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]

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 order

Two 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 involved

Section 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 case

In 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 Act

The 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 Court

The 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, in such appeals, if there is a difference of opinion between two Judges hearing such appeals in the High Court. Viewed from this perspective there can be no doubt that the subject matter pertains to appeals in the High Court alone and not other courts. Those appeals can deal with civil, criminal, and other matters. The particular perspective therefore demands the application of a uniform rule to all such appeals, which rule is provided by the special rule contained in Section 23 of the Travancore-Cochin High Court Act, which in turn displaces the general rule which applies under Section 98(2) of the Code of Civil Procedure to all Courts and in civil proceedings only, the Bench held.

If Letters Patent is a special law, so are High Court Acts

The Court, quoting in approval a Full bench decision of Gujarat High Court in Shushila Kesarbhai & Ors. v. Bai Lilavati & Ors., AIR 1975 Guj. 39 (FB), said that If the Letters Patent, being the Charter of the High Courts in British India, was a special law governing the High Courts untouched by any specific provision to the contrary in the Code of Civil Procedure, so would the High Court Acts, being 60 Page 61 the Charter of other High Courts, similarly remain as special laws untouched by any specific provision in the Code of Civil Procedure for the self-same reason

Anomaly if Section 23 of TC-HC Act is held to be innaplicable

The Bench observed that certain anomalous situation would arise if Section 23 of Travancore-Cochin High Court Act was held to be repealed by virtue of Section 9 of the Kerala High Court Act. They are:



  • Section 23 of the Travancore-Cochin High Court Act would not apply to appeals under the Code of Civil Procedure before the High Court, but would apply to criminal and other appeals, making appeals before the same High Court apply a different procedure, depending upon their subject matter
  • In appeals arising out of the Malabar region of Kerala, Clause 36 of the Letters Patent of the Madras High Court would directly apply. As we have seen, Clause 36 of the Letters Patent is pari materia to Section 23 of the Travancore Cochin High Court Act. This being so, even for regions that were governed by a different law – namely, the Letters Patent of the Madras High Court – a uniform rule is to be applied to the entire Kerala High Court. But if the TC-HC Act is held to be repealed, this uniformity will no longer exist.
  • Those High Courts, such as Bombay, Calcutta and Madras, which are “Letters Patent” High Courts so to speak, would not be governed by Section 98 in view of sub-section (3) thereof, But the High Courts like the Kerala High Court which are not established by any Letters Patent, would be so governed. This again would lay down two different rules for different sets of High Courts depending upon a wholly irrelevant circumstance – whether their Charter originated in the Letters Patent or in a statute.


Justice Kurian Joseph calls for a comprehensive legislation

In a separate judgment, though concurring with the Judgment penned by Justice RF Nariman, Justice Kurian Joseph has opined that referring a disagreement between judges in a Division bench to a sole third judge, is actually against the very principle of reference on difference. Reference is always made to a larger coram. Not only that, when two judicial minds sitting together could not concur, that difficulty is to be resolved, ideally, if not on common sense, not by a third one, but by a Bench of larger coram, Justice Kurian Joseph said.

The Judge also said that if the purpose behind the requirement of a matter to be heard by a Bench of not less than two Judges is to be achieved, in the event of the two Judges being unable to agree either on facts or on law, the matters should be heard by a Bench of larger strength. Then only the members of the Bench of such larger strength would be able to exchange the views, discuss the law and together appreciate the various factual and legal positions. The conspectus of the various provisions, in my view, calls for a comprehensive legislation for handling such situations of a Bench being equally divided in its opinion, either on law or on facts, while hearing a case which is otherwise required to be heard by a Bench of not less than two Judges, both civil and criminal. It is for the High Court and the Legislature of the State concerned to take further steps in that regard, Justice Kurian Joseph said.

Read the Judgment here.