Paragraph numbers below are the court’s original numbering, recovered from the source text.
15. Learned senior counsel Shri Shekhar Naphde appearing for the respondent very stoutly opposed and controverted all the contentions on procedural provisions submitted on behalf of the petitioner. The learned C counsel surveyed the historical background of the various enactments under which the Travancore – Cochin High Court was constituted and the territorial jurisdiction of which later on merged with the Kerala High Court. The main submission of learned counsel appearing for the respondent is that erstwhile Malabar District fonning part of the erstwhile State of Madras did not fall within the territorial jurisdiction of Travancore – Cochin High Court and D therefore, Travancore – Cochin Act was not at all attracted to that part of the territory of new State of Kerala. It is submitted that Travancore – Cochin Act is expressly repealed by Section 9 of the Kerala Act when the latter was brought into force with effect from 9.3.57 after formation of new State of Kerala under the S.R. Act of 1956. It is submitted on such repeal Travancore E cochin Act did not survive on matters on which provisions were made in the Kerala Act Section 4 of the Kerala Act empowered the Judges constituting the Bench to refer only a question of law on which they have not agreed, to the full Bench. Section 9 of Kerala Act. also confers a power on the Chief Justice to make over any case or matter to be heard by a full Bench. It is submitted that Travancore – Cochin High Court had no Letters Patent. It was not a Chartered High Court of British India. Neither provisions of Section 23 of the Travancore-Cochin Act nor Section 4 & 6 of Kerala Act could be relied on for seeking a reference to one or more Judges of Kerala High Court for resolving the disputes between the three judges. On behalf of .the respondents, it is further contended that Sub-section (3) of Section 98 of the G Code makes inapplicable ·sub-section (2) of section 98 of the Code only if there is any different -provision in the letters Patent of that High Court on procedure for resolving difference of opinion between judges constituting a Bench.
16. Admittedly, High Court of Kerala is a newly constituted Court for H the newly formed State of Kerala in 1956 and governed by Kerala Act. The r.v. HEMALATHA \'. KATTAMKANDI PUTHIYA MALIACKAL SAHEEDA (DHARMADHfKARI, J.Jl l t I said High Court does not have any Letters Patent-it being not a Chartered A High Court continuing from the British period. In such a situation, it is submitted that the learned Judges were perfectly justified in giving effect to the provision of Sub-section (2) of Section 98 of the Code and coming to the conclusion that because of the two different judgments passed by them the decree of the subordinate court was liable to be confirmed. On behalf of the 1espondent very strong reliance has been placed on two Judges Bench decision of this Court in the case of Te} Kaur v. Kirpal Singh, [ 1995] 5 SCC 119 in which a similar situation Supreme Court held that the provision of Sub- section (2) of Section 98 would be attracted and in view of the two conflicting judgments passed by two Judges who differed on issues of fact, the judgment of subordinate court is liable to be confirmed. c
17. In the reply to the reliance placed on Section 52 of the S.R. Act of 1956 for invoking clause 36 of the Letters Patent of Madras High Court; lhe learned counsel on behalf of the respondents submitted that the question of resolving difference of opinion by reference to one or more judges of the court is a subject matter of 'procedure' and 'power' of Judges' separately D dealt with under Section 54 and 57 of the S.R. Act of 1956 hence reliance on provision of Section 52 is misplaced. It is submitted that under Section 54 and 57 the procedure of the court and power of judges of the 'corresponding State' as defined in clause (d) of Section (2) ofS.R. Act of 1956 meaning the State of Travancore-Cochin alone, would apply to the new State of Kerala. E On such interpretation of the provisions of Section 54 and 57, it is submitted that since High Court of State of Travanccire-Cochin did not have any Letters Patent, the Letters Patent of Madras High Court could not be invoked even in relation to that part of the territory which fell within the erstwhile State of Madras and now has been merged in the new State of Kerala. It is submitted that everywhere in Section 54, 55, 56 and 57 on the subject of "practice and F procedure", "powers of Judges" and other Court 'processes and 'seal' of the High Court, the reference is made to 'corresponding State' which is defined in Section 2( e) for various new States including the new State of Kerala. The 'corresponding State' defined in clause 2 (e) in relation to State of Kerala is State of Travancore-Cochin. It is, therefore, submitted that nothing outside G the procedural provisions of the High Court of Travancore-Cochin could be looked into for deciding the question of resolving difference of opinion between the Judges of the Division Bench. Letters Patent of Madras High Court, therefore, is not applicable as law on 'practice and procedure' or 'powers of judges' which can be said to have been saved under Section 54 and 57 of the S. R. Act of 1956. As has already been stated above, the stand H A of the respondent is that as seeking resolution of the difference of opinion between two Judges by referring to one or more Judges of the High Court is a matter of 'practice and procedure' or 'power of Judges' specifically governed by Section 54 and 57 of the S.R. Act of 1956, Section 52 intended to save the law in relation to 'jurisdiction' applicable to a part of territory of the new B State earlier governed by jurisdictional law of erstwhile High Court should be given a restricted meaning and not a wide meaning a.s is sought to be assigned to it on behalf of the petitioner to include within the expression 'jurisdiction' ·not only pecuniary and .territorial but also 'practice and procedure' as well as 'powers of the Judges' in the matter of resolving conflict of opinion between them. Learned counsel for the respondent tried C to distinguish the decision in Dadh Nathu 's case (supra) which related to erstwhile Saurashtra State now forming part of new State of Gujarat and M.L. Sethi's case (supra). The learned counsel for the respondent thus supported the procedure adopted and the conclusion reached by the two learned Judges of the Division Bench who had differed on all points arising in the cases before them and had delivered two separate judgments without formulating D ·points of difference on any question of law.
18. Let us first consider the main submission advanced on behalf of the petitioner that clause 36 of the Letters Patent of Madras High Court should have been invoked by the two Judges of the Division Bench who had differed E on all issues arising in the appeal and had delivered two separate judgments. The subject matter on High Courts of the newly formed States under the S.R. Act of 1956 is to be found in Sections 49 to 69 in Part V of the S.R .. Act of 1956. From the appointed day i.e. l.l 1.56, in accordance with Sub-section 2 of Section 49 of the S.R. Act of 1956, a new High Court for the new State of Kerala has been established and in accordance with Sub-section I of Section 50 from the appointed day, High Courts of all existing Part 'B' States which included the then existing High Court of Travancore-Cochin stood abolished.
19. Section 52 which is on the subject of 'jurisdiction' of High Courts G of new States, Section 54 on the subject of 'practice and procedure', Section 55 on 'custody of seal' of the High Court, Section 56 on 'forms of writs and other processes',. Section 57 on 'powers of Judges' and all other succeeding Sections up to Section 69 of the S. R. Act of 1956 containing saving clause have all to be read in conjunction with each other to ascertain extent of their operation and legislative intent sought to be achieved thereby. Section 52 H extends to the territories of the High .court of new State, 'original, appellate r_v_ HEMALATHA ,., KATTAMKANDI PUTHJYA MALIACKAL SAllEEDA (Dl-IARMADHIKARI. J.Jl 113 and other jurisdiction' which was exercisabJe in respect of that part of the· A. territories by any High Court or Judicial Con1missioner's Court for an existing State :
20. Section 54 of the S.R. Act, 1956 makes applicable the 'practice and procedure' of the High Court of the "corresponding State" to the High Court of new State. Proviso below Section 54 saves practice and procedure of the B High Court of the 'corresponding State' until varied or revoked by rules and orders made by the High Court of a new State. 'Corresponding State' has been defined in clause (e) of Section 2 to mean in relation to the new State of Kerala the then State of Travancore and Cochin which existed on the appointed day. Section 54 and clause (e) of Section 2 defining 'corresponding C State' read as under- "54. Practice and procedure – Subject to the provisions of this Part, the law in force immediately before the appointed day with respect to practice and procedure in the High Court for the corresponding State shall, with necessary modifications, apply in relation to the D High Court for a new State, and accordingly, the High Court for the new State shall have all such powers to make rules and orders with respect to practice and procedure as are, immediately before the appointed day, excisable by the High Court for the corresponding State: Provided that any rules or orders which are in force immediately before the appointed day with respect to practice and procedure in the High Court for the corresponding State shall, until varied or revoked by rules or orders made by the High Court for a new State, apply with the necessary modifications in relation to practice and procedure in the High Court for the new State as if made by that Court. " "2 ( e ). "Corresponding State" means, in relation to the new States of Bombay, Madhya Pradesh, Mysore, Punjab or Rajasthan, the existing State with the same name, and in relation to the new State of Kera/a, the existing State of Travancore-Cochin."
21. Section 57 of the S.R. Act, 1956 provides that law relating to the powers of Chief Justice, single Judges and Division Courts of the High Court of the 'corresponding State' shall, with necessary modifications, apply to the High Court of the new State. Section 57 of the S.R. Act, 1956 reads thus:- "57. Powers of judges-The law in force immediately before the H appointed day relating to the powers of the Chief Justice, single Judges and Division Courts of the High Court for the corresponding State and with respect to matters ancillary to the exercise of those powers shall, with the necessary modifications, apply in relation to the High Court for a new State."
22. The other most relevant Section 69 captioned "savings" gives overriding effect to any Act of the Legislature in respect of the High Court of new State. On coming into force of such legislation, it states that 'nothing in Part V of the S.R. Act of 1956 would, after coming into force of such legislation, apply to the High Court of the new State'. Section 69 of the S.R. C Act of 1956 reads thus:- "69. Savings-Noting in this Part shall affect the application to the High Court for a new State of any provisions of the Constitution, and this Part shall have effect subject to any provision that may be made on or after the appointed day with respect to that High Court by any Legislature or other authority having power to make such provision".
23. As we have noticed above, 'practice and procedure' of the High Court of new State is dealt with in Section 54 and 'powers of Judges' is a subject dealt with in Section 57. The scheme of the Act, as disclosed on a conjoint reading of Sections 52, 54 and 57, makes it manifest that subject 'practice and procedure' and 'powers of Judges' specifically covered by Sections 54 and 57 respectively are .treated separately from 'jurisdiction' dealt with in Section 52 of the S.R. Act, 1956. The expression 'jurisdiction'- original or appellate, in Section 52 has, therefore, to be assigned a restrictive meaning as not to include within it 'practice and procedure' of the High Court and 'powers of Judges' which are subjects separately dealt with in Section 54 and 57 respectively. The expression 'other jurisdiction' used in Section 52, therefore, has to be understood as not including in it the law relating to 'practice and procedure' of the High Court' and 'powers of Judges' which are subjects separately dealt with in Section 54 and 57 of the S.R. Act, 1956.
24. There is another reason for taking such a view of the relevant provisions discussed above. If the expression in Section 52 "other jurisdiction" associated with word 'original and appellate' is interpreted to include "practice, procedure' and 'powers of Judges' of a High Court, a very incongruous -4. result would ensue which. according to us can never have been intended by H the Legislature which was enacting a transitory provision to lay down a P.V. HEMALATHA 1·. KATTA~·1KANDI PUTHIYA MALIACKAL SAHEEDA [DHARMADHIKARI, .1.11 J 15 uniform procedure for all the integrating territories of the High Court of a A new State until suitable legislation on the subject is brought into force.
25. As contended on behalf of the petitioner on wide meaning given to expression 'jurisdiction' under Section 52 of the S.R. Act, Letters Patent of Madras High Court would apply to Malabar District which was part of the erstwhile State of Madras before its merger with new State of Kerala, whereas B the Letters Patent of Madras High Court would not apply to other part of the territories included in the new State of Kerala. Thus, for the different territories which have merged into the new State of Kerala, different Jaws would apply. Such result is avoided by legislature in 1naking suitable provisions on 'practice and procedure' in Section 54 'powers of Judges' in Section 57 of the S.R. C Act I 956. Our reading of Section 54 of the S.R. Act 1956 is that the Jaw in force of 'practice and procedure' applicable to High Court of 'corresponding State' (which in this case is Travancore-Cochin) would continue to apply to all the integrating territories of the new State and its new High Court until new rules are framed or a new legislation is brought into force to be made applicable uniformly to all such territories. Similarly in accordance with Section D 57, the 'powers of Chief Justice, single Judges and Division Benches' applicable to the High Court of 'corresponding State' Travancore-Cochin would apply to all the territories of the new State of Kerala in which are included territories of erstwhile State of Travancore-Cochin and Madras . .In this manner Sections 54 and 55 ensure application of one uniform Jaw on 'jurisdiction', 'procedure' and 'powers of judges' to the new State and its High Court. Exception to the above is contained in proviso to Section 54 and Section 69 of the S.R. Act of 1956 which stipulate that ifthe new High Court makes its own rules and orders or the Legislature of the new State makes a law in that respect for the High Court such Jaw would have overriding effect. In the light of the Scheme contained in all the provisions under Part V of the S.R. Act 1956, we do not find it possible to accept the argument advanced for the petitioner that Letters Patent of Madras High Court can be made applicable to the cases arising from Calicut as part of erstwhile Malabar District of erstwhile State of Madras which now forms part of the territories of the new State of Kerala.
26. Thus, the Travancore-Cochin Act was applicable to the new High Court of Kerala only between the period I. I I. I 956 that is the 'appointed day', when the transitory provision contained in Part V of S.R. Act, 1956 were in operation, to 9.3. 1957 when Kerala Act came into force dealing with jurisdiction and procedure of new High Court of Kerala. The new legislation H A for Kerala Act had an overriding effect and operation from the date of enforcement of that Act i.e. 9.3.1957. This is the legal result of overriding effect of Section 69 of the S.R. Act, 1956 which saves law applicable to 'corresponding State' only till legislation is brought in for the new State and its High Court.
27. One more argument advanced on behalf of the petitioner at this stage is required to be considered. Our attention is invited to the provisions of section 23 of the Travancore – Cochin Act which according to the learned counsel appearing for the petitioner is a provision different from provisions contained in Sub – section 2 of section 98 of the Code of Civil Procedure and C the proviso thereunder. Section 23 of the Travancore – Cochin Act reads as under :- "23. Reference by Chief Justice – where two judges forming a Division bench agree as to the decree, order or sentence to be passed, their decision shall be final. But if they disagree, they shall deliver separate judgments and thereupon the Chief Justice shall refer, for the opinion of another judge, the matter or matters on which such disagreement exists, and the decree, order or sentence shall follow the opinion of the judges hearing the case."
28. The ·above provision in section 23 of the Travancore – Cochin act E enables judges forming a Division Bench who had differed and delivered sep"arate judgments to refer the matter to the Chief justice for resolving their difference of opinion both on question of fact and law. It is a provision different from proviso below Sub – section 2 of Section 98 which enables reference by the judges only on a stated point of law on which they had differed.
29. On behalf of the petitioner recourse is sought to be taken to Section 23 of the Travancore – Cochin Act stating that the Kerala High Court Act of 1958 by section 9 repeals travancore- Cochin act only in relation. to matters provided in the Kerala Act. It is pointed out that under Section 4 of Kerala Act difference between Judges constituting a Bench of even number is required G to be resolved by reference to a full Bench only if the difference is on question of law. Section 4 of Kerala Act reads thus "4. Powers of a Bench of two Judges – The power of all the High Court in relation to the following matters may be exercised by bench of two judges provided that if both the judges agrees that the. decision involves a question of law they may order that the matter .or question l'.V. HEMALATHA 1·. KATTAMKANDI rUTl!!YA 'vlAU,\\KAL S1\llEEDA /DHARMADHIKARI. J.JJ J J 7 of law may be referred to a full Bench: (I) any matter in respect of which the power of the High Court can be exercised by a single Judge. (2) An appeal- (a) fro1n a decree or order of a civil court, except those coming B under S.3., (b) fro1n the judg111ent of a crin1inal court in 'which a sentence of death or imprisonment for life has been passed on the appellant or on a person tried with him ( c) A reference- ( a) under S.13 of the Code of Civil Procedure, 1908. (b) under. s.307, s.374 or S.432 of the code of Criminal Procedure, 1898. Reliance is placed on Section 9 of the Kerala Act which according .to the learned counsel appearing for the petitioner, repeals provisions of the Travancore – Cochin Act only 'in so far as they relate to matters provided in c the Kerala Act, and not all. Section 9 of Kerala Act reads thus:- "9. Repeal – The provisions of the Travancore – Cochin high Court Act, 1125 (V of 1125), in so far as they relate to matters provided in this Act, shall stand repealed."
30. Sub1nission 111ade on con1paring Section 23 of the Travancore- Cochin Act and section 4 of the Kerala Act read with Section 9 of the latter Act is that as the procedure indicated to Judges constituting Division Bench delivering Separate judgments is governed by Section 23 of the Travancore – Cochin Act and as it is not covered by Section 4 of the Kerala Act, the former cannot be said to have been repealed by Section 9 of the Kera la Act . The submission therefore, is that the judges of the Division Bench of the G High Court of Kerala could take recourse to Section 23 of the Travancore – Cochin Act and as they had delivered two separate judgments they could refer the matter to the Chief Justice for the opinion of the third Ji1dge.
31. The above argument advanced is attractive but cannot be accepted for another reason. In our view, the law contained in the Travancore – Cochin l-1 A Act and Kerala Act regulating the practices, procedure and powers of chief Justice and Judges of the High Court in relation to all cases from an enactments ~ … appearing before them is a general law which cannot be made applicable to appeals from Code of Civil Procedure regulated by special law that is contained in section 96 to 98 of the code. There is a clear conflict between the provisions contained in section 23 of the Travancore – Cochin Act which allows the refe1'ence any differing judges who have delivered separate Judgments opinions to third judge on 1:~sues both on fact and law and the provisions contained in proviso of Sub-section 2 of Section 98 of the code which permits reference to one or more judges only on. the difference of opinion on the stated question of law. When the courts are confronted with such a situation, the courts ~— c approach should be "to find out which of the two apparently con"tlicting provisions is more general and which is more specific and to construe the more general one as to exclude the more specific". The principle is expressed in maxims Generalia specialibus non derogant [general things do not derogate from special things] and Generalibus specialia derogant [special things derogate from general things]. These principles have also been applied in resolving a conflict between two different Acts and in the construction of statutory rules and statutory orders. (See principles of statutory Interpretation- r- Seventh Edition, 1999 by Justice G. P Singh Page 113-I I 4) 'y
32. Assuming for the sake of argument that provisions of Section 23 of E the Travancore – Cochin Act are saved by section 9 of the kerala -:"-ct and are applicable to the High Court of new State ofKerala, in our considered opinion since provisions contained in Section 98 of the Code is a Special law as compared to the general law contained in Section 23 of the Travancore – Cochin Act read with Section 9 of the Kerala Act. The 'Special Law' will prevail over the general law and the provisions of Section 98 of the Code in all its terms will have to be applied to civil appeals arising from civil suits which are regulated by the Code.
33. We have reached the conclusion as stated above that clause 36 of the Letters Patent of Madras High Court on 'practice and procedure,' and 'powers of judges' is not applicable to any part of the new territory of State of Kerala and to the new High court of that State, Law with regard to the 'practice, procedure and powers of judges' as contained in the Kerala Act, would be applicable uniformably to all the territories now forming part of new State of Kerala and the High Court established for it. We have also held even on assumption that Section 23 of the Travancore – Cochin Act is saved H under Section 9 of the Kerala Act that since the said Kerala Act is a 'general r P.V. HEMALATHA 1'. KATTAMKANDI PUTlllYA MALIACKAL SAllEEDA [DHARMADHIKARI. J.Jl J J 9 law', it has to give place to Section 98 of the Code of Civil Procedure which A is a ·special law, applicable to Civil Appeals arising from Civil Suits.
34. In our considered view Sub-section (3) of Section 98 of the code of Civil Procedure also cannot be taken aid of by the petitioner for seeking resolution of difference of opinion between two judges by third or more judges of the High Court. As has been seen above sub-section (3) of section B 98 of the Code gives over-riding effect to Letters patent of any High Court and if in it there is a provision indicating a procedure for resolving conflict between judges of a bench different from one provided in sub-section (2) of Section 98 of the Code, the provisions of Letters Patent of High Court shall prevail. Letters Patent is a word of definite legal meaning. It is derived from C Latin word 'I iterate patents' the letters patent are so called because they are open letters, they are not sealed up, but exposed to view, with the great seal pendant at the bottom; and are usually directed or addressed by the king to all his subjects at large. And therein they differ from certain other letter of the king, sealed also with the great seal, but directed to particular persons, and for particular purposes: which therefore, not being proper for public D inspection are closed up and sealed on the outside, and are thereupon called writs close literate clause, and are recorded in the close – rolls, in the same 1nanner as the others are in th.e patent – rolls" (See Blackstones' Commentaries on the laws of England volume II pages 284-285).
35. Different Letters patents have been handed own by the sovereign in British India to chartered High Courts which included only Judicature for Bengal, Madras, Bombay, North-West Provinces (Allahabad) and others like Patna (1916) Lahore (1919), Rangoon (1922). The history of these courts is that the sovereign established them as superior courts in British India Under the Indian High Courts Act of 1861 and powers and jurisdiction of courts F including judges of these courts were laid down in Letters Patent. [See the law and Custom of the Constitution by Sir William R. Anson Vol. II (the Crown Part. !/)pages 317 – 318 under the Headings' "Irish, Indian and Overseas Courts]
36. Undisputedly, High Court of Kerala is not a Chartered High Court G and was not a Court in British India. It was a High court established after formation of the new State of Kerala in I 956 under S.R. Act of 1956. High Court of Kerala, therefore, has no Letters Patent The Travancore-Cochin Act and Kerala Act are not Letters Patent of High Court and therefore they cannot be held to have been saved under the provisions of Sub-section (3) of H A Section 98 of the Code. It is interesting to note that provision similar to section 98 (2) of the Code of Civil Procedure 1908 and proviso thereunder has been on the statute book in section 577 of the old Civil Procedure Code of 1877. These provisions in the Code of Civil Procedure were in existence when Travancore – Cochin Act 1125 (Indian calendar 1948-49) and Kerala B Act 1958 were enacted but at no point of time any change was made by amendment to sub – section (3) of Section 98 of the Code to give overriding effect along with Letters Patents Chartered High Courts Act to other enactments dealing with formation of new High Courts for new states under the S. R. Act of I 956 in any other laws.
37. In this legal situation and in view of our conclusion that Letters patent of state of Madras is not applicable to any territory now within the territorial jurisdiction of High Cou1t of Kerala, Sub-section (3) of Section 98 of the Code is of no assistance to the petitioner to claim reference of difference of opinion between the two judges to one or more judges of the High Court. The learned judges of the Division Bench of Kerala High Court were right D in holding that in view of conflicting judgments delivered by them the decree of the subordinate court has to be confirmed strictly in terms of Section (2) of Section 98 of the Code. Sub-section (2) of Section 98 of the Code has a definite benevolent purpose. Where even number of judges constituting a bench are decided in their opinion and there is no question of law which they E consider necessary for reference to one or other judges for obtaining majority opinion, the judgment and decree of the subordinate court should be confirmed to put an end to the litigation. The law does not favour litigation to proceed further where the opinion of the judges in appeal is divided only on issues of fact.
38. Now the last alternative submission made on behalf of the petitioner needs to be considered. It is submitted that if this court does not find any ground to direct the High Court to refer the matter to one or more Judges of the High Court for resolving conflicting opinion in their judgments this Court should grant special leave to appeal to this Court under Article 136 of the G constitution of India so that the correctness of the two conflicting judgments of the Division Bench may be examined.
39. In the course of arguments learned counsel appearing for the parties did not dispute that amongst several issues of fact arising in the cases, on the decision of the issues purely of fact such as want of readiness and willingness H in the part of the plaintiff to seek Specific Performance of the Contract for …. t· ,,.._ r.v. MEMALATHA ,. KATTA/\.·lKAND! PUTlllYA /\.1A!.IACK.'\I. SAHEEDA IDHARMADHIKARI. J.Jl l 21 sale of two theatres the suit was liable to be dismissed in accordance with the A opinion of one of the Judges constituting the bench. The appeals, therefore, could be decided finally in favour or against the plaintiff on issues of fact alone without requiring the Judges to express opinion on the other mixed issues of law and fact such as whether the properties in suit being in custodia !egis through the Receiver appointed by the court the suits could not have B been filed \Vithout obtaining leave of the Court. As we have found that the issues of facts arising between the parties in the suit and appeal were sufficient to decide the cases for or against the plaintiff, the cleavage of opinion between the two judges on the other mixed issues of law and fact is inconsequential. Their difference of opinion on mixed issues of law and fact even if it would have been referred for obtaining majority opinion of the Judges of the Court C would not have changed the ultimate result of the appeals because the Judges had also differed on issues of fact and decision of one of them was sufficient for decision of the cases in appeals. Thus as the opinion of one of the Judges on issues of fact was decisive of the appeal, it would not be in accordance with the established practice of this Court to interfere by grant of special leave to appeal. Grant of special leave to appeal against judgments raising D issues of fact which were determinative would be against the legislative intent contained in provisions of sub-section (2) of Section 98 of the Code. We find some support for our conclusion from the decision of this Court in Tej Kaur v. Kirpal Singh, (1995] 5 SCC 119 in which full effect was given to the legislative mandate contained in sub-section (2) of Section 98. of the Code by confirming the decree of the Sub-ordinate Court in view of conflict of opinion between the two Judges who had delivered separate judgments but not referred any question of law for opinion of other Judges of the High Court. In that case, it waf) observed that "while exercising power under Article 136 the Court should not do any thing which would violate legislative mandate."
40. In the result, we find no ground to grant special leave to appeal against the impugned common judgment of the Division Bench of the High Court of Kerala in all the cases before us. The Special Leave Petitions are therefore rejected but without any orders as to costs. K.K.T. Petitions dis1nissed.