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AMARASEKARA v. SILVA.D. C., Oalle, 5,316.
Arbitration — Arbitrator proceeding ex parte — Hearing fresh witnesses withoutnotice—Misconduct of arbitrator.
Bonsbb, C.-T.—It ia misconduct on the part of an abritrator toproceed ex parte in the absence of an agreement to that effect.
Even if this rule does not apply to a case of compulsory reference, it ismisconduct on his part to hear fresh witnesses after informing theplaintiff that certain witnesses who had been already examined would bere-examined.
HE plaintiff sued the defendant for the recovery of Rs. 336,being arrears of salary said to be due to him from the
defendant, who denied the plaintiff’s claim, and in reconventionaverred that a sum of Rs. 2,447 was due to him from the plaintiff.
The District Judge, after inquiring into the plaintiff's claim,dismissed it, and referred the claim in reconvention to the arbi-tration of Mr. E. G. Ludovici (under, section 5 of the OrdinanceNo. 15 of 1866)
The arbitrator filed his award on the 15th May, 1900. Theplaintiff thereupon appeared and moved the Court to set asidethe award on certain grounds set forth in his affidavit, viz.: —
“ (a) The compulsory reference to arbitration is bad in law,inasmuch as the said reference is not signed by the DistrictJudge.
“ (b) The recalling of witnesses . already examined, withoutgiving the plaintiff an opportunity of being present, was irregularand tantamount to misconduct on the part of the arbitrator.
“ (c) The calling for and receiving fresh evidence of twowitnesses not previously called on behalf of the defendant com-pany, without notice to and in the absence of the plaintiff, ismisconduct sufficient to invalidate the award found on suchevidence.
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“ (d) The defendant company has been guilty of fraud, inas-much as one of the directors of the defendant company plied theplaintiff’s witness W. O. VanGeyzel with liquor, with the objectand intent of incapacitating him from giving evidence for theplaintiff, and by reason of such fraud the arbitrator’s mind wasprejudiced against the evidence that would have been led by theplaintiff.”
At the hearing of plaintiff’s motion plaintiff deposed thatwhen he last appeared before the arbitrator he told him that nofurther proceedings would be taken; that he was informed byletter that the arbitrator intended to re-examine the witnesses ofthe defendant on the 8th May at 12.80 p.m., and desired him to bepresent if he choose; that he replied by telegram that he wishedto be present at the re-examination, but that as neither he nor hiscounsel could attend he desired another date; that the arbitratorreplied that he had fixed 12.30 p.m. in view of the fact that therewas a train to reach Galle at 11.20 a.m. that day; that there-examination must proceed because there was very little timefor the preparation of the award; and that if he (the plaintiff)wished to come to Galle on Friday next, he would read to himwhat had been recorded.
The District Judge disallowed the plaintiff’s motion to set asidethe award in these terms:—“ It was plaintiff’s fault that he was“ not present at the further hearing, as he received notice to attend.“ He was given an opportunity to attend on 14th May to meet the“ evidence recorded on 8th and 9th May, and he again failed to“ attend.
" I hold the arbitrator was guilty of no misconduct-.
“ I am not satisfied plaintiff’s inability to call his witness“ VanGeyzel owing to the drunken condition he was in was due to“ the conduct of one of the directors of the defendant company,“ who gave him a glass of beer. But even if that were so, that is“ no ground for setting aside the award.”
The District Judge entered up a decree in terms of the award.
Walter Pereira, with him Allan Drieberg, for appellant.—An arbitrator has no power to hear evidence ex parte. By sodoing he was guilty of misconduct as defined by the English Law,which should govern the present case. (Ordinance No. 17 of 1864,section 27). According to the Civil Procedure .Code an awardmay be set aside for misconduct of arbitrator. The same ruleprevails under the Indian Code, and its operation has been ex-plained in Ganga Sabai v. Lekraf Singh (I. L. R. 9 Alla 253).
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The case of Walker v. Frobisher (6 Ves. 69) applies to thepresent case, as also Aitken, Spence & Co. v. Fernando (4 N.L.R.35). Sufficient notice was not given by the arbitrator of hisintention to record further evidence.
Samarawickrama, for respondent.—The proceedings were interpartes and cannot afterwards be said to be ex parte. The DistrictJudge is right in finding that the arbitrator has not misconductedhimself. Plaintiff ought to and might well have been presenton the day named by the arbitrator. Notice was given of hisintention to take further evidence.
This is an appeal to set aside an award which was made underthe following circumstances. The award was on a compulsoryreference made by the District Judge on a claim in reconvention.The arbitrator sat on four several days, and the plaintiff attendedon those four days with his counsel.
On the 30th April the cases on both sides were closed and thearbitrator stated that no further proceedings would be taken.On the 7th May, however, the plaintiff received a letter whichhad been written to his proctor in Galle, the plaintiff himselfresiding in Colombo, in which the arbitrator stated he intendedto re-examine the defendant’s witnesses on Tuesday, the 8th, at12.30 o’clock in the afternoon, and suggested that the proctor shouldinform his client of this in case 'he wished to attend. The plain-tiff at once telegraphed that he wished to be present, but couldnot attend at such short notice. On the morning of the 8th Maythe arbitrator wrote to the plaintiff’s proctor that he intendedto go on, with the re-examination that day, but if the plaintiffdesired to hear the evidence that he might record he would givehim an opportunity of doing so. On the following Friday thearbitrator proceeded to re-examine the witness in the absence ofplaintiff, who did not attend either in person or by a proctor orby counsel. The arbitrator did not content himself with there-examination of the witnesses he had already examined, but heexamined two fresh witnesses, and ultimately gave his award.
The plaintiff has appealed to have the award set aside on theground that it was misconduct on the part of the arbitrator, firstly)to proceed ex parte, and secondly to hear fresh witnesses behindhis back without any intimation to him that- he intended to hearany further witnesses. It seems to me that the award must be setaside. It is obnoxious to the rule, which was laid down in a recentcase, that it is misconduct on the part of ah arbitrator to proceedcx parte in the absence of an agreement to that effect. But even
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if that rule did not apply to a case of compulsory reference, yetit seems to me it was misconduct on the part of the arbitrator tohear fresh witnesses when he had in effect informed the plaintiffthat he did not intend to hear any further witnesses, but merelyto re-examine witnesses who had already given evidence.
It was something like a breach of faith, after informing theplaintiff that the meeting was to be held for one purpose, to holdit for another.
The award must be set aside.
Browne, A.J.—I agree.
October 4.Boksbr, C.J.
AMARASEKARA v. SILVA