2002 Supreme(SC) 652

2002(4) Supreme 427
SUPREME COURT OF INDIA
(From Kerala High Court)
D.P. Mohapatra, Brijesh Kumar and D.M. Dharmadhikari, JJ.
P.V. Hemalatha -Petitioner
versus
Kattamkandi Puthiya Maliackal Saheeda & Anr. -Respondents
Special Leave Petition (Civil) Nos. 5843-46 of 2001
Decided on 20-5-2002
Counsel for the Parties :
For the Petitioner : R.F. Nariman, L.N. Rao, Sr. Advocates, T.P. Arvindaksha Menon, A. Raghunath and A. Anandan, Advocates.
For the Respondents : Shekhar Naphde, Sr. Advocate, Krishanan Iyer, E.C. Agrawala, Rishi Agrawala, Mahesh Agrawala, Alok Agrawala, Manu Krishnan and P.N. Ramalingam, Advocates.

VERY IMPORTANT POINT
The two learned Judges of the DB of Kerala High Court were right in holding that in view of conflicting judgments delivered by them the decree of the Subordinate Court has to be confirmed strictly in terms of Section 98(2) of CPC 1908 i.e. where even numbers of judges constituting a Bench are divided in their opinion and there is no question of law which they consider necessary for reference to one or other judges for obtaining majority opinion, the judgment and decree of the Subordinate Court should be confirmed to put an end to the litigation.

Headnote:(i) Civil Procedure Code, 1908-Section 98(2) Proviso-Decision when appeal is heard by two or more Judges-Suit for specific performance and injunction regarding performance of contract for sale of two cinema theatres viz., Sangam and Pushpa in Calicut-Calicut was part of erstwhile Malabar District of Madras and after States reorganisation in 1956 forms part of new State of Kerala-Dismissed by trial Court-First appeal under Section 96 CPC to High Court of Kerala-D.B. hearing-One Judge dismissing and another Judge allowing it, differing on all questions of fact and law but did not refer any question of law for decision by third Judge-So decree of lower Court confirmed in terms of Section 98(2) CPC-SLP s against to Supreme Court-Whether Kerala High Court be directed to resolve conflict inter se between two Judges to obtain majority opinion by reference to a third Judge as per Section 23 of Travancore Cochin Act or Cl. 36 of LP of Madras High Court? (No)-Whether there is any Letters Patent applicable to High Court of Kerala? (No) (Travancore-Cochin High Court Act 1125-Section 23-Kerala High Court Act, 1958-Section 4-Powers of a Bench of two Judges-States Reorganisation Act, 1956-Section 52-Jurisdiction of High Courts for new States-Letters Patent of Madras High Court (under High Courts Act, 1861-Cl. 36).

       Held : An uncommon question of legal and procedural difficulty has arisen giving rise to these special leave petitions for appeal against the order of Division Bench of Kerala High Court. The subordinate Judge of Calicut dismissed the suit filed for specific performance of the agreement of sale of Sangam and Pushpa theatres by judgment dated 1.4.1978. The appeals preferred under Section 96 of the Code of Civil Procedure to the High Court of Kerala were decided by common judgment with the appeals arising from the injunction matters. (Para 1)

       The two Judges constituting the Division Bench delivered two separate judgments in which they have differed on almost all issues arising in the case. After delivering two separate judgments, the Judges then formulated the impugned order dated 19.1.2001 and came to the conclusion that since they have delivered two separate judgments and have not identified difference on any point of law, the decree of the court below passed by the court is liable to be confirmed in terms of Section 98(2) of the Code of Civil Procedure (For short "the Code"). (Para 3)

       In our view, the law contained in the Travancore-Cochin Act and Kerala Act regulating the practices, procedure and powers of Chief Justice and Judges of the High Court in relation to all cases from all enactments appearing before them is a general law, which cannot be made applicable to appeals from Code of Civil Procedure regulated by special law that is contained in Section 96 to 98 of the Code. There is a clear conflict between the provisions contained in Section 23 of the Travancore-Cochin Act which allows the reference by differing Judges who have delivered separate judgments or opinions to third Judge on Issues both on fact and law and the provisions contained in proviso of Sub-section 2 of Section 98 of the Code which permits reference to one or more Judges only on the difference of opinion on the stated question of law. When the courts are confronted with such a situation, the courts approach should be "to find out which of the two apparently conflicting provisions is more general and which is more specific and to construe the more general one as to exclude the more specific". The principle is expressed in maxims Generalia specialibus non derogant [general things do not derogate from special things] and Generalibus specialia derogant [special things derogate from general things]. These principles have also been applied in resolving a conflict between two different Acts and in the construction of statutory rules and statutory orders. (See Principles of Statutory Interpretation - Seventh Edition, 1999 by Justice G.P. Singh page 113-114). Assuming for the sake of argument that provisions of Section 23 of the Travancore-Cochin Act are saved by Section 9 of the Kerala Act and are applicable to the High Court of new State of Kerala, in our considered opinion since provisions contained in Section 98 of the Code is a special law as compared to the general law contained in Section 23 of the Travancore-Cochin Act read with Section 9 of the Kerala Act, the special law will prevail over the general law and the provisions of Section 98 of the Code in all its terms will have to be applied to civil appeals arising from civil suits which are regulated by the Code. We have reached the conclusion as stated above that clause 36 of the Letters Patent of Madras High Court on practice and procedure and powers of Judges is not applicable to any part of the new territory of State of Kerala and to the new High Court of that State. Law with regard to the practice, procedure and powers of Judges as contained in the Kerala Act, would be applicable uniformly to all the territories now forming part of new State of Kerala and the High Court established for it. We have also held even on assumption that Section 23 of the Travancore-Cochin Act is saved under Section 9 of the Kerala Act that since the said Kerala Act is a general law , it has to give place to Section 98 of the Code of Civil Procedure which is a special law applicable to Civil Appeals arising from Civil Suits. In our considered view, Sub-section (3) of Section 98 of the Code of Civil Procedure also cannot be taken aid of by the petitioner for seeking resolution of difference of opinion between two judges by third or more Judges of the High Court. As has been seen above sub-section (3) of Section 98 of the Code gives over-riding effect to Letters Patent of any High Court and if in it there is a provision indicating a procedure for resolving conflict between Judges of a bench different from one provided in sub-section (2) of Section 98 of the Code, the provisions of Letters Patent of High Court shall prevail. Letters Patent is a word of definite legal meaning. It is derived from Latin word "literae patents." The letters patent are so called because "they are open letters; they are not sealed up, but exposed to view, with the great seal pendant at the bottom; and are usually directed or addressed by the king to all his subjects at large. And therein they differ from certain other letter of the king, sealed also with the great seal, but directed to particular persons, and for particular purposes: which therefore, not being proper for public inspection, are closed up and sealed on the outside, and are thereupon called writs close, literae clausae, and are recorded in the close-rolls, in the same manner as the others are in the patent-rolls." (See Blackstone s Commentaries on the Laws of England volume II pages 284-285). Different Letters Patents have been handed down by the Sovereign in British India, to chartered High Courts which included only Judicature for Bengal, Madras, Bombay, North-West Provinces (Allahabad) and others like Patna (1916), Lahore (1919), Rangoon (1922). The history of these courts is that the sovereign established them as superior courts in British India under the Indian High Courts Act of 1861 and powers and jurisdiction of courts including Judges of these courts were laid down in Letters Patent. [See The Law and Custom of the Constitution by Sir William R. Anson Vol .II (The Crown Part-II) pages 317-318 under the Headings "Irish, Indian and Overseas Courts]. Undisputedly, High Court of Kerala is not a Chartered High Court and was not a court in British India. It was a High Court established after formation of the new State of Kerala in 1956 under S.R. Act of 1956. High Court of Kerala, therefore, has no Letters Patent. The Travancore-Cochin Act and Kerala Act are not Letters Patent of High Court and therefore they cannot be held to have been saved under the provisions of Sub-section (3) of Section 98 of the Code. It is interesting to note that provision similar to Section 98(2) of the Code of Civil Procedure, 1908 and proviso thereunder has been on the statute book in Section 577 of the old Civil Procedure Code of 1877. These provisions in the Code of Civil Procedure were in existence when Travancore-Cochin Act 1125 (Indian calendar 1948-49) and Kerala Act 1958 were enacted but at no point of time any change was made by amendment to sub-section (3) of Section 98 of the Code to give overriding effect along with Letters Patent of Chartered High Courts Act to other enactments dealing with formation of new High Courts for new States under the S.R. Act of 1956 or any other laws. In this legal situation and in view of our conclusion that Letters Patent of State of Madras is not applicable to any territory now within the territorial jurisdiction of High Court of Kerala, Sub-section (3) of Section 98 of the Code is of no assistance to the petitioner to claim reference of difference of opinion between the two Judges to one or more judges of the High Court. The learned judges of the Division bench of Kerala High Court were right in holding that in view of conflicting judgments delivered by them the decree of the subordinate court has to be confirmed strictly in terms of Section (2) of Section 98 of the Code. Sub-section (2) of Section 98 of the Code has a definite benevolent purpose. Where even number of Judges constituting a bench are divided in their opinion and there is no question of law which they consider necessary for reference to one or other judges for obtaining majority opinion, the judgment and decree of the subordinate court should be confirmed to put an end to the litigation. The law does not favour litigation to proceed further where the opinion of the judges in appeal is divided only on issues of fact. (Paras 31 to 37)

       (ii) Constitution of India-Article 136-Appeal by special leave-Common judgment of DB of Kerala High Court-Both Judges differing on every issue-No provision under Kerala High Court Act, 1958 to resolve difference-LP of Madras High Court or provision of Travancore Cochin High Court not applicable-Whether Apex Court can direct the High Court under Article 136 to resolve the conflict? (No)-SLPs dismissed.

       Held : The two learned Judges of the Kerala High Court constituting the Bench even on an assumption that Letters Patent of Madras High Court could be availed of in relation to the territory falling in Malabar District of erstwhile Madras State and now forming new State of Kerala, came to the conclusion that clause 36 of Madras Letters Patent of High Court does not cover a situation as is obtaining in cases before them where the two Judges differed on all issues of fact and law, have delivered two different judgments and not found necessary to state any point of law on which they differed for reference of the same to third or more Judges. It is on such understanding of the procedural provisions contained in the Code, Travancore-Cochin Act, and the Kerala Act read with Clause 36 of the Letters Patent of Madras High Court that the Judges forming the Division Bench came to the conclusion that there is no other option before them except to confirm the decree of the subordinate court in accordance with Sub-section (2) of Section 98 of the Code. (Para 11)

       Now the last alternative submission made on behalf of the petitioner needs to be considered. It is submitted that if this court does not find any ground to direct the High Court to refer the matter to one or more Judges of the High Court for resolving conflicting opinion in their judgments this Court should grant special leave to appeal to this Court under Article 136 of the Constitution of India so that the correctness of the two conflicting judgments of the Division Bench may be examined. In the course of arguments learned counsel appearing for the parties did not dispute that amongst several issues of fact arising in the cases, on the decision of the issues purely of fact such as want of readiness and willingness on the part of the plaintiff to seek Specific Performance of the Contract for sale of two theatres, the suit was liable to be dismissed in accordance with the opinion of one of the Judges constituting the bench. The appeals, therefore, could be decided finally in favour or against the plaintiff on issues of fact alone without requiring the Judges to express opinion on the other mixed issues of law and fact such as whether the properties in suit being in custodia legis through the Receiver appointed by the court the suits could not have been filed without obtaining leave of the Court. As we have found that the issues of facts arising between the parties in the suit and appeal were sufficient to decide the cases for or against the plaintiff, the cleavage of opinion between the two judges on the other mixed issues of law and fact is inconsequential. Their difference of opinion on mixed issues of law and fact even if it would have been referred for obtaining majority opinion of the Judges of the Court would not have changed the ultimate result of the appeals because the Judges had also differed on issues of fact and decision of one of them was sufficient for decision of the cases in appeals. Thus as the opinion of one of the Judges on issues of fact was decisive of the appeal, it would not be in accordance with the established practice of this Court to interfere by grant of special leave to appeal. Grant of special leave to appeal against judgments raising issues of fact which were determinative would be against the legislative intent contained in provisions of sub-section (2) of Section 98 of the Code. We find some support for our conclusion from the decision of this Court in Tej Kaur vs. Kirpal Singh [1995(5) SCC 119] in which full effect was given to the legislative mandate contained in sub-section (2) of Section 93 of the Code by confirming the decree of the Sub-ordinate Court in view of conflict of opinion between the two Judges who had delivered separate judgments but not referred any question of law for opinion of other Judges of the High Court. In that case, it was observed that "while exercising power under Article 136 the Court should not do any thing which would violate legislative mandate." In the result, we find no ground to grant special leave to appeal against the impugned common judgment of the Division Bench of the High Court of Kerala in all the cases before us. The Special Leave Petitions are therefore rejected but without any orders as to costs. (Paras 38 to 40)