The main legal point established in the judgment is that the formulation of points of difference by the Division Bench is not an essential statutory requirement before referring the case to the Chief Justice, and if the Judges in the Division Bench differ on points or issues, the same can be noted by the third Judge before whom the matter is assigned.

N. Paul Vasantha Kumar, J.

1. This matter is placed before the Full Bench on the basis of difference of opinion in terms of order of Chief Justice made on 22.04.2009 on the note of Registrar Judicial to answer the following issues:

"a. Whether or not before referring the case to the Chief Justice of the High Court, formulation of points of difference by the Division Bench is an essential statutory requirement, so that points of difference can be referred to another Judge or Judges in terms of the aforesaid Rule.

b. Whether or not on the reference made by the Chief Justice, one of the Judges composing the Bench could decline to formulate the point/s of difference in light of the provisions of Rule 36(2)."

As the legal issue alone has to be decided and having regard to the fact that the prayer sought for in the LP appeal has become infructuous due to efflux of time, which was in relation to consider the technical bit of the writ petitioner for allotment of work of construction of road from Purmandal to Panjowa via Deon (Block Purmandal) and Miran Sahib to Darsopur (Block R.S. Pura), the tender was subsequently conferred to other persons and the work has also been completed.

2. Issues which are to be answered, as narrated above, has been raised before the Full Bench. Even though the matter was to be placed before the Full Bench in terms of order dated 22.04.2007, it is only on 04.04.2016 that the matter was listed. We have heard arguments of Mr. B.S. Manhas Advocate appearing for the petitioner and Mr. D.C. Raina, Advocate General along with Mr. Ravinder Gupta AAG and Mr. Amit Gupta, Dy. AG for the respondents.

3. While hearing the LP appeals by the Division Bench, separate orders were pronounced on 19.10.2006 as there was difference of opinion between the Judges composing the Division Bench. However, points of difference of opinion were not formulated. In the light of the Rule position i.e. Rule 36 of the J.&K. High Court Rules, 1999, note dated 13.11.2006 was prepared and put up and the question was framed as to whether or not before posting the case to another Judge, formulation of point/s is required under Rule 36(2) so that points of difference be answered.

4. As stated supra, in the LP appeals, one of the Judges in a separate Judgment dismissed the appeal by upholding the order of the learned single Judge by a detailed order and the another Judge allowed the appeal and set aside the Judgment of the learned single Judge also by a reasoned order.

5. When note was put up by Registrar Judicial on 13.11.2006 before the Chief Justice, the matter was ordered to be placed before Division Bench for formulating the points of difference by Administrative Order dated 17.11.2006.

6. On 11.12.2006, the matter was listed before the very same Division Bench as ordered by Chief Justice and one of the Judges, composing the Division Bench, observed as follows:

"In our considered opinion the reference made by the Hon'ble Chief Justice is without any legal competence. Once a Bench of the Court decides a case finally by passing a judicial order, it becomes functus officio. The validity or otherwise of the judicial order passed by the Bench can only be determined judicially by a Superior Court vested with such jurisdiction under law. The Chief Justice possesses no jurisdiction for remitting a case back to the Bench in exercise of his administrative power for reconsidering any point or issue involved in the case.

We therefore, with due deference to the learned Chief Justice (A) decline to entertain the reference."

7. The said order was not signed by one of the Judges and the other Judge passed a separate order on 30.12.2006 and formulated the points of difference as follows:

"1. Would an agreement of five persons to constitute a partnership inter alia on the following clauses in the deed of partnership dated 22.11.2005 be in violation of Section 25 of the Partnership Act rendering the Agreement, and the proposed Partnership, Void and Unenforceable?

"T