1. ' BASHARAT AHMAD SHAIKH, J.---This is an appeal, by leave of the Court, calling in question the order passed by a learned Single Judge in the High Court on 14th of January 1993, in a pending civil appeal directing that status quo shall be maintained till disposal of the appeal. Leaving out the unnecessary details, the facts of the case are that an appeal filed by the Azad Government of the State of Jammu and Kashmir was entrusted by the learned Chief Justice to a Bench consisting of two learned Judges of the High Court. The appeal was fixed for hearing on 14th of January 1993, but on 2nd of January 1993 respondent in the High Court, Brig. (Rtd.) Muhammad Aslam Khan, moved an application that the Government was removing some timber which had floated down from the lease area and it was prayed that the Government may be restrained from doing so. The application came up before a learned vacation Judge, who on 4th of January 1993, granted the application and the order prayed for was issued. However, it was ordered that the order would be operative only till the 14th of January when the application was to be taken up alongwith the main case. On 14th of January when the appeal came up for hearing one of the two learned Judges comprising the Division Bench was out of the headquarters, therefore, arguments could not be heard in the main appeal. A prayer was made by the respondent, who was present in person, that interim injunction may be extended till the final disposal of the appeal. This prayer was granted and status quo was ordered to be maintained till the decision of the appeal.
2. ' The petition for leave to appeal was filed by the Azad Government of the State of Jammu and Kashmir and a number of points were raised. Howeer, the important point which apparently appeared to be weighty was that only the Division Bench which was seized of the case was competent to pass the interim order. We, therefore, granted leave in the case. An application for suspending the operation of the order of the learned single Judge was also moved but we decided not to pass any order on the application and to hear expeditiously the main appeal so that the question may be finally decided one way or the other.
3. ' We have now heard the learned counsel for the parties at some length. The learned counsel for the appellant, Raja Muhammad Hanif Khan, submits that the cases pending disposal in the High Court have to be decided by the Benches constituted by the learned Chief Justice in light of the Azad Jammu and Kashmir High Court Procedure Rules, 1984, hereinafter referred as "the High Court Rules". He draws our attention to the following definition of the `Court' as given in rule 3 of the aforesaid Rules:- "3(1) 'Court' means the High Court of Azad Jammu and Kashmir and includes a Bench thereof consisting of one or more Judges;"
4. ' He then refers us to Rule 14 to show that the appeal pending in the High Court has to be heard by a Division Bench. Raja Muhammad Hanif Khan contends that the order under appeal was passed in exercise of section 151 of the Code of Civil Procedure read with enabling provisions. He submits that section 151 refers to High Court as the Court which possesses inherent poweRs, The question whether a particular cause or matter has to be decided by one or more Judges of the High Court has to be seen in light of the High Court Rules.He contended that 'Court' in this case means the Division Bench and not a member of the Bench. The learned counsel relied on Sub.-Major Fazal Ellahi v. The State (PLD 1978 SC (AJ&K) 80).
5. ' On the other hand Ch Pazal-e-Hussain, the learned counsel for the respondent, contends that the High Court Rules cannot override the provisions of a statute. He explains that an order under section 151, C.P.C. Can be passed by the High Court and the order under appeal is an order of the High Court. He contends that the saki Rules are only procedural in nature and lay down internal working of the High Court and thus powers vested by a statute remain uneffected. The learned counsel also contends that at the relevant time the other learned Judge, who was member of the Division Bench, was not holding Court and it was necessary in the interest of justice to pass the impugned order and in these circumstances technicalities can be overlooked. He relied on Manager, Jammu and Kashmir State Property in Pakistan v. Khuda Yar and others (PLD 1975 SC 678) in which the Supreme Court of Pakistan held that legal technicalities should not be allowed to defeat the ends of justice. It was also contended that the original decree in the case was passed by a Single Bench of the High Court and for that reason a Single Judge was authorised to grant interim relief in the interest of justice.
6. ' Section 43 of the Azad Jammu and Kashmir Interim Constitution Act lays down that the High Court shall consist of a Chief Justice and such number of other Judges as may be prescribed by an Act of the Assembly. The Azad Jammu and Kashmir Courts and Laws Code, 1949 in its 5th section, also lays down that the High Court shall consist of a Cheif Justice and as many other Judges as may be appointed from time to time. These two provisions to which the High Court owes its existence do not lay down that the powers vesting in the High Court will be exercised by every Judge of the High Court. Read in isolation these provisions may appear to provide that powers vesting in the High Court shall be exercised collectively by the Chief Justice and all the Judges who are on the Bench of the Court. However, there are enactments which lay down that the powers of High Court have not to be exercised by all the Judges together. Section 24 of the Courts and Laws Code, 1949 lays down that:-- "24. (1) Any function which is hereby directed to be performed by the High Court, may be performed by any Judge or by any Division Court appointed or constituted for the purpose by the Chief Justice "
7. ' The High Court Rules have been framed in exercise of powers under section 44-A of the Interim Constitution Act read with section 52 of the Courts and Laws Code, 1949 by, the High Court with the approval of the Government. Rule 8 providts as fellows:- "8. Constitution of benches Judges shall sit alone or in such Benches as may be constituted-from time to time by the Chief Justice and do such work as may be allotted to them by the Chief Justice or under his direcitons."
8. ' According to scheme of the High Court Rules one category of cases are to be heard by a Single Judge while cases falling in another category have to be heard by a Division Bench but all such Benches must be constituted by the Chief Justice. It is provided in rule 14 that the Chief Justice may direct that a case which can be heard by a Judge sitting alone shall be heard by two or more Judges. The effect of these provisions is that when the Chief Justice entrusts a case to a Bench the powers vested in the High Court by or under any law will be exercisable by that Bench. It necessarily follows that only the specified Bench can exercise that power and none else.
9. ' In the present case the Bench consisting of the two learned Judges is seized of the appeal filed by the Azad Jammu and Kashmir Government. It was open to the Chief Justice to make an order that the application moved by Brig. (Rtd.) Muhammad Aslam Khan, respondent herein, for interim relief would be heard by a Single Judge but that was not done. Since the petition was moved in the main appeal the Division Bench alone was competent to pass any order on that petition. There is no question of any technicality. Section 24 of the AJ&K Courts and Laws Code and Rule 8 of the High Court Rules confer jurisdiction and, therefore, must be held to be mandatory in nature. Any transgression will render the order passed as coram non judice. Therefore, the Manager, Jammu and Kashmir State Property in Pakistan case does not advance the case of Ch. Fazal-e-Hussain. On the other hand Sub.-Major Fazal Ellahi v. The State (PLD 1978 SC (AJ&K) 80) relied upon by Raja Muhammad Hanif Khan fortifies the conclusions reached by us. It was laid down in that case that:- - " the expression 'the Court' occurring in section 514, Cr.P.C. When the bond was taken by the Court for appearance of an accused before it, means the Court before which the proceedings had been taken. If such Court comprises of a Single Judge then such proceedings could be taken by the Single Judge but if it comprises two or more Judges then the proceedings can be taken by the Court comprising both Judges and not by a Single Judge sitting in his chamber."
10. ' In light of the foregoing analysis the order passed by the learned Single Judge is unsustainable.
11. Therefore, we accept the appeal and vacate the order passed on 14th of January 1993. However, it is clarified that application filed by respondent Brig. (Rtd.) Muhammad Aslam Khan (Civil Misc. No,2 of 1993) shall be deemed to be pending and a proper order may be passed on it by the learned Judges composing the Division Bench.