The central legal point established in the judgment is that conducting private inquiries or taking evidence behind the parties' backs without notice in arbitration proceedings amounts to misconduct, justifying the setting aside of the award.

Meredith, J.

1. This appeal is directed against an order rejecting an application for passing a decree in terms of an award in an arbitration held out of Court. The appellant was the applicant. The Court below has rejected the application and set aside the award on the ground of misconduct on the part of the arbitrator, and the question is whether that finding of misconduct was justified. The alleged misconduct is that the arbitrator took evidence behind the backs of the parties with regard to the most important question in dispute, and based his decision on that evidence.

2. In the award the arbitrator says:

"The main dispute in this case is regarding one share of Calcutta Stock Exchange the value of which has considerably increased. This was purchased on 15-8-1937, for a sum of Rs. 20,000......I made enquiries at Calcutta on 7-1-1946, in this connection from Babu Jagannath Gupta and two other gentlemen of share market and fixed the valuation at Rs. 1,01,000."

Later he says:

"The parties did not adduce any oral or documentary evidence except the account books and statements of Babu Nagarmal Modi and Chandi Prasad Modi and Ganga Prasad Modi and Madanlal Modi."

It is admitted that when these gentlemen were examined in Calcutta neither the appellant nor either of the two respondents were present.

3. In the petition of objection to the application of the appellant, the respondents simply said that the evidence had been taken behind their backs. The arbitrator has not been examined by either party, but the appellant himself gave evidence, and one of the respondents also gave evidence. The appellant in his evidence said:

"I am the sole applicant. The arbitrator informed the opposite party 1 and myself at the same time on 5th or 6th January 1946, that he would be in Calcutta on 7-1-1946, and that be would be in the Stock Exchange at 12 noon on 7-1-46 and that we should meet him there. Opposite Party 1 was appearing for both the opposite parties before the arbitrator." As against this, the respondent who gave evidence said: "The arbitrator did not inform the opposing parties that he would be at Calcutta on 7-1-1946 and that he would examine witnesses or lake evidence there."

There is no definite finding by the learned Subordinate Judge as to whether the parties were given notice of this Calcutta excursion or not. But this is a first appeal, the evidence is before us, and we can come to our own findings. Having considered the evidence and all the circumstances I am of the opinion that there was no notice given in this case. It is notable that the arbitrator in the award does not say he gave any notice before proceeding to Calcutta. The fact that in the original objection it was not definitely stated that notice had not been given seems to me of little importance because, I think, the assertion that the evidence was taken behind the parties backs obviously meant that they were not given notice. As for the evidence, it is oath against oath. But, as appears from the award, the question of the valuation of this Stock Exchange share was the main point in dispute, and it is very difficult to believe that, if the parties had had notice, neither of them would take the trouble to be present. The appellant himself in his evidence merely said that he had been informed either one or two days before the visit. Surely, in the circumstances, the parties would have said, if they had been unable to visit Calcutta at a days notice, that they should be given some further notice and a different date should be fixed, so as to allow them to proceed there. But that is not suggested.

4. As I hold that the parties did not get notice, it is unnecessary to consider what the legal position would be if the parties had received due notice and had nevertheless remained absent. I desire to express no opinion on that point. But where an arbitrator takes evidence behind the backs of the parties without notice to them, and bases his award on that evidence, the