UNION OF INDIA Vs. JOGINDER SINGH BHASIN

JUDGEMENT

(1.) R. Dayal, J. This appeal was filed by the appellants for setting aside the judgment and decree dated 7-10-1989 passed by the Civil Judge, Bareilly making award of the arbitrator dated 23-2-1988'a rule of the court with a slight modification about interest. The appeal was heard by a Division Bench consisting of Hon'ble Om Prakash J. and Hon'ble S. C. Verma, J. They were divided in their opinion and rendered on 9-12-1993 conflicting judgments. While Hon'ble Om Prakash, J. dismissed the appeal, Hon'ble S. C. Verma, J allowed the appeal holding that the arbitrator had committed manifest error of law and so the award was liable to be set aside and directing that the award be remitted for reconsideration by the arbitrator in accordance with the observations made in the judgment and in accordance with law. Some ancillary directions were also given. After delivering these judgments the learned Judges passed another order referring the following question for decision by a third Judge to be nominated by the Hon'ble Acting Chief Justice : "while on the facts and in the circumstances of the case, the impugned award deserves to be set aside. "

(2.) ACCORDINGLY, a direction was given for the record to be placed before the Hon'ble Acting Chief Justice for nominating a Judge at an early date. The Hon'ble Acting Chief Justice nominated Hon'ble D. S. Sinha, J as the third Judge before whom the case was directed to be listed. Hon'ble D. S. Sinha J in his order dated 6-7-94 took note of Rule 3 of Chapter VIII of the Rule of Court 1952 and observed: "rule 3 of Chapter VIII of the Rules of Court contemplates that should the Judges be equally divided in opinion as to the decision to be given on any point they may state the point upon which they differ and each Judge shall record his opinion thereon. The case is then to be heard upon that point alone by the Judge nominated by the Chief Justice. Further, division in opinion conceived of by the Rule 3 of the rules is a division at a stage prior to the finalisation of the process of decision making i. e. before the delivery of judgment. Difference of opinion after the finalisation of the process of decision making i. e. after the delivery of the judgment is not contemplated. In the instant case two conflicting judgments were delivered and duly signed by the Hon'ble Judges, completing the process of decision making and bringing into existence two valid judgments, and the question for reference for decision by a third Judge to be nominated by the then Hon'ble the Acting Chief Justice, without stating the point or the points upon which difference existed, was-framed thereafter. " In support of his view, Hon'ble Sinha J. referred to Birendra Kumar Rai v. Union of India and others, AIR 1992 Allahabad 151 and Smr. Nirmal Swaran Singh v. Rozu-ud-din and others, AIR 1993 Allahabad 121 and said that this Court has firmly ruled that reference to third Judge for his opinion under Rule 3 of Chapter VIII of the Rules of Court after delivery of conflicting judgments, and without stating the point or points on which there was difference amongst the Judges forming the Division Court, is incompetent and ultra vires. " Further, the learned Judge observed that in "the case of Birendra Kumar Rai v. Union of India and others (supra) it has been further ruled that in a situation as is one arising in the instant case proper course will be reference to a larger Bench, in the instant case to a full Bench, or an appeal before the Hon'ble Supreme Court of India. " The conclusion reached by the learned Judge is as under : "inevitable conclusion, therefore is that no reference otherwise than on difference of opinion on a point of fact or law arising before the finalisation of the process of decision making, to be precise before delivery of the judgment, is visualized either by Rule 3 of the Rules or by the proviso to sub-section (2) of Section 98 of the Code Now, in the circumstances of the case, following three alternatives are available : (i) Confirmation of the decree under appeal by the Division Court which heard the appeal under Section 98 (2) of the Code ; (ii) Appeal to the Hon'ble Supreme Court of India by the aggrieved party; (iii) Reference of the whole case to a Full Bench. Let the case, therefore, be placed before the Hon'ble the Chief Justice for orders. "

(3.) THE point for decision in the reference is whether the reference by the Division Bench to a third Judge was incompetent and, if so, whether the judgment and decree of the learned trial court stood confirmed under Section 98 (2) of the C. P. C. and if, the judgment and decree of the trial court have not stood so confirmed, then how the matter should proceed further.