1. This is a Rule calling upon the opposite party to show cause why the objection to the award of the arbitrators should not be upheld and the order of the Munsif confirming it set aside; or why such other order should not be passed as to this Court may seem fit and proper. The petitioner is the defendant in a suit which was pending before the Munsif of Krishnagar. An application was made to the Munsif to appoint three gentlemen as arbitrators. One of these gentlemen Jogendra Nath Bhatta-charjee was a witness for the plaintiff. Another of them Lakhi Kanta Dey was a witness for the defendant. Both of them had appeared in Court. The third arbitrator nominated was Gokul Chandra Bandopadhya. During the course of the arbitration Jogendra Nath Bhattacharjee gave his evidence before the other arbitrators. The arbitration was not finished oft that day and it was postponed till the next day, when the petitioner put in an application before the arbitrators objecting to their going on with the arbitration and saying that he would not put any evidence before them. Two of the arbitrators, namely, Jogendra Nath Bhatta-charjee and Gokul Chandra Bandopadhya made an award in favour of the plaintiff. The third arbitrator Lakhi Kant Dey made an award in favour of the defendant. An application was made to the Munsif to set aside the award of the majority of the arbitrators but the application was rejected.
2. The first point taken before us is that there was misconduct on the part of the arbitrators in that Jogendra Nath Bhattacharjee gave evidence and the argument is put as high as this, that the mere fact of giving evidence constitutes misconduct. We are not told what the nature of that evidence was. For ought we know it may have been of a purely formal character. It is argued that the arbitrator is on the same footing as a Judge, who cannot give evidence in a case before himself. As regards the capacity of a Judge to give evidence in a case before himself there have been many decisions by the Courts, and the view has been taken that a Judge is a competent witness where his evidence has to be submitted to the independent judgment of other persons who are sitting with himself to try the case; such as a Jury or Assessors. But it seems to me that the considerations, which apply to the case of a Judge, are beside the point in the present case. It is conceded that the arbitrator would have been guilty of still greater misconduct if he had concealed facts which were within his knowledge, and obviously it would be so, because in that case his award might be based on knowledge of his own in which his fellow-arbitrators did not share. But in the present case, the parties knowingly appointed two gentlemen as arbitrators who were witnesses in the case; and if they with that knowledge appointed the arbitrators, it appears to me to be idle for the defendant now to suggest that the arbitrator should not have acted as such because he had knowledge of the facts of the case, or should not have placed his knowledge at the disposal of his follow-arbitrators, The petition shows that he was examined at the instance of the party.
3. The second ground taken is that the reference to arbitration did not provide that the opinion of the majority should prevail and, therefore, the award is bad. The reference, it is true, does not in so many words provide for this, but the application for reference to arbitration contained a provision that the opinion of the majority should prevail. It is argued that inspite of that the award is bad in the absence of such provision in the reference itself. It seems to me that there is no substance in this ground. The authority of the Court to make a reference to arbitration depends upon the application of the parties. If the Court had made an order that there must be unanimity in the award, it is conceded that the reference would have been bad because it went beyond the intention of the parties. It is conceded that the only order which the Court could make in accordance with the intention of the parties on the point was that the award should follow the opinion of the majority. It seems to me that we ought not to give effect to the argument that because the Court did not in fact make the only order which it could have made, the award must be set aside although it is made in accordance with the agreement of the parties.
4. The third point taken is that the award is bad because it was concluded in the absence of the defendant. I have already stated that an application was made to the arbitrators on the second day of the hearing stating that the defendant withdrew from the arbitration and would not call any witness. No authority has been shown to us to support the suggestion that a party to an arbitration can at will retire from the arbitration. Reference was made to some observations of Mr. Justice Mahmood in the case of Ganga Sahai v. Lekhraj Singh 9 A. 253 : 5 Ind. Dec. (N.S.) 604. Those observations have no application to the present case. Here the defendant deliberately absented himself from the hearing. To my mind on the attitude taken by the defendant the arbitrators were perfectly justified in continuing the hearing and giving their award. For these reasons I consider that this Rule should be discharged with costs. We assess the hearing fee at two gold mohurs.
5. I agree.