Holding

The Supreme Court held that, in the absence of a point of law difference, Section 98(2) of the CPC mandates confirmation of the subordinate court decree and the Madras Letters Patent and Travancore‑Cochin provisions are inapplicable to the Kerala High Court.

Summary

The petitioners sought specific performance of a contract for two cinema theatres in Calicut, but the trial court dismissed the suit. On appeal, a two‑judge Division Bench of the Kerala High Court delivered conflicting judgments and, without identifying any point of law difference, confirmed the trial court decree under Section 98(2) of the Code of Civil Procedure. The petitioners argued that the bench should have referred the matter to a third judge under Clause 36 of the Madras Letters Patent, Section 23 of the Travancore‑Cochin Act, or the Kerala High Court Act, invoking Section 52 of the States Reorganisation Act. The Supreme Court held that the Madras Letters Patent and Travancore‑Cochin provisions do not apply to the Kerala High Court, and that Section 98(2) CPC, a special law, prevails over the general provisions of the other statutes. Consequently, the decree of the subordinate court was confirmed and the special leave petitions were dismissed.

Issues considered

Whether Clause 36 of the Madras Letters Patent is applicable to the Kerala High Court for resolving a difference of opinion between two judges.
Whether Section 23 of the Travancore‑Cochin High Court Act and Section 4/9 of the Kerala High Court Act can be invoked to refer the matter to a third judge.
Whether Section 52 of the States Reorganisation Act, 1956 saves the Madras Letters Patent for practice and procedure in the new State of Kerala.
Whether Sections 54 and 57 of the States Reorganisation Act, 1956 limit the scope of Section 52 and preclude the application of the Madras Letters Patent.
Whether Section 98(2) of the Code of Civil Procedure mandates confirmation of the subordinate court decree in the absence of a point of law difference.
Whether Section 98(3) CPC can be used to override the above analysis by giving effect to any Letters Patent.
Whether special leave under Article 136 of the Constitution can be granted to examine the conflicting judgments.

Legislation cited

Code of Civil Procedure, 1908s. 577, s. 96, s. 98(2), s. 98(3)
Constitution of Indias. Article 136
Kerala High Court Act, 1958s. 4, s. 9
States Reorganisation Act, 1956s. 52, s. 54, s. 57, s. 69
Travancore‑Cochin High Court Act, 1125s. 23

Subjects

Specific performanceSection 98 CPCDivision benchConflict of judgmentLetters PatentState Reorganisation ActKerala High CourtTravancore-Cochin ActSpecial leave petitionArticle 136JurisdictionPractice and procedurePowers of judgesGeneral vs special lawStatutory interpretation

Judgment

A P.V. HEMALATHA
v.
KATTAMKANDI PUTHIYA MALIACKAL SAHEEDA AND ANR.

MAY 20, 2002

B [D.P. MOHAPATRA, BRIJESH KUMAR AND D.M.
DHARMADHIKARI, JJ.)

Code of Civil Procedure, I908-Sections 96 and Proviso to Section
98(2)-Suit- Dismissal of-Suit property situated in part of erstwhile State of
C Madras and new State of Kera/a-Appeal under Section 96 before High Court
of Kera/a-Conflict of opinion between Judges of Division Bench of the High
Court-Confirmation of order of subordinate Court in terms of proviso to
Section 98(2) as difference was not found on point of law-Plea that matter
was required to be referred to third Judge for majority opinion by taking
D recourse to Clause 36 of Letters Patent of Madras High Court, Section 23 of
Travancore-Cochin Act and Section 98(3) CPC-Held, order of subordinate
Court was rightly confirmed-Case not required to be referred to third Judge-
Since clause 36 of Letters Patent of Madras High Court on 'Practice and
Procedure' and 'Powers of Judges ' is not applicable to any territory of State
of Kera/a-Since Section 23 of Travancore-Cochin Act is not applicable to
E appeals under Sections 96 to 98 CPC-And since Section 98(3) CPC is not
applicable because High Court of Kera/a has no Letters Patent as the same
was not a Chartered High Court under British India-State- Re-organisation
Act, I956-Sections 52, 54, 57 and 69-Travancore-Cochin Act, I I25 (Indian
Calendar I948-49)-Section 23-Kerala High Court Act, I958-Section 9-
F Code of Civil Procedure, I908-Section 98(3)-Code of Civil Procedure,
I877-Section 577. ;1o..,

Constitution of India, I950-Artic/e I36-Special leave to appeal-
Grant of-Against judgment raising issue of fact wherein opinion of judges
differed-Held, not permissible as it would be contrary to practice of Supreme
G Court and against the legislative intent ofproviso to Section 98(2)- 'Practice
and Procedure '-Code of Civil Procedure, 1908-Proviso to Section 98(2).

Conflict of law-General law and Specific law-Conflict between-
Overriding effect of-Held, General law will override specific law.

Maxims
H 1098
r.v. HEMALATHA \'. KATTAMKANDI PUTHIYA MALIACKAL·SAHEEDA 1099

- 'Generalia specialibus non deroganl' and 'Generalibus specia/ia A
derogant '-Applicability of

Words and Phrases- 'letters Patent '-Meaning of-Discussed

The suits by plaintiff-petitioner claiming specific performance of a
contract of sale of two cinema theatres, situated in Calicut were dismissed B
by Trial Court. Calicut was part of erstwhile Malabar District in State of
Madras which now forms part of new State of Kerala. In appeal under
> Section 96 CPC before Division Bench of High Court of Kerala, the two
Judges differed on all issues of fact and mi~ed issues of fact and law and
passed _separate judgments, one dismissing the appeals and the other
allowing the appeal. However, by their common order, they confirmed the c
order of the Subordinate Court in terms of Section 98(2) CPC, since they
had not identified difference on any point of law for reference of the same
to third or more Judges.

In appeal to this Court appellant/plaintiff contended that Division
Bench committed error of jurisdiction and procedure in relying on sub- D
section (2) of Section 98 CPC to confirm decree of Subordinate Court;
and thedifference of opinion on the points of facts and law were required
to be referred to one or more other Judges by taking recourse to Clause
36 of Letters Patent of Madras High Court as the same was applicable in
the case as_ it had been saved as procedure on 'jurisdiction' of the High E
Court by Section 52 of State Re-organisation Act, 1956 in relation to the
territory earlier falling within the erstwhile Madras State which after re-
organisation of States had become part of new State of Kerala; and by
taking recourse of Section 23 of Travancore-Cochin Act, 1125 (Indian
Calendar 1948-49) as the same was saved by Section 9 of Kerala High
~
" Court Act, 1958; and in view of Section 98(3) CPC. It was contended F
alternatively that if this Court did not find any ground to direct the High
Court to refer the matter to one or more judges for resolving conflicting
opinion the Court should grant special leave to appeal under Article 136
of the Constitution for examining the correctness of the conflicting
judgment. G
Dismissing the appeals, the Court
HELD: I. Division Bench of Kerala High Court was 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 sub section (2)
of Section 98 CPC. j 1120-DI H
1100 SUPREME COURT REPORTS [2002) 3 S.C.R.

A 2.1. Clause 36 of the Letters Patent of Madras High Court on ii'.
-,,..
'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
State. Law with regard to the 'Practice, Procedure and Powers of Judges'
as contained in the Kerala High Court Act, 1958 would be applicable
uniformly to all the territories now forming part of new State of Kera la
B and the High Court established for it. (1118-F-G)

2.2. In the light of the Scheme contained in all the provisions under
-{
Part V of the States Re-organisation Act, 1956, Letters Patent of Madras
High Court cannot be made applicable to the cases arising from Calicut
as part of the territories of the new State of Kerala. (1115-F)
c
2.3. The expression 'other jurisdiction' used in Section 52, 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 Sections 54 and 57 of the State Re-organisation
D Act, 1956. (1114-F[

2.4. If the expression in Section 52 "other jurisdiction" associated )

with words 'original and appellate' is interpreted to include 'practiPe,
procedure' and 'powers of Judges' of a High Court, a very incongruous
result would ensue which can never have been intended by the Legislature
E 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. (1114-G, H; 1115-A)

2.5. On wide meaning given to expression 'jurisdiction' under Section
52 of the State Re-organisation Act, Letters Patent of Madras High Court
F 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
G would apply. Such result is avoided by legislature in making suitable
provisions on 'practice and procedure' in Section 54 and 'powers of
Judges' in Section 57 of the State Re-organisation Act, 1956. (1115-B)
._
2.6. Travancore-Cochin Act was applicable to the new High Court
of Kerala only between the period 1.11.1956 that is the 'appointed day',
H when the transitory provisions contained in Part V of State Reorganisation
P_V_ HEMALATHA 1·. KATTAMKANDI PUTHIYA MALlACKAL SAHF.EDA 1101

, Act, 1956 were in operation, to 9.3.1957 when Kerala High Court Act came A
into force dealing with jurisdiction and procedure of new High Court of
Kerala. The new legislation of Kerala High Court Act had an overriding
effect and operation from the date of enforcement of that Act i.e. 9.3.1957.
This is the legal result of overriding effect of Section 69 of the State
Reorganisation Act, 1956 which saves law applicable to 'corresponding
State' only till legislation is brought in for the new State and its High B
Court. 11115-G, H; 1116-AI

3.1. Judges of the Division Bench of the High Court of Kera la could
not have referred the matter to the Chief Justice for the opinion of third
judge, taking recourse to Section 23 of the Travancore-Cochin Act as they C
had delivered two separate judgments. The law contained in the
Travancore-Cochin Act and Kerala High Court 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 D
96 to 98 CPC. 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 of opinions
to third Ji1dge on Issues both on fact and law and the provisions contained
in PfOviso of sub-section 2 of Section 98 CPC which permits reference to E
one or more Judges only on the difference of opinion on the stated question
of/aw. When the Courts are confronted with such a situation the Court's
approach should be "to find out which of the two apparently conflicting
provisions is 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 F
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. 11117-G, H; 1118-A-DI

3.2. Even if it is assumed that provisions of Section 23 of the G
Travancore-Cochin Act are saved by Section 9 of the Kerala High Court
Act and are applicable to the High Court of new State of Kerala since
provisions contained in Section 98 CPC 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 High Court Act, the 'special law' will prevail H
1102 SUPREME COURT REPORTS [2002] 3 S.C.R.

A over the 'general law' and the provisions of Section 98 CPC in all its terms
will have to be applied to civil appeals arising from civil stiits which are
regulated by CPC. 11118-E, Fl

4.1. Sub-section (3) of Section 98 CPC also cannot be taken aid of
by the petitioner for seeking resolution of difference of opinion between
B the two judges, by three or more judges of the High Court. Sub-section
(3) of Section 98 CPC gives over-riding effect to Letters Patent of High
Court and if in it there is a provision indicating the procedure for resolving
conflict between judges constituting a Bench which is different from one
provided in Sub-section 2 of Section 98 CPS. "I 1119-A-BI
c 4.2. 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 State Reorganisation
Act of 1956. High Court of Kerala, therefore, has no Letters Patent. The
Travancore-Cochin Act and Kerala High Court Act are not Letters Patent
D 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. 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
E 1948-49) and Kerala High Court Act, 1958 were enacted but at no point I
of time any change was made by amendment to sub-section (3) of Section
98 of the Code to give overriding effect alongwith Letters Patent of
Chartered High Courts Act to other enactment dealing with formation of
new Higti Courts for new States under the State Reorganisation Act of
F 1956 or any other laws. 11119-G, H; 1120-A, BJ

Blacktsone 's Commentaries on the Laws of England Volume II pages
284-285; The Law and Custom of the Constitution by Sir William R. Anson
Vol. II (The Crown Part.II), referred to..

G 5. As the issues of fact including one whether there was want of
readiness and willingness on the part of the phtintiff to seek specific
performance of the contract for sale of two theatres, 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
.H of opinion on mixed issues of law and fact even if it would have been
P.V. HEMALATHA 1·. KATTAMKANDI PUTHIYA MALIACKAL SAHEEDA [DHARMADHlKARI. J.J}} 03

referred for obtaining majority opinion of the Judges of the Court would A
,
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. Thu~ 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 B
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.
11120-G, H; 1121-8-01

Te} Kaur v. Kirpal Singh, 1199515SCC119, relied on.
c
CIVIL APPELLATE JURISDICTION : Special Leave Petition (C)
No. 5843-46 of 200 I.

From the Judgment and Order dated 19.1.2001 of the Kerala High
Court in A.S. No. 422/96, A.F.A. Nos. 99, JOO and 101 of 1994.
D
R.F. Nariman, L.N. Rao, T.P. Arvindaksha Menon, A. Raghunath and
A. Anundan for the petitioner.

Shekhar.Naphde, Krishanan Iyer, E.C. Agrawala, Rishi Agrawala,
Mahesh Agrawala, Alok Agrawala, Manu Krishnan and P.N. Ramalingam
for the Respondents. E
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 F
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.

I. An uncommon question of legal and procedural difficulty had arisen G
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 H
'
1104 SUPREME COURT REPORTS [2002] 3 S.C.R.

A 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
B 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
C 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 /egis 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
D 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 Be.nch delivered two separate
E 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
F (For short "the Code").

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 19.1.200 I passed by the Division Bench resulting in
G confirmation of the decree of subordinate court:

"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.
H
l'.V. HEMALATHA 1·. KATTAMKANDI PUTHIYA MAL JACKAL SAHEEDA jDH.-\RMADHIKARl.1.J]] 05

(2) Where there is no such majority which concurs in a judgment A
)
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 nu1nber of Judges belonging to a court consisting
of more Judges than those constituting the Bench] and the Judges, B
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 C
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 19.1.200 I jointly by the two Judges reads D
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 E
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
F
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 G
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- H
1106 SUPREME COURT REPORTS [2002] 3 S.C.R.

A Cochin High Court Act operates only regarding the area covered by
the united States ofTravancore-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
B· 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
c 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 ifthe 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 differ
D . 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
E Bench. Therefore,~ven 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
F 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 (I) 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 (I) 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
H a judgment varying or reversing the decree appealed from, such decree shall
r.v. llF.MALATHA "· KATTAMKANDI PUTHIYA MALIACKAL SAHEEDA {DHARMADHIKA.Rl. J.Jl 107

be confirmed'. A
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 onlv 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
B

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 C
procedure for resolving such a difference. Sub-section (3) thus saves the
provi~on 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 D
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 E
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 F
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
•~solving the difference between the two Judges constituting the Division
Bench but the said Travancore - Cochin Act was applicable only to the G
"";twhile 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 H
1108 SUPREME COURT REPORTS [2002] 3 S.C.R.

A resolve the difference of opinion between two Judges both on question of
fact and law by referring the case for the 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.

B 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
C 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 refer,ence
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
D 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
coµrt in accordance with Sub-section (2) of section 98 of the Code.

12. Senior learned counsel Shri. R.F. Nariman very strenuously urged
E that the two learned judges in taking the above view and confinning the
decree of the subordinate court committed a grievous mistake of law in
holding that clause 36 of the lette·rs 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 almo~t on every point or issue arising in the case and the point
F 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
G High Court for decision of the case accordingly.

13. The learned senior co.unsel 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
H High Court was saved as a procedure on 'Jurisdiction' of the High Court at
P.V. HEMALAT\-11\ "- KATTAMKANDI PUTHIYA MALIACKAL SAHEEDA [DHARMADHlKARl, J.J} }Q9

least in relation to the territory earlier falling within the erstwhile Madras A
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 B
Code. The learned Judges of the Kerala High Court forming the Division
Bench, it is argued, co1i11nittcd 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 lauyers v. Angha Nathu Jamal (dead) by la~:vers, [1969]
3 SCC 813 and lttavira Mathai v. Varkey Varkey, [1964] I SCR 495. In C
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 D
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 E
an existing State."

14. Learned counsel appearing for the petitioner argued that Section 52
of 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 F
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 G
placed on the decision in case of M.l. Sethi v. R.P. Kapur, [1973] I 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 coat of 111any colours. Jurisdiction originally seems
to have had the meaning which lord Reid ascribed to it in Anisminic ltd. v. H
I I 10 SUPREME COURT REPORTS (2002] 3 S.C.R.

A Foreign Compensation Commission, namely the entitlement "to enter upon
the enquilJ' 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
B 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
C 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 fonning part of the erstwhile State of Madras did not fall
within the territorial jurisdiction of Travancore - Cochin High Court and
D 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
E 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 9 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
F 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
G 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
H the newly formed State of Kerala in 1956 and governed by Kerala Act. The
r.v. HEMALATHA \'. KATTAMKANDI PUTHIYA MALIACKAL SAHEEDA (DHARMADHfKARI, J.Jl l t I

said High Court does not have any Letters Patent-it being not a Chartered A
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
1espondent very strong reliance has been placed on two Judges Bench decision B
of this Court in the case of Te} Kaur v. Kirpal Singh, [ 1995] 5 SCC 119 in
which a similar situation Supreme Court held that the provision of Sub-
section (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, the judgment
of subordinate court is liable to be confirmed. c
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; lhe
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 D
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) ofS.R. Act of 1956 meaning the
State of Travancore-Cochin alone, would apply to the new State of Kerala. E
On such interpretation of the provisions of Section 54 and 57, it is submitted
that since High Court of State of Travanccire-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 F
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 G
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
A 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 H
1112 SUPREME COURT REPORTS [2002] 3 S.C.R.

A 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
a
the law in relation to 'jurisdiction' applicable to part of territory of the new
B State earlier governed by jurisdictional law of erstwhile High Court should
be given a restricted meaning and not a wide meaning a.s 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
C 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
D ·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
E 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. l.l 1.56, 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 I of
F 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 on the subject of 'jurisdiction' of High Courts
G 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 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
H extends to the territories of the High .court of new State, 'original, appellate
r_v_ HEMALATHA ,., KATTAMKANDI PUTHJYA MALIACKAL SAllEEDA (Dl-IARMADHIKARI. J.Jl 113

and other jurisdiction' which was exercisabJe in respect of that part of the· A.
territories by any High Court or Judicial Con1missioner'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 B
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 C
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 D
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:
E
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. " F
"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 Kera/a,
the existing State of Travancore-Cochin."
G
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 H
1114 SUPREME COURT REPORTS [2002] 3 S.C.R.

A 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."

B 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.
C 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
D Legislature or other authority having power to make such provision".

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
E '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
F 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.
G
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 -4.
result would ensue which. according to us can never have been intended by
H the Legislature which was enacting a transitory provision to lay down a
P.V. HEMALATHA 1·. KATTA~·1KANDI PUTHIYA MALIACKAL SAHEEDA [DHARMADHIKARI, .1.11 J 15

uniform procedure for all the integrating territories of the High Court of a 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 B
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 Jaws would apply.
Such result is avoided by legislature in 1naking suitable provisions on 'practice
and procedure' in Section 54 'powers of Judges' in Section 57 of the S.R. C
Act I 956. Our reading of Section 54 of the S.R. Act 1956 is that the Jaw 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 D
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 Jaw on
E
'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 ifthe 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 Jaw would have overriding effect.
In the light of the Scheme contained in all the provisions under Part V of the F
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.
G
26. Thus, the Travancore-Cochin Act was applicable to the new High
Court of Kerala only between the period I. I I. I 956 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 H
1116 SUPREME COURT REPORTS [2002] 3 S.C.R.

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

B 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
C the proviso thereunder. Section 23 of the Travancore - Cochin Act reads as
under :-

"23. Reference by ChiefJustice - 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
D 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
E enables judges forming a Division Bench who had differed and delivered
sep"arate 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.
F 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
G 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
H involves a question of law they may order that the matter .or question
l'.V. HEMALATHA 1·. KATTAMKANDI rUTl!!YA 'vlAU,\\KAL S1\llEEDA /DHARMADHIKARI. J.JJ J J 7
of law may be referred to a full Bench: A
(I) any matter in respect of which the power of the High Court can
be exercised by a single Judge.
(2) An appeal-

(a) fro1n a decree or order of a civil court, except those coming B
under S.3.,

(b) fro1n the judg111ent of a crin1inal 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- c
( 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.
,, D

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:- E
"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. Sub1nission 111ade on con1paring Section 23 of the Travancore-
Cochin Act and section 4 of the Kerala Act read with Section 9 of the latter
F
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 Kera la Act
. The submission therefore, is that the judges of the Division Bench of the G
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 Ji1dge.

31. The above argument advanced is attractive but cannot be accepted
for another reason. In our view, the law contained in the Travancore - Cochin l-1
1118 SUPREME COURT REPORTS [2002] 3 S.C.R.

A 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 an 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
B refe1'ence any differing judges who have delivered separate Judgments opinions
to third judge on 1:~sues 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 ~---

c approach should be "to find out which of the two apparently con"tlicting
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
D resolving a conflict between two different Acts and in the construction of
statutory rules and statutory orders. (See principles of statutory Interpretation- r-
Seventh Edition, 1999 by Justice G. P Singh Page 113- I I 4) 'y

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 -:"-ct and are
E
applicable to the High Court of new State ofKerala, 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
F 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
G 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 r
H

~
P.V. HEMALATHA 1'. KATTAMKANDI PUTlllYA MALIACKAL SAllEEDA [DHARMADHIKARI. J.Jl J J 9

law', it has to give place to Section 98 of the Code of Civil Procedure which A
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
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 B
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 C
Latin word 'I iterate 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 D
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
1nanner as the others are in th.e 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
E
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 F
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. !/)pages 317 - 318 under the Headings' "Irish, Indian and
Overseas Courts]

36. Undisputedly, High Court of Kerala is not a Chartered High Court G
and was not a Court in British India. It was a High court established after
formation of the new State of Kerala in I 956 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 H
1120 SUPREME COURT REPORTS [2002] 3 S.C.R.

A 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
B 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 I 956 in any other laws.

C 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 Cou1t 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
D 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
E 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.

F 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
G constitution of India so that the correctness of the two conflicting judgments
of the Division Bench may be examined. t·

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
H in the part of the plaintiff to seek Specific Performance of the Contract for
,,.._

.,
r.v. MEMALATHA ,. KATTA/\.·lKAND! PUTlllYA /\.1A!.IACK.'\I. SAHEEDA IDHARMADHIKARI. J.Jl l 21

sale of two theatres the suit was liable to be dismissed in accordance with the A
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
!egis through the Receiver appointed by the court the suits could not have
been filed \Vithout obtaining leave of the Court. As we have found that the
B

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 C
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 D
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 E
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 waf) observed that "while exercising power under Article
136 the Court should not do any thing which would violate legislative
mandate." F

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.
G
K.K.T. Petitions dis1nissed.
)