1. When this appeal came up for hearing, Mr. Baleshwari Prasad, one of the learned Counsel for the respondent, raised the objection that this High Court was not today properly constituted, and therefore the appeal could not, be heard by us. The basis, of his argument is that Young, J., has gone away and has been appointed the Chief Justice of the Lahore High Court, and therefore this High Court is short by one barrister Judge. His further argument is that under Section 101, Government of India Act, at least one-third of the Judges of the High Court should be barristers and, as that rule has not been complied with, the High Court is not properly constituted.
2. Of the two arguments the first is-a question of fact. We have not got any evidence before us that Young, J., is not yet a member of this Court. He went away on leave. Till he takes over charge in the Lahore High Court, he continues to be a member of this Court. We are asked to take judicial notice of the fact that Young, J., has taken over charge of the Lahore High Court. But no judicial notice can be taken of a fact like this. The second argument is, in our opinion not sound. S.. 101, Clause (4) no doubt provides that at least one-third of the Judges oil the High Court shall be barristers. But this does not mean that if on account of certain reasons a vacancy occurs the other Judges of the High Court shall be deemed incompetent to carry on the work of the High Court till the vacancy has been filled up. For reasons which may occur without any previous intimation, for example, if a Barrister Judge or a Civilian Judge happens to die suddenly, there is bound to be a vacancy and, if the argument of Mr. Baleshwari Prasad be good, the other Judges cannot work legally till the vacancy has been filled up. Now, it will take sometime for the Local Government to secure a suitable appointment. If the argument of Mr. Baleshwari Prasad had been sound, we should have expected some provision in the Government of India Act, which should have said that the High Court should not function till the appointment had been made.
3. An occurrence like the one which has been made the basis of this argument must be happening very often, having regard to the fact that we have seven High Courts in India. If the argument were at all sound, some provision against the argument would have been provided for by the Legislature. We may mention here that a similar objection, though not exactly in these terms, was raised before this High Court in the year 1887. The objection there related to the number of Judges. At that time the number of the Judges, who were functioning, was short by one, and the argument was raised that the High Court was not properly constituted. A Full Bench of this Court decided otherwise: vide, Lal Singh v. Ghansham Singh (1884) 9 All. 625. In our opinion, the objection has no force and is hereby overruled.
4. The counsel for the parties are agreed that in view of our judgment in the connected appeal No. 361 of 1930, this appeal should be remanded and the Court below should calculate the amount of mesne profits in view of our findings in that judgment, this appeal having arisen out of an application for assessment of mesne profits due during the pendency of the suit. We accordingly direct that a copy of our judgment in First Appeal No. 361 of 1930, be sent down to the Court below the decree of the Court below be reversed and that it be asked to reassess the mesne profits in accordance with the findings arrived in First Appeal No. 361 of 1930. Costs will be at the disposal of the Court below. The court-fee paid on the memorandum of appeal will be refunded to the appellant under Section 13, Court-fees Act.