@JUDGMENTTAG-ORDER
J.D. Kapoor, J.@mdashThrough is 215/94, the respondent has filed objections challenging the validity of the award of the Arbitrator before whom the respondent/object or was the claimant. Contentious operative part of the award is to the following effect:-
"I have heard the counsel for the respondent NDMC and I am fully satisfied that none of the claims of the claimant are fit for consideration and as such I hold that there is no dispute.
I, Therefore, hereby make an award for nil amount".
2. The Arbitrator was pursuaded to pass such an award for the reason that inspire of the service of so many notices to the claimant, the claimant neither turned up nor appeared before the Arbitrator not gave any reasons for his non-cooperation till he accepted the notice dated 30th April, 1991 wherein he showed his inability to appear and agreed for extension of time for another four months. In view of this the Arbitrator observed that this conduct on the part of the respondent shows that that he is not interested in finalisation of his claim and as such he had no other option but to proceed ex parte.
3. I am afraid the procedure adopted by the Arbitrator was illegal as in the given circumstances the only option available with the Arbitrator was to dismiss the claim of the respondent either in default or for non-prosecution or no merits. As per provisions of Rule 8 Order 9 of CPC where the defendant appears and the plaintiff does not appear when the suit is called on for hearing, the Court shall make an order that the suit be dismissed unless the defendant admits the claim, or part thereof, in which case the Court shall pass a decree against the defendant upon such admission and where part only of the claim has been admitted, shall dismiss the suit so far as it relates to the reminder.
4. Thus the Arbitrator could not have proceeded ex parte against the respondent/claimant. It is only where the plaintiff appears and the defendant does not appear when the suit is called on for hearing that the defendant is be proceeded ex parte. Here the objection was the petitioner/claimant had not the respondent. Apparently the Arbitrator fell in error in adopting a procedure which was neither lawful nor as per provisions of Rule 8 Order 9 CPC. Dismissal of the claim of the respondent as `nil'' on account of his non-appearance and also to hold that none of the claims of the claimant are fit for consideration and as such there is no dispute was not only beyond the jurisdiction of the Arbitrator but also such a finding is void ab initio.
5. Even if the Arbitrator had decided to decided he disputes referred to him by the claimant it was not open to the Arbitrator to dismiss the claim as `nil'' on account of non-cooperation by the respondent. The Arbitrator could have decided the dispute referred to him on the basis of the material placed before him by the parties or even by the respondent/claimant.
6. In any event it was not open to the Arbitrator to proceed ex parte against the respondent/claimant who had filed claim arising out of the disputes between the parties. Once the disputes are referred to the Arbitrator by any of the parties or by the claimant the Arbitrator has the power to decide these disputes on merits even in the absence of the parties. But in no eventuality the Arbitrator can dismiss the claim of the claimant by holding that since the claimant is not present and has filed to co-operate as he has not been appearing before the Arbitrator to press his claims, he is not interested in finalisation of the claims and as such is proceeded ex parte and further that none of the claims of the claimant are fit for consideration for the aforesaid reasons. This is a legal mis-conduct on the part of the Arbitrator. Objections are allowed, the award is set aside and is remitted to the Arbitrator to decide the dispute in view of the observations made in this order and in accordance with provisions of law.
7. Since the award has been held per se illegal and void ab initio, delay in filing the objections by the respondent is condoned.
8. The parties are directed to appear before the Arbitrator on 10th May, 2001.
9. The suit and the application stand disposed of.
