JUDGMENT

Jagdish Sahai, J. - By means of this application it is prayed that the petitioner Paras Nath Tewari be allowed to add the ground given below to the application under Article 133 (1) (c) of the Constitution of India made by him for a certificate that the case is fit one for appeal to the Supreme Court of India :

"Because the judgment and the order dated 30th October, 1969 by the Division Bench consisting of Hon'ble Mr. Justice Jagdish Sahai and Hon'ble Mr. Justice Yashoda Nandan in the writ petition is without jurisdiction inasmuch as at the material time the work allotted to the Bench was to receive the application under Article 226 of the Constitution other than} in the nature of Habeas Corpus for admission and the work of final disposal of the said applications was allotted to another Hon'ble Judge of the Court sitting alone."

This ground admittedly and clearly is not taken amongst those taken in the application under Article 133 (1) (c) of the Constitution of India nor was this plea raised before the Bench which decided the writ petition.

2. All writ petitions in this Court are moved before a Division Bench. The writ petition giving rise to this application was moved by Bhaiyya Lal before this Bench on 25th August, 1969. At that time, Mr. D. S. Sinha, the learned counsel for the petitioner Paras Nath was present in, Court. Immediately the writ petition was admitted by this Bench, Mr. D. S. Sinha accepted notice on behalf of the petitioner who was respondent No. I in the writ petition (see the order-sheet dated 25-8-1969). On the request of the learned counsel for the parties, an order was passed that the case be shown in the cause list of 1st of September, 1969. On that date, Mr. G. C. Dwivedi, the learned counsel for Bhaiyya Lal, the petitioner in the writ petition giving rise to this application and Sri D. S. Sinha and Mr. S. C. Khare, the learned counsel for Sri Paras Nath, the petitioner, in the Article 133 (1) (c) application, were present. After hearing Mr. Dwivedi and Mr. Khare, the Bench vacated the stay order which it had granted on 25th August, 1969. Our order reads :

"In view of the joint request of the learned counsel for the parties the case has been fixed for final hearing on 15th September, 1969. As there is a conflict of authorities on the question raised in this case, the case should be listed before a Division Bench.

Office snail give notices to Mr. Dwivedi to serve personally on the respondents In addition the office shall issue notices to the respondents forthwith under registered cover."

The case was listed on September 18, 1969. On that elate it was found that the notices that were ordered to be issued had not been served on some of the respondents. On September 19, 1969, arguments in the case started. The next date for hearing was September 26, 1969. Arguments were continued on that date as they were continued on subsequent dates fixed for hearing, i.e., September 29 and 30. October 7, 1969, October 10, 22, 28 and 29, 1969. On the last date, i.e., October 29, 1969, the Bench started dictating judgment in the presence of the learned counsel for the parties and completed it on October 30, 1969.

3. From the very beginning, Sri S. C. Khare and Sri D. S. Sinha, the learned counsel for Paras Nath, were present and at no time objection was taken with regard to the hearing of the case by this Bench. It is only after Paras Nath has lost the case that it has occurred to him that the Bench had no jurisdiction to hear the case. In the affidavit filed in support of the application under Article 133 of the Constitution, it has been stated that objection with regard to the alleged want of jurisdiction could not be taken before, because Paras Nath was not aware of the legal position that the Bench which admits a case could not hear it. On the point whether or not the learned counsel for Paras Nath was aware of this position, there is significant silence. Admittedly the point was never taken before the Bench.

4.