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Niranjan Singh Vs. State of Rajasthan and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtRajasthan High Court
Decided On
Case NumberReference No. 11 of 1974 in C.W.P. No. 483 of 1973
Judge
Reported in1974(7)WLN222
ActsRajasthan High Court Rules, 1952 - Rules 54, 55, 61, 66(1), 74 and 83; Rajasthan High Court Ordinance, 1949 - Sections 44(2)
AppellantNiranjan Singh
RespondentState of Rajasthan and ors.
Appellant Advocate M. Mridul, Adv.
Respondent Advocate M.L. Shrimal, Govt. Adv. and; S.K. Tiwari, Dy. Govt. Adv.
Cases ReferredKhan v. Mt. Abadi Begam
Excerpt:
rajasthan high court rules, 1952 - rules 54, 55 & 66--constitution of bench chief justice is empowered to direct that a case in which a date of hearing has been fixed by a bench, shall to listed for hearing before another bench.;it is therefore the responsibility of the chief justice to constitute the division courts or benches. the judges are required to sit alone or in the division benches and, in either case, do such work as may be allotted to them by order of the chief justice or in accordance with his direction. this power to allot the work to the judges cannot be taken away, in face of the clear provision of rule 64, merely because a date of hearing has been fixed in a case by a particular bench.;it is thus clearly permissible for the chief justice to reverse any earlier order.....shinghal, j.1. the necessity for this reference has arisen in these circumstances: a writ petition (no. 457 of '1973) was filed by m/s. bherulal and company against the state of rajasthan, the rajasthan state road transport corporation and three others. there were several other petitions of a similar nature. some of them came up for admission before jain, j., on april 6, 1973 and were admitted by him mr. r.n. munshi, who was then the government advocate, accepted notice on behalf of the respondents the same day and the learned counsel for the petitioners were directed to supply copies of the writ petitions and the stay applications to him. at the same time, interim stay orders were made and the stay applications were ordered to be taken up for hearing on april 16, 1973, on which date.....
Judgment:

Shinghal, J.

1. The necessity for this reference has arisen in these circumstances: A writ petition (No. 457 of '1973) was filed by M/s. Bherulal and Company against the State of Rajasthan, the Rajasthan State Road Transport Corporation and three others. There were several other petitions of a similar nature. Some of them came up for admission before Jain, J., on April 6, 1973 and were admitted by him Mr. R.N. Munshi, who was then the Government Advocate, accepted notice on behalf of the respondents the same day and the learned counsel for the petitioners were directed to supply copies of the writ petitions and the stay applications to him. At the same time, interim stay orders were made and the stay applications were ordered to be taken up for hearing on April 16, 1973, on which date those orders were confirmed. Having regard to the urgency of the main cases, it was ordered that they may be listed for hearing on July 9, 1973 and the parties were directed to place the other material on the record by July 2, 1973.

2. On July 4, 1973, Mr. R.N. Munshi filed an application (in writ petition No. 447 of 1973 and other connected petitions) under the first proviso to Rule 55 of the Rules of the High Court of Rajasthan, 1952, hereinafter referred to as 'the Rules', read with Section 151' of the Code of Civil Procedure. The application was addressed to the Hon'ble the Chief Justice and it was prayed that, for the reasons mentioned in the application, all the connected cases may be ordered to be heard by a Division Bench. Copies of the application were given to the other learned counsel. It came up for consideration before the Chief Justice on August 3, 1973. Mr. L.L. Sharma and Mr S.M. Mehta appearing for a large number of petitioners had no objection to the hearing of the writ petitions by a Division Bench so long as that did not prejudice the application which they had made in the meantime, on July 20, 1973. against Mr. R.N. Munshi and others for contempt of Court Mr. M.M. Vyas and Mr. R.R. Vyas (who represented the petitioners in 8 out of 63 petitions) opposed the application on the ground that it was likely to create a bad precedent. The Chief Justice took the view that as the petitions affected the business interests of numerous private operators as well as the Rajasthan State Roadways Corporation which had purchased a number of vehicles already, the interests of Justice required that having regard to the stakes involved and the urgency of the matter, all the petitions should be heard by a Division Bench, In the meantime, Jain, J., had adjourned the hearing of the petitions. The petitions were thus heard by the Division Bench and were dismissed on November 16, 1973. The propriety of the aforesaid order of the Hon'ble Chief Justice dated August 3. 1973 was not the subject-matter of any controversy at all in those petitions.

3. The application which was made on July 20, 1973 for taking action against Mr. R.N. Munshi and others for contempt of Court, came UD for consideration before the same Division Bench on January 8, 1974. In deciding it the same day, their Lordships observed as follows,--

'According to Rule 54 of the Rajasthan High Court Rules, 1952, it is the privilege of Hon'ble the Chief Justice to constitute Single or Division Benches from time to time and to allot business (cases) to them and the Judges of the Court shall sit to hear cases according to the arrangement made by Hon'ble the Chief Justice. Rule 55 provides for the type of cases that shall ordinarily be heard and disposed of by a Judge sitting singly. The writ petitions that Jain, J. was hearing were covered by Rule 55 of the Rules.

In our humble view, once a case goes before a Bench according to the allotment of business made by Hon'ble the Chief Justice and thereafter the Bench is seized of the case then, we are afraid, the Hon'ble the Chief Justice has no power to withdraw that case from that Bench and to allot it to another Bench. It will be for that Bench who is seized of the case to think for itself whether it would like to hear that particular case or not. It is only when such Bench releases that case that Hon'ble the Chief Justice would be able to allot it to another Bench, but not otherwise. The Rules make no provision for transfer of such a case from one Bench to another, as we find in Section 24 of Civil Procedure Code for Subordinate Courts. When a Bench is seized of a case it is dealing with the case as the High Court and the judgment pronounced by that Bench is the judgment of the High Court and in the absence of any provision to enable Hon'ble the Chief Justice to withdraw such a case from a Bench we cannot hold that such a power exists in Hon'ble the Chief Justice. In the circumstances when Jain, J. had already fixed 9-7-1973 for the hearing of these cases and such type of cases were being normally dealt with by Jain, J. at the relevant time the opposite parties had no justification whatsoever for approaching Hon'ble the Chief Justice, only four days before the hearing, to constitute another Bench for the hearing of these cases. If the opposite parties felt that the cases were of great importance then they should have made a move before Jain J, himself so that, if the learned Judge were satisfied of the sufficient importance of the cases he would have himself made a reference to a larger bench and then Hon'ble the Chief Justice could have constituted a larger Bench.'

Their Lordships' decision has since been reported in Bherulal & Co. v. Rajasthan State Road Transport Corporation, 1974 Raj LW 61 = (AIR 1974 Raj 84).

4. It is these observations of the Division Bench which have given rise to the present reference in S. B. Civil Writ Petition No. 483 of 1973 (Niraman Singh v. State of Rajasthan and others) which is pending before a learned Single Judge. That case was placed for admission before Jain, J., on April 12, 1973. He admitted the petition and issued notice to the respondents. The same day he made an order in S. B. Civil Miscellaneous Slav Application No. 450 of 1973, for the issue of a notice and directed that, meanwhile, the petitioner shall not be dispossessed 'from the land in dispute'.

5. It is not disputed before us, and is in fact admitted, that the constitution of the Benches of the Court was changed with effect from September 27, 1973, by an order of the Hon'ble Chief Justice, so that the writ petition fell to be heard by Joshi, J. The aforesaid stay application therefore came UP for orders before him on November 26, 1973. He confirmed the ad interim stay order of Jain, J., and directed that the main case may be listed for hearing on February 12, 1974 along with other similar cases.

6. There was some change in the roster from January 12, 1974 by an order of the Chief Justice and it is admitted before us that according to it such cases were thereafter to be heard by Gupta, J. An application was. however, made to the Hon'ble Chief Justice on behalf of the respondent State on February 22, 1974, under the first proviso to Rule 55 of the Rules and Section 151 of the Code of Civil Procedure, praying that the writ petition, along with the other connected petitions, mav be ordered to be heard by a Division Bench. So when the case came up for hearing before Gupta. J., on February 28, 1974, the learned Deputy Government Advocate invited his attention to the aforesaid application dated February 22. 1974. The learned counsel for the petitioner had no objection, and Gupta, J., made an order that the application may be laid before the Hon'ble the Chief Justice for orders and that the hearing of that and the connected petitions may stand over. The Hon'ble the Chief Justice heard the application in the presence of the learned counsel for the parties on March 1, 1974. It was urged before him by Mr. Mridul that in view of the observations in Bherulal's case 1974 Raj LW 61 = (AIR 1974 Raj 84) Joshi, J., was 'seized' of the matter and Gupta, J., 'could not proceed with it'. The Hon'ble the Chief Justice held that in view of the observations referred to by Mr. Mridul, he could not decide the application.

7. The case went back to Gupta, J. When it was taken up by him on March 7, 1974 it was urged by Mr. Mridul, learned counsel for the petitioner, that as Joshi. J., had, while decidina the stay application, passed an order on November 26, 1973 that the case along with like cases should be listed for hearing on February 12, 1974, it was not possible for Gupta, J., to proceed to hear the cases in view of the observations in Bherulal's case as Joshi, J., was 'seized' of the cases. Gupta, J., however, expressed a doubt whether, on the basis of the observations in Bherulal's case 1974 Raj LW 61 = (AIR 1974 Raj 841 even Joshi, J., would be able to hear the cases because 'such type of cases' were not 'being normally dealt with' by him. He examined the relevant rules, and expressed the view that the judgment in Bherulal's case required reconsideration by a larger Bench. He therefore formulated the following questions for reference,--

'(1) Whether the Hon'ble the Chief Justice has no power to direct that any case or class of cases, in which a date of hearing had been fixed by a Bench, be listed for hearing before another Bench ?

(2) Whether the view taken in Bherulal's case regarding the provisions of Rules 54 and 55 of the Rajasthan High Court Rules, 1952, is correct?

(3) Whether any Bench before whom a case is fixed for hearing is not competent to hear it. merely on the ground that a date for hearing has been fixed in that case by another Bench at some earlier stage'.

The Hon'ble the Chief Justice has constituted this Bench to answer 'the three questions in these circumstances.

8. The first question is whether the Hon'ble the Chief Justice has no power to direct that any case or class of cases in which a date of hearing has been fixed by a Bench may be listed for hearing before another Bench? It has been argued by Mr. Mridul that the Chief Justice has no such power because the Bench which has fixed the date of hearing is 'seized' of the case to the exclusion of all other Benches. The learned counsel has placed reliance on Zikar v. Government of State of Madhva Pradesh, AIR 1951 Nag 11 to support his argument. He has also made a reference to Rule 66 (1) of the Rules and has urged that such a case should always be treated as 'tied up' with the Bench which had fixed the date of hearing. The learned counsel has gone to the extent of arguing that it is the mandate of Rule 66 (1) that with the exception of a case in which a Bench has merely directed notice to issue to the opposite party or passed an ex parte order, all other cases should be deemed to be the partly heard cases of that Bench. Mr. Shrimal, learned Government Advocate, has argued, on the other hand that the Chief Justice has the power to direct that any case or class of cases in which a date of hearing has been fixed by a Bench may be listed for hearing before another Bench.

9. In order to appreciate the controversy, it is necessary to examine the relevant provisions of the Constitution of our country, the Rajasthan High Court Ordinance. 1949, and the Rules.

10. Article 214 of the Constitution provides that there shall be 'a High Court for each State'. There can therefore be no question of there being two such Courts exercising jurisdiction in a State. Apart from Article 214, Article 225, which deals with the jurisdiction of existing High Courts, makes it quite clear that--

'............ the jurisdiction of. and the law administered in, any existing High Court, and the respective powers of the Judges thereof in relation to the administration of justice in the Court, including any power to make rules of Court and to regulate the sittings of the Court and of members thereof sitting alone or in Division Courts, shall be the same as immediately before the commencement of this Constitution.'

The Constitution has therefore made it quite clear that (i) there is only one High Court in a State, fill it is that High Court which exercises jurisdiction in the State, (iii) the Judges of the High Court are members thereof and do not constitute separate Courts, (iv) the Judges of the High Court exercise powers in relation to the administration of justice in the High Court, and (v) the High Court has the power, inter alia, to make rules to regulate its sittings and of its members sitting alone or in Division Court. The Judges are therefore members of the High Court and do not constitute separate Courts unto themselves. They may sit 'alone' or in 'Division Courts' for the purpose of transacting the business of the Court, in accordance with the rules of the Court, but that is a domestic matter of the High Court, and cannot have the effect of creating as many High Courts as there are Benches. The Benches are in fact required to be constituted for no other purpose than to regulate the sittings of the High Court so that its Judges may be able to sit alone or in Division Benches, as may be necessary. A litigant or a party to a case cannot therefore claim to have any vested interest in any such Bench or Benches which, taken as a whole, are required by the Constitution to function as the High Court for the State.

11. It is not in controversy before us that the Rajasthan High Court Ordinance, 1949, was in force immediately before the commencement of the Constitution and Sub-sections (1) and (2) of Section 44 thereof provided as follows,--

'44. Distribution of business and administrative control.--

(1) The High Court may by its own rules, provide as it thinks fit for the exercise by one or more Judges, or by Division Courts constituted by two or more Judges of the High Court, of its original and appellate jurisdiction,

(2) The Chief Justice shall be responsible for the distribution and conduct of the business of the High Court, and shall determine which Judge in each case will sit alone and which Judges of Court will constitute a Bench,'

The High Court has accordingly made the Rules, and the Hon'ble the Chief Justice has to discharge his responsibility for the distribution and conduct of the business of the High Court both under Sub-section (2) of the aforesaid Section 44 and the Rules.

12. Rule 54 of the Rules provides for the constitution of Benches. It is a part of Chapter V which deals with the jurisdiction of judges sitting alone or in Division Courts and is to the following effect,--

'54. Judges shall sit alone or in such Division Courts as may be constituted from time to time and do such work as may be allotted to them by order of the Chief Justice or in accordance with his direction'

It is therefore the responsibility of the Chief Justice to constitute the Division Courts or Benches. The Judges are required to sit alone or in the Division Benches and, in either case, do such work as may be allotted to them by order of the Chief Justice or in accordance with his direction. This power to allot the work to the Judges cannot be taken away, in face of the clear provision of rule 54, merely because a date of hearing, has been fixed in a case by a particular Bench.

13. Rule 55 of Rules provides what cases shall ordinarily be heard and disposed of by a Judge sitting alone. Even so, proviso (a) of the rule is to the following effect,-

'Provided that,-(a) the Chief Justice may from time to time direct that any case or class of cases which may be heard by a Judge sitting alone shall be heard by a Bench of two or more Judges.'

The Chief Justice has therefore the power 'from time to time' to direct that any particular case or class of cases may be heard by a Bench of two of more Judges even though it may, ordinarily, fall to be heard by a single Judge, It is well settled that the meaning of the words 'from time to time' is that 'after once acting the donee of the power may act again; and either independently of, or by adding to, or taking from or reversing altogether. his previous act'. Stroud's Judicial Dictionary. It cannot, in such a case, be said that the person who has the power to act has 'completely discharged, his duty when he has once acted.' The words 'from time to time' have therefore been interpreted to mean 'as and when it is appropriate so to do': Re Von Dembinska. Ex parte The Debtor, (1954) 2 All ER 46. It is thus clearly permissible for the Chief Justice to reverse any earlier order of allotment of any particular case or class of cases to a Judge sitting alone, and to direct that it may be heard by a Bench[ of two or more Judges.

14. But apart from proviso fa) of Rule 55, Rule 61 of the Rules also provides that, save as otherwise provided, inter alia, by a general or special order of the Chief Justice, every case other than that mentioned in the preceding rules, shall be heard and disposed of by a Bench of two Judges. A case which would ordinarily be heard and disposed of by a Judge sitting alone will therefore be heard by a Division Bench if the Chief Justice so directs.

15. I have gone through Rule 66 (1) on which considerable reliance has been placed by Mr. Mridul. It reads as follows,--

'66 (1) A case partly heard by a Bench shall ordinarily be laid before the same Bench for disposal. A case in which a Bench has merely directed notice to issue to the opposite party or passed an ex parte order shall not, be deemed to be a case partly heard by such Bench.'

There is nothing in the rule to justify the argument that such a case should always be treated as 'tied up' with a Bench simply because it has once fixed the date of its hearing, or that with the exception of a case in which a Bench has directed the issue of notice to the opposite party or passed an ex parte order all other cases should be deemed to be part-heard. On the other hand, the use of the word 'ordinarily' goes to show that if there are extra-ordinary reasons, even a part-heard case may not 'be laid before the same Bench for disposal. So far as the second sentence of Rule 66 (1) is concerned, it is really in the nature of an illustration, or an explanation. As has been stated in 'Craies on Statute Law', seventh edition, p. 226, illustrations are of relevance and value in the construction of the text, and are 'helpful in the working and application of the Statute'. So also, as has been held in Abdul Latif, Khan v. Mt. Abadi Begam, AIR 1934 PC 188, an explanation may be inserted ex abundanti cautela. An illustration or explanation cannot, in such circumstances, over-ride or militate against the meaning of the text. I have no doubt, therefore, that the second sentence of Rule 66 (1) of the Rules cannot justify the argument that only that case in which a Bench has merely directed notice to issue to the opposite party or passed an ex parte order shall not be deemed to be a case partly heard by such Bench while all other cases, including a case in which a date of hearing has been fixed by a Bench, shall be deemed to be the part-heard cases of that Bench and shall be tied UP with it. There is therefore nothing in Rule 66 (1) to justify the argument that a case in which a date of hearing has been fixed by a Bench cannot be listed for hearing before another Bench.

16. Hearing and adjournment of cases is the subject-matter of Chapter VI of the Rules. Rule 73 of the Chapter deals with the daily cause list. It provides that the Registrar shall subject to such directions as the Chief Justice may give 'from time to time', cause to be prepared for each day on which the Court sits, a list of cases which may be heard by the differant Benches of the Court. I have already examined the meaning of the words 'from time to time' and it is permissible for the Chief Justice to reverse altogether, if necessary any previous order and to direct what case or cases will be heard by each Judge or Bench of Judges.

17. Rule 74 is another relevant rule. It deals with part-heard cases and merely provides that a case which remains part-heard 'at the end of the day' shall ordinarily be placed first after miscellaneous cases, if any, in the day's list for the day on which such Judge or Judges 'next sit'. The proviso to the rule says that if any part-heard case cannot be heard for more than two months on account of the absence of any Judge or Judges constituting the Bench, the Chief Justice may order such a case to be laid before any other Judge or Judges to be heard afresh. There is therefore nothing in this rule also which could justify the argument that a case in which a date of hearing has been fixed by a Bench cannot be listed for hearing before another Bench by an order of the Chief Justice.

18. The rule which remains for consideration is Rule 83. It provides that if the date of hearing in any case has been fixed by a Judge, any alteration in such a date shall, 'so far as possible,' be made after consulting him. The rule has no relevance for purposes of the present reference because it is correlated to Rule 82 which deals with an advocate's application for the postponement of his cases. It is a rule of convenience which cannot, at any rate, detract from, 'the powers of the Chief Justice referred I to above.

19. It is therefore clear from an examination of all the relevant provisions of the Constitution, the Rajasthan High Court Ordinance, 1949 and the Rules that there is no justification for the argument that the Chief Justice has no power to direct that a case or class of cases in which a date of hearing has been fixed by a Bench cannot be listed for hearing before another Bench.

20. I have gone through Zikar's case AIR 1951 Nag 11 on which reliance has been placed by Mr. Mridul for the argument that there is no power in the Chief Justice to withdraw or transfer a case of which a Division Court is in seisin. A reading of the entire judgment shows, however, that it was quite a different case which had been heard by the Bench concerned on several dates and it was thereafter, when it was a part-heard case, that an application was made for its 'transfer' to another Bench. But question No. 1 does not relate to a part-heard case or a case in which an application has been made for its transfer to another Bench. Zikar's case has therefore no relevance for purposes of that question.

21. I have no doubt therefore that question No. 1 should be answered as follows,--

'The Hon'ble the Chief Justice has the power to direct that any case or class of cases in which a date of hearing has been fixed by a Bench shall be listed for hearing before another Bench.'

22. Question No. (2) is whether the view taken in Bherulal's case 1974 Raj LW 61 = (AIR 1974 Raj 841 regarding the provisions of Rules 54 and 55 of the Rules is correct. I have already extracted the relevant paragraphs of that judgment. In making their observations the learned Judges who decided that case have made a reference to Rule 54 of the Rules but. if I may say so with respect, they have not taken due notice of the words 'from time to time' and the word 'allotted' occurring in that rule. As has been shown, those words are important, for it is permissible for the Chief Justice, on the authority of those words, to reverse altogether any previous order for the constitution of the Benches and allotment of work to the Judges and to reconstitute the Benches and to order. or direct what work will foe allotted to the Judges. And it is that work which the Judges are required to do.

23. So also, I may point out, with all respect, that although their Lordships have stated that Rule 55 'provides for the type of cases that shall ordinarily be heard and disposed of by a Judge sitting singly', they have not noticed proviso (a) of that rule, to which reference has been made above, although it was of considerable importance. The proviso, as has been shown, contains the words 'from time tp time' so that the Chief Justice may, if necessary, reverse his earlier order and direct that any particular case or class of cases which may be heard by a Judge sitting alone, shall be heard by a Bench of two or more Judges. I have set out the facts of Bherulal's case 1974 Raj LW 61 = (AIR 1974 Raj 84) already, and I have no doubt that the view taken by the learned Judges is not correct.

24. Their Lordships have stated further in Bherulal's case 1974 Raj LW 61 = (AIR 1974 Raj 84) that 'once a case goes before a Bench according to the allotment of business made by Hon'ble the Chief Justice and thereafter the Bench is seized of the case then, we are afraid, the Hon'ble the Chief Justice has no power to withdraw that case from that Bench and to allot it to another Bench'. Reference in this connection has been made to the absence of any provision like Section 24 of the Code of Civil Procedure in the Rules.

25. It appears to me however, that the question of seizure of a case by a particular Judge is, for reasons already stated, not of much importance in the case of a High Court. In a High Court, 'seizure' can relate only to 'possession' of the case, as it were, by a particular Bench, for purposes of hearing and disposal by a member or members of the Court, and no more. It has to be appreciated that, in its proper sense, 'seizure' in respect of a case in a Court of law is the initial step in a proceeding, and is essential to the existence of an action or the jurisdiction of the Court. Since the jurisdiction, for reasons already stated, Vests in the High Court, by virtue of Article 225 of the Constitution, it is the High Court which is in the true sense of the word, seized of a case. As has been shown, the Chief Justice cannot be (deprived of his power to direct that a particular case or class of cases shall be listed for hearing before another Bench merely because a date of hearing has been fixed by a Bench already.

26. Learned Government Advocate has pointed out that, as has been stated. Mr. S.M. Mehta had no objection to the writ petitions (including the writ in 1974 Raj LW 61 = (AIR 1974 Raj 84)) being put up for hearing before a Division Bench, and there was no occasion for the learned Judges to express any opinion about the validity of the order of the Chief Justice dated August 3, 1973. It has been pointed out further that the parties did not in fact, challenge the validity of the Chief Justice's order during the course of the hearing of the class of cases which had been allotted to the learned Judges, and there could therefore be no occasion for raking up that .question, after a decision had been pronounced on Nov. 16, 1973, in an ancillary proceeding. It has accordingly been urged toy learned Government Advocate that the aforesaid observations in Bherulal's case (AIR 1974 Raj 84) are obiter and should be treated as such for they would otherwise militate against the validity of the decision dated November 16, 1973. It will be sufficient to say that while I do not express anv opinion about the effect of the observations in Question on the decision dated November 16. 1'973. it is difficult for me to reject the contention of the learned Government Advocate that they are obiter dicta.

27. For the reasons mentioned above my answer to question No. (2) is as follows,--

'The view taken in Bherulal's case AIR 1974 Raj 84 regarding the provisions oil Rules 54 and 55 of the Rules is not correct.'

28. This leaves one more question for examination. It raises the question whether a Bench before which a case is fixed for hearing is not competent to hear it merely on the ground that a date of hearing has been fixed in that case by another Bench at some earlier stage ?

It will be recalled that it is the requirement of Rule 54 of the Rules that whether the Judges sit alone or in Division Courts (or Benches), they shall do such work as may be allotted to them by order of the Chief Justice or in accordance with his direction. I have already made a reference in this connection to the other rules as well as to the provisions of Section 44(2) of the High Court Ordinance and the relevant provisions of the Constitution. It would follow therefore that a case will be fixed for hearing before a Bench only by virtue of an order or direction of the Chief Justice. If so, the answer to question No. (3) cannot be dissimilar from the answer to question No. (1) and. for reasons already stated, there is no reason why the Bench before which a case is fixed for hearing should not be competent to hear it merely because a date for its hearing has been fixed by another Bench at some earlier stage. I would therefore answer question No. (3) as follows,--

'The Bench before whom a case is fixed for hearing is not incompetent to hear it merely on the ground that a date for hearing has been fixed in that case by another Bench at some earlier stage'.

M.L. Joshi, J.

29. I agree with the conclusions reached by my brother Shinghal, J.

D.P. Gupta, J.

30. I agree and have nothing more to add.

By the Court

31. The following decisions on the three questions may be returned to the Bench hearing the case for further necessary action,--

'(1) The Hon'ble the Chief Justice has the power to direct that any case or class of cases in which a date of hearing has been fixed by a Bench shall be listed for hearing before another Bench.

(2) The view taken in Bherulal's case AIR 1974 Raj 84 regarding the provisions of Rules 54 and 55 of the Rules is not correct.

(3) The Bench before whom a case is fixed for hearing is not incompetent to hear it merely on the ground that a date for hearing has been fixed in that case by another Bench at some earlier stage.'

There will be no order as to the costs.


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