( 1 ) THESE are appeals, each filed by a particular party, Under Section 39, Arbitration Act, against orders one Under Section 14 and the other Under Section 33 of the Act.

( 2 ) THE applt. is a teacher and author of certain books. The resp. 1 is a publisher who undertook to print and publish those books on condition of payment of royalty at a certain percentage. The respt. 2 is related to resp. 1 as his son. The remaining resps. 3 and 4 were the arbitrators.

( 3 ) ACCORDING to the case of the applt. the publishers had printed and published extra copies by printing wrong dates on them to avoid detection by the applt. who having come to know of this filed a complaint against the publishers. Pending the complaint, on 11-10-1945, there was an agreement between the parties that the matter in dispute would be refd. to the arbitration of two persons, and accordingly the complaint was got dismissed the following day. As one of the arbitrators had declined to act, another agreement on the same lines was executed by the parties on 30-10-1945. The agreement inter alia provided that the entire matter was left to the arbitrators for their "decision" and that they would "look into the matter and give their decision within a fortnight". The agreement also provided that the arbitrators would "be fully entitled to go through the accounts of royalty in all editions". On 23-9-1946, an award was actually given by the arbitrators that the publishers would pay Rs. 3250/- as compensation to the applt. On 18-1-1947, the applt. applied for the filing of the award Under Section 14 of the Act and the proceedings initiated on that appln. came to be numbered as 48 of 1947. Another appln. Under section 33 of the Act for setting aside the award was made by the publishers, and the case initiated on that was regd. as No. 12 of 1947. Appeal No. 47 of 1949 arises out of the former and Appeal no. 48 of 1949 arises out of the latter proceedings. The Ct. below set aside the award on the ground of misconduct. By that word it of course meant legal misconduct. The grounds on which it came to that conclusion were (1) that the arbitrators had without any justification refused to record the oral evidence offered by the publishers and (2) that they had delivered their award after the time fixed, even though the same had not been extended by the Ct.

( 4 ) LEARNED counsel on behalf of the applt. has challenged both these grounds of the Ct. below, and we proceed to examine his arguments in respect of them seriatim.

( 5 ) IN recording his finding on the first question the learned Civil Judge reld. mainly on a statement made by Kamta Prasad himself. That was : "the arbitrators had ruled out in the beginning that they would not take down any oral evidence. There were 40 witnesses on my behalf and an equal number of Rai Sahib Ram Dayal Agarwal, but the arbitrators said that they had no time to examine so many witnesses. Rai Sahb Ram Dayal agarwal wanted to produce evidence and I said that if he examined witnesses I would also do so. Then at the suggestion of the arbitrators we agreed to limit our cases to documentary evidence only".

( 6 ) TWO points are specifically noticeable in this statement. One is that the publishers certainly desired to produce evidence before the arbitrators and the latter refused to record it. The other is that eventually the parties had come to agree that they might confine themselves only to documentary evidence. It is obvious that, while the publishers can rely upon the first portion of this statement, they can challenge the second. We may say at once that there was no evidence attempted to be given before the Ct. below that the publishers had at any stage of the proceedings before the arbitrators agreed to confine their case only to documents and not to produce any oral evidence at all. The learned Judge of the Ct. below on his part no doubt remarked that "the parties reluctantly agreed to rely upon their documentary evidence only