SC Constitution Bench holds Section 23 of Travancore-Cochin HC Act prevails over 98(2)CPC in Kerala; Justice Kurian calls for a comprehensive legislation [Read Judgment]

Constitution Bench of Apex Court, in Pankajakshi (Dead) Through L.Rs Vs. Chandrika, has held that Section 23 of the Travancore-Cochin High Court Act remains unaffected by the repealing provision of Section 9 of the Kerala High Court Act, and that, being in the nature of special provision vis-à-vis Section 98(2) of the Code of Civil Procedure, would apply to the Kerala High Court. Bench comprising of Justices Anil R. Dave, Kurian Joseph, Shiva Kirti Singh Adarsh Kumar Goel and R.F. Nariman also held that the P.V. Hemalatha vs. Kattamkandi Puthiya Maliackal Saheeda was wrongly decided.Reference orderTwo Judge Bench of the Apex Court had referred the following questions for determination by a bench of 3 Judges.Whether Section 23 of the Travancore-Cochin Act remains unaffected by the repealing provisions of Section 9 of the Kerala High Court Act. If so, whether Section 23 is in the nature of a special provision vis-à- vis Section 98(2) of CPC.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.Later 3 Judge Bench, observed that the Division Bench had doubted the correctness of a decision delivered by a 3 Judge bench and thus placed these questions before Constitution Bench.Relevant Laws involvedSection 23(TC-HC Act). Reference by Chief Justice.--Where two Judges forming a Division Bench agree as to the decree, order or sentence to be passed, their decision shall be final. But if they disagree, they shall deliver separate judgments and thereupon the Chief Justice shall refer, for the opinion of another Judge, the matter or matters on which such disagreement exists, and the decree, order or sentence shall follow the opinion of the Judges hearing the case.Section 98(2)(CPC) : 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 or other even number of Judges belonging to a court consisting of more Judges than those constituting the Bench and 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.Section 98 (3)(CPC): Nothing in this section shall be deemed to alter or otherwise affect any provision of the letters patent of any High Court.Section 9 (KHC Act): Repeal.--The provisions of the Travancore Cochin High Court Act, 1125 (5 of 1125), insofar as they relate to matters provided in this Act, shall stand repealed."Hemalatha’s caseIn P.V. Hemalatha vs. Kattamkandi Puthiya Maliackal Saheeda and Anr. AIR 2002 SC 2445 the Apex Court had held that Travancore-Cochin High Court Act, Section 23 of which contains a provision which states that if two Judges forming a Division Bench of the High Court disagree, they shall refer their disagreements to the opinion of another Judge and the opinion of the majority will then prevail, was said to be general as against Section 98(2) of the Code of Civil Procedure which was said to be special.Section 9 of KHC Act does not repeal Section 23 of TC-HC ActThe Bench observed that there is no provision corresponding to Section 23 of the Travancore-Cochin High Court Act in the Kerala High Court Act, 1958 and that therefore the said provision continues in force, not having been repealed by Section 9 of the Kerala High Court Act, 1958.Section 98(2) CPC cannot be held as special vis-à-vis Section 23 TC-HC Act The Court also said that it cannot hold that the provision contained in Section 98(2) is special as against Section 23 of the Travancore-Cochin High Court Act as it would be in the teeth of the Constitution Bench judgment in P.S. Sathappan v. Andhra Bank Ltd. (2004) 11 SCC 672. In Sathappan case, it was unequivocally held that a Letters Patent is a special law for the High court concerned, the Code of Civil Procedure being a general law applicable to all courts, and that it is well settled that in the event of a conflict between the two, the special law must always prevail. In the present case, substitute the words “High Court’s Act” for “Letters Patent”. What follows is that the High Court’s Act is a special law for the High Court concerned, the Code of Civil Procedure being a general law applicable to all courts. This according to us really concludes the matter in favour of the appellants, the Bench said.Section 23 of TC-HC Act provides uniform rule to all appeals in High CourtThe Court also observed that the principal subject matter contained in the present case is appeals before the High Court of Kerala and the question is, what is to happen, ...

SC Constitution Bench holds Section 23 of Travancore-Cochin HC Act prevails over 98(2)CPC in Kerala; Justice Kurian calls for a comprehensive legislation [Read Judgment]

Ashok KM

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