Citation Codes

Equivalent Citations

citation codes

Case Number

First Appeal No. 528 of 1992

Attorney(S)

Sri G.N.Verma
Mr.Rakesh Dwivedi

Judges

B.P Singh, J.

Acts

Section 98 of the Code of Civil Procedure, Rule 3 of Chapter VIII of the Allahabad High Court, Rules, 1952
Section 575 of the Code of Civil Procedure. Section 575 of the old Code
Section 98 of the Code of Civil Procedure, 1908. Section 98 of the Code
Rule 3 of Chapter VIII of the Allahabad High Court Rules, 1952. Rule 3
Rule 3 of Chapter VIII of the High Court Rules, 1952
subsection (2) of Section 98 of the Code of Civil
Section 575 of the Code of Civil Procedure.
Section 98 of the Code of Civil Procedure
Section 575 of the Civil Procedure Code

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Smart Summary

Case Summary: Rozu-ud-din and another v. Smt. Nirmal Swaran Singh (Suit No. 432 of 1990)

Factual and Procedural Background

Suit No. 432 of 1990 (Rozu-ud-din and another v. Smt. Nirmal Swaran Singh) was instituted in the court of Civil Judge, Saharanpur, seeking specific performance of a contract dated 20-09-1985. The suit was transferred to the IV Additional Civil Judge, Saharanpur, and decreed on 29-05-1992. The defendant, Smt. Nirmal Swaran Singh, appealed by filing First Appeal No. 528 of 1992.

At the admission stage before a Division Bench of this Court (Hon'ble G.D. Dube and Hon'ble G.S.N. Tripathi, JJ.), conflicting orders were recorded on 24-08-1992: one judge (Hon'ble G.S.N. Tripathi, J.) recorded that the appeal was dismissed, while the other (Hon'ble G.D. Dube, J.) admitted the appeal and granted a stay of execution. The order sheet recorded these differing outcomes and recorded that the matter be placed before the Chief Justice for orders.

The Chief Justice listed the matter for the opinion of another judge. The present opinion addresses whether that reference for opinion (to a third judge) was competent under the relevant procedural rules and statutory provision.

Legal Issues Presented

Whether a reference for opinion to a third Judge is competent (or is ultra vires) when two Judges of a Division Bench have already delivered separate judgments without stating the point(s) of difference between them.
Whether the procedure prescribed by Rule 3 of Chapter VIII of the Allahabad High Court Rules, 1952 and Section 98 of the Code of Civil Procedure, 1908 requires that a reference be made only in respect of the specific point(s) of law on which the Bench is equally divided and before the Judges cease to be possessed of the case.
Whether the principles laid down in prior authorities (notably Lal Singh v. Ghanshyam Singh and related decisions) preclude a reference made after separate judgments have been delivered without reservation.

Arguments of the Parties

Respondents' (Defendant) Arguments

It was contended (by Shri Rakesh Dwivedi) that the reference for opinion to this Court was ultra vires.
The specific contention was that once the two Judges had delivered separate judgments without formulating or stating the point(s) of difference between them, they had ceased to be possessed of the case and therefore could not validly refer the matter for opinion under the relevant statutory/rule provisions.
Reference was made to Section 98 CPC, Rule 3 of Chapter VIII of the Allahabad High Court Rules, 1952 and authorities including Lal Singh v. Ghanshyam Singh, Mst. Akbari Begum v. Rahmat Hussain and Vishwanathan v. Abdul Wajid to support this position.

Appellant's (Plaintiff) Arguments

It was argued (by learned counsel Shri G. N. Varma) that because the two judgments were passed at the admission stage, there was no bar to referring the matter to a third Judge for opinion.
The appellant's position, as recorded in the opinion, was essentially that the fact the Judges were at the admission stage meant the matter could properly be referred.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Rule 3, Chapter VIII, Allahabad High Court Rules, 1952	Procedure where Judges of a Division Bench are divided in opinion: (a) point(s) of difference are to be stated; (b) if equally divided, point(s) decided by other nominated Judge(s); referral limited to the point(s) of difference.	The Court relied on the Rule to explain that only the specific point(s) upon which Judges were equally divided could be referred and that the reference must be made by the Judges who are still possessed of the case (i.e. before they deliver final judgments).
Section 98, Code of Civil Procedure, 1908	Statutory analogue to Rule 3; provides that when an appeal is heard by two or more Judges and there is no majority, the Judges may state the point of law upon which they differ and the appeal may be heard on that point by other Judge(s).	The Court interpreted the proviso of Section 98 to emphasize that reference is intended only for the point(s) of law on which the Judges differ and that the reference must be made while the Judges are still possessed of the case.
Lal Singh v. Ghanshyam Singh (1887) ILR 9 All 625 (Full Bench)	Authority holding that where Judges have delivered judgments as judgments of the Court without reservation, they cannot make a valid reference under the corresponding provision (Section 575 of the old CPC).	The Court applied Lal Singh to hold that once the two Judges delivered separate judgments without stating the points of difference, they ceased to be possessed of the case and could not validly refer for opinion; therefore the reference was ultra vires.
Mst. Akbari Begum v. Rahmat Hussain, AIR 1933 All 861 (Single Bench)	Practice and principles concerning reference on difference of opinion between Judges (cited as supporting precedent).	Referred to by the parties and considered in the Court's discussion of the established practice that a reference must be made while Judges are still possessed of the case and that the points on which they differ must be stated.
Vishwanathan v. Abdul Wajid, AIR 1963 SC 1	Supreme Court consideration of Lal Singh and the proposition that Judges who have delivered judgments without reservation cannot later refer the matter.	The Court cited Vishwanathan to note the Supreme Court's quotation of Lal Singh's proposition and to distinguish circumstances where the difference related not to a point of law.
Section 575, Code of Civil Procedure (old)	Historical provision similar in effect to Section 98 of the 1908 Code; used in comparison in earlier authorities (e.g., Lal Singh).	The opinion explained that Section 575 (old Code) was analogous to Section 98 and that Lal Singh's conclusion under Section 575 applied equally to the modern provision.
B. K. Rai v. Union of India, 1991 AWC 1408	Considered clause 27 of the Letters Patent and Rule 3; summarized the established requirements: reference must be made while Judges still possessed of the case; points must be stated; new Bench hears only the stated points.	The Court expressed respectful agreement with the conclusions in B.K. Rai and relied on that reasoning to reinforce that the present reference was invalid because the Judges had already delivered separate judgments without stating points of difference.

Court's Reasoning and Analysis

The Court's analysis proceeds in the following steps, based strictly on the material recorded in the opinion:

Identification of the procedural problem: two Judges on a Division Bench recorded conflicting outcomes on the same day (one judge admitting the appeal and granting a stay; the other dismissing the appeal). The order sheet then recorded that the matter be placed before the Chief Justice for orders.
Invocation of controlling texts: the Court examined Rule 3 of Chapter VIII of the Allahabad High Court Rules, 1952 and Section 98 of the Code of Civil Procedure, 1908, reading these provisions together to determine the proper procedure where Judges are divided in opinion.
Textual interpretation: Rule 3 and the proviso to Section 98 were read to mean that when a Bench is equally divided on any point, the Judges must state the point(s) of difference and only that point is to be referred to another Judge or Judges nominated by the Chief Justice; further, such a reference must be made while the original Judges are still "possessed of the case" (i.e., before they deliver their final judgments).
Reliance on precedent: the Court relied on Lal Singh v. Ghanshyam Singh (Full Bench) as authoritative for the proposition that if Judges have delivered judgments as judgments of the Court without reservation, they cannot thereafter make a valid reference (under the comparable old statutory provision). The Supreme Court's treatment in Vishwanathan v. Abdul Wajid (which quoted Lal Singh) was noted and used to support the principle.
Application to the facts: here both Hon'ble G.D. Dube and Hon'ble G.S.N. Tripathi had delivered their respective judgments without stating the point(s) of law on which they differed. Because the separate judgments had been delivered without the requisite reservation or stated point(s) of difference, the Judges had ceased to be possessed of the case and thus could not validly refer the matter to a third Judge for opinion.
Support from more recent authority: the Court expressed agreement with the analysis in B.K. Rai v. Union of India which summarized the practice and reinforced that references must be made while the Judges remain possessed of the case and must be confined to specific stated points.
Conclusion of legal effect: on this basis the Court concluded that the reference for opinion was ultra vires and therefore declined to give any opinion on the matter.

Holding and Implications

Holding: The Court held that the reference for opinion to a third Judge was ultra vires because both Judges of the Division Bench had already delivered separate judgments without stating the point or points of law upon which they differed; accordingly, no opinion was given.

Direct consequences and procedural disposition:

The reference was declared invalid (ultra vires) and the Court declined to express any opinion on the merits of the appeal.
The Registrar was directed to lay the papers of the case before the Chief Justice.
The order in the opinion concluded with the instruction: "Order accordingly." (i.e., no opinion and papers to be placed before the Chief Justice as recorded).

Broader implications: the opinion does not purport to lay down a new precedent beyond applying and confirming existing authorities (such as Lal Singh and B.K. Rai) and the statutory/rule framework; the immediate effect is procedural (invalidity of the reference and return of papers to the Chief Justice). The opinion does not discuss broader policy implications beyond these direct effects.

Disposition

The Court refused to give an opinion because the reference was ultra vires. It ordered the Registrar to place the case papers before the Chief Justice. The judgment records that "Order accordingly."

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Smt. Nirmal Swaran Singh v. Rozu-Ud-Din And Others

1. Suit No. 432 of 1990 Rozu-ud-din and another v. Smt. Nirmal Swaran Singh was filed in the court of Civil Judge, Saharanpur, for specific performance of a contract dated 20-9-1985. The suit was transferred to the court of IV Add). Civil Judge, Saharanpur. The suit was decreed on 29-5-1992. Aggrieved by the judgment and decree of the trial court, Smt. Nirmal Swaran Singh filed First Appeal No. 528 of 1992, which was heard at the admission stage by a Division Bench of this Court comprising of Hon'ble G.D. Dube and Hon'ble G.S.N. Tripathi, JJ. On a perusal of the order sheet of the case it would appear that the appeal was heard at the admission stage on 18-8-1992. On 24-8-1992 two conflicting judgments were pronounced, signed and dated by two Hon'ble Judges. While the appeal was dismissed by Hon'ble G.S.N. Tripathi, J., the senior Judge Hon'ble G.D. Dube admitted the appeal and passeed orders for staying the execution of the trial court decree. Thereafter, on the same day both the Hon'ble Judges passed the following orders on the order sheet:--

24-8-1992.

Hon. G.D. Dube. J.

Orders delivered today. Appeal admit. Issue notice. Stay application. Injunction granted.

Hon. G. S. N. Tripathi, J. Orders delivered today. Appeal isdismissed.

24-8-1992.

Hon. G.D. Dube. J.

Hon. G.S.N, Tripathi, J.

Since the two judgments have been passed differing with each other in this case at the admission stage, the case be placed before Hon'ble the Chief Justice for orders tomorrow."

2. The file was placed before the Hon'ble the Chief Justice on 25-8-1992, who passed the following order:--

"List before Hon'ble B.P. Singh, J. for opinion."

3. It is in this background that this appeal came up for opinion before this Court.

4. I have heard the learned counsel for the appellant, Shri G. N. Varma and the learned counsel for the respondents, Shri Rakesh Dwivedi at length.

5. A preliminary objection was raised by Shri Rakesh Dwivedi, learned counsel for the respondents, and it was vehemently contended by him that the reference for opinion to this Court was ultra vires. In this connection, reference has been made to Section 98 of the Code of Civil Procedure, Rule 3 of Chapter VIII of the Allahabad High Court, Rules, 1952 and the cases Lal Singh v. Ghanshyam Singh, ILR 9 All 625 (FB), Mst. Akbari Begum v. Rahmat Hussain, AIR 1933 All 861 (SB) and Vishwanathan v. Abdul Wajid, AIR 1963 SC 1.

6. The contention of the learned counsel for the respondents is that once the Hon'ble Judges had delivered their separate judgments without formulating their point of difference, the judgment and decree of the trial court stood confined, and the reference for the opinion of the third Judge, in the circumstances of the case, was unwarranted and ultra vires. On the other hand, learned counsel for the appellant has argued that the two judgments were passed by the Hon'ble Judges at the admission stage and there was no bar for the matter being referred to the third Judge for opinion.

7. The procedure when Judges are divided in opinion in a case finds place in Rule 3 of Chapter VIII of the Allahabad High Court Rules, 1952. Rule 3 runs as under:--

3. Procedure when Judges are divided in opinion. -- When a case, to which the provisions of the Code of Civil Procedure do not apply is heard by a Division court composed of two or more Judges and the Judges are divided in opinion as to the decision to be given on any point, such point shall be decided according to the opinion of the majority, if there shall be a majority. Should the Judges be equally divided they may state the point upon which they differ and each Judge shall record his opinion thereon. The case shall then be heard upon that point by one or more of the other Judges as may be nominated by the Chief Justice and the point decided according to the opinion of the majority of the Judges who have heard the case including those who first heard it.

8. The above quoted Rule 3 has taken the place of the Letters Patent and the present case is governed by its provisions for the simple reason that the provisions of the Code of Criminal Procedure are not applicable. A plain reading of this rule indicates that where two or more Judges are divided in opinion as to the decision to be given on any point, such point shall be decided according to the opinion of the majority, if there shall be a majority, but if the Judges be equally divided then they are to state the point upon which they differ and each Judge shall record his opinion thereon. It is in this eventuality that the case is then to be heard by one or more Judges as nominated by the Chief Justice. After the nomination of the Judge or Judges by the Chief Justice the point is to be decided according to the opinion of the majority of the Judges who have heard the case including those who first heard it. Thus, it is obvious that only the point upon which the Judges are equally divided is to be referred. It implies that the reference is to be made by the Judges who have heard the case and have not pronounced their final judgments in the case.

9. A similar question arose in the case of Laf Singh v. Ghanshyam Singh (supra). In this Full Bench case, Chief Justice Edge speaking for himself and his two brother Judges held:--

In this case a preliminary point is raised, that the order of reference ultra vires. Our brother Brodhurst informs us that the judgments of Sir Comer Petheram and himself were delivered, and that the order of reference was drawn up after the judgments had been delivered. Sir Comer Petheram and my brother Brod hurst, having delivered their judgments as judgments and without any reservation could not make an order under Section 575 of the Code of Civil Procedure. Under these circumstances the order was ultra vires, and we cannot entertain this reference. That order being ultra vires, it must be set aside and the judgment will be drawn up as if no such order had been made. There will be no order as to costs.

Justice Brodhurst, J. agreeing with the majority view observed as under:--

"As I now consider that the reference to the Full Bench was, under the circumstances above mentioned, illegal, I concur with the learned Chief Justice that the order must be reversed."

Justice Mahmood, agreeing with the majority view observed as under:--

"I concur with the learned Chief Justice, and if the objections were a mere matter of formality, I should have regarded it as unimportant, and would have added nothing to what has fallen from the learned Chief Justice.....

In the present case we have been assured by my brother Brodhurst that the judgments which he and Petheram, C.J., recorded were delivered from the Bench as judgments of the Court, and this being so, consistently with the views which I expressed in the case already cited, those learned Judges ceased to be possessed of the case, and could, therefore, make no reference under Section 575 of the Civil Procedure Code. Indeed, under the provision of that section, the decree made by my brother Brodhurst prevailed, and the order which referred the case to us was, therefore, ultra, vires, and the proper remedy open to the appellant was to have preferred an appeal under Section 10 of the Letters Patent. The remedy, may still be open to him, but I express no opinion as to how far such a remedy will be affected by the question of limitation."

Thus, the ratio of Lal Singh's case (supra) does not admit any ambiguity and is quite clear that once judgment has been delivered by the Judges who have differed each other without any reservation, they cannot take recourse to Section 575 of the Code of Civil Procedure. Section 575 of the old Code is similar to Section 98 of the Code of Civil Procedure, 1908. Section 98 of the Code runs as under--

"98. Decision where appeal heard by two or more Judges. -- (1) Where an appeal is heard by a Bench of two or more Judges, the appeal shall be decided in accordance with the opinion of such Judges or of the majority (if any) of such Judges.

(2) Where there is no such majority which concurs in a judgment varying or reversing the decree appealed from such decree shall be confirmed:

Provided that where the Bench hearing the appeal is composed of two or other even number of Judges belonging to a Court consisting of more Judges than those constituting the Bench, and the Judges composing the Bench differ in opinion on a point of law, then may state the point of law upon which they differ and the appeal shall then be heard upon that point only by one or more of the other Judges, and such point shall be decided according to the opinion of the majority (if any) of the Judges who have heard the appeal, including those who first heard it.

(3) Nothing in this section shall be deemed to alter or otherwise affect any provision of the letters patent of any High Court."

10. On a perusal of the proviso to subsection (2) of Section 98 of the Code of Civil Proceudre, it is also obvious that where a Bench hearing an appeal is composed of two or other number of Judges and the Judges composing the Bench differ in opinion on a point of law, they may state the point of law upon which they differ and the appeal shall then be heard upon that point only by one or more of the other Judges and such point shall be decided according to the opinion of the majority, if any, of the Judges who have heard the appeal, including those who first heard it. Section 98 of the Code of Civil Procedure also lays emphasis that the point of law on which the Judges are differing is to be referred.

11. The Supreme Court in the case of Vishwanathan v. Abdul Wajid (supra) had the occasion to consider the Full Bench case of Lal Singh v. Ghanshyam Singh (supra). The Supreme Court quoted the following observation from Lal Singh's case:--

"Where a Bench of two Judges hearing an appeal and differing in opinion have delivered judgments on the appeal as judgments of the Court without any reservation, they are not competent to refer the appeal to other Judges of the Court under Section 575 of the Civil Procedure Code (of 1882)."

12. In that case, a reference was made on a difference of opinion between two judges, but not on a question of law. Thus, it cannot be said that the decision in Lal Singh's case was overruled or disapproved when the Supreme Court was dealing with S. 15(3) of the Mysore High Court Regulation, 1884 and the practice which was prevalent in that Court.

13. A similar question arose in the recent case of B. K. Rai v. Union of India, 1991 AWC 1408. Hon'ble R. S. Dhavan, J., after examining clause 27 of the Letters Patent and Rule 3 of Chapter VIII of the High Court Rules, 1952 and the cases referred to above came to the following conclusion:--

"Clause 27 of the Letters Patent was not different than Rule 3, in context, as it stands today. The implication which emerges from the Akbari Begum's case and earlier Full Court matter re: ( 1887) ILR 9 All 625 is that (a) upon a difference of opinion a reference must be made while the Judges are still possessed of the case and before judgment, (b) the points on which the Judges constituting a Bench differ must be stated; (c) the case shall be heard on that point only by 'another' or 'new' Bench. In other words, hearing by the other Judge (or Judges) is confined to the specific points stated and cannot cover the whole case all over again; (d) there should not be a further hearing of questions on which there has been no difference of opinion at all."

I am in respectful agreement with the view taken by Brother R.S. Dhavan in the above cited case.

14. In view of what has been stated above, the present reference for opinion is ultra vires because both the Hon'ble Judges Hon'ble G.D. Dube and Hon'ble G.S.N. Tripathi, JJ. had ceased to have any jurisdiction over the case having delivered their separate judgments without stating the point or points of law upon which they were differing. It is not a case where the Hon'ble Judges were still possessed of the case. The mere fact that the Judges were hearing the appeal at the admission stage will not affect in any manner the position that having delivered their separate judgments the case was no more pending before them.

15. The reference being ultra vires, no opinion is given in the case.

16. Let the Registrar of the Court lay the papers of this case before Hon'ble the Chief Justice.

16. Order accordingly.

Smt. Nirmal Swaran Singh v. Rozu-Ud-Din And Others

Case Summary: Rozu-ud-din and another v. Smt. Nirmal Swaran Singh (Suit No. 432 of 1990)

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Respondents' (Defendant) Arguments

Appellant's (Plaintiff) Arguments

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Disposition

Smt. Nirmal Swaran Singh v. Rozu-Ud-Din And Others

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