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Report No. 76

11.3. First Schedule, paragraph 2A (propose.- Re-hearing of evidence by the umpire.-

The Arbitration Act does not contain any specific provision on the question whether an umpire can act on the evidence recorded by the arbitrators. The position, in English law, it is well-settled1, is that the umpire has to hear the evidence de novo, if an application is made to him to do so by either party, notwithstanding that the same evidence has already been adduced before the arbitrators. The results is that an umpire can make his award on the evidence taken by the arbitrators only if no party objects. It was observed by Littiedale J., agreeing with Denman C.J.,2 that "the general rule is that an umpire to whom a case is referred by arbitrators must hear the evidence over again."3

Indian case law on the subject is scanty; but it would appear that, in general, an umpire is bound to re-hear the evidence if either party applies, unless there are special provisions in the arbitration agreement permitting him to do so.4 This is on the principle that the umpire has the rights and duties of an arbitrator. If he has not heard the evidence himself, he is generally bound to re-hear it.

1. Jenkins (in re:), (1841) 11 LJQB 71 (72): 61 Revised Reports 837 (Patterson, J.).

2. Salked and Slater (in re:), (1841) 12 A&E 767: 113 ER 1005 (1006, 1007).

3. See also Ha&bury's, 4th Edn., Vol. 2, p. 307, para. 591.

4. Dhanna Singh v. Rain Chand, AIR 1924 Sind 27 (28), reversing in part E. Miller v. Firm of Dhanna Singh, AIR 1921 Sind 27.

Arbitration Act, 1940 Back

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