MEHROTRA, C. J.: These two miscellaneous appeals have been filed on behalf of the Union of India and arise out of two orders passed by the Subordinate Judge, Upper Assam Districts at Jorhat refusing to set aside an award. (2) The facts briefly are that Bahadur Singh, the respondent in these appeals, is a contractor. He entered into a contract with the Union of India for the transport of certain materials. After the contract was over the petitioner claimed some money from the Union of India. There was an arbitration clause in the agreement. As no arbitrator was appointed by the agreement between the parties the respondent moved an application before the Subordinate Judge under Sec. 8 of the Arbitration Act for appointment of any arbitrator in accordance with the terms of the agreement. It is not disputed that the ap­plication was made after due notice. On the 18th Febru­ary 1955 the Court appointed the Commissioner, Shillong (1) Sub Area the arbitrator and he was to submit his award after looking into the accounts of the parties. The respondent had claimed a sum of Rs. 50,000 and odd on the ground that the Union of India under the terms of the agreement had failed to pay him his dues. Objection was filed by the Union of India in which it was stated that by fraud the respondent has claimed Rs. 50,000 and odd. In fact he had been over-paid to the extent of Rs. 25,000 and odd and by the objection the Union of India claimed refund from the respondent of the sum over­paid It appears that the Commissioner, Shillong (1) Sub Area proceeded with the arbitration. But he was trans­ferred and he sent back the record to the Subordinate Judge. In the meantime the Union Government also filed a suit in the court of the Subordinate Judge, claiming a sum of Rs. 25,000 and odd the amount which according to the Union Government has been over-paid to the res­pondent. After the record was received back from the Commissioner. Shillong (1) Sub Area, the Court proceeded to appoint a fresh arbitrator. There was some disagree­ment between the parties with regard to the appointment of an arbitrator. The Court appointed Shri D. Sarma as arbitrator. After the record was received back from the Commissioner. Shillong (1) Sub Area, the Court proceeded to appoint a fresh arbitrator. There was some disagree­ment between the parties with regard to the appointment of an arbitrator. The Court appointed Shri D. Sarma as arbitrator. Before appointing him Shri D. Sarma was asked to give his consent and after he gave his consent on certain terms, he was appointed the arbitrator on the 4th December 1957. On the 6th December, however he made an application that at one stage as he had filed a written statement on behalf of the Government he was disqualified for being appointed an arbitrator. On that ground the Court below cancelled his appointment as an arbitrator and appointed Shri M. C. Barua as the arbitra­tor. The arbitrator proceeded with the case and after examination of the evidence and hearing of argument of the parties the arbitrator gave his award. He gave an award in favour of the respondent and directed that he should get Rs. 7,000 and odd as the principal amount and Rs. 1,200 and odd as interest as against the Union of India. So far as the claim of the Union of India is con­cerned, it was rejected. As the subject-matter of the two suits was same, the dispute was referred to the same arbitrator. After the filing of the award the Union of India made two petitions under Sec. 30 of the Indian Arbitration Act for setting aside the award on the ground that the arbitrator committed misconduct and that the award was not valid. Those two applications were heard and the Subordinate Judge rejected the applications. The present appeal has arisen out of the order of the Sub­ordinate Judge. (3) The main point urged by Mr. Medhi who appears for the Union of India is that the reference to the arbi­trator itself was invalid. So far as the reference regarding the claim of the respondent is concerned the contention is that after having once exercised his powers by appoint­ing the Commissioner Shillong (1) Sub Area the arbitrator under Sec. 8(l)(b) of the Arbitration Act, the Subordinate Judge became functus officio and has no power without a fresh application to appoint another arbitrator in place of the Commissioner Shillong (1) Sub Area and thereafter to appoint a third arbitrator. As regards the award so far as it relates to the claim of the Union of India the contention is that under Sec. 21 of the Arbitration Act there could be no reference in a pending suit without the consent of both the parties. The Union of India had not agreed to appoint Mr. M. C. Barua as an arbitrator and the Union of India had only accepted the position that the similar matter was pending before the arbitrator. (4) So far as the objection of Mr. Medhi relates to j the claim of .the Union of India, it is sufficient to point out that in the objection filed to the application of the respondent under Sec. 8, wherein he had claimed a sum of Rs. 50,000 and odd against the Union of India, the Union of India had come forward with a definite case that I they were entitled to Rs. 25,000 and odd. Any dispute arising between the parties with regard to a contract was refer­able to an arbitrator. Thus there was an agreement to i refer the dispute to the arbitrator. In view of the provi­sions of Section 34 of the Arbitration Act the suit could not proceed as there was an agreement between the parties and more so in the present case where the same dispute had already been referred to the arbitrator in proceedings under Section 8 of the Indian Arbitration Act. The only [order thus which the Court in these circumstances could pass if the suit was to stay the suit sine die. But that by itself will not make the award illegal and invalid. Obviously in the proceedings under Section 8 both the disputes were presented before the1 Court and the arbitrator, under the terms of the agreement, was competent to go into the j entire dispute between the parties and thus the award given ! by the arbitrator cannot be said to be otherwise invalid within the meaning of Section 30 of the Indian Arbitration Act. What should have been the proper order in the suit itself is entirely a different matter. Section 21 no doubt lays down that a reference can be made in the pending suit only if the parties agree to it. Mr. Medhi cites cases in support of his contention that there can be no reference without any agreement between the parties. What should have been the proper order in the suit itself is entirely a different matter. Section 21 no doubt lays down that a reference can be made in the pending suit only if the parties agree to it. Mr. Medhi cites cases in support of his contention that there can be no reference without any agreement between the parties. The facts of the present case are entirely1 different. Reference was in the proceedings under Sec. 8' of the Arbitration Act initiated by the respondent and the] ambit and the scope of the matter which could be referred to an arbitrator in those proceedings covered the claim of the Union of India and thus the reference .in effect was not one under Sec. 21 of the Arbitration Act. It was not the reference by the parties to decide the subject-matter of the suit. It was in fact the stay of the suit due to the fact that the same dispute was already pending before the arbitrator and thus Sec. 21 in terms is not attracted in the present case. There is thus no substance in this contention. (5) Regarding the- contention of the appellant that the Court had no jurisdiction to appoint another arbitrator after the first arbitrator had sent back the record as he was transferred, the short answer is that in none of the objections filed by the appellant, he had taken any such ground. Reliance is placed by the respondent on Sec. 12(2) of the Indian Arbitration Act. Section 12(2) reads as follows: "Where the authority of an arbitrator or arbitrators or an umpire is revoked by leave of the Court, or where the Court removes an umpire who has entered on the reference or a sole arbitrator or all the arbitrators, the Court ;nay, on the application of any party to the arbitration agree­ment, either-(a) appoint a person to act as sole arbitra­tor in the place of the person or persons displaced, or (b) order that the arbitration agreement shall cease to have effect with respect to the difference referred." If the point had been taken in the Courts below, then the Court could have gone into the facts and come to a • categorical conclusion as to whether the arbitration has been revoked or not. Section 5 of the Arbitration Act lays down that the authority of an appointed arbitrator or umpire shall not be revocable except with the leave of the Court, unless a contrary intention is expressed in the arbitration agreement. The section clearly shows that the party has got a right to revoke the authority of an arbitrator. The only limitation is that the revocation is to be done with the permission of the Court. Section 5 does not contemplate the revocation of the agreement. It only contemplates the revocation of authority of the arbitrator. The revocation can be implied from the cir­cumstances of each case. Admittedly when the arbitrator was transferred, he had expressed his desire to be relieved of his duty as he had been transferred and the Court after hearing the parties appointed another arbitrator. It can be certainly held in the circumstances of the case that the authority of the arbitrator was revoked with the per­mission of the Court. In the case of Shri D. Sarma also because at one stage he appeared as a counsel for the party, he was not competent to be the arbitrator and in those circumstances another arbitrator was appointed and thus it must be pre­sumed that the authority of Shri Sarma was revoked with the permission of the Court. There is no particular method provided under Sec. 5 for making any application for the revocation, if after hearing the parties, the Court appoints another arbitrator and cancels the appointment of the previous arbitrator, in these circumstances the order of the Court constitutes permission and the conduct of the parties itself amounts to revocation of the authority of the arbitrator. The arbitrator thus was appointed with the leave of the Court. The appellant submitted to the v arbitrator's jurisdiction and produced evidence and it is now too late for him to object to the validity of the award on the ground that there was no permission applied for and granted by the Court for the revocation of the authority of the arbitrator. (6) Mr. Medhi has relied upon Sec. 11 of the Arbi­tration Act. On the finding that the order of the Court constitutes permission to revoke the authority, the ques­tion of removal does not arise. Section 12 contemplates two circumstances under which a fresh arbitrator can be appointed - one is revocation and the of her is removal. (6) Mr. Medhi has relied upon Sec. 11 of the Arbi­tration Act. On the finding that the order of the Court constitutes permission to revoke the authority, the ques­tion of removal does not arise. Section 12 contemplates two circumstances under which a fresh arbitrator can be appointed - one is revocation and the of her is removal. Section 11 deals with the removal of the arbitrator. But Sec. 11 in terms does not apply to the case of revocation. There is thus no force in the contention that the appoint­ment of the second arbitrator was illegal. (7) The only ground on which the attack has been made is that the award of the arbitrator is based on mis­representation and the award has been given without ap­plying his mind to the provisions of the Motor Vehicles Act. The argument of Mr. Medhi is in short, that under the Motor Vehicles Act, unless the permission is granted, the capacity of a vehicle cannot be changed and as under the agreement the respondent had to use 3 ton vehicles and admittedly he used 1J ton vehicles, he is not entitled to claim the amount on the basis of the use of the 3 ton vehicles and thus he is liable to refund. No doubt there is certain procedure provided for the change of the capa­city under the Motor Vehicles Act. But that is only for the purposes of taxation and the fact whether the vehicles used by the respondent carried 3 ton loads or not is a matter which will depend upon the evidence in the case. If in fact the respondent used trucks for carrying 3 ton load by changing the capacity of the trucks to 3 ton, !t cannot be said that merely because he had not observed all the formalities laid down in the Motor Vehicles Act, he cannot argue before the arbitrator that he used the 3 ton vehicles and actually carried 3 ton loads in each of these vehicles. The arbitrator has after considering the entire evidence, come to the conclusion that the res­pondent is entitled to get a decree for Rs. 7,834-13-0 plus interest and the point raised by Mr. Medhi is one about the appreciation of the evidence which is not per­missible under Sec. 30 of the Indian Arbitration Act. We see no force in these appeals and they are rejected1 with costs. Appeals rejected.