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

- **Citation:** [2016] 3 S.C.R. 1018
- **Court:** Supreme Court of India
- **Decided:** 2016-02-25
- **Case number:** Civil Appeal No. 20 I of2005
- **Bench:** Anil R. Dave, Kurian Joseph, Shiva Kirti Singh, Adarsh Kumar Goel, R.F. Nariman
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/pankajakshi-dead-through-lrs-others-v-chandrika-others-31107
- **Pages:** 57

## Headnote

Travancore-Cochin High Court Act, 1125 - s. 23 - Kera/a
High Court Act, 1958 -- s. 9 - Code of Civil Procedure, 1908 - s.
98(2) - Repealing of Statute - Effect of - Repealing provisions of s.
9 of the 1958 - Effect of," on s. 23 of the 1125 Act - Provision of s.
23, nature vis-a-vis s. 98(2) CPC - Held: s. 23 of the 1125 Act
remains unaffected by the repealing provision of s. 9 of the Kera/a
High Court Act - Section 23 being in the nature <if special provision
vis-a-vis s. 98(2) Cl'C, would apply to the Kera/a High Court - s.
23 of the Travancore-Cochin High Court Act, alone is to be applied
when there is a d(/jerence of opinion between two Judges of the
Kera/a High Court in any appeal, be it civil, crimi11al, or othenvise,
before them - Jn such appeals before the High Court of Kera/a, if
there is a difference of opinion between two Judges hearing such
appeals in the High Court, 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 - Thus, the particular perspt?ctive demands the application
of a uniform rule to all such appeals, which rule is provided by the
special rule contained in s. 23, which in turn displaces the general
rule which applies 11/s. 98(2) to all Courts and in civil proceedings
only - Thus, the High Courts Act is a special law for the High
Court concerned, the Code of Civil Procedure being a general law
applicable to all courts -- It is d[!Jicult to say that the Code of Civil
Procedure corresponds to the High Court Act.
Disposing of the Reference, the Court
Per R. R Nariman, .J.
HELD: 1. *Hemalatha's case was wrongly decided. Section
23 of the Travancore-Cochiu High Court Act remains unaffected
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PANKAJAKSHI (DEAD) THROUGH LRS. & OTHERS v.
CHANDRIKA & OTHERS
by the repealing provision of Section 9 of the Kerala High Court
Act, and that, being in the nature of special provision vis-£1-vis
Section 98(2) of the CPC, would apply to the Kerala High Court.
[Para 51) [1071-D-E)
2.1 Section 9 of the Kerala High Court Act, 1958, repeals
the provisions of the Travancore-Cochin High Court Act, insofa1·
as the said Act relates to matters provided in the Kerala High
Court Act. Applying the test laid down in AB Abdulkadir case
and Khan Sahib Abdul Shukoor case of this Court, .namely, that
the subject matter of the two statutes must essentially be the
same and/or that the main object and purpose of the statutes
should be substantially similar, 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, sub.ject to the exceptions contained
therein, and not only the High Court. Thus, it is difficult to say
that the Code of Civil Procedure corresponds to the TravancoreCochin High Court Act. [Paras 8, 14) [1037-D; 1040-B-D)
2.2 The scheme of Section 4(1) CPC, 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,
aud that exception is that there should not be any "specific
provision to the contrary" contained in the Code itself. [Para 17)
(1041-B)
2.3 Section 1(2) of the old Cr.PC 1898, correspo

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(2016] 3 S.C.R. 1018
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CHANDRIKA & OTHERS
(Civil Appeal No. 20 I of2005)
FEBRUARY 25, 2016
[ANIL R. DAVE, KURIAN JOSEPH, SHIVA KIRTI SINGH,
ADARSH KUMAR GOEL AND R.F. NARIMAN, JJ.)
Travancore-Cochin High Court Act, 1125 - s. 23 - Kera/a
High Court Act, 1958 -- s. 9 - Code of Civil Procedure, 1908 - s.
98(2) - Repealing of Statute - Effect of - Repealing provisions of s.
9 of the 1958 - Effect of," on s. 23 of the 1125 Act - Provision of s.
23, nature vis-a-vis s. 98(2) CPC - Held: s. 23 of the 1125 Act
remains unaffected by the repealing provision of s. 9 of the Kera/a
High Court Act - Section 23 being in the nature <if special provision
vis-a-vis s. 98(2) Cl'C, would apply to the Kera/a High Court - s.
23 of the Travancore-Cochin High Court Act, alone is to be applied
when there is a d(/jerence of opinion between two Judges of the
Kera/a High Court in any appeal, be it civil, crimi11al, or othenvise,
before them - Jn such appeals before the High Court of Kera/a, if
there is a difference of opinion between two Judges hearing such
appeals in the High Court, 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 - Thus, the particular perspt?ctive demands the application
of a uniform rule to all such appeals, which rule is provided by the
special rule contained in s. 23, which in turn displaces the general
rule which applies 11/s. 98(2) to all Courts and in civil proceedings
only - Thus, the High Courts Act is a special law for the High
Court concerned, the Code of Civil Procedure being a general law
applicable to all courts -- It is d[!Jicult to say that the Code of Civil
Procedure corresponds to the High Court Act.
Disposing of the Reference, the Court
Per R. R Nariman, .J.
HELD: 1. *Hemalatha's case was wrongly decided. Section
23 of the Travancore-Cochiu High Court Act remains unaffected
1018
PANKAJAKSHI (DEAD) THROUGH LRS. & OTHERS v.
CHANDRIKA & OTHERS
by the repealing provision of Section 9 of the Kerala High Court
Act, and that, being in the nature of special provision vis-£1-vis
Section 98(2) of the CPC, would apply to the Kerala High Court.
[Para 51) [1071-D-E)
2.1 Section 9 of the Kerala High Court Act, 1958, repeals
the provisions of the Travancore-Cochin High Court Act, insofa1·
as the said Act relates to matters provided in the Kerala High
Court Act. Applying the test laid down in AB Abdulkadir case
and Khan Sahib Abdul Shukoor case of this Court, .namely, that
the subject matter of the two statutes must essentially be the
same and/or that the main object and purpose of the statutes
should be substantially similar, 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, sub.ject to the exceptions contained
therein, and not only the High Court. Thus, it is difficult to say
that the Code of Civil Procedure corresponds to the TravancoreCochin High Court Act. [Paras 8, 14) [1037-D; 1040-B-D)
2.2 The scheme of Section 4(1) CPC, 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,
aud that exception is that there should not be any "specific
provision to the contrary" contained in the Code itself. [Para 17)
(1041-B)
2.3 Section 1(2) of the old Cr.PC 1898, 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
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in the Code itself and nowhere else. Taking note of the legislative
scheme contained in .the Code of Criminal Procedure, there is
no· doubt in co·nstruing 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. The "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. One of the meanings
of the word "specific" is that it is distinct from something that is
general. It is in this primary sense that the expression "specific
provision'' is used in Section 4(1) of the Code of Civil Procedure
because it carves out an exception to special, local, or other laws
which deal with the same subjec.t matter as tbe Code of Civil
Procedure but get overridden by the Code of Civil Procedure.
[Paras 18, 20, 21) [1042-D; 1045-B, F]
2.4 Respondent submitted 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 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 TravancoreCochin 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. For the exclusion to
be specific, it must be held that the provision contained in Section
98(2) CPC is special as against Section 23 of the TravancoreCochin High Court Act .. This cannot be done as it would be in the
teeth of the Constitution Bench judgment in **Sathappan's case.
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 instant 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 concludes the matter in favour of the ·appellants.
[Paras 34; 35] [1054-G-H; 1055-A-C]
· 2.5 The particular perspective of concern as to what is to
happen, in such -appeals before the High Court of Kerala, if there
PANKAJAKSHI (DEAD) THROUGH LRS. & OTHERS v.
CHANDRIKA & OTHERS
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 nuder Section 98(2)
of the Code of Civil Procedure to all Courts and in civil
proceedings only. [Para 37] [1056-F-G)
2.6 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 cotirts.[Para 38] (1056-G-H)
2.7 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. It will be seen that clause 36 of the
Letters Patent refers to the "appellate jurisdiction" of the High
Court, which jurisdiction would contain appeals both under clause
15 of the Letters Patent and under Section 96 of the Code of
Civil Procedure. Despite this, some High Courts took the view
that appeals under Section 96 of the Code of Civil Procedure
would not be covered by clause 36 of the Letters Patent, and that
therefore Section 98(2) and not Clause 36 would be applied in
such appeals before the High Courts. [Paras 40, 43] [1057-D-E;
1059-D-E]
2.8 The Gujarat High Court's Full Bench decision, held
that 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
this Com1. If the Letters Patent, being the Charter of the High
Courts in British India, was a special law governing the High
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-·
Courts untouched by any specific provision to the contrary in the
Code of Civil Procedure, so would the High Court Acts, being
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 Judges of the Kerala High Court in any
appeal, be it civil, criminal, or otherwise, before them. [Para 47)
[1069--E-HJ
-
2.9 If respondent's argument is accepted 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 appellant'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 or" them. In fact, in Civil Appeal No. 8576 of 2014
which on facts arises out of the Malabar region of Kerala, Clause
36 o( the Letters Patent of the Madras High· Court would directly
apply. Clause 36 of the Letters Patent is pari materia to Section
23 of the Travancore Cochin High Court Act. This being so, even
for regions that were governed by a different law-namely, the
Letters Patent of the Madras High Court - a uniform rule is to
be applied to the entire Kerala High Court. 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. [Para 48) [1070-A-D)
2.10 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 respondent's argument is
accepted, the High Courts like the Kerala High Court which are
not established b~ any Letters Patent, would be so governed.
PANKAJAKSHI (DEAD) THROUGH LRS. & OTHERS v.
CHANDRIKA & OTHERS
This again would lay down two different rules for different sets of
High Courts depending upon a wholly irrelevant circumstancewhether their Charter originated in the Letters Patent or in a
statute. Here again the acceptance of appellant's argument leads
to one uniform rule applying down the board to all the High Courts
in this country. [Para 50) (1071-B-C)
Shushila Kesarbhai& Ors. v. Bai Lilavati & Others AIR
1975 Guj 39 (FB) - approved.
* P. V. Hemalatha v. Kattamkandi Puthiya Mal iackal
Dashed & Another (2002) 5 SCC 548; Te} Kaur and
another v. Kirpal Singh and another (1995) 5 SCC 119;
Ku/want Kaur and Others v. Gurdial Singh Mann (dead)
by LRS and Others (2001) 4 SCC 262 - overruled.
** P.S. Sathappan v. Andhra Bank Ltd. (2004) 11 SCC
672; Bhaidas Shivdas v. Bai Guiab & Another AIR 1921
PC 6; l111111idisetti Dhanaraju & Another v. Motilal Daga
& Another AIR 1929 MAD 641; Krishan Prasad Gupta
v. Controlle1; Printing & Stationery (1996) 1 SCC 69;
A.B. Abdulkadir & Others v. The State of Kera/a &
another [1962] Suppl. 2 SCR 741; The Custodian of
Evacuee Property, Bangalore v. Khan Saheb Abdul
Shukoor. etc. 119611 3 SCR 855; Jelejar Hormosji Got/a
v. The State of Andhra Pradesh AIR 1965 AP 288 ;
Gurbinder Singh and Others v. Lal Singh and Others
AIR 1959 P&H 123 ; Mati Lal Saha 1( Chandra Kanta
Sarkar & Others AIR 1947 Cal 1; Maru Ram\( Union
of India and others (1981) 1 SCC 107; Hukumdev
Narain Yadav v. La/it Narain Mishra (1974) 2 SCC 133;
Anwari Basavaraj Patil v. Siddaramaiah (1993) 1 SCC
636 ; Gopal Sardar v. Karzma Sardar (2004) 4 SCC
252 ; Life Insurance Corporation of India v. D.J.
Bahadur and Others (1981) 1 SCC 315 ; lmmidisetti
Dhanaraju & Another v. Motilal Daga & Another AIR
1929 MAD 641 ; Shushila Kesarbhai & Ors. v. Bai
Lilavati & Ors. AIR 1975 Gu.j. 39 (FB) ; Bhuta v. Lakadu
Dhansing AIR 1919 Born 1 (FB) - referred to.
Case Law Reference
(2002) 5 sec 548
(2004) 11 sec 672
overruled
referred to
Para 51
Para4
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AIR 1921 PC 6
referred to
Paras
AIR 1929 MAD 641
referred to
Paras
AIR 1975 Gu.i 39 (FB)
approved
Para 5
(1996) 1 sec 69
referred to
Para 10
(1962] Suppl. 2 SCR 741 referred to
Para 11
B
119611 3 SCR 855
referred to
Para 13
AIR 1965 AP 288
referred to
Para 15
AIR 1959 P&H 123
referred to
Para 15
AIR 1947 Cal 1
referred to
Para 18
c
(1981) 1 sec 107
referred to
Para 19
(2001) 4 sec 262
overruled
Para 24
(1974) 2 sec 133
referred to
Para 29
(1993) 1 sec 636
referred to
Para 29
(2004) 4 sec 2s2
referred to
Para 29
D
(1981) 1 sec 315
referred to
Para 36
1929 MAD 641
referred to
Para 44
AIR 1975 Guj. 39 (FB)
referred to
Para 46
AIR 1919 Born 1 (FB)
referred to
Para 46
E
(1995) 5 sec 119
overruled
Para 49
Per Kurian Jose12h, J. (Su121'1lementing} :
1.1 There is no uniformity or clarity with regard to the
Judge strength in the event of difference of opinion, and it has
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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). [Para 7] [1073-C]
1.2 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 Act provides for an appeal to be heard by a Division Bench
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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
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appeal be decided according to the opinions of the majority of
PANKAJAKSHI (DEAD) THROUGH LRS. &. OTHERS v.
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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. [Para 10) [1073-G-H; 1074-A)
1.3 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, 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. [Para 11) [1074-B-D]
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 201 of
2005.
From the Judgment and Order dated 20.08.2004 in AS No. 686 of
1995 (C) passed by the High Court of Kerala at Ernakulam
WITH
C.A. No. 8576 of2014.
V. Giri, Sr. Adv., T.G. Narayanar. Nair, Mohammed Sadique T.A.,
K.N. Madhusoodhanan, Ms. Svadha Shankar, Manav Vohra, Annunya
Mehta, Jaimon Andrews, Usha Nandini, Naresh Kumar, Advs. for the
Appellants.
K.V. Viswanathan, Sr. Adv., M.K. Shreegesh, Abhishek Kaushik,
Ravi Raghunath, Dhananjay Ray, C.S. Bharadwaj, Plaban Bharadwaj,
Ms. Malini Poduval, M.T. George, Vijay K. Mehta, E.M.S. Anam, Mrs.
K. -Enatoli. Serna, Edward Belho, Amit Kumar Singh, Advs. for the
Respondents:
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The Judgment of the Court was delivered by
R.F. NARIMAN, .J. I. 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
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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
Comt ofKerala had, relying upon Section 98 ofCPC, 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 ofa special provision while Section 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.
PANKAJAKSHI (DEAD) THROUGH LRS. & OTHERS v.
CHANDRIKA & OTHERS [R. F. NARIMAN, J.)
(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:
(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) ofCPC.
(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 Cou11 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. Hemaiatha,
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.
3. The matter may be placed before the Chief Justice for
appropriate administrative order in this regard.
S.L.P. (Civil) No. 34457of2010
Leave granted.
2. The issues involved in the present Appeal are identical to the
issues that arise in Civil Appeal No. 201.of2005. Civil Appeal No.
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201 of 2005 has been referred to a Bench of 5 Judges.
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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
of2005.
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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 shat I refer their disagreements to the op in ion 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 decided:
"Submission made on comparing Section 23 of the TravancoreCoch in Act and Section 4 of the Kera la 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 KeralaAct, the former cannot be
said to have been repealed by Section 9 of the Kera la Act. The
submission, therefore, is that the Judges of the Division Bench of
the High Court ofKerala 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
Travai1core-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
PANKAJAKSHI (DEAD) THROUGH LRS. & OTHERS v.
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, 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 lmi· 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· !Tom special things) and specialia generalibus
derogant (special things derogate from general things). These
principles have also been applied in resolving a conflict between
two different Acts and in the construction of statutory rules and
statutory orders. (See Principles of Statutory Interpretation by Justice
G.P. Singh, 7th Edn., 1999, pp. 113-14.)
Assuming for the sake of argument that provisions of Section 23 of
the Travancore-Cochin Act are saved by Section 9 of the Kerala Act
and are applicable to the High Court of the new State of Kera la, 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 subsection (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
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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]
Shri Y. 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
sec 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
Guiab & Another, AIR I 92 I PC 6, as followed and explained in various
decisions including two Full Bench decisions in particular, Immidisetti
Dhanaraju & Another v. Motilal Daga & Another, AIR 1929 MAD
641 and Shushila Kesarbhai & Ors. v. Bai Lilavati & Others, AIR
1975 Guj 39 (FB). According to Shri V. Giri, the Privy Council judgment
as followed in the two Full Bench decisions referred to hereinabove
again makes it clear that Section 4 of the Code of Civil Procedure when
pitted against a High Court Charter like the Letters Patent, the said
Charter being a special law would prevai I 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
PANKAJAKSHI (DEAD) THROUGHLRS. & OTHERS v.
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provision to the contrary in the Privy Counci I 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 independent
and other High Courts were either set up, or assimilated froin the princely
States into the constitution_al framework oflndia, 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 contaiiled 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 submi_ssions and marshalled
his arguments on four different points. He ~rgued the case with great
ability and learning and we heard him with considerable interest.
Accordingto learned counsel, the Code of Civil Proc~edureAmendment ,
Act of 1951, which extended the Code of Civil Procedure to the whole
of India, contained a provision (namely Section 20) by which all taws
that corresponded to the Code of Civil Procedure in the territory oflndia
were repealed. 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 I I 7,
I 20, I 22, I 25 and 129 of the Code of Civil Pr-0ced.ure a~e specific
provisions to the contrary for the purposes of Section 4( I) of the Code.
'of Civ.il Procedure and that·Section 98 would therefore prevail over
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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 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
(I) In the absence of any specific provision to the contrary, nothing
in this Code shall be deemed to limit orotherwise 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 ( l ), 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
(I) 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
decisions of such Court.
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(2) An appeal may lie from an original decree passed ex parte.
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(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.
(I) 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(ifany) 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 othel")Vj.se
affect any pr9vision of the letters patent of any High Court.
S. 117:- Application of Code to High Courts.
Save as provided iti this Part ~r in Part Xor in rule~, the provisions
of this Code shall apply to such High Courts.
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Section 120 - Provisions not applicable to High Court in
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original civil jurisdiction
( 1) The following provisions shall not apply to the High Court in
the exercise of its original civil jurisdiction, namely,
sections l 6, l 7 and 20.
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Section 121 - Effect of rules in First Schedule
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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 riot
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 ofTravancore-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 Court;
It is hereby enacted as follows:-
S. 18:- Jurisdiction and powers of the High Court-
( I) 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 Coutt
immediately prior to the coming into force of this Act.
S. 21:- Powers of Division Benches of two JudgesA Division Bench consisting of two Judges of the High Court, is
empowered:
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