An award is vitiated by legal misconduct on the part of the arbitrators if they examine a witness suo motu without giving the parties an opportunity to cross-examine him.

Judgement

P. V. B. RAO, J. :- These two miscellaneous appeals are directed against the orders of the learned Subordinate Judge of Berhampur in two Misc. Cases Nos. 23 of 1949 and 44 of 1949. Misc. Case No. 23 of 1949 arises out of an application filed on 28-3-49 by the five arbitrators to whom the matters in dispute between one Dharmu Saboto and his three sons Krushna Bauri and Dasrathi had been referred for decision under a Muchalika executed by the latter on 23-1-48 in which the opposite parties are the parties to the reference, namely, Dharmu Saboto and his three sons, along with the award passed by them, praying that action may be taken by the Court according to law.

2. After notice of the filing of the award was issued to the opposite parties, Krushna Saboto filed a petition under S. 30. Arbitration Act praying that the award should either be set aside as invalid or remitted to the arbitrators for reconsideration and rectification for the various reasons mentioned in the petition which was numbered as Misc. Case N. 44 of 1949.

Dasrathi Saboto filed a counter contending that the award was invalid and inoperative and should therefore be set aside. Dharmu Saboto and Bauri Saboto filed a counter contending that the objection raised to the award were not tenable and that therefore it should be upheld and a decree passed in terms thereof.

3. The learned Subordinate Judge held after enquiry that the award was vitiated by the legal misconduct of the arbitrators and as such it was invalid. He also held that the award was not the result of the joint deliberation of all the arbitrators as all of them were not present at all the sittings. He allowed Misc. Case No. 44 of 1949 filed by Krushna Saboto and dismissed Misc. Case No. 23 of 1949.

4. Dharmu Saboto and his three sons Krushna, Bauri and Dasarathi made a private reference to arbitration consisting of five arbitrators asking them to settle the matters in dispute between them with, regard to the partition of the family property by a Muchalika executed by them on 23-1-48.

In the application filed by the arbitrators, the arbitrators alleged that under the Muchalika they were empowered to divide all the properties of the parties to the reference and made an award on 19-1-49 after a full enquiry, and that the award was pronounced in 20-1-49 and was registered on 21-1-49.

5. Krushna Saboto raised various objections to the filing of the award, but we are concerned only with two objections as they were the only points raised before us by the learned counsel for the appellants. The first objection of Krushna Saboto was that all the five arbitrators were never present at any sitting and only some four of them were present and that consequently the award was not the result of the joint deliberation of all the arbitrators.

The second objection was of legal misconduct of the arbitrators inasmuch as they examined one Somanath Sanmatara of Ramchandrapur, a stranger to the arbitration proceedings and allowed themselves to be influenced by his advice and statements on certain particulars and refused permission to the parties to cross-examine him.

6. The learned subordinate Judge relying on the evidence of the arbitrator Bhagirathi Sahu held that all the arbitrators were not present at each sitting during the course of the arbitration proceedings.

7. With regard to the second objection in examining Somanath Samantara suo motu by the arbitrators without giving an opportunity to the parties to cross-examine him, the learned Subordinate Judge came to the conclusion that the omission by the arbitrators to give the parties the opportunity of cross-examining this witness did amount to legal misconduct.

8. Mr. K.S.R. Murty, the learned counsel for the appellants contends, firstly that the learned Subordinate Judge erred in holding that the award was illegal as all the arbitrators were not present at every stage of the proceedings inasmuch as the evidence adduced in the case and the award make it clear that the awar