TaxTMI 
TaxTMI 
2016 (2) TMI 1063
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.... matter before 5 learned Judges of this Court. 2. The reference order by two learned Judges, after referring to Section 98 of the Code of Civil Procedure, 1908, reads as follows :- "6. The above view was followed by three Judge Bench Court in P.V. Hemalatha v. Kattamkandi Puthiya Maliackal Saheeda and Anr. AIR 2002 SC 2445. That was a case in which the High Court of Kerala had, relying upon Section 98 of CPC, confirmed the decree under appeal despite difference of opinion between the two Judges comprising the Bench on a question of fact. This Court held that while Section 23 of the Travancore-Cochin High Court Act is the general law, Section 98(2) is a special provision. Section 23 of the Travancore-Cochin High Court 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 Ju....
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.... a Bench of 5 Judges. 3. The matter may be placed before the Chief Justice for appropriate administrative order in this regard. S.L.P. (Civil) No. 34457 of 2010 Leave granted. 2. The issues involved in the present Appeal are identical to the issues that arise in Civil Appeal No. 201 of 2005. Civil Appeal No. 201 of 2005 has been referred to a Bench of 5 Judges. 3. For the self same reasons, this Civil Appeal is also referred to a Bench of 5 Judges to be heard along with Civil Appeal No. 201 of 2005. 4. The matter may be placed before the Chief Justice for appropriate administrative order in this regard." 4. In order to appreciate the controversy, which lies in a narrow compass, we need first to advert to the decision in P.V. Hemalatha v. Kattamkandi Puthiya Maliackal Saheeda & Another, (2002) 5 SCC 548. In that judgment this Court has held that the Travancore-Cochin High Court Act, Section 23 of which contains a provision which states that if two Judges forming a Division Bench of the High Court disagree, they shall refer their disagreements to the opinion of another Judge and the opinion of the majority will then prevail, was said to b....
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....ressed in the maxims generalia specialibus non derogant (general things do not derogate from special things) and specialia generalibus derogant (special things derogate from general things). These principles have also been applied in resolving a conflict between two different Acts and in the construction of statutory rules and statutory orders. (See Principles of Statutory Interpretation by Justice G.P. Singh, 7th Edn., 1999, pp. 113-14.) Assuming for the sake of argument that provisions of Section 23 of the Travancore-Cochin Act are saved by Section 9 of the Kerala Act and are applicable to the High Court of the new State of Kerala, in our considered opinion since provisions contained in Section 98 of the Code is a special law as compared to the general law contained in Section 23 of the Travancore-Cochin Act read with Section 9 of the Kerala Act, the "special law" will prevail over the general law and the provisions of Section 98 of the Code in all its terms will have to be applied to civil appeals arising from civil suits which are regulated by the Code. Undisputedly, the High Court of Kerala is not a Chartered High Court and was not a court in British India. It was a High....
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....das Shivdas v. Bai Gulab & Another, AIR 1921 PC 6, as followed and explained in various decisions including two Full Bench decisions in particular, Immidisetti Dhanaraju & Another v. Motilal Daga & Another, AIR 1929 MAD 641 and Shushila Kesarbhai & Ors. v. Bai Lilavati & Others, AIR 1975 Guj 39 (FB). According to Shri V. Giri, the Privy Council judgment as followed in the two Full Bench decisions referred to hereinabove again makes it clear that Section 4 of the Code of Civil Procedure when pitted against a High Court Charter like the Letters Patent, the said Charter being a special law would prevail over the Code of Civil Procedure unless there is a specific provision to the contrary in the Code of Civil Procedure itself. Section 98 was directly held not to be such specific provision to the contrary in the Privy Council judgment and therefore it is clear that Section 98(2) did not apply to Letters Patent Appeals, whether intra court or appeals that arose from subordinate courts and would have their origins in Section 96 of the Code of Civil Procedure. His further submission is that when the Legislature, by amendment in the year 1928, introduced Section 98(3) into the Code of Civil....
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....ssion is that, in any event, Section 98(2) is a special provision which deals with appeals under Section 96 of the Code of Civil Procedure, and since all appeals under the Kerala High Court Act, 1958 are appeals under Section 96 of the Code of Civil Procedure, Section 98 which is an adjunct to Section 96 would alone apply. For the purposes of this argument, he made a distinction between appeals which arise under Clause (15) of the Letters Patent, where appellate jurisdiction is conferred by the Letters Patent, as contrasted with Clause (16) of the Letters Patent, which referred only to appellate jurisdiction conferred by other laws including the Code of Civil Procedure. He further argued that viewed thus, Section 98 is undoubtedly a special provision and Section 23 of the Travancore-Cochin High Court Act would thus be a general provision in this regard. His fourth submission is that Articles 136 and 142 cannot be used to apply Section 23 of the Travancore-Cochin High Court Act, if it were otherwise clear that the said provision had been expressly excluded and Section 98(2) alone were to apply. 7. Having heard learned counsel for the parties, we need to first set out the rel....
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....ion of the majority (if any) of the Judges who have heard the appeal including those who first heard it. (3) Nothing in this section shall be deemed to alter or otherwise affect any provision of the letters patent of any High Court. S. 117. - Application of Code to High Courts. - Save as provided in this Part or in Part X or in rules, the provisions of this Code shall apply to such High Courts. Section 120. Provisions not applicable to High Court in original civil jurisdiction. - (1) The following provisions shall not apply to the High Court in the exercise of its original civil jurisdiction, namely, sections 16, 17and 20. Section 121. Effect of rules in First Schedule. - The rules in the First Schedule shall have effect as if enacted in the body of this Code until annulled or altered in accordance with the provisions of this Part. Section 122. Power of certain High Courts to make rules. - High Courts not being the Court of a Judicial Commissioner may, from time to time after previous publication, make rules regulating their own procedure and the procedure of the Civil Courts subject to their superintendence, and may by such rules annul, alter or add to all....
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....ction; (c) to hear and decide all appeals preferred against convictions or sentences and orders of acquittal passed by a single Judge of the High Court in the exercise of original jurisdiction : (iii) to transfer on its own motion civil or criminal cases from one court to another; (iv) to dispose of references made by the subordinate courts in non-appealable civil cases, and to revise on its own motion or otherwise, the proceedings of the civil courts in non-appealable cases; (v) to revise convictions or sentences or orders passed by subordinate criminal courts in cases called up by the High Court on its own motion and to pass orders on references made by subordinate criminal courts; (vi) to hear and determine applications under Section 491 of the Code of the Criminal Procedure, 1898; and (vii) to pass orders on all petitions and applications, civil or criminal not falling under any of the preceding clauses. Section 23. Reference by Chief Justice. - Where two Judges forming a Division Bench agree as to the decree,....
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....time being in force. Section 9. Repeal. - The provisions of the Travancore Cochin High Court Act, 1125 (5 of 1125) in so far as they relate to matters provided in this Act, shall stand repealed." 8. Before proceeding to resolve the controversy at hand, it first needs to be stated that Section 9 of the Kerala High Court Act, 1958, set out hereinabove, repeals the provisions of the Travancore-Cochin High Court Act, insofar as the said Act relates to matters provided in the Kerala High Court Act. Though Mr. Viswanathan sought to urge to the contrary, ultimately it was common ground between the parties that there is no provision corresponding to Section 23 of the Travancore-Cochin High Court Act in the Kerala High Court Act, 1958 and that therefore the said provision continues in force, not having been repealed by Section 9 of the Kerala High Court Act, 1958. 9. Shri Viswanathan's first submission requires us to set out Section 20(1) of the 1951 amendment to the Code of Civil Procedure. The said Section reads as follows :- "20. Repeals and Savings. - (1) If immediately before the date on which the said Code comes into force in any Part B State, there is ....
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....ictionary as "answering to in character and function; similar to." This meaning has been adopted in Winter v. Ministry of Transport [1972 NZLR 539] in which it has been observed as under : "We read 'corresponding' in Section 20A as including a new section dealing with the same subject-matter as the old one, in a manner or with a result not so far different from the old as to strain the accepted meaning of the word 'corresponding' as given in the Shorter Oxford English Dictionary - 'answering to in character and function; similar to'. The new (section) answers to the old one ... in character and function; it is similar in purpose, prescribes the same thing to be done, and is designed to produce the same result. We hold it to be a 'corresponding' section." (See Words & Phrases, 3rd Edn., Vol. 1) Our conclusion, therefore, is irresistible that the 'Authority', constituted under Section 15 and the appellate authority under Section 17 of the Payment of Wages Act, fall within the exception indicated in Section 28 of the Administrative Tribunals Act and this Act, namely, Payment of Wages Act, is positively covered by the connotation "corresponding law" used in that section. Conseque....
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....ancore-Cochin Act is to lay down the jurisdiction and powers of the High Court that was established in the said State. On the other hand, the subject matter of the Code of Civil Procedure is to lay down procedure in all civil matters, and no others. Also, the said Code would apply to all courts which deal with civil matters, subject to the exceptions contained therein, and not only the High Court. For this reason, it is difficult to say that the Code of Civil Procedure corresponds to the Travancore-Cochin High Court Act. Shri Viswanathan's first contention must therefore fail. 15. Shri Viswanathan also relied upon two High Court judgments to buttress his submission that the Travancore-Cochin High Court Act had been repealed by the introduction of the Code of Civil Procedure in 1951. He relied upon Jelejar Hormosji Gotla v. The State of Andhra Pradesh, AIR 1965 AP 288, in which the Andhra Pradesh High Court held that with the coming into force of Section 80 of the Code of Civil Procedure, the Hyderabad Suits against Government Act stood repealed. He also relied upon Gurbinder Singh and Others v. Lal Singh and Others, AIR 1959 P&H 123, whereby it was held that Section 49(2) o....
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....l or local law now in force, or any special jurisdiction or power conferred, or any special form of procedure prescribed, by any other law for the time being in force, or shall apply - (a) The Commissioners of Police in the towns of Calcutta, Madras and Bombay, or the police in the towns of Calcutta and Bombay; (b) Heads of villages in the State of Madras as it existed immediately before the 1st November, 1956; or (c) Village police-officers in the State of Bombay as it existed immediately before the 1st November, 1956 : Provided that the State Government may, if it thinks fit, by notification in the Official Gazette, extend any of the provisions of this Code, with any necessary modifications, to such excepted persons. In 1973, however, the new Code of Criminal Procedure repeated the same provision in Section 5 as under : "Section 5. Saving. - Nothing contained in this Code shall, in the absence of a specific provision to the contrary, affect any special or local law for the time being in force, or any special jurisdiction or power conferr....
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.... or to the relevant portion of it and also to the effect intended to be produced on it. Failing this, it could hardly be said to be 'express' .... But the word 'specific' denotes, to my mind, something less exacting than the word 'express'. It means, I think, a provision which 'specifies' that some 'special law' is to be 'affected' by that particular provision. A dictionary meaning of the verb 'to specify' as given in Murray's New English Dictionary, is 'to mention, speak of or name (something) definitely or explicitly; to set down or state categorically or particularly....' and a meaning of the adjective 'specific' in the same dictionary is 'precise ... definite, explicit ... exactly named or indicated, or capable of being so, precise, particular'. What I think the words 'specific provision' really mean therefore is that the particular provision of the Criminal Procedure Code must, in order to 'affect' the 'special ... law', clearly indicate, in itself and not merely by implication to be drawn from the statute generally, that the 'special law' in question is to be affected without necessarily referring to that 'special law' or the effect on it intended to be produced in express te....
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.... specific may also be special but yet they are distinct in semantics. From this angle, the Criminal Procedure Code is a general Code. The remission rules are special laws but Section 433A is a specific, explicit, definite provision dealing with a particular situation or narrow class of cases, as distinguished from the general run of cases covered by Section 432 CrPC. Section 433A picks out of a mass of imprisonment cases a specific class of life imprisonment cases and subjects it explicitly to a particularised treatment. It follows that Section 433A applies in preference to any special or local law because Section 5 expressly declares that specific provisions, if any, to the contrary will prevail over any special or local law. We have said enough to make the point that "specific" is specific enough and even though "special" to "specific" is near allied and "thin partition do their bounds divide" the two are different. Section 433A escapes the exclusion of Section 5. [at paras 35 - 38]. 20. Thus, "specific provision" must mean that the particular provision in the Code of Civil Procedure must clearly indicate in itself and not merely by implication that the special law in que....
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....tion 98, which will be dealt with a little later in this judgment. 24. Shri Viswanathan also relied upon a Division Bench's judgment of this Court in Kulwant Kaur and Others v. Gurdial Singh Mann (dead) by LRS and Others, (2001) 4 SCC 262, to submit that this decision is an authority for the proposition that there is no need to expressly refer to a local law when the legislative intent to repeal local laws inconsistent with the Code of Civil Procedure is otherwise clear. The judgment in Kulwant Kaur's case raised a question which arose on an application of Section 41 of the Punjab Courts Act, 1918. This Section was couched in language similar to Section 100 of the Code of Civil Procedure as it existed before the Code of Civil Procedure (Amendment) Act, 1976, which amended Section 100 to make it more restrictive so that a second appeal could only be filed if there was a substantial question of law involved in the matter. The question this Court posed before itself was whether Section 41 stood repealed by virtue of Section 97(1) of the Code of Civil Procedure (Amendment) Act, 1976, which reads as under :- "97. Repeal and savings. - (1) Any amendment made, or any pr....
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....he provisions of the principal Act as amended by this Act, stand repealed." (Noticed again for convenience.). Thus language of Section 97(1) of the Amendment Act clearly spells out that any local law which can be termed to be inconsistent perishes, but if it is not so, the local law would continue to occupy its field. Since Section 41 of the Punjab Act is expressly in conflict with the amending law, viz., Section 100 as amended, it would be deemed to have been repealed. Thus we have no hesitation to hold that the law declared by the Full Bench of the High Court in the case of Ganpat [AIR 1978 P&H 137 : 80 Punj LR 1 (FB)] cannot be sustained and is thus overruled." [at paras 27 - 29]. 25. We are afraid that this judgment does not state the law correctly on both propositions. First and foremost, when Section 97(1) of the Code of Civil Procedure (Amendment) Act, 1976 speaks of any amendment made or any provision inserted in the principal Act by virtue of a State Legislature or a High Court, the said Section refers only to amendments made and/or provisions inserted in the Code of Civil Procedure itself and not elsewhere. This is clear from the expression "principal Act" o....
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....orce until altered or 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 Procedure (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 from 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 of limitation prescribed for any suit, appeal or application by any special or local 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....
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....n force, from no other orders :- *   *   *   *   *   *   *   * Provided that no appeal shall lie against any order specified in clause (ff) 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 104(1), could be said to be governed by Section 104(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 104(1) of CPC specifically saved letters patent appeals and the bar under Section 104(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 Paten....
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....eniably 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 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 104(2) that a letters patent appeal is also prohibited. It is for this reason that Section 4 of the Civil Procedure Code provides as follows : "4. Savings. - (1) In the absence of any 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 l....
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....usion. 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 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 104 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 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 a....
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.... 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 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 judgments to us on the applications of the general versus special principle. In particular he relied strongly on Life Insurance Corporation of India v. D.J. Bahadur and Others, (1981) 1 SCC 315. The question that arose before this Court in that case wa....
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....f 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, we have no doubt that the principal subject matter contained in the present case is appeals before the High Court of Kerala. The particular perspective that we are concerned with is what is to happen, in such appeals, if there 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 pertains to appeals in the High Court 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 Procedu....
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....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 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 pr....
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....ave 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 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, J. 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." Thi....
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....eld :- "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 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. I 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 he....
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.... 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 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 ap....
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....ourt 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 saved for appeals from subordinate Courts and Clause 36 must accordingly be held to apply in relation to them and not Section 98." The Full Bench of Gujarat [High Court] 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 Bom 1 (FB)] was exposed by the Judicial Committee of the Privy Council in a decision given only two years later in Bhaidas Shivdas v. Bai Gulab, 23 Bom LR 623 : 48 Ind App 181 : (AIR 1921 PC 6). That was, of course, a case of an intra-High Court appea....
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....sion 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 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. If there is any area in which Section 98 and Clause 36 operate simultaneously. Clause 36 must prevail and Section 98 must give way. Now we need not repeat that Clause 36 embraces exercise of appellate jurisdiction in both categories of 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 ....
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....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 reasons which we have already discussed. We need not repeat those reasons. The Madras High Court was again called 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 Bom LB 623 : (AIR 1921 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....
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....gh 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 Bibi v. 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 18 of 1928, 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 the Division Bench are governed by Clause 26, Letters Pat....
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....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 apply 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, or otherwise by applying Section 23 of the Travancore-Cochin High Court Act to all of them. In fact, in Civil Appeal No. 8576 of 2014 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 m....
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.... 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-à-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 1, it is not necessary to answer Question 2. The reference is disposed of accordingly. 53. [Judgment per : Kurian J.]. - I wholly agree with the excellent exposition of law by my esteemed brother Rohinton Fali Nariman, J. I have nothing to add on the reference part. However, for appropriate guidance at the quarters concerned, I feel a few observations would be contextually relevant. 54. Legislature has thought it fit to allocate certain matters to be heard by a Single Judge and a few by a Bench....
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....on 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-heard and decided by a larger Bench of Judges." 59. 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). 60. Under the Travancore-Cochin High Court 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 di....