JUDGMENT H. Hardy, J.
(1) This Civil Revision is directed against the order made by a Subordinate Judge, Delhi, dismissing the petitioner's application under section 8 of the Arbitration Act, 1940.
(2) The petitioner 'and respondent No. 1 are brtohers. Thier father left behind certain properties' in W. Pakistan at the time of partition of the Country. Respoedent No. 1 filed a claim with regard to the immovable property left by the family in Pakistan. The petitioner objected to compensation bring paid to respondent No. 1 alone. It was alleged by the petition cr that it was then agreed between the two brtohers that whatever compensation was received byrespondent No. 1 the same would be divided between him and the petitioner and that in case of any dispute the matter would be referred to the sole arbitration of one Shri Gulab Singh. The petitioner farther alleged that respondent No. 1 received the entire compensation but failed to give the petitioner his share. The petitioner also alleged that he gave a ntoice to the arbitrator to decide the dispate between the parties but the arbitrator refused to act.
(3) The petitioner there upon made an application under section 8 of the Arbitration Act praying that some toher arbitrator be appointed to decide the dispute between the parties. The application was resisted by respondent No. 1 on various grounds but in this Revision petition I am concerned with only two grounds as all the toher grounds have been decided in favor of the petitioner.
(4) The trial Court has held that there was a valid and subsisting arbitration agreement between the parties appointing Shri Gulab Singh as the arbitrator. The trial Court has also held that the application was well within time. The application has, however, been dismissed on the ground that Shri Satnam Singh and Shri Jaswant Singh are the brtohers of the parties who are also interested in the compensation alleged to have been obtained by respondent No. l and since they had nto been imp leaded as parties, the application was had for non-joinder of necessary parties. The second ground on which the application has been dismissed is that the petitioner did nto give any ntoice to arbitrator requesting him to decide the matter in dispute. There was therefore no question of the arbitrator having neglected or refused to act as arbitrator in the case.
(5) Mr. P. L. Sood, who appears on behalf of the petitioner has argued that Shri Satnam Singh and Shri Jaswant Singh ware admittedly nto .parties to the arbitration agreement. They could nto, therefore, be ljilKilts parties to the present proceedings. I find merit in the arguments of the learned counsel. It is quite possible that Shri Satnam Singh and shri Jaswant Singh have soma interest in the compansation allagedly received by respondent No. 1 from Rehabilitation authorities. But if are nto parties to the arbitration agreement they can hardly be thated as necessary parties to the present proceedings which are by the "Nature of things confined to the persons who have signed the arbitratio agreement. The application could nto therefore be dismissed on the ground of non-joinder of necessary parties.
(6) The next argument of the learned counsel is that the trial Court failed to attach due weight to the ntoice Exhibit P3 served by the petitioner on the arbitrator and the arbitrator's reply Exhibit P 5 to that ntoice. It appears that Shri Gulab Singh who had been nominated by the parties as arbitrator had ilso agreed to hold himself personally liable for payment of the amount of compensation to the petitioner in case respon dent No. 1 failed to pay the same. He was thus buth asurety and an arbitrator in the case. The ntoice Exhibit P 3 to which Exhibit P 5 was sent by the arbitrator as a reply did nto call upon the arbitrator to enter upon the reference as a dispute had arisen between the parties. On the toher hand. by Exhibit P. 3 the petitioner had called upon the arbitrator to pay l/3rd share of the compensation to the petitioner on the ground that he the arbitrator, had stood surety for the payment of th3 said amount. To this demand, the arbitrator sent a reply Exhibit P 5 whereby h denied his liability for payment of any compensation as a surety on behalf of the respondent. It is apparent that neither Exhibit P 3 could be treat he ed as a request from the petitioner calling upon the arbitrator to enter upon the reference, nor could the arbitrator's reply Exhibit P 5 be regarded as a refusal on his part to act as an arbitrator. Mr. Sood has next contended that although the agreement of arbitration was entered into between the parties as far back as 19th January, 1955 and the disputes between the parties has also arisen long time back the arbitrator had neglected to enter upon the reference. In the circumstances, the trial Court has erred in holding that the petitioner's application under Section 8 was nto competent. In my opinion the question of arbitrator's refusal or neglecting to act as an arbitrator can only arise if he is requested by one of the parties to the arbitration agreement to enter upon the reference. When no such request has been made on the arbitrator by either of the parties there can be no question of any neglect or refusal to act on his part.
(7) Mr. Sood has also argued that the trial Court has wrongly held that the document marked A could be admitted in evidenca after payment of Rs. 15.00 as penalty and Rs. 1.50 as stamp duty. As the document purports to be only a copy of the agreement of which the original is alleged to be in the possession of the arbitrator himself no question of levying any stamp duty or penalty on the document can, therefore, arise. I agree with the learned counsel and hold that the document marked A is admissible in evidence without payment of any stamp duty or penalty. The order of the trial Court is apparently wrong to that extent and is, therefore, set aside. The main petition is, however, dismissed and the order of the trial Court holding that the present application filed by the petitioner under section 8 of the Arbitration Act is nto competent is maintained. It will be open to the petitioner to make a formal request to the arbitrator to enter upon the reference and even to ask for his removal on the ground that he has a personal interest in the subjectmatter of dispute and is, therefore, nto a fit person to act as arbitrator, in case such a course is still open to him under the law.