Section 98(2) CPC governs split civil appeals, limiting third-judge reference and discouraging Article 136 interference on pure factual findings.

Section 98(2) of the Code of Civil Procedure, 1908 was treated as the special rule governing civil appeals where a Division Bench is evenly divided and no referable point of law is stated. The commentary states that the Kerala High Court could not rely on the Madras Letters Patent or the Travancore-Cochin High Court Act to send the matter to a third Judge, because the procedure of the High Court and the powers of Judges were separately regulated and no saving provision displaced Section 98(2). It also notes that where readiness and willingness was a pure issue of fact sufficient to decide the appeals, interference under Article 136 was not warranted.

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Issues: (i) Whether the Kerala High Court could invoke the Madras Letters Patent or the Travancore-Cochin High Court Act to refer divergent opinions of a Division Bench to a third Judge despite Section 98(2) of the Code of Civil Procedure, 1908. (ii) Whether the Supreme Court should grant special leave where the appeals were decided on issues of fact that were sufficient by themselves to determine the result.

Issue (i): Whether the Kerala High Court could invoke the Madras Letters Patent or the Travancore-Cochin High Court Act to refer divergent opinions of a Division Bench to a third Judge despite Section 98(2) of the Code of Civil Procedure, 1908.

Analysis: The statutory scheme of the States Reorganisation Act, 1956 treats jurisdiction, practice and procedure, and the powers of Judges as separate subjects. The expression "jurisdiction" in Section 52 was held not to include the practice and procedure of the High Court or the powers of Judges, which are separately governed by Sections 54 and 57. Since the Kerala High Court is not a Chartered High Court and has no Letters Patent, the Madras Letters Patent could not govern its procedure. Even assuming Section 23 of the Travancore-Cochin High Court Act survived for some matters, Section 98 of the Code of Civil Procedure, 1908 was held to be the special law governing civil appeals and to prevail over the general procedural provisions. The Division Bench had delivered separate judgments without stating a point of law for reference, and no saving provision displaced Section 98(2).

Conclusion: The Kerala High Court was not entitled to refer the matter to a third Judge, and the decree of the subordinate court was liable to stand confirmed under Section 98(2) of the Code of Civil Procedure, 1908.

Issue (ii): Whether the Supreme Court should grant special leave where the appeals were decided on issues of fact that were sufficient by themselves to determine the result.

Analysis: The Court found that the question of readiness and willingness, being a pure issue of fact, was enough to decide the suits and appeals either in favour of or against the plaintiff. The other mixed questions did not affect the ultimate result because the factual finding of one Judge was sufficient to dispose of the matters. In these circumstances, interference under Article 136 was not warranted, particularly in view of the legislative policy reflected in Section 98(2) of the Code of Civil Procedure, 1908.

Conclusion: Special leave was not deservedly granted.

Final Conclusion: The impugned common judgment of the Division Bench was left undisturbed, and the special leave petitions failed.

Ratio Decidendi: In civil appeals heard by an evenly divided Bench, where no referable point of law is stated and no special saving provision applies, Section 98(2) of the Code of Civil Procedure, 1908 requires confirmation of the decree appealed from; a Division Bench's procedural split on factual issues does not by itself justify appellate interference under Article 136 of the Constitution of India.

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