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CASE NO.:

Special Leave Petition (civil) 5843-46 of 2001

PETITIONER:

P.V. HEMALATHA

RESPONDENT:

KATTAMKANDI PUTHIYA MALIACKAL SAHEEDA AND ANR.

DATE OF JUDGMENT: 20/05/2002

BENCH:

D.P. MOHAPATRA & BRIJESH KUMAR & D.M. DHARMADHIKARI

JUDGMENT:

JUDGMENT

2002 (3) SCR 1098

The Judgment of the Court was delivered by

DHARMADHIKARI, J. These special leave petitions have been filed against the

common judgment of the Division Bench of Kerala High Court dated 19.1,2001

which have arisen out of two suits seeking injunction and two other suits

claiming decree of specific performance of the contract for sale of two

cinema theaters viz., Sangam and Pushpa in Calicut. Calicut was part of

erstwhile Malabar District in State of Madras and now forms part of new

State Kerala.

1. An uncommon question of legal and procedural difficulty had arisen

giving rise to these special leave petitions for appeal against the order

of Division Bench of Kerala High Court. The subordinate Judge of Calicut

dismissed the suit filed for specific performance of the agreement of sale

of Sangam and Pushpa theaters by judgment dated 1.4.1978. The appeals

preferred under Section 96 of the Code of Civil Procedure to the High Court

of Kerala were decided by common judgment with the appeals arising from the

injunction matters. The Two judges constituting the Division Bench sharply

different on all issues of fact and mixed issues of fact and law. Justice

P.K. Balasubramanyam dismissed the appeals holding that the plaintiff

(petitioner herein) is not entitled to decree of specific performance. The

other Judge, Justice K.A. Abdul Gafoor, differed and came to the conclusion

that the plaintiff is entitled to decree of Specific Performance. He,

therefore, allowed the appeals.

2. In the course of hearing, it is not disputed before us by the counsel

appearing for the parties that the main issue arising on facts between the

parties which was sufficient to dispose of the appeals was regarding the

right of the plaintiff to claim decree of the specific performance. The

other mixed issue of law and fact whether the property being custodia legis

through the Receiver appointed by the Court the suit without obtaining

leave of the Court was maintainable or not, was an additional ground to

grant or refuse the decree of specific performance. The other related

issues of fact which arose in the suit were regarding readiness and

willingness of the plaintiff to obtain the sale in due time and the

entitlement of the plaintiff to the grant of equitable relief of decree of

specific performance.

3. The two Judges constituting the Division Bench delivered two separate

judgments in which they have differed on almost all issues arising in the

case. After delivering two separate judgments, the Judges then formulated

the impugned order dated 19.1.2001 and came to the conclusion that since

they have delivered two separate judgments and have not identified

difference on any point of law, the decree of the court below passed by the

court is liable to be confirmed in terms of Section 98(2) of the Code of

Civil Procedure (For short "the Code").

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4. Before discussing the contentions advanced by the learned counsel for

the petitioners and the respondents-it is necessary to critically examine

the provisions of Section 98 of the Code (which are reproduced below) and

the order dated 19.1.2001 passed by the Division Bench resulting in

confirmation of the decree of subordinate court:

"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 the 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].

5. The impugned order dated 19.1.2001 jointly by the two Judges reads

thus:-

"In these appeals different judgments have been rendered by the two Judges

constituting the Bench. One of us has dismissed A.S. 422 of 1996 and partly

allowed the appeals A.F.A. Nos. 99, 100 and 101 of 1994. The other has

allowed the appeal A.S. 422 of 1996, and dismissed the appeals, A.F.A. Nos.

99, 100 and 101 of 1994. In this situation, Section 98 of the Code of Civil

Procedure comes into play. Under Sub-section 2 of Section 98 of the code

the decree appealed from would stand confirmed in such a situation, as no

point of difference on law is stated by us to attract the application of

the proviso thereto. The only question then is whether there is any

provision in the Letters Patent, as far as we are concerned, the Kerala

High Court Act which would keep out the operation of Section 98(2) of the

Code in the light of Section 98(3) of the Code.

In a case where the Judges differ, there is no provision in the Kerala High

Court Act 1958 governing the course to be adopted. There was a provision in

section 23 of the Travancore-Cochin High Court Act and it can be argued in

terms of Section 9 of the Kerala High Court Act, 1958 that the provision of

Travancore-Cochin High Court Act 1125 in so far as they relate to matters

not provided for in the High Court Act 1958, will continue to be in force.

But the Travancore-Cochin High Court Act operates only regarding the area

covered by the united States of Travancore-Cochin or the erstwhile princely

States of Travancore-Cochin. The suit from out of which these appeals arise

was filed in the concerned court in Calicut, part of the erstwhile Malabar

District of the Kerala State before the re-organisation of States with

effect from 1.11.1956. The territory was thus under the jurisdiction of the

High Court of Judicature, Madras and in these appeals, the provision that

has to be looked for is the letters patent for the High Court of

Judicature, Madras. Therein, again, there is no provision corresponding to

Section 23 of the Travancore-Cochin High Court Act conferring the power on

the Chief Justice of the High Court in a situation like the present one, to

refer the case to a third Judge. Clause 36 of the Letters Patent only

provides that if 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 is a majority, but if the Judges

should be equally divided, then they shall state the point upon which they

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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. There is no provision in Letters Patent to

cover a situation like the present one where different judgments have been

rendered by the two Judges constituting the Bench. Therefore, even on the

premise that the Letters Patent of the High Court of Judicature, Madras

continues to govern matters, notwithstanding the enactment of the Kerala

High Court Act, 1958, it has to be noted that there is no specific

provision in the Letters Patent governing the present situation. It has,

therefore, to be held that section 98(2) of the Code of Civil Procedure

applies in all its rigour. Thus, in view of Section 98(2) of the Code of

Civil Procedure it has to be ordered that all the decrees challenged in

these appeals shall stand confirmed".

6. As quoted above Sub-section (1) Section 98 of the Code provides that

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, Sub-section (1) of Section 98 of the Code,

therefore, provides that where the appeal is decided by two Judges and

there is no unanimity in opinion, Sub-section (2) of the said Section would

get attracted which states that where there is no such majority which

concurs in a judgment varying or reversing the decree appealed from, such

decree shall be confirmed'.

7. Proviso to Sub-section (2) of Section 98 of the Code, further, states

'that where the Bench is composed of two or other even number of judges and

the Judges comprising the Bench differ 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 Judges, and in that event 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.'

8. Sub-section (3) of Section 98 of the Code gives overriding effect to

the provisions of Letters Patent of High Court (if there be any) and

contains procedure for resolving such a difference. Sub-section (3) thus

saves the provision of Letters Patent of the concerned High Court if it

contains a provision dealing with such difference of opinion different from

the one contained in Sub-section (2) of Section 98 of the Code.

9. The two Judges who have differed on all issues arising in the appeal

and had delivered separate judgments, in their common order dated 19.1.2001

have confirmed the decree of the Sub-ordinate Court by stating in clear

words that they have not formulated any point of law on which they have

differed. To quote their words in the order, they say under Sub-section (2)

Section 98 of the code, the decree appealed from would stand confirmed in

such a situation as no point of difference on law is stated by us to

attract the application of the proviso thereto ".

10. The other question that was considered by the Division Bench is

whether there is any Letters Patent applicable to High court of Kerala

which indicates a different procedure for resolving difference of opinion

expressed by them in their two separate judgments. According to the opinion

of the learned Judges, the provisions of travancore-cochin High Court Act

1125 (hereinafter referred to as Travancore - Cochin Act) in Section 23

empowered the Chief Justice to refer the case to the opinion of the third

Judge for resolving the difference between the two Judges constituting the

Division Bench but the said Travancore - Cochin Act was applicable only to

the erstwhile Travancore - Cochin area which now forms part of the new

State of Kerala and cannot be made applicable to the Malabar District

forming part of erstwhile State of Madras which has now merged in to the

territory of new State of Kerala. The two learned judges also considered

the argument, which is now being advanced before us on behalf of the

petitioner, that the letters patent of the High Court of Madras containing

cause 36 could be invoked to resolve the difference of opinion between two

Judges both on question of fact and law by referring the case for the

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opinion of one or more judges of the same High Court for decision of the

case on the basis of the opinion of the majority of the Judges who heard

the case including those who first heard it and had differed.

11. The two learned judges of the Kerala High Court constituting the Bench

even on an assumption that Letters Patent of Madras High Court could be

availed of in relation to the territory falling in Malabar District of

erstwhile Madras State and now forming new State of Kerala, came to the

conclusion that clause 36 of Madras Letters Patent of High Court does not

cover a situation as is obtaining in cases before them where the two Judges

differed on all issues of fact and law, have delivered two different

judgments and not found necessary to state any point of law on which they

differed for reference of the same to third or more judges, It is on such

understanding of the procedural provisions contained in the Code,

Travancore-Cochin Act, and the Kerala Act read with Clause 36 of the

Letters Patent of Madras High Court that the Judges forming the Division

Bench came to the conclusion that there is no other option before them

except to confirm the decree of the subordinate court in accordance with

Sub-section (2) of section 98 of the Code.

12. Senior learned counsel Shri. R.F. Nariman very strenuously urged that

the two learned judges in taking the above view and confirming the decree

of the subordinate court committed a grievous mistake of law in holding

that clause 36 of the letters patent did not cover a situation like the one

before them. It is argued that even though the two judges have delivered

separate Judgments, from their judgments it is clearly discernible that

they had differed almost on every point or issue arising in the case and

the point of law on which they differed even though it has not been stated

by them separately can be culled out from the two separate opinions or they

can be directed to state the point upon which they differed for making a

reference of the case to one or more other judges of the High Court to

resolve the conflict inter se between two judges and obtain a majority

opinion of the High Court for decision of the case accordingly.

13. The learned senior counsel appearing for the petitioner took us

through the various provisions of Travancore - Cochin Act, Kerala Act and

the States Re-organisation Act (hereinafter referred to as S.R. Act of

1956) to support his submission that clause 36 of the Letters Patent of the

Madras High Court was saved as a procedure on 'Jurisdiction' of the High

Court at least in relation to the territory earlier falling within the

erstwhile Madras State which after re-organisation of States has become a

part of territory of the new State of Kerala. Learned counsel contended

that in the present case, clause 36 of the Letters Patent of Madras High

Court clearly provides a solution for resolving the difference of opinion

between the judges. Clause 36 is saved by virtue of provision in Sub-

section (3) of Section 98 of the Code. The learned Judges of the Kerala

High Court forming the Division Bench, it is argued, committed error of

jurisdiction and procedure in relying on Sub-section. (2) of Section 98 of

the Code to confirm the decree of subordinate court, Reliance is placed on

the decision in cases of Dadh Nathu Rajah (dead) by Lawyers v. Angha Nathu

Jamal (dead) by Lawyers, [1969] 3 SCC 813 and Ittavira Mathai v. Varkey

Varkey, [1964] 1 SCR 495. In support of the contentions that clause 36 of

the letters Patent of Madras High Court is applicable to Calicut being the

territory of the erstwhile State of Madras and now forming part of High

Court of Kerala, reliance is placed on to Section 52 of the S.R. Act of

1956 which reads as under:-

"52. Jurisdiction of High Courts for new states-The High Court for a new

state shall have, in respect of any part of the territories included in

that new State, all such original, appellate and other jurisdiction as

under the law in force immediately before the appointed day, is exercisable

in respect of that part of the said territories by any High Court or

Judicial Commissioner's court for an existing State."

14. Learned counsel appearing for the petitioner argued that Section 52 of

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the S.R Act of 1956 saved original appellate and other jurisdiction of the

erstwhile High Court for the territories which now form part of the new

State and is within territorial jurisdiction of that High Court after re-

organisation of States. Submission made is that the expression 'other

Jurisdiction' used in Section 52 preceded by such words 'original and

appellate' is an expression of wide import and would, therefore, include

clause 36 of Letters Patent of Madras High Court which governs subject

matter of power and jurisdiction of one or more Judges of that High Court

in the event of difference of opinion between them. In support of the above

last contention, reliance is placed on the decision in case of M.L. Sethi

v. R.P. Kapur, [1973] 1 SCR 697. Attention of the court is particularly

invited to the observation of the Supreme Court in which word

'jurisdiction' is explained thus :- The "Jurisdiction " is a verbal coal of

many colours. Jurisdiction originally seems to have had the meaning which

Lord Reid ascribed to it in Anisminic Ltd. v. Foreign Compensation

Commission, namely the entitlement "to enter upon the enquiry in question."

The learned counsel therefore, submitted that if clause 36 of the Letters

Patent of Madras High Court was attracted to erstwhile Malabar State now

forming new State of Kerala. From where the cases emanated, the differences

of opinion both on points of fact and law were required to be referred to

one or more other judges of that court for forming a majority opinion.

15. Learned senior counsel Shri Shekhar Naphde appearing for the respondent

very stoutly opposed and controverted all the contentions on procedural

provisions submitted on behalf of the petitioner. The learned counsel

surveyed the historical background of the various enactments under which

the Travancore - Cochin High Court was constituted and the territorial

jurisdiction of which later on merged with the Kerala High Court. The main

submission of learned counsel appearing for the respondent is that

erstwhile Malabar District forming part of the erstwhile State of Madras

did not fall within the territorial jurisdiction of Travancore - Cochin

High Court and therefore, Travancore - Cochin Act was not at all attracted

to that part of the territory of new State of Kerala. It is submitted that

Travancore - Cochin Act is expressly repealed by Section 9 of the Kerala

Act when the latter was brought into force with effect from 9.3.57 after

formation of new State of Kerala under the S.R. Act of 1956. It is

submitted on such repeal Travancore cochin Act did not survive on matters

on which provisions were made in the Kerala Act Section 4 of the Kerala Act

empowered the Judges constituting the Bench to refer only a question of law

on which they have not agreed, to the full Bench. Section 6 of Kerala Act

also confers a power on the Chief Justice to make over any case or matter

to be heard by a full Bench. It is submitted that Travancore - Cochin High

Court had no Letters Patent. It was not a Chartered High Court of British

India. Neither provisions of Section 23 of the Travancore-Cochin Act nor

Section 4 & 6 of Kerala Act could be relied on for seeking a reference to

one or more Judges of Kerala High Court for resolving the disputes between

the three judges. On behalf of the respondents, it is further contended

that Sub-section (3) of Section 98 of the Code makes inapplicable sub-

section (2) of section 98 of the Code only if there is any different

provision in the letters Patent of that High Court on procedure for

resolving difference of opinion between judges constituting a Bench.

16. Admittedly, High Court of Kerala is a newly constituted Court for the

newly formed State of Kerala in 1956 and governed by Kerala Act. The said

High Court does not have any Letters Patent-it being not a Chartered High

Court continuing from the British period. In such a situation, it is

submitted that the learned Judges were perfectly justified in giving effect

to the provision of Sub-section (2) of Section 98 of the Code and coming to

the conclusion that because of the two different judgments passed by them

the decree of the subordinate court was liable to be confirmed. On behalf

of the respondent very strong reliance has been placed on two Judges Bench

decision of this Court in the case of Tej Kaur v. Kirpal Singh, [1995] 5

SCC 119 in which a similar situation Supreme Court held that the provision

of Subsection (2) of Section 98 would be attracted and in view of the two

conflicting judgments passed by two Judges who differed on issues of fact,

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the judgment of subordinate court is liable to be confirmed.

17. In the reply to the reliance placed on Section 52 of the S.R. Act of

1956 for invoking clause 36 of the Letters Patent of Madras High Court, the

learned counsel on behalf of the respondents submitted that the question of

resolving difference of opinion by reference to one or more judges of the

court is a subject matter of 'procedure' and 'power' of Judges' separately

dealt with under Section 54 and 57 of the S.R. Act of 1956 hence reliance

on provision of Section 52 is misplaced. It is submitted that under Section

54 and 57 the procedure of the court and power of judges of the

'corresponding State' as defined in clause (d) of Section (2) of S.R. Act

of 1956 meaning the State of Travancore-Cochin alone, would apply to the

new State of Kerala. On such interpretation of the provisions of Section 54

and 57, it is submitted that since High Court of State of Travancore-Cochin

did not have any Letters Patent, the Letters Patent of Madras High Court

could not be invoked even in relation to that part of the territory which

fell within the erstwhile State of Madras and now has been merged in the

new State of Kerala. It is submitted that everywhere in Section 54, 55, 56

and 57 on the subject of "practice and procedure", "powers of Judges" and

other Court 'processes and 'seal' of the High Court, the reference is made

to 'corresponding State' which is defined in Section 2(e) for various new

States including the new State of Kerala. The 'corresponding State' defined

in clause 2 (e) in relation to State of Kerala is State of Travancore-

Cochin. It is, therefore, submitted that nothing outside the procedural

provisions of the High Court of Travancore-Cochin could be looked into for

deciding the question of resolving difference of opinion between the Judges

of the Division Bench. Letters Patent of Madras High Court, therefore, is

not applicable as law on 'practice and procedure' or 'powers of judges'

which can be said to have been saved under Section 54 and 57 of the S.R.

Act of 1956. As has already been stated above, the stand of the respondent

is that as seeking resolution of the difference of opinion between two

Judges by referring to one or more Judges of the High Court is a matter of

'practice and procedure' or 'power of Judges' specifically governed by

Section 54 and 57 of the S.R. Act of 1956, Section 52 intended to save the

law in relation to 'jurisdiction' applicable to a part of territory of the

new State earlier governed by jurisdictional law of erstwhile High Court

should be given a restricted meaning and not a wide meaning as is sought to

be assigned to it on behalf of the petitioner to include within the

expression 'jurisdiction' not only pecuniary and territorial but also

'practice and procedure' as well as 'powers of the Judges' in the matter of

resolving conflict of opinion between them. Learned counsel for the

respondent tried to distinguish the decision in Dadh Nathu's case (supra)

which related to erstwhile Saurashtra State now forming part of new State

of Gujarat and M.L. Sethi's case (supra). The learned counsel for the

respondent thus supported the procedure adopted and the conclusion reached

by the two learned Judges of the Division Bench who had differed on all

points arising in the cases before them and had delivered two separate

judgments without formulating points of difference on any question of law.

18. Let us first consider the main submission advanced on behalf of the

petitioner that clause 36 of the Letters Patent of Madras High Court should

have been invoked by the two Judges of the Division Bench who had differed

on all issues arising in the appeal and had delivered two separate

judgments. The subject matter on High Courts of the newly formed States

under the S.R. Act of 1956 is to be found in Sections 49 to 69 in Part V of

the S.R. Act of 1956. From the appointed day i.e. 1.11.56, in accordance

with Sub-section 2 of Section 49 of the S.R. Act of 1956, a new High Court

for the new State of Kerala has been established and in accordance with

Sub-section 1 of Section 50 from the appointed day, High Courts of all

existing Part 'B' States which included the then existing High Court of

Travancore-Cochin stood abolished.

19. Section 52 which is 6n the subject of 'jurisdiction' of High Courts of

new States, Section 54 on the subject of 'practice and procedure', Section

55 on 'custody of seal' of the High Court, Section 56 on 'forms of writs

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and other processes', Section 57 on 'powers of Judges' and all other

succeeding Sections up to Section 69 of the S.R. Act of 1956 containing

saving clause have all to be read in conjunction with each other to

ascertain extent of their operation and legislative intent sought to be

achieved thereby. Section 52 extends to the territories of the High Court

of new State, 'original, appellate and other jurisdiction' which was

exercisable in respect of that part of the territories by any High Court or

Judicial Commissioner's Court for an existing State :

20. Section 54 of the S.R. Act, 1956 makes applicable the 'practice and

procedure' of the High Court of the "corresponding State" to the High Court

of new State Proviso below Section 54 saves practice and procedure of the

High Court of the 'corresponding State' until varied or revoked by rules

and orders made by the High Court of a new State. 'Corresponding State' has

been defined in clause (e) of Section 2 to mean in relation to the new

State of Kerala the then State of Travancore and Cochin which existed on

the appointed day. Section 54 and clause (e) of Section 2 defining

'corresponding State' read as under-

"54. Practice and procedure - Subject to the provisions of this Part, the

law in force immediately before the appointed day with respect to practice

and procedure in the High Court for the corresponding State shall, with

necessary modifications, apply in relation to the High Court for a new

State, and accordingly, the High Court for the new State shall have all

such powers to make rules and orders with respect to practice and procedure

as are, immediately before the appointed day, excisable by the High Court

for the corresponding State:

Provided that any rules or orders which are in force immediately before the

appointed day with respect to practice and procedure in the High Court for

the corresponding State shall, until varied or revoked by rules or orders

made by the High Court for a new State, apply with the necessary

modifications in relation to practice and procedure in the High Court for

the new State as if made by that Court. "

"2 (e). "Corresponding State" means, in relation to the new States of

Bombay, Madhya Pradesh, Mysore, Punjab or Rajasthan, the existing State

with the same name, and in relation to the new State of Kerala, the

existing State of Travancore-Cochin."

21. Section 57 of the S.R. Act, 1956 provides that law relating to the

powers of Chief Justice, single Judges and Division Courts of the High

Court of the 'corresponding State' shall, with necessary modifications,

apply to the High Court of the new State. Section 57 of the S.R. Act, 1956

reads thus:-

"57. Powers of judges-The law in force immediately before the appointed day

relating to the powers of the Chief Justice, single Judges and Division

Courts of the High Court for the corresponding State and with respect to

matters ancillary to the exercise of those powers shall, with the necessary

modifications, apply in relation to the High Court for a new State."

22. The other most relevant Section 69 captioned "savings" gives

overriding effect to any Act of the Legislature in respect of the High

Court of new State. On coming into force of such legislation, it states

that 'nothing in Part V of the S.R. Act of 1956 would, after coming into

force of such legislation, apply to the High Court of the new State'.

Section 69 of the S.R. Act of 1956 reads thus:-

"69, Savings-Noting in this Part shall affect the application to the High

Court for a new State of any provisions of the Constitution, and this Part

shall have effect subject to any provision that may be made on or after the

appointed day with respect to that High Court by any Legislature or other

authority having power to make such provision".

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23. As we have noticed above, 'practice and procedure' of the High Court

of new State is dealt with in Section 54 and 'powers of Judges' is a

subject dealt with in Section 57. The scheme of the Act, as disclosed on a

conjoint reading of Sections 52, 54 and 57, makes it manifest that subject

'practice and procedure' and 'powers of Judges' specifically covered by

Sections 54 and 57 respectively are treated separately from 'jurisdiction'

dealt with in Section 52 of the S.R. Act, 1956. The expression

'jurisdiction'- original or appellate, in Section 52 has, therefore, to be

assigned a restrictive meaning as not to include within it 'practice and

procedure' of the High Court and 'powers of Judges' which are subjects

separately dealt with in Section 54 and 57 respectively. The expression

'other jurisdiction' used in Section 52, therefore, has to be understood as

not including in it the law relating to 'practice and procedure' of the

High Court' and 'powers of Judges' which are subjects separately dealt with

in Section 54 and 57 of the S.R. Act, 1956.

24. There is another reason for taking such a view of the relevant

provisions discussed above. If the expression in Section 52 "other

jurisdiction" associated with word 'original and appellate' is interpreted

to include "practice, procedure' and 'powers of Judges' of a High Court, a

very incongruous result would ensue which according to us can never have

been intended by the Legislature which was enacting a transitory provision

to lay down a uniform procedure for all the integrating territories of the

High Court of a new State until suitable legislation on the subject is

brought into force.

25. As contended on behalf of the petitioner on wide meaning given to

expression 'jurisdiction' under Section 52 of the S.R. Act, Letters Patent

of Madras High Court would apply to Malabar District which was part of the

erstwhile State of Madras before its merger with new State of Kerala,

whereas the Letters Patent of Madras High Court would not apply to other

part of the territories included in the new State of Kerala. Thus, for the

different territories which have merged into the new State of Kerala,

different laws would apply. Such result is avoided by legislature in making

suitable provisions on 'practice and procedure' in Section 54 'powers of

Judges' in Section 57 of the S.R. Act 1956. Our reading of Section 54 of

the S.R. Act 1956 is that the law in force of 'practice and procedure'

applicable to High Court of 'corresponding State' (which in this case is

Travancore-Cochin) would continue to apply to all the integrating

territories of the new State and its new High Court until new rules are

framed or a new legislation is brought into force to be made applicable

uniformly to all such territories. Similarly in accordance with Section 57,

the 'powers of Chief Justice, single Judges and Division Benches'

applicable to the High Court of 'corresponding State' Travancore-Cochin

would apply to all the territories of the new State of Kerala in which are

included territories of erstwhile State of Travancore-Cochin and Madras. In

this manner Sections 54 and 55 ensure application of one uniform law on

'jurisdiction', 'procedure' and 'powers of judges' to the new State and its

High Court. Exception to the above is contained in proviso to Section 54

and Section 69 of the S.R. Act of 1956 which stipulate that if the new High

Court makes its own rules and orders or the Legislature of the new State

makes a law in that respect for the High Court such law would have

overriding effect. In the light of the Scheme contained in all the

provisions under Part V of the S.R. Act 1956, we do not find it possible to

accept the argument advanced for the petitioner that Letters Patent of

Madras High Court can be made applicable to the cases arising from Calicut

as part of erstwhile Malabar District of erstwhile State of Madras which

now forms part of the territories of the new State of Kerala.

26. Thus, the Travancore-Cochin Act was applicable to the new High Court of

Kerala only between the period 1.11.1956 that is the 'appointed day', when

the transitory provision contained in Part V of S.R. Act, 1956 were in

operation, to 9.3.1957 when Kerala Act came into force dealing with

jurisdiction and procedure of new High Court of Kerala. The new legislation

for Kerala Act had an overriding effect and operation from the date of

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enforcement of that Act i.e. 9.3.1957. This is the legal result of

overriding effect of Section 69 of the S.R. Act, 1956 which saves law

applicable to 'corresponding State' only till legislation is brought in for

the new State and its High Court.

27. One more argument advanced on behalf of the petitioner at this stage

is required to be considered. Our attention is invited to the provisions of

section 23 of the Travancore - Cochin Act which according to the learned

counsel appearing for the petitioner is a provision different from

provisions contained in Sub - section 2 of section 98 of the Code of Civil

Procedure and the proviso thereunder. Section 23 of the Travancore - Cochin

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."

28. The above provision in section 23 of the Travancore - Cochin act

enables judges forming a Division Bench who had differed and delivered

separate judgments to refer the matter to the Chief justice for resolving

their difference of opinion both on question of fact and law. It is a

provision different from proviso below Sub - section 2 of Section 98 which

enables reference by the judges only on a stated point of law on which they

had differed.

29. On behalf of the petitioner recourse is sought to be taken to Section

23 of the Travancore - Cochin Act stating that the Kerala High Court Act of

1958 by section 9 repeals travancore- Cochin act only in relation to

matters provided in the Kerala Act. It is pointed out that under Section 4

of Kerala Act difference between Judges constituting a Bench of even number

is required to be resolved by reference to a full Bench only if the

difference is on question of law. Section 4 of Kerala Act reads thus

"4. Powers of a Bench of two Judges - The power of all the High Court in

relation to the following matters may be exercised by bench of two judges

provided that if both the judges agrees that the decision involves a

question of law they may order that the matter or question of law may be

referred to a full Bench:

(1) any matter in respect of which the power 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

S.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 .

(c) A reference-

(a) under S.13 of the Code of Civil Procedure, 1908.

(b) under s.307, s.374 or S.432 of the code of Criminal Procedure, 1898.

Reliance is placed on Section 9 of the Kerala Act which according to the

learned counsel appearing for the petitioner, repeals provisions of the

Travancore - Cochin Act only 'in so far as they relate to matters provided

in the Kerala Act, and not all. Section 9 of Kerala Act reads thus:-

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"9. Repeal - The provisions of the Travancore - Cochin high Court Act, 1125

(V of 1125), in so far as they relate to matters provided in this Act,

shall stand repealed."

30. 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 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.

31. 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 Kerala Act regulating the practices, procedure and powers of 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 Code of Civil Procedure regulated by special law

that is contained in section 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 any differing judges who have

delivered separate Judgments opinions to 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 maxims Generalia

specialibus non derogant [general things do not derogate from special

things] and Generalibus specialia derogant [special things derogate from

general things]. These principles have also been applied in resolving a

conflict between two different Acts and in the construction of statutory

rules and statutory orders. (See principles of statutory Interpretation-

Seventh Edition, 1999 by Justice G.P Singh Page 113-114)

32. 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 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.

33. We have reached the conclusion as stated above that clause 36 of the

Letters Patent of Madras High Court on 'practice and procedure,' and

'powers of judges' is not applicable to any part of the new territory of

State of Kerala and to the new High court of that State, Law with regard to

the 'practice, procedure and powers of judges' as contained in the Kerala

Act, would be applicable uniformably to all the territories now forming

part of new State of Kerala and the High Court established for it. We have

also held even on assumption that Section 23 of the Travancore - Cochin Act

is saved under Section 9 of the Kerala Act that since the said Kerala Act

is a 'general law', it has to give place to Section 98 of the Code of Civil

Procedure which is a 'special law, applicable to Civil Appeals arising from

Civil Suits.

34. In our considered view Sub-section (3) of Section 98 of the code of

Civil Procedure also cannot be taken aid of by the petitioner for seeking

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resolution of difference of opinion between two judges by third or more

judges of the High Court. As has been seen above sub-section (3) of section

98 of the Code gives over-riding effect to Letters patent of any High Court

and if in it there is a provision indicating a procedure for resolving

conflict between judges of a bench different from one provided in sub-

section (2) of Section 98 of the Code, the provisions of Letters Patent of

High Court shall prevail. Letters Patent is a word of definite legal

meaning. It is derived from Latin word 'literate patents' the letters

patent are so called because they are open letters, they are not sealed up,

but exposed to view, with the great seal pendant at the bottom; and are

usually directed or addressed by the king to all his subjects at large. And

therein they differ from certain other letter of the king, sealed also with

the great seal, but directed to particular persons, and for particular

purposes: which therefore, not being proper for public inspection are

closed up and sealed on the outside, and are thereupon called writs close

literate clause, and are recorded in the close - rolls, in the same manner

as the others are in the patent - rolls" (See Blackstones' Commentaries on

the Laws of England volume II pages 284-285).

35. Different Letters patents have been handed own by the sovereign in

British India to chartered High Courts which included only Judicature for

Bengal, Madras, Bombay, North-West Provinces (Allahabad) and others like

Patna (1916) Lahore (1919), Rangoon (1922). The history of these courts is

that the sovereign established them as superior courts in British India

Under the Indian High Courts Act of 1861 and powers and jurisdiction of

courts including judges of these courts were laid down in Letters Patent.

[See the Law and Custom of the Constitution by Sir William R. Anson Vol. II

(the Crown Part. II) pages 317 - 318 under the Headings' "Irish, Indian and

Overseas Courts]

36. Undisputedly, 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 S.R. Act of 1956. High

Court of Kerala, therefore, has no Letters Patent The Travancore-Cochin Act

and Kerala Act are not Letters Patent of 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 Travancore - Cochin Act 1125 (Indian calendar

1948-49) and 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 overriding effect along with Letters Patents Chartered High Courts

Act to other enactments dealing with formation of new High Courts for new

states under the S.R. Act of 1956 in any other laws.

37. In this legal situation and in view of our conclusion that Letters

patent of state of Madras is not applicable to any territory now within the

territorial jurisdiction of High Court of Kerala, Sub-section (3) of

Section 98 of the Code is of no assistance to the petitioner to claim

reference of difference of opinion between the two judges to one or more

judges of the High Court. The learned judges of the Division Bench of

Kerala High Court were right in holding that in view of conflicting

judgments delivered by them the decree of the subordinate court has to be

confirmed strictly in terms of Section (2) of Section 98 of the Code. Sub-

section (2) of Section 98 of the Code has a definite benevolent purpose.

Where even number of judges constituting a bench are decided in their

opinion and there is no question of law which they consider necessary for

reference to one or other judges for obtaining majority opinion, the

judgment and decree of the subordinate court should be confirmed to put an

end to the litigation. The law does not favour litigation to proceed

further where the opinion of the judges in appeal is divided only on issues

of fact.

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38. Now the last alternative submission made on behalf of the petitioner

needs to be considered. It is submitted that if this court does not find

any ground to direct the High Court to refer the matter to one or more

Judges of the High Court for resolving conflicting opinion in their

judgments this Court should grant special leave to appeal to this Court

under Article 136 of the constitution of India so that the correctness of

the two conflicting judgments of the Division Bench may be examined.

39. In the course of arguments learned counsel appearing for the parties

did not dispute that amongst several issues of fact arising in the cases,

on the decision of the issues purely of fact such as want of readiness and

willingness in the part of the plaintiff to seek Specific Performance of

the Contract for sale of two theatres the suit was liable to be dismissed

in accordance with the opinion of one of the Judges constituting the bench.

The appeals, therefore, could be decided finally in favour or against the

plaintiff on issues of fact alone without requiring the Judges to express

opinion on the other mixed issues of law and fact such as whether the

properties in suit being in custodia legis through the Receiver appointed

by the court the suits could not have been filed without obtaining leave of

the Court. As we have found that the issues of facts arising between the

parties in the suit and appeal were sufficient to decide the cases for or

against the plaintiff, the cleavage of opinion between the two judges on

the other mixed issues of law and fact is inconsequential. Their difference

of opinion on mixed issues of law and fact even if it would have been

referred for obtaining majority opinion of the Judges of the Court would

not have changed the ultimate result of the appeals because the Judges had

also differed on issues of fact and decision of one of them was sufficient

for decision of the cases in appeals. Thus as the opinion of one of the

Judges on issues of fact was decisive of the appeal, it would not be in

accordance with the established practice of this Court to interfere by

grant of special leave to appeal. Grant of special leave to appeal against

judgments raising issues of fact which were determinative would be against

the legislative intent contained in provisions of sub-section (2) of

Section 98 of the Code. We find some support for our conclusion from the

decision of this Court in Tej Kaur v. Kirpal Singh, [1995] 5 SCC 119 in

which full effect was given to the legislative mandate contained in sub-

section (2) of Section 98 of the Code by confirming the decree of the Sub-

ordinate Court in view of conflict of opinion between the two Judges who

had delivered separate judgments but not referred any question of law for

opinion of other Judges of the High Court. In that case, it was observed

that "while exercising power under Article 136 the Court should not do any

thing which would violate legislative mandate."

40. In the result, we find no ground to grant special leave to appeal

against the impugned common judgment of the Division Bench of the High

Court of Kerala in all the cases before us. The Special Leave Petitions are

therefore rejected but without any orders as to costs.