Pankajakshi and Ors. Vs. Chandrika and Ors.

Judges: Anil R. Dave, Kurian Joseph, S.K. Singh, Adarsh Kumar Goel and Rohinton Fali Nariman, JJ.

Facts:

The present reference has been made to reconsider the decision of P.V. Hemalatha v. Kattamkandi Puthiya Maliackal Saheeda and Anr., MANU/SC/0501/2002. 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.

Issues:

(i) 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-a-vis Section 98(2) of Code of Civil Procedure?

Law:

Code of Civil Procedure, 1908 - Section 98 - 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.

Under Section 98(2) of the Code of Civil Procedure, 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 confirmed.

Under the proviso to Section 98(2) of the Code of Civil Procedure, 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.

Kerala High Court Act, 1958 - Section 4 - 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.

Travancore-Cochin High Court Act, 1125 - Section 23 - 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.

Contentions:

Appellant

(i) The Travancore-Cochin High Court Act had been repealed by the introduction of the Code of Civil Procedure in 1951.

(ii) 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.

(iii) A specific exclusion need not refer to the very provision that is sought to be excluded but it was enough if the subject matter at hand is referred to and that therefore it is not necessary for any provision in the Code of Civil Procedure to expressly refer to Section 23 of the Travancore-Cochin High Court Act, but that it would be enough that on a reading of the said provision it would be clear that the particular special, local, or other law would not apply.

Analysis:

(i) 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.

(ii) The scheme of Section 4(1) of Code of Civil Procedure, 1908, as its marginal note provides, is to "save" any special or local law from the applicability of the Code of Civil Procedure. The said Section therefore states that whenever there is a special, local, or other law which deals with 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. The specific provision to the contrary must be contained in the Code of Civil Procedure itself and nowhere else.

(iii) Further, "specific provision" must mean that the particular provision in the Code of Civil Procedure must clearly indicate in itself and not merely by implication that the special law in 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.

(iv) For the exclusion to be specific, one 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 cannot be done, as it would be in the teeth of the Constitution Bench judgment in P.S. Sathappan v. Andhra Bank Ltd. MANU/SC/0873/2004 wherein this Court has 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.

(v) The principal subject matter contained in the present case is appeals before the High Court of Kerala. The particular perspective that we are concerned with is what is to happen, in such appeals, if there is a difference of opinion between two Judges hearing such appeals in the High Court. Viewed from this perspective there can be no doubt that the subject matter pertains to appeals in the High Court alone and not other courts. Those appeals can deal with civil, criminal, and other matters. The particular perspective therefore demands the application of a uniform rule to all such appeals, which rule is provided by the special rule contained in Section 23 of the Travancore-Cochin High Court Act, which in turn displaces the general rule which applies Under Section 98(2) of the Code of Civil Procedure to all Courts and in civil proceedings only.

(vi) Thus, Section 23 of the Travancore-Cochin High Court Act remains unaffected by the repealing provision of Section 9 of the Kerala High Court Act, and that, being in the nature of special provision vis-a-vis Section 98(2) of the Code of Civil Procedure, would apply to the Kerala High Court.

Justice Kurian Joseph

(i) 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 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.

Conclusion:

(i) Section 23 of the Travancore-Cochin High Court Act remains unaffected by the repealing provision of Section 9 of the Kerala High Court Act, and that, being in the nature of special provision vis-a-vis Section 98(2) of the Code of Civil Procedure, would apply to the Kerala High Court.

Important Precedents:

(i) P.S. Sathappan v. Andhra Bank Ltd. MANU/SC/0873/2004

(ii) P.V. Hemalatha v. Kattamkandi Puthiya Maliackal Saheeda and Anr., MANU/SC/0501/2002