A party to an arbitration proceeding should be given a reasonable opportunity to adduce necessary evidence on his behalf.

Judgement

ORDER :- By order dated 26-8-1976, passed by the learned Subordinate Judge, Cuttack, in Miscellaneous Case No. 240 of 1976, Mr. Baradakanta Misra, Advocate, was appointed as arbitrator with regard to the dispute between the parties in connection with reconstruction of weak and narrow culverts over National High way No. 5 from miles 718/0 to 727/9 existing within the Khurda P.W.D. sub-division in the district of Puri, under F-2 agreement No. 3 of 1974-75. In the course of heating before the arbitrator, the appellant in Misc. Appeal No. 159 of 1978 who is the petitioner in Civil Revision No. 517 of 1978 (hereinafter referred to as the claimant) was examined on Dec. 3, 4 and 5-12-1976. The matter was adjourned and notice of the adjourned date, it is said was not given to the claimant. On 23-12-1976, the claimant moved the learned Subordinate Judge for revoking the authority of the arbitrator on various grounds. The application was dismissed as infructuous because prior to its disposal, the arbitrator had completed the enquiry and submitted his award. But this order was set aside by this Court in Civil Revision No. 227 of 1977 with a direction that the application for revocation should be considered after disposal of the application under S.33, Arbitration Act, (for short, the Act). The application was finally dismissed on July 24, 1978 and the present Civil Revision has been directed against that order. During the pendency of the Civil Revision, however, the arbitrator died and it has been submitted by the learned counsel for the claimant that the Civil Revision has become infructuous.

2. After making of the application for revocation, the arbitrator had taken up the hearing of the case on 24-12-1976, examined a number of witnesses on behalf of the Department, marked several documents as Exhibits and completed the hearing on that day, signed the award on the day following and filed it in the Court of the learned Subordinate Judge on 3-1-1977, the reopening day of the Court after the Winter Holidays. The award is a reasoned one. On 19-12-1976, the arbitrator had recorded an order in the order-sheet to the effect that on the request by Mr. M.N. Das, Advocate for the claimant, on telephone, the case was adjourned to 24-12-1976. This was disputed by the claimant on the ground that he had not engaged Mr. M.N. Das. As a matter of fact, Mr. M.N. Das had been examined by the claimant and his statement that he had not been engaged as his advocate had been accepted by the learned Subordinate Judge. According to the claimant, he had no notice of the date of hearing and all proceedings taken after 5-12-1976, were behind his back. On these among other grounds, the claimant objected to the award under Ss.30 and 33 of the Act. The Department had controverted the allegations made by the claimant.

3. The learned Subordinate Judge, on a consideration of the evidence, oral and documentary, found that the claimant had notice of the award on 14-4-1977 when he was present in the Court and his advocate had endorsed on the body of the order-sheet acknowledging receipt of the notice of the filing of the award and the period for making an application to set aside the award being thirty days from the date of service of notice of the filing of the award as provided in Section 119(b), Limitation Act, the objection raised by the claimant in his application filed on 21-6-1977 was beyond time and barred by limitation. Instead of deciding the case only on the question of limitation, the learned Subordinate Judge then proceeded to examine the evidence and decide the points of controversy between the parties as both the parties had adduced evidence. The allegations of misconduct made by the claimant against the arbitrator were not accepted by the Court. The award was made the rule of the Court with a direction to draw up a decree in norms of the award.

4. The learned counsel for the claimant has submitted that the findings recorded by the learned Subordinate