RUKN UL MULK SYED ABDUL WAJID Vs. RVISVANATHAN

JUDGEMENT

(1.) The petitioners in these four petitions are the respondents in R.A. Nos. 104 and 109 of 1947-48. Two civil petitions are filed under Section 151 and Order 41, Rule 21, Civil P.C., praying that the Court may be pleased to set aside the ex parte decree passed respectively in the appeals. Two other petitions C.Ps. Nos. 50 and 49 of 49-50 relate respectively to the above appeals and are filed under Section 114 and Order 47, Rule 1 of the C.P.C., for review of the judgment passed in the above appeals.

(2.) Before discussing the merits of these petitions it is necessary to set out in brief the history of these cases. Before these appeals were posted for hearing, the parties filed an application in or about March 1948 to advance the hearing of the appeals for an early disposal of the same. The appeals were subsequently heard by a Bench consisting of the then Chief Justice and when the arguments were almost concluded, the parties took time with a view to effect a compromise. Later, they were heard by another Bench and the Judge composing the Bench delivered differing opinions with the result that the cases were referred to a Full Bench for final decision. The appeals were posted to 25 July 1949 before the Full Bench for arguments. The respondents filed an application for adjournment on the ground that they had requested the Government for the constitution of a Special Bench. The counsel for the respondents also filed memos praying for permission to retire from the cases. The applications for adjournments were dismissed after arguments and orders were passed on the memos refusing permission to the counsel to retire. Thereupon, the Court proceeded to hear the arguments and ultimately judgment was pronounced in both the appeals on 29 July 1949. As noted in the order-sheets in these appeals, the respondents-plaintiffs and their counsel were all present on 25 July 1949. On 16 July 1949 also, Messrs. L.S. Raju and Venkatanarasimhaiya, the advocates for the respondents were present and on 27th July 1949 and 29th July 1949 Sri Venkatanarasimhaiya's presence is noted.

(3.) Sri K. Hanumanthaiya, the learned advocate, who now represents the petitioners respondents addressed a common argument in relation to all the petitions and so, they were heard together. The first point raised by Sri Hanumanthaiya is that the reference by the Division Bench to the Full Bench is irregular and contrary to the provisions of Section 15, High Court Act. His contention is that Sub-clause 3 of Section 15, High Court Act requires the Judge, differing in opinion to formulate a material question pending before them for reference to a Full Bench and that if a reference is made without formulating a material question in that manner, it becomes incompetent. The scope of the application under Section 98, Civil P.C. as also Section 15, High Court Act, has been fully dealt with by the Full Bench of this Court in a case (S.A. No. 179 of 47.98 Mysore). Sub-clause 3 of Section 15, High Court Act, runs as follows: " The decision of the majority of Judges comprising any Full Bench of the High Court or other Bench of the said Court consisting of not less than three Judge shall be the decision of the High Court. (When a Bench of the High Court consists of only two Judges and there is a difference of opinion between such Judges on any material question pending before it, such question shall be disposed of in the manner prescribed in Section 98, Civil P.C. or Section 429, Criminal P.C., as the case may be or at the discretion of either of the Judges composing the Bench, it shall be referred to a Full Bench and the decision of the majority of the Judges on such Full Bench shall be the decision of the High Court.) It is true that when the Bench consists of only two Judges and there is a difference of opinion between such Judges on any material question pending before it, such question at the discretion of either of the Judges composing the Bench shall be referred to a Full Bench. There is no warranty in the words of the Section for the contention that a material question or questions about which there is a difference of opinion should always be formulated before a reference is made to the Full Bench though a specific question may be formulated and referred. In the event of differences of opinion on all the material questions which are necessary for the disposal of the case the entire case will have to be referred to the Full Bench with the opinions of the differing Judges on the entire matters and the formulation of any question or questions becomes unnecessary. This is also in accordance with the precedent and practice of this Court. A number of case have been referred like this in this Court to a Full bench without specifying all the material questions involved in the cases. Moreover, an objection of this kind should be raised before the Bench decides the case and what is more an irregularity of this nature even if it is deemed an irregularity cannot form a ground for review of a judgment on merits.