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TMI Blog1977 (5) TMI 88X X X X Extracts X X X X X X X X Extracts X X X X ..... nd consequently the election which had taken place was also to be quashed. (iii) Accordingly, they directed the case to be placed before the Chief Justice for nominating a Bench under Rule 11 of Chapter I of the High Court Rules. (iv) The Chief Justice nominated Lodha, J. as the third Judge. (v) Lodha, J., in his order, directed as follows:-- In view of my foregoing conclusions, I partly allow this petition and quash the Electoral Roll (Annexure 2) and direct that a fresh Electoral Roll be prepared in accordance with law on the lines indicated above and election for constituting the market committee be held thereafter in accordance with law. The election held during the pendency of this petition is quashed. There will be no order as to costs. In other words, he agreed with Bhachawat J. (vi) The Registry then placed the matter before the Chief justice who constituted a Division Bench of Vyas, J, and Bhachawat, J. (because, in the meantime, Raina, J. had taken over as Chairman of the Industrial Court, Indore, and was not available to sit in the High Court). (vii) When the opinion of Lodha, J. was placed before the Division Ben ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e earlier. It was Raina, J. who heard it with Bhachawat, J. (ii) the operative part of Lodha, J.'s opinion is couched in a language expressive of the final decision of the writ petition. Rule 11 of Chapter I of the High Court Rules reads thus:-- 11. When in any appeal or civil matter heard by a Bench of two Judges, the Judges composing the Bench differ on a point of Law and state the point on which they differ, the proceeding shall be placed before the Chief Justice for the purpose of nominating one or more of the other Judges to deal with the matter. It was under this rule that, when Raina, J. and Bhachawat, J. differed, the proceedings were placed before the Chief Justice who nominated Lodha, J. to deal with the matter. The expression 'civil matter' is comprehensive enough to include a writ petition under Article 226 of the Constitution. The object of this rule is the appointment of a third Judge, in case the Judges of the Division Bench are equally divided in opinion as to the decision to be given on any point. The object and purpose of the rule is that the third Judge should be appointed by the Chief Justice. This rule does not lay down the jurisdiction ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to be decided at this stage (i.e. after the third Judge has recorded his opinion) as a matter of formal expression of the decision. There is no question of fresh application of the mind on the merits of the point, on which the opinion of the third Judge has been recorded. If two Judges had first heard the matter, the point will be decided by a Division Bench of two Judges after receipt of the opinion of the third Judge. It is true that the word 'decided' ordinarily envisages an application of the mind but such application of the mind must be restricted to two things only: (i) to find out from the three opinions what the majority opinion is and to 'decide' the point according to the majority opinion; and (ii) to decide what relief flows from such decision, which relief the Division Bench shall toe bound to give to the parties. It is at once noteworthy that the two Judges of the Division Bench which first heard the case, recorded their 'opinions'. They did not decide the point at the stage of their difference; obviously they could not, because of the difference. When the matter goes to the third Judge, he also records his 'opinion' on that & ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... order or judgment (howsoever the opinion may be styled) must be read as opinion on the point or points on which the Judges of the Division Bench were divided in opinion. The rest is to be ignored, for want of jurisdiction, by application of the principle of Kiran Singh v. Chaman Paswan AIR 1954 SC 340. See Amalgamated Coalfields Ltd. v. State of M. P. AIR 1967 MP 56 : 1966 Jab LJ 884 : 1966 MP LJ 842 where it is observed as follows (at p. 74 of AIR) :-- The very language of Clause 26 makes it undoubted that the Judge to whom the matter is referred in consequence of the difference of opinion between the Judges constituting the Division Bench, shall not hear the case upon any other point, because his opinion on such other points will not itself be the decision of the Court, his opinion on the point or points on which the Judges constituting the Division Court have differed will be the decision of the Court. The reason is that every point has to be decided according to the opinion of the majority of the Judges who first heard the case and the Judge who has heard the case in consequence of the difference of opinion. This is not possible unless and until the Judges constituting ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e intention to transfer jurisdiction for deciding the point, from the Division Bench seized of the case, to the referee Judge. It appears to me, there-tore, that the jurisdiction for the decision not only of the appeal as a whole but also of the point of difference, remains with the referring Bench; and all that the clause lays down is a method by which in the case of a difference of opinion, the difficulty is to be resolved. On this view, it would be the duty of the referee Judge to express an opinion on the point or points of difference and to return the case with his opinion to the Division Bench seized of the case which must pronounce the final judgment, according to the method provided by Clause 26. If in the interval a change has occurred in the constitution of the Division Bench in question, it would be necessary for the Hon'ble the Chief Justice to constitute another Division Bench as the successor of the referring Bench. It was an argument before us that Justice Lodha's order in deciding the whole case is ultra vires so that it must be sent back to him for recording fresh opinion. We cannot accede to this contention. Lodha, J. has expressed his opinion on the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... efore, the dictum of the two cases last mentioned is not apposite. The present case is governed by Rule 11 of Chap. I of the High Court Rules and Clause 26 of the Letters Patent. Suppose in a civil appeal between A as the appellant, and B and C as respondents, each one of the three parties claims title to the land and the two Judges of the Division Bench of the High Court differ in their opinion, one of them holding that A is the owner, while the other holding that B is the owner. In such a case, if the third Judge is of the opinion that neither A nor B is the owner, but C is the owner, it will have to be said that the opinion of the third is without jurisdiction. He has to confine his opinion to the difference of opinion whether A is the owner or B. We would now advert to the question whether after the opinion of the third Judge is recorded, it is necessary that the case must be placed before the same Bench which first heard it. There is no such restriction either in Rule 11, Chapter I of the High Court Rules, or in Clause 26 of the Letters Patent. But as a matter of propriety it should be laid before the same Bench which first heard it. However, if that Bench is not availab ..... X X X X Extracts X X X X X X X X Extracts X X X X
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