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Rajendra Kishore Sahi Vs. Nand Prasad - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Reported inAIR1938All641
AppellantRajendra Kishore Sahi
RespondentNand Prasad
Excerpt:
- - according to the appellant this section clearly governs this case and therefore the points of fact upon which the judges differed must be referred-to another judge or judges for his or their opinion. the respondent contends that this section clearly governs the present case and, as there has been no disagreement on any question of law, and there is no majority which concurs in a judgment reversing the decree appealed from, such decree must be confirmed. clearly appeals which have been preferred under the provisions of clause 10, letters patent, are governed by clause 27, letters patent, because the division bench hearing a letters patent appeal is obviously performing a function which the letters patent direct this court to perform. if it does not, then clearly clause 27, letters.....harries, j.1. this is a reference to a full bench by a division bench in a case in which the two learned judges constituting that bench have disagreed on questions of fact. the suit out of which the appeal arises was brought by the plaintiff for a sum of rs. 12,477-4-6 being as to rs. 5177-4-6 expenses alleged to be due to the plaintiff and as to rs. 7300, arrears of salary alleged to be due to the plaintiff. the defendant denied the alleged terms of employment and pleaded that the plaintiff had received all that he was entitled to. the learned civil judge who heard the case at first instance decreed the plaintiff's claim for rs. 1950 only and against that decree the defendant preferred a first appeal to this court. the learned judges constituting the division bench which heard the appeal.....
Judgment:

Harries, J.

1. This is a reference to a Full Bench by a Division Bench in a case in which the two learned Judges constituting that Bench have disagreed on questions of fact. The suit out of which the appeal arises was brought by the plaintiff for a sum of Rs. 12,477-4-6 being as to Rs. 5177-4-6 expenses alleged to be due to the plaintiff and as to Rs. 7300, arrears of salary alleged to be due to the plaintiff. The defendant denied the alleged terms of employment and pleaded that the plaintiff had received all that he was entitled to. The learned Civil Judge who heard the case at first instance decreed the plaintiff's claim for Rs. 1950 only and against that decree the defendant preferred a first appeal to this Court. The learned Judges constituting the Division Bench which heard the appeal disagreed. Thorn J. (as he then was) accepted the defendant's contentions and would have allowed the appeal and would have dismissed the plaintiff's claim in its entirety. Iqbal Ahmad J. was however of opinion that the decree of the learned Civil Judge should be maintained and he would have dismissed the appeal. It is to be observed that the points upon which the learned Judges differed involved purely questions of fact and no point of law arose in the case. The question then arose as to what course the Bench should follow. Conflicting decisions in this Court and other Courts were cited to the Bench and eventually they referred the matter to the learned Chief Justice for the constitution of a larger Bench to decide the question as to what course should be followed in this case. This Full Bench has now been constituted to decide the matter.

2. Unfortunately, the Division Bench in their referring order do not formulate a precise question to be answered but in my view the question which arises and which we have to decide can be stated in these terms : 'Is the procedure to be adopted by this Court in case of an equal division of opinion between Judges constituting a Division Bench hearing a first appeal to be governed by Clause 27 of the Letters Patent of this Court or by Section 98, Civil P.C.' The appellant has contended that the procedure to be adopted in cases of this kind is that laid down in Clause 27 of the Letters Patent of this Court. That Clause reads as follows:

And we do hereby declare that any function which is hereby directed to be performed by the said High Court of Judicature at Allahabad 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 purpose in pursuance of Section 108, Government of India Act, 1915, 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 if there shall be a majority, but if the Judges should be equally divided they shall state the 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.

3. It is to be observed that Clause 27 of our Letters Patent applies to oases not only of differences of questions of law but also to cases where the Judges have differed on questions of fact and this Section directs that where there is such a difference of, opinion the learned Judges must state the point or points upon which they differ and such point or points must then be decided : by another Judge or Judges and eventually the point or points are to be decided according to the opinion of the majority of the Judges who have heard the case including, those who first heard it. According to the appellant this Section clearly governs this case and therefore the points of fact upon which the Judges differed must be referred-to another Judge or Judges for his or their opinion. On the other hand the respondent contends that this matter is governed by Section 98, Civil P.C., which is in these terms:

(1) Where an appeal is heard by a Bench of two. or more Judges, the appeal shall be decided in accordance with the opinion of such Judges or of the majority (if any) of suoh Judges.

(2) Where there is no such majority which concurs in a judgment varying or reversing the decree appealed from, such decree shall be confirmed:

Provided that where the Bench hearing the. appeal is composed of two Judges belonging to a Court consisting of more than two Judges and the Judges composing the Bench differ in opinion on a point of law, they may state the point of law upon which they differ and the appeal shall then be heard upon that point only by one or more of the other Judges, and such point shall be decided according to the opinion of the majority (if any) of the Judges who have heard the appeal including those who first heard it.

(3) Nothing in this Section shall be deemed to alter or otherwise affect any provision of the Letters Patent of any High Court.

4. It may be observed that the Proviso to this Sub-section 2 only deals with a case in which the Judges composing a Division Bench have disagreed on a point of law. Further it is not obligatory on such a Bench to state the point of law upon which they differ but they may do so. The respondent contends that this Section clearly governs the present case and, as there has been no disagreement on any question of law, and there is no majority which concurs in a judgment reversing the decree appealed from, such decree must be confirmed. The appellant however contends that Section 98, Civil P.C., has no application to the facts of the present case by reason of the provisions of Sub-section (3) of that Section. That sub-section makes it clear that nothing in Section 98 is to be deemed to alter or otherwise affect any provision of the Letters Patent of any High Court. Accordingly it is argued that as Section 27 of our Letters Patent deals with the procedure to be adopted in case of disagreement that Section still applies as it has not been affected in any way by Section 98, Civil P.C.

5. The respondent however contends that Section 27, Letters Patent of this High Court does not govern the procedure to be adopted with regard to appeals brought otherwise than under Section 10, Letters Patent. In short the argument is that Section 27, Letters Patent, applies only to Letters Patent appeals proper, that is appeals from decisions of single Judges of this Court hearing matrimonial and testamentary suits and company matters and appeals where a single Judge of this Court has granted leave to appeal under Letters Patent. It is urged that Section 27 has no application to other appeals because such are not heard by this Court under any provisions of the Letters Patent, but on the contrary are heard by this Court by reason of the provisions of the Civil Procedure Code and the Bengal, Agra and Assam Civil Courts Act, 1887. The Civil Procedure Code by Section 96 gives a right of appeal but does not state to which Court such appeals will lie. Section 21, Bengal, Agra and Assam Civil Courts Act, 1887, provides however that appeals from decrees of a Subordinate Judge where the value of the original suit does not exceed Rs. 5000 lie to the District Judge and all other appeals lie to the High Court. It is contended that the jurisdiction of this Court to hear a first appeal is conferred upon this Court by the Code and the Bengal, Agra and Assam Civil Courts Act, 1887 and therefore the provisions of the Code as to the procedure to be followed in case of disagreement must apply and that the provisions of the Letters Patent dealing with such an event are wholly inapplicable.

6. There is a great mass of conflicting authority upon this question. Recent Full Bench decisions of the Madras and Lahore High Courts however favour the view that in case of a disagreement between Judges constituting a Division Bench hearing a first appeal, the provisions of the Letters Patent of those Courts apply and not the provisions of Section 98 of the Code. In Dhanaraju v. Motilal Daga (1929) 16 A.I.R. Mad. 641 the learned Judges hearing certain miscellaneous appeals arising out of execution proceedings in a mofussil Court disagreed and the matter was referred to a Full Bench to decide what procedure was to be adopted. After a full consideration of the authorities a Pull Bench consisting of Kumaraswami Sastri, Ramesam and Reilly JJ. held that in such a case the procedure to be followed was that laid down in Section 36, Letters Patent of the Madras Court (corresponding to Section 27, Letters Patent of this Court) and not by Section 98, Civil P.C. A similar view was taken by a Pull Bench of the Lahore High Court in Mt. Sardar Bibi v. Haq Hawaz Khan (1934) 21 A.I.R. Lah. 371 In that case the members composing a Division Bench disagreed in an appeal from a decree passed by a learned District Judge and the question as to what procedure was to be followed was referred to the Pull Bench. The Pull Bench consisting of Tek Chand, Dalip Singh and Abdul Qadir JJ. held that as a result of the addition of Sub-section (3) to Section 98, Civil P.C., made by the Repealing and Amending Act (Act 18 of 1928), that Section had no application to cases hearing by a Division Bench of a Chartered High Court whether on appeals from decrees of Subordinate Courts or from decrees passed by a Judge of the High Court on the Original Side. All cases of difference of opinion among Judges composing a Division Bench are governed by Clause 26, Letters Patent (corresponding with our Clause 27) and the Division Bench should state expressly the points of difference. On the other hand there are a number of Bench decisions of this Court and other High Courts to the contrary and I shall deal with these later in this judgment. Section 27, Letters Patent of this Court opens with these words:

And we do hereby declare that any function which is hereby directed to be performed by the said High Court of Judicature at Allahabad in the exercise of its original or appellate jurisdiction may be performed by any Judge or by any Division Court....

7. Then follow the provisions as to the procedure to be applied in case of difference of opinion. Clearly appeals which have been preferred under the provisions of Clause 10, Letters Patent, are governed by Clause 27, Letters Patent, because the Division Bench hearing a Letters Patent appeal is obviously performing a function which the Letters Patent direct this Court to perform. Is a Division Bench of this Court hearing an ordinary first appeal performing a function which the Letters Patent direct this Court to perform? If it does not, then clearly Clause 27, Letters Patent, can have no application in cases of disagreement. However if, in hearing a first appeal, this Court is performing a function directed by the Letters Patent, then it appears to me to follow from the precise terms of Clause 27 that the provisions relating to the procedure in case of disagreement are those laid down in Section 27, Letters Patent, and not those laid down in Section 98, Civil P.C. The recent addition of Sub-section 3 to Section 98, Civil P.C., makes that Section inapplicable if the case falls within any of the provisions of th6 Letters Patent. The Clause of the Letters Patent relating to the civil appellate jurisdiction of this Court is Clause 11 which is in these terms:

And we do further ordain that the said High Court of Judicature at Allahabad shall be a Court of Appeal from the Civil Courts of the said territories and from all other Courts to which there is now an appeal to the Sudder Dewanny Adawlat and shall exercise appellate jurisdiction in such cases as are subject to appeal to the said High Court by virtue of any laws or regulations now in force.

8. This Section clearly directed the High Court to exercise appellate jurisdiction in such cases as were subject to appeal to the High Court by virtue of any laws or regulations then in force. In order to fully understand the effect of this Section it is necessary in my view shortly to consider the position existing before the Letters Patent to the various High Courts were granted. In 1861 the British Legislature passed the High Courts Act which provided for the creation of High Courts in the three Presidencies of Madras, Bengal and Bombay. Section 8 of that Act provided that when the three High Courts came into existence the Appellate Courts then existing were to be abolished. Those Courts were the Supreme Court, the Courts of Sudder Dewanny Adawlat, Sudder Nizamat Adawlat and Sudder Faujdar Adawlat and Section 9 of the Act provided that the jurisdiction of the abolished Courts was thereafter to be vested in the High Courts of the three Presidencies.

9. Section 16, High Courts Act, 1861 provided for the establishment thereafter by Letters Patent of High Courts in other areas and it was under the provisions contained in this Section that Letters Patent were issued by her Majesty Queen Victoria creating the High Court for the North Western Provinces at Allahabad. Section 16 provides that subject to the provisions of the Letters Patent creating a High Court in areas other than the Presidencies, all the provisions of the Act should apply to such Court. Before the Letters Patent were granted to this Court in 1865, the Civil Appellate Court was the Sudder Dewanny Adawlat and by reason of the High Courts Act, 1861 and the Letters Patent, 1865 the Court of the Sadder Dewanny Adawlat was abolished and its appellate jurisdiction was vested in this Court. Thereafter this Court became the Appellate Court for the whole of the Provinces exercising the old jurisdiction of the Sudder Dewanny Adawlat. The Court of Sudder Dewanny Adawlat undoubtedly heard first and second appeals: see Sections 332 and 379 (Act 8 of 1859) and Sections 23 and 25 (Act 23 of 1861). This jurisdiction undoubtedly vested in this High Court by reason of the provisions of Sections 8, 9 and 16 (High Courts Act, 1861) the moment this Court came into existence after the granting of the Letters Patent. It follows therefore that this Court was first given jurisdiction to hear first appeals by the Letters Patent which were issued to this Court pursuant to the provisions of the High Courts Act, 1861.

10. The question now arises whether the jurisdiction of this Court to hear first appeals is still given to it by Section 11, Letters Patent, or has that Section been repealed by some other statute and jurisdiction granted by such repealing statute? Clause 35, Letters Patent of this Court provides for possible amendment or repeal of the provisions of the Letters Patent by the Governor-General in Legislative Council or the Governor. General in Council. In my view however this Court would not readily hold that an enactment not expressly purporting to repeal or amend the Letters Patent had impliedly done so. In oases however where the provisions of an Act of the Central Legislature are wholly at variance or in. consistent with the Letters Patent, such repeal or amendment would have to be implied.

11. As I have stated Section 96, Civil P.C., does not in terms give this Court jurisdiction to hear appeals. It merely states that an appeal shall lie from every decree passed by any Court exercising original jurisdiction to the Court authorized to hear appeals from the decisions of such Court. By Section 11, Letters Patent, this Court was authorized to hear all appeals which the Court of Sudder Dewanny Adawlat was authorized so to do. As I have stated Section 21 of the Bengal, Agra and Assam Civil Courts Act, 1887, now provides that in oases where the value of the original suit does not exceed Rs. 5000 the appeal from the decree of a Subordinate Judge is to lie to the District Judge, whereas in other cases it is to lie to this Court. Can it be argued that at the present day it is this Section of the Civil Courts Act, 1887, which gives this Court jurisdiction to hear first appeals where the original suits were valued at more than Rs. 5000? Section 21 does not in terms direct this Court to hear such appeals. It merely states that such appeals will lie to this Court. Further this Act does not purport to repeal or amend in any way the provisions of the Letters Patent of this Court or of the High Court of Calcutta. Again this Section if it does confer any jurisdiction does not confer upon this Court any juris, diction which it did not previously possess. Section 21 of the Bengal, Agra and Assam Civil Courts Act, 1887, is merely a re-enactment with slight variation of Section 22, Bengal Civil Courts Act, 1871, and that latter Section re-enacts with slight variation earlier provisions contained in the various Bengal Regulations which were in force when this High Court came into existence.

12. In 1865 when the Letters Patent to this Court were granted, first appeals of low denomination did not lie to the Court of the Sudder Dewanny Adawlat, though that latter Court had by Act 8 of 1859 jurisdiction to hear special appeals (similar to the present second appeals) from the decisions in regular appeals by the Courts subordinate to it. It will be seen therefore that Section 21 of the Bengal, Agra and Assam Civil Courts Act, 1887, does not confer jurisdiction upon this Court for this first time but merely deals with the class of case in which a first appeal should not lie to this Court. The Section confers no new jurisdiction and the most that can be said of it is that it might have taken away jurisdiction which otherwise this Court would have had. In my judgment the Bengal, Agra and Assam Civil Courts Act, 1887, and the earlier statute which it replaced, did not confer any jurisdiction upon this Court but merely affirmed jurisdiction which it already possessed. In my judgment this Court even to-day derives its jurisdiction to hear first appeals from the provisions of the Letters Patent which were granted pursuant to the High Courts Act, 1861.

13. Immediately after the Letters Patent were granted it appears to have been agreed that the High Courts did derive their jurisdiction to hear first appeals from the provisions of the Letters Patent and consequently the provisions of the Letters Patent relating to cases of disagreement between Judges of a Division Bench hearing a first appeal were governed by the terms of the Letters Patent. This was held by a Full Bench of the Madras High Court in 1870 in Nundeeput Mahta v. Mr. Alexander Shaw Urquhart (1870) 13 W.R. 209. In that case it was held that where two Judges of a Division Bench differ, instead of a reference and a re-argument before one or more other Judges, as provided by Section 23 (Act 23 of 1861), the practice under Section 36, Letters Patent of 1865 (corresponding to Section 27, Letters Patent of this Court) is that the judgment of the Senior Judge prevails. It is to be observed that before any High Court was created, Section 23 (Act 23 of 1861) provided the procedure which was to be followed in the then Appellate Courts when members of a Bench differed. This Full Bench case of the Madras High Court3 makes it clear that after the creation of the High Courts the provisions of their respective Letters Patent were to apply in cases of disagreement in first appeals and not the provisions of the earlier statute which were in existence at the date the High Courts came into being.

14. In 1877 a new Civil Procedure Code was enacted and in it were provisions somewhat similar to the provisions of the present Section 98, Civil P.C., without however anything corresponding to the present Sub-section 3 of that Section. These provisions were re-enacted by Section 575, Civil P.C. of 1882. That Section however did not contain anything corresponding to the present Sub-section 3 of Section 98, Civil P.C., and further neither of these Codes had any provision corresponding to the present Section 4, Civil P.C. After the enactment of these Codes of 1877 and 1882, Courts in India were inclined to the view that the provisions of Section 75 of the 1882 Code had repealed or amended the provisions of the Letters Patent of the various High Courts and the trend of decisions was to the effect that Clause 27, Letters Patent of this Court and corresponding Clauses in the Letters Patent of other High Courts must be confined to Letters Patent appeals proper and did not apply to first appeals and appeals brought under the provisions of the Code or any other Act. This was held in this Court in the Full Bench case in Husaini Begam v. Collector of Muzaffarnagar (1889) 11 All. 176. The Code of 1882 was repealed and replaced by the Civil Procedure Code, 1908, and for the first time there appeared a saving Section, viz. Section 4, Civil P.C., 1908, which provides that in the absence of any specific provision to the contrary, nothing in the Code is to be deemed to limit or otherwise affect any special or local law then in force or any special jurisdiction or power conferred or any special form of procedure prescribed by any other law for the time being in force. After the 1908 Code was enacted the members of a. Division Bench of the Bombay High Court disagreed in an appeal from a single Judge of that Court sitting on the Original Side and the question upon which the learned Judges disagreed was referred under Section 98(2) of the 1908 Code to two Judges without the parties objecting to the juris, diction. After such a reference the case was decided against the plaintiff who appealed to His Majesty in Council. In that appeal, Bhai Das Shiv Das v. Bai Gulab (1921) 8 A.I.R. P.C. 6 their Lordships held that Clause 36, Letters Patent of the Bombay High Court which provided that if Judges composing a Division Bench were equally divided in opinion the opinion of the Senior Judge was to prevail was not affected by Section 98(2), Civil P.C., 1908 which provided a different procedure in those circumstances.

15. It has been argued strenuously by the appellant that this case disposes of the question which is now before this Pull Bench and such appears to have been the view of the Full Bench of the Madras High Court in Dhanaraju v. Motilal Daga (1929) 16 A.I.R. Mad. 641. This decision of the Privy Council does lay down most clearly that the provisions of the Civil Procedure Code of 1908 did not repeal or amend in any way the provisions of the Letters Patent of the various High Courts and it is to be observed that this decision of their Lordships of the Privy Council was given before the present Sub-section 3 to Section 98, Civil P.C., was added to that Section. However it must be remembered that in Bhai Das Shiv Das v. Bai Gulab (1921) 8 A.I.R. P.C. 6 the appeal which gave rise to the disagreement was an appeal under the express provisions of the Letters Patent of the Bombay High Court because it was an appeal from a single Judge sitting on the Original Side and therefore was brought under Clause 15, Letters Patent of that Court. The language used by Lord Buckmaster who delivered the judgment of the Board is wide enough to cover the cases of all appeals, but the actual decision merely amounts to this, that in cases of disagreements between Judges composing a Division Bench hearing an appeal Letters Patent are to apply. The view expressed by their Lordships in this case had already been expressed by this Court in Lachman Singh v. Ram Lagan Singh (1903) 26 All. 10. That case also was a case in which members of a Bench hearing a Letters Patent appeal brought under the provisions of Clause 10, Letters Patent, had disagreed.

16. It is however to be observed that their Lordships of the Privy Council did approve of the case in Nundeeput Mahta v. Mr. Alexander Shaw Urquhart (1870) 13 W.R. 209 which was a case where there had been a disagreement between Judges composing a Division Bench hearing an appeal from a mofussil Court in an execution matter. Though their Lord, ships do not expressly state that the provisions of the Letters Patent are to govern the procedure in case of disagreement between Judges hearing a first appeal, the fact that this latter Madras case is cited with approval together with the generality of the language used strongly suggests that their Lordships were of opinion that the provisions of the Letters Patent apply not only to cases of disagreement between Judges hearing a Letters Patent appeal but also to oases of disagreement between Judges hearing a first appeal. This decision of the Privy Council, though it does not in terms conclude the matter, is in my view a very strong authority for the appellant's contention that the provisions of the Letters Patent govern the procedure to be adopted in the case which we are now discussing. In my view it is clear that neither the Civil Procedure Codes of 1877 or 1882 repealed or amended Clause 27, Letters Patent of this Court for, if they had, Section 4 of the 1908 Code could never have revived that Clause and it is clear that after 1908 the Clause of the Letters Patent of the Bombay High Court corresponding with Clause 27 of our Letters Patent was still effective and unrepealed. I have already given my reasons for holding that Section 21 of the Bengal, Agra and Assam Civil Courts Act, 1887, does not repeal or amend the Letters Patent and accordingly I hold that Section 27 of our Letters Patent governs the procedure in cases of disagreement in first appeals as well as Letters Patent appeals as it did immediately after the Letters Patent were granted.

17. A contrary view has been taken by this Court in a number of recent decisions. In Fazl-ur-Rahman v. Abdullah : AIR1932All195 a Bench of this Court held that where an appeal was heard by a Bench of two Judges and the Judges differed, then if the appeal was a Letters Patent appeal the procedure was governed toy Clause 27, Letters Patent, but if the appeal was one under the Civil Procedure Code, the procedure was governed by Section 98, Civil 5 P.C. In this case it is to be observed that the Bench did not consider the question whether the appeal - which in that case was a second appeal - was an appeal which this Court heard by virtue of the jurisdiction granted to it by the Letters Patent. They assumed that the appeal was one under the Civil Procedure Code. Clause 11, Letters Patent of this Court is not referred to and with great respect to the learned Judges who decided that case I am of opinion that it cannot be relied upon as an authority for the respondent's contention in the present case.

18. In Harakh Narain Singh v. Babban : AIR1933All473 a Bench of this Court had to consider what was the pro-cedure to be followed when the Judges composing a Division Bench did not agree in confirming the adjudication made by the lower Court in respect of one item. That Bench held that the decree or adjudication relating to that item must be confirmed, tout at the same time they held that if the learned Judges agreed in reversing the decree or adjudication by the lower Court as regards another item in dispute the decree in respect of such item should be varied. In short they held that where the -document described as the 'decree' contained adjudications regarding several items each adjudication was a decree as defined in Section 2(2), Civil P.C., and the provisions of Section 98, Civil P.C., should be applied with reference to the adjudication of each item. It does not appear to have been contended that the procedure in disagreement in first appeals was governed by the provisions of the Letters Patent. The learned Judges purported to follow earlier cases of Madras and Lahore and the point before us does not appear to have been seriously argued. The question again arose in an unreported first appeal, Nagendra Nath Palit v. mahendra Nath Dey First Appeal No. 50 of 1931. In that appeal the members of the Bench disagreed and eventually they came to the conclusion that the provisions of Section 98, Civil P.C., governed the procedure to be followed and not the provisions of the Letters Patent. From the judgment it would appear that the point before us was not argued at length and the learned Judges followed the earlier decisions of this Court to which I have just referred.

19. The last case of this Court is the case in Mubarak Husain v. Sagar Mal : AIR1938All321 . In that case, which was a first appeal, the learned Judges composing the Bench had differed and the point of difference was referred to a third Judge under Clause 27 of the Letters Patent. The third learned Judge in his judgment did make some observations suggesting that in case of disagreement in a first appeal the provisions of Section 98, Civil P.C., apply. However it is clear that the point did not actually arise in that case and the observations were in the nature of obiter dicta. Previous to the Lahore Full Bench case to which I have referred a Bench of the Lahore High Court in Punjab Akhbarat and Press Co. Ltd. v. C.M.G. Ogilvie (1926) 13 A.I.R. Lah. 65 had held that where a first appeal is heard by a Bench composed of two Judges who differ in opinion, the decision of the appeal is to be regulated by Section 98, Civil P.C. It is to be observed however that Sir Shadi Lal C.J. makes it clear that he would have held the contrary had he not felt bound by authority. At p. 70 he says:

If the matter was res integra I would be inclined to adopt the view that the Clause of the Letters Patent prescribing the method of procedure in the event of a difference of opinion between two Judges composing a Division Bench governs all appeals heard by the High Court and that it is immaterial whether they are appeals within the High Court itself or from Courts of inferior jurisdiction.

20. As I have pointed out, later a Pull Bench of the Lahore High Court took the view which Sir Shadi Lal would have taken had he not felt himself bound by previous authority. A Bench of the Calcutta High Court in a comparatively recent case in Prafulla Kamini Ray v. Bhabani Nath Roy (1926) 13 A.I.R. Cal. 121 have also held that where the members of a Bench hearing an appeal from a subordinate Court differ, the procedure must be governed by Section 98, Civil P.C. Page J. appears to have been of opinion that until the Code of Civil Procedure of 1877 the provisions of the Letters Patent relating to disagreement applied to all appeals whether from single Judges of a High Court or from decrees of subordinate Courts. He however was of opinion that the provisions in the Codes of 1877 and 1882 (corresponding to the present Section 98, Civil P.C.) repealed the provisions of the Letters Patent in so far as they applied to appeals from decisions of Subordinate Courts. He however has to concede that the provisions in the Letters Patent relating to the procedure to be followed in case of disagreement between members of a Bench hearing a Letters Patent appeal were not repealed by either the Codes of 1877 or 1882. It is clear from the decision of their Lordships of the Privy Council in Bhai Das Shiv Das v. Bai Gulab (1921) 8 A.I.R. P.C. 6 that the provisions in the Letters Patent relating to disagreement were not repealed by either of the Codes of 1877, 1882 or 1908 in spite of the fact that there was no Section in the two earlier Codes saving forms of procedure prescribed by previous enactments. In short Page J.'s view was that Clause 36 of the Letters Patent of the Calcutta High Court (corresponding to Clause 27 of the Letters Patent of this Court) was superseded in those cases only to which Section 575, Civil P.C. 1882, properly and without straining language applied. He appears to have thought that to apply the provisions of Section 575 of the 1882 Code to Letters Patent appeal proper would be straining the language of that Section, but such provisions could be applied to appeals other than Letters Patent appeals without any undue straining of the phraseology of that Section.

21. As I have stated previously Section 98 of the 1908 Code is in very similar terms to Section 575, Civil P.C., and the wording is wide enough to cover not only appeals of subordinate Courts but also Letters Patent appeals. The Section deals with a case where an appeal is heard by a Bench of two or more Judges and there is a disagreement. The Section merely uses the phrase 'an appeal' and does not in terms except an appeal from its ambit. In spite of that however their Lordships of the Privy Council in Bhai Das Shiv Das v. Bai Gulab (1921) 8 A.I.R. P.C. 6 held quite clearly that Section 98, Civil P.C., did not govern the procedure in Letters Patent appeal and it is difficult to appreciate the reasoning of Page J. as to why the Section in any way affected the previous law which undoubtedly was that the provisions of Clause 27 of our Letters Patent governed also cases of disagreement in Benches hearing appeals from the lower Courts. It appears to me that no distinction can be drawn between these two cases of appeals when considering the applicability of Section 98, Civil P.C.

22. It has been contended that if Clause 27 of the Letters Patent of this Court governs the procedure to be followed in case of disagreement between Judges hearing an appeal from the lower Courts, then Section 98, Civil P.C., is a dead letter and can have no application at all. That might well be so, but in my view that is no reason for giving a forced construction to Clause 27 of the Letters Patent. Section 98(3) makes it abundantly clear that that Section is not to affect any of the provisions of the Letters Patent of any High Court and once it is held that appeals from lower Courts are heard and determined by this Court under powers granted to it by the Letters Patent, then it must follow that the provisions of Section 27 of the Letters Patent must apply not only to cases of disagreement in Letters Patent appeals but also to cases of disagreement in first appeal. It appears to me that little, if any, distinction can be drawn between cases of disagreement between Judges composing a Bench hearing first appeals or second appeals. The matter however does not arise in this particular reference and therefore I prefer to express no opinion upon that question. The matter-can only properly be decided in a case where disagreement between Judges hearing a second appeal has actually occurred.

23. For the reasons which I have given I would hold that where two Judges composing a Division Bench hearing a first appeal have disagreed either in law or in fact the point or points upon which they have disagreed must be stated and referred to another Judge or Judges and that the point or points must be decided in accordance with the opinion of the majority of the Judges including the two Judges who originally heard the appeal.

Bennet, Ag. C.J.

24. I agree.

Collister, J.

25. I agree.

26. The question submitted is therefore answered as follows: Where two Judges comprising a Division Bench hearing a first appeal have disagreed either in law or in fact the procedure to be followed is that laid down in Clause 27 of the Letters Patent of this Court and not that laid down in Section 98, Civil P.C.


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