Allampati Venkatasubbiah vs Chutti Venkatasubbamma and Others

Venkatasubba Rao, J.—My learned brother and myself were divided in opinion as to the decision in this appeal, I being for allowing the

appeal and my learned brother for dismissing it. The question was argued as to whose judgment should prevail.

It has been a uniform and invariable rule of this Court to apply Section 98 of the C.P.C. and to give effect to that judgment which confirms the

decree of the lower Court when the difference of opinion arises in appeals governed by Section 96 of the Code; the practice has been equally

uniform to give effect u/s 36 of the Letters Patent to the judgment of the Senior Judge when the Judges of the High Court are divided in opinion

when hearing appeals Tinder Section 15 of the Letters Patent.

Following this course, it is obvious that the judgment of my learned brother should prevail But Mr. A. Krishnaswami Iyer, the learned Vakil for

the appellant, has contended that the question has to be re-considered in view of the observations of their Lordships of the Privy Council in

Bhaidas Shivdas v. Bai Gulab 60 Ind. Cas. 822 : 45 B.P 718 : 40 M.L.J. 519 : 25 O.W.N. 605 : 33 C.L.J. 488 : 19 A.L.J. 409: 23 Bom. L.R.

623 : 3 U.P.L.R. (P.C.) 22 : 14 L.W. 7 : (1921) M.W.N. 408 : 29 M.L.T. 350 : 30 M.L.T. 149 : 48 I.A. 181 I shall first examine the relevant

provisions of the Letters Patent and the C.P.C. Section 15 of the Letters Patent provides for appeals to the High Court from the judgments of a

single Judge or two or more Judges of the High Court. Section 16 similarly provides for appeals to the High Court from the Civil Courts of the

Presidency and all other Courts subject to its superintendence. Then comes Section 36 and it enacts ""Any function which is directed to be

performed by the High Court maybe performed by any Judge or by any Division Court; 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.... If the Judges should be equally divided, then the opinion

of the Senior Judge shall prevail.

So far there can be no doubt that the result is the same whether the appeal is u/s 15 or u/s 16, that is to say, if the Judges are equally divided the

opinion of the Senior Judge should prevail. But the provisions of the Letters Patent are by Section 44 made subject to the legislative powers of the

Governor- General in Council. Section 96 of the C.P.C., runs thus:

Save where otherwise expressly provided in the body of this Code or by any other law for the time being in force, an appeal shall lie from every

decree passed by any Court exercising original jurisdiction to the Court authorized to hear appeals from the decisions of such Court.

Appeals to the High Court governed by Section 15 of the Letters Patent from decisions of a single Judge or of two or more Judges are

excluded from the operation of Section 96 of the C.P.C., the reason being that they are otherwise expressly provided for. I cannot agree with the

contention of Mr. Krishnaswami Iyer that the opening words of Section 96 refer only to the negation of a right of appeal. His construction that

those words mean only ""unless a right of appeal is excluded"" seems too narrow and must be rejected. They are more comprehensive and clearly

exclude cases where appeals are provided for by any other enactment. Appeals, therefore, u/s 15 of the Letters Patent are outside the ambit of

Section 96 of the C.P.C. The scope of Section 98 is determined by the scope of Section 96. As Section 97 does not govern appeals u/s 15 of the

Letters Patent but is applicable only to appeals u/s 16, so is the scope of Section 98 limited to the latter class of appeals only. As the present

appeal is governed by Section 96, the judgment of my learned brother, confirming as it does the decree of the lower. Court, ought to prevail. The

C.P.C. has varied Section 36 of the Letters Patent to this extent.

Now let me turn to the decision quoted above, Bhaidas Shivdas v. Bai Gulab 60 Ind. Cas. 822 : 45 B.P 718 : 1921 40 M.L.J. 519 : 25

O.W.N. 605 : 33 C.L.J. 488 : 19 A.L.J. 409: 23 Bom. L.R. 623 : 3 U.P.L.R. (P.C.) 22 : 14 L.W. 7 : (1921) M.W.N. 408 : 29 M.L.T. 350 : 30

M.L.T. 149 : 48 I.A. 181 The case was originally decided by a Judge of the High Court of Bombay exercising Ordinary Original Civil Jurisdiction.

An appeal from his decision was heard by Scott, C.J. and Heaten, J., who differing in opinion referred the case under the proviso to Section 98 to

the decision of two other Judges of the High Court. The Privy Council held that the course taken was wrong. Their Lordships of the Judicial

Committee were dealing with the case of an appeal from the judgment of Single Judge of the High Court of Bombay; and as I have shown, Section

96 cannot apply in such a case, but their Lordships do not say that even if an appeal falls, within Section 96, the same result follows. But the

learned Vakil for the appellant contends that the view he presses logically follows from the observations made by their Lordships. I cannot agree.

Section 4 of the C.P.C. is referred to in the judgment, and it says that in the absence of any specific provision to the contrary nothing in the Court

shall be deemed to affect any special form of procedure prescribed by any law for the time being in force. There is a special form of procedure

prescribed by Section 36 of the Letters Patent. Is not that special form of procedure affected by a specific provision to the contrary in Section 98?

It is true that unless an appeal falls u/s 96, Section 98 cannot apply. Their Lordships, however, were not concerned with Section 96 and their

Lordships'' observation cannot be read as applying to a case with which they were not dealing. As the Judicial Committee observed in Hari

Bakhsh Vs. Babu Lal, ""to understand and apply a decision of the Board or of any Court, it is necessary to see what were the facts of the case in

which the decision was given and what was the point which had to be decided"". I cannot hold that the Privy Council intended to reverse by this

decision a settled course of uniform and invariable practice.

Mr. Krishnaswami Iyer has argued that Section 36 of the Letters Patent applies in terms to Chartered High Courts whereas Section 98 of the

C.P.C. does not do so but is general in its wording and cannot be deemed to contain a specific provision to the contrary as contemplated by

Section 4. I cannot accede to this argument. There may be other Courts than Chartered High Courts presided over by a Bench of two or more

Judges. But the language of Section 98 is comprehensive enough to take in a Chartered High Court and Section 117 specially makes the

provisions of the Code with certain exceptions applicable to Chartered High Courts. The opinion of my learned brother, therefore, prevails and the

appeal is dismissed with costs.

Jackson, J.

I agree.