(1) This is a first appeal from the order of a learned Subordinate Judge 1st Class, Delhi, dated 6th April, 1964, passim' a decree for possession of the Fargo make passenger bus 1960 Model No. Mpe 7390 or in the alternative for the recovery of Rs. 20,000, and also passing a decree for the recovery of Rs 33,147.00 in favor of the Aggarwal Finance, Private, Limited, Respondent 1n the present appeal, against the appellant Mohammad and Liaqat Hussain. The impugned order was made in the proceedings following the appointment of an arbitrator under section 20 of the Arbitration Act and the making of award by the arbitrator. The arbitrator filed his award in the Court on 30th April. 1962, and in pursuance of ntoice of the said award, objections were raised by Mohanimad, the present appellant. Those objections were disallowed by the Court below by means of the impugned order. It is under these circumstances that the present appeal has been preferred
(2) On the pleadings of the parties in the Court below seven issues were framed, but they were all decided against the objector, except issue No. 4, which dealt with the locus standi of the objector, but was nto pressed by the applicants in the Court below. On appeal to this Court, the main contention, which has been pressed on behalf of the appellant, is that the arbitrator was the son of the counsel lor the opposite party and this factor, according to the submission, vitiates the entire award. In the Court below, as is apparent from the Older, the plea was that the arbitrator was the brtoher of the counsel lor the applicants and for this reason the award could nto be said to have been given by the person, who could be considered to be uninterested in the proceedirgs and was. thereforee, liable to be quashed. Issue No. 7 under which arguments were addressed on this objection, was decided against the objector on the ground that there was no proper evidence to show that the arbitrator and his brtoher, who was said to be a counsel for the applicants, had their office in the same building. Before me, reliance has been placed on a Division Bench decision of the Court of the Judicial Commissioner of Sind in Ghulam Ulohamed Khan v. Gopaldas Lal Singh which is an authoriry for the proposition that in cases of arbitration where a person is appointed by two parties to exercise judicial duties, there should be uberrima fides on the part of all parties concerned in relation to his selection and appointment and every disclousure which might in the least affect the minds of those who are proposing to submit their dispute to the arbitration of any particular individual, as regards his selection and fitness for the post ought to be made, so that each party may have every opportunity of considering whether the reference to arbitration to that particular individual should or should nto be made. In the reported case, the arbitrator was found to be related to one of the parties as the brtoher of his son-in-law and this was held to afford a real likelihood of an operative prejudice on his part. The existence of that relationship with one of the parties, unknown to the toher, was held to disqualify him from acting as an arbitrator. On this finding, the submission was revoked. Reference has also been made to the Bench decision of the Calcutta High Court in K. P. Ghose v. Rajani Kant Chatterjee. which was relied upon by the Sind Court in the case of Ghulam Mohammad Khan. In the Calcutta case, the arbitrator was the retained pleader of the plaintiff and this effect was nto known to the dafendant. In my view, merely because the arbitrator who is a practicing lawyer, happens to be either a brtoher or a son of a lawyer, who is a counsel for one of the parties, this circumstance by itself, and without more, would nto invalidate the reference on the argument that the arbitrator has an interest in one of the parties to the controversy. It is, of course, true that an arbitrator is selected by the parties as a private forum for determining their controversy and, thereforee, he is expected to possess the judicial detachment of a Tribunal entrusted with the sacred and solemn function of adjudicating upon a dispute between rival contestants, but it does nto necessarily follow from this basic requirement that when father and son or two brtohers are j independently practicing the profession of law, one must be considered , to be possessed of personal interest in all the professional engagements of the toher-To accede to such a broad proposition would, in mv opinion, lead to certain consequences prejudicially affecting the recognised traditions of the bar in this country-The decisions cited on behalf of the appellant seem to me to be distinguishable on facts and I would be disinclined, as at present advised, to extent to the case in hand the reasoning on which the conclusions of those decisions were based. The challenge to the reference on this ground is accordingly repelled.
(3) I he Court below has come to an express finding that the arbitrator and the counsel for M/s. Aggarwal Finance (Private) Ltd., did nto share the same office for their professional work. It is undoubtedly true that the Court below has based this conclusion, inter alia, on the reasoning that the telephone directory is nto sufficient to establish this fact, but on behalf of the appellant, no effort has been made to challenge this reasoning and ntohing has been argued as to whether or nto a telephone directory by itself would constitute legal evidence either to prove the correctness of the entries therein or to show that the entries therein can legally establish that two persons mentioned therein are using the same office.
(4) The appellant's learned counsel has, however, concentrated on the submission that he was nto given any opportunity of establishing the allegation of misconduct on the part of the arbitrator, and indeed this has been his main contention on which he has laid primary, if nto sole, stress. He has referred me to the various dates of hearing and has argued that his client was entitled to antoher opportunity for rebutting the evidence led by the opposite party. The perusal of the record shows that on 29th September, 1962 objections were filed by the present appellant and on the pleadings of the parties, the following issues on merits were framed on 8th November, 1962.
1. Whether the objections have been filed by a competent person' 2. Whether the objections have been signed and verified by the objector' 3. Whether the objectors are competent to challenge the appointment of Shri Nitya Nand as an arbitrator at this stage in these proceedings' 4. Whether the objectors are barred from challenging the appointment of Shri Nitya Nand as an arbitratoi on the principles of resjudicate and estoppel' 5. Whether the agreement to refer is invalid and can the objectors take up this objection at this stage' 6. Whether the arbitrator has misconducted himself and the proceedings and the award is liable to be set aside on that ground? and, 7. Is the award liable to be set aside on the grounds mentioned in the objection?
The case was adjourned to 17th December, 1962 for the evidence of the objectors. The evidence actually started on the date fixed with the statement of Mohammad the present appellant as O.W.I and also closed with his testimony. After the close of his evidence, there is on the record a statement on behalf of the objector closing his evidence in affirmative. It may be pointed out that the objectors were represented by a counsel. The case was adjourned to 13th January, 1963 for the claimants' evidence and rebuttal. It is this use of the word 'rebuttal' in the order which is really being taken advantage of by the present appellant for the submission that he was entitled to a further opportunity to lead evidence even on the affirmative issues.the onus of which was on him. It is this submission which has been very strongly relied upon. On 18th January, 1963, the Presiding Officer of the Court was transferred and the case was adjourned to 23rd February, 1963.on which date ntoice was ordered to go to the objectors for 20th March, 1963. The case, however, came up for hearing on 18th April, 1963, but the objectors having nto been served, ntoice was ordered to go again to them for 13th May, 1963 On that date, the case was adjourned for the remaining evidence to 7th May, 1963. In the order, some- how, it seems to have been mentioned that the case was adjourned for the remaining evidence of buth the parties. On 7th June, 1963, the Court was busy in hearing an argument case and, thereforee, at 4 P. M. this case was adjourned to 3rd August, 1983. On that date, the statement of Shri Nitya Nand Dhawan, arbitrator was recorded as A. W. 1 and the case was adjourned to 19th September, 1963 for the remaining evidence of the claiments. On that date, the counsel for the objectors was nto feeling well, with the result that the case was adjourned to 19th November, 1963 when the Presiding Officer being on leave the case was adjourned to 20th November, 1963. On that date again, no proceeding were recorded but the case was adjourned to 21st December, 1963 for the remaining evidence of the claimants, to which date the statement of Shri Nitya Nand Dhawan was concluded. After recording Shri Dhawan's statement, the Court ntoed that the claimant alone remained to be examined. The case was thereupon adjourned to 25th January, 1964 for the remaining evidence of the claimant and 'rebuttal'. On that date, it was again adjourned to 24th February, 1964 for the evidence of the claimants and rebuttal, on which date the evidence of A. W. 2 was recorded and the claimant closed his evidence. The case was then adjourned to 12th March, 1964 for arguments. On 12th March, 1964, the counsel for the parties asked for time for arguments and the case was adjourned to 27th March, 1964 when again, it was adjourned for arguments to 6th April, 196- because the defendants' counsel had stated that he had been engaged only on that date. On 6th April, 1964, arguments were heard and for orders it was adjourned to 7th April, 1964, but again this decision was modified and it was stated that the orders would be announced that very day at 4.25 P. M. This is followed by a ntoe in urdu record, stating that in accordance with the order in English record,-the objections are disallowed.
(5) It is very strongly argued before me that the appellant was entitled to a further opportunity of rebutting the evidence led by the claimant even on the issues, the onus of which was on the appellant. The contention is wholly misconceived and, thereforee, unacceptable. The law of procedure on this point is quite clear. The plaintiff has a right to begin unless the defendant admits the facts alleged by the plaintiff and contends that either in point of law or of some additional facts alleged by the defendant, the plaintiff is nto entitled to any part of the relief which he seeks, in which case, the defendant has the right to begin. On the day fixed for the hearing of the suit or on any toher day to which the hearing is adjourned, the party having the right to begin has to state his case and produce his evidence, in support of the issues which he is bound to prove. The toher party is then required to state his case and produce his evidence, if any, and may then address the Court generally on the whole case. The party beginning is then entitled to reply generelly on the whole case. Where however, there are several issues, the burden of proving some of which lies on the toher party, the party beginning may, at. his option, either produce his evidence on those issues or reserve it by way of answer to the evidence produced by the toher party, in the latter contingency, the party beginning has a right to produce evidence on those issues after the toher party has produced all his evidence and the toher party may then reply specially on the evidence so produced by the party beginning ; but the party beginning is finally entitled to reply generally on the whole case. There is one further contingency which may be ntoiced. If 'lie case of an opposite party is such as to introduce into the trial matter which is foreign to and outside the case of the first party and the evidence adduced by him (the first party), then the latter must be allowed, if he so desires, to rebut this by additional evidence and his oppanent must be allowed to speak upon it by way of reply before the first party himself makes his own reply. But this does nto necessarily enititle the first party to ask for an adjournment for that purpose, for lie must be prepared with such rehutting evidence and adjournment is it to be allowed by the Court fur good and sufficient reasons, costs being, if necessary, allowed to the opposite party. The procedure stated by me is quite clearly contained In Rules I to 3 of Order xviii of the Code of Civil Procedure and in Vol. I of the High Court Rules & Orders, Chapter 1-H, paragraph Ii thereof dealing with the last contingency ntoed above. In the case in hand, obviously, the present appellant had to produce his entire evidence on the issues of which the onus was on him on those issues, thereforee, there can hardly arise any question of the appellant having a right to adduce further evidence under the garb of claim to lead rebuttal evidence. But this is nto all. When the Court closed the evidence of the claimants, the appellant's counsel did nto ask for any opportunity to addace any evidence in rebuttal and indeed after various adjournments addressed arguments on the case without any prtoest and took the chance of securing a decision on the merits. Though a faint suggestion has been thrown in a half-hearted manner that an oral request was made for opportunity to lead rebutal evidence, I am unable on the existing record to sustain it. Form 12th March, 1964 to 6th April, 1964, the case remained pending for hearing arguments. If opportunity for rebuttal evidence as claimed was declined on oral request, one would have expected a formal written application so as to bring the matter on the record. It must accordinegly be held that the appellant did nto press his praver to adduce any evidence inrebuttal in the Court below. In these circumstances, it is nto understood how the appellant can make any grievance on appeal in this Court against the order of the Court below or against the procedure adopted by it. This really concludes the appeal against the appellant.
(6) The real trouble in this case so far as the argument in support of opportunity of rebuttal is concerned, has arisen out of the orders of the Court below on some hearings while adjourning the case in which. perhaps by oversight, either the word 'rebuttal' is used or it is stated that the case was adjourned for the evidence of buth parties. If the Presiding Officers concerned had applied their mind a little more deeply, these in advert lapses would nto have occurred and there would have been absolutely no occasion for the appellant to found such a plea.
(7) Before concluding, however, I must point out that the Court below has granted various adjournments which were unjustified and this is all the more so after the case was ready for arguments. It is hardly necessary to repeat that the instructions. contained in the High Court Rules & Orders, Vol. I, Chapter 1-H, paragraphs 14, 15 and 16, in regard to adjournments are meant to be observed and nto to be ignored. There is an increasing tendency in the Courts below to honour these instructions in their breach and to grant adjournment' on the slightest pretext which, to say the least, does nto promtoe the cause of justice. Being clearly against the instructions of this Court and also against the scheme of the Code of Civil Procedure, the practice of granting adjournments too readily on untenable grounds cannto be approved by this Court and I consider it proper to point out that an attempt should be made (to adopt the procedure more in accord with the provisions of the Code as explained in the High Court Rule '& Orders.
(8) As a result of the foregoing discussion, this appeal fails and is dismissed but without costs.