P L D 1962 (W (PLP)

"In the light of the above discussion, I hold that suit properties are waqf‑fi‑sabilillah and the plaintiff being its mutawalli is entitled to their possession. The appeal is accordingly allowed and the plaintiff's suit decreed with costs throughout." Just underneath the above note, Muhammad Yaqub Ali, J. appended the following note which is dated the 23rd of December 1961: ‑ "Since I and Abdul Hamid, J. have differed in our con clusions, the case will be laid before my Lord the Chief Justice for nominating another Bench to hear the appeal." On the case being placed before the learned Chief Justice, he ordered that it should be heard by me. It is in there circumstances that Regular First Appeal 65 of 1954 had come before me. I heard arguments of learned counsel for the parties but it was only when I started dictating the judgment that it came to my notice that the order that the appeal should be laid before another Bench for hearing was passed by Muhammad Yaqub Ali, J., alone. As the questions I am considering in R. F. A. No. 6 of 1958 seemed to me to arise also in Regular First Appeal No. 65 of 1954, I called upon the learned counsel for the parties in the former appeal to address me on those questions.

3. Now, an appeal in which Judges hearing it are' equally divided with regard to the decision to be given is governed by section 98 of the Code of Civil Procedure and clause 26 of the Letters Patent of the High Court of Judicature at Lahore which was to apply to the High Court of West Pakistan by reason of G.‑G. O. No. XIX of 1955, known as the West Pakistan High Court Order, 1955, which was issued by the then Governor -General of Pakistan on the 9th of October 1955, and came into force as soon as the Province of West Pakistan came into being, namely, on the 14th of October 1955. Section 98 of the Code of Civil Procedure is in the following terms: "(1) Where an appeal is beard 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 Judges belonging to a Court consisting of more than two 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. (3) Nothing in this section shall be deemed to alter or otherwise affect any provision of the Letters Patent of any High Court." While clause 26 of the Letters Patent reads as under: ‑ "And we do hereby declare that any function which is hereby directed to be performed by the High Court of Judi cature at Lahore, in the exercise of its 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." As there is some difference in the provisions contained in section 98 of the Code of Civil Procedure and those contained in clause 26 of the Letters Patent of this Court, the case will be governed by the latter with the result that if the decision of two Judges hearing an appeal were divided the case shall be laid before another Judge or Judges. Before, however, the case could be laid for decision before some other Judge or Judges, the provisions of clause 26 of the Letters Patent are to be complied with. One of these provisions is that the Judges who are not agreed with regard to the order that should be passed have to state the point or points upon which they differ and the case was then to be heard upon that point or points by one or more of the other Judges of the Court. In the two appeals under consideration, as I have already mentioned, no statement of the point or points upon which Muhammad Yaqub Ali, J. ands the Judge who sat with him differed was stated in the note recorded by Muhammad Yaqub Ali, J. on the 22nd of July 1960 in the case of one appeal and on the 23rd of December 1960 in the other, which notes have been reproduced earlier. It follows, therefore, that in each of the two appeals his note would appear to suffer from the following two infirmities: ‑ (1) That it has been passed by only one of the Judges who heard the appeal initially, and (2) that it does not state the point or points on which the two learned Judges who heard the appeal had differed. The above‑mentioned two defects make it clear that the note, recorded by Muhammad Yaqub Ali, J. on the 22nd of July 1960 in one case and on the 23rd of December 1960 in the other, whereby he directed that the cases be laid before the learned Chief Justice for nominating another Bench to hear the appeals were not in accordance with law.

4. Having held that the notes recorded by Muhammad Yaqub Ali, J. with regard to the cases being laid before the learned Chief Justice for nominating another Bench to hear them did not comply with the provisions contained in clause 26 of the Letters Patent of this Court, I proceed to consider whether the learned Chief Justice was competent to mark the cases tome for disposal, and whether I am competent to dispose of the cases. Under the rules contained in Chapter 3‑B of Volume V of the Rules and Orders of this Court, Regular First Appeals of the type under consideration cannot be disposed of by a Judge sitting alone. This, however, is subject to the condition that a Judge sitting alone can deal with such an appeal on the Judges who initially heard it being equally divided in opinion with regard to any point or points, provided the case came before him in accordance with law. I am clear in my mind that, if clause 26 of the Letters Patent of this Court has not been complied with, the Chief Justice is incompetent to direct that the present Regular First Appeals should be heard by a judge sitting singly, If, therefore, the orders of the learned Chief Justice had been passed independently of the notes recorded by Muhammad Yaqub Ali, J. on the 22nd of July 1960 in one case and on the 23rd of December 1960, in the other, they would have been without jurisdiction and could not confer jurisdiction on me to hear either of the two appeals.

5. I pass on to the question whether the two appeals can be held to have been sent to me for disposal in accordance with law. In neither of his notes wherein he directed that the appeal be laid before the learned Chief Justice did Muhammad Yaqub Ali, J. mention that he was acting under clause 26 of the Letters Patent of this Court, but the omission to mention that provision of law cannot, by itself, invalidate the acts of sending the cases to the learned Chief Justice for being entrusted to another Judge or Judges for disposal. Clause 26 of the Letters Patent of this Court, which has been reproduced in paragraph 3, contains the following words:‑ "but, if the Judges be equally divided, they shall state the point upon which they differ and the case shall then be heard on that point by one or more of the other Judges . . . ." Mr. A. R. Sheikh, Advocate, who appeared for the appellants in both the appeals, contended that though the relevant notes of Muhammad Yaqub Ali, J. could not be said to have strictly complied with the provisions contained in the relevant law, the case was no worse than one of an irregularity which could be overlooked. He drew my attention to Mst. Sardar Bibi v. Haq Nawaz Khan and another (A I R 1934 Lah. 371 (F B)), Chaudhri Muhammad Tufail v. Mst. Barkat Bibi and others (P L D 1955 Lah. 1) and The Civil & Military Gazette v. Chaudhri Ghulam Rasul (P L D 1956 Lah. 365) in all three of which decisions omission of the Judges who had differed on some points that hose in the appeals heard by them to mention those points was held to be no more than an irregularity. Reference was made by the learned counsel to Telu Mal v. Subha Singh and another (90 P R 1880) also wherein it was said that a reference to a third Judge could be made at the instance of only one of the two Judges who had differed on a point or points requiring decision in an appeal. I am clear in my mind that there is a fundamental difference between the omission of the Judges to `mention the point or points of difference and the omission of one of the Judges to take any part in the act of indicating that the case be heard on the points of difference. In my view the former omission can be treated as one of form only while the latter cannot be so treated. Or, to put the same thing in a different language, the former omission can be treated to be a curable irregularity while the latter cannot be so treated because it involves a question of jurisdiction. I need not consider the three decisions cited by Mr. A. R. Sheikh wherein the omission of the Judges who had differed to mention the point or points on which they differed was treated to be a curable irregularity, of which three decisions I might mention one was given by myself. As regards the decision given in the case reported as Telu Mal v. Subha Singh and another it should be borne in mind that it interpreted section 575 of the Code of Civil Procedure, 1877, which was to the effect that if two Judges hearing an appeal differed on any point or points the case had to be referred to some other Judge or Judges. The language in which section 575 of the Code of Civil Procedure, 1877, was couched did not make it incumbent that the Judges who had differed should make a reference while clause 26 of the Letters Patent of this Court, which is the provision of law under consideration, says clearly that the Judges who had not been able to agree on a point or points arising in an appeal heard by them should state the point or points on which they had not been able to come to an agreed finding. Why the law‑maker thought it necessary to say that in case the Judges were equally divided the Judges who had not been able to agree with regard to the decision should state the point or points on which they differed is not difficult to understand, but even if one were to be of the view that there could be no reasonable ground why all the Judges who had differed should state so the fact remains that the law requires that they should do so and in the face of this clear dictate of the law it is not open to any Judge to say that non‑compliance with the provision, which, as I have already said, relates to juris diction, is immaterial and can be treated as a mere irregularity. In each of the appeals under consideration, the law gave the two Judges who heard each of the appeals the power to state that they had differed and I cannot accept the contention that even one of the two could exercise the jurisdiction conferred on both of them acting jointly. Consequently, I hold that the note recorded by Muhammad Yaqub Ali, J. on the 22nd of July 1960 in Regular First Appeal No. 6 of 1958 was not in accord with the relevant law like the note he recorded on the 23rd ‑of December 1960 in Regular First Appeal No. 65 of 1954 and could not for that reason be acted upon by the learned Chief Justice for sending the appeals to another Judge for disposal.

6. In 'view of what I have said above, I hold that as the provisions of clause 26 of the Letters Patent of this Court had not been complied with by M. Yaqub Ali, J. the learned Chief Justice had no jurisdiction to send the appeals to a Judge sitting singly and, therefore, I have no jurisdiction to hear either of these two appeals. One of the appeals, namely, Regular First Appeal No. 6 of 1958 will have to be heard by two Judges because R. B. Munshi, J. who had heard the appeal sitting with Muhammad Yaqub Ali, J. retired from service on the 1st of August 1961. The other appeal was heard by Muhammad Yaqub Ali, J. and Abdul Hamid, J. and as the latter is still in service it is not impossible for the two Judges to sit jointly for recording the note mentioned in clause 26 of the Letters Patent of this Court, if they feel that it should be recorded. The papers shall be laid by the Deputy Registrar of this Court before the learned Chief Justice for such orders as he may deem fit to pass. As neither of the parties in the two appeals can be said to be even remotely responsible for what has necessitated the present order, I will leave them to bear their own costs in the proceedings before me. A. H. Reference returned.