LexPANKAJAKSHI (DEAD) THROUGH LRS. AND ORS. versus CHANDRIKA AND ORS.
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[201 O] 12 S.C.R. 989 PANKAJAKSHI (DEAD) THROUGH LRS. AND ORS. A v. CHANDRIKA AND ORS. (Civil Appeal No. 201 of 2005) NOVEMBER 8, 2010 [MARKANDEY KAT JU AND T.S. THAKUR, JJ.] CODE OF CIVIL PROCEDURE, 1908: B s. 98(2) - Decision by Division Bench of High Court - c Difference of opinion between the two Judges comprising the Bench - Procedure to be adopted - Matter referred to larger Bench for consideration on the questions: (i) whether s. 23 of Travancore-Cochin High Court Act remains unaffected by tfJe repealing provisions of s. 9 of Kera/a High Court Act? If so, D whether s. 23 is in the nature of a special provision vis-a-vis s. 98 (2) CPC? and (ii) whether the Supreme Court under Articles 136 and 142 of the Constitution can direct in an appropriate case a reference to a third Judge to resoleve the conflict arising between two Judges of the High Court hearing E an appeal, on a question of fact? - Travancore-Cochin High Court Act - s. 23 - Kera/a High Court Act - s. 9 - Constitution of India, 1950 - Articles 136 and 142. The instant appeal was filed challenging the order passed by the Division Bench of the Kerala High Court F dismissing an appeal against the decree passed by the trial court, as there was difference of opinion between the two Judges comprising the Bench, as regards genuineness of the will. It was contended for the appellant that since there was difference of opinion G between the two Judges of the High Court, the appeal should have been referred to the Chief Justice for placing it before one or more other Judges. 989 H 990 SUPREME COURT REPORTS [2010] 12 S.C.R. A The Court noticed the decision of a two Judge Bench in Tej Kaur* to the effect that in the case of difference of opinion between the two Judges in a Division Bench of the High Court hearing an appeal on a question of fact, the decree of the trial court must be confirmed in view of s s. 98 (2) CPC. The Court also noticed the three Judge Bench decision in P. V. Hemlatha** wherein it was further held that while s. 23 of the Travancore-Cochin High Court Act was the general law, s. 98 (2) CPC was a special provision. c Referring the matter to a larger Bench, the Court HELD: 1.1. Section 23 of the Travancore-Cochin Act is in the nature of a special provision while s. 98 (2) CPC is in the nature of a general law. As between the two, the D former would apply in preference to the latter. The decision of this Court in P. V. Hem/atha** to the extent it takes a contrary view, requires to be reconsidered. [para 8] [994-H; 995-A-B] E *Tej Kaur and Anr vs Kirpa/ Singh and Anr. [1995] SCR 385=1995 (5) SCC 119 and ** P. V. Hemlatha vs Kattamkandi Puthiva Maliackal Saheeda and Anr 2002 ( 3 ) SCR 1098 = AIR 2002 SC 2445 - referred to. 1.2. That apart, the question whether in an appeal F arising out of an order passed by the High Court to which s. 98 (2) CPC applies, this Court can, in exercise of its power under Article 136 of the Constitution of India direct the matter to be placed before a third Judge to resolve the conflict arising from two differing judgments, has not G been examined either in P. V. Hemlatha or Tej Kaur. This Court, therefore, considers it appropriate to refer to a larger Bench for consideration and an authoritative pronouncement, the following two questions: H PANKAJAKSHI (DEAD) THROUGH LRS. AND ORS. 991 v. CHANDRIKA AND ORS. (i) Whether s. 23 of the Travancore-Cochin Act A remains unaffected by the repealing provisions of s. 9 of the kerala High Court Act? If so, whether s. 23 is in the nature of a special provision is-a-vis s. 98 (2) CPC? (ii) Whether this Court can under Articles 136 and 142 of the Constitution direct in any appropriate case a reference to a third judge to resolve the conflict arising between two judges of the High Court hearing an appeal, on a question of fact? (para 9] [995-B-F] Case Law Reference: 2002 (3) SCR 1098 (1995] SCR 385 referred to referred to para 5 para 6 CIVIL APPELLATE JURISDICTION: Civil Appeal No. 201 of 2005. From the Judgment & Order dated 20.8.2004 of the High Court of Kerala at Ernakulam in A.S. No. 686 of 1995 (C). V. Giri, T.G. Narayanan Nair, Mohammed Sadique T.A., K.N. Madhusoodhanan for the Appellants. Jayaprakash Sen, Malini Poduval, Babita Sant, M.T. GeoFge for the Respondents. TherJudgment of the Court was delivered by MARKANDEY KAT JU, J. 1. Heard learned counsel for the parties.
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