Holding

Section 23 of the Travancore‑Cochin High Court Act remains unaffected by the Kerala High Court Act and, being a special provision, overrides Section 98(2) of the CPC.

Summary

The Supreme Court examined whether Section 23 of the Travancore‑Cochin High Court Act, which provides that a Chief Justice must refer a matter to a third judge when two judges of a division bench disagree, survives the repealing provision of Section 9 of the Kerala High Court Act and whether it is a special provision that overrides Section 98(2) of the Code of Civil Procedure (CPC). The Court held that Section 23 remains in force, is a special law for the Kerala High Court, and therefore prevails over the general provision of Section 98(2) CPC. Consequently, the earlier decision in P.V. Hemalatha’s case was overruled. The reference made to a larger bench was disposed of, and no further order was required under Articles 136 or 142 of the Constitution.

Issues considered

Whether Section 23 of the Travancore‑Cochin High Court Act is repealed by Section 9 of the Kerala High Court Act.
Whether Section 23 is a special provision that displaces Section 98(2) of the CPC.
Whether the Supreme Court can, under Articles 136 and 142, direct a reference to a third judge in such appeals.

Legislation cited

Code of Civil Procedure, 1908s. 117, s. 120, s. 122, s. 125, s. 129, s. 4(1), s. 96, s. 98(2), s. 98(3)
Code of Criminal Procedure, 1973s. 392
Kerala High Court Act, 1958s. 4, s. 9
Limitation Acts. 29(2)
States Reorganisation Act, 1956s. 49(2), s. 5, s. 52, s. 54
Travancore‑Cochin High Court Act, 1125s. 23

Subjects

Section 23Section 98Special vs general lawHigh Court ActsReference by Chief JusticeDifference of opinionCPC interpretationLetters PatentStatutory repealAppellate procedure

Judgment

(2016] 3 S.C.R. 1018
l

A PANKAJAKSHI (DEAD) THROUGH LRS. & OTHERS
v.
CHANDRIKA & OTHERS
(Civil Appeal No. 20 I of2005)
B 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.
c 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
D 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
E
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
F 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.
G
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
H
1018
PANKAJAKSHI (DEAD) THROUGH LRS. & OTHERS v. 1019
CHANDRIKA & OTHERS

by the repealing provision of Section 9 of the Kerala High Court A
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·
B
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 c
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
D
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 Travancore- E
Cochin 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 F
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) G
(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 H
1020 SUPREME COURT REPORTS [2016] 3 S.C.R.

A 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
B
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
c 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
D not refer to the very .provision that is sought to be excluded but
it was enough if the subject matter at hand is referred to and that
therefore it is not necessary for any provision in the Code of
Civil Procedure to expressly refer to Section 23 of the Travancore-
Cochin High Court Act, but that it would be enough that on a
reading of the said provision it would be clear that the particular
E 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 Travancore-
Cochin High Court Act .. This cannot be done as it would be in the
teeth of the Constitution Bench judgment in **Sathappan's case.
F 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
G 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
H happen, in such -appeals before the High Court of Kerala, if there
PANKAJAKSHI (DEAD) THROUGH LRS. & OTHERS v. 1021
CHANDRIKA & OTHERS

is a difference of opinion between two Judges hearing such appeals A
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
B
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 c
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 D
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 E
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 F
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
G
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 H
1022 SUPREME COURT REPORTS [2016] 3 S.C.R.

-·
A 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
B
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
c 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
D 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
E 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
F 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
G 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
H not established b~ any Letters Patent, would be so governed.
PANKAJAKSHI (DEAD) THROUGH LRS. & OTHERS v. 1023
CHANDRIKA & OTHERS

This again would lay down two different rules for different sets of A
High Courts depending upon a wholly irrelevant circumstance-
whether their Charter originated in the Letters Patent or in a
statute. Here again the acceptance of 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)
B
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) c
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
D
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 ; E
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;
F
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 G
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 overruled Para 51
(2004) 11 sec 672 referred to Para4 H
1024 <;! JPREME COURT REPORTS [201613 S C'.R.

A 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
affected the purpose for which the matters are required to be
F 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
G in situations where Section 98 (2) without proviso operates, it
virtually becomes a decision of the Single Judge since the differing
view is only to be ignored. When the Judges hearing the appeal
differ in opinion on a point of law, under the proviso,the said point
of law has to be heard by one or more of other Judges and The
appeal be decided according to the opinions of the majority of
H
PANKAJAKSHI (DEAD) THROUGH LRS. &. OTHERS v. 1025
CHANDRIKA & OTHERS

the Judges who have heard the appeal, including at the initial A
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
8
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 c
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 D
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] E
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 F
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. G

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: H
1026 SUPREME COURT REPORTS [2016] 3 S.C.R.

A 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
B of this Court.
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
c 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
D 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
E 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.''

F 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
G 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.
H
PANKAJAKSHI (DEAD) THROUGH LRS. & OTHERS v. 1027
CHANDRIKA & OTHERS [R. F. NARIMAN, J.)

(supra) to the extent it takes a contrary view, in our opinion, A
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 B
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:
c
(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 D
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:- ·· E
"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. F
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.
G
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.
201 of 2005 has been referred to a Bench of 5 Judges. H
1028 SUPREME COURT REPORTS [2016) 3 S.C.R.

A 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.
4. The matter may be placed before the Chief Justice for
appropriate administrative order in this regard."
B 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
c 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
D 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 Travancore-
Coch in Act and Section 4 of the Kera la Act read with Section 9
E 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
F 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.

G 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
H applicable to appeals from the Code of Civil Procedure regulated
PANKAJAKSHI (DEAD) THROUGH LRS. & OTHERS v. 1029
CHANDRIKA & OTHERS (R. F. NARIMAN, J.)

, by special law that is contained in Sections 96 to 98 of the Code. A
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 B
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 c
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 ofStatutory Interpretation by Justice D
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 E
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.
F

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 G
Act are not Letters Patent of the High Court and therefore they
cannot be held to have been saved under the provisions of sub-
section (3) of Section 98 of the Code. It is interesting to note that
provision similar to Section 98(2) of the Code of Civil Procedure,
1908 and proviso thereunder has been on the statute-book in
H
1030 SUPREME COURT REPORTS [2016] 3 S.C.R.

A 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
B
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
c 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
D
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.
E 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
F 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
G 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
H
Procedure itself. Section 98 was directly held not to be such specific
PANKAJAKSHI (DEAD) THROUGHLRS. & OTHERS v. 1031
CHANDRIKA & OTHERS [R. F. NARIMAN, J.]

provision to the contrary in the Privy Counci Ijudgment and therefore it A
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
B
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 c
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
D
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 E
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 F
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 G
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 H
1032 SUPREME COURT REPORTS [2016] 3 S.C.R.

A 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
B
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
c 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.
D
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
E (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.

F (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.
G 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
H decisions of such Court.
PANKAJAKSHI (DEAD) THROUGH LRS. & OTHERS v. 1033
CHANDRlKA & OTHERS [R. F. NARIMAN, J.]

(2) An appeal may lie from an original decree passed ex parte. A
(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,
B
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 c
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:
D
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 E
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. F,
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.
Section 120 - Provisions not applicable to High Court in G
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.
H
1034 SUPREME COURT REPORTS [2016] 3 S.C.R.

•
A Section 121 - Effect of rules in First Schedule
The rules in the First Schedule shall have effect as if enacted in
the body of this Code until annulled or altered in accordance with
the provisions of this Part.
Section 122 - Power of certain High Courts to make rules
B 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.
c 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
D
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 -
E
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;
F 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
G
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 Judges-
A Division Bench consisting of two Judges of the High Court, is
empowered:
H
PANKAJAKSHI (DEAD) THROUGH LRS. & OTHERS v. 1035
CHANDRIKA & OTHERS [R. F. NARIMAN, J.]

(i) to hear and decide appeals against orders passed by a single A
Judge under sub-clause (A) (X) of clause (4) of Section 20: to
hear and decide appeals against judgments passed by a single
Judge under sub-clause (c) of clause (4) ofSection 20 where the
Judge who passed the Judgment declares that the case is a fit one
for appeal and to hear and decide applications or appeals or other
B
proceedings that a single Judge may refer under Section 20;
(ii) (a) to hear and decide all appeals, civil and criminal, preferred
from the decrees, orders, convictions or sentences of the civil and
criminal courts where the same are allowed by law.
(b) to hear and decide all appeals preferred from such orders as c
are provided in Section 104 of the Civil Procedure, 1903, of a
single Judge of the High Court passed in exercise of the original
jurisdiction;
(c) to hear and decide all appeals preferred against convictions
or sentences and orders of acquittal passed by a single Judge of D
the High Court in the exercise of original jurisdiction:
(iii) to transfer on its own motion civil or criminal cases from one
court to another;
(iv) to dispose of references made by the subordinate courts in
non-appealable civil cases, and to revise on its own motion or E
otherwi~e, the proceedings of the civil courts in non-appealable
cases;
( v) to revise convictions or sentences or orders passed by
subordinate criminal courts in cases called up by the High Court
on its own motion and to pass orders on references made by F
subordinate criminal courts;
(vi) to hear and d.etermine applications under Section 491 of the
Code of the Criminal Procedure, 1898; and
(vii) to pass orders on a!l petitions and applications, civil or criminal
not falling under any of the preceding clauses. G

Section 23:- Reference by Chief Justice-
Where two Judges forming a Division Bench agree as to the
decree, order or sentence to be passed, their decision shall be
final. But if they disagree, they shall deliver separate judgments
H
1036 SUPREME COURT REPORTS [2016] ~ S.C.R.

A and thereupon the Chief Justice shall refer, for the opinion of
another Judge, the matter or matters on which such disagreement
exists, and the decree, order or sentence shall follow the opinion
of the majority of the judges hearing the case."
Kerala High Court Ad, 1958.
B Preamble-
--,.

WHEREAS it is expedient to make provision regulating the
business and the exercise of the powers of the High Court of the·
State of Kerala.
BE it enacted in the Ninth Year of the Republic of India as
C follows:-
Sec,ion 2 - Definition
In this Act, "High Court" means the High Court of the State of
Kera la.
Section 4 - Powers of a Bench of two Judges
D
The powers of the High Court in relation to the following matters
may be exercised by a Bench of two Judges, provided that.if both
Judges agree that the decision involves a question of law they
may order that the matter or question oflaw be referred to a Full
Bench:-
E (!)Any matter in respect of which the powers of the High Court
can be exercised by a single Judge.
(2) An appeal-
( a) from a decree ororder of a Civil Court, except those coming
F under section 3;
(b) from the judgment of a Criminal Court in which a sentence of
death or imprisonment for life has been passed on the appellant or
on a person tried with him.
(3) A refererice-
G
(a) under s~ction 113 of the Code of Civil Procedure, 1908;
(b) under section 307, section 374 or section 432 of the Code of
Criminal Procedure, 1898.
(4) An application unde(Rille 2 of Order XLV of the First Schedule
.H to the Code of Civil Procedure, ·1908. ..,,,.
PANKAJAKSHI (DEAD) THROUGH LRS. & OTHERS v. 1037
CHANDRIKA & OTHERS [R. F. NARIMAN, J.]

(5) An application for the exercise of the powers conferred by A
section 491 of the Code of Criminal Procedure, 1898 or by clause
(I) of article 226 of the Constitution oflndia where such power
relates to the issue of a writ of the nature of habeas corpus.
(6) An appeal from any original judgment, orderer decree passed
by a single Judge. B
(7) All matters not expressly provided for in this Act or in any
other law for the time being in force.
Section 9 - Repeal
The provisions of the Travancore Cochin High Comt Act, 1125 (5
c
of 1125) in so far as they relate to matters provided in this Act,
shall stand repealed.~' .
8. Before proceeding to resolve the controversy at hand, it first
needs to be stated that Section 9 of the Kerala High Court Act, 1958, set
out hereinabove, repeals the provisions of the Travancore-Cochin High
Court Act, insofar as the said Act relates to matters provided in the D
Kerala High Court Act. Though Mr. Viswanathan sought to urge to the
contrary, ultimately it was common ground between the parties that there
is no provision corresponding to Section 23 of the Travancore-Cochin
High Court Act in the Kerala High Court Act, 1958 and that therefore
the said provision continues in force, not having been repealed by Section E
9 of the Kerala High Comt Act, 1958.
9. Shri Viswanathan's first submission requires us to set out Section
20(1) of the 1951 amendment to the Code of Civil Procedure. The said
Section reads as follows:-
"20. Repeals and Savings.- F

( I) If immediately before the date on which the said Code comes
into force in any Part B State, there is in force in that State any
law corresponding to the said Code, that law shall on that date
stand repealed:
G
Provided that repeal shall not affect-
( a) The previous operation of any law so repealed or anything
duly done or suffered thereunder, or
(b) Any right, privilege, obligation or liability acquired, accrued or
incurred under any law so repealed, or H
1038 SUPREME COURT REPORTS [20 I 6] 3 S.C.R .

A . (c) Any investigation, legal proceeding or remedy in respect of
any such right, privilege, obligation, liability, penalty, forfeiture or
punishment as aforesaid and any such investigation, legal
proceeding or remedy may be instituted, continued or enforced,
and any sucli penalty, forfeiture or punishment may be imposed
B as if this Act has not been passed."

I 0. Travancore-Cochin was a princely state till the year 1956.
The Constitution oflndia as originally enacted referred to princely states
as Part B states. Apart from Travancore-Cochin, there were 7 other
princely states which got assimilated into India by the Constitution. Prior
c to 1951, the Code of Civil Procedure did not extend to these princely
states as even the Adaptation of Laws Order of 1950 did not extend the
Code of Civil Procedure to Part B States. The 1951 amendment to the
Code of Civil Procedure, for the first time, applied the Code o(Civil
Procedure to Part B States, ·and as a consequence repealed any law
which corresponded to the Code of Civil Procedure in Part B States ...
D According to'iShri Viswanathan, the Travancore-Cochin High Court Act,
being a law corresponding to the Code of Civil Procedure, was repealed,
and Section 23, being· a part of the said High Court's Act, would also
therefore stand repealed. For this purpose Shri Viswanathan relied upon
several authorities. First he relied upon Krisha~ Prasad Gupta v.
E Controller, Printing & Stationery, (1996) I SCC 69 to buttress this
submission. In this judgment, this Court had to consider Section 28 of
the Administrative Tribunals Act, which stated that authorities constituted
under the Industrial Disputes Act or any other corresponding law forthe
time being in force, were exempted from the provisions of Section 28. In
construing the expression ''any other corresponding law" this Court relied
F upon a New Zealand judgment and observed as follows:-
"The word 'corresponding' is defined in Shorter Oxford
Dictionary as "answering to in character and function; similar to."
This meaning has been adopted in Winter v.Ministry of
Transport [ 1972 NZLR 539] in which it ·has been observed as
under:
"We read 'corresponding' in Section 20-A as including a new
section ~ealing with the same subject-matter as the old one, in a
ma11ner or with a result not so far different from the old as to
strain the accepted meaning of the word 'corresponding' as given
H in the Shorter Oxford English Dictionmy- 'answering to in
PANKAJAKSHI (DEAD) THROUGH LRS. & OTHERS v. 1039
CHANDRIKA & OTHERS [R. F. NARIMAN,.J.]

character and function; similar to'. The new (section) answers to A
the old one •.. in character and function; it is similar in purpose,
prescribes.the same thing to be done, and is designed to produce
the same result. We hold it to be a 'coJTesponding' section."
(See Words & Phrases, 3rd Edn., Vol. I)
Our conclusion, therefore, is irresistible that the 'Authority', B
constituted under Section 15 and the appellate authority under
Section 17 of the Payment of Wages Act, fall within the exception
indicated in Section 28 of the Administrative Tribunals Act and
this Act, namely, Payment of Wages Act, is positively covered by
the connotation "corresponding law" used in that section.
Consequently, the jurisdiction of the Authority to entertain and
c
decide claim cases under Section 15 of the Payment of Wages
Act is not affected by the establishment of the Administrative
Tribunals." [at paras 37 and 38]
The test laid down in this decision for a law to correspond to another is
whether it deals essentially with the same subject matter as was dealt
with by the old law.
11. Similarly, in A.B. Abdulkadir & Others v. The State of
Kerala & another [1962] Suppl. 2 SCR 741, this Court dealt with
Section 13(2) of the Finance Act which provided that on and from
1.4.1950, any law corresponding to the Central Excise and Salt Act, . E
1944 will stand repealed from that date. What had to be determined is
whether the Cochin Tobacco Act had been so repealed.
~

12. In arriving at the.conclusion that the said Act had been so
repealed, this Court held that the main object and purpose of both Acts
being the same, namely to provide for control on tobacco from the time F
it is grown till the time it reaches the ultimate seller, and the fact that
both Acts levied an excise duty on to'bacco, albeit in completely different
ways, the Cochin Act was said to correspond with the Central Excise
Act in that the main object and purpose of both Acts was in substance
the same, and they both dealt with the same subject matter, namely, G
control of the tobacco trade and the levying of excise duty on tobacco.
13. Similarly, in The Custodian of Evacuee Property,
Bangalore v. Khan Saheb Abdul Shukoor, etc. [ 1961] 3 SCR 855,
the question before this Court was whether a later Mysore Act had
been repealed by an earlier Mysor~ Act. It was held by this Court, that H
1040 · SUPREME COURT REPORTS (2016] 3 S.C.R.

A as both Acts dealt with evacuee property, the fact that the scheme under
the second Act was different from the first would make no difference
as the subject matter that was dealt with was in substance the same.
14. Applying the test laid down by the aforesaid decisions of this
Court, namely, that the subject matter of the two statutes must essentially
B be the same and/or that the main object and purpose of the statutes
should be substantially similar, we find that the Travancore-Cochin High
Court Act formed the Charter for jurisdiction to be exercised by the said
High Court. This jurisdiction is exercised not only in civil matters but
criminal and other matters as well. The main object and purpose of the
Travancore-Cochin Act is to lay down the jurisdiction and powers of the
c High Court that was established in the said State. On the other hand,
the subject matter of the Code of Civil Procedure is to lay down procedure
in all civil matters, and no others. Also, the said Code would apply to all
courts which deal with civil matters, subject to the exceptions contained
therein, and not only the High Court. For this reason, it is difficult to say
D that the Code of Civil Procedure corresponds to the Travancore-Cochin
High Court Act. Shri Viswanathan 's first contention must therefore fail.
15. Shri Viswanathan also relied upon two High Court judgments
to buttress his submission that the Travancore-Cochin High Court Act
had been repealed by the introduction of the Code of Civil Procedure in
E 1951. He relied upon Jelejar Hormosji Gotla v. The State of Andhra
Pradesh, AI~ 1965 AP 288, in which the AndlJra Pradesh High Court
held that with the coming into force of Section 80 of the Code of Civil
Procedure, the Hyderabad Suits against Government Act stood
.repealed. He also relied upon Gurbinder · Singh and Others v.
Lal Singh and Others, AIR 1959 P&H 123, whereby it was held
F that Section 49(2) of a Pepsu Ordinance had bee11 repealed by the
introduction of the Code of Civil Procedure by the 1951 Amendment
Act. "
16. Neither of these decisions carries the matter any further. In
the Andhra Pradesh decision, the Hyderabad Act dealt only with civil
G suits against the Government and thus dealt with civil procedure insofar
as it applied to such suits. In the Punjab and Haryana case, the High
Court itself states that the Pepsu Ordinance, which stood repealed, earlier
provided for the civil procedure to be applied in all c;ivil courts in Pepsu.
Both cases; therefore, were cases in which the repealed Act dealt with
the same subject matter as the corresponding law, t~at is civil procedure.
H
PANKAJAKSHI (DEAD) THROUGH LRS. & OTHERS v. 1041
CHANDRIKA & OTHERS [R. F. NARIMAN, J.J

17: We now come to the main argument in this case, which is the A
correct construction of Section 4(1) of the Code of Civil Procedure.
The scheme of Section 4( 1), as its marginal note provides, is to "save"
any special or local law from the applicability of the Civil Procedure
Code. The said Section therefore states that whenever there is a special,
local, or other law which deals with any matter specified in the Code,
B
those laws. will continue to have full force and effect notwithstanding
that they deal with the same matter as is contained ini:he Code of Civil
Procedure. From this, however, an·exception is carved out, and that
exception is that there ·should not be any "specific provision to the
contrary" contained in the Code itself.
18. At one point in time it was not clear as to whether such c
specific provision should be in the Code itself or could also be contained
in any other law. In fact, in Mati Lal Saha v. Chandra Kanta Sarkar
& Others, AIR I 94 7 Cal I, the Calcutta High Court held that such
specific provision to the contrary could be contained in a third Act, namely,
the Presidency Small Causes Courts Act, and need not be contained D
even in th0 two competing Acts, namely the Code of Civil Procedure
and l\ Ber,gal Agricultural Debtors Act.
At this point it is necessary to advert to the pari materia provision
contained in the Criminal Procedure Code. Section I (2) of the Code of
Criminal Procedure, 1898 stated; E
"Section 1. Short title and commencement.
(2) It extends to the whole of India except the State of Jammu
aricCKashmir; but, in the absence of any specific provision to the
contrary, nothing herein contained shall affect any special or local
law now in force, or any special jurisdiction or power conferred, F
or any special form of procedure prescribed, by any other law for
the time being in force, or shall apply-
(a) The Commissioners of Police in the towns of Calcutta, Madras
and Bombay, or the police in the towns of Calcutta and Bombay;
(b) Heads of villages in the State of Madras as it existed G
immediately before the 1st November, 1956; or
(c) Village police-officers in the State of Bombay as it existed
immediately before the I st November, 1956;
Provided that the State Government may, if it thinks fi!, by
H
1042 SUPREME COURT REPORTS [2016] 3 S.C.R.

A notification in the Official Gazette, extend any of the provisions of
this Code, with any necessary modifications, to such excepted
persons.
In 1973, however, the new Code of Criminal Procedure repeated
the same provision in Section 5 as under:
B "Section 5 - Saving
Nothing contained in this Code shall, in the absence of a
specific provision to the contrary, affect any special or local law
for the time being in force, or any special jurisdiction or power
conferred, or any special form of procedure prescribed, by any
c other law for the time being in force."
It will be noticed that Section 1(2) of the old Code corresponds
almost exactly to Section 4(1) of the Code of Civil Procedure. The change
in phraseology in Section 5 clarifies that what was intended was that the
specific provision to the contrary should only be contained in the Code
D itselfand nowhere else. Taking note of the legislative scheme contained
in the Code of Criminal Procedure, we have no doubt in construing Section
4( I) to say that the specific provision to the contrary must be contained
in the Code of Civil Procedure itself and nowhere else.
19. The next inquiry that needs to be made is what is the meaning
E of the expression "specific provision to the contrary". In Maru Ram v.
Union oflndia and others, (J 981) I SCC I 07, a Constitution Bench
dealt with the pari materia provision to Section 4(1) of the Code of Civil
Procedure contained in Section 5 of the Code of Criminal Procedure.
This Court relied upon the Lahore High Court and the Allahabad High
Court to explain what is meant by "specific provision". This Court held:-
F
"Section I (2) of the Criminal Procedure Code, 1898, is the previous
incarnation of Section 5 of the Present Code and coi1tains virtually
the same phraseology. The expression "specific provision to the
contrary" in the Code of 1898 was considered in the two Full
Bench decisions (supra). The setting in which the issue was raised
G was precisely similar and the meaning of "specific provision to
the contrary" was considered by Young, C.J., in the Lahore case
where the learned Judge observed: [AIR 1940 Lah 129, 133]
"The word 'specific' is defined in Murray's Oxford Dictionary
as 'precise or exact in respect of fulfilment, conditions or terms;
H definite, explicit'."
PANKAJAKSHI (DEAD) THROUGH LRS. & OTHERS v. 1043
CHANDRIKA & OTHERS [R. F. NARIMAN, J.]

In a similar situation, the same words fell for decision in the A
Allahabad case where Braund, J., discussed the meaning of
"specific provision" in greater detail and observed: [AIR 1940 All
263,269]
"I have, I confess, ente11ained some doubt as to what exactly
the words 'specific provision' mean. I think first, that they must B
denote something different from the words 'express provision'.
For a provision of a statute to be an 'express' provision affecting
another statute or part of it, it would have, I think, to refer in so
many words to the other statute or to the rel.evant portion of it and
also to the effect intended to be produced on it. Failing this, it
could hardly, be said to be 'expre~s' .... But the word 'specific' C
denotes, to my mind, something less exacting than the word
'express'. It means, I think, a provision which 'specifies' that some
'special law' is to be 'affected' by that particular provision. A
dictionary meaning of the verb 'to specify' as given in Murray's
New English Dictionary, is 'to mention, speak of or name D
(something) definitely or explicitly; to set down or state
categorically or particularly.... ' and a meaning of the adjective
'specific' in the same dictionary is 'precise ... definite, explicit ...
exactly named or indic_ated, or capable of being so, precise,
particular'. What I think the words '_specific provision' really mean
therefore is that the particular provision of the Criminal Procedure E
Code must, in order to 'affect' the 'special ... law' ,-clearly indicate,
in itself and not merely by implication to be drawn from the statute
generally, that the 'special law' in question is to be affected without
necessarily referring to that 'special law' or the effect on it intended
to be produced in express terms. Lord Hatherley in ( 1898) 3 AC F
933 at p. 938 [Thomas Chai loner v. Henry WF Bolikow, (1878) 3
AC 933] has defined the word 'specific' in common parlance of
language as meaning 'distinct from general' .... It would, no doubt,
be possible to multiply illustrations of analogous uses of the words
'specify' and 'specific'. But this is I think sufficient to show that,
while requiring something less than what is 'express', they G
neve11heless require something which is plain, certain and
intelligible and not merely a matter of inference or implication to
be drawn from the statute generally. That, to my mind, is what is
meant by the word 'specific' in Section I (2) CPC .... "
H
1044 SUPREME COURT REPORTS [2016] 3 S.C.R.

A In an English case [Re Net Book Agreement, 1957, (J 962) 3 All
ER 751 (RPC)] Buckle)) J., has interpr~ted the word 'specific' to
mean explicit and definable. While Indian usage of English words,
often loses the Atlantic flavour and Indian Judges owe their fidelity
to Indian meaning of foreign words and phrases, here East and
West meet, and "specific" is specific enough to avoid being vague
B
and general. Fowler regards this word related to the central notion
of species as distinguished from genus and says that it is "often
resorted to by those who have no clear idea of their meaning but
hold it to diffuse an air of educated precision". [Fowler's Modern
English Usage, 2nd Edn., p. 574] Stroud [ Stroud's Judicial
c Dictionary Vol 4, 3rd Edn., p. 2836] says "specifically ... " means
"as such". Black [ Blacks Law Dictionary 4th Edn., p. 1571]
gives among other things, the following meaning for "specific":
definite, explicit; of an exact or particular nature ... particular;
precise. While legalese and English are sometimes enemies we
have to go by judicialese which is the draftsman's lexical guide.
D
The contrary view in the Biram case [( 1976) 3 SCC 4 70 : 1976
SCC (Cri) 428 : 1976 Supp SCR 552] is more assertive than
explanatory, and ipse dixit, even if judicial, do not validate
themselves. We are inclined to agree with the opinion expressed
in the Lahore and Allahabad cases. [Biram Sardar v. Emperor,
E AIR 1941 Born 146 - [AIR 1939 PC 47: 1939 lA 66: 40 Cri LJ
364] A thing is specific if it is explicit. It need not be express. The
antithesis is between "specific" and "indefinite" or "omnibus" and
between "implied" and "express". What is precise, exact, definite
and explicit, is specific. Sometimes, what is specific may also be
F special but yet they are distinct in semantics. From this angle, the
Criminal Procedure Code is a general Code. The remission rules
are special laws but Section 433-A is a specific, explicit, definite
provision dealing with a particular situation or narrow class of
cases, as distinguished from the general run of cases covered by
Section 432 CrPC. Section 433-A picks out of a mass of
G imprisonment cases a specific class of life imprisonment cases
and subjects it explicitly to a particularised treatment. It follows
that Section 433-A applies in preference to any special or local
law because Section 5 expressly declares that specific provisions,
if any, to the contrary will prevail over any special or local law.
We have said enough to make the point that "specific" is specific
H
PANKAJAKSHI (DEAD) THROUGH LRS. & OTHERS v. 1045
CHANDRIKA & OTHERS [R. F. NARIMAN, J.]

enough and even though "special" to "specific" is near allied and A
"thin partition do their bounds divide" the two are different. Section
433-A escapes the exclusion of
Section 5. [at paras 35 - 38]
20. Thus, "specific provision" must mean that the particular
provision in the Code of Civil Procedure must clearly indicate in itself B
and not merely by implication that the special law in question is to be
affected. It is important to note that one of the meanings of the word
"specific" is that it is distinct from something that is general. In Marn
Ram's case, Section 433A of the Code of Criminal Procedure, 1973,
was challenged as being against various provisions of the Constitution.
That challenge was repelled by this Court. Section 433-A begins with a c
12011 obstante clause specifically dealing with a particular situation, that
is, where a sentence of imprisonment for life is imposed in certain
circumstances, then notwithstanding the commutation power contained
in Section 433, such person is not to be released from prison unless he
has served at least 14 years of imprisonment. In applying Section 5 of D
the Code of Criminal Procedure, 1973 to Section 433A, great emphasis
was placed on the 11011 obstante clause contained in Section 433A, and
it was ultimately held that Section 433A picks out of a mass of
imprisonment cases a specific type of case - namely, life imprisonment
cases and subjects such cases explicitly to a particula_rized treatment. It
was for this reason that Section 433-A was held to be a specific provision E
to the contrary to the Prison Rules which were subsumed in the general
provision contained in Section 432 of the Code ofCriminaI Procedure,
1973.
21. It is in this primary sense that the expression "specific
provision" is used in Section 4(1) of the Code of Civil Procedure because, F
as we have seen above, it carves out an exception to special, local, or
other laws which deal with the same subject matter as the Code of Civil
Procedure but get overridden by the Code of Civil Procedure.
22. Viewed in this perspective, we have to discover whether the
various provisions of the Code of Civil Procedure referred to by Shri G
Viswanathan can be said to be "specific provisions to the contrary" for
the purpose of Section 4( 1) of the Code of Civil Procedure.
23. Section 117 is a general provision which applies the Code to
the High Courts of this country. Similarly, Section 120 is another general
provision which states that Section 16, 17 and 20 of the Code do not H
1046 SUPREME COURT REPORTS [2016] 3 S.C.R.

A apply to the High Courts in exercise of their original civil jurisdiction.
Sections 122, I 25 and I 29 equally are general provisions and not specific
to the case at hand, namely, what is to happen if two Judges hearing an
appeal differ with each other. This leaves Section 98, which will be
dealt with a little later in this judgment.
B 24. Shri Viswanathan also re!'.~CI ttpon a Division Bench judgment
of this Court in Kulwant Kar- and Others v. Gurdial Singh Mann·
(dead) by LRS and Others, (2001) 4 SCC 262, to submit that this
decision is an authority for the proposition that there is no need to expressly
refer to a local law when the legislative intent to repeal local laws
inconsistent with the Code of Civil Procedure is otherwise clear.
c
The judgment in Kuhvant Kaur's case raised a question which
arose on an application of Section 41 of the Punjab Courts Act, 1918.
This Section was couched in language similar to Section 100 of the Code
of Civil Procedure as it existed before the Code of Civil Procedure
(Amendment) Act, 1976, which amended Section I 00 to make it more
D restrictive so that a second appeal could only be filed if there was a
substantial question of law involved in the matter. The question this Court
posed before itself was whether Section 41 stood repealed by virtue of
Section 97( I) of the Code of Civil Procedure (Amendment) Act, 1976,
· which reads as under:-
E "97. Repeal and savings
· (I) Any amendment made, or any provision inserted in the principal
Act by a State Legislature or a High Court before the
commencement of this Act shall, except insofar as such
amendment or provision is consistent with the provisions of the
F principal Act as amended by this Act, stand repealed."
This Court concluded that Section 41 of the Punjab Courts Act
was repealed because it would amount to an amendment made or
provision inserted in the principal Act by a State Legislature. This Court
further held that, in any event, Section 41 of the Punjab Courts Act being
G a law made by the Legislature of a State is repugnant to a later law
made by Parliament, namely, Section 97(1) of the Code of Civil Procedure
(Amendment) Act, 1976, and that therefore, by virtue of the operation
of Article 254 of the Constitution of India, the said provision is in any
· case overridden. In arriving at the aforesaid two. conclusions, this Court
held:~
H
PANKAJAKSHI (DEAD) THROUGH LRS. & OTHERS v. 1047
CHANDRIKA & OTHERS [R. F. NARIMAN, J.]

"Now we proceed to examine Section 97( I) of the Amendment A
Act and the amendment of Section I 00 CPC by the said 1976
Act. Through this amendment, right to second appeal stands further
restricted only to lie where, "the case involves a substantial question
of law." ThisJntroduction definitely is in conflict with Section 41
of the Punjab Act which was in pari materia with unamended
B
Section 100 CPC. Thus so long there was no specific provision to
the contrary in this Code, Section 4 CPC saved special or local
law. But after it comes in conflict, Section 4 CPC would not save,
on the contrary its language implied would make such special or
local law inapplicable. We may examine now the submission for
the respondent based on the language of Section I 00( I) CPC ·C
even after the said amendment. The reliance is on the following
words:
"1 QO. ( 1) Save as otherwise expressly provided ... by any other
law for the time being in force .... "
These words existed even prior to the amendment and are D
unaffected by the amendment. Thus so far it could legitimately be
submitted that, reading this part of the section in isolation it saves
the local law. But this has to be read with Section 97(1) of the
Amendment Act, which reads:
"97. (I) Any amendment made, or any provision inse1ted in the E
principal Act by a State Legislature or a High Court before the
commencement of this Act shall, except insofar as such
amendment or provision is consistent with the provisions of the
principal Act as amended by this Act, stand repealed." (Noticed
again for convenience.)
F
Thus language of Section 97( I) of the Amendment Act clearly
spells out that any local law which can be tenned to be inconsistent
perishes, but ifit is not so, the local law would continue to occupy
its field.
Since Section 41 of the Punjab Act is expressly in conflict with G
the amending law, viz., Section 100 as amended, it would be
deemed to have been repealed. Thus we have no hesitation to
hold that the law declared by the Full Bench of the High Court in
the case of Ganpat (AIR 1978 P&H 137 : 80 Punj LR 1 (FB)J
cannot be sustained and is thus overruled." [at paras 27 - 29]
H
1048 SUPREME COURT REPORTS [2016) 3 S.C.R.

A . 25. We are afraid that this judgment does not state the law
correctly on both propositions. First and foremost, when Section 97( I)
of the Code of Civil Procedure (Amendment) Act, 1976 speaks of any
amendment made or any provision inse11ed in the principal Act by virtue
of a State Legislature or a High Court, the said Section refers only to
amendments made and/or provisions inserted in the Code of Civil
B
Procedure itself and not elsewhere. This is clear from the expression
"principal Act" occurring in Section 97( I). What Section 97( I) really
does is to state that where a State Legislature makes an amendment in
the Code of Civil Procedure, which amendment will apply only within
the four corners of the State, being made under Entry 13 of List III of
c the 7th Schedule to the Constitution oflndia, such amendment shall stand
repealed if it is inconsistent with the provisions of the principal Act as
amended by the Parliamentary enactment contained in the 1976
amendment to the Code of Civil Procedure. This is further made clear
by the reference in Section 97( I) to a High Court. The expression "any
provision inserted in the principal Act" by a High Colll1 has reference to
D
Section .122 of the Code of Civil Procedure by which High Courts may
make rules regulating their own procedure, and the procedure of civil
courts subject to their superintendence, and may by such rules annul,
alter, or add to any of the rules contained in the first schedule to the
Code of Civil Procedure.
E 26. Thus, Kulwant Kaur's decision on the application of Section
97( 1) of the Code of Civil Procedure Amendment Act, is not correct in
law.
27. Even the reference to Article 254 of the Constitution was not
correctly made by this Court in the said decision. Section 41 of the
F Punjab Courts Act is of 1918 vintage. Obviously, therefore, it is not a
law made by the Legislature of a State after the Constitution of India
has come into force. It is a law made by a Provincial Legislature under
Section 80A of the Government of India Act, 1915, which law was
continued, being a law in force in British India, immediately before the
commencement of the Government of India Act, 1935, by Section 292
G thereof. In turn, after the Constitution of India came into force and, by - •
Article 395, repealed the Government of India Act, 1935, the Punjab
Courts Act was continued being a law in force in the territory oflndia
immediately before the commencement of the Constitution oflndia by
virtue of Article 372( I) of the Constitution oflndia. This being the case,
H Article 254 of the Constitution of India would have no application to
PANKAJAKSHI (DEAD) THROUGH LRS. '& OTHERS v. 1049
CHANDRIKA & OTHERS [R. F. NARlMAN, J.]

such a law forthe simple reason that it is not a law made by the Legislature A
ofa State but is an existing law continued by virtue ofArticle 372 of the
Constitution oflndia. If at all, it is Article 3 72( I) alone that would apply
to such law which is to continue in force until altered Qr repealed or
amended by a competent Legislature or other competent authority. We
have already found that since Section 97(1) of the Code of Civil Procedur~
B
(Amendment) Act, 1976 has no application to Section 41 of the Punjab
Courts Act, it would necessarily continue as a law in force. Shri
Viswanathan's reliance upon this authority therefore does not lead his
argument any further.
28. Shri Viswanathan drew our attention to Section 29(2) of the
Limitation Act which reads thus:-
c
"29. Saving.
(2) Where any special or local law prescribes for any suit, appeal ·
or application a period of limitation different fr011) the period
prescribed by the Schedule, the provisions of section 3 shall apply
as if such period were the period prescribed by the Schedule and D
for the purpose of determining any period oflimitation prescribed
for any suit, appeal or application by any special or lo.cal law, the
provisions contained in sections 4 to 24 (inclusive) shall apply only
in so far as, and to the extent to which, they are not expressly
excluded by such special or local law." E
29. He also referred us to various judgments, namely, Hukumdev
Narain Yadav v. Lalit Narain Mishra, (1974) 2 SCC 133 at page
Nos.146- I 4 7, (para 17), Anwari Basavaraj Patil v. Siddaramaiah,
(1993) I SCC 636, at page 639 (para 8), Gopal Sardar v. Karuna
Sardar, (2004) 4 SCC 252 at page 264 (para 13), which construed the F
expression "expressly excluded" as including something that one can
derive from the scheme and words used in a statute without necessarily
referring to the subject matter at hand specifically.
30. The three decisions cited by him do not carry the matter
much further for the simple reason that the expression "express exclusion" G
is to be gleaned from the special or local law and not from the Limitation
Act. Section 29(2) of the Limitation Act thus differs from Section 4(1)
of the Code of Civil Procedure in a very important respect, namely, that
the specific or express exclusion must be contained in the special or
local law, so far as the Limitation Act, 1963 is concerned, as opposed to
H
1050 SUPREME COURT REPORTS [2016) 3 S.C.R.

A Section 4(1) of the Code of Civil Procedure, where we have to look for
the specific exclusion in the Code of Civil Procedure itself, and not in the.
special or local law. It is for th is reason that the judgments cited by Shri
Viswanathan embarked upon a survey of the scheme of the
Representation of the People Act, 1951, and the West Bengal Land
Reforms Act, 1955, and held that the said Acts were a complete Code
B
dealing with elections to Parliament and to preemptions in the State of
West Bengal, respectively, which expressly excluded Section 5 of the
Limitation Act. In the present case, there is no question of examining the
scheme of the Travancore-Cochin High Court Act to see whether it
contains any provision which expressly excludes the applicability of the
c, Code of Civil Procedure.
31. This brings us to the main contention urged by both parties,
namely, whether the Constitution Bench in Sathappan's case (supra)
concludes the issue in the present case.
32. Since the judgment in Sathappan's case was strongly relied
D upon by both sides, we need to refer to it in a little detail. Sathappan
was a judgment which dealt with the correct interpretation of Section
104 of the Code of Civil Procedure. Section I 04 provides:
"Section I 04 - Orders from which appeal lies
E (1) An appeal shall lie from the following orders, and save as
otherwise expressly provided in the body of this Code or by any
law for the time being in force, from no other orders:--

* * * * * * * *
Provided that no appeal shall lie against any order specified
F in clause (ft) save on the ground that no order, or an order for the
payment of a less amount, ought to have been made.
(2) No appeal shall lie from any order passed in appeal under this
section." [at para 6)
33. The question which arose before this Court was whether
G
Letters Patent Appeals, which were referred to in "any other law for
the time being in force", and therefore outside Section I 04( I), could be
said to be governed by Section I 04(2) which provided that no appeal
shall lie from any order passed in appeal under this Section. After noticing
several earlier judgments of this Court, this Court concluded:-
H
PANKAJAKSHI (DEAD) THROUGH LRS. & OTHERS v. 1051
CHANDRIKA & OTHERS [R. F. NARIMAN, J.]

"Thus the unanimous view of all courts till 1996 was that Section' A
I 04( I) CPC specifically saved letters patent appeals and the bar
under Section I 04(2) did not apply to letters patent appeals. The
view has been that a letters patent appeal cannot be ousted by
implication but the right of an appeal under the Letters Patent can
be taken away by an express provision in an appropriate legislation.
B
The express provision need not refer to or use the words "letters
patent" but if on a readingofthe provisiOl'I it is clear that all further
appeals are barred then even a letters patent appeal would be
·barred." [at para 22] :
This Court then went on to hold:
c
"Thus, the consensus of judicial opinion has been that Section
104( l) of the Civil Procedure Code expressly saves a letters patent
appeal. At this stage it would be appropriate to analyse Section
I 04 CPC. Sub-section (I) of Section I 04 CPC provides for an
appeal from the orders enumerated under sub-section (I) which
contemplates an appeal from the orders enumerated therein, as D
also appeals expressly provided in the body of the Code or by any
law for the time being in force. Sub-section (1) therefore
contemplates three types of orders from which appeals are
provided, namely,
(I) orders enumerated in sub-section (I),
E
(2) appeals otherwise expressly provided in the body of the Code,
and
(3) appeals provided by any law for the time being,in force.
It is not disputed that an appeal provided under the Letters Patent
of the High Cou11 is an appeal provided by a litw for the time
being in force. F
As such ifan appeal is expressly saved by Section 104(1), sub-
section (2) cannot apply to such an appeal. Section 104 has to be
read as a whole. Merely reading sub-section (2) by ignoring the
saving clause in sub-section ( 1) would lead to a conflict between
the two sub-sections. Read as a whole and on well-established
G
principles of interpretation it is clear that sub-section (2) can only
apply to appeals not saved by sub-section (I) of Section 104. The
finality provided by sub-section (2) only attaches to orders passed
in appeal under Section 104 i.e. those orders against which an
appeal under "any other law for the time being in force" :i~.!1.<>!
H
1052 SUPREME COURT REPORTS [2016] 3 S.C.R.

A permitted. Section I 04(2) would not thus bar a letters patent appeal.
Effect must also be given to legislative intent of introducing Section
4 CPC and the words "by any law for the time being in. force" in
Section 104(1). This was done to give effect to the Calcutta,
Madras and Bombay .views that Section I 04 did not bar a Letters
Patent appeal. As appeals under "any other law for the time being
B
a
in force" undeniably include letters patent appeal, such appeals
are now specifically saved. Section I 04 must be read as a whole
and harmoniously. If the intention was to exclude what is
specifically saved in sub-section (I), then there had to be a specific
exclusion. A general exclusion ofthis nature would not be sufficient.
c We are not saying that a general exclusion would never oust a
letters patent appeal. However, when Section 104(1) specifically
saves a letters patent appeal then the only way such an appeal
could be excluded is by express mention in Section I 04(2) that a
letters patent app~al is also prohibited. It is for this reason that
Section 4 of the Civil Procedure Code provides as follows:
D
"4. Savings.--( I) In the absence otany specific provision to the
contrary, nothing in this Code shall be deemed to limit or otherwise
affect any special or local law now in force or any special
jurisdiction or power conferred, or any special form of procedure
prescribed, by or under any other law for the time being in force.
E (2) In particular and without prejudice to the generality of the
proposition contained in sub-section ( 1), nothing in this Code shall
be deemed to limit or otherwise affect any remedy which a
landholder or landlord may have under any law for the time being
in force for the recovery of rent of agricultural land from the
produce of such land."
F
As stated hereinabove, a specific exclusion may be clear from
· the words ofa statute even though no specific reference is made
to Letters Patent. But where there is an express saving in the
statute/section itself, then general words to the effect that "an
appeal would not lie" or "order will be final" are not sufficient In
such cases i.e. where there. is an express saving, there must be
an express exclusiqn. Sub-section (2) of Section I 04 does not
provide for any express exclusion. In this context reference may
be made to Section I 00-A. The present Section I 00-A was
amended in 2002. The earlier Section I 00-A, introduced in 1976,
reads as follows:
H
PANKAJAKSHI (DEAD) THROUGH LRS. & OTHERS v. 1053
CHANDRIKA & OTHERS [R. F. NARIMAN. J.]

"100-A. No further appeal in certain cases.-Notwithstanding A
anything contained in any Letters Patent for any High Court or in
any other instrument having the force of law or in any other law
for the time being in force, where any appeal from an appellate
decree or order is heard and decided by a Single Judge ofa High
Court, no further appeal shall lie from the judgment, decision or
B
order of such Single Judge in such appeal or from any decree
passed in such appeal."
It is thus to be seen that when the legislature wanted to exclud~ a
letters patent appeal it specifically did so. The words used in
Section 100-A are not by way of abundant caution. By the
Amendment Acts of 1976 and 2002 a specific exclusion is provided c
as the legislature knew that in the absence of such words a letters
patent appeal would not be barred. The legislature was aware
that it had incorporated the saving clause in Section 104(1) and
incorporated Section 4 CPC. Thus now a specific exclusion was
provided. After 2002, Section I 00-A reads as fol lows:
D
"I 00-A. No further appeal in certain cases.-Notwithstanding
anything contained in any Letters Patent for any High Court or in
any instrument having the force of law or in any other law forthe
time being in force, where any appeal from an original or appellate
decree or order is heard and decided by a Single Judge ofa High
Comi, no fu1iher appeal shall lie from the judgment and decree of E
such Single Judge."
To be notea that here again the legislature has provided for a
specific exclusion. It must be stated that now by vi1iue of Section
I 00-A no letters patent appeal would be maintainable. However,
it is an admitted position that the law which would prevail would
F
be the law atthe relevant time. At the relevant time neither Section
I 00-A nor Section I 04(2)barred a letters patent appeal.
Applying the above principle to the facts of this case, the appeal
under clause 15 of the Letters Patent is an appeal provided by a
law for the time being in force. Therefore, the finality contemplated
by sub-section (2) of Section I 04 did not attach to an appeal passed G
under such law.
It was next submitted that clause 44 of the Letters Patent showed
that Letters Patent were subject to amendment and alteration. It
was submitted that this showed that a Letters Patent was a
subordinate or subservient piece of law. Undoubtedly, clause 44
H
1054 SUPREME COURT REPORTS [2016] 3 S.C.R.

A permits amendment or alteration of Letters Patent, but then which
legislation is not subject to amendment or alteration? CPC is also
subject to amendments and alterations. In fact it has been amended
on a number of occasions. The only unalterable provisions are the
basic structure of our Constitution. Merely because there is a
provision for amendment does not mean that, in the absence of an
B amendment or a contrary provision, the Letters Patent is to be
ignored. To submit that a Letters Patent is a subordinate piece of
legislation is to not understand the true nature of a Letters Patent.
As has been held in Vinita Khanolkar case [(1998) I SCC 500]
and Sharda Devi case ((2002) 3 SCC 705] a Letters Patent is the
c charter of the High Court. As held in Shah Babula/ Khimji
case[( 1981) 4 SCC 8] a Letters Patent is the specific law under
which a High Court derives its powers. It is not any subordinate
piece of legislation. As set out in the aforementioned two cases a
Letters Patent cannot be excluded by implication. Further it is settled
Jaw that between a special law and a general law the special law will
D always prevail. A Letters Patent is a special law for the High Court
concerned. The Civil Procedure Code is a general law applicable to
all courts. It is well-settled law, that in the event ofa conflict between
a special law and a general law, the special law must always prevail.
We see no conflict between the Letters Patent and Section I 04· but
if there was any conflict between a Letters Patent and the Civil
E
Proced_ure Code then the provisions of the Letters Patent would
always prevail unless there was a specific exclusion. This is also
clear from Section 4 of the Civil Procedure Code which provides
that nothing in the Code shall limit or affect any special law. As set
out in Section 4 CPC only a specific provision to the contrary can
F exclude the special law. The specific provision would be a provision
like Section I00-A." [at paras 29 - 32]
34. Based on the aforementioned extracts from the Constitution
Bench decision, Shri Viswanathan sought to urge that a specific exclusion
need not refer to the very provision that is sought to be excluded but it was
G enough ifthe subject matter at hand is referred to and that therefore it is
not necessary for any provision in the Code of Civil Procedure to expressly
refer to Section 23 of the Travancore-Cochin High Cou~ Act, but that it
would be enough that on a reading of the said provision it would be clear
that the particular special, locaJ, or other law would not apply.

H 35. As has been stated by us above, for the exclusion to be specific,
PANKAJAKSHI (DEAD) THROUGH LRS. & OTHERS v. 1055
CHANDRIKA & OTHERS fR. F. NARIMAN, J.]

we must first hold that the provision contained in Section 98(2) is special A
as against Section 23 of the Travancore-Cochin High Court Act. This we
are afraid we cannot do, as it would be in the teeth of the Constitution
Bench judgment in Sathappan's case, in pa11icular paragraph 32 thereof.
This Court has unequivocally held that a Letters Patent is a special law for
the High court concerned, the Code of Civil Procedure being a general law
applicable to all courts, and that it is well settled that in the event of a 8
conflict between the two, the special law must always prevail. In the
present case, substitute the words "High Court's Act" for "Letters Patent".
What follows is that the High Court's Act is a special law for the High
Court concerned, the Code of Civil Procedure being a general law applicable
to all courts. This according to us really concludes the matter in favour of c
the appellants. Hemalatha's case (supra) has therefore been wrongly
decided and must therefore be overruled.
36. Shri Viswanathan referred various j udgmerits to us on the
applications of the general versus special principle. In particular he relied
strongly on Life Insurance Co.rporation ofindia v. D.J. Bahadur and
D
Others, (1981) 1 SCC 315. The question that arose before this Court in
that case was whether the Life Insurance Corporation Act. 1956 is a special
statute qua the Industrial Disputes Act, 1947 when it came to a dispute
regarding conditions of service of the employees of the Life Insurance
Corporation oflndia. This Court ultimately held that the Industrial Disputes
Act-would prevail over the Life Insurance Corporation oflndia Act as the E
Industrial Disputes Act relates specially and specifically to industrial disputes
between workmen and employers, whereas the LIC Act is a general statute
which is silent on what happens to disputes between management and
workmen. The fact that the LIC Act must be considered to be a special
legislation regulating the takeover of private insurance business not being
relevant to the subject matter at hand would not make the said Act special
F
in any sense. The working test laid down by this Court to determine
which statute is general and which special, is laid down in paragraph 52 of
the said judgment thus:-.,:
"In determining whether a statute is a special or a general one, the
focus must be on the principal subject-matter plus the particular G
perspective. For certain purposes, an Act may be general and for
certain other purposes it may be special and we cannot blur
distinctions when dealing with finer points of law. In law, we have
a cosmos ofrelativity, not absolutes- so too in life; The ID Act is
a special statute devoted wholly to investigation and settlement of
H
1056 SUPREME COURT REPORTS [2016] 3 S.C.R.

A industrial disputes which provides definitionally for the nature of
industrial disputes coming within its ambit. It creates an infrastructure
for investigation into, solution of and adjudication upon industrial
disputes. It also provides the necessary machinery for enforcement
of awards and settlements. From alpha to omega the ID Act has one
special mission - the resolution of industrial disputes through
8 specialised agencies according to specialised procedures and with
special reference to the weaker categories of employees coming
within the definition of workmen. Therefore, with reference to
industrial disputes between employers and workmen, the ID Act is
a special statute, and the LIC Act does not speak at al 1with specific
c reference to workmen. On the other hand, its powers relate to the
general aspects of nationalisation, of management when private
businesses are nationalised and a plurality of problems which,
incidentally, involve transfer of service of existing employees of
insurers. The workmen qua workmen and industrial disputes between
workmen and the employer as such, are beyond the orbit of and
D have no specific or special place in the scheme of the LIC Act.
And whenever there was a dispute between workmen and
management the ID Act mechanism was resorted to."
3 7. Applying the aforesaid test, we have no doubt that the principal
subject matter contained in the present case is appeals before the High
E Court of Kera la. The particular perspective that we are concerned with
is what is to happen, in such appeals, ifthere 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
pe11ains to appeals in the High Com1 alone and not other courts. Those
F appeals can deal with civil, criminal, and other matters. The particular
perspective therefore demands the application of a uniform rule to all
such appeals, which rule is provided by the special rule contained in
Section 23 of the Travancore-Cochin High Court Act. which in turn
displaces the general rule which applies under Section 98(2) of the Code
of Civil Procedure to all Cou11s and in civil proceedings only.
G
38. Viewed from another perspective, even the topics for
legislation contained in the 7th Schedule of the Constitution oflndia would
show that civil procedure is dealt with differently from jurisdiction and
powers of courts. In this regard the relevant entries in the 7th Schedule
make interesting reading:-
H
PANKAJAKSHl (DEAD) THROUGH LRS. & OTHERS v. 1057
CHANDRIKA & OTHERS [R. F. NARIMAN, J.l

"I. List III entry 13 A
13. Civil procedure, including all matters included in the Code of
Civil Procedure at the commencement ofthis Constitution, limitation
and arbitration.
2. List I entry 95
B
95. Jurisdiction and powers ofall courts, exceptthe Supreme Court,
with respect to any of the matters in this List; admiralty jurisdiction.
3. List II entry 65
65. Jurisdiction and powers ofall courts, exceptthe Supreme Court,
with respect to any of the matters in this List. C
4. List III entry 46
46. Jurisdiction and powers ofall cout1s, except the Supreme Court,
with respect to any of the matters in this List."
39. We now turn to the arguments based on Section 98(3) of the
D
Code of Civil Procedure.
40. As has been stated hereinabove, Section 98(3) was introduced
in the year 1928 when all the High Courts in British India were governed
only by the Letters Patent establishing them. The reason for the
introduction of the said Section goes back to the landmark judgment of
the Privy Council in Bhaidas' case and various other judgments following E
the said landmark judgment.
41. In Bhaidas' case (supra), the Privy Council had to decide
whether clause 36 of the Letters Patent would prevail over Section 98
of the Code of Civil Procedure. Clause 36 of the Letters Patent was
similar to Section 23 of the Travancore-Cochin High Court Act. The F
Privy Council, after setting out Section 4 of the Code of Civil Procedure,
held:-
"There is no specific provision in section 98, and there is a special
form of procedure which was already prescribed. That form of
procedure section 98 does not, in their Lordships' opinion, affect.
G
The consequence is that the appellant is right in saying that in this
instance a wrong course was taken when this case was referred
to other Judges for decision, and he is technically entitled to a
decree in accordance with the judgment of the Chief Justice. This
view of the section is not novel, for it has been supported by
judgments in Madras, in Allahabad and in Calcutta." H
1058 SUPREME COURT REPORTS [2016) 3 S.C.R.

A 42. The controversy which reared its head after the aforesaid
judgment was as to whether appeals under the Code of Civil Procedure,
being referred to in clause 16 of the Letters Patent, would also be covered
by clause 36. In order to appreciate the aforesaid controversy, it is
necessary to set out clauses 15, 16 and 36 of the Letters Patent as
follows:-
B
"Clause 15. Appeal from the courts of original jurisdiction
to the High Court in its appellate jurisdiction:-
And we do further ordain that an appeal shall lie to the said High
Court of Judicature at Madras, Bombay, Fort William in Bengal
from the judgment (not being a judgment passed in the exercise
c of appellate jurisdiction in respect of a decree or order made in
the exercise of appellate jurisdiction by a Court subject to the
superintendence of the said High Court and not being an order
made in the exercise of revisional jurisdiction, and not being a
sentence or order passed or made in exercise of the power of
D superintendence under the provisions of Section 107 of the
Government oflndiaAct, or in the exercise of criminal jurisdiction)
of one Judge of the said High Court or one Judge of any Division
Court, pursuant to Section 108 of the Government of India Act,
and that notwithstanding anything herein before provided, an appeal
shall lie to the said High Court or one Judge of any Division Court,
E pursuant to Section 108 of the Government of India Act, on or
after the first day of February, 1929 in the exercise of appellate
jurisdiction in respect of a decree or order made in the exercise of
appellate jurisdiction by a Court subject to the superintendence of
the said High Court where the Judge who passed the judgment
F declares that the case is a fit one for appeal; but that the right to
appeal from other judgments of Judges oft he sai9 High Court or
of such Division Court shall be to Us, Our heirs or successors in
Our or Their Privy Council, as hereinafter provided.
Clause 16. Appeal from Courts in the Provinces:-
G And we do further ordafn that the said High Court of Judicature
at Fort William in Bengal shall be a court of Appeal from the Civil
Courts of the Bengal Division of the Presidency of Fort William,
and from all other Courts subject to its superintendence, and shall
exercise appellate jurisdiction in such cases as are subject to appeal
to the said High Court by virtue of any laws or regulation now in
H force.
PANKAJAKSHI (DEAD) THROUGH LRS. & OTHERS v. 1059
CHANDRIKA & OTHERS [R. F. NAR!MAN, J.)

Clause 36. Single Judges and Division Courts:- A
And we do hereby declare that any function which is hereby
directed to be performed by the said High Court of Judicature at
(Madras), (Bombay), Fort William in Bengal in the exercise of its
original or appellate jurisdiction, may be performed by any Judge,
or by any Division Court thereof, appointed or constituted for such B
purpose, in pursuance of section I 08 of the Government of India
Act, 191 S; and if such Division Court is composed of two or more
Judges and the Judges are divided in opinion as to the decision to
be given on any point, such point shall be decided according to the
opinion of the majority of the Judges ifthere shall be a majority,
but if the Judges should be equally divided, they shall state the c
point upon which they differ and the case shall then be heard
upon that point by one or more of the other Judges and the point
shall be decided according to the opinion of the majority of the
Judges who have heard the case including those who first heard
it." D
43. It will be seen that clause 36 refers to the "appellate
jurisdiction" of the High Court, which jurisdiction would contain appeals
both under clause IS 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 E
be covered by clause 36 of the Letters Patent, and that therefore Section
98(2) and not Clause 36 would be applied in such appeals before the
High Courts.
44. In an instructive Full Bench judgment in Immidisetti
Dhanaraju & Another v. Motilal Daga & Another, AIR 1929 MAD
F
641, owing to the difference of opinion between two learned Judges of
the High Court, the question that had to be decided was whether clause
36 of the Letters Patent would apply or Section 98 of the Code of Civil
Procedure. Phillips,]. after referring to the Privy Council judgment in
Bhaidas' case, stated:-
"There is no specific provision in S. 98, and there is a special form G
of procedure which was already prescribed. That form of
procedure S. 98 does not, in their Lordships' opinion, affect."
This is a very general statement and is wide enough to include the
statement that S. 98 does not affect the procedure laid down in
the Letters Patent. That procedure is given in Cl. 36 which applies H
1060 SUPREME COURT REPORTS [2016] 3 S.C.R.

A to cases arising both under Cl. 15 and Cl. I 6. It would, therefore,
appear that this dictum would apply equally to Cls. 15 and I 6 of
the Letters Patent and this is supported by the judgment of Lord
Sumner in Sabitri Thakurain v. Savi where he observes.
"In conclusion, there is no reason why there should be any general
difference between the procedure of the High Court in matters
B
coming under the Letters Patent and its procedure in other
matters."
In art interesting passage, Phillips,J. went on to hold:-
"It is suggested that the amendment of S. 98 merely leaves the
law as it was before, but as there has been no pronou.ncerri.ent of
c
the Privy Council .saying that S. 4 did not protect Cl. 36 equally
with Cl. 15, which it was definitely held to protect, it Cl!nnot be
said that S. 98, prior to the amendment, necessarily affected Cls.
I 6 and 36. The distinction drawn between the jurisdiction of the
High Court under Cl. 15 and Cl. I 6 was based on the language of
D S. 96; for, it has been held that S. 96 refers only to appeals from
Subordinate Courts and not to appeals from one Judge of the
High Court to the High Court, S. 96 does not in terms exclude
appeals from one Judge to the other Judges of the High Court;
for, it includes al.I appeals from "any Court exercising original
jurisdiction to the Court authorised to hear appeals from decisions
E
of such Court," This language is wide enough to include appeals
from one Judge to the other Judge of the High Court. Ifthat is so
then S. 96, applies to all appeals and S. 98 which clearly relates
back to S. 96 must also deal with all appeals. If S. 98 does not
affect appeals under Cl. 15, how can it be held to affect appeals
F under Cl. 16? It appears to me that in vie~ of the judgments of
the Privy Council in Bhaidas Shivdas v. Bai Guiab and Sabitri
Thakurain v. Savi) Sec. 4 of the Civil Procedure Code of 1908
was enacted in order to save, amongst other enactments, the
provisions of the Letters Patent. That this was the view of the
Legislature is now made clearly the very recent amendment ofS.
G
98, Civil Procedure Code."
45. In the Full Bench decision in the same case, Ramesam,J.,
agreed with the view of Phillips, J., and held:-
"The result is that it is now beyond all doubt that Cl. 36 of the
Letters Patent applies to all appeals. lt may be asked, when does
H
PANKAJAKSHI (DEAD) THROUGH LRS. & OTHERS v. 1061
CHANDRIKA & OTHERS [R. F. NARIMAN, J.)

S. 98 of the Civil Procedure Code have any operation and why A
should the legislature not say that the section does not apply to
Chartered High Courts instead of adding an explanation to the
section? The reply is that S. 98 applies now only to Courts other
than the Chartered High Courts, that is, the Chief Courts, and
Courts of Judicial Commissioners and the reason why the
B
legislature adopted this particular form of elucidating the matter is
that it was intended to retain S. 98, as applicable even to Chartered
High Courts, but to make the application subject to Cl. 36 of the
Letters Patent. If, at any time, Cl. 36 of the Letters Patent ceases
to exist, S. 98 will come into operation. It is to attain this particular
result that the explanation was added to S. 98, instead of saying c
that S. 98 does not apply to Chartered High Courts at all. [would
answer the question referred to us thus:
"The procedure adopted by the High Court should be governed
by Cl. 36 of the Letters Patent."
While so holding, the Full Bench of the Madras High Court held D
that Section 98(3) was declaratory of the law as it always stood. It was
held:
"It is true that the Amending Act is intended to be declaratory,
that is, not only is its object to make the law clear from its date but
also to make the Act retrospective; that is, there is no change in E
the law. The law both before the amendment and after the
amendment is the same. To this extent I agree with the argument
of the learned Advocate, that the amendment is declaratory. But
to assume from this that the Amending Act did not intend to alter
the law, as expounded by the decisions up to that date, does not
F
follow: In the first place, it is not correct to say that there is a
well-understood rule oflaw prior to the amendment, in the manner
stated by the learned Advocate for the respondents. The decision
in Lach111a111 Singh v. Ram Lagan Singh and Veeraraghava
Reddi v. Subba Reddi indicate the contrary. In my opinion, the
object of the amendment is to make it now perfectly clear that for G
any purpose Cl. 36 of the Letters Patent should never be controlled
by the Civil Procedure Code. This was the view of Lord
Buckmaster in Bhaidas Shivdas v. Bai Guiab and the cases
approvecttherein. The Amending Act is really the response of the
legislature to the invitation of Page, J ."
H
1062 SUPREME COURT REPORfS [2016] 3 S.C.R.

A 46. In an instructive Full Bench judgment reported in Shushila
Kesarbhai & Ors. v. Bai Lilavati & Ors., AIR 1975 Guj. 39 (FB),
the Full Bench of the Gujarat High Court had to consider whether a
decision given by the Full Bench of the Bombay High Court in Bhuta v.
Lakadu Dhansing reported in AIR 1919 Bom 1 (FB), laid down the
correct law. After an exhaustive discussion discussing the entire history
B
of the CPC Acts starting from 1859 right up to 1908 the Gujarat High
Court held:
"It would thus be seen that under the Code of 1882 the High
Courts of Bombay. Calcutta, Madras and Allahabad were all
agreed that Section 575 superseded Clause 36 and since appeals
c from subordinate Courts were covered, by Section 575, the
procedure in case of difference of opinion in such appeals was
governed by Section 575 and not by Clause 36, though, if Section
575 had not been there and Clause 36 had not been superseded
by it, the procedure applicable would have been that set out in
D Clause 36. There was difference of opinion amongst the High
Courts only in regard to the procedure applicable in case ofintra-
High Court appeals under the Letters Patent. The Calcutta High
Court took the view that even in case of intra-High Court appeals,
Section 575 applied and Clause 36 was excluded while the Madras
and Allahabad High Courts held that the procedure in case of
E intra-High Cou11 appeals was governed by Clause 36 and not by
Section 575."
After setting out Sections 98 and 117 of the Code of Civil Procedure
the Full Bench further went on to say:

F "'If these were the only relevant Sections there can be no doubt
that by reason of Section 117, Section 98 would ordinarily apply in
case of difference amongst Judges hearing an appeal from a
subordinate Court as did Section 575 by reason of Section 632 of
the Code of 1882. But Section 4, sub-section ( 1) provides in so
many terms that nothing in the Code and since the Code includes
u Section 98, nothing in Section 98, shall be deemed to limit or
otherwise affect any special form of procedure prescribed by or
under any other law for the time being in force. We have already
discussed the scope and content of Clause 36 and it is apparent
from that discussion that Clause 36 is wide enough to include
appeals from subordinate Courts as well as intra-High Court
H
•
PANKAJAKSHI (DEAD) THROUGH LRS. & OTHERS v. 1063
CHANDRIKA & OTHERS [R. F. NARIMAN, J.]

appeals and, therefore, the procedure for resolving difference of A
opinion, set out in Clause 36 is applicable not only in case of intra-
High Court appeals but also in case of appeals from subordinate
Courts. This procedure is different from that set out in Section 98 ·
and it is clearly, qua Section 98, a special form of procedure
prescribed by Ciause 36. Now there is no specific provision to the
B
contrary in Section 98 or any other provision of the Code and
nothing in Section 98 is, therefore, to be deemed to limit or
otherwise affect the special form of procedure prescribed by
Clause 36 and consequently notwithstanding Section 98, Clause
36 must operate in its fullness~and apply to apQeals fj'om
subordinate Courts. Section 4, subsection ( 1) saves the special c
form of procedure prescribed in Clause 36 and provides that it
shall prevail despite conflict with Section 98. It js therefore, clear
asa matter of plain grammatical construction that under the present
Code the procedure in case of difference of opinion in appeals
from subordinate Courts is governed by Clause 36 and not by S.
D -r ...
98.
This would appear to be the undoubted position in principle but
let us see what the decided cases say. The first decision to which
we must refer in this connection is the decision of the Full Bench
of the Bombay High Court in 21 Born LR 157 JAIR 1919 Born I
a
(FB)) (supra) but before we do so, we may make briefreference E
to an earlier decision of the Bombay High Court in Suraj
v.
Mal Horniman, 20 Born LR 185 : (AIR 1917 Born 62 (SB)).
That was a case of an intra-High Court ·appeal under Clause 15
and the question arose whether on difference of opinion amongst
the Judges, Section 98 applied or Clause%. The Division Bench E
observed that Clause 36 prescribed a special form of procedure
in certain cases where the Judges of a Division Bench differed
and this special form of procedure was saved by Section 4, sub-
section ( 1) and the applicability of Section 98 excluded in cases to
which this special form of procedure applied. It was held that
Section 129 made it abundantly clear that the intention of the G
Legislature was that in trial of oases on the Original Side as well.
as appeals arising in the Original J urisdictjon, nothing should be
done which is inconsistent with the Letters Patent and, therefore,
the special form of procedure prescribed in Clause 36 applied in
case of intra-High Court appeals arising from the Original Side· H
1064 SUPREME COURT REPORTS [2016] 3 S.C .R.

A and Section 98 had no application in case of such appeals. This
decision was no doubt given in the context of intra-High Court
appeals but the principle 011 which it was based must apply equally
in relation to appeals from subordinate Courts. Clause 36, as we
have already pointed out, embraces appeals from subordinate
Courts as well as intra-High Court appeals and, therefore, ifthe
B
special form of procedure prescribed in Clause 36 is saved from
intra-High Court appeals, it must be held equally to be saved for
appeals from subordinate Cou1ts and Clause 36 must accordingly
be held to apply in relation to them and not Section 98."
The Full Bench of Gujarat then went on to state that the Full
c Bench of the Bombay High Court stood overruled by referring to
Bhaidas' case in the following terms:-
"This fallacy underlying the decision of the Full Bench in 21 Bom
LR 157: (AIR 1919 130111 1 (FB)) was exposed by the Judicial
Committee of the Privy Council in a decision given only two years
D later in Bhaidas Shin/as r. Bai Guiab, 23 Bom LR 623 : 48 Ind
App 181 : (AIR 1921 PC 6). That was, of course, a case of an
intra-High Court appeal under Clause 15 and while dealing with
the question as to what is the procedure to be followed in case of
difference of opinion in such an appeal, Lord Buckmaster, after
E referring to Section 4, sub-section ( l) of the Code of 1908.
observed: -
'There is no specific provision in Section 98, and there is a special
form of procedure which was already prescribed. That form of
procedure Section 98 does not, in their Lordships' opinion, affect.
The consequence is that the appellant is right in saying that in this
F
instance a wrong course was taken when this case was referred
to other Judges for decision, and he is technically entitled to a
decree in accordance with the judgment of the Chief Justice. This
view of the section is not novel, for it has been suppo1ted by
judgments in Madras, in Allahabad, and in Calcutta: see Roop
G Lal v. Lakshmi Doss, ( 1906) lLR 29 Mad 1: Lachma/1
Singh v. Ram Lagan Singh, ( 1904) !LR 26 All l 0 and Nundeepat
Mahta v. Urquhart, ( 1870) 4 Beng LR 181.'' These observations
were undoubtedly made in the context of intra-High, Cou1t appeals
but the reasoning behind these observations is equally applicable
in cast: of appl'als frvm subordinate Courts because both
1-1
PANKAJAKSHI (DEAD) THROUGH LRS. & OTHERS v. 1065
CHANDRIKA & OTHERS [R. F. NARIMAN, J.]

categories of appeals are embraced by Clause 36. This decision A
of the Privy Council must, therefore, be held to have overruled 21
Born LR 157 : (AIR 1919 Bom I (FB)) by necessary implication.
Moreover, the Judicial Committee pointed out that the view taken
by them in regard to the inter-action of Section 98 and Clause 36
was not novel for it was supported inter alia by the judgment of
B
the Calcutta High Court in 1870 Beng LR 181 (supra). The case
of 1870 Beng LR 181 as we have pointed out above, related to an
appeal from a subordinate Court and it was held by the Calcutta
High Court in that case that the procedure in case of difference
of opinion in such an appeal was governed by Clause 36. This
decision of the Calcutta High Court was approved by the Judicial c
Committee and it must, therefore, be held that according to the
Judicial Committee it is Clause 36 and not Section 98 which applies
in case of an appeal from a subordinate Court. The decision in 21
Bom LR 157 : (AIR 1919 Born 1) (FB) cannot, therefore, be
regarded as good law after the decision of the Judicial Committee
D
in 23 Born LR 623 : (AIR 1921 PC 6) and it need not deter us
from taking a different view."
After this long discussion on the point at hand, the Full Bench
went on to consider the amendment made in Section 98 by adding Section
98(3). The Full Bench held that Section 98(3) merely clarified the existing
legal position by removing a doubt which was cast upon it by some . E
judicial decisions. The very Statement of Objects and Reasons of the
Repealing and Amending Act of 1928 said that the object of introduction
of sub-section (3) in Section 98 is to enact more clearly a provision
which was previously implied in Section 4 of the Code. Thus, the Full
Bench of the Gujarat High Court held:- F
"This sub-section makes it clear beyond doubt that nothing in
Section 98 shall be deemed to alter or otherwise affect Clause
36. Clause 36 is not to be controlled by Section 98. Ifthere is any
area in which Section 98 and Clause 36 operate simultaneously.
Clause 36 must prevail and Section 98 inust give way. Now we <
G
need not repeat that Clause 36 embraces _exercise of appellate
jurisdiction in both c'ategories pf appeals, namely, appeals from
subordinate Courts as well as intra-High Court appeals under
Clause 15. It is, therefore, obvious that, at any rate, since the
introduction of sub-section (3 ), the procedure in case of difference
of opinion iri appeals from subordinate Courts must be held to be H
1066 SUPREME COURT REPORTS [2016] 3 S.C.R.

A governed by Clause 36 and not by Section 98. In fact as we have
pointed out above, that was always the law under the Code of
1908 even before the amendment by reason of Section 4, sub-
section (I). Sub-section (3) of Section 98 merely clarified the
existing legal position by removing a doubt which was cast upon it
by some judicial decisions. That is made clear by the Statement
B
of Objects and Reasons of the Repealing and Amending Act 18
of 1928 where it is stated that the object of introduction of sub-
section (3) in Section 98 is to enact; more clearly the provision
which was previously impli~d in Section 4 of the Code. The
respondents relied· on the decision of the Allahabad High Court
c in Muhammad Ishaq Khan v. Muhammad Rustcim Ali Khan,
ILR 40 All 292 : (AIR 1918 All 412) and urged that it is a recognised
rule that where there have been decided cases before an Act is
amended, ifthe amendment does not expressly show that the law
as interpreted by the decisions is altered, the rule laid down by the
decisions must be adhered to. We accept this principle but we do
D
not see how it has any application here. The law prior to the
amendment was never different. The amendment did not seek to
alter the law: it merely clarified what was always the law under
the Code of 1908 and what that law was on a proper interpretation
of Section 4, sub~section (I) has already been discussed by us.
E But even ifthe view be taken that prior-to the amendment, the
law was that appeals from subordinate Courts were governed by
Section 98 despite the existence of Section 4, sub-section ( 1).
sub-section (3) introduced in Section 98 made it very clear that
Clause 36 must operate in its fulness and its applicability to appeals
from subordinate Courts should not be excluded by Section 98
F and to that extent the preexisting law must be held to have been
altered. The decision in 21 Born LR 157: (AIR 1919 Born I)
(FB) (supra) cannot, therefore, in any view of the matter, stand
after the introduction of sub-section (3) in Section 98.
We may now turn to the decisions of the other High Courts. The
G Madras High Court in a Division Bench judgment
in Veeraraghava Reddy v. Subba Reddy, ILR 43 Mad 3 7 : (AIR
l 92G Mad 391) (SB) held that even in case of appeals from
.subordinate Courts. Clause 36 applies and not Section 98 but this·
. judgment is not of much help because it does not contain any
H discussion of the question on principle. This question again came
PANKAJAKSHI (DEAD) THROUGH LRS. & OTHERS v. 1067
CHANDRIKA & OTHERS [R. F. NARIMAN, J.]

up for consideration before a Division Bench of the Madras High A
Court in Venkatasubbiah v. Venkatasubbamma, AIR 1925 Mad
I 032. The Division Bench held that the previous practice of the
Court was to apply Section 98 to appeals from subordinate Courts
and .the decision in 23 Born LR 623 : (AIR 1921 PC 6) was not
intended to override the rule of law enshrined in this practice.
·B
This decision is plainly incorrect for reasons which we have already
discussed. We need not repeat those reasons. The Madras High
Court was again call·ed upon to consider this question
in Dhanaraju v. Motilal, AIR 1929 Mad 641 (FB) which was a
Full Bench decision. The Full Bench relied.on 23 Born LB 623 :
(AIR I 92 I PC 6) (supra) and also emphasized Section 98. sub- c
section (3) for taking the view that Clause 36 is not controlled by
Section 98 and it applies to all appeals, whether from a Single
Judge of the High Court or from subordinate Court. This decision
. of the Full Bench has been consistently followed in the Madras
High Court and it supports the view we are taking.
D
The view taken by the Calcutta High Court on this point varied
from time to time, though there was no specific decision on the
point in Suresh Chandra v. Shiti Kania, AIR 1924 Cal 855 (SB),
Page J., observed in that case that Clause 36 applies to all appeals,
whether intra-High Court or from subordinate Courts. Two
different views were expressed in the subsequent case E
of Becharam v. Purna Chandra; AIR I 925 Cal 845 (FB). There
Walmsley, J., took the view that Clause 36 applies· not only to
intra-High Co~rt appeals but, also' to appeals from subordinate
Courts while Suhrawardy J., observed that so far as appeals from
subordinate Courts are concerned, they are governed by Section F
98. The next decision which followed was that in Prafulla
Kamini v. Bhabani Nath, AIR 1926 Cal 121. In this case Page, J.,
who was a party 'to the judgment in AIR I 924 Cal 855 (supra)
changed his opinion and held that 23 Bom LR 623: (AIR 1921
PC 6) was confined to appeals under the Letters Patent and did
not apply to appeals from subordinate Courts and Walmsley, J., G
also allowed himself to be persuaded to take the same view as·
Page, J. Page, J., observed in the opening paragraph of his
judgment that this controversy can be satisfactorily set at rest
"only by the action of the Legislature now long overdue" and
invited the legislature to solve the doubts and differences by an H
1068 SUPREME COURT REPORTS [2016] 3 S.C.R.

A express enactment. There were in fact no doubts and differences.
The effect ofSection 4, sub-section ( 1) was clear and indubitable
and in our opinion, it saved the full content and operation of Clause
36 notwithstanding Section 98. But even so the Legislature in
response to the invitation.of Page J., and with a view to leave no
scope for doubts or debate, introduced sub-section (3) in Section
98 by the Repealing and Amendment Act 18 of 1928. Since then
the Calcutta High Court has taken the view that the procedure in
case of difference of opinion in appeals from subordinate Courts
also is governed by Clause 36.
So far as the Lahore High Court is concerned, a Division Bench
c of that Court held In AIR 1926 Lah 65 (supra) that appeals .under
the Code were governed by Section 98 and those under the Letters
Patent by Clause 36. Shadila), C.J., who presided over the Bench
pointed out that ifthe matter were res integra, he would have held
that Clause 26 of the Letters Patent of the Lahore High Court
D applied to all appeals heard by the High Court and it was immaterial
whether they were appeals within the High Court itself or from
Courts of inferior jurisdiction but he felt compelled by authorities
to take a different view. We do not think, for reasons "which we
have already discussed, that the learned Chief Justice should have
felt constrained to decide the case.contrary to his personal opinion.
E The personal opinion entertained by the learned Chief Justice was
plainly correct. This question again came up for consideration
before a Full Bench of the Lahore High Court in Mt. Sardar
Bibiv. Haq Nawaz Khan, AIR 1934 Lah 371. The Full Bench
held relying on AIR 1929 Mad 641 (FB) (supra) and Debi
F Prasad v. Gaudham Rai, AIR 1933 Pat 67 that ;'It is now well-
settled that with the addition of sub-section (3), Section 98 of the
CPC, made by the Repealing and Amending Act, 18of1928, that
Section has no application to cases heard by a Division Bench of
a Chartered High Court, whether in appeals from decrees of
subordinate Courts or from decrees passed by a Judge of the
G High Court on the original side, and that all cases of difference of
opinion among.'the Judges composing 1he Division Bench are
governed by Clause 26, Letters Patent". This decision completely
supports the view w·e are taking.
We have no decision of the Patna High Court prior to the
H introduction of sub-section (3) in Section, 98 - at any rate none
PANKAJAKSHI (DEAD) THROUGH I.RS. & OTHERS v. 1069
CHANDRIKA & OTHERS [R. F. NARIMAN. J ]

was cited before us. The first case where the question of A
competing claims between Section 98 and Clause 28 of the Letters
Patent of the Patna High Court in relation to appeals from
subordinate Courts came to be considered by the Patna High Court
was that in AIR 1933 Pat 67 (supra). The Division Bench held in
that case that the introduction of subsection (3) in Section 98 had
B
resolved the controversy and it was clear that Clause 28 applied
to all appeals, irrespective whether they were intra-High Court
appeals or appeals from subordinate Courts. The same view was
reiterated by the Patna High Court in Rajnarain v. Saligram.
( 1948) !LR 27 Pat 332 and Bokaro and Bangur Ltd. v. State of
Bihar, AIR 1966 Pat 154. c
It would, therefore, be seen that there is now a consensus amongst
most of the High Coutis in the count1y that the procedure in case
of difference of opinion in appeals from subordinate Courts is
governed by the appropriate clause of the Letters Patent and not
!2y Section 98 and the view we are taking is in accord with the D
decisions of the other High Cou1is ...
47. The Gujarat High Court's Full Bench decision. with which
we respectfully concur, is important on several counts. Not only does it
correctly explain what is meant by a "specific provision to the contrary"
in Section 4 of the Code of Civil Procedure, but it also goes on to state E
thatwhat was achieved by Section 98(3) of the Code of Civil Procedure
was already previously implied in Section 4 of the Code of Civil Procedure
inasmuch as Section 98 being a general provision could not possibly be
said to be a "specific provision" which would take away the effect of
the Letters Patent in that case. The self same reasoning would apply to
the question of law presented before us. If the Letters Patent, being the F
Charter of the High Courts in British India. was a special law governing
the High Courts untouched by any specific provision to the contrary in
the Code of Civil Procedure, so would the High Court Acts, being the
Charterofother High Courts, similarly remain as special laws untouched
by any specific provision in the Code of Civil Procedure for the self- G
same reason. Viewed from any angle, therefore, it is clear that Section
23 of the Travancore-Cochin High Court Act, alone is to be applied
when there is a difference of opinion between two learned Judges of the
Kerala High Court in any appeal, be it civil, criminal, or otherwise, before
them.
H
1070 SUPREME COURT REPORTS [2016] 3 S.C.R.

A 48. At this juncture, we may also point out that if we were to
accept Shri Viswanathan 's argument, several anomalous situations would
arise. First and foremost, Section 23 of the Travancore-Cochin High
CqurtAct would not applyto appeals under the Code of Civil Procedure
before the High Court, but woullapply to criminal and other appeals,
making appeals before the same High Court apply a different procedure,
B
depending upon their subject matter. As against this, having accepted
Shri V. Giri's argument, a uniform rule applies down the board to all
appeals before the High Court, whether they be civil, criminal, orotherwise
by applying Section 23 of the Travancore-Cochin High Court Act to all
of them. In fact, in Civil Appeal No. 8576 of2014 which on facts arises
c out of the Malabar region of Kerala, Clause 36 of the Letters Patent of
the Madras High Court would directly apply. As we have seen, Clause
36 of the Letters Patent is pari materia to Section 23 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
D
Court. It may be mentioned here in passing that the Letters Patent of
the Madras High Court which applied to the Malabar region in the State
ofKerala has been continued by virtue of Article 255 of the Constitution
oflndia read with Sections 5, 49(2), 52 and 54 of the States Reorganisation
Acf, 1956.
E 49. At this juncture it is necessary to refer to the decision in Tej
Kaur and another v. Kirpal Singh and another, ( 1995) 5 ·sec 119,
which was referred to in the course of arguments by both Shri Giri and
Shri Viswanathan. This judgment only decided that a difference between ·
two Judges of the Punjab and H~'ryana High Court ~ould have to be
F decided in accordance with the provisions of Section 98(2) of the Code
of Civil Procedure because Section 98(3) of the Code of Civil Procedure
would not apply, as the Punjab High Court is not governed by the Letters
Patent. What appears to have been missed by this decision is the fact
that the Punjab and Haryana High Court continues to be governed by
the Letters Patent governing the High Court set up at Lahore. The
G · Lahore Letters Patent contains a provision similar to· clause 36 of the
Letters Patent that governed Bombay and Calcutta by a pari materia
provision contained in clause 26 of the Lahore Letters Patent. In
accordance with our judgment, therefore, it is clear that this authority is
no longer good law inasmuch as Section 98(3) of the Civil Procedure
H
PANKAJAKSHI (DEAD) THROUGH LRS. & OTHERS v. 1071
CHANDRIKA & OTHERS

Code, 1908 would expressly save the said Letters Patent, and would A
thus make clause 26 applicable in place of Section 98(2) of the Code of
Civil Procedure.'
50. Even between the High Courts themselves another anomalous
situation would arise. Those High Courts, such as Bombay, Calcutta
and Madras, which are "Letters Patent" High Courts so to speak, would B
not be governed by Section 98 in view of sub-section (3) thereof, but if
we were to accept Shri Viswanathan's argument, High Courts like the
Kerala High Court which are not established by any Letters Patent,
would be so governed. This again would lay down two different rules
for different sets of High Courts depending upon a wholly irrelevant
circumstance - whether their Charter originated in the Letters Patent or
.c
in. a statute. Here again the acceptance of Shri V. Giri 's argument leads
to one uniform rule applying down the board to all the High Courts in this
country.
51. For. the aforesaid reasons we conclude that Hemalatha's
case was wrongly decided and answer Question I referred to us by D
stating that Section 23 of the Travancore-Cochin High Court Act remains
unaffected by the repealing provision of Section 9 of the Kerala.High
Court Act, and that, being in the nature of special provision vis-a-vis
Section 98(2) of the Code of Civil Procedure, would apply to the Kerala
High Court. E
52. In view of the answer to Question I, it is not necessary to
answer Question 2. The reference is disposed of accordingly.
KURIAN, J. I. I wholly agree with the excellent exposition of
law b)' my esteemed brother Rohinton Fali Nariman, J. l have nothing to
add on the reference part. However, for appropriate guidance at the F ·c
quarters concerned, I feel a few observations would be contextually
relevant.
2. Legislature has thought it fit to allocate certain matters to be
1
In fact, even the PEP SU Ordinance which governed the princely states of Punjab and G
which had set up a High Court for such states. also contained a provision similar to
Clause 26 of the Letters Patent. Clause 56 of this PEPSU Ordinance stated as follows:
Clause 56- Difference of opinion between two judges - In all appeals or other
proceedings heard by two judges, if there is a difference of opinion between them, each
judge shall record his separate opinion and the case shall be laid for hearing before a
third judge and the decision of the Court shall be in accordance with the opinion of such
third judge. H
107:? SUPREME COURT REPORTS [2016] 3 S.C.R.

A heard by a Single Judge and a few by a Bench of not less than two
Judges, in common parlance what is known as Single Bench and 65 ·
REPORTABLE Division Bench. A matter is stipulated to be heard by a
Division Bench on account of the seriousness of the subject matter and
for enabling two or more heads to work together on the same. Sitting in
Division Bench is not as if two Single Judges sit. In Division Bench or in
R
a Bench of larger strength, there is a lot of discussion in-between,
clarifications made, situations jointly analysed and positions in law getting
evolved.
3. Under Section 98 of The Civil Procedure Code, 1908 (for
short, 'the CPC'), when the Judges differ in opinion on a point of law,
c the matter is required to be placed for opinion of the third Judge or more
of other Judges as the Chief Justice of the High Court deems fit and the
point of law on which a difference has arisen is decided by the majority
and the appeal is decided accordingly. It is to be seen that under the
proviso to Section 98 (2) of the CPC, hearing by a third Judge or more
D Judges is only on the point of law on which the Division Bench could not
concur. There is no hearing of the appeal by the third Judge or more
Judges on any other aspect. Under Section 98 (2) of the CPC, in case
an appeal is heard by a Division Bench of two or more Judges, and if
there is no majority and if the proviso is not attracted, the opinion of that
Judge or of the equally divided strength in the Bench which concurs in a
E judgment following or reversing the decree appealed from, such decree
shall stand confirmed.
4. Kerala High Court Act, 1958 has provided for the powers of a
Bench of two Judges under Section 4. It is clarified thereunder that if
the Judges in the Division Bench are of opinion that the decision involves
F a question of law. the Division Bench may order that the matter or question
oflaw be referred to a Full Bench. Needless to say, it should be a question
of law on which there is no binding precedent.
5. Under Section 23 of the Travancore-Cochin High Court Act,
1125, ifthe Division Bench disagrees either on law or facts, the Chief
G Justice is required to refer the matter or matters of disagreement for the
opinion of another Judge and the case will be decided on the opinion of
the majority hearing the case.
6. Under The Code of Criminal Procedure, 1973 (for short, 'the
Cr.PC'), the position is slightly different. Section 392 reads as follows:
H
PANKAJAKSHI (DEAD) THROUGH LRS. & OTHERS v 107\
CHANDRIKA & OTHERS [KURIAN, J.]

"392. Procedure when Judges of Court of Appeal are equally A
divided.-When an appeal under this Chapter is heard by a High
Court before a Bench of Judges and they are divided in opinion,
the appeal, with their opinions, shall be laid before another Judge
of that Court, and that Judge, after such hearing as he thinks fit,
shall deliver his opinion, and the judgment or order shall follow
B
that opinion: Provided that if one of the Judges constituting the
Bench, or, where the appeal is laid before another Judge under
this section, that Judge, so requires, the appeal shall be re-heard
and decided by a larger Bench of Judges."
7. The emerging position is that there is no uniformity or clarity
with regard to the Judge strength in the event of difference of opinion,
c
and according to me, it has affected the purpose for which the matters
are required to be heard by a strength of more than one Judge, be it a
Division Bench or Full Bench (Larger Bench).
8:·· l.J11der the Travancore-Cochin High Cou11 Act, 1125, Section
23 enables the Chief Justice to refer for the opinion of another Judge, D
the matter or matters on which the Division Bench has disagreed either
on law or on facts and the appeal will be ultimately decided on the view
·taken by that Judge sitting and hearing the appeal alone.
9. Under Section 392 of the Cr.PC, the situation again is different.
In case, the Division Bench is divided in their opinion. the appeal with E
the opinions should be laid before another Judge of that Court and the
appeal will be decided clearly on the basis of the opinion rendered by
that Judge hearing the matter sitting alone. However, the proviso under
Section 392 of the Cr.PC enables any one of the Judges of the Division
Bench or the third Judge to order the appeal to be heard by a larger F
Bench of Judges.
I 0. 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 68
Act provides for an appeal to be heard by a Division Bench in situations
where Section 98 (2) without proviso operates, it virtually becomes a G
decision of the Single Judge since the differing view is only to be ignored.
When the Judges hearing the appeal differ in opinion on a point of law,
under the proviso, the said point of law has to be heard by one or more
of other Judges and the appeal be decided according to the opinions of
the majority of the Judges who have heard the appeal, including at the
initial stage. In such situations also, unless the Ghief Justice decides H
1074 SUPREME COURT REPORTS [20 I 6) 3 S.C.R.

A 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.
B
11. In my humble view, ifthe 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 oflarger strength.
Then only the members of the Bench of such larger strength would be
c able to exchange the views, discuss the law and together appreciate the
various factual and legal positions. The 69 conspectus of the various
provisions, in my view, calls for a comprehensive legislation for handling
such situations of a Hench being equally divided in its opinion, either on
law or on facts, while hearing a case which is otherwise required to be
D 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 concenied to take
further steps in that regard.

Nidhi Jain Reference disposed of.