Once Judges have delivered their separate judgments without stating the point of difference, they cannot refer the case to a third Judge for opinion.

( 1 ) SUIT No. 432 of 1990 Rozu-ud-din and another v. Smt. Nirmal Swaran Singh was filed in the court of Civil Judge, Saharanpur, for specific performance of a contract dated 20-9-1985. The suit was transferred to the court of IV Addl. Civil Judge, Saharanpur. The suit was decreed on 29-5-1992. Aggrieved by the judgment and decree of the trial court, Smt. Nirmal Swaran Singh filed First Appeal No. 528 of 1992, which was heard at the admission stage by a Division Bench of this Court comprising of Honble G. D. Dube and Honble G. S. N. Tripathi, JJ. On a perusal of the order sheet of the case it would appear that the appeal was heard at the admission stage on 18-8-1992. On 24-8-1992 two conflicting judgments were pronounced, signed and dated by two Honble Judges. While the appeal was dismissed by Honble G. S. N. Tripathi, J. , the senior Judge Honble G. D. Dube admitted the appeal and passed orders for staying the execution of the trial court decree. Thereafter, on the same day both the Honble Judges passed the following orders on the order sheet :-24-8-1992. Hon. G. D. Dube, J. Orders delivered today. Appeal admit. Issue notice. Stay application. Injunction granted. Hon. G. S. N. Tripathi, J. Orders delivered today. Appeal is dismissed. 24-8-1992. Hon. G. D. Dube, J. Hon. G. S. N. Tripathi, J. Since the two judgments have been passed differing with each other in this case at the admission stage, the case be placed before Honble the Chief Justice for orders tomorrow. "

( 2 ) THE file was placed before the Honble the Chief Justice on 25-8-1992, who passed the following order :- "list before Honble B. P. Singh, J. for opinion. "

( 3 ) IT is in this background that this appeal came up for opinion before this Court.

( 4 ) I have heard the learned counsel for the appellant, Shri G. N. Varma and the learned counsel for the respondents, Shri Rakesh Dwivedi at length.

( 5 ) A preliminary objection was raised by Shri Rakesh Dwivedi, learned counsel for the respondents, and it was vehemently contended by him that the reference for opinion to this Court was ultra vires. In this connection, reference has been made to Section 98 of the Code of Civil Procedure, Rule 3 of Chapter VIII of the Allahabad High Court, Rules, 1952 and the cases Lal Singh v. Ghanshyam Singh, ILR 9 All 625 (FB), Mst. Akbari Begum v. Rahmat Hussain, AIR 1933 All 861 (SB) and Vishwanathan v. Abdul Wajid, AIR 1963 SC 1.

( 6 ) THE contention of the learned counsel for the respondents is that once the Honble Judges had delivered their separate judgments without formulating their point of difference, the judgment and decree of the trial court stood confined, and the reference for the opinion of the third Judge, in the circumstances of the case, was unwarranted and ultra vires. On the other hand, learned counsel for the appellant has argued that the two judgments were passed by the Honble Judges at the admission stage and there was no bar for the matter being referred to the third Judge for opinion.

( 7 ) THE procedure when Judges are divided in opinion in a case finds place in Rule 3 of Chapter VIII of the Allahabad High Court Rules, 1952. Rule 3 runs as under :-"3. Procedure when Judges are divided in opinion.- When a case, to which the provisions of the Code of Civil Procedure do not apply is heard by a Division court 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, if there shall be a majority. Should the Judges be equally divided they may state the point upon which they differ and each Judge shall record his opinion thereon. The case shall then be heard upon that point by one or more of the other Judges as may be nominated by the Chief Justice and the point decided according to the opinion of the majority of the Judges who have heard the case including those who first heard it. "

( 8 ) THE above quoted Rule 3 has taken the pl