A unilateral reference of a dispute to a named arbitrator is not illegal, and the arbitrator is duty-bound to proceed with the arbitration if he is satisfied that he is the arbitrator under the agreement. If the arbitrator fails to proceed with the arbitration and allows the four-month time limit to expire, it may be a fit case for his removal and the appointment of another arbitrator.

1. Bhakra Beas Management Board, (hereinafter referred to as the Board ) through Sub Divisional Officer Construction Sub Division, allotted work for the construction of 12 quarters to Girdhari Lal vide work order No. 437 dt. 22nd Sept. 1980. The contractor filed an application under Ss.5,8,11 and 12 of the Arbitration Act, 1940 (hereinafter called the Act ), before the Court below on 26th Oct. 1982 for revoking the authority of the Arbitrator and for appointment of some other impartial Arbitrator for decision of the dispute between the parties on the pleas that under the arbitration agreement the disputes had to be referred to the Arbitration of Superintending Engineer of the Circle and the applicant submitted the claim before the said Arbitrator in which all details were mentioned and a total claim of Rs. 1,05,984/-was made against the Board. The Arbitrator did not proceed with the matter and allowed the four months time to expire, which amounted to misconduct and hence order of the Court was sought for appointment of another Arbitrator.

2. The application was contested by the Board and the following issues were framed :

1. Whether the petition is barred under O.23, R.1(4) of C.P.C.?

2. Whether the Civil Courts at Chandigarh lack jurisdiction to try the present petition?

3. Whether there are sufficient grounds for the removal of the arbitrator?

3. After evidence was led, the Court below by order dt. 17th Feb., 1984 dismissed the application after recording findings on issue No. 1 in favour of the Board and against the applicant; issue No. 2 was decided in favour of the applicant and under issue No. 3 it was held that although there was an arbitration agreement but the reference, which the contractor had made, was unilateral, and as such, was invalid and the inaction of the Arbitrator not to enter into the reference, was not a sufficient ground for removal of the Arbitrator. This is contractor s appeal.

4. After hearing the learned counsel for the parties, I give the following findings issue-wise. Issue No. 1.

This issue relates to the matter whether the second petition filed by the contractor on the same allegations and for the same relief is barred under O.23, R.1(4) of the Civil P.C. or not in view of the fact that the earlier petition was got dismissed as withdrawn. The Court below relied on Teja Singh V/s. Union Territory of Chandigarh (1981) 1 Serv LR 274 : (AIR 1982 Punj and Har 169) (FB)and decided the issue against the contractor and held that the present petition was barred. The learned counsel for the appellant has not challenged the dictum laid down in the aforesaid decision but has argued that on the facts of this case that decision is not applicable because here the second application was filed before the first application was withdrawn and to these facts the provisions of Order 23, C.P.C. are not attracted in view of Ram Mal V/s. Upendra Dutt, AIR 1928 Lah 710 and Mangi Lal V/s. Radha Mohan, AIR 1930 Lah 599. The earlier application was filed on 6th Oct, 1982 and the present application was fixed on 26th Oct., 1982 and the first application was withdrawn vide order dt. 18-11-1982. The learned counsel for the Board could not show if aforesaid two decisions were ever dissented from or overruled. The aforesaid two Lahore decisions clearly say that if second suit is filed before the first suit is withdrawn then O.23, C.P.C. is not attracted and the second suit cannot be dismissed under O.23, R.1(4) of the Civil P.C. Accordingly, I reverse the decision of the trial Court and hold that the present petition was not barred under O.23, C.P.C.

Issue No. 2.

No argument has been raised before me on this issue and hence the findings of the Court below on this issue are upheld.

Issue No. 3.

On issue No. 3 while the contractor wants to challenge the findings of the Court below for coming to the conclusion that the reference was invalid because it was unilateral and for refusing to remove the named arbitrator the Board