PANKAJAKSHI (DEAD) THROUGH LRS. & OTHERS versus CHANDRIKA & OTHERS

26. Thus, Kulwant Kaur's decision on the application of Section 97( 1) of the Code of Civil Procedure Amendment Act, is not correct in law.

27. Even the reference to Article 254 of the Constitution was not correctly made by this Court in the said decision. Section 41 of the Punjab Courts Act is of 1918 vintage. Obviously, therefore, it is not a law made by the Legislature of a State after the Constitution of India has come into force. It is a law made by a Provincial Legislature under Section 80A of the Government of India Act, 1915, which law was continued, being a law in force in British India, immediately before the commencement of the Government of India Act, 1935, by Section 292 thereof. In turn, after the Constitution of India came into force and, by – • Article 395, repealed the Government of India Act, 1935, the Punjab Courts Act was continued being a law in force in the territory oflndia immediately before the commencement of the Constitution oflndia by virtue of Article 372( I) of the Constitution oflndia. This being the case, Article 254 of the Constitution of India would have no application to PANKAJAKSHI (DEAD) THROUGH LRS. '& OTHERS v. CHANDRIKA & OTHERS [R. F. NARlMAN, J.] such a law forthe simple reason that it is not a law made by the Legislature ofa State but is an existing law continued by virtue of Article 372 of the Constitution oflndia. If at all, it is Article 3 72( I) alone that would apply to such law which is to continue in force until altered Qr repealed or amended by a competent Legislature or other competent authority. We have already found that since Section 97(1) of the Code of Civil Procedur~ (Amendment) Act, 1976 has no application to Section 41 of the Punjab Courts Act, it would necessarily continue as a law in force. Shri Viswanathan's reliance upon this authority therefore does not lead his argument any further.

28. Shri Viswanathan drew our attention to Section 29(2) of the Limitation Act which reads thus:- "29. Saving. (2) Where any special or local law prescribes for any suit, appeal · or application a period of limitation different fr011) the period prescribed by the Schedule, the provisions of section 3 shall apply as if such period were the period prescribed by the Schedule and for the purpose of determining any period oflimitation prescribed for any suit, appeal or application by any special or lo.cal law, the provisions contained in sections 4 to 24 (inclusive) shall apply only in so far as, and to the extent to which, they are not expressly excluded by such special or local law."

29. He also referred us to various judgments, namely, Hukumdev Narain Yadav v. Lalit Narain Mishra, (1974) 2 SCC 133 at page Nos.146- I 4 7, (para 17), Anwari Basavaraj Patil v. Siddaramaiah, (1993) I SCC 636, at page 639 (para 8), Gopal Sardar v. Karuna Sardar, (2004) 4 SCC 252 at page 264 (para 13), which construed the expression "expressly excluded" as including something that one can derive from the scheme and words used in a statute without necessarily referring to the subject matter at hand specifically.

30. The three decisions cited by him do not carry the matter much further for the simple reason that the expression "express exclusion" is to be gleaned from the special or local law and not from the Limitation Act. Section 29(2) of the Limitation Act thus differs from Section 4(1) of the Code of Civil Procedure in a very important respect, namely, that the specific or express exclusion must be contained in the special or local law, so far as the Limitation Act, 1963 is concerned, as opposed to c c, [2016) 3 S.C.R. Section 4(1) of the Code of Civil Procedure, where we have to look for the specific exclusion in the Code of Civil Procedure itself, and not in the. special or local law. It is for th is reason that the judgments cited by Shri Viswanathan embarked upon a survey of the scheme of the Representation of the People Act, 1951, and the West Bengal Land Reforms Act, 1955, and held that the said Acts were a complete Code dealing with elections to Parliament and to preemptions in the State of West Bengal, respectively, which expressly excluded Section 5 of the Limitation Act. In the present case, there is no question of examining the scheme of the Travancore-Cochin High Court Act to see whether it contains any provision which expressly excludes the applicability of the Code of Civil Procedure.

31. This brings us to the main contention urged by both parties, namely, whether the Constitution Bench in Sathappan's case (supra) concludes the issue in the present case.

32. Since the judgment in Sathappan's case was strongly relied upon by both sides, we need to refer to it in a little detail. Sathappan was a judgment which dealt with the correct interpretation of Section 104 of the Code of Civil Procedure. Section I 04 provides: "Section I 04 – Orders from which appeal lies (1) An appeal shall lie from the following orders, and save as otherwise expressly provided in the body of this Code or by any law for the time being in force, from no other orders:– Provided that no appeal shall lie against any order specified in clause (ft) save on the ground that no order, or an order for the payment of a less amount, ought to have been made. (2) No appeal shall lie from any order passed in appeal under this section." [at para 6)

33. The question which arose before this Court was whether Letters Patent Appeals, which were referred to in "any other law for the time being in force", and therefore outside Section I 04( I), could be said to be governed by Section I 04(2) which provided that no appeal shall lie from any order passed in appeal under this Section. After noticing several earlier judgments of this Court, this Court concluded:- "Thus the unanimous view of all courts till 1996 was that Section' I 04( I) CPC specifically saved letters patent appeals and the bar under Section I 04(2) did not apply to letters patent appeals. The view has been that a letters patent appeal cannot be ousted by implication but the right of an appeal under the Letters Patent can be taken away by an express provision in an appropriate legislation. The express provision need not refer to or use the words "letters patent" but if on a readingofthe provisiOl'I it is clear that all further appeals are barred then even a letters patent appeal would be ·barred." [at para 22] This Court then went on to hold: "Thus, the consensus of judicial opinion has been that Section 104( l) of the Civil Procedure Code expressly saves a letters patent appeal. At this stage it would be appropriate to analyse Section I 04 CPC. Sub-section (I) of Section I 04 CPC provides for an appeal from the orders enumerated under sub-section (I) which contemplates an appeal from the orders enumerated therein, as also appeals expressly provided in the body of the Code or by any law for the time being in force. Sub-section (1) therefore contemplates three types of orders from which appeals are provided, namely, (I) orders enumerated in sub-section (I), (2) appeals otherwise expressly provided in the body of the Code, and (3) appeals provided by any law for the time being,in force. It is not disputed that an appeal provided under the Letters Patent of the High Cou11 is an appeal provided by a litw for the time being in force. As such ifan appeal is expressly saved by Section 104(1), sub- section (2) cannot apply to such an appeal. Section 104 has to be read as a whole. Merely reading sub-section (2) by ignoring the saving clause in sub-section ( 1) would lead to a conflict between the two sub-sections. Read as a whole and on well-established principles of interpretation it is clear that sub-section (2) can only apply to appeals not saved by sub-section (I) of Section 104. The finality provided by sub-section (2) only attaches to orders passed in appeal under Section 104 i.e. those orders against which an appeal under "any other law for the time being in force" :i~.!1.<>! c c permitted. Section I 04(2) would not thus bar a letters patent appeal. Effect must also be given to legislative intent of introducing Section 4 CPC and the words "by any law for the time being in. force" in Section 104(1). This was done to give effect to the Calcutta, Madras and Bombay .views that Section I 04 did not bar a Letters Patent appeal. As appeals under "any other law for the time being in force" undeniably include a letters patent appeal, such appeals are now specifically saved. Section I 04 must be read as a whole and harmoniously. If the intention was to exclude what is specifically saved in sub-section (I), then there had to be a specific exclusion. A general exclusion of this nature would not be sufficient. We are not saying that a general exclusion would never oust a letters patent appeal. However, when Section 104(1) specifically saves a letters patent appeal then the only way such an appeal could be excluded is by express mention in Section I 04(2) that a letters patent app~al is also prohibited.

It is for this reason that Section 4 of the Civil Procedure Code provides as follows: "4. Savings.–( I) In the absence otany specific provision to the contrary, nothing in this Code shall be deemed to limit or otherwise affect any special or local law now in force or any special jurisdiction or power conferred, or any special form of procedure prescribed, by or under any other law for the time being in force. (2) In particular and without prejudice to the generality of the proposition contained in sub-section ( 1 ), nothing in this Code shall be deemed to limit or otherwise affect any remedy which a landholder or landlord may have under any law for the time being in force for the recovery of rent of agricultural land from the produce of such land." As stated hereinabove, a specific exclusion may be clear from · the words ofa statute even though no specific reference is made to Letters Patent.

But where there is an express saving in the statute/section itself, then general words to the effect that "an appeal would not lie" or "order will be final" are not sufficient In such cases i.e. where there. is an express saving, there must be an express exclusiqn. Sub-section (2) of Section I 04 does not provide for any express exclusion. In this context reference may be made to Section I 00-A. The present Section I 00-A was amended in 2002. The earlier Section I 00-A, introduced in 1976, reads as follows: "100-A. No further appeal in certain cases.-Notwithstanding anything contained in any Letters Patent for any High Court or in any other instrument having the force of law or in any other law for the time being in force, where any appeal from an appellate decree or order is heard and decided by a Single Judge ofa High Court, no further appeal shall lie from the judgment, decision or order of such Single Judge in such appeal or from any decree passed in such appeal." It is thus to be seen that when the legislature wanted to exclud~ a letters patent appeal it specifically did so.

The words used in Section 100-A are not by way of abundant caution. By the Amendment Acts of 1976 and 2002 a specific exclusion is provided as the legislature knew that in the absence of such words a letters patent appeal would not be barred. The legislature was aware that it had incorporated the saving clause in Section 104(1) and incorporated Section 4 CPC. Thus now a specific exclusion was provided. After 2002, Section I 00-A reads as fol lows: "I 00-A. No further appeal in certain cases.-Notwithstanding anything contained in any Letters Patent for any High Court or in any instrument having the force of law or in any other law forthe time being in force, where any appeal from an original or appellate decree or order is heard and decided by a Single Judge ofa High Comi, no fu1iher appeal shall lie from the judgment and decree of such Single Judge." To be notea that here again the legislature has provided for a specific exclusion.

It must be stated that now by vi1iue of Section I 00-A no letters patent appeal would be maintainable. However, it is an admitted position that the law which would prevail would be the law atthe relevant time. At the relevant time neither Section I 00-A nor Section I 04(2)barred a letters patent appeal. Applying the above principle to the facts of this case, the appeal under clause 15 of the Letters Patent is an appeal provided by a law for the time being in force. Therefore, the finality contemplated by sub-section (2) of Section I 04 did not attach to an appeal passed under such law. It was next submitted that clause 44 of the Letters Patent showed that Letters Patent were subject to amendment and alteration. It was submitted that this showed that a Letters Patent was a subordinate or subservient piece of law. Undoubtedly, clause 44 c c permits amendment or alteration of Letters Patent, but then which legislation is not subject to amendment or alteration?

CPC is also subject to amendments and alterations. In fact it has been amended on a number of occasions. The only unalterable provisions are the basic structure of our Constitution. Merely because there is a provision for amendment does not mean that, in the absence of an amendment or a contrary provision, the Letters Patent is to be ignored. To submit that a Letters Patent is a subordinate piece of legislation is to not understand the true nature of a Letters Patent. As has been held in Vinita Khanolkar case [(1998) I SCC 500] and Sharda Devi case ((2002) 3 SCC 705] a Letters Patent is the charter of the High Court. As held in Shah Babula/ Khimji case[( 1981) 4 SCC 8] a Letters Patent is the specific law under which a High Court derives its powers. It is not any subordinate piece of legislation. As set out in the aforementioned two cases a Letters Patent cannot be excluded by implication.

Further it is settled Jaw that between a special law and a general law the special law will always prevail. A Letters Patent is a special law for the High Court concerned. The Civil Procedure Code is a general law applicable to all courts. It is well-settled law, that in the event ofa conflict between a special law and a general law, the special law must always prevail. We see no conflict between the Letters Patent and Section I 04· but if there was any conflict between a Letters Patent and the Civil Proced_ure Code then the provisions of the Letters Patent would always prevail unless there was a specific exclusion. This is also clear from Section 4 of the Civil Procedure Code which provides that nothing in the Code shall limit or affect any special law. As set out in Section 4 CPC only a specific provision to the contrary can exclude the special law. The specific provision would be a provision like Section I 00-A." [at paras 29 – 32]

34. Based on the aforementioned extracts from the Constitution Bench decision, Shri Viswanathan sought to urge that a specific exclusion need not refer to the very provision that is sought to be excluded but it was enough ifthe subject matter at hand is referred to and that therefore it is not necessary for any provision in the Code of Civil Procedure to expressly refer to Section 23 of the Travancore-Cochin High Cou~ Act, but that it would be enough that on a reading of the said provision it would be clear that the particular special, locaJ, or other law would not apply.

35. As has been stated by us above, for the exclusion to be specific, fR. F. NARIMAN, J.] we must first hold that the provision contained in Section 98(2) is special as against Section 23 of the Travancore-Cochin High Court Act. This we are afraid we cannot do, as it would be in the teeth of the Constitution Bench judgment in Sathappan's case, in pa11icular paragraph 32 thereof. This Court has unequivocally held that a Letters Patent is a special law for the High court concerned, the Code of Civil Procedure being a general law applicable to all courts, and that it is well settled that in the event of a conflict between the two, the special law must always prevail. In the present case, substitute the words "High Court's Act" for "Letters Patent". What follows is that the High Court's Act is a special law for the High Court concerned, the Code of Civil Procedure being a general law applicable to all courts. This according to us really concludes the matter in favour of the appellants. Hemalatha's case (supra) has therefore been wrongly decided and must therefore be overruled.

36. Shri Viswanathan referred various j udgmerits to us on the applications of the general versus special principle. In particular he relied strongly on Life Insurance Co.rporation ofindia v. D.J. Bahadur and Others, (1981) 1 SCC 315. The question that arose before this Court in that case was whether the Life Insurance Corporation Act. 1956 is a special statute qua the Industrial Disputes Act, 1947 when it came to a dispute regarding conditions of service of the employees of the Life Insurance Corporation oflndia. This Court ultimately held that the Industrial Disputes Act-would prevail over the Life Insurance Corporation oflndia Act as the Industrial Disputes Act relates specially and specifically to industrial disputes between workmen and employers, whereas the LIC Act is a general statute which is silent on what happens to disputes between management and workmen. The fact that the LIC Act must be considered to be a special legislation regulating the takeover of private insurance business not being relevant to the subject matter at hand would not make the said Act special in any sense.

The working test laid down by this Court to determine which statute is general and which special, is laid down in paragraph 52 of the said judgment thus:-.,: "In determining whether a statute is a special or a general one, the focus must be on the principal subject-matter plus the particular perspective. For certain purposes, an Act may be general and for certain other purposes it may be special and we cannot blur distinctions when dealing with finer points of law. In law, we have a cosmos ofrelativity, not absolutes- so too in life; The ID Act is a special statute devoted wholly to investigation and settlement of c c industrial disputes which provides definitionally for the nature of industrial disputes coming within its ambit. It creates an infrastructure for investigation into, solution of and adjudication upon industrial disputes. It also provides the necessary machinery for enforcement of awards and settlements. From alpha to omega the ID Act has one special mission – the resolution of industrial disputes through specialised agencies according to specialised procedures and with special reference to the weaker categories of employees coming within the definition of workmen. Therefore, with reference to industrial disputes between employers and workmen, the ID Act is a special statute, and the LIC Act does not speak at al 1 with specific reference to workmen. On the other hand, its powers relate to the general aspects of nationalisation, of management when private businesses are nationalised and a plurality of problems which, incidentally, involve transfer of service of existing employees of insurers. The workmen qua workmen and industrial disputes between workmen and the employer as such, are beyond the orbit of and have no specific or special place in the scheme of the LIC Act. And whenever there was a dispute between workmen and management the ID Act mechanism was resorted to." 3 7.

Applying the aforesaid test, we have no doubt that the principal subject matter contained in the present case is appeals before the High Court of Kera la. The particular perspective that we are concerned with is what is to happen, in such appeals, ifthere is a difference of opinion between two Judges hearing such appeals in the High Court. Viewed from this perspective there can be no doubt that the subject matter pe11ains to appeals in the High Com1 alone and not other courts. Those appeals can deal with civil, criminal, and other matters. The particular perspective therefore demands the application of a uniform rule to all such appeals, which rule is provided by the special rule contained in Section 23 of the Travancore-Cochin High Court Act. which in turn displaces the general rule which applies under Section 98(2) of the Code of Civil Procedure to all Cou11s and in civil proceedings only.

38. Viewed from another perspective, even the topics for legislation contained in the 7th Schedule of the Constitution oflndia would show that civil procedure is dealt with differently from jurisdiction and powers of courts. In this regard the relevant entries in the 7th Schedule make interesting reading:- PANKAJAKSHl (DEAD) THROUGH LRS. & OTHERS v. CHANDRIKA & OTHERS [R. F. NARIMAN, J.l "I. List III entry 13 13. Civil procedure, including all matters included in the Code of Civil Procedure at the commencement of this Constitution, limitation and arbitration. 2. List I entry 95 95. Jurisdiction and powers ofall courts, exceptthe Supreme Court, with respect to any of the matters in this List; admiralty jurisdiction. 3. List II entry 65 65. Jurisdiction and powers ofall courts, exceptthe Supreme Court, with respect to any of the matters in this List. 4. List III entry 46 46. Jurisdiction and powers ofall cout1s, except the Supreme Court, with respect to any of the matters in this List."

39. We now turn to the arguments based on Section 98(3) of the Code of Civil Procedure.

40. As has been stated hereinabove, Section 98(3) was introduced in the year 1928 when all the High Courts in British India were governed only by the Letters Patent establishing them. The reason for the introduction of the said Section goes back to the landmark judgment of the Privy Council in Bhaidas' case and various other judgments following the said landmark judgment.

41. In Bhaidas' case (supra), the Privy Council had to decide whether clause 36 of the Letters Patent would prevail over Section 98 of the Code of Civil Procedure. Clause 36 of the Letters Patent was similar to Section 23 of the Travancore-Cochin High Court Act. The Privy Council, after setting out Section 4 of the Code of Civil Procedure, held:- "There is no specific provision in section 98, and there is a special form of procedure which was already prescribed. That form of procedure section 98 does not, in their Lordships' opinion, affect. The consequence is that the appellant is right in saying that in this instance a wrong course was taken when this case was referred to other Judges for decision, and he is technically entitled to a decree in accordance with the judgment of the Chief Justice. This view of the section is not novel, for it has been supported by judgments in Madras, in Allahabad and in Calcutta." c [2016) 3 S.C.R.

42. The controversy which reared its head after the aforesaid judgment was as to whether appeals under the Code of Civil Procedure, being referred to in clause 16 of the Letters Patent, would also be covered by clause 36. In order to appreciate the aforesaid controversy, it is necessary to set out clauses 15, 16 and 36 of the Letters Patent as follows:- "Clause 15. Appeal from the courts of original jurisdiction to the High Court in its appellate jurisdiction:- And we do further ordain that an appeal shall lie to the said High Court of Judicature at Madras, Bombay, Fort William in Bengal from the judgment (not being a judgment passed in the exercise of appellate jurisdiction in respect of a decree or order made in the exercise of appellate jurisdiction by a Court subject to the superintendence of the said High Court and not being an order made in the exercise of revisional jurisdiction, and not being a sentence or order passed or made in exercise of the power of superintendence under the provisions of Section 107 of the Government oflndiaAct, or in the exercise of criminal jurisdiction) of one Judge of the said High Court or one Judge of any Division Court, pursuant to Section 108 of the Government of India Act, and that notwithstanding anything herein before provided, an appeal shall lie to the said High Court or one Judge of any Division Court, pursuant to Section 108 of the Government of India Act, on or after the first day of February, 1929 in the exercise of appellate jurisdiction in respect of a decree or order made in the exercise of appellate jurisdiction by a Court subject to the superintendence of the said High Court where the Judge who passed the judgment declares that the case is a fit one for appeal; but that the right to appeal from other judgments of Judges oft he sai9 High Court or of such Division Court shall be to Us, Our heirs or successors in Our or Their Privy Council, as hereinafter provided. Clause 16. Appeal from Courts in the Provinces:- And we do further ordafn that the said High Court of Judicature at Fort William in Bengal shall be a court of Appeal from the Civil Courts of the Bengal Division of the Presidency of Fort William, and from all other Courts subject to its superintendence, and shall exercise appellate jurisdiction in such cases as are subject to appeal to the said High Court by virtue of any laws or regulation now in force. Clause 36. Single Judges and Division Courts:- And we do hereby declare that any function which is hereby directed to be performed by the said High Court of Judicature at (Madras), (Bombay), Fort William in Bengal in the exercise of its original or appellate jurisdiction, may be performed by any Judge, or by any Division Court thereof, appointed or constituted for such purpose, in pursuance of section I 08 of the Government of India Act, 191 S; and if such Division Court is 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 of the Judges ifthere shall be a majority, but if the Judges should be equally divided, they shall state the point upon which they differ and the case shall then be heard upon that point by one or more of the other Judges and the point shall be decided according to the opinion of the majority of the Judges who have heard the case including those who first heard it."

43. It will be seen that clause 36 refers to the "appellate jurisdiction" of the High Court, which jurisdiction would contain appeals both under clause IS of the Letters Patent and under Section 96 of the Code of Civil Procedure. Despite this, some High Courts took the view that appeals under Section 96 of the Code of Civil Procedure would not be covered by clause 36 of the Letters Patent, and that therefore Section 98(2) and not Clause 36 would be applied in such appeals before the High Courts.

44. In an instructive Full Bench judgment in Immidisetti Dhanaraju & Another v. Motilal Daga & Another, AIR 1929 MAD 641, owing to the difference of opinion between two learned Judges of the High Court, the question that had to be decided was whether clause 36 of the Letters Patent would apply or Section 98 of the Code of Civil Procedure. Phillips,]. after referring to the Privy Council judgment in Bhaidas' case, stated:- "There is no specific provision in S. 98, and there is a special form of procedure which was already prescribed. That form of procedure S. 98 does not, in their Lordships' opinion, affect." This is a very general statement and is wide enough to include the statement that S. 98 does not affect the procedure laid down in the Letters Patent. That procedure is given in Cl. 36 which applies c c to cases arising both under Cl. 15 and Cl. I 6. It would, therefore, appear that this dictum would apply equally to Cls. 15 and I 6 of the Letters Patent and this is supported by the judgment of Lord Sumner in Sabitri Thakurain v. Savi where he observes.

"In conclusion, there is no reason why there should be any general difference between the procedure of the High Court in matters coming under the Letters Patent and its procedure in other matters." In art interesting passage, Phillips,J. went on to hold:- "It is suggested that the amendment of S. 98 merely leaves the law as it was before, but as there has been no pronou.ncerri.ent of the Privy Council .saying that S. 4 did not protect Cl. 36 equally with Cl. 15, which it was definitely held to protect, it Cl!nnot be said that S. 98, prior to the amendment, necessarily affected Cls. I 6 and 36. The distinction drawn between the jurisdiction of the High Court under Cl. 15 and Cl. I 6 was based on the language of S. 96; for, it has been held that S. 96 refers only to appeals from Subordinate Courts and not to appeals from one Judge of the High Court to the High Court, S. 96 does not in terms exclude appeals from one Judge to the other Judges of the High Court; for, it includes al.I appeals from "any Court exercising original jurisdiction to the Court authorised to hear appeals from decisions of such Court," This language is wide enough to include appeals from one Judge to the other Judge of the High Court. Ifthat is so then S. 96, applies to all appeals and S. 98 which clearly relates back to S. 96 must also deal with all appeals. If S. 98 does not affect appeals under Cl. 15, how can it be held to affect appeals under Cl. 16? It appears to me that in vie~ of the judgments of the Privy Council in Bhaidas Shivdas v. Bai Guiab and Sabitri Thakurain v. Savi) Sec. 4 of the Civil Procedure Code of 1908 was enacted in order to save, amongst other enactments, the provisions of the Letters Patent. That this was the view of the Legislature is now made clearly the very recent amendment ofS. 98, Civil Procedure Code."

45. In the Full Bench decision in the same case, Ramesam,J., agreed with the view of Phillips, J., and held:- "The result is that it is now beyond all doubt that Cl. 36 of the Letters Patent applies to all appeals. lt may be asked, when does S. 98 of the Civil Procedure Code have any operation and why should the legislature not say that the section does not apply to Chartered High Courts instead of adding an explanation to the section? The reply is that S. 98 applies now only to Courts other than the Chartered High Courts, that is, the Chief Courts, and Courts of Judicial Commissioners and the reason why the legislature adopted this particular form of elucidating the matter is that it was intended to retain S. 98, as applicable even to Chartered High Courts, but to make the application subject to Cl. 36 of the Letters Patent. If, at any time, Cl. 36 of the Letters Patent ceases to exist, S. 98 will come into operation. It is to attain this particular result that the explanation was added to S. 98, instead of saying that S. 98 does not apply to Chartered High Courts at all. [would answer the question referred to us thus: "The procedure adopted by the High Court should be governed by Cl. 36 of the Letters Patent." While so holding, the Full Bench of the Madras High Court held that Section 98(3) was declaratory of the law as it always stood. It was held: "It is true that the Amending Act is intended to be declaratory, that is, not only is its object to make the law clear from its date but also to make the Act retrospective; that is, there is no change in the law.

The law both before the amendment and after the amendment is the same. To this extent I agree with the argument of the learned Advocate, that the amendment is declaratory. But to assume from this that the Amending Act did not intend to alter the law, as expounded by the decisions up to that date, does not follow: In the first place, it is not correct to say that there is a well-understood rule oflaw prior to the amendment, in the manner stated by the learned Advocate for the respondents. The decision in Lach111a111 Singh v. Ram Lagan Singh and Veeraraghava Reddi v. Subba Reddi indicate the contrary. In my opinion, the object of the amendment is to make it now perfectly clear that for any purpose Cl. 36 of the Letters Patent should never be controlled by the Civil Procedure Code. This was the view of Lord Buckmaster in Bhaidas Shivdas v. Bai Guiab and the cases approvecttherein. The Amending Act is really the response of the legislature to the invitation of Page, J ." c c u SUPREME COURT REPORfS 46. In an instructive Full Bench judgment reported in Shushila Kesarbhai & Ors. v. Bai Lilavati & Ors., AIR 1975 Guj. 39 (FB), the Full Bench of the Gujarat High Court had to consider whether a decision given by the Full Bench of the Bombay High Court in Bhuta v. Lakadu Dhansing reported in AIR 1919 Bom 1 (FB), laid down the correct law. After an exhaustive discussion discussing the entire history of the CPC Acts starting from 1859 right up to 1908 the Gujarat High Court held: "It would thus be seen that under the Code of 1882 the High Courts of Bombay.

Calcutta, Madras and Allahabad were all agreed that Section 575 superseded Clause 36 and since appeals from subordinate Courts were covered, by Section 575, the procedure in case of difference of opinion in such appeals was governed by Section 575 and not by Clause 36, though, if Section 575 had not been there and Clause 36 had not been superseded by it, the procedure applicable would have been that set out in Clause 36. There was difference of opinion amongst the High Courts only in regard to the procedure applicable in case ofintra- High Court appeals under the Letters Patent. The Calcutta High Court took the view that even in case of intra-High Court appeals, Section 575 applied and Clause 36 was excluded while the Madras and Allahabad High Courts held that the procedure in case of intra-High Cou11 appeals was governed by Clause 36 and not by Section 575." After setting out Sections 98 and 117 of the Code of Civil Procedure the Full Bench further went on to say: "'If these were the only relevant Sections there can be no doubt that by reason of Section 117, Section 98 would ordinarily apply in case of difference amongst Judges hearing an appeal from a subordinate Court as did Section 575 by reason of Section 632 of the Code of 1882.

But Section 4, sub-section ( 1) provides in so many terms that nothing in the Code and since the Code includes Section 98, nothing in Section 98, shall be deemed to limit or otherwise affect any special form of procedure prescribed by or under any other law for the time being in force. We have already discussed the scope and content of Clause 36 and it is apparent from that discussion that Clause 36 is wide enough to include appeals from subordinate Courts as well as intra-High Court appeals and, therefore, the procedure for resolving difference of opinion, set out in Clause 36 is applicable not only in case of intra- High Court appeals but also in case of appeals from subordinate Courts. This procedure is different from that set out in Section 98 · and it is clearly, qua Section 98, a special form of procedure prescribed by Ciause 36. Now there is no specific provision to the contrary in Section 98 or any other provision of the Code and nothing in Section 98 is, therefore, to be deemed to limit or otherwise affect the special form of procedure prescribed by Clause 36 and consequently notwithstanding Section 98, Clause 36 must operate in its fullness~and apply to apQeals fj'om subordinate Courts.

Section 4, subsection ( 1) saves the special form of procedure prescribed in Clause 36 and provides that it shall prevail despite conflict with Section 98. It js therefore, clear asa matter of plain grammatical construction that under the present Code the procedure in case of difference of opinion in appeals from subordinate Courts is governed by Clause 36 and not by S. 98. This would appear to be the undoubted position in principle but let us see what the decided cases say. The first decision to which we must refer in this connection is the decision of the Full Bench of the Bombay High Court in 21 Born LR 157 JAIR 1919 Born I (FB)) (supra) but before we do so, we may make a briefreference to an earlier decision of the Bombay High Court in Suraj Mal v. Horniman, 20 Born LR 185 : (AIR 1917 Born 62 (SB)). That was a case of an intra-High Court ·appeal under Clause 15 and the question arose whether on difference of opinion amongst the Judges, Section 98 applied or Clause%.

The Division Bench observed that Clause 36 prescribed a special form of procedure in certain cases where the Judges of a Division Bench differed and this special form of procedure was saved by Section 4, sub- section ( 1) and the applicability of Section 98 excluded in cases to which this special form of procedure applied. It was held that Section 129 made it abundantly clear that the intention of the Legislature was that in trial of oases on the Original Side as well. as appeals arising in the Original J urisdictjon, nothing should be done which is inconsistent with the Letters Patent and, therefore, the special form of procedure prescribed in Clause 36 applied in case of intra-High Court appeals arising from the Original Side· c -r … c 1-1 [2016] 3 S.C .R. and Section 98 had no application in case of such appeals. This decision was no doubt given in the context of intra-High Court appeals but the principle 011 which it was based must apply equally in relation to appeals from subordinate Courts.

Clause 36, as we have already pointed out, embraces appeals from subordinate Courts as well as intra-High Court appeals and, therefore, ifthe special form of procedure prescribed in Clause 36 is saved from intra-High Court appeals, it must be held equally to be saved for appeals from subordinate Cou1ts and Clause 36 must accordingly be held to apply in relation to them and not Section 98." The Full Bench of Gujarat then went on to state that the Full Bench of the Bombay High Court stood overruled by referring to Bhaidas' case in the following terms:- "This fallacy underlying the decision of the Full Bench in 21 Bom LR 157: (AIR 1919 130111 1 (FB)) was exposed by the Judicial Committee of the Privy Council in a decision given only two years later in Bhaidas Shin/as r. Bai Guiab, 23 Bom LR 623 : 48 Ind App 181 : (AIR 1921 PC 6). That was, of course, a case of an intra-High Court appeal under Clause 15 and while dealing with the question as to what is the procedure to be followed in case of difference of opinion in such an appeal, Lord Buckmaster, after referring to Section 4, sub-section ( l) of the Code of 1908. observed: – 'There is no specific provision in Section 98, and there is a special form of procedure which was already prescribed.

That form of procedure Section 98 does not, in their Lordships' opinion, affect. The consequence is that the appellant is right in saying that in this instance a wrong course was taken when this case was referred to other Judges for decision, and he is technically entitled to a decree in accordance with the judgment of the Chief Justice. This view of the section is not novel, for it has been suppo1ted by judgments in Madras, in Allahabad, and in Calcutta: see Roop Lal v. Lakshmi Doss, ( 1906) lLR 29 Mad 1: Lachma/1 Singh v. Ram Lagan Singh, ( 1904) !LR 26 All l 0 and Nundeepat Mahta v. Urquhart, ( 1870) 4 Beng LR 181.'' These observations were undoubtedly made in the context of intra-High, Cou1t appeals but the reasoning behind these observations is equally applicable in cast: of appl'als frvm subordinate Courts because both categories of appeals are embraced by Clause 36. This decision of the Privy Council must, therefore, be held to have overruled 21 Born LR 157 : (AIR 1919 Bom I (FB)) by necessary implication.

Moreover, the Judicial Committee pointed out that the view taken by them in regard to the inter-action of Section 98 and Clause 36 was not novel for it was supported inter alia by the judgment of the Calcutta High Court in 1870 Beng LR 181 (supra). The case of 1870 Beng LR 181 as we have pointed out above, related to an appeal from a subordinate Court and it was held by the Calcutta High Court in that case that the procedure in case of difference of opinion in such an appeal was governed by Clause 36. This decision of the Calcutta High Court was approved by the Judicial Committee and it must, therefore, be held that according to the Judicial Committee it is Clause 36 and not Section 98 which applies in case of an appeal from a subordinate Court. The decision in 21 Bom LR 157 : (AIR 1919 Born 1) (FB) cannot, therefore, be regarded as good law after the decision of the Judicial Committee in 23 Born LR 623 : (AIR 1921 PC 6) and it need not deter us from taking a different view." c After this long discussion on the point at hand, the Full Bench went on to consider the amendment made in Section 98 by adding Section 98(3). The Full Bench held that Section 98(3) merely clarified the existing legal position by removing a doubt which was cast upon it by some . E judicial decisions. The very Statement of Objects and Reasons of the Repealing and Amending Act of 1928 said that the object of introduction of sub-section (3) in Section 98 is to enact more clearly a provision which was previously implied in Section 4 of the Code. Thus, the Full Bench of the Gujarat High Court held:- "This sub-section makes it clear beyond doubt that nothing in Section 98 shall be deemed to alter or otherwise affect Clause 36.

Clause 36 is not to be controlled by Section 98. Ifthere is any area in which Section 98 and Clause 36 operate simultaneously. Clause 36 must prevail and Section 98 inust give way. Now we need not repeat that Clause 36 embraces _exercise of appellate jurisdiction in both c'ategories pf appeals, namely, appeals from subordinate Courts as well as intra-High Court appeals under Clause 15. It is, therefore, obvious that, at any rate, since the introduction of sub-section (3 ), the procedure in case of difference of opinion iri appeals from subordinate Courts must be held to be c governed by Clause 36 and not by Section 98. In fact as we have pointed out above, that was always the law under the Code of 1908 even before the amendment by reason of Section 4, sub- section (I). Sub-section (3) of Section 98 merely clarified the existing legal position by removing a doubt which was cast upon it by some judicial decisions.

That is made clear by the Statement of Objects and Reasons of the Repealing and Amending Act 18 of 1928 where it is stated that the object of introduction of sub- section (3) in Section 98 is to enact; more clearly the provision which was previously impli~d in Section 4 of the Code. The respondents relied· on the decision of the Allahabad High Court in Muhammad Ishaq Khan v. Muhammad Rustcim Ali Khan, ILR 40 All 292 : (AIR 1918 All 412) and urged that it is a recognised rule that where there have been decided cases before an Act is amended, ifthe amendment does not expressly show that the law as interpreted by the decisions is altered, the rule laid down by the decisions must be adhered to. We accept this principle but we do not see how it has any application here. The law prior to the amendment was never different. The amendment did not seek to alter the law: it merely clarified what was always the law under the Code of 1908 and what that law was on a proper interpretation of Section 4, sub~section (I) has already been discussed by us.

But even ifthe view be taken that prior-to the amendment, the law was that appeals from subordinate Courts were governed by Section 98 despite the existence of Section 4, sub-section ( 1 ). sub-section (3) introduced in Section 98 made it very clear that Clause 36 must operate in its fulness and its applicability to appeals from subordinate Courts should not be excluded by Section 98 and to that extent the preexisting law must be held to have been altered. The decision in 21 Born LR 157: (AIR 1919 Born I) (FB) (supra) cannot, therefore, in any view of the matter, stand after the introduction of sub-section (3) in Section 98. We may now turn to the decisions of the other High Courts. The Madras High Court in a Division Bench judgment in Veeraraghava Reddy v. Subba Reddy, ILR 43 Mad 3 7 : (AIR l 92G Mad 391) (SB) held that even in case of appeals from . subordinate Courts. Clause 36 applies and not Section 98 but this· . judgment is not of much help because it does not contain any discussion of the question on principle.

This question again came up for consideration before a Division Bench of the Madras High Court in Venkatasubbiah v. Venkatasubbamma, AIR 1925 Mad I 032. The Division Bench held that the previous practice of the Court was to apply Section 98 to appeals from subordinate Courts and .the decision in 23 Born LR 623 : (AIR 1921 PC 6) was not intended to override the rule of law enshrined in this practice. This decision is plainly incorrect for reasons which we have already discussed. We need not repeat those reasons. The Madras High Court was again call·ed upon to consider this question in Dhanaraju v. Motilal, AIR 1929 Mad 641 (FB) which was a Full Bench decision. The Full Bench relied.on 23 Born LB 623 : (AIR I 92 I PC 6) (supra) and also emphasized Section 98. sub- section (3) for taking the view that Clause 36 is not controlled by Section 98 and it applies to all appeals, whether from a Single Judge of the High Court or from subordinate Court.

This decision . of the Full Bench has been consistently followed in the Madras High Court and it supports the view we are taking. The view taken by the Calcutta High Court on this point varied from time to time, though there was no specific decision on the point in Suresh Chandra v. Shiti Kania, AIR 1924 Cal 855 (SB), Page J., observed in that case that Clause 36 applies to all appeals, whether intra-High Court or from subordinate Courts. Two different views were expressed in the subsequent case of Becharam v. Purna Chandra; AIR I 925 Cal 845 (FB). There Walmsley, J., took the view that Clause 36 applies· not only to intra-High Co~rt appeals but, also' to appeals from subordinate Courts while Suhrawardy J., observed that so far as appeals from subordinate Courts are concerned, they are governed by Section 98. The next decision which followed was that in Prafulla Kamini v. Bhabani Nath, AIR 1926 Cal 121.

In this case Page, J., who was a party 'to the judgment in AIR I 924 Cal 855 (supra) changed his opinion and held that 23 Bom LR 623: (AIR 1921 PC 6) was confined to appeals under the Letters Patent and did not apply to appeals from subordinate Courts and Walmsley, J., also allowed himself to be persuaded to take the same view as· Page, J. Page, J., observed in the opening paragraph of his judgment that this controversy can be satisfactorily set at rest "only by the action of the Legislature now long overdue" and invited the legislature to solve the doubts and differences by an ·B c c express enactment. There were in fact no doubts and differences. The effect ofSection 4, sub-section ( 1) was clear and indubitable and in our opinion, it saved the full content and operation of Clause 36 notwithstanding Section 98. But even so the Legislature in response to the invitation.of Page J., and with a view to leave no scope for doubts or debate, introduced sub-section (3) in Section 98 by the Repealing and Amendment Act 18 of 1928.

Since then the Calcutta High Court has taken the view that the procedure in case of difference of opinion in appeals from subordinate Courts also is governed by Clause 36. So far as the Lahore High Court is concerned, a Division Bench of that Court held In AIR 1926 Lah 65 (supra) that appeals .under the Code were governed by Section 98 and those under the Letters Patent by Clause 36. Shadila), C.J., who presided over the Bench pointed out that ifthe matter were res integra, he would have held that Clause 26 of the Letters Patent of the Lahore High Court applied to all appeals heard by the High Court and it was immaterial whether they were appeals within the High Court itself or from Courts of inferior jurisdiction but he felt compelled by authorities to take a different view. We do not think, for reasons "which we have already discussed, that the learned Chief Justice should have felt constrained to decide the case.contrary to his personal opinion. The personal opinion entertained by the learned Chief Justice was plainly correct. This question again came up for consideration before a Full Bench of the Lahore High Court in Mt. Sardar Bibiv. Haq Nawaz Khan, AIR 1934 Lah 371. The Full Bench held relying on AIR 1929 Mad 641 (FB) (supra) and Debi Prasad v. Gaudham Rai, AIR 1933 Pat 67 that ;'It is now well- settled that with the addition of sub-section (3), Section 98 of the CPC, made by the Repealing and Amending Act, 18of1928, that Section has no application to cases heard by a Division Bench of a Chartered High Court, whether in appeals from decrees of subordinate Courts or from decrees passed by a Judge of the High Court on the original side, and that all cases of difference of opinion among.'the Judges composing 1he Division Bench are governed by Clause 26, Letters Patent".

This decision completely supports the view w·e are taking. We have no decision of the Patna High Court prior to the introduction of sub-section (3) in Section, 98 – at any rate none PANKAJAKSHI (DEAD) THROUGH I.RS. & OTHERS v. CHANDRIKA & OTHERS [R. F. NARIMAN. J ] was cited before us. The first case where the question of competing claims between Section 98 and Clause 28 of the Letters Patent of the Patna High Court in relation to appeals from subordinate Courts came to be considered by the Patna High Court was that in AIR 1933 Pat 67 (supra). The Division Bench held in that case that the introduction of subsection (3) in Section 98 had resolved the controversy and it was clear that Clause 28 applied to all appeals, irrespective whether they were intra-High Court appeals or appeals from subordinate Courts. The same view was reiterated by the Patna High Court in Rajnarain v. Saligram. ( 1948) !LR 27 Pat 332 and Bokaro and Bangur Ltd. v. State of Bihar, AIR 1966 Pat 154.

It would, therefore, be seen that there is now a consensus amongst most of the High Coutis in the count1y that the procedure in case of difference of opinion in appeals from subordinate Courts is governed by the appropriate clause of the Letters Patent and not !2y Section 98 and the view we are taking is in accord with the decisions of the other High Cou1is …

47. The Gujarat High Court's Full Bench decision. with which we respectfully concur, is important on several counts. Not only does it correctly explain what is meant by a "specific provision to the contrary" in Section 4 of the Code of Civil Procedure, but it also goes on to state thatwhat was achieved by Section 98(3) of the Code of Civil Procedure was already previously implied in Section 4 of the Code of Civil Procedure inasmuch as Section 98 being a general provision could not possibly be said to be a "specific provision" which would take away the effect of the Letters Patent in that case. The self same reasoning would apply to the question of law presented before us. If the Letters Patent, being the Charter of the High Courts in British India. was a special law governing the High Courts untouched by any specific provision to the contrary in the Code of Civil Procedure, so would the High Court Acts, being the Charterofother High Courts, similarly remain as special laws untouched by any specific provision in the Code of Civil Procedure for the self- same reason.

Viewed from any angle, therefore, it is clear that Section 23 of the Travancore-Cochin High Court Act, alone is to be applied when there is a difference of opinion between two learned Judges of the Kerala High Court in any appeal, be it civil, criminal, or otherwise, before them. c c 48. At this juncture, we may also point out that if we were to accept Shri Viswanathan 's argument, several anomalous situations would arise. First and foremost, Section 23 of the Travancore-Cochin High CqurtAct would not applyto appeals under the Code of Civil Procedure before the High Court, but woullapply to criminal and other appeals, making appeals before the same High Court apply a different procedure, depending upon their subject matter. As against this, having accepted Shri V. Giri's argument, a uniform rule applies down the board to all appeals before the High Court, whether they be civil, criminal, orotherwise by applying Section 23 of the Travancore-Cochin High Court Act to all of them.

In fact, in Civil Appeal No. 8576 of2014 which on facts arises out of the Malabar region of Kerala, Clause 36 of the Letters Patent of the Madras High Court would directly apply. As we have seen, Clause 36 of the Letters Patent is pari materia to Section 23 of the Travancore Cochin High Court Act. This being so, even for regions that were governed by a different law – namely, the Letters Patent of the Madras High Court – a uniform rule is to be applied to the entire Kerala High Court. It may be mentioned here in passing that the Letters Patent of the Madras High Court which applied to the Malabar region in the State ofKerala has been continued by virtue of Article 255 of the Constitution oflndia read with Sections 5, 49(2), 52 and 54 of the States Reorganisation Acf, 1956.

49. At this juncture it is necessary to refer to the decision in Tej Kaur and another v. Kirpal Singh and another, ( 1995) 5 ·sec 119, which was referred to in the course of arguments by both Shri Giri and Shri Viswanathan. This judgment only decided that a difference between · two Judges of the Punjab and H~'ryana High Court ~ould have to be decided in accordance with the provisions of Section 98(2) of the Code of Civil Procedure because Section 98(3) of the Code of Civil Procedure would not apply, as the Punjab High Court is not governed by the Letters Patent. What appears to have been missed by this decision is the fact that the Punjab and Haryana High Court continues to be governed by the Letters Patent governing the High Court set up at Lahore. The G · Lahore Letters Patent contains a provision similar to· clause 36 of the Letters Patent that governed Bombay and Calcutta by a pari materia provision contained in clause 26 of the Lahore Letters Patent.

In accordance with our judgment, therefore, it is clear that this authority is no longer good law inasmuch as Section 98(3) of the Civil Procedure Code, 1908 would expressly save the said Letters Patent, and would thus make clause 26 applicable in place of Section 98(2) of the Code of Civil Procedure.' 50. Even between the High Courts themselves another anomalous situation would arise. Those High Courts, such as Bombay, Calcutta and Madras, which are "Letters Patent" High Courts so to speak, would not be governed by Section 98 in view of sub-section (3) thereof, but if we were to accept Shri Viswanathan's argument, High Courts like the Kerala High Court which are not established by any Letters Patent, would be so governed. This again would lay down two different rules for different sets of High Courts depending upon a wholly irrelevant circumstance – whether their Charter originated in the Letters Patent or in. a statute. Here again the acceptance of Shri V. Giri 's argument leads to one uniform rule applying down the board to all the High Courts in this country.

51. For. the aforesaid reasons we conclude that Hemalatha's case was wrongly decided and answer Question I referred to us by stating that Section 23 of the Travancore-Cochin High Court Act remains unaffected by the repealing provision of Section 9 of the Kerala.High Court Act, and that, being in the nature of special provision vis-a-vis Section 98(2) of the Code of Civil Procedure, would apply to the Kerala High Court.

52. In view of the answer to Question I, it is not necessary to answer Question 2. The reference is disposed of accordingly. KURIAN, J. I. I wholly agree with the excellent exposition of law b)' my esteemed brother Rohinton Fali Nariman, J. l have nothing to . c add on the reference part. However, for appropriate guidance at the F · c quarters concerned, I feel a few observations would be contextually relevant. 2. Legislature has thought it fit to allocate certain matters to be 1 In fact, even the PEP SU Ordinance which governed the princely states of Punjab and which had set up a High Court for such states. also contained a provision similar to Clause 26 of the Letters Patent. Clause 56 of this PEPSU Ordinance stated as follows: Clause 56- Difference of opinion between two judges – In all appeals or other proceedings heard by two judges, if there is a difference of opinion between them, each judge shall record his separate opinion and the case shall be laid for hearing before a third judge and the decision of the Court shall be in accordance with the opinion of such third judge. 107:? c heard by a Single Judge and a few by a Bench of not less than two Judges, in common parlance what is known as Single Bench and 65 · REPORTABLE Division Bench.

A matter is stipulated to be heard by a Division Bench on account of the seriousness of the subject matter and for enabling two or more heads to work together on the same. Sitting in Division Bench is not as if two Single Judges sit. In Division Bench or in a Bench of larger strength, there is a lot of discussion in-between, clarifications made, situations jointly analysed and positions in law getting evolved. 3. Under Section 98 of The Civil Procedure Code, 1908 (for short, 'the CPC'), when the Judges differ in opinion on a point of law, the matter is required to be placed for opinion of the third Judge or more of other Judges as the Chief Justice of the High Court deems fit and the point of law on which a difference has arisen is decided by the majority and the appeal is decided accordingly. It is to be seen that under the proviso to Section 98 (2) of the CPC, hearing by a third Judge or more Judges is only on the point of law on which the Division Bench could not concur.

There is no hearing of the appeal by the third Judge or more Judges on any other aspect. Under Section 98 (2) of the CPC, in case an appeal is heard by a Division Bench of two or more Judges, and if there is no majority and if the proviso is not attracted, the opinion of that Judge or of the equally divided strength in the Bench which concurs in a judgment following or reversing the decree appealed from, such decree shall stand confirmed. 4. Kerala High Court Act, 1958 has provided for the powers of a Bench of two Judges under Section 4. It is clarified thereunder that if the Judges in the Division Bench are of opinion that the decision involves a question of law. the Division Bench may order that the matter or question oflaw be referred to a Full Bench. Needless to say, it should be a question of law on which there is no binding precedent. 5. Under Section 23 of the Travancore-Cochin High Court Act, 1125, ifthe Division Bench disagrees either on law or facts, the Chief Justice is required to refer the matter or matters of disagreement for the opinion of another Judge and the case will be decided on the opinion of the majority hearing the case. 6.

Under The Code of Criminal Procedure, 1973 (for short, 'the Cr.PC'), the position is slightly different. Section 392 reads as follows: PANKAJAKSHI (DEAD) THROUGH LRS. & OTHERS v CHANDRIKA & OTHERS [KURIAN, J.] "392. Procedure when Judges of Court of Appeal are equally divided.-When an appeal under this Chapter is heard by a High Court before a Bench of Judges and they are divided in opinion, the appeal, with their opinions, shall be laid before another Judge of that Court, and that Judge, after such hearing as he thinks fit, shall deliver his opinion, and the judgment or order shall follow that opinion: Provided that if one of the Judges constituting the Bench, or, where the appeal is laid before another Judge under this section, that Judge, so requires, the appeal shall be re-heard and decided by a larger Bench of Judges." 7. The emerging position is that there is no uniformity or clarity with regard to the Judge strength in the event of difference of opinion, and according to me, it has affected the purpose for which the matters are required to be heard by a strength of more than one Judge, be it a Division Bench or Full Bench (Larger Bench). 8:·· l.J11der the Travancore-Cochin High Cou11 Act, 1125, Section 23 enables the Chief Justice to refer for the opinion of another Judge, the matter or matters on which the Division Bench has disagreed either on law or on facts and the appeal will be ultimately decided on the view ·taken by that Judge sitting and hearing the appeal alone. 9.

Under Section 392 of the Cr.PC, the situation again is different. In case, the Division Bench is divided in their opinion. the appeal with the opinions should be laid before another Judge of that Court and the appeal will be decided clearly on the basis of the opinion rendered by that Judge hearing the matter sitting alone. However, the proviso under Section 392 of the Cr.PC enables any one of the Judges of the Division Bench or the third Judge to order the appeal to be heard by a larger Bench of Judges. I 0. The coram is not dealt with in the CPC or the Cr.PC. It is stipulated by the respective High Court Acts. When the High Court 68 Act provides for an appeal to be heard by a Division Bench in situations where Section 98 (2) without proviso operates, it virtually becomes a decision of the Single Judge since the differing view is only to be ignored. When the Judges hearing the appeal differ in opinion on a point of law, under the proviso, the said point of law has to be heard by one or more of other Judges and the appeal be decided according to the opinions of the majority of the Judges who have heard the appeal, including at the initial stage.

In such situations also, unless the Ghief Justice decides 107\ c c [20 I 6) 3 S.C.R. otherwise, the opinion on the point of law is formed only by one Judge, the third Judge. This position is actually against the very principle of reference on difference. Reference is always made to a larger coram. Not only that, when two judicial minds sitting together could not concur, that difficulty is to be resolved, ideally, if not on common sense, not by a third one, but by a Bench of larger coram. 11. In my humble view, ifthe purpose behind the requirement of a matter to be heard by a Bench of not less than two Judges is to be achieved, in the event of the two Judges being unable to agree either on facts or on law, the matters should be heard by a Bench oflarger strength. Then only the members of the Bench of such larger strength would be able to exchange the views, discuss the law and together appreciate the various factual and legal positions.

The 69 conspectus of the various provisions, in my view, calls for a comprehensive legislation for handling such situations of a Hench being equally divided in its opinion, either on law or on facts, while hearing a case which is otherwise required to be heard by a Bench of not less than two Judges, both civil and criminal. It is for the High Court and the Legislature of the State concenied to take further steps in that regard. Nidhi Jain Reference disposed of.