TMI Blog2016 (2) TMI 1063X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Charter of other 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. Hemalatha’s case [2002 (5) TMI 865 - SUPREME COURT] was wrongly decided and answer Question 1 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-à-vis Section 98(2) of the Code of Civil Procedure, would apply to the Kerala High Court. - Civil Appeal No. 201 of 2005 with C.A. No. 8576 of 2014 - - - Dated:- 25-2-2016 - Anil R. Dave, Kurian Joseph, Shiva Kirti Singh, A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ncore-Cochin Act is in the nature of a special provision while Section 98(2) is in the nature of general law. As between the two, the former would apply in preference to the latter. The decision of this Court in P.V. Hemalatha s v. Kattamkandi Puthiya Maliackal Saheeda and Anr. (supra) to the extent it takes a contrary view, in our opinion, requires to be reconsidered. 9. That apart, the question whether in an appeal arising out of an order passed by the High Court to which Section 98(2) of the CPC applies, this Court can in exercise of its power under Article 136 of the Constitution direct the matter to be placed before a third Judge to resolve the conflict arising from two differing judgments, has not been examined either in P.V. Hemalatha s or Tej Kaur s case. We, therefore, consider it appropriate to refer to a Larger Bench for consideration and an authoritative pronouncement the following two questions : (1) Whether Section 23 of the Travancore-Cochin Act remains unaffected by the repealing provisions of Section 9 of the Kerala High Court Act. If so, whether Section 23 is in the nature of a special provision vis- -vis Section 98(2) of CPC? (2) Whether this Cou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct and Section 4 of the Kerala Act read with Section 9 of the latter Act is that as the procedure indicated to Judges constituting a 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 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. 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 the Kerala Act regulating the practices, procedure and powers of the 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 the Code of Civil Procedure regulated by special law that is contained in Sections 96 to 98 of the Code. There is a clear conflict between th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e-book in Section 577 of the old Civil Procedure Code of 1877. These provisions in the Code of Civil Procedure were in existence when the Travancore-Cochin Act, 1125 (Indian calendar 1948-49) and the Kerala 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 an overriding effect along with the Letters Patent of the Chartered High Courts to other enactments dealing with formation of new High Courts for new States under the SR Act of 1956 or any other laws. [at paras 32-34 and 38] Shri V. Giri, learned senior counsel, who has argued on behalf of the appellants in the present cases, has referred to a judgment of five learned Judges of this Court in P.S. Sathappan v. Andhra Bank Ltd. (2004) 11 SCC 672, by which learned counsel has referred to the exactly opposite finding insofar as appeals under the Letters Patent are concerned. According to the learned senior counsel, this judgment having decided that for the purpose of Section 4 of the Code of Civil Procedure, Section 98 not being a specific law to the contrary would therefore govern the present case as well, as it has been expressly held in that dec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ting up High Courts other than those already set up by the Letters Patent would also be the basic Charter (like the Letters Patent) of each High Court. Section 98(3) therefore only declares what is already contained in Section 4, namely, that qua the High Courts in this country, Section 98 would not be a specific provision to the contrary and that the High Court Acts being special in this regard would necessarily prevail by virtue of the other provisions of Section 4 over the general provision contained in Section 98(2) of the Code of Civil Procedure. 6. Shri K.V. Viswanathan, learned senior counsel appearing on behalf of the respondents, countered these submissions and marshalled his arguments on four different points. He argued the case with great ability and learning and we heard him with considerable interest. According to learned counsel, the Code of Civil Procedure (Amendment) Act of 1951, which extended the Code of Civil Procedure to the whole of India, contained a provision (namely Section 20) by which all laws that corresponded to the Code of Civil Procedure in the territory of India were repealed. Therefore, according to learned counsel, Section 23 of the Travancore-Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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. S. 96. Appeal from Original Decree. - (1) Save where otherwise expressly provided in the body of this Code or by any other law for the time being in force, an appeal shall lie from every decree passed by any Court exercising original jurisdiction to the Court authorized to hear appeals from the decisions of such Court. (2) An appeal may lie from an original decree passed ex parte. (3) No appeal shall lie from a decree passed by the Court with the consent of parties. (4) No appeal shall lie, except on a question of law, from a decree in any suit of the nature cognizable by Courts of Small Causes, when the amount or value of the subject-matter of the original suit does not exceed ten thousand rupees. S. 98. Decision where appeal heard by two or more Judges . - (1) Where an appeal is heard by a Bench of two or more Judges, the appeal shall be decided in accordance with the opinion of such Judges or of the majority (if any) of such Judges. (2) Whe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Preamble. - Whereas it is necessary to make provision regulating the business of the High Court of Travancore-Cochin, for fixing the jurisdiction and powers of single Judges, Division Benches and Full Benches and for certain other matters connected with the functions of the High Court; It is hereby enacted as follows :- S. 18. Jurisdiction and powers of the High Court. - (1) Subject to the provisions of this Act of the High Court shall have and exercise all the jurisdiction and powers vested in it by this Act and any other law in force or which may hereafter come into force and any jurisdiction vested in existing High Court immediately prior to the coming into force of this Act. S. 21. Powers of Division Benches of two Judges. - A Division Bench consisting of two Judges of the High Court, is empowered : (i) to hear and decide appeals against orders passed by a single Judge under sub-clause (A) (X) of clause (4) of Section 20: to hear and decide appeals against judgments passed by a single Judge under sub-clause (c) of clause (4) of Section 20 where the Judge who passed the Judgment declares that the case is a fit one for appeal and to hear and decide app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion to the following matters may be exercised by a Bench of two Judges, provided that if both Judges agree that the decision involves a question of law they may order that the matter or question of law be referred to a Full Bench :- (1) Any matter in respect of which the powers of the High Court can be exercised by a single Judge. (2) An appeal - (a) from a decree or order of a Civil Court, except those coming under section 3; (b) from the judgment of a Criminal Court in which a sentence of death or imprisonment for life has been passed on the appellant or on a person tried with him. (3) A reference - (a) under section 113 of the Code of Civil Procedure, 1908; (b) under section 307, section 374 or section 432 of the Code of Criminal Procedure, 1898. (4) An application under Rule 2 of Order XLV of the First Schedule to the Code of Civil Procedure, 1908. (5) An application for the exercise of the powers conferred by section 491 of the Code of Criminal Procedure, 1898 or by clause (1) of article 226 of the Constitution of India where such power relates to the issue of a writ of the nature of habeas corpus. (6) An a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Procedure did not extend to these princely States as even the Adaptation of Laws Order of 1950 did not extend the Code of Civil Procedure to Part B States. The 1951 amendment to the Code of Civil Procedure, for the first time, applied the Code of Civil Procedure to Part B States, and as a consequence repealed any law which corresponded to the Code of Civil Procedure in Part B States. According to Shri Viswanathan, the Travancore-Cochin High Court Act, being a law corresponding to the Code of Civil Procedure, was repealed, and Section 23, being a part of the said High Court s Act, would also therefore stand repealed. For this purpose Shri Viswanathan relied upon several authorities. First he relied upon Krishan Prasad Gupta v. Controller, Printing Stationery, (1996) 1 SCC 69 to buttress this submission. In this judgment, this Court had to consider Section 28 of the Administrative Tribunals Act, which stated that authorities constituted under the Industrial Disputes Act or any other corresponding law for the time being in force, were exempted from the provisions of Section 28. In construing the expression any other corresponding law this Court relied upon a New Zealand judgment a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... different ways, the Cochin Act was said to correspond with the Central Excise Act in that the main object and purpose of both Acts was in substance the same, and they both dealt with the same subject matter, namely, control of the tobacco trade and the levying of excise duty on tobacco. 13. Similarly, in The Custodian of Evacuee Property, Bangalore v. Khan Saheb Abdul Shukoor, etc. [1961] 3 SCR 855, the question before this Court was whether a later Mysore Act had been repealed by an earlier Mysore Act. It was held by this Court, that as both Acts dealt with evacuee property, the fact that the scheme under the second Act was different from the first would make no difference as the subject matter that was dealt with was in substance the same. 14. Applying the test laid down by the aforesaid decisions of this Court, namely, that the subject matter of the two statutes must essentially be the same and/or that the main object and purpose of the statutes should be substantially similar, we find that the Travancore-Cochin High Court Act formed the Charter for jurisdiction to be exercised by the said High Court. This jurisdiction is exercised not only in civil matters but criminal a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inue to have full force and effect notwithstanding that they deal with the same matter as is contained in the Code of Civil Procedure. From this, however, an exception is carved out, and that exception is that there should not be any specific provision to the contrary contained in the Code itself. 18. At one point in time it was not clear as to whether such specific provision should be in the Code itself or could also be contained in any other law. In fact, in Mati Lal Saha v. Chandra Kanta Sarkar Others, AIR 1947 Cal 1, the Calcutta High Court held that such specific provision to the contrary could be contained in a third Act, namely, the Presidency Small Causes Courts Act, and need not be contained even in the two competing Acts, namely the Code of Civil Procedure and a Bengal Agricultural Debtors Act. At this point it is necessary to advert to the pari materia provision contained in the Criminal Procedure Code. Section 1(2) of the Code of Criminal Procedure, 1898 stated : Section 1. Short title and commencement. (2) It extends to the whole of India except the State of Jammu and Kashmir; but, in the absence of any specific provision to the contrary, nothing her ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... de and contains virtually the same phraseology. The expression specific provision to the contrary in the Code of 1898 was considered in the two Full Bench decisions (supra). The setting in which the issue was raised was precisely similar and the meaning of specific provision to the contrary was considered by Young, C.J., in the Lahore case where the learned Judge observed : [AIR 1940 Lah 129, 133]. The word specific is defined in Murray s Oxford Dictionary as precise or exact in respect of fulfilment, conditions or terms; definite, explicit . In a similar situation, the same words fell for decision in the Allahabad case where Braund, J., discussed the meaning of specific provision in greater detail and observed : [AIR 1940 All 263, 269]. I have, I confess, entertained some doubt as to what exactly the words specific provision mean. I think first, that they must denote something different from the words express provision . For a provision of a statute to be an express provision affecting another statute or part of it, it would have, I think, to refer in so many words to the other statute or to the relevant portion of it and also to the effect intended to be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it to diffuse an air of educated precision . [Fowler s Modern English Usage, 2nd Edn., p. 574] Stroud [Stroud s Judicial Dictionary Vol. 4, 3rd Edn., p. 2836] says specifically ... means as such . Black [Blacks Law Dictionary 4th Edn., p. 1571] gives among other things, the following meaning for specific : definite, explicit; of an exact or particular nature ... particular; precise. While legalese and English are sometimes enemies we have to go by judicialese which is the draftsman s lexical guide. The contrary view in the Biram case [(1976) 3 SCC 470 : 1976 SCC (Cri) 428 : 1976 Supp SCR 552] is more assertive than explanatory, and ipse dixit, even if judicial, do not validate themselves. We are inclined to agree with the opinion expressed in the Lahore and Allahabad cases. [Biram Sardar v. Emperor, AIR 1941 Bom 146 - [AIR 1939 PC 47 : 1939 IA 66 : 40 Cri LJ 364] A thing is specific if it is explicit. It need not be express. The antithesis is between specific and indefinite or omnibus and between implied and express . What is precise, exact, definite and explicit, is specific. Sometimes, what is specific may also be special but yet they are distinct in semantics. F ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ocedure, 1973. 21. It is in this primary sense that the expression specific provision is used in Section 4(1) of the Code of Civil Procedure because, as we have seen above, it carves out an exception to special, local, or other laws which deal with the same subject matter as the Code of Civil Procedure but get overridden by the Code of Civil Procedure. 22. Viewed in this perspective, we have to discover whether the various provisions of the Code of Civil Procedure referred to by Shri Viswanathan can be said to be specific provisions to the contrary for the purpose of Section 4(1) of the Code of Civil Procedure. 23. Section 117 is a general provision which applies the Code to the High Courts of this country. Similarly, Section 120 is another general provision which states that Sections 16, 17 and 20 of the Code do not apply to the High Courts in exercise of their original civil jurisdiction. Sections 122, 125 and 129 equally are general provisions and not specific to the case at hand, namely, what is to happen if two Judges hearing an appeal differ with each other. This leaves Section 98, which will be dealt with a little later in this judgment. 24. Shri Viswanathan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nded Section 100 of CPC. Thus so long there was no specific provision to the contrary in this Code, Section 4 of CPC saved special or local law. But after it comes in conflict, Section 4 of CPC would not save, on the contrary its language implied would make such special or local law inapplicable. We may examine now the submission for the respondent based on the language of Section 100(1) of CPC even after the said amendment. The reliance is on the following words : 100. (1) Save as otherwise expressly provided ... by any other law for the time being in force.... These words existed even prior to the amendment and are unaffected by the amendment. Thus so far it could legitimately be submitted that, reading this part of the section in isolation it saves the local law. But this has to be read with Section 97(1) of the Amendment Act, which reads : 97. (1) Any amendment made, or any provision inserted in the principal Act by a State Legislature or a High Court before the commencement of this Act shall, except insofar as such amendment or provision is consistent with the provisions of the principal Act as amended by this Act, stand repealed. (Noticed again for convenience.). ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bviously, 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 of India immediately before the commencement of the Constitution of India by virtue of Article 372(1) of the Constitution of India. This being the case, Article 254 of the Constitution of India would have no application to such a law for the simple reason that it is not a law made by the Legislature of a State but is an existing law continued by virtue of Article 372 of the Constitution of India. If at all, it is Article 372(1) alone that would apply to such law which is to continue in force until altered or repealed or amended by a competent Legislature or other competent authority. We have already found tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 104 provides : Section 104. 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 (ff) save on the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g 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 (1) 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 is not permitted. Section 104(2) would not thus bar a letters patent appeal. Effect must also be given to legislative intent of introducing Section 4 of 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 104 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 104 must be read as a whole and harmoniously. If the intention was to exclude what is specifically saved in sub-section (1), then there had to be a specific exclusion. A general exclusion of this nature would not be sufficient. We are not sayi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 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 100A reads as follows : 100A. 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 for the time being in force, where any appeal from an original or appellate decree or order is heard and decided by a Single Judge of a High Court, no further appeal shall lie from the judgment and decree of such Single Judge. To be noted that here again the Legislature has provided for a specific exclusion. It must be stated that now by virtue of Section 100A no letters patent appeal would be maintainable. However, it is an admitted position that the law which would prevail would be the law at the relevant time. At the relevant time neither Section 100A nor Section 104(2) barred a letters patent appeal. Applying the above principle to the fact ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... specific provision would be a provision like Section 100A. [at paras 29 - 32] 34. Based on the aforementioned extracts from the Constitution Bench s 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 if the 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 Court Act, but that it would be enough that on a reading of the said provision it would be clear that the particular special, local, or other law would not apply. 35. As has been stated by us above, for the exclusion to be specific, 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 s judgment in Sathappan s case, in particular 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 all 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. 37. Applying the aforesaid test, w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lause 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. 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 P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , or by any Division Court thereof, appointed or constituted for such purpose, in pursuance of section 108 of the Government of India Act, 1915; 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 if there 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 15 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 view of the judgments of the Privy Council in Bhaidas Shivdas v. Bai Gulab 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 of S. 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. It 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 pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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 of intra-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 Court 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 cases on the Original Side as well as appeals arising in the Original Jurisdiction, 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 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 on 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, if the special form of procedure prescribed in Clause 36 is saved from intra-High Court appeals, it must be held equally to be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as 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 Bom 1 (FB)] cannot, therefore, be regarded as good law after the decision of the Judicial Committee in 23 Bom LR 623 : (AIR 1921 PC 6) and it need not deter us from taking a different view. 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... perate 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 Bom LR 157 : (AIR 1919 Bom 1) (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 37 : (AIR 1920 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 1032. 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 Bom 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 re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. Shadilal, C.J., who presided over the Bench pointed out that if the 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. Sa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 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 Charter of other 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. 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 Court Act would not apply to appeals under the Code of Civil Procedure before the High Court, but would ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 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 1 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- -vis Section 98(2) of the Code ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er that the matter or question of law be referred to a Full Bench. Needless to say, it should be a question of law on which there is no binding precedent. 57. Under Section 23 of the Travancore-Cochin High Court Act, 1125, if the 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. 58. Under the Code of Criminal Procedure, 1973 (for short, the Cr.PC ), the position is slightly different. Section 392 reads as follows : 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- ..... X X X X Extracts X X X X X X X X Extracts X X X X
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