P.V. HEMALATHA versus KATTAMKANDI PUTHIYA MALIACKAL SAHEEDA AND ANR.

Citation: [2002] 3 S.C.R. 1098 · Decided: 20-05-2002 · Supreme Court of India · Bench: D.P. MOHAPATRA · Disposal: Dismissed After
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Judgment (excerpt)

A 
P.V. HEMALATHA 
v. 
KATTAMKANDI PUTHIYA MALIACKAL SAHEEDA AND ANR. 
MAY 20, 2002 
B 
[D.P. MOHAPATRA, BRIJESH KUMAR AND D.M. 
DHARMADHIKARI, JJ.) 
Code of Civil Procedure, I908-Sections 96 and Proviso to Section 
98(2)-Suit- Dismissal of-Suit property situated in part of erstwhile State of 
C Madras and new State of Kera/a-Appeal under Section 96 before High Court 
of Kera/a-Conflict of opinion between Judges of Division Bench of the High 
Court-Confirmation of order of subordinate Court in terms of proviso to 
Section 98(2) as difference was not found on point of law-Plea that matter 
was required to be referred to third Judge for majority opinion by taking 
D recourse to Clause 36 of Letters Patent of Madras High Court, Section 23 of 
Travancore-Cochin Act and Section 98(3) CPC-Held, order of subordinate 
Court was rightly confirmed-Case not required to be referred to third Judge-
Since clause 36 of Letters Patent of Madras High Court on 'Practice and 
Procedure' and 'Powers of Judges ' is not applicable to any territory of State 
of Kera/a-Since Section 23 of Travancore-Cochin Act is not applicable to 
E appeals under Sections 96 to 98 CPC-And since Section 98(3) CPC is not 
applicable because High Court of Kera/a has no Letters Patent as the same 
was not a Chartered High Court under British India-State- Re-organisation 
Act, I956-Sections 52, 54, 57 and 69-Travancore-Cochin Act, I I25 (Indian 
Calendar I948-49)-Section 23-Kerala High Court Act, I958-Section 9-
F Code of Civil Procedure, I908-Section 98(3)-Code of Civil Procedure, 
I877-Section 577. 
;1o.., 
Constitution of India, I950-Artic/e I36-Special leave to appeal-
Grant of-Against judgment raising issue of fact wherein opinion of judges 
differed-Held, not permissible as it would be contrary to practice of Supreme 
G Court and against the legislative intent of proviso to Section 98(2)-'Practice 
and Procedure '-Code of Civil Procedure, 1908-Proviso to Section 98(2). 
H 
Conflict of law-General law and Specific law-Conflict between-
Overriding effect of-Held, General law will override specific law. 
Maxims 
1098 
-
> 
~ 
" 
r.v. HEMALATHA \'. KATTAMKANDI PUTHIYA MALIACKAL·SAHEEDA 
1099 
'Generalia specialibus non deroganl' and 'Generalibus specia/ia A 
derogant '-Applicability of 
Words and Phrases-'letters Patent '-Meaning of-Discussed 
The suits by plaintiff-petitioner claiming specific performance of a 
contract of sale of two cinema theatres, situated in Calicut were dismissed 
by Trial Court. Calicut was part of erstwhile Malabar District in State of 
Madras which now forms part of new State of Kerala. In appeal under 
Section 96 CPC before Division Bench of High Court of Kerala, the two 
Judges differed on all issues of fact and mi~ed issues of fact and law and 
passed _separate judgments, one dismissing the appeals and the other 
allowing the appeal. However, by their common order, they confirmed the 
order of the Subordinate Court in terms of Section 98(2) CPC, since they 
had not identified difference on any point of law for reference of the same 
to third or more Judges. 
In appeal to this Court appellant/plaintiff contended that Division 
Bench committed error of jurisdiction and procedure in relying on sub-
section (2) of Section 98 CPC to confirm decree of Subordinate Court; 
and the difference of opinion on the points of facts and law were required 
to be referred to one or more other Judges by taking recourse to Clause 
36 of Letters Patent of Madras High Court as the same was applicable in 
the case as_ it had been saved as procedure on 'jurisdiction' of the High 
Court by Section 52 of State Re-organisation Act, 1956 in relation to the 
territory earlier falling within the erstwhile Madras State which after re-
organisation of States had become part of new State of Kerala; and by 
taking recourse of Section 23 of Travancore-Cochin Act, 1125 (Indian 
Calendar 1948-49) as the same was saved by Section 9 of Kerala High 
Court Act, 1958; and in view of Section 98(3) CPC. It was contended 
alternatively that if this Court did not find any ground to direct the High 
Court to refer the matter to one or more judges for resolving conflicting 
opinion the Court should grant special leave to appeal under Article 136 
of the Constitution for examining the correctness of the conflicting 
judgment. 
Dismissing the appeals, the Court 
B 
c 
D 
E 
F 
G 
HELD: I. Division Bench of Kerala High Court was right in holding 
that in view of conflicting judgm
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