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REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.201 of 2005

PANKAJAKSHI (DEAD) THROUGH  L.RS. & OTHERS …APPELLANTS   

           VERSUS

CHANDRIKA & OTHERS …RESPONDENTS

WITH

CIVIL APPEAL NO.8576 OF 2014

PULPARAMBIL VASUDEVAN …APPELLANT

VERSUS

NANGANADATH PULPARAMBIL  DEVADASAN AND OTHERS …RESPONDENTS

J U D G M E N T  

R.F. Nariman, J.

1. The present appeals arise out of two reference orders – one  

by a Division Bench of  this Court  dated 8.11.2010 to 3 learned  

Judges of this Court, and the second by a 3-Judge Bench of this  

Court dated 27.8.2014, placing the matter before 5 learned Judges  

of this Court.

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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  vs.  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 Judges hearing the case."

7.   Section 9 of the Kerala High Court Act by which the  Travancore-Cochin High Court Act was repealed to the  extent  of  its  repugnance  may  also  be  extracted.  It  reads:

    "9.  Repeal.--The  provisions  of  the  Travancore- Cochin High Court  Act,  1125 (5 of  1125),  insofar  as  they relate to matters provided in this Act, shall stand  repealed."

8.   In our opinion Section 23 of the Travancore-Cochin  Act is in the nature of a special provision while Section  

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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-à- vis Section 98(2) of CPC.

(2) Whether this Court can under Articles 136 and 142  of  the  Constitution  direct  in  any  appropriate  case  a  reference to a third judge to resolve the conflict arising  between  two  judges  of  the  High  Court  hearing  an  appeal, on a question of fact.”

3. The 3-Judge Bench in turn referred the matter to a 5-Judge  

Bench as follows:-

“In  the  reference  order,  the  2-Judge  Bench  has  doubted the correctness of the decision of this Court in  P.V.  Hemalatha  Vs.  Kattamkandi  Puthiya  Maliackal  Saheeda and Anr. Since the decision has been given  by a 3-Judge Bench in P.V. Hemalatha, we are of the  view that correctness of the decision in P.V. Hemalatha  has to be considered by a Bench of 5 Judges. 2. The matter is, accordingly, referred to a Bench of 5  Judges.  

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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 be general as against Section 98(2) of the  

Code of Civil Procedure which was said to be special.  It may be  

stated  that  Section  98(2)  in  dealing  with  appeals  to  a  superior  

court generally, has a reference to a third or more Judges in the  

event of disagreement between two Judges only on a point of law.  

If  the  disagreement  exists  on  a  point  of  fact,  the  lower  court  

judgment is to be confirmed.  Hemalatha’s case (supra) therefore  

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decided:

“Submission  made  on  comparing  Section  23  of  the  Travancore-Cochin Act 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  the  provisions  contained  in  Section  23  of  the  Travancore-Cochin Act which allows the reference by  differing  Judges  who  have  delivered  separate  judgments or opinions to a third Judge on issues both  on fact and law and the provisions contained in proviso  of  sub-section  (2)  of  Section  98  of  the  Code  which  permits  reference  to  one  or  more  Judges  only  on  the difference of opinion on the stated question of law.  When the Courts are confronted with such a situation,  the Courts' approach should be “to find out which of  the  two  apparently  conflicting  provisions  is  more  general and which is more specific and to construe the  more general one as to exclude the more specific”. The  principle  is  expressed  in  the  maxims generalia  specialibus  non  derogant (general  things  do  not  derogate  from  special  things)  and specialia  generalibus  derogant(special  things  derogate  from  

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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 Court established after formation of  the new State of Kerala in 1956 under the SR Act of  1956.  The  High  Court  of  Kerala,  therefore,  has  no  Letters  Patent.  The  Travancore-Cochin  Act  and  the  Kerala Act are not Letters Patent of the High Court and  therefore  they  cannot  be  held  to  have  been  saved  under the provisions of sub-section (3) of Section 98 of  the Code. It is interesting to note that provision similar  to Section 98(2) of the Code of Civil Procedure, 1908  and proviso thereunder has been on the statute-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]

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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 decision that  

qua the Letters Patent, the Code of Civil Procedure is general and  

the Letters Patent is special.  Furthermore, in this case also, since  

the Travancore-Cochin High Court Act, being the old Charter of the  

Kerala High Court, is similarly a special law qua the general law  

contained  in  the Code of  Civil  Procedure.   Shri  V.  Giri’s  entire  

argument is that therefore  Sathappan’s case  (supra) concludes  

the issue at hand and being inconsistent with the 3-Judge Bench  

in  Hemalatha’s case (supra),  the law declared in  Hemalatha’s  

case (supra) is no longer good law.  

5. Apart from the above, Shri V. Giri also based his arguments  

on a judgment of the Privy Council contained in Bhaidas Shivdas  

v.  Bai  Gulab  &  Another,  AIR  1921  PC  6,  as  followed  and  

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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 Procedure, it made the position  

amply clear that all High Courts were excluded from the ambit of  

Section  98.   Since,  in  1928,  only  High  Courts  established  by  

Letters Patent existed in British India, the Letters Patent alone was  

referred to  in  the said  provision.   However,  after  India  became  

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independent  and  other  High  Courts  were  either  set  up,  or  

assimilated  from  the  princely  States  into  the  constitutional  

framework of  India,  the same position would  necessarily  obtain  

inasmuch as the various High Court Acts setting 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.  

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Therefore,  according  to  learned  counsel,  Section  23  of  the  

Travancore-Cochin  High  Court  Act,  being  a  law  which  

corresponded to the Code of Civil Procedure, was repealed. This  

being so, there is no conflict between any provision of the Kerala  

High Court Act, 1958 and the Code of Civil Procedure and hence  

Section 98(2) would be the only provision governing the field.  He  

further  argued  that,  assuming  that,  he  were  to  fail  on  the  first  

argument, Section 98 read with Sections 117, 120, 122, 125 and  

129 of the Code of Civil Procedure are specific provisions to the  

contrary  for  the  purposes  of  Section  4(1)  of  the  Code  of  Civil  

Procedure  and  that  Section  98  would  therefore  prevail  over  

Section  23  of  the  Travancore-Cochin  High  Court  Act.   A third  

submission  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  

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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 relevant statutory provisions:

Code of Civil Procedure, 1908

“S. 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  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  

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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) Where there is no such majority which concurs in a  judgment  varying  or  reversing  the  decree  appealed  from, such decree shall be confirmed:

Provided  that  where  the  Bench  hearing  the  appeal  is composed of two or other even number of Judges  belonging to a court consisting of more Judges than  those constituting the Bench and Judges composing  the Bench differ in opinion on a point of law, they may  state the point of law upon which they differ and the  appeal shall then be heard upon that point only by one  or more of the other Judges, and such point shall be  decided according to the opinion of the majority(if any)  of  the Judges who have heard the appeal  including  those who first heard it.

(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.

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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 or any of the rules in the First Schedule.

Section 129 - Power of High Courts to make rules  as to their original civil procedure

Notwithstanding anything in this Code, any High Court  not being the Court of a Judicial Commissioner may  make  such  rules  not  inconsistent  with  the  Letters  Patent or order or other law establishing it to regulate  its  own procedure in  the exercise of  its  original  civil  jurisdiction  as  it  shall  think  fit,  and  nothing  herein  contained shall affect the validity of any such rules in  force at the commencement of this Code.”

Travancore-Cochin High Court Act, 1125

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  

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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  applications  or  appeals  or  other  proceedings  that  a  single Judge may refer under Section 20; (ii) (a)  to  hear  and  decide  all  appeals,  civil  and  criminal,  preferred  from  the  decrees,  orders,  convictions or sentences of the civil and criminal courts  where  the  same  are  allowed  by  law.   (b) to hear and decide all appeals preferred from such  orders  as  are  provided  in  Section  104  of  the  Civil  Procedure, 1903, of a single Judge of the High Court  passed in exercise of the original jurisdiction; (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;

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(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, 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 majority of the judges hearing the case.”

Kerala High Court Act, 1958.

Preamble-  

WHEREAS it is expedient to make provision regulating the  

business and the exercise of the powers of the High Court of the  

State of Kerala.

BE it enacted in the Ninth Year of the Republic of India as  

follows:--

Section 2 – Definition

In this Act, "High Court" means the High Court of the  State of Kerala.

Section 4 - Powers of a Bench of two Judges The  powers  of  the  High  Court  in  relation  to  the  following matters may be exercised by a Bench of two  

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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 appeal from any original judgment,  order or  decree passed by a single Judge. (7) All matters not expressly provided for in this Act  or in any other law for the 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.  

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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 in  force in that State any law corresponding to the said  Code, that law shall on that date stand repealed:

Provided that repeal shall not affect- (a) The previous operation of any law so repealed or  anything duly done or suffered thereunder, or (b) Any right, privilege, obligation or liability acquired,  accrued or incurred under any law so repealed, or (c) Any investigation, legal proceeding or remedy in  respect of any such right, privilege, obligation, liability,  penalty, forfeiture or punishment as aforesaid and any  such investigation, legal proceeding or remedy may be  instituted, continued or enforced, and any such penalty,  forfeiture or punishment may be imposed as if this Act  has not been passed.”

10. Travancore-Cochin was a princely state till  the year  1956.  

The Constitution of India as originally enacted referred to princely  

states as Part B states.  Apart from Travancore-Cochin, there were  

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7  other  princely  states  which  got  assimilated  into  India  by  the  

Constitution.  Prior to 1951, the Code of Civil 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 and observed as follows:-

“The word ‘corresponding’ is defined in Shorter Oxford  Dictionary as “answering to in character and function;  

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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  20-A  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.  Consequently,  the  jurisdiction  of  the  Authority  to  entertain  and  decide  claim cases  under  Section 15 of the Payment of Wages Act is not affected  by the establishment of the Administrative Tribunals.”  [at paras 37 and 38]

The  test  laid  down in  this  decision  for  a  law to  correspond  to  

another  is  whether  it  deals  essentially  with  the  same  subject  

matter as was dealt with by the old law.  

11. Similarly,  in  A.B.  Abdulkadir  &  Others  v.  The  State  of  

Kerala & another [1962] Suppl. 2 SCR 741, this Court dealt with  

Section 13(2) of the Finance Act which provided that on and from  

1.4.1950, any law corresponding to the Central Excise and Salt  

Act,  1944 will  stand repealed from that  date.   What  had to be  

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determined  is  whether  the  Cochin  Tobacco  Act  had  been  so  

repealed.

12. In arriving at the conclusion that the said Act had been so  

repealed, this Court held that the main object and purpose of both  

Acts  being the same, namely to provide for  control  on tobacco  

from the time it is grown till the time it reaches the ultimate seller,   

and the fact that both Acts levied an excise duty on tobacco, albeit  

in  completely  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  

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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 and  

other  matters  as  well.   The  main  object  and  purpose  of  the  

Travancore-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  

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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) of  a Pepsu Ordinance had been repealed by the  

introduction  of  the  Code  of  Civil  Procedure  by  the  1951  

Amendment Act.  

16. Neither of these decisions carries the matter any further.  In  

the Andhra Pradesh decision, the Hyderabad Act dealt only with  

civil  suits  against  the  Government  and  thus  dealt  with  civil  

procedure insofar as it  applied to such suits. In the Punjab and  

Haryana  case,  the  High  Court  itself  states  that  the  Pepsu  

Ordinance,  which  stood  repealed,  earlier  provided  for  the  civil  

procedure to be applied in all civil courts in Pepsu.  Both cases,  

therefore,  were  cases  in  which the repealed Act  dealt  with  the  

same  subject  matter  as  the  corresponding  law,  that  is  civil  

procedure.  

17. We now come to the main argument in this case, which is  

the  correct  construction  of  Section  4(1)  of  the  Code  of  Civil  

Procedure.   The  scheme  of  Section  4(1),  as  its  marginal  note  

provides, is to “save” any special or local law from the applicability  

of the Civil Procedure Code. The said Section therefore states that  

whenever there is a special, local, or other law which deals with  

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any matter specified in the Code, those laws will continue 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  herein  contained shall affect any special 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 –

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 (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 conferred, or any special form of  procedure prescribed, by any other law for the time being  in force.”

It  will  be  noticed  that  Section  1(2)  of  the  old  Code  

corresponds almost exactly to Section 4(1) of  the Code of  Civil  

Procedure. The change in phraseology in Section 5 clarifies that  

what was intended was that the specific provision to the contrary  

should  only  be contained in  the Code itself  and nowhere else.  

Taking note of  the legislative scheme contained in  the Code of  

Criminal Procedure, we have no doubt in construing Section 4(1)  

to say that the specific provision to the contrary must be contained  

in the Code of Civil Procedure itself and nowhere else.  

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19. The  next  inquiry  that  needs  to  be  made  is  what  is  the  

meaning of the expression “specific provision to the contrary”.  In  

Maru Ram v. Union of India and others, (1981) 1 SCC 107, a  

Constitution Bench dealt with the pari materia provision to Section  

4(1) of the Code of Civil Procedure contained in Section 5 of the  

Code of Criminal Procedure.  This Court relied upon the Lahore  

High Court and the Allahabad High Court to explain what is meant  

by “specific provision”. This Court held:-

“Section 1(2) of the Criminal Procedure Code, 1898, is  the previous incarnation of  Section 5 of  the Present  Code 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  produced on it. Failing this, it could hardly be said to be  ‘express’  ....  But  the  word  ‘specific’  denotes,  to  my  

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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 terms. Lord Hatherley in (1898) 3 AC 933 at  p. 938 [  Thomas Challoner     v.     Henry WF Bolikow  , (1878)    3 AC 933] has defined the word ‘specific’ in common  parlance  of  language  as  meaning  ‘distinct  from  general’…. It would, no doubt, be possible to multiply  illustrations of  analogous uses of  the words ‘specify’  and ‘specific’. But this is I think sufficient to show that,  while requiring something less than what is ‘express’,  they  nevertheless  require  something  which  is  plain,  certain  and  intelligible  and  not  merely  a  matter  of  inference or implication to be drawn from the statute  generally. That, to my mind, is what is meant by the  word ‘specific’ in Section 1(2) CPC....”

In  an English  case [  Re Net  Book Agreement,  1957,  (1962) 3 All ER 751 (RPC)] Buckley, J., has interpreted  the word ‘specific’ to mean explicit and definable. While  Indian usage of English words often loses the Atlantic  flavour and Indian Judges owe their  fidelity to Indian  meaning of foreign words and phrases, here East and  West meet, and “specific” is specific enough to avoid  being  vague  and  general.  Fowler  regards  this  word  related to the central notion of species as distinguished  from genus and says that  it  is  “often resorted to by  those who have no clear idea of their meaning but hold  it  to  diffuse an air  of  educated precision”.  [  Fowler's  

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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. From this  angle, the Criminal Procedure Code is a general Code.  The remission rules are special laws but Section 433-A  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 433-A 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 433-A  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  433-A 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  

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itself and not merely by implication that the special law in question  

is to be affected.  It is important to note that one of the meanings  

of the word “specific” is that it  is distinct from something that is  

general.  In  Maru  Ram’s case,  Section  433A of  the  Code  of  

Criminal  Procedure,  1973,  was  challenged  as  being  against  

various  provisions  of  the  Constitution.   That  challenge  was  

repelled by this Court.  Section 433-A begins with a non obstante  

clause specifically dealing with a particular situation, that is, where  

a  sentence  of  imprisonment  for   life  is  imposed   in  certain  

circumstances,  then  notwithstanding  the  commutation  power  

contained in Section 433, such person is not to be released from  

prison unless he has served at least 14 years of imprisonment. In  

applying Section 5 of  the Code of  Criminal  Procedure,  1973 to  

Section 433A, great emphasis was placed on the  non obstante  

clause contained in Section 433A, and it was ultimately held that  

Section 433A picks out of a mass of imprisonment cases a specific  

type of case – namely, life imprisonment cases and subjects such  

cases explicitly to a particularized treatment.  It was for this reason  

that  Section  433-A was  held  to  be  a  specific  provision  to  the  

contrary to the Prison Rules which were subsumed in the general  

provision  contained  in  Section  432  of  the  Code  of  Criminal  

Procedure, 1973.

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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 Section 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  also  relied  upon  a  Division  Bench  

judgment of this Court in  Kulwant Kaur and Others v. Gurdial  

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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 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.”

This Court concluded that Section 41 of the Punjab Courts  

Act  was  repealed  because  it  would  amount  to  an  amendment  

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made  or  provision  inserted  in  the  principal  Act  by  a  State  

Legislature.  This Court further held that, in any event, Section 41  

of the Punjab Courts Act being a law made by the Legislature of a  

State  is  repugnant  to  a  later  law made by Parliament,  namely,  

Section 97(1) of  the Code of  Civil  Procedure (Amendment) Act,  

1976, and that therefore, by virtue of the operation of Article 254 of  

the  Constitution  of  India,  the  said  provision  is  in  any  case  

overridden.  In arriving at the aforesaid two conclusions, this Court  

held:-

“Now  we  proceed  to  examine  Section  97(1)  of  the  Amendment  Act  and the amendment  of  Section 100  CPC by the said 1976 Act. Through this amendment,  right to second appeal stands further restricted only to  lie where, “the case involves a substantial question of  law.”  This  introduction  definitely  is  in  conflict  with  Section 41 of the Punjab Act which was in pari materia  with unamended Section 100 CPC. Thus so long there  was no specific provision to the contrary in this Code,  Section 4 CPC saved special or local law. But after it  comes in conflict, Section 4 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) 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  

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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.)

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”  occurring  in  

Section  97(1).   What  Section  97(1)  really  does is  to  state  that  

where a State Legislature makes an amendment in the Code of  

Civil Procedure, which amendment will apply only within the four  

corners of the State, being made under Entry 13 of List III of the 7 th  

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Schedule to the Constitution of India, such amendment shall stand  

repealed if it is inconsistent with the provisions of the principal Act  

as  amended  by  the  Parliamentary  enactment  contained  in  the  

1976 amendment to the Code of Civil Procedure.  This is further  

made clear by the reference in Section 97(1) to a High Court.  The  

expression “any provision inserted in the principal Act” by a High  

Court has reference to Section 122 of the Code of Civil Procedure  

by  which  High  Courts  may  make  rules  regulating  their  own  

procedure,  and  the  procedure  of  civil  courts  subject  to  their  

superintendence, and may by such rules annul, alter, or add to any  

of  the rules contained in the first  schedule to the Code of  Civil  

Procedure.  

26. Thus, Kulwant Kaur’s decision on the application of Section  

97(1) of the Code of Civil Procedure Amendment Act, is not correct  

in law.  

27. Even the reference to Article 254 of the Constitution was not  

correctly made by this Court in the said decision.  Section 41 of the  

Punjab Courts Act is of 1918 vintage.  Obviously, 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  

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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  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  

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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 v. Lalit Narain Mishra, (1974) 2 SCC  

133 at page Nos.146-147, (para 17),  Anwari Basavaraj Patil v.  

Siddaramaiah, (1993) 1 SCC 636, at page 639 (para 8),  Gopal  

Sardar v. Karuna Sardar, (2004) 4 SCC 252 at page 264 (para  

13),  which  construed  the  expression  “expressly  excluded”  as  

including  something  that  one  can  derive  from the  scheme and  

words used in a statute without necessarily referring to the subject  

matter at hand specifically.  

30. The three decisions cited by  him do  not  carry  the matter  

much further for the simple reason that the expression “express  

exclusion” is to be gleaned from the special or local law and not  

from the Limitation Act.  Section 29(2) of the Limitation Act thus  

differs from Section 4(1) of the Code of Civil Procedure in a very  

important respect, namely, that the specific or express exclusion  

must  be  contained  in  the  special  or  local  law,  so  far  as  the  

Limitation Act, 1963 is concerned, as opposed to Section 4(1) of  

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the Code of Civil Procedure, where we have to look for the specific  

exclusion  in  the  Code  of  Civil  Procedure  itself,  and  not  in  the  

special or local law. It is for this reason that the judgments cited by  

Shri Viswanathan embarked upon a survey of the scheme of the  

Representation  of  the  People  Act,  1951,  and  the  West  Bengal  

Land  Reforms  Act,  1955,  and  held  that  the  said  Acts  were  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  

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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 ground that no  order, or an order for the payment of a less amount,  ought to have been made.

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)  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  Patent can be taken away by an express provision in  an appropriate legislation. The express provision need  not refer to or use the words “letters patent” but if on a  reading  of  the  provision  it  is  clear  that  all  further  appeals are barred then even a letters patent appeal  would be barred.” [at para 22]

This Court then went on to hold:

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“Thus, the consensus of judicial opinion has been that  Section 104(1) of the Civil Procedure Code expressly  saves a letters patent appeal. At this stage it would be  appropriate to analyse Section 104 CPC. Sub-section  (1) of Section 104 CPC provides for an appeal from the  orders  enumerated  under  sub-section  (1)  which  contemplates an appeal from the orders enumerated  therein, as also appeals expressly provided in the body  of the Code or by any law for the time being in force.  Sub-section (1) therefore contemplates three types of  orders from which appeals are provided, namely, (1) orders enumerated in sub-section (1), (2) appeals otherwise expressly provided in the body  of the Code, and (3) appeals provided by any law for the time being in  force. It  is  not  disputed that  an appeal  provided under  the  Letters Patent of the High Court is an appeal provided  by a law for the time being in force.

As such if  an appeal  is  expressly  saved by Section  104(1),  sub-section  (2)  cannot  apply  to  such  an  appeal. Section 104 has to be read as a whole. Merely  reading sub-section (2) by ignoring the saving 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  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-

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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  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.” As  stated  hereinabove,  a  specific  exclusion  may  be  clear  from  the  words  of  a  statute  even  though  no  specific reference is made to Letters Patent. But where  there is an express saving in the statute/section itself,  then general words to the effect that “an appeal would  not lie” or “order will be final” are not sufficient. In such  cases i.e. where there is an express saving, there must  be an express exclusion.  Sub-section (2)  of  Section  104 does not provide for any express exclusion. In this  context reference may be made to Section 100-A. The  present  Section  100-A was  amended  in  2002.  The  earlier  Section  100-A,  introduced  in  1976,  reads  as  follows: “100-A. No  further  appeal  in  certain  cases.— Notwithstanding  anything  contained  in  any  Letters  Patent for any High Court or in any other instrument  having the force of law or in any other law for the time  being  in  force,  where  any  appeal  from an  appellate  decree  or  order  is  heard  and  decided  by  a  Single  Judge of a High Court, no further appeal shall lie from  the judgment, decision or order of such Single Judge in  

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such  appeal  or  from  any  decree  passed  in  such  appeal.” It is thus to be seen that when the legislature wanted to  exclude a letters patent  appeal it  specifically  did so.  The words used in Section 100-A are not by way of  abundant caution. By the Amendment Acts of 1976 and  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  100-A reads as follows: “100-A. 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 100-A 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  100-A  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  

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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  amendment  does  not  mean  that,  in the absence of an amendment or  a contrary  provision, the Letters Patent is to be ignored. To submit  that  a  Letters  Patent  is  a  subordinate  piece  of  legislation  is  to  not  understand  the  true  nature  of  a  Letters Patent.  As has been held in Vinita Khanolkar   case [(1998)  1  SCC  500]  and Sharda  Devi   case [(2002) 3 SCC 705] a Letters Patent is the charter  of  the  High  Court.  As  held  in Shah  Babulal  Khimji   case[(1981) 4 SCC 8] a Letters Patent is the specific  law under which a High Court derives its powers. It is  not any subordinate piece of legislation. As set out in  the aforementioned two cases a Letters Patent cannot  be excluded by implication. Further it is settled law that  between a special law and a general law the special  law will always prevail. A Letters Patent is a special law  for  the  High  Court  concerned.  The  Civil  Procedure  Code is a general law applicable to all courts. It is well- settled law, that in the event of a conflict  between a  special  law and a general  law, the special  law must  always prevail. We see no conflict between the Letters  Patent and Section 104 but if  there was any conflict  between  a  Letters  Patent  and  the  Civil  Procedure  Code then the provisions of the Letters Patent would  always prevail unless there was a specific exclusion.  This is also clear from Section 4 of the Civil Procedure  Code which  provides that  nothing  in  the  Code shall  limit or affect any special law. As set out in Section 4  CPC  only  a  specific  provision  to  the  contrary  can  exclude the special law. The specific provision would  be a provision like Section 100-A.” [at paras 29 – 32]

34. Based on the aforementioned extracts from the Constitution  

Bench 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  

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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  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.  

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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  was  whether  the  Life  Insurance  

Corporation  Act,  1956  is  a  special  statute  qua  the  Industrial  

Disputes Act, 1947 when it came to a dispute regarding conditions  

of service of the employees of the Life Insurance Corporation of  

India.  This Court ultimately held that the Industrial Disputes Act  

would prevail over the Life Insurance Corporation of India Act as  

the  Industrial  Disputes  Act  relates  specially  and  specifically  to  

industrial disputes between workmen and employers, whereas the  

LIC Act is a general statute which is silent on what happens to  

disputes between management and workmen.  The fact that the  

LIC Act must be considered to be a special legislation regulating  

the takeover of private insurance business not being relevant to  

the subject matter at hand would not make the said Act special in  

any sense.  The working test laid down by this Court to determine  

which  statute  is  general  and  which  special,  is  laid  down  in  

paragraph 52 of the said judgment thus:-

“In  determining  whether  a  statute  is  a  special  or  a  general  one,  the  focus  must  be  on  the  principal  subject-matter  plus  the  particular  perspective.  For  certain  purposes,  an  Act  may  be  general  and  for  

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certain  other  purposes  it  may  be  special  and  we  cannot blur distinctions when dealing with finer points  of  law.  In  law,  we  have  a  cosmos  of  relativity,  not  absolutes  — so  too  in  life.  The  ID  Act  is  a  special  statute devoted wholly to investigation and settlement  of  industrial  disputes which provides definitionally for  the  nature  of  industrial  disputes  coming  within  its  ambit. It creates an 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,  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  

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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 Procedure to all Courts and in civil proceedings only.

38. Viewed  from  another  perspective,  even  the  topics  for  

legislation contained in the 7th Schedule of the Constitution of India  

would  show  that  civil  procedure  is  dealt  with  differently  from  

jurisdiction and powers of courts. In this regard the relevant entries  

in the 7th Schedule make interesting reading:-

“1. List III entry 13

13.  Civil  procedure,  including  all  matters  included in  the Code of Civil Procedure at the commencement of  this Constitution, limitation and arbitration.  

2.  List I entry 95

95.  Jurisdiction and powers of  all  courts,  except  the  Supreme Court, with respect to any of the matters in  this List; admiralty jurisdiction.

3.  List II entry 65

65.  Jurisdiction and powers of  all  courts,  except  the  Supreme Court, with respect to any of the matters in  this List.

4. List III entry 46

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46.  Jurisdiction and powers of  all  courts,  except  the  Supreme Court, with respect to any of the matters in  this List.”

39. We now turn to the arguments based on Section 98(3) of the  

Code of Civil Procedure.  

40. As  has  been  stated  hereinabove,  Section  98(3)  was  

introduced in the year 1928 when all  the High Courts in British  

India were governed only by the Letters Patent establishing them.  

The reason for the introduction of the said Section goes back to  

the landmark judgment of the Privy Council in Bhaidas’ case and  

various other judgments following the said landmark judgment.  

41. In  Bhaidas’ case (supra), the Privy Council had to decide  

whether clause 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  

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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 provisions of Section 107 of the Government  of India Act, or in the exercise of criminal jurisdiction) of  one Judge of the said High Court or one Judge of any  Division  Court,  pursuant  to  Section  108  of  the  Government  of  India  Act,  and  that  notwithstanding  anything hereinbefore provided, an appeal shall lie to  the  said  High  Court  or  one  Judge  of  any  Division  Court, pursuant to Section 108 of the Government of  India Act, on or after the first day of February, 1929 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 where the Judge who passed  the judgment  declares that  the case is  a  fit  one for  appeal;  but  that  the  right  to  appeal  from  other  judgments of Judges of the said High Court or of such  

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Division Court shall be to Us, Our heirs or successors  in Our or Their Privy Council, as hereinafter provided.

Clause 16. Appeal from Courts in the Provinces:- And we do further ordain that the said High Court of   Judicature at Fort William in Bengal shall be a court of   Appeal from the Civil Courts of the Bengal Division of   the  Presidency  of  Fort  William,  and  from  all  other   Courts  subject  to  its  superintendence,  and  shall   exercise  appellate  jurisdiction  in  such  cases  as  are   subject to appeal to the said High Court by virtue of   any laws or regulation now in force.  

Clause 36. Single Judges and Division Courts:—  

And we do hereby declare that any function which is  hereby directed to be performed by the said High Court  of  Judicature at  (Madras),  (Bombay),  Fort  William in  Bengal  in  the  exercise  of  its  original  or  appellate  jurisdiction, may be performed by any Judge, 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  

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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.” This is a very general statement and is wide enough to  include the statement that  S.  98 does not  affect  the  procedure  laid  down  in  the  Letters  Patent.  That  procedure is  given in  Cl.  36 which applies  to  cases  arising  both  under  Cl.  15  and  Cl.  16.  It  would,  therefore, appear that this dictum would apply equally  to  Cls.  15  and  16  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 coming under the Letters Patent  and its procedure in other matters.”

In an 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 pronouncement of the Privy Council saying that S. 4  did not protect Cl. 36 equally with Cl. 15, which it was  definitely held to protect, it cannot be said that S. 98,  

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prior to the amendment, necessarily affected Cls. 16  and 36. The distinction drawn between the jurisdiction  of the High Court under Cl. 15 and Cl. 16 was based  on the Ianguage of 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 all 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. If that 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 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 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  

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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 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  of  law  prior  to  the  amendment,  in  the  manner  stated  by  the  learned  Advocate  for  the  respondents.  The decision  in Lachmam  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 Gulab and the cases approved therein.  The  Amending  Act  is  really  the  response  of  the  legislature to the invitation of Page, J.”

46. 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  

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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 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  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 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  

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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 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 Clause 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  appeals  from  subordinate  Courts.  Section  4,  subsection  (1)  saves  the  special  form  of  procedure  prescribed  in  Clause  36  and  provides  that  it  shall  prevail despite conflict with Section 98. It is therefore,  clear as a 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. 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 Bom LR 157 :  (AIR 1919  Bom 1 (FB))  (supra)  but  before  we do  so,  we may  make a brief  reference  to  an  earlier  decision of  the  Bombay High Court in Suraj Mal v. Horniman, 20 Bom  LR 185 : (AIR 1917 Bom 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 36.  The  Division  Bench  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  

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procedure applied. It was held that Section 129 made it  abundantly  clear that  the intention of  the Legislature  was that in trial of oases 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  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 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  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 (1) 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  

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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:  see Roop  Lal v. Lakshmi  Doss,  (1906)  ILR  29  Mad  1: Lachman Singh v. Ram Lagan Singh, (1904) ILR 26  All  10  and Nundeepat  Mahta v. Urquhart,  (1870)  4  Beng LR 181.” These observations were undoubtedly  made in the context of intra-High,  Court  appeals but  the  reasoning  behind  these  observations  is  equally  applicable in case of appeals from subordinate Courts  because both categories of appeals are embraced by  Clause  36.  This  decision  of  the  Privy  Council  must,  therefore, be held to have overruled 21 Bom LR 157 :  (AIR  1919  Bom  1  (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 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  

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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 case  of  difference  of  opinion  in  appeals  from subordinate  Courts must be held to be 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  (1). 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  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  implied  in  Section  4  of  the  Code.  The  respondents  relied  on  the  decision  of  the  Allahabad  High  Court  in Muhammad  Ishaq  Khan v. Muhammad  Rustam 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,  if  the  amendment does not expressly show that the law as  

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interpreted  by  the  decisions  is  altered,  the  rule  laid  down by the decisions must be adhered to. We accept  this  principle  but  we  do  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 (1) has  already been discussed by us. But even if the 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 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 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  

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(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 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 Kanta,  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  of Becharam v. Purna  Chandra,  AIR  1925  Cal  845  (FB). There Walmsley, J., took the view that Clause 36  applies not only to intra-High Court 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  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 1924 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., 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 express enactment. There were in fact no doubts  and differences.  The effect  of  Section 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  

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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. 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  Patent”.  This  decision completely  supports the view we 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  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  

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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)  ILR 27 Pat 332 and Bokaro and Bangur Ltd. v. State of   Bihar, AIR 1966 Pat 154. It  would,  therefore,  be  seen  that  there  is  now  a  consensus  amongst  most  of  the  High  Courts  in  the  country  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  by  Section  98  and  the  view we are  taking is in accord with the decisions of the other High  Courts.”

47. 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 that what 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 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  

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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 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 materia to Section 23  

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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 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  of  Kerala  has  been  

continued by virtue of Article 255 of the Constitution of India read  

with Sections 5, 49(2), 52 and 54 of the States Reorganisation Act,  

1956.

49. At this juncture it is necessary to refer to the decision in Tej  

Kaur and another v. Kirpal Singh and another, (1995) 5 SCC  

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 Haryana High  

Court would have to be 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  

Lahore Letters Patent contains a provision similar to clause 36 of  

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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 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. 1

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  

1 In fact, even the PEPSU Ordinance which governed the princely states of Punjab and 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.  

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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.  

……………………………J.  (Anil R. Dave)

……………………………J. (Kurian Joseph)

……………………………J. (Shiva Kirti Singh)

……………………………J. (Adarsh Kumar Goel)

……………………………J. (R.F. Nariman)

New Delhi; February 25, 2016.    

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IN THE SUPREME COURT OF INDIA CIVIL  APPELLATE  JURISDICTION

CIVIL APPEAL NO. 201 OF 2005

PANKAJAKSHI (DEAD) THROUGH L.RS. AND OTHERS     ...  APPELLANT (S)

VERSUS CHANDRIKA AND OTHERS     ... RESPONDENT (S)

WITH

CIVIL APPEAL NO. 8576 OF 2014

PULPARAMBIL VASUDEVAN ...  APPELLANT (S) VERSUS

NANGANADA TH PULPARAMBIL DEVADSAN AND OTHERS         ... RESPONDENT (S)

J U D G M E N T

KURIAN, J.:

1. 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.

2.  Legislature has thought it fit to allocate certain matters to be  

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  

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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 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, 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  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 judgment following  

or  reversing  the  decree  appealed  from,  such  decree  shall  stand  

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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 a question of law, the Division Bench may order 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.

5. 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.  

6. 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-heard and decided by a larger Bench  

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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, 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. 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 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.

9. Under Section 392 of the Cr.PC, the situation again is different.  

In case, the Division Bench is divided in their opinion, the appeal  

with the opinions should be laid before another Judge of that Court  

and the appeal will be decided clearly on the basis of the opinion  

rendered by that Judge hearing the matter sitting alone. However,  

the proviso under Section 392 of the Cr.PC enables any one of the  

Judges of the Division Bench or the third Judge to order the appeal to  

be heard by a larger Bench of Judges.

10. The  coram  is  not  dealt  with  in  the  CPC  or  the  Cr.PC.  It  is  

stipulated by the respective High Court Acts. When the High Court  

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Act  provides  for  an  appeal  to  be  heard  by  a  Division  Bench  in  

situations where Section 98 (2) without proviso operates, it virtually  

becomes a decision of the Single Judge since the differing view is  

only to be ignored.  When the Judges hearing the appeal differ in  

opinion on a point of law, under the proviso, the said point of law  

has to be heard by one or more of other Judges and the appeal be  

decided according to the opinions of the majority of the Judges who  

have  heard  the  appeal,  including  at  the  initial  stage.  In  such  

situations  also,  unless  the  Chief  Justice  decides  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.

11. In my humble view, if the 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 of  

larger strength. Then only the members of the Bench of such larger  

strength would be able to exchange the views, discuss the law and  

together  appreciate  the  various  factual  and  legal  positions.   The  

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conspectus  of  the  various  provisions,  in  my  view,  calls  for  a  

comprehensive legislation for handling such situations of a Bench  

being equally divided in its opinion, either on law or on facts, while  

hearing a case which is otherwise required to be 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  concerned to  take further  

steps in that regard.

……………………..J.              (KURIAN JOSEPH)

New Delhi; February 25, 2016.

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