Report No. 76
We are of the opinion that in the interest of expeditious disposal of arbitration proceedings, this position requires modification to a certain extent. It may be mentioned that under the Code of Civil Procedure,1 where a judge is prevented by death, transfer or other cause from concluding the trial of a suit, his successor may deal with any evidence or memorandum taken down or made under the rules contained in the Code as if such evidence or memorandum had been taken down or made by him, and may proceed with the suit from the stage at which his predecessor left it.
This statutory provision modifies the rule otherwise applicable2 that the successor must hear the whole case afresh. In our opinion, there should be no objection to permitting the umpire to act on the evidence recorded by the arbitrators, leaving it to the discretion of the umpire to take such additional evidence as he may think fit. The same principle should apply to a change in arbitrators or umpire. We recommend insertion of the following new paragraph in the First Schedule, on the subject discussed above:
[First Schedule, paragraph 2A]
"2A. (1) Where an arbitrator or umpire is prevented by any cause from completing the proceedings, his successor may deal with any evidence taken down by his predecessor as if such evidence had been taken down by him, and may proceed with the arbitration from the stage at which his predecessor left it.
(2) Where there are more than one arbitrator, and there is a change in the arbitrators, then, notwithstanding such change, the arbitrators may deal with any evidence taken down in the arbitration before such change as if such evidence had been taken down by them, and may proceed with the arbitration from the stage at which it stood immediately before the change.
(3) Where, owing to a difference of opinion between the arbitrators, the matter is referred to an umpire, the proceedings before the arbitrators shall be taken as proceedings before the umpire.
(4) Nothing in sub-paragraphs (1), (2) or (3) shall preclude the arbitrator or umpire from taking additional evidence, in case he considers it necessary to do so."
[Compare Order 18, rule 15, Code of Civil Procedure, 1908J
1. Order 18, rule 15, Code of Civil Procedure, 1908.
2. R.S. Mahmood v. Syed Ahmed, AIR 1963 AP 65.