JUDGMENT
1. This case seems to have so little relation to realities that it is somewhat difficult to know where to begin, It arose out of an application by one Bhagwan Das to file an agreement or submission to arbitration under paragraph 17 of the Code. The learned Judge has dismissed it on the ground that the plaintiff has no cause of action. What he means it is impossible to say, He has also indulged in a great deal of superfluous discussion about allowing the arbitrators to sleep for two years, and various hypothetical suggestions which do not seem to us to have anything to do with the case. Whether from the fault of the parties, or from the lack of firmness on the part of the Judge, the fast is that the matter has been decided as a matter of law without the Court knowing anything about the facts. We constantly have occasion to complain of this method of dealing with oases in applications and one becomes absolutely tired of repeating it. How the learned Judge could possibly suppose that he is doing any good to anybody by deciding an application about which he knows nothing of the merits at all it is difficult to understand. It must go back to him to be heard according to law, and we can only give general directions of a hypothetical nature. The parties, Bhagwan Das and Gurdayal who is the respondent to the application, and is respondent before us entered into an agreement to submit their dispute to arbitration without the assistance of the Court as long ago as June 1918. In that submission to arbitration three parties were named as the tribunal, two arbitrators and one umpire, and all three were to take part in the arbitration, and to give the award. They seemed to take a long time about it, but that is no business of ours or of the lower Courts but of the parties, unless it is shown to have been the result of some deliberate obstruction by one or other of the parties. The agreement provides nothing as to what is to happen if one of the parties either dies, or refuses to act.. The result is that the ordinary law must be resorted to by the party who wants to get on with the business, and proceed to obtain an award, if the arbitrators either retired, or died, or otherwise failed to do their duty. There are provisions to which we need not refer, requiring an arbitrator to make an award within a certain time and enabling the Court to extend the time so as to confer validity upon the award if he delays beyond the stipulated time. The application alleges that one of the arbitrators Sita Ram has refused to act. The allegation as to the name is said to appear for the first time in the argument in this Court, and not in any formal document, or in the proceedings of the lower Court. The odd thing is that nobody really knows, in the sense of tangible evidence, and the Court did not trouble to enquire whether the allegation was true or not. The respondent in a singularly evasive paragraph, which denied and admitted nothing in the Court below, was clearly at liberty, if he disputed the fact, either to offer to produce the arbitrator who was alleged to be refusing to act, or to produce an affidavit from him, or to produce a letter from him. If he had done either one of those things, and the Court had been satisfied that the man was not refusing to act, the application would merely have been dismissed and the arbitration would proceed. All that would be necessary in such a case to do would be to extend the time for making the award. On the other hand the whole thing is as mysterious and comic as it is possible to be. The application does not state who the person is who is refusing. This may be because the facts were so well known to everybody that that it was considered superfluous. It does not seem likely that anybody would some to Court with an application of this kind when be knew perfectly well that the only fact which justified it did not exist The Court must ascertain (it is not for us to tell it how to do the whole of its business), what the facts are with reference to this allegation. If the allegation is not true, cadit quaestio. If the allegation is persisted in and the Court is not satisfied that it is true, it must call upon the applicant to prove it in some way or another, which may be done by one or other of the arbitrators proving on oath the refusal of the suggested renegade to take any further part in the proceeding, or to produce some letter verifying the fact. That is a preliminary question of fast, which one would have thought was not difficult even for the Judge of the lower Court to ascertain. If it is established that one of the arbitrators refuses to act, clearly there is a right given to the party to secure a substitute in his place in order that the arbitration may proceed, Inasmuch as the paragraph of the Second Schedule, which vests the Court with authority to appoint a new arbitrator, is limited in its operation to oases in which an order of reference has been made under paragraph 17, the applicant very naturally applied under paragraph 17 for the agreement to be filed, and an order of reference made, in order to pave the way for the next step, which was the appointment of the arbitrator. What else he could have done we fail to understand. The Court seems to have been very much puzzled, apparently because there is no provision enabling paragraph 5 to be utilised where no order of reference has been made under paragraph 17. This is not difficult to explain. The Legislature attributes a certain amount of common sense on the part of litigants, and particularly on the part of those who prefer their own tribunals, and it not unnaturally assumed that if the parties were so entirely in harmony that there was no dispute as to the submission, and both were willing to go to arbitration without an order of reference at all, it was not necessary to make a special provision for the appointment of an arbitrator, when one died or disappeared. But it is the unexpected which happens, and it does so happen that, though both these parties were quite willing to go to arbitration, and no order of reference was necessary, they found a method of disagreeing in the end. But we think that where a party has gone to arbitration in a case in which if it had refused to go to arbitration an order of reference would have been made under paragraph 17, it is too late for him, when a difficulty arises at a later stage of the proceedings which has not been provided for unless an order of reference has been made, to dispute the right of his opponent to obtain an order of reference under paragraph 17, or in other words, the mere fact that the objecting party has gone to arbitration as though an order of reference had been made without insisting upon the order of reference, is conclusive against him if his opponent should at any later stage require an order of reference in order to file an application for some further step to be taken by the Court. It is necessary in this case, in order that the powers under paragraph 5 shall be exercised, for an order of reference to be made under paragraph 17. In our opinion, the fact that the respondent has already consented to arbitration which has been going on for a very long time, entitles the applicant and did entitle the applicant in the Court below absolutely to an order of reference under paragraph 17, and that a great deal of the responsibility for this almost childish and academic dispute about the absence of the cause of action and the plaintiff's right being barred by the Statute of Limitation, is due to the respondent's conduct in objecting to an order of reference being made. The result is that the whole case must go back, the costs of the previous proceeding and of this appeal to abide the result, with this direction that the applicant is clearly entitled by law to an order under paragraph 1.7, the respondent having in the Court below and in this Court repudiated the submission. Having passed that formal order, the Court may proceed straightaway to enquire into the relevant facts as to whether in fact there is an arbitrator who is refusing to act. If there is, and the parties are unable to agree upon a substitute, or the respondent refuses to nominate one who is acceptable to the applicant, the Court must appoint an arbitrator. In these interlocutory and controversial applications outside an ordinary suit, the Courts below should invariably insist on the allegations made by the applicant being supported by affidavit. The parties and the Court had better further look to the question of the time within which the award has to be made, otherwise unless some formal order for extension of time is passed, the whole of these proceedings may be made nugatory, by the award becoming invalid as being out of time.