Rajasthan High Court - Jaipur
Mohammad Asgar Mugal vs Jahuruddin Mugal And Ors on 25 February, 2010
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR D.B. Civil Special Appeal(Writ) No.884/2007 Mohammad Asgar Mugal Versus Jahuruddin Mugal & Another 25.02.2010 Hon'ble Mr. Narendra Kumar Jain,J. Hon'ble Mr. Mahesh Chandra Sharma,J. Hon'ble Mr. Mahesh Bhagwati,J. Mr. Punit Choudhary ] for appellant. Mr. Rohan Jain ] Ms. Akansha Saxena ] Mr. Vimal Choudhary ] Mr. R.K. Agarwal ] Mr. Alok Chaturvedi ] Mr. Z.A. Naqvi ] for respondents. Ms. A.Khandelwal ] REPORTABLE BY THE COURT:
Heard learned counsel for the parties.
2. The plaintiff-appellant filed a suit for declaration in the Court of Civil Judge(Junior Division), Sikar to declare him as a son of the defendant. The suit was contested by defendant by filing written statement. During the pendency of the suit, the plaintiff moved an application in the trial court for conducting DNA Test of the plaintiff and the defendant to prove paternity issue. Learned trial court vide its order dated 15th February, 2007 rejected the application of the plaintiff.
3. Being aggrieved with the same, the plaintiff preferred a writ petition No. 2008/2007 before the Single Bench of this Court under Article 227 of the Constitution of India, which was dismissed vide order dated 10.04.2007. The plaintiff, thereafter, preferred the present Special Appeal.
4. The appeal came up for hearing before Division Bench on 20.10.2008 and the following order was passed:
In view of the questions involved in this appeal, it is referred to Full Bench.
5. Thereafter, the matter was put up before Hon'ble the Chief Justice and the larger Bench was constituted, and that is how, we have heard the matter.
6. Learned counsel for both the parties contended that since neither any specific point of reference has been made to larger Bench nor any question of law has been formulated to be answered by larger Bench, therefore, larger Bench is not obliged to answer the reference and the matter deserves to be remitted to Division Bench to be heard on merits, in accordance with law.
7. We have considered the submissions of learned counsel of both the parties and examined the order of reference dated 20.10.2008, quoted above, and find that neither any specific point of reference has been made to the larger Bench nor any question of law has been formulated to be answered by larger Bench.
8. Recently, on 29.04.2009, the Full Bench of this Court, in D.B. Civil Special Appeal(Writ) No. 365/2005 Ashok Kumar Sharma & Another Vs. State of Rajasthan & Others and other connected 21 special appeals, considered the similar submission and also considered the judgments of the Hon'ble Apex Court in this regard, namely (i) Kesho Nath Khurana Vs. Union of India & Others reported in 1981(Supp.)SCC38; (ii) Kerala State Science & Technology Museum Vs. Rambal Co. and Others, reported in (2006) 6 SCC 258 and (iii) T.A. Hameed Vs. M. Viswanathan reported in (2008) 3 SCC 243 and held that it is well settled law that Full Bench is required to answer that question of law which has been formulated but nothing beyond that. The Full Bench remitted the matters back to the Division Bench for deciding the same on merits, in accordance with law. The relevant paras of order passed by Full Bench in Ashok Kumar Sharma & Another Vs. State of Rajasthan & Others(supra) are as under:
The next in line is the judgment in 1981(Supp.) SCC 38, Kesho Nath Khurana Vs. Union of India & Others, which says that if a question of law is referred to by Single Judge or Division Bench, the Bench must decide that question only and send the case back to Single Judge alongwith its answer to the question. It clearly stipulates that only the question of law that has been referred to, has to be answered and it will not be proper for Larger Bench to deal with any other issue, which has not been referred to.
Similarly, the Supreme Court in Kerala State Science & Technology Museum Vs. Rambal Co. and Others, reported in (2006) 6 SCC 258 held as under:
When reference is made on a specific issue either by a Single Judge or Division Bench to a larger Bench i.e. Division Bench or Full Bench or Constitution Bench, as the case may be, the larger Bench cannot adjudicate upon an issue which is not the question referred to.
There is yet another latest judgment of Supreme Court on the issue projected in this appeal, reported in (2008) 3 SCC 243, T.A. Hameed Vs. M. Viswanathan. In this judgment, it has been categorically held by the Apex Court that only that question is required to be answered by Larger Bench, which has been referred to it and it cannot to beyond that. We may profitably quote para 12 of the said judgment, which reads as under:
In the case at hand also, almost an identical situation had taken place that a reference was made by the learned Division Bench of the Kerala High Court to the Full Bench and the Full Bench after answering the reference went on to decide the revision petition itself on merits, which the Full Bench had no jurisdiction to do as the revision petition was not referred to the Full Bench for decision. Since, only reference was made to the Full Bench, the Full Bench should have answered the question referred to it and remitted the matter to the Division Bench for deciding the revision petition on merits. Consequently, we set aside that part of the impugned order dated 31.1.2003 whereby the Full Bench has dismissed the revision petition filed by the appellants herein.
In the light of aforesaid judgments of the Supreme Court, it is well settled law that we are required to answer that question of law which has been formulated but nothing beyond that.
However, the order dated 2.12.2005, quoted hereinabove, does not reflect, show, indicate or suggest as to correctness of which part of the order dated 29.5.2002 was doubted.
We have no barometer to assess as to what had transpired on the said date, before the Division Bench. In abasence of particular reference to any part of the judgment or in absence of reference of question of law to be answered by this Court, we are not obliged to answer the same.
In the light of foregoing discussion; we are not legally bound to answer the reference. Thus, we refrain from doing so.
Admittedly, appellants' appeals have not been heard or decided on merits as a necessary consequence thereof, the matters are to be remitted to Division Bench for deciding the same on merits, in accordance with law. We accordingly do so.
9. In view of the above referred judgment of Full Bench of this Court in Ashok Sharma's case(supra), which is based on three judgments of the Hon'ble Supreme Court, we are of the view that we are required to answer that question of law which is being formulated and referred to larger Bench for answer and nothing beyond that.
10. The order dated 20.10.2008 passed by Division Bench, as quoted above, clearly shows that neither any specific point of reference has been made nor any question of law has been formulated to be answered by larger Bench. In these circumstances, we refrain ourselves to answer the reference. Ordered accordingly. The matter is remitted to the Division Bench for deciding the same on merits, in accordance with law.
11. The parties are directed to appear before the Division Bench on 13.04.2010, as prayed.
(Mahesh Bhagwati),J.(Mahesh Chandra Sharma),J.(Narendra Kumar Jain),J.
Manoj.