TMI Blog2002 (5) TMI 865X X X X Extracts X X X X X X X X Extracts X X X X ..... peals preferred under Section 96 of the Code of Civil Procedure to the High Court of Kerala were decided by common judgment with the appeals arising from the injunction matters. The Two judges constituting the Division Bench sharply different on all issues of fact and mixed issues of fact and law. Justice P.K. Balasubramanyam dismissed the appeals holding that the plaintiff (petitioner herein) is not entitled to decree of specific performance. The other Judge, Justice K.A. Abdul Gafoor, differed and came to the conclusion that the plaintiff is entitled to decree of Specific Performance. He, therefore, allowed the appeals. 2. In the course of hearing, it is not disputed before us by the counsel appearing for the parties that the main issue arising on facts between the parties which was sufficient to dispose of the appeals was regarding the right of the plaintiff to claim decree of the specific performance. The other mixed issue of law and fact whether the property being custodia legis through the Receiver appointed by the Court the suit without obtaining leave of the Court was maintainable or not, was an additional ground to grant or refuse the decree of specific performance. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ench. One of us has dismissed A.S. 422 of 1996 and partly allowed the appeals A.F.A. Nos. 99, 100 and 101 of 1994. The other has allowed the appeal A.S. 422 of 1996, and dismissed the appeals, A.F.A. Nos. 99, 100 and 101 of 1994. In this situation, Section 98 of the Code of Civil Procedure comes into play. Under Sub-section 2 of Section 98 of the code the decree appealed from would stand confirmed in such a situation, as no point of difference on law is stated by us to attract the application of the proviso thereto. The only question then is whether there is any provision in the Letters Patent, as far as we are concerned, the Kerala High Court Act which would keep out the operation of Section 98(2) of the Code in the light of Section 98(3) of the Code. In a case where the Judges differ, there is no provision in the Kerala High Court Act 1958 governing the course to be adopted. There was a provision in section 23 of the Travancore-Cochin High Court Act and it can be argued in terms of Section 9 of the Kerala High Court Act, 1958 that the provision of Travancore-Cochin High Court Act 1125 in so far as they relate to matters not provided for in the High Court Act 1958, will continu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , therefore, provides that where the appeal is decided by two Judges and there is no unanimity in opinion, Sub-section (2) of the said Section would get attracted which states that where there is no such majority which concurs in a judgment varying or reversing the decree appealed from, such decree shall be confirmed'. 7. Proviso to Sub-section (2) of Section 98 of the Code, further, states 'that where the Bench is composed of two or other even number of judges and the Judges comprising the Bench differ on a point of law, they may state the point of law upon which they differ and the appeal shall then be heard upon that point only by one or more Judges, and in that event point shall be decided according to the opinion of the majority (if any) of the Judges who have heard the appeal, including those who first heard it.' 8. Sub-section (3) of Section 98 of the Code gives overriding effect to the provisions of Letters Patent of High Court (if there be any) and contains procedure for resolving such a difference. Sub-section (3) thus saves the provision of Letters Patent of the concerned High Court if it contains a provision dealing with such difference of opinion diff ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 36 of Madras Letters Patent of High Court does not cover a situation as is obtaining in cases before them where the two Judges differed on all issues of fact and law, have delivered two different judgments and not found necessary to state any point of law on which they differed for reference of the same to third or more judges, It is on such understanding of the procedural provisions contained in the Code, Travancore-Cochin Act, and the Kerala Act read with Clause 36 of the Letters Patent of Madras High Court that the Judges forming the Division Bench came to the conclusion that there is no other option before them except to confirm the decree of the subordinate court in accordance with Sub-section (2) of section 98 of the Code. 12. Senior learned counsel Shri. R.F. Nariman very strenuously urged that the two learned judges in taking the above view and confirming the decree of the subordinate court committed a grievous mistake of law in holding that clause 36 of the letters patent did not cover a situation like the one before them. It is argued that even though the two judges have delivered separate Judgments, from their judgments it is clearly discernible that they had differe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y any High Court or Judicial Commissioner's court for an existing State. 14. Learned counsel appearing for the petitioner argued that Section 52 of the S.R Act of 1956 saved original appellate and other jurisdiction of the erstwhile High Court for the territories which now form part of the new State and is within territorial jurisdiction of that High Court after re- organisation of States. Submission made is that the expression 'other Jurisdiction' used in Section 52 preceded by such words 'original and appellate' is an expression of wide import and would, therefore, include clause 36 of Letters Patent of Madras High Court which governs subject matter of power and jurisdiction of one or more Judges of that High Court in the event of difference of opinion between them. In support of the above last contention, reliance is placed on the decision in case of M.L. Sethi v. R.P. Kapur, [1973] 1 SCR 697. Attention of the court is particularly invited to the observation of the Supreme Court in which word 'jurisdiction' is explained thus :- The Jurisdiction is a verbal coal of many colours. Jurisdiction originally seems to have had the meaning which Lord Re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 the newly formed State of Kerala in 1956 and governed by Kerala Act. The said High Court does not have any Letters Patent-it being not a Chartered 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 respondent very strong reliance has been placed on two Judges Bench decision of this Court in the case of Tej Kaur v. Kirpal Singh, [1995] 5 SCC 119 in which a similar situation Supreme Court held that the provision of Subsection (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 subor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ally 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 State earlier governed by jurisdictional law of erstwhile High Court should be given a restricted meaning and not a wide meaning as 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 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 points of difference on any question of law. 18. Let us first consider the main submission ad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nted day with respect to practice and procedure in the High Court for the corresponding State shall, with necessary modifications, apply in relation to the 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 Kerala, 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 result would ensue which according to us can never have been intended by the Legislature which was enacting a transitory provision to lay down a uniform procedure for all the integrating territories of the High Court of 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... egal 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 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 enable ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch 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 Kerala Act . The submission therefore, is that the judges of the Division Bench of the 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 Judge. 31. The above argument advanced is attractive but cannot be accepted for another reason. In our view, the law contained in the Travancore - Cochin 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 all 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 reference any differing judges who have delivered separate Judg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Procedure which 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 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 Latin word 'literate 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion 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 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
