Present: De Sampayo J. and Loos A.J.         1919

FERNANDO   v.   DE   MEL et al.

 143-D. C. Colombo, 47,785.

Surveyor appointed arbitrator in action, for definition of boundaries- Payment of half of survey fee by one party before commencing work-Misconduct. 
     
An action for definition of boundaries was referred to a surveyor for arbitration. When referring the matter to the arbitrator, the Court ordered that the costs of arbitration should, in the first instance, be paid by both parties in equal shares. Before he commenced his work, the arbitrator wrote to the proctors on both sides to pay Rs. 75 for survey fees. The plaintiff paid Rs. 37.50. The   defendants   promised   to   pay,   but   did   not   do   so.

Held, that in the circumstances the receiving of the fee from the plaintiff   only   did   not   amount   to   misconduct.

Fernando v. Migel Appu 1 [1 (1913) 16 N. L. R. 157.] considered.

THE facts appear from the judgment.

A. St. V. Jayawardene (with him Cooray), for plaintiff, appellant.

Bawa, K.C., for defendants, respondents.

March 20, 1919.    De Sampayo J.-

The plaintiff and the first defendant (the wife of the second defendant) are the respective owners of two houses which adjoin each other. There being some dispute between the parties as to the line of division, the plaintiff brought this action for the definition of boundaries. In the course of the trial the parties agreed that the case should be referred to the arbitration of Mr. S. Sabharatnam, who is a licensed surveyor, and the Court issued a commission to Mr. Sabharatnam accordingly.

The arbitrator entered upon the arbitration and made his award, which happened to be in favour of the plaintiff. On notice being issued of the filing of the award, the defendants applied, by petition, that the award be set aside on the ground that the arbitrator had visited and surveyed the lands on July 27, 1918, without notice to the defendants and in their absence, but in the presence of the plaintiff and his witnesses; that the plaintiff had misled the arbitra­tor by giving him wrong data, and by pointing out wrong boundaries, and that they accordingly refused to take part in the subsequent arbitration proceedings on August 17, 1918.

The Court inquired into these allegations, and in the course of the proceedings it transpired that the arbitrator had asked for and obtained from the plaintiff a moiety of the expenses of the survey before he commenced the work. The arbitrator admitted that he asked both the parties to pay Rs. 75 for survey fees and not for fee as arbitrator, that the plaintiff had paid his share of Rs. 37.50, and that the defendants promised to pay their share when some money was drawn from the Savings Bank. The District Judge accepted the surveyor's statement, and was satisfied that the arbitrator was in no way influenced by the receipt of part of the survey fee from the plaintiff, but he said that he felt himself bound, though reluc­tantly, to follow the decision in Fernando v. Migel Appu,1 and to hold that the receipt of the money from the plaintiff constituted "legal misconduct." On this ground, and not on the grounds put forward by the defendants in their petition, the District Judge set aside the award.

Before dealing with the law applicable to the matter, I should like to say that it is quite clear that the arbitrator acted in perfect good faith, and his award was not tainted by any bias in the plaintiff's favour. His survey and the proceedings were very elaborate, and showed very careful work on his part. The Court when referring the matter to the arbitrator had ordered that the costs of arbitration. should, in the first instance, be paid by both parties in equal shares. It is difficult to say what it means by "in the first instance " as regards time of payment. The arbitrator, however, appears to have considered he was entitled to ask for payment at least of t