umpire and the arbitrators for their decision. While the matter was being dealt with by the arbitrators and the umpire in pursuance of the order of the Court dated 1. 8. 1969 the petitioner submitted an application dated 2-4-1970 for revoking the appointment of Shri Bhalla as an umpire on the ground that the same was in contravention of the terms of the agreement as well as the provision contained in para 2 of the first schedule to the Arbitration Act 1940. This application was opposed on behalf of the respondent mainly on the ground that the petitioner was estopped from challenging the order of appointment of Shri Bhalla as the umpire. The learned District Judge, however, came to the conclusion that the petitioner had acquiesced in the appointment of Shri Bhalla as an umpire and had thereby waived his objection to the said appointment. In this view of the matter he turned down the petitioner's request for revoking the appointment of Shri Bhalla as the umpire. The learned District Judge, however, came to the conclusion that the petitioner had acquiesced in the appointment of Shri Bhalla as an umpire and had thereby waived his objection to the said appointment. In this view of the matter he turned down the petitioner's request for revoking the appointment of Shri Bhalla. In these circumstances the petitioner has filed a revision application in this Court. Learned counsel for the petitioner has strenuously urged that bath in the agreement as well as in para No. 2 of the first schedule to the Indian Arbitration Act it is clearly provided that the arbitrators shall appoint an umpire. Consequently, it is urged by the learned counsel that the appointment of Mr. Bhalla as an umpire by the parties was illegal. In support of his contention he has relied upon Ghasilal vs. Biswanath (1), Louis Dreyfus & Co. vs. Hemandas (2), and Dulari Devi vs. Rajendra Prakash (3 ). On the other hand learned counsel for the non-petitioner has urged that the provision in p. 2 of the first schedule is only directory and not mandatory, and in support of this proposition he has relied upon Ratnawa vs. Gurushiddappa (4), Modern Builders vs. Hukmatrai (5), Chacko vs. Chacko (6), Baikunth vs. Gouri Shanker (7), and Ram Bali vs. Tulsi (8 ). It was also argued by him that proceedings had taken place before the arbitrators and the umpire, wherein the petitioner had participated without any objection as to the appointment of Shri Bhalla, and, therefore, the petitioner should be deemed to have waived the objection to the appointment of Shri Bhalla. The learned District Judge has based his order mainly on this aspect of the non-petitioner's reply. He has observed that the petitioner filed his claim before the umpire before whom quite a number of hearings had taken place yet no objection was raised by the petitioner to any defect in the appointment of the umpire on those hearings and allowed the proceedings to go on without any protest. He relied on Prince & Co. vs. G. G. in Council (9) in support of his contention. The law seems to be well settled that para 2 of the first schedule to the Arbitration Act is only directory and not mandatory. This is the view taken in the cases relied upon by the learned counsel for the non-petitioner and no authority to the contrary has been brought to my notice. It is, however, urged on behalf of the petitioner that even if this provision is held to be directory, the defect and irregularity having been brought to the notice of the Court at an early stage of the proceedings, should have been cured and the umpire should have been appointed in accordance with the provision of para 2 of the first schedule. The method of appointing an umpire provided in the agreement is also the same as prescribed in para 2 of the first schedule, that is, the arbitrators have to appoint the umpire. It is further clear that the role of the umpire assumes importance only when there is difference of opinion between the arbitrators and not otherwise. That stage has not been reached in the present case, and none of the two arbitrators has raised an objection to the method of appointing the umpire. On the other hand there is a clear indication that they have accepted the appointment of Shri Bhalla inasmuch as on a number of sittings both the arbitrators conducted proceedings in the presence of Shri Bhalla. Thus in the circumstances, the utmost that can be said in favour of the petitioner is that the appointment of Shri Bhalla as an umpire was not strictly in accordance with the terms of the agreement and the provision of para 2 of the first schedule, but, so far as the petitioner is concerned the appointment was made with its express consent. The application dated 1. 8. 1969 for appointing Shri Bhalla as umpire was signed by Shri G. M. Mathur, Advocate for the non-petitioner and Shri T. N. Tandon Advocate for the petitioner. It is not the case of the petitioner that the said application had been submitted and signed by Shri Tandon on its behalf without the petitioner's consent or without its authority. Russell on Arbitration, 7th Ed. observes as follows at page 215 - "if the parties to the reference cither agree before hand to the method of appointment, or afterwards acquiesce in the appointment made, with full knowledge of all the circumstances, they will be precluded from objecting to such appointment as invalidating subsequent proceedings. Attending and taking part in the proceedings with full knowledge of the relevant fact will amount to such acquiescence. " "arbitrators chose an umpire by lot with the full knowledge of everyone concerned. Held that no objection to the award could be raised on that ground; Re Tunno & Bird 1833. 5b. & Ad. 248: but see Ford vs. Jones 1832 3b. & Ad. 248. " "now the grounds relied upon here are, first, that the umpire was decided by lot. Undoubtedly the mind and understanding of the two arbitrators should concur in the selection of the person who is to act as umpire, but it appears to me that the case falls within that of Re Tunno & Bird (1833, 5 B & Ad. 438) where it was held that a party to an arbitration cannot object to the award that the arbitrators chose an umpire by lot, if he expressly agreed to or acquies-ced in that mode of choice. " In Backhouse vs. Taylore 1851, 20 L. J. Q. , 238 where an umpire was selected by two arbitrators by lot and no objection was made by the agents or solicitor of either party could object to the award on this ground as they had acquiesced by their agents. Again in Re Blyth and Tyne Ry and Wilson (1863, 11 W. R. 705) two arbitrators appointed an umpire by lot and the solicitor of one party approved the appointment, it was held that that party could not raise the question of the regularity of the appointment in order to impeach the award. All that can be said in the present case is that the appointment of an umpire was not strictly in accordance with the provision of para 2 of the first schedule. But the appointment is not void ab initio. I am prepared to accede to the submission of the learned counsel to this extent that it was irregular but it was at the same time at the instance of the petitioner itself that Mr. Bhalla was appointed as an umpire, and, therefore, it does not lie in the mouth of the petitioner to turn round and question the appointment. So far as the arbitrators are concerned they obviously do not seem to have any objection to the said appointment, and have, as already pointed out above, acquiesced in it. In these circumstances, the appointment of Shri Bhalla cannot be struck down. I may further point out that in the facts and circumstances of the case it would not be wrong to infer that the arbitrators had also accepted the appointment of Shri Bhalla by their act and conduct. The result is that I do not see any force in this revision application, and hereby dismiss it. In the circumstances of the case I make no order as to costs. . ;