1. It was admitted by the pellant's learned Counsel that no appeal lay, and this matter was argued as if it were a revision. The parties appointed three pleaders Mr. Kamlakar, Mr. Kunj Behari and Mr. Firangi Rai as arbitrators to decide the dispute between them and appointed Mr. Kunj Behari umpire. It so happened that one of the arbitrators absented himself There is no evidence of his refusal to act. He did not communicate to the Court any refusal. The umpire thereupon approached the Court and inquired what was to be done. What he said on 30th March 1925 in a petition was:
Owing to the absence of one of the panches arbitration could not take place. The plaintiff's nephew says that he does not like to have the case decided by us (arbitrators). Under the circumstances I would request the favour of your kindly ordering me as to what to do.
2. The trial Judge directed that action should be taken under para. 9 (a), Schedule 2, Civil P.C. The provision of the law is:
Where an umpire has been appointed, he may enter on the reference in the place of the arbitrators: (a) if they have allowed the appointed time to expire without making an award.
3. It may be conceded in favour of the applicant that the trial Court is not verbally correct in saying that the other arbitrators did not present themselves. It was one arbitrator, and not two, who resiled from the undertaking. The umpire consulted the Court after the time for making the award had expired.
4. The question is what is a Court to do under such circumstances. The learned Counsel for the applicant was considerably enamoured of the provisions of para. 5. He, however, missed the point that his client was not equally in love with that paragraph and did not take any action as directed therein. Under para. 5 the Court is empowered to appoint an arbitrator or umpire, or make an order superseding the arbitration, only in case a party takes action under Clause 1 of the paragraph and serves notice on the other party. In the present case neither party took any step to fill the place of the arbitrator who was sulking. My opinion is that this was a device of the plaintiff to get out of a situation which he himself had created for himself. The arbitrator who sulked was possibly a friend of his and the plaintiff expected that he could bring the arbitration to a stand-still by inducing one arbitrator not to take part in arriving at a decision. The provisions as regards arbitration have, however, been now more carefully devised than before under the Civil Procedure Code of 1908 and attempt has been made to fill up all holes through which a party may wriggle out of the arbitration. Where an umpire is appointed, para. 9 gives him the power to enter in the reference without the arbitrators. In this way the law has prevented the arbitration failing by a device of a, party inducing one of the arbitrators to absent himself. The working of the human mind is exceedingly curious. It is strange that once after a party decides on trusting an arbitration he should start distrusting the arbitration soon after. Possibly this is due to the natural distrust of an Indian mind where every little evidence is taken advantage of to draw a presumption that an arbitrator or a Judge is being pulled from behind by the opposite party. However that may be, the provisions of the Civil P. C, Schedule 2, were framed with a view that as far as possible parties once having referred the matter to arbitration may not be permitted to change their mind, In the present case it was a fair inference that the arbitrators had allowed the appointed time to expire without making an award. Under the circumstances the umpire by himself was entitled to make an award, and did make it. I see no reason to interfere by way of revision. It is dismissed with costs.