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2016 (2) TMI 1063 - SC - Indian LawsSection 23 of the Travancore-Cochin High Court Act applicability - difference of opinion - Held that - The principal subject matter contained in the present case is appeals before the High Court of Kerala. The particular perspective that we are concerned with 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. 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 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. Viewed from any angle, therefore, it is clear that Section 23 of the Travancore-Cochin High Court Act, alone is to be applied when there is a difference of opinion between two learned Judges of the Kerala High Court in any appeal, be it civil, criminal, or otherwise, before them. Hemalatha s case 2002 (5) TMI 865 - SUPREME COURT was wrongly decided and answer Question 1 referred to us by stating 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- -vis Section 98(2) of the Code of Civil Procedure, would apply to the Kerala High Court.
Issues Involved:
1. Whether Section 23 of the Travancore-Cochin Act remains unaffected by the repealing provisions of Section 9 of the Kerala High Court Act, and if so, whether Section 23 is a special provision vis-`a-vis Section 98(2) of CPC. 2. Whether the Supreme Court can, under Articles 136 and 142 of the Constitution, direct a reference to a third judge to resolve conflicts between two judges of the High Court on a question of fact. Issue-wise Detailed Analysis: Issue 1: Whether Section 23 of the Travancore-Cochin Act remains unaffected by the repealing provisions of Section 9 of the Kerala High Court Act, and if so, whether Section 23 is a special provision vis-`a-vis Section 98(2) of CPC. The Supreme Court examined whether Section 23 of the Travancore-Cochin High Court Act was repealed by Section 9 of the Kerala High Court Act, 1958. It was noted that Section 9 repeals the Travancore-Cochin High Court Act only insofar as it relates to matters provided in the Kerala High Court Act. Since the Kerala High Court Act does not contain a provision corresponding to Section 23, the latter remains in force. The Court discussed the principle of generalia specialibus non derogant, which means that general laws do not derogate from special laws. Section 23 of the Travancore-Cochin High Court Act is a special provision that applies to disagreements between judges in the High Court, whereas Section 98(2) of the CPC is a general provision. Therefore, the special provision (Section 23) would prevail over the general provision (Section 98(2)). The Court also referred to the Constitution Bench judgment in P.S. Sathappan v. Andhra Bank Ltd., which held that the Letters Patent of High Courts are special laws, and the CPC is a general law. Applying this principle, the Court concluded that Section 23 of the Travancore-Cochin High Court Act, being the special law, would prevail over Section 98(2) of the CPC. Issue 2: Whether the Supreme Court can, under Articles 136 and 142 of the Constitution, direct a reference to a third judge to resolve conflicts between two judges of the High Court on a question of fact. Given the conclusion on Issue 1, the Supreme Court found it unnecessary to answer this issue. The Court held that Section 23 of the Travancore-Cochin High Court Act, which provides for the resolution of disagreements between judges by referring the matter to another judge, applies to the Kerala High Court. This provision ensures that disagreements on both facts and law are resolved by a majority opinion, thus maintaining uniformity in the appellate process. Conclusion: The Supreme Court concluded that Section 23 of the Travancore-Cochin High Court Act remains unaffected by the repealing provisions of Section 9 of the Kerala High Court Act and is a special provision vis-`a-vis Section 98(2) of the CPC. Consequently, Section 23 applies to the Kerala High Court, and the Court did not find it necessary to address the second issue regarding the Supreme Court's power under Articles 136 and 142.
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