Law: Civil Procedure Code (V of 1908)

Section: 98

(a) Civil Procedure Code (V of 1908)--S. 98 and Letters Patent (Lahore), cl. 26-Appeal heard by two or more Judges-Decision in case of-Difference of opinion arising between Division Bench, appeal ordered by Chief Justice to b.- heard by another Judge-Such third Judge taking view that Division Bench having not recorded any statement of point or points on which they differed and only one of them having passed order for placing case before Chief Justice for reference to third Judge procedure adopted not in accordance with law and as such Chief Justice not competent to direct appeal to be heard by third Judge-Chief Justice therefore ordering appeal to be heard de novo by a new Division Bench-Second Division Bench hearing case afresh as a pending Regular First Appeal and not as a reference under S. 98, C. P. C. or cl. 26 of Letters Patent-Held : Clause 26 of Letters Patent in terms does not provide for any form stating point of difference or for making reference to one or more Judges for resolution of difference between Judges originally hearing case-Point of difference-Can very well be found out by referee Judge or Judges upon perusing Judgments of dissenting Judges-Final decision of case rests on opinion of all Judges hearing case, i.e. those first hearing case and those bearing same on reference for resolution of difference-Judicial process envisages participation of all Judges and opinion of Judges originally hearing case an integral part of decision and not liable to be ignored-Reference to third Judge in case in hand in circumstances not violative of provisions of cl. 26 of Letters Patent and order made by one of Judges for placing case before Chief Justice not vitiative of proceedings-Refusal of third Judge to hear case on ground of lack of jurisdiction-Based on erroneous view of law-Subsequent order of Chief Justice constituting fresh Division Bench also violative of mandatory provisions of cl. 26 of Letters Patent. Muhammad Sayyar v. Vice-Chancellor, University of Peshawar and others P L D 1974 S C 257 ; Muhammad Akram v. Ch. . Muhammad Salim P L D 1964 Lab. 490 and Mir Muhammad v. District Magistrate, Nawabshah P L D 1165 Kar. 494 ref. (b) Civil Procedure…

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