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

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

45Copy pinpoint45. In the Full Bench decision in the same case, Ramesam,J., agreed with the view of Phillips, J., and held:- "The result is that it is now beyond all doubt that Cl. 36 of the Letters Patent applies to all appeals. lt may be asked, when does H

PANKAJAKSHI (DEAD) THROUGH LRS. & OTHERS v. 1061 CHANDRIKA & OTHERS [R. F. NARIMAN, J.)

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 c that S. 98 does not apply to Chartered High Courts at all. [would answer the question referred to us thus: "The procedure adopted by the High Court should be governed by Cl. 36 of the Letters Patent." While so holding, the Full Bench of the Madras High Court held that Section 98(3) was declaratory of the law as it always stood. It was held: "It is true that the Amending Act is intended to be declaratory, that is, not only is its object to make the law clear from its date but also to make the Act retrospective; that is, there is no change in the law. The law both before the amendment and after the amendment is the same. To this extent I agree with the argument of the learned Advocate, that the amendment is declaratory. But to assume from this that the Amending Act did not intend to alter the law, as expounded by the decisions up to that date, does not follow: In the first place, it is not correct to say that there is a well-understood rule oflaw prior to the amendment, in the manner stated by the learned Advocate for the respondents. The decision in Lach111a111 Singh v. Ram Lagan Singh and Veeraraghava Reddi v. Subba Reddi indicate the contrary. In my opinion, the object of the amendment is to make it now perfectly clear that for any purpose Cl. 36 of the Letters Patent should never be controlled by the Civil Procedure Code. This was the view of Lord Buckmaster in Bhaidas Shivdas v. Bai Guiab and the cases approvecttherein. The Amending Act is really the response of the legislature to the invitation of Page, J ." H

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46Copy pinpoint46. In an instructive Full Bench judgment reported in Shushila Kesarbhai & Ors. v. Bai Lilavati & Ors., AIR 1975 Guj. 39 (FB), the Full Bench of the Gujarat High Court had to consider whether a decision given by the Full Bench of the Bombay High Court in Bhuta v. Lakadu Dhansing reported in AIR 1919 Bom 1 (FB), laid down the correct law. After an exhaustive discussion discussing the entire history B of the CPC Acts starting from 1859 right up to 1908 the Gujarat High Court held: "It would thus be seen that under the Code of 1882 the High Courts of Bombay. Calcutta, Madras and Allahabad were all agreed that Section 575 superseded Clause 36 and since appeals c 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 D Clause 36. There was difference of opinion amongst the High Courts only in regard to the procedure applicable in case ofintra- High Court appeals under the Letters Patent. The Calcutta High Court took the view that even in case of intra-High Court appeals, Section 575 applied and Clause 36 was excluded while the Madras and Allahabad High Courts held that the procedure in case of E intra-High Cou11 appeals was governed by Clause 36 and not by Section 575." After setting out Sections 98 and 117 of the Code of Civil Procedure the Full Bench further went on to say:

F "'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 u 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 H

• PANKAJAKSHI (DEAD) THROUGH LRS. & OTHERS v. 1063 CHANDRIKA & OTHERS [R. F. NARIMAN, J.]

appeals and, therefore, the procedure for resolving difference of opinion, set out in Clause 36 is applicable not only in case of intra- High Court appeals but also in case of appeals from subordinate Courts. This procedure is different from that set out in Section 98 · and it is clearly, qua Section 98, a special form of procedure prescribed by Ciause 36. Now there is no specific provision to the contrary in Section 98 or any other provision of the Code and nothing in Section 98 is, therefore, to be deemed to limit or otherwise affect the special form of procedure prescribed by Clause 36 and consequently notwithstanding Section 98, Clause 36 must operate in its fullness~and apply to apQeals fj'om subordinate Courts. Section 4, subsection ( 1) saves the special c form of procedure prescribed in Clause 36 and provides that it shall prevail despite conflict with Section 98. It js therefore, clear asa matter of plain grammatical construction that under the present Code the procedure in case of difference of opinion in appeals from subordinate Courts is governed by Clause 36 and not by S. D -r ... 98. This would appear to be the undoubted position in principle but let us see what the decided cases say. The first decision to which we must refer in this connection is the decision of the Full Bench of the Bombay High Court in 21 Born LR 157 JAIR 1919 Born I a (FB)) (supra) but before we do so, we may make briefreference E to an earlier decision of the Bombay High Court in Suraj v. Mal Horniman, 20 Born LR 185 : (AIR 1917 Born 62 (SB)). That was a case of an intra-High Court ·appeal under Clause 15 and the question arose whether on difference of opinion amongst the Judges, Section 98 applied or Clause%. The Division Bench E observed that Clause 36 prescribed a special form of procedure in certain cases where the Judges of a Division Bench differed and this special form of procedure was saved by Section 4, sub- section ( 1) and the applicability of Section 98 excluded in cases to which this special form of procedure applied. It was held that Section 129 made it abundantly clear that the intention of the G Legislature was that in trial of oases on the Original Side as well. as appeals arising in the Original J urisdictjon, nothing should be done which is inconsistent with the Letters Patent and, therefore, the special form of procedure prescribed in Clause 36 applied in case of intra-High Court appeals arising from the Original Side· H

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A and Section 98 had no application in case of such appeals. This decision was no doubt given in the context of intra-High Court appeals but the principle 011 which it was based must apply equally in relation to appeals from subordinate Courts. Clause 36, as we have already pointed out, embraces appeals from subordinate Courts as well as intra-High Court appeals and, therefore, ifthe B special form of procedure prescribed in Clause 36 is saved from intra-High Court appeals, it must be held equally to be saved for appeals from subordinate Cou1ts and Clause 36 must accordingly be held to apply in relation to them and not Section 98." The Full Bench of Gujarat then went on to state that the Full c Bench of the Bombay High Court stood overruled by referring to Bhaidas' case in the following terms:- "This fallacy underlying the decision of the Full Bench in 21 Bom LR 157: (AIR 1919 130111 1 (FB)) was exposed by the Judicial Committee of the Privy Council in a decision given only two years later in Bhaidas Shin/as r. Bai Guiab, 23 Bom LR 623 : 48 Ind App 181 : (AIR 1921 PC 6). That was, of course, a case of an intra-High Court appeal under Clause 15 and while dealing with the question as to what is the procedure to be followed in case of difference of opinion in such an appeal, Lord Buckmaster, after referring to Section 4, sub-section ( l) of the Code of 1908. observed: - 'There is no specific provision in Section 98, and there is a special form of procedure which was already prescribed. That form of procedure Section 98 does not, in their Lordships' opinion, affect. The consequence is that the appellant is right in saying that in this instance a wrong course was taken when this case was referred to other Judges for decision, and he is technically entitled to a decree in accordance with the judgment of the Chief Justice. This view of the section is not novel, for it has been suppo1ted by judgments in Madras, in Allahabad, and in Calcutta: see Roop G Lal v. Lakshmi Doss, ( 1906) lLR 29 Mad 1: Lachma/1 Singh v. Ram Lagan Singh, ( 1904) !LR 26 All l 0 and Nundeepat Mahta v. Urquhart, ( 1870) 4 Beng LR 181.'' These observations were undoubtedly made in the context of intra-High, Cou1t appeals but the reasoning behind these observations is equally applicable in cast: of appl'als frvm subordinate Courts because both 1-1

PANKAJAKSHI (DEAD) THROUGH LRS. & OTHERS v. 1065 CHANDRIKA & OTHERS [R. F. NARIMAN, J.]

categories of appeals are embraced by Clause 36. This decision of the Privy Council must, therefore, be held to have overruled 21 Born LR 157 : (AIR 1919 Bom I (FB)) by necessary implication. Moreover, the Judicial Committee pointed out that the view taken by them in regard to the inter-action of Section 98 and Clause 36 was not novel for it was supported inter alia by the judgment of the Calcutta High Court in 1870 Beng LR 181 (supra). The case of 1870 Beng LR 181 as we have pointed out above, related to an appeal from a subordinate Court and it was held by the Calcutta High Court in that case that the procedure in case of difference of opinion in such an appeal was governed by Clause 36. This decision of the Calcutta High Court was approved by the Judicial c Committee and it must, therefore, be held that according to the Judicial Committee it is Clause 36 and not Section 98 which applies in case of an appeal from a subordinate Court. The decision in 21 Bom LR 157 : (AIR 1919 Born 1) (FB) cannot, therefore, be regarded as good law after the decision of the Judicial Committee D in 23 Born 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 . E judicial decisions. The very Statement of Objects and Reasons of the Repealing and Amending Act of 1928 said that the object of introduction of sub-section (3) in Section 98 is to enact more clearly a provision which was previously implied in Section 4 of the Code. Thus, the Full Bench of the Gujarat High Court held:- F "This sub-section makes it clear beyond doubt that nothing in Section 98 shall be deemed to alter or otherwise affect Clause

36. Clause 36 is not to be controlled by Section 98. Ifthere is any area in which Section 98 and Clause 36 operate simultaneously. Clause 36 must prevail and Section 98 inust give way. Now we < G need not repeat that Clause 36 embraces _exercise of appellate jurisdiction in both c'ategories pf appeals, namely, appeals from subordinate Courts as well as intra-High Court appeals under Clause 15. It is, therefore, obvious that, at any rate, since the introduction of sub-section (3 ), the procedure in case of difference of opinion iri appeals from subordinate Courts must be held to be H

1066 SUPREME COURT REPORTS [2016] 3 S.C.R.

A governed by Clause 36 and not by Section 98. In fact as we have pointed out above, that was always the law under the Code of 1908 even before the amendment by reason of Section 4, sub- section (I). Sub-section (3) of Section 98 merely clarified the existing legal position by removing a doubt which was cast upon it by some judicial decisions. That is made clear by the Statement B of Objects and Reasons of the Repealing and Amending Act 18 of 1928 where it is stated that the object of introduction of sub- section (3) in Section 98 is to enact; more clearly the provision which was previously impli~d in Section 4 of the Code. The respondents relied· on the decision of the Allahabad High Court c in Muhammad Ishaq Khan v. Muhammad Rustcim Ali Khan, ILR 40 All 292 : (AIR 1918 All 412) and urged that it is a recognised rule that where there have been decided cases before an Act is amended, ifthe amendment does not expressly show that the law as interpreted by the decisions is altered, the rule laid down by the decisions must be adhered to. We accept this principle but we do D not see how it has any application here. The law prior to the amendment was never different. The amendment did not seek to alter the law: it merely clarified what was always the law under the Code of 1908 and what that law was on a proper interpretation of Section 4, sub~section (I) has already been discussed by us. E But even ifthe view be taken that prior-to the amendment, the law was that appeals from subordinate Courts were governed by Section 98 despite the existence of Section 4, sub-section ( 1). sub-section (3) introduced in Section 98 made it very clear that Clause 36 must operate in its fulness and its applicability to appeals from subordinate Courts should not be excluded by Section 98 F and to that extent the preexisting law must be held to have been altered. The decision in 21 Born LR 157: (AIR 1919 Born I) (FB) (supra) cannot, therefore, in any view of the matter, stand after the introduction of sub-section (3) in Section 98. We may now turn to the decisions of the other High Courts. The G Madras High Court in a Division Bench judgment in Veeraraghava Reddy v. Subba Reddy, ILR 43 Mad 3 7 : (AIR l 92G Mad 391) (SB) held that even in case of appeals from .subordinate Courts. Clause 36 applies and not Section 98 but this· . judgment is not of much help because it does not contain any H discussion of the question on principle. This question again came

PANKAJAKSHI (DEAD) THROUGH LRS. & OTHERS v. 1067 CHANDRIKA & OTHERS [R. F. NARIMAN, J.]

up for consideration before a Division Bench of the Madras High A Court in Venkatasubbiah v. Venkatasubbamma, AIR 1925 Mad I 032. The Division Bench held that the previous practice of the Court was to apply Section 98 to appeals from subordinate Courts and .the decision in 23 Born LR 623 : (AIR 1921 PC 6) was not intended to override the rule of law enshrined in this practice. ·B This decision is plainly incorrect for reasons which we have already discussed. We need not repeat those reasons. The Madras High Court was again call·ed upon to consider this question in Dhanaraju v. Motilal, AIR 1929 Mad 641 (FB) which was a Full Bench decision. The Full Bench relied.on 23 Born LB 623 : (AIR I 92 I PC 6) (supra) and also emphasized Section 98. sub- c 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. D The view taken by the Calcutta High Court on this point varied from time to time, though there was no specific decision on the point in Suresh Chandra v. Shiti Kania, AIR 1924 Cal 855 (SB), Page J., observed in that case that Clause 36 applies to all appeals, whether intra-High Court or from subordinate Courts. Two different views were expressed in the subsequent case E of Becharam v. Purna Chandra; AIR I 925 Cal 845 (FB). There Walmsley, J., took the view that Clause 36 applies· not only to intra-High Co~rt appeals but, also' to appeals from subordinate Courts while Suhrawardy J., observed that so far as appeals from subordinate Courts are concerned, they are governed by Section F

98. The next decision which followed was that in Prafulla Kamini v. Bhabani Nath, AIR 1926 Cal 121. In this case Page, J., who was a party 'to the judgment in AIR I 924 Cal 855 (supra) changed his opinion and held that 23 Bom LR 623: (AIR 1921 PC 6) was confined to appeals under the Letters Patent and did not apply to appeals from subordinate Courts and Walmsley, J., G also allowed himself to be persuaded to take the same view as· Page, J. Page, J., observed in the opening paragraph of his judgment that this controversy can be satisfactorily set at rest "only by the action of the Legislature now long overdue" and invited the legislature to solve the doubts and differences by an H

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A express enactment. There were in fact no doubts and differences. The effect ofSection 4, sub-section ( 1) was clear and indubitable and in our opinion, it saved the full content and operation of Clause 36 notwithstanding Section 98. But even so the Legislature in response to the invitation.of Page J., and with a view to leave no scope for doubts or debate, introduced sub-section (3) in Section 98 by the Repealing and Amendment Act 18 of 1928. Since then the Calcutta High Court has taken the view that the procedure in case of difference of opinion in appeals from subordinate Courts also is governed by Clause 36. So far as the Lahore High Court is concerned, a Division Bench c of that Court held In AIR 1926 Lah 65 (supra) that appeals .under the Code were governed by Section 98 and those under the Letters Patent by Clause 36. Shadila), C.J., who presided over the Bench pointed out that ifthe matter were res integra, he would have held that Clause 26 of the Letters Patent of the Lahore High Court D 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. E The personal opinion entertained by the learned Chief Justice was plainly correct. This question again came up for consideration before a Full Bench of the Lahore High Court in Mt. Sardar Bibiv. Haq Nawaz Khan, AIR 1934 Lah 371. The Full Bench held relying on AIR 1929 Mad 641 (FB) (supra) and Debi F Prasad v. Gaudham Rai, AIR 1933 Pat 67 that ;'It is now well- settled that with the addition of sub-section (3), Section 98 of the CPC, made by the Repealing and Amending Act, 18of1928, that Section has no application to cases heard by a Division Bench of a Chartered High Court, whether in appeals from decrees of subordinate Courts or from decrees passed by a Judge of the G High Court on the original side, and that all cases of difference of opinion among.'the Judges composing 1he Division Bench are governed by Clause 26, Letters Patent". This decision completely supports the view w·e are taking. We have no decision of the Patna High Court prior to the introduction of sub-section (3) in Section, 98 - at any rate none

PANKAJAKSHI (DEAD) THROUGH I.RS. & OTHERS v. 1069 CHANDRIKA & OTHERS [R. F. NARIMAN. J ]

was cited before us. The first case where the question of competing claims between Section 98 and Clause 28 of the Letters Patent of the Patna High Court in relation to appeals from subordinate Courts came to be considered by the Patna High Court was that in AIR 1933 Pat 67 (supra). The Division Bench held in that case that the introduction of subsection (3) in Section 98 had resolved the controversy and it was clear that Clause 28 applied to all appeals, irrespective whether they were intra-High Court appeals or appeals from subordinate Courts. The same view was reiterated by the Patna High Court in Rajnarain v. Saligram. ( 1948) !LR 27 Pat 332 and Bokaro and Bangur Ltd. v. State of Bihar, AIR 1966 Pat 154. c It would, therefore, be seen that there is now a consensus amongst most of the High Coutis in the count1y that the procedure in case of difference of opinion in appeals from subordinate Courts is governed by the appropriate clause of the Letters Patent and not !2y Section 98 and the view we are taking is in accord with the decisions of the other High Cou1is ...

47Copy pinpoint47. The Gujarat High Court's Full Bench decision. with which we respectfully concur, is important on several counts. Not only does it correctly explain what is meant by a "specific provision to the contrary" in Section 4 of the Code of Civil Procedure, but it also goes on to state thatwhat was achieved by Section 98(3) of the Code of Civil Procedure was already previously implied in Section 4 of the Code of Civil Procedure inasmuch as Section 98 being a general provision could not possibly be said to be a "specific provision" which would take away the effect of the Letters Patent in that case. The self same reasoning would apply to the question of law presented before us. If the Letters Patent, being the F Charter of the High Courts in British India. was a special law governing the High Courts untouched by any specific provision to the contrary in the Code of Civil Procedure, so would the High Court Acts, being the Charterofother High Courts, similarly remain as special laws untouched by any specific provision in the Code of Civil Procedure for the self- G 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. H

1070 SUPREME COURT REPORTS [2016] 3 S.C.R.

48Copy pinpoint48. At this juncture, we may also point out that if we were to accept Shri Viswanathan 's argument, several anomalous situations would arise. First and foremost, Section 23 of the Travancore-Cochin High CqurtAct would not applyto appeals under the Code of Civil Procedure before the High Court, but woullapply to criminal and other appeals, making appeals before the same High Court apply a different procedure, B depending upon their subject matter. As against this, having accepted Shri V. Giri's argument, a uniform rule applies down the board to all appeals before the High Court, whether they be civil, criminal, orotherwise by applying Section 23 of the Travancore-Cochin High Court Act to all of them. In fact, in Civil Appeal No. 8576 of2014 which on facts arises c out of the Malabar region of Kerala, Clause 36 of the Letters Patent of the Madras High Court would directly apply. As we have seen, Clause 36 of the Letters Patent is pari materia to Section 23 of the Travancore Cochin High Court Act. This being so, even for regions that were governed by a different law - namely, the Letters Patent of the Madras High Court - a uniform rule is to be applied to the entire Kerala High D Court. It may be mentioned here in passing that the Letters Patent of the Madras High Court which applied to the Malabar region in the State ofKerala has been continued by virtue of Article 255 of the Constitution oflndia read with Sections 5, 49(2), 52 and 54 of the States Reorganisation Acf, 1956.

49Copy pinpoint49. At this juncture it is necessary to refer to the decision in Tej Kaur and another v. Kirpal Singh and another, ( 1995) 5 ·sec 119, which was referred to in the course of arguments by both Shri Giri and Shri Viswanathan. This judgment only decided that a difference between · two Judges of the Punjab and H~'ryana High Court ~ould have to be F decided in accordance with the provisions of Section 98(2) of the Code of Civil Procedure because Section 98(3) of the Code of Civil Procedure would not apply, as the Punjab High Court is not governed by the Letters Patent. What appears to have been missed by this decision is the fact that the Punjab and Haryana High Court continues to be governed by the Letters Patent governing the High Court set up at Lahore. The G · Lahore Letters Patent contains a provision similar to· clause 36 of the Letters Patent that governed Bombay and Calcutta by a pari materia provision contained in clause 26 of the Lahore Letters Patent. In accordance with our judgment, therefore, it is clear that this authority is no longer good law inasmuch as Section 98(3) of the Civil Procedure H

PANKAJAKSHI (DEAD) THROUGH LRS. & OTHERS v. 1071 CHANDRIKA & OTHERS

Code, 1908 would expressly save the said Letters Patent, and would thus make clause 26 applicable in place of Section 98(2) of the Code of Civil Procedure.'

50Copy pinpoint50. 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 .c 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.

51Copy pinpoint51. For. the aforesaid reasons we conclude that Hemalatha's case was wrongly decided and answer Question I referred to us by D stating that Section 23 of the Travancore-Cochin High Court Act remains unaffected by the repealing provision of Section 9 of the Kerala.High Court Act, and that, being in the nature of special provision vis-a-vis Section 98(2) of the Code of Civil Procedure, would apply to the Kerala High Court. E

52Copy pinpoint52. In view of the answer to Question I, it is not necessary to answer Question 2. The reference is disposed of accordingly. KURIAN, J. I. I wholly agree with the excellent exposition of law b)' my esteemed brother Rohinton Fali Nariman, J. l have nothing to add on the reference part. However, for appropriate guidance at the F ·c quarters concerned, I feel a few observations would be contextually relevant.

2. Legislature has thought it fit to allocate certain matters to be 1 In fact, even the PEP SU Ordinance which governed the princely states of Punjab and G which had set up a High Court for such states. also contained a provision similar to Clause 26 of the Letters Patent. Clause 56 of this PEPSU Ordinance stated as follows: Clause 56- Difference of opinion between two judges - In all appeals or other proceedings heard by two judges, if there is a difference of opinion between them, each judge shall record his separate opinion and the case shall be laid for hearing before a third judge and the decision of the Court shall be in accordance with the opinion of such third judge. H

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A heard by a Single Judge and a few by a Bench of not less than two Judges, in common parlance what is known as Single Bench and 65 · REPORTABLE Division Bench. A matter is stipulated to be heard by a Division Bench on account of the seriousness of the subject matter and for enabling two or more heads to work together on the same. Sitting in Division Bench is not as if two Single Judges sit. In Division Bench or in R a Bench of larger strength, there is a lot of discussion in-between, clarifications made, situations jointly analysed and positions in law getting evolved.

3. Under Section 98 of The Civil Procedure Code, 1908 (for short, 'the CPC'), when the Judges differ in opinion on a point of law, c the matter is required to be placed for opinion of the third Judge or more of other Judges as the Chief Justice of the High Court deems fit and the point of law on which a difference has arisen is decided by the majority and the appeal is decided accordingly. It is to be seen that under the proviso to Section 98 (2) of the CPC, hearing by a third Judge or more D Judges is only on the point of law on which the Division Bench could not concur. There is no hearing of the appeal by the third Judge or more Judges on any other aspect. Under Section 98 (2) of the CPC, in case an appeal is heard by a Division Bench of two or more Judges, and if there is no majority and if the proviso is not attracted, the opinion of that Judge or of the equally divided strength in the Bench which concurs in a E judgment following or reversing the decree appealed from, such decree shall stand confirmed.

4. Kerala High Court Act, 1958 has provided for the powers of a Bench of two Judges under Section 4. It is clarified thereunder that if the Judges in the Division Bench are of opinion that the decision involves F a question of law. the Division Bench may order that the matter or question oflaw be referred to a Full Bench. Needless to say, it should be a question of law on which there is no binding precedent.

5. Under Section 23 of the Travancore-Cochin High Court Act, 1125, ifthe Division Bench disagrees either on law or facts, the Chief G Justice is required to refer the matter or matters of disagreement for the opinion of another Judge and the case will be decided on the opinion of the majority hearing the case.

6. Under The Code of Criminal Procedure, 1973 (for short, 'the Cr.PC'), the position is slightly different. Section 392 reads as follows: H

PANKAJAKSHI (DEAD) THROUGH LRS. & OTHERS v 107\ CHANDRIKA & OTHERS [KURIAN, J.]

"392. Procedure when Judges of Court of Appeal are equally divided.-When an appeal under this Chapter is heard by a High Court before a Bench of Judges and they are divided in opinion, the appeal, with their opinions, shall be laid before another Judge of that Court, and that Judge, after such hearing as he thinks fit, shall deliver his opinion, and the judgment or order shall follow that opinion: Provided that if one of the Judges constituting the Bench, or, where the appeal is laid before another Judge under this section, that Judge, so requires, the appeal shall be re-heard and decided by a larger Bench of Judges."

7. The emerging position is that there is no uniformity or clarity with regard to the Judge strength in the event of difference of opinion, c and according to me, it has affected the purpose for which the matters are required to be heard by a strength of more than one Judge, be it a Division Bench or Full Bench (Larger Bench). 8:·· l.J11der the Travancore-Cochin High Cou11 Act, 1125, Section 23 enables the Chief Justice to refer for the opinion of another Judge, D the matter or matters on which the Division Bench has disagreed either on law or on facts and the appeal will be ultimately decided on the view ·taken by that Judge sitting and hearing the appeal alone.

1074 SUPREME COURT REPORTS [20 I 6) 3 S.C.R.

A otherwise, the opinion on the point of law is formed only by one Judge, the third Judge. This position is actually against the very principle of reference on difference. Reference is always made to a larger coram. Not only that, when two judicial minds sitting together could not concur, that difficulty is to be resolved, ideally, if not on common sense, not by a third one, but by a Bench of larger coram. B

11. In my humble view, ifthe purpose behind the requirement of a matter to be heard by a Bench of not less than two Judges is to be achieved, in the event of the two Judges being unable to agree either on facts or on law, the matters should be heard by a Bench oflarger strength. Then only the members of the Bench of such larger strength would be c able to exchange the views, discuss the law and together appreciate the various factual and legal positions. The 69 conspectus of the various provisions, in my view, calls for a comprehensive legislation for handling such situations of a Hench being equally divided in its opinion, either on law or on facts, while hearing a case which is otherwise required to be D heard by a Bench of not less than two Judges, both civil and criminal. It is for the High Court and the Legislature of the State concenied to take further steps in that regard.

Nidhi Jain Reference disposed of.