1. ZAFFAR HUSSAIN MIRZA, J.-This is an' appeal by special leave from the judgment and order of a Division Bench of the erstwhile High Court of West Pakistan, Lahore, dated 5-10-1966, in R. F. A. No. 65 of 1954.
2. Briefly, the facts material for the present purposes are that the heirs of one Saadat Ali Khan referred their disputes, in regard to their right of inheritance to an arbitrator, authorising hire, inter alia, as he thought fit "to give a hidayat (direction), for a Waqf Al-il-Aulad, or a Waqf Fi-Sabil-lllah". The arbitrator purporting to act m pursuance of the aforesaid authorisation made a direction implementing an undertaking given earlier by the heirs to create a Waq( Fi-Sabil-lllah of 1/5th of the estate, that certain specified property should be made Waqf Fi-Sabil-Illah within a year of the date of the award, and directed also that the Anjuman Islamia Punjab, Lahore, should be made the Mutawalli. This award was subsequently made the rule of the Court. However, since the direction for the creation of a waqf was not implemented, the Anjuman filed a suit for possession of the property specified for the waqf in the award, or in the alternative for specific performance of the award and possession.
3. This suit was dismissed on 21-5-1954 by the Civil Judge Ist Class, .Lahore, and being aggrieved by this decision, the Anjuman filed R. F. A. No. 65 of 1959 in the erstwhile High Court . Of West Pakistan, Lahore. This appeal was initially called up and heard by a Division Bench composed of Muhammad Yaqoob Ali and Abdul Hamid, JJ. Who recorded differing opinions. One of the learned Judges held that the reference was void and thereby award founded thereon was similarly vitiated, because one of the referring parties was insane at the material time. He further held that the award created no waqf but had allowed the whole estate to devolve upon the heirs directing four of them to create a waqf. Thus no trust had been created in favour of the Anjuman by this direction and only a promise by the female heirs (one of whom was held to be insane) had been extended for creation of a waqf; The other learned Judges, held on the other hand, that none of the signatories to the reference was insane, and that the award created the waqf of its own force. One of the learned Judges after the differing opinions were recorded by them, appended a note, dated 23-12-1961, whereby the difference of opinion was recited and it was directed by him that "the case will be laid before my Lord the Chief Justice for nominating another Bench to hear the appeal". The case was accordingly placed before the then learned Chief Justice. It was then ordered that it should be heard by another learned Judge of the Court. However, when the case was placed before the learned third Judge, he proceeded to hear the arguments of the counsel for the parties, but at the time of dictating the judgment, he noticed certain facts on the record and called upon the counsel to address him in that connection. The learned Judge on considering the further arguments of the counsel and the matters on record came to take the view that since in this case the two learned Judges who differed with each other, had not recorded any statement of the point or points upon which they differed, and secondly, only one of the learned Judges passed the order for placing the case before the learned Chief Justice for reference to the third Judge, the procedure adopted was not in accordance with law. On these premises, the learned Judge concluded that the learned Chief Justice was in competent to direct, in terms of clause 26 of the Latters Patent of the Lahore High Court as applicable, that the appeals be heard by a Judge sitting singly. Accordingly, the learned third Judge thus holding that he had no jurisdiction to hear the case, directed that the case may be laid before the learned Chief Justice for such orders as he may deem fit to pass. This decision is reported as Muhammad Bashir v. Walayat Begum PLD 1962 Lab. 993 On considering the aforesaid orders passed by the learned Third Judge, the learned Chief Justice came to the conclusion that, "there seems to be no alternative but to rehear these two cases de novo." However, since it was not possible to reconstitute the previous Division Benches, as one Member from each was no longer available, he decided that the best course was that a new Division Bench be constituted to hear the case. Accordingly, a special Division Bench was constituted for rehearing the appeal. Eventually, the Division Bench of Sajjad Ahmad and Muhammad Gul, JJ. Heard the appeal and it would be pertinent to note, that the learned Judges of this Bench were clear in their minds and so expressed in the impugned judgment itself, that the appeal "has been heard afresh by this Bench under the orders of the learned Chief Justice. . During the course of the hearing before the learned Judges a preliminary objection was raised on behalf of the present appellants (respondents before the High Court), to the effect that "as the two learned Judges who bad first heard the appeal have not stated the point of law on which they had differed, the decree of the trial Court stands confirmed under section 98(2) of the Code of Civil Procedure". The learned Judges repelled this objection by referring to subsection (3) of section 98 of. The Code of Civil Procedure, which left unaffected all the provisions of the Letters Patent of the High Court by anything in section 98. It was rightly held that clause 26 of the Letters Patent would govern section 98, . C. P.,C Then the learned Judges made the following revealing observations :- "But this question does not arise in the present appeal because, as already pointed out, the reference to the third Judge (Mr. Justice Shabir Ahmad) was found by him to be invalid and the learned Chief Justice has convened a fresh Division Bench for the hearing of the appeal, upholding the view point of Mr. Justice Shabir Ahmad. The respondents did not take any steps to challenge the validity of those orders. The appeal has been heard by us not on a reference under section 98 of the C. P. Code or under the Letters Patent but as a first appeal in the ordinary course."
4. Having thus disposed of the preliminary objection, the learned Judges proceeded to decide the case on merits and held that the reference and the award were not vitiated by the alleged insanity of one of the heirs, that the waqf was created by the award itself and that the Anjuman had locus standi to bring this suit. This judgment was pronounced on 5-10-1966. The present appellants then came up before this Court seeking leave to appeal and by order, dated 28-8-1967, this Court granted leave to appeal in order to examine the question of law "whether the Second Division Bench was right in proceeding to hear and decide the appeal as a First Appeal, ignoring the fact that the appeal had been heard by an earlier Division Bench and opinions had been pronounced on it by the learned Judges of that Bench."
5. From the above narration of the circumstances appearing on the record, it was not disputed before us that the Second Division Bench had heard the case afresh as a pending Regular First Appeal, and not as a reference under section 98 of the Code of Civil Procedure or clause 26 of the Letter Patent. The short question for determination in this appeal is, therefore, whether the impugned judgment and order passed by the Second Division Bench in total disregard of the opinions expressed by the learned Judges of the Bench first constituted for decision of this appeal, is a valid decision of the Court in proper exercise of its appellate jurisdiction ?
6. Sardar Muhammad Iqbal, the learned Advocate appearing for the appellants contended that the correct legal position can be stated as under;
(1) On a difference of opinion between the learned Judges who composed the First Division Bench, the appeal remained pending before that Division Bench till such time the third Judge to whom the case was required to be referred for resolving the points of difference, recorded his opinion, and the Division Bench was then to pronounce its decision, in accordance with the majority view.
(2) In case of a difference of opinion, recorded by the two Judges of the original Division Bench, the only jurisdiction that the learned Chief Justice possessed, under rule 5 of Chapter IV-H, High Court kules and Orders, Volume V, was to have referred the case to another Judge. He could not, therefore, constitute another Division Bench for hearing and decision of the case afresh, with the result that the opinions recorded by the learned Members of the First Division Bench were wholly bypassed, although that Bench continued to have seizin of the matter.
(3) The refusal by Mr. Justice Shabir Ahmad to hear the case as a referee Judge, could have at best been treated as a refusal on his part to hear the case. But he had no jurisdiction to give directions in the matter for further dealing with the case.
(4) The learned Chief Justice was under a statutory obligation to refer the case to another Judge.
7. But his order to constitute a fresh Division Bench for the purpose of hearing the appeal afresh was wholly without jurisdiction and a nullity in law.
8. In the premises, it is urged that, the Regular First Appeal No. 65 of 1954 purporting to be disposed of by the Second Division Bench shall be deemed to be pending in the High Court, and should be disposed of in accordance with law.
9. In support of his submissions, learned counsel has referred to a number of decisions on the point under consideration, but it is not necessary to refer to them, for the recent pronouncement of this Court in Muhammad Sayyar v. Vice-Chancellor, University of Peshawar and others (1) has after reviewing a large number of cases from the sub-continent, interpreted the provisions of clause 26 of the Letters Patent of the Lahore High Court, which is sufficient to dispose of the points raised in this appeal. The facts of this case were that a writ petition was heard by a Division Bench of the Peshawar High Court in which the two learned Judges differed on the interpretation of a Government Notification, which was material for the decision of the case. The case was accordingly placed before the learned Chief Justice of the High Court, who unfortunately without any reference to the provisions of either clause 26 of the Letters Patent of the High Court or section 98 of the Code of Civil Procedure and without formulating the points of difference proceeded to decide the case, as if the whole case was before him. The learned Chief Justice ultimately found himself in agreement with the conclusions of one of the learned Judges of the Division Bench but for entirely different reasons and without deciding the point of difference at all. The judgment of the learned Chief Justice was challenged before this Court and on the interpretation of clause 26 of the Letters Patent, it was held that "in a case in which the members of a Division Bench are equally divided, they must either deliver dissenting judgments bringing out the points of difference or formulate the points of difference for reference to a third Judge, and the thud learned Judge must then decide the point or points of difference and return his opinion to the Division Bench to enable it to announce its judgment". This was the procedure also provided in rule 5, Chapter 4-H, Volume V of the Lahore High Court Rules. Their Lordships referred to the Full Bench case of Muhammad Akram v. Ch. Muhammad Salim (2) on the question whether the Division Bench in which difference of opinion has occurred should formulate the point of difference, the Full Bench took the view that "no special form is prescribed in either of the provisions for stating the point upon which the Judges have come to differ. It may be in the form of a dissenting judgment which will include the points of difference as well as reasons given in their support or in the form of a separate order expressly stating the point or points of fact or law on which the Judges who first heard the appeal or the case have differed". On this point, reference was also made to Mir Muhammad v. District Magistrate, Nawabshah (3) in which the points of difference were not separately formulated by the learned Judges who first heard the case. But the learned third Judge after referring to the dissenting opinions of the two learned Judges gave his opinion on the point of difference and although one of the learned Judges who originally heard the case was not available at Karachi, a Division Bench was constituted in place of the original Bench to deal with the matter under clause 26 of the Letters Patent and the final judgment was announced by one of the Judges of this newly- constituted Bench. In the case under discussion Muhammad Sayyar v. Vice-Chancellor of University of Peshawar, the final conclusion was summed up in the following manner :- "From the above review of the decisions, it would appear that there is a consensus of opinion in all the High Courts. In a case of this
(1) PLD 1974 SC 257 (2) PLD 1964 Lab. 490
(3) PLD 1965 Kar. 494 nature, it is only the point of difference that is referred to the third Judge, and the third Judge merely resolves the difference between the Judges of the Division Bench, who continue to retain jurisdiction over the matter. The final decision in the case was to be on the basis of the majority opinion including the Judges who constituted the Division Bench. Therefore, it is manifest that a referee Judge has no jurisdiction to decide anything else besides the point on which there is difference of opinion, as the whole case or appeal is not before him. What the learned Chief Justice of the Peshawar High Court did in the present case was, therefore, wholly without jurisdiction. He decided a point, on which, there was no difference of opinion at all. Neither of the Judges of the Division Bench had taken the view that there was no valid notification or order governing the grant of concessional marks to examinees."
10. At this stage, clause 26 of the Letters Patent may be reproduced for convenience of reference, which reads as under :- "And we do hereby declare that any function which is hereby directed to be performed by the High Court of Judicature at Lahore, in the exercise of the original or appellate jurisdiction, may be performed by any Judge, or by any Division Court, thereof, appointed or constituted for such purpose in pursuance of section one hundred and eight of the Government of India Act, 1915 ; and if such Division Court is 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 of the Judges, if there be a majority, but, if the Judges be equally divided, they shall state the point upon which they differ and the case shall then be heard upon that point by one or more of the other Judges and the point shall be decided according to the opinion of the majority of the Judges who, have heard the case, including those who first heard it."
11. It will be seen, as observed by their Lordships in the case of Muhammad Sayyar, that clause 26 of the Letters Patent, in terms does not prescribe for any form for stating the point of difference or for making the reference to one or more Judges for the resolution of the difference between the Judges originally hearing the case. Such point of difference can very well be found out by the referee Judge or Judges upon perusing - the judgments of the dissenting Judges, in order to hear and formulate opinion on the point of difference, so that finally the point may be decided "according to the opinion of the majority of the Judges who have heard the case including those who first heard it".
12. We are, therefore, clearly of the opinion that the reference to the third Judge made by the then learned Chief Justice was in no way in violation of any of the provisions of clause 26 of the Letters Patent and the order made by one of the Judges for placing the case before the learned Chief Justice, did not in any manner vitiate the proceedings. The refusal on the part of the learned third Judge to hear the ease on the ground of lack of jurisdiction, was with all respect to him; an erroneous view of the law. The subsequent order of the learned Chief Justice to constitute a fresh Division Bench for rehearing the whole appeal and not only the point of difference between the two Judges who heard the case first, was therefore, a procedure in violation of the mandatory provisions of clause 26 of the Letters Patent, since no compliance on the terms thereof can be possible in the circumstances of this case. The --scheme underlying the provisions of clause 26 of the Letters Patent quite clearly envisages and provides for the machinery for the decision of a case falling within the ambit of this clause, by a majority of the Judges of the Court. The essential part of the provisions is that the final decision of a case in which there occurs a difference of opinion or equal division between the Judges originally constituting the Bench who hear the case, is the decision on the question of difference on the result of the effect of the opinion of all the Judges who come to bear the point in question, i.e. Those who first heard it and those who hear the point after the difference of opinion has been recorded by the learned Judges who first heard the case. The judicial process thus envisages the participation of all the 'Judges and the opinion of the Judges who first bear the case is an integral part- of the decision and cannot, therefore, be ignored from being taken into account. Any procedure which has the effect of excluding the opinions of the Judges of the Bench who originally heard the case would thus be clearly illegal. Indeed the jurisdiction of the Judge or Judges to whom the point or point of difference between the Judges of the original Bench, flows from the factum of the difference of opinion and is confined only to the decision or opinion on such point or points of difference alone. It is only when the referee Judge or Judge record their opinion on the points of difference, such opinion is to be forwarded to the original Bench for pronouncing the decision of the case by the majority opinion. It is in this context that in the case of Muhammad Sayyar, it was held that "a referee Judge has no jurisdiction to decide anything else besides the point of which there is difference of opinion, as the whole case or appeal is not before him".
13. ' In the present case, in expressly dealing with the case afresh as a whole, the learned Judges constituting the second Division Bench, therefore, exercised jurisdiction not vested in them by law.
14. It was suggested that notwithstanding the fact that the learned Judges in the impugned judgment, did not advert to the difference of opinion recorded by the learned Judges of the original Bench, it is a mere irregularity and the appeal could be deemed to have been decided by taking into consideration the opinion of all the four learned Judges and upholding the decision by virtue of the opinion of the majority. In our opinion, however, in the view that we have taken, it is not possible to hold that the learned Judges while rendering the impugned judgment were only recording opinion on the point of difference between the learned Judges of the original Bench, from what has been expressly stated in the judgment itself. The judgment is, therefore, not sustainable in any view of the matter.
15. For the foregoing reasons, this appeal succeeds and the judgment and decree passed by the subsequent Division Bench, dated 5-10-1966, is hereby set aside. The result is that Regular First Appeal No. 65 of 1954 shall be deemed to be pending and shall be dealt with in accordance with law, as provided in clause 26 of the Letters Patent of the High Court, -in the light of what has been stated in this judgment, from the stage where the learned Judges constituting the first Division Bench which was seized of this appeal, recorded their opinions. Since a difficult question of law was involved in this case, we, leave the parties to bear their own costs.