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TMI Blog2000 (8) TMI 1130X X X X Extracts X X X X X X X X Extracts X X X X ..... Curiae, pointed out that there was a clear conflict between the view expressed by a Division Bench of two learned Judges in Bar Council of Kerala v. Thankappan Pillai, 1985 Ker LT 738 and that expressed by a Larger Bench of five learned Judges in the same case -- Bar Council of Kerala v. Thankappan Pillai, 1985 Ker LT 769 : (AIR 1986 Ker 1 (FB)) on the question of Interpretation of Sec. 3 of the Kerala High Court Act, 1958 (for short, "Act"). It was pointed out to the Division Bench that all the counsel were In agreement with the view expressed by the Division Bench in 1985 Ker LT 738 and stated that the view expressed by the Larger Bench in 1985 Ker LT 769 required reconsideration. 3. Counsel appearing before the Division Bench made a further grievance that there was no consistent and uniform practice in regard to (a) stating the grounds on which a single Judge should refer the matter to a Division Bench Under Section 3 of the Act; and (b) framing and stating the question of law in the order of reference to a Division Bench. 4. In the order of reference, the Division Bench has quoted four instances of orders made by single Judges Under Section 3 of the Act, which are a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f reference by a single Judge, the matter is placed before the Division Bench without a proper order of reference. The Division Bench does not have the benefit of the reasoning of the single Judge's order regarding (a) the ground on which a reference is made and (b) the question of law being framed and stated for reference to the Division Bench. It is in these peculiar facts that the Division Bench referred the following three questions to this Special Bench for consideration : "(1) Whether in the scheme of the provisions of Sections 3, 4, 5 and 6 of the Kerala High Court Act. 1958 the words "adjourn it for being heard and determined by a Bench of two Judges" appearing in Section 3 of the said Act, are to be construed liberally, meaning an adjournment simpliciter or whether the said words are to be construed narrowly, meaning thereby, a reference to another forum of two Judges for being heard and determined by them. (2) If the answer to the first question is to the effect that the word "adjourn" means "refer", whether the order of reference is to be a judicial order with brief reasons since it takes away the valuable right of appeal vested ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... overnment may, by notification In the Gazette, appoint. 2. Definition.-- In this Act. "High Court", means the High Court of the State of Kerala. 3. Powers of single Judge.-- The powers of the High Court in relation to the following matters may be exercised by a single Judge provided that the Judge before whom the matter is posted for hearing may adjourn it for being heard and determined by a Bench of two Judges :-- (1) Determining in which of several Courts having jurisdiction a suit shall be heard. (2) Admission of an appeal in forma pauperis. (3) Exercise of original jurisdiction under any law for the time being in force. (4) Exercise of the powers under Section 115 of the Code of Civil Procedure, 1908 and under Section 22 of the Kerala Small Cause Courts Act. 1957. (5) Any matter of an Interlocutory character in appeals and other proceedings. (6) Admission of an appeal presented after the expiry of the period allowed by the law of limitation. (7) Admission of an appeal from the judgment or order of any criminal Court. (8) Exercise of the power to revise the proceedings of any criminal Court; Provided that in the exercise of such power a single Jud ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (3) A reference-- (a) under Section 13 of the Code of Civil Procedure. 1908; (b) under Section 307, Section 374 or Section 432 of the Code of Criminal Procedure. 1898. (4) An application under Rule 2 of Order XLV of the First Schedule to the Code of Civil Procedure, 1908. (5) An application for the exercise of the powers conferred by Section 491 of the Code of Criminal procedure. 1898 or by clause (1) of Article 226 of the Constitution of India where such power relates to the issue of a writ of the nature of habeas corpus. (6) An appeal from any original Judgment, order or decree passed by a single Judge. (7) All matters not expressly provided for in this Act or in any other law for the time being in force. 5. Appeal from judgment or order of single Judge.-- An appeal shall lie to a Bench of two Judges from -- (i) a Judgment or order of a single Judge in the exercise of original Jurisdiction; or (ii) a judgment of a single Judge in the exercise of appellate jurisdiction in respect of a decree or order made in the exercise of original jurisdiction by a subordinate Court. 6. Cases to be heard by Full Bench under direction by Chief Justice.-- Notwithstanding anyt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion Bench on Monday. B/o Sd/-". The matter was later posted before the First Bench on 1-3-1985, on 12-4-1985 and finally on 25-7-1985. The First Bench, however, did not deal with the matter on the met its. Another endorsement was made on the docket by the Court Officer on 25-7-1985: "Post before C XII on 29-7-1985 at the top of list. B/O. Sd/-". The character of the latter endorsement is not quite clear to us, but perhaps it was based on an administrative direction of the learned Chief Justice presumably on the assumption that the case had already been referred by the learned single Judge under Section 3 of the Kerala High Court Act, 1958. 2. This is how this case has come up before us. This case, we notice, has not been referred to a Division Bench in terms of Section 3. The first endorsement made by the Court Officer on 11-1-1985 is not a reference order as postulated under Section 3 of the Act. The endorsement merely shows that an oral direction to that effect had been given by the learned single Judge. No such oral direction. or an endorsement of the Court Officer evidencing it. Constitutes an order of reference under Section 3. What is postulated under that se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to this, it was placed before a Full Bench of five learned Judges which decision is reported in (1985 KLT 769 : AIR 1986 Ker 1). Since a prayer has been made before us by the first four learned counsel that the Full Bench decision is required to be reconsidered, we find it necessary to reproduce the said judgment :-- (1985 KLT 769 : AIR 1986 Ker 1 (FB) (Paras 1 & 2) "ORDER M.P. Menon, J. - This writ petition has been placed before us with the following order of the Chief Justice, apparently made in exercise of power under Section 6 of the Kerala High Court Act, 1958:-- 'There is an apparent conflict between the views expressed by two Division Benches of this Court with respect to the procedure to be followed by a single Judge while adjourning a matter to be heard and determined by a Bench of two Judges under Section 3 of the High "Court Act. The question of law involved in the writ petition also is very important. I, therefore, order that the writ petition as well as the order of reference be posted for hearing before a Full Bench of five Judges." We have heard counsel on the conflicting views about the scope of Section 3, and this order is intended Lo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act repeals only those provisions of the T, C. High Court Act, 1125 which relate to matters covered by the former. Many of the provisions of the T. C. Act are thus still intact, and operative. It is therefore necessary to notice that under Section 16 of that Act, the administrative control of the High Court is vested in the Chief Justice and that under Section 30, it is in his power to "regulate the conduct of the business in the High Court". 5. As for Section 3 of the Kerala Act, the first thing to be noticed is that it makes no mention of an 'order of reference', in writing or otherwise. The words "refer", "order", "signed" etc. are significantly absent. Literally construed, the requirements of the proviso will be satisfied if a single Judge before whom a writ petition comes up for hearing orally directs that the matter be adjourned for being heard and determined by bench of two Judges, He is not required to give reasons or record them. In fact, he is not even "hearing" the matter: the hearing and determination are left to a bench of two Judges when once the single Judge exercises his power of adjournment, There is also ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er the administrative orders of the Chief Justice except perhaps on those rare occasions when the Judges constituting the bench feel embarrassed in taking it up either because of the nature of the cause or of the parties involved or counsel appearing, or other similar reasons. 9. Clearly again when a single Judge adjourns a matter for being heard by a bench of two Judges, the bench before which the adjourned matter is placed is not to function as an appellate Court even in respect of the limited question whether the adjournment has been properly made or not. The distinction between the powers of a bench of two Judges under Section 5 of the Act on the one hand, and under Section 4(1) read with Section 3, on the other, cannot be overlooked. Where a bench of two Judges feel that a matter has not been placed before it as required by law, the proper course would be to return it to the Registry, instead of passing a judicial order in a matter which in its own opinion, is not before it. A bench to which a matter is adjourned by a single Judge under Section 3 is not a superior Court clothed with power to issue directions, expressly or impliedly, to the single Judge as to how or in what m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e the matters enumerated therein. It is only in certain exceptional situations that a single Judge can refuse to hear and decide the matter which is placed before him. In such cases, the Judge refuses to exercise the jurisdiction which is legally vested in him. Indeed, the Judge has a duty to hear and decide the matter except in circumstances which justify the case being transferred to another Judge or referred to a larger Bench. The concept of jurisdiction is well known. Jurisdiction means authority to decide. Whenever a judicial tribunal is empowered or required to enquire into a question of law or fact for the purpose of giving a decision on it, its findings thereon cannot be impeached collaterally or on an application for certiorari but are binding until reversed on appeal. Where a Court has jurisdiction to entertain an application, it does not lose its jurisdiction by coming to a wrong conclusion, whether it was wrong in law or in fact. These observations are to be found in Section A. de Smith's Judicial Review of Administrative Action. Second Edition, Page 96. 12. A perusal of Sec. 3 would show that the powers of the High Court in relation to the matters enumerated to th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , from the main enactment, a portion which, but for the proviso would fall within the main enactment. Ordinarily it is foreign to the proper function of proviso to read it as providing something by way of an addendum or dealing with a subject which is foreign to the main enactment." Further a proviso is not normally construed as nullifying the enactment or as taking away completely a right conferred by the enactment. As a consequence of the aforesaid function of a true proviso certain rules follow." The second passage is at page 159 under sub-heading "(c)" as under :-- "(c) Construed in relation to the section or sections to which it is appended : The language of a proviso even if general is normally to be construed in relation to the subject-matter covered by the section to which the proviso is appended. In other words normally a proviso does not travel beyond the provisions to which it is a proviso. "It is a cardinal rule of interpretation" observed Bhagwati, J., "that a proviso io a particular provision of a statute only em-braces the field which is covered by the main provision. It carves out an exception to the main provision to whi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t to order jury trial. However, no discretion is absolute and there may be a successful appeal to the Court of Appeal in relation to the exercise of a judicial discretion if the appellant can show that the Judge exercised his discretion under a mistake of law, or under a misapprehension as to the facts, or that he took into account irrelevant matters or gave insufficient weight, or too much weight, to certain factors or that he failed to exercise his discretion at all. If the Judge gives no reasons, or insufficient reasons for the exercise of his discretion, the Court may infer that he has gone wrong in one respect or another. The burden of proof is on the party who alleges that the discretion was wrongly exercised and, in any event, the Court of Appeal will only allow the appeal if satisfied that the Judge's conclusion is one which involves injustice or was clearly wrong." (Emphasis ours) The above observations are based on the decisions in (i) Evans v. Bartlam 1937 AC 473 : 1937 All ER 646. Ward v. James 1966 QB 273 : (1965) 1 All ER 563 and (iii) Birkett v. James. 1976 All ER 417, mentioned at the foot note. We do not wish to burden this Judgment with the details of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... question therein, by the Court in which it is pending, to a private person to hear and determine it provisionally or to take evidence therein and report the same to the Court with or without opinion thereon." In Garner's Administrative Law. Seventh Edition, page 10, an observation is made to the effect that when a Judge exercises a judicial function, he appreciates the facts of a case, discusses the legal position and applies the law to the facts of the case. 20. In view of the above, it is contended before us that if an adjournment is a judicial order, it must contain reasons. There are some orders of reference where the only order is "adjourned to a Division Bench". There may be cases where there is a conflict of two or more decisions of single Judges of this Court with no decision of the Division Bench or of the Apex Court in the field. This would certainly justify a reference by a single Judge to a Division Bench. Secondly, there may be an Important question of law of general or public importance affecting a large number of cases, as was the case referred to a Division Bench of this Court regarding the grant of Plus-Two-courses, (11th and 12th Standard), f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... equally bad where a Judge sitting singly in the High Court is of opinion that the previous decision of another single Judge on a question of law is wrong and gives effect to that view instead of referring the matter to a larger Bench. In such a case lawyers would not know how to advise their clients and all Courts subordinate to the High Court would find themselves in an embarrassing position of having to choose between dissentient judgments of their own High Court. (20) As far as we are aware it is the uniform practice In all the High Courts in India that if one Division Bench differs from an earlier view on a question of law of another Division Bench, a reference is made to a larger Bench. In Calcutta High Court a rule to this effect has been in existence since 1867. It is unfortunate that the attention of the learned Judges was not drawn in the present case to that rule. But quite apart from any rule, considerations of Judicial propriety and decorum ought never to be ignored by Courts in such matters." (Emphasis ours) 22. In Jaswant Sugar Mills Ltd. v. Lakshmi Chand AIR 1963 SC 677, the words 'determination' and 'order' appearing in Article 136 of the C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nces under which or the types of cases in which such an appeal would lie. The question was referred to a Bench of five Judges by a Full Bench of three Judges. There was a conflict in earlier decisions. The Larger Bench referred to the history of the Act with reference to the Travancore-Cochin High Court Act, 1125 (Malayalam Year) and the Letters Patent of the Madras High Court. Reference was also made to the Kerala High Court Bill, 1957 which was piloted by no less a person than, Sri V. R. Krishna Iyer, who was then the Law Minister of Kerala. The main controversy was regarding the interpretation of the words, "order", "Interlocutory or intermediate order", "final order" and "judgment". The contention that word "order" appearing in Sec. 5(i) of the Act should be construed liberally so as to include any interlocutory order as in Article 136 of the Constitution was rejected. The conclusions in the judgment of Jagannadha Rao, C. J. (as his Lordship then was), are to be found in Para 46 of the judgment which are as under : "46. We are of the view that the order appealed against in State of Kerala v. Thankamma 1968 K LT 390 (FB) u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appeal or have to modify the Impugned order or set aside the same in every case. There is difference between the question whether an appeal lies to a Division Bench and as to the scope of interference. Normally, discretionary orders are not interfered with unless the impugned orders are without jurisdiction, contrary to law, or are perverse, and they also cause serious prejudice to the parties in such a manner that it might be difficult to restore the status quo ante or grant adequate compensation. The idea is to provide an internal remedy in such cases without compelling the parties to go all the way to the Supreme Court under Article 136 of the Constitution of India or increase the burden of that Court unnecessarily. (3) It will, however, be Incumbent upon the appellant to serve the counsel who has appeared before the single Judge for the opposite party (unless of course the counsel's authority has been revoked or he is dead) and when such appeals against orders come up in appeal for admission before the Division Bench, it will be open to the Bench to treat such service as mentioned above as sufficient service on the parties (unless the Court, in the circumstances of the c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Bombay High Court Appellate Side Rules, 1960. Under the said Rules, a single Judge is empowered to refer the matter or any question arising in the matter before him, to a Division Bench provided he is satisfied that the matter or any question raised in the matter Is such that it requires to be decided by a Division Bench of two Judges. The single Judge must himself come to a conclusion that the matter or any question raised in the matter is such that it requires to be decided by a Division Bench. He has to record a prima facie opinion that the matter or the question requires to be decided by a Division Bench. The relevant observations are to be found in para 15 at page 124. 28. In Shlvadeviamma v. Sumanji AIR 1973 Mys 296, a Full Bench considered the question about the desirability of an order of reference containing reasons in the light of the conflict of Division Bench decisions Under Section 7 of the Mysore High Court Act, 1962. It was held that though the desirability of formulation of such reasoned criticism, or offering an alternative to the view the correctness of which has been doubted by the referring Bench, cannot be doubted, there is no legal obligation Under Sectio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sions makes it clear that, normally, an adjournment simpliciter is adjourning to one's own forum or a similar forum. But, judged from its setting, the word "adjourn" appearing in Section 3 of the Act is obviously used in a different context. It is adjournment to a different and larger forum. The case before the single Judge is closed and that forum including any other single Judge is no longer available to the litigant. Indeed, no single Judge can hear that case once it is referred to a Division Bench for being heard and decided on merits. 33. In the Travancore Cochin High Court Act, 1125 the powers of the single Judge were enumerated In Section 20 which reads as under : "Section 20. A single Judge of the High Court is empowered-- (1) to call for information from the subordinate Courts with a view to superintendent their working and to correct errors of procedure or practice; (2) to revise calendars and examine the returns in criminal cases submitted by the subordinate Courts; (3) to examine the returns submitted by the civil Courts; (4) to hear and decide-- (A) every application-- (i) for determining in which of several Courts having jurisdiction ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d rupees or less from an appellate decree and every appeal from an appellate order where the subject-matter of the original suit is valued at one thousand rupees or less : Provided always that it shall be lawful for such Judge to refer any such applications appeal for the decision of a Division Bench of two Judges or of a Full Bench: (5) to withdraw and to try and decide any suit or other proceeding pending in any civil Court subordinate to the High Court or to transfer the same to any other civil Court competent to try and dispose of the same or to re-transfer the same to the Court from which it was withdrawn; and (6) to withdraw, Inquire into, try and decide any inquiry trial or proceeding pending in any criminal Court subordinate to the High Court, or to transfer the same to any other criminal Court competent to inquire into or to try and dispose of the same or to re-transfer the same to the Court from which it was withdrawn." (Emphasis ours) In the proviso after Section 20(4)(C), the words used are "to refer any such application or appeal for the decision of a Division Bench of two Judges or of a Full Bench". To that extent, there is a departure from the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dges when it involves a question of law of difficulty or importance. Rule 9(2) provides that a Judge sitting alone shall refer any proceeding other than an original proceeding, including a suit pending before him to the Chief Justice with a recommendation that it be placed before a Bench of two Judges -- (a) when it involves a substantial question of law as to the interpretation of the Government of India Act or of any order in Council made thereunder or the Constitution or of any order of the President made thereunder; (b) if he considers that the decision in the proceeding involves reconsideration of a decision of a Judge sitting alone in the Central Provinces Law Reports, the Nagpur Law Reports or the Indian Law Reports, Nagpur Series. Rule 9(3) says that in proceedings of the nature referred to in Rule 9(1), the referring Judge may refer a stated question or questions or may ask that the proceedings be heard and decided by the Bench to which it is referred. If he refers a stated question or questions, he shall dispose of the proceedings in accordance with the decision of the Bench on the question or questions referred to it. Rule 9(4) requires that in cases of the nature referr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ich it is referred. (5) In proceedings of the nature referred to in clause (b) of sub-rule (2) of this rule, the referring Judge shall refer a stated question or questions and shall dispose of the proceedings in accordance with the decision of the Bench on the question or questions referred to it." "10. If a Judge sitting alone considers that the decision of the proceedings pending before him involves reconsideration of a decision of two or more Judges he may refer it to the Chief Justice with a recommendation that it be placed before a full Bench for a decision on a stated question or questions. The referring Judge shall dispose of the proceedings in accordance with the decision of the Bench on the question or questions referred to it". "11. When any appeal or civil matter heard by a Bench of two Judges, the Judges composing the Bench differ on a point of law and state the point on which they differ, the proceedings shall be placed before Chief Justice for the purpose of nominating one or more of the other Judges to deal with the matter." "12. If a Bench of two Judges considers that the decision of the proceedings pending before them involves ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at it shall be competent for one Judge to hear Appeals and Applications in all matters specified in the subjoined Schedule except where such Appeals. Applications or Matters involve a substantial question of law as to the interpretation of the Constitution of India. He may, however, send back any particular case he thinks fit to a Division Bench taking such cases for disposal. Where at any stage of the hearing of an Appeal, Application or other Matter it appears to the Judge that it involves a substantial question of law as to the interpretation of the Constitution of India he shall send the Appeal, Application or other matter to the Division Bench taking such cases for disposal. (ii) Provided also that, on the requisition of any Division Bench, or whenever he thinks fit, the Chief Justice may appoint a Special Division Bench, to consist of three or more Judges, for the hearing of any particular Appeal, or any particular question of law arising in an appeal, or of any other matter." 41. The Madras High Court Appellate Side Rules contain a similar provision as in the Kerala High Court Act. In the Madras High Court Appellate Side Rules, Order I Rule 1 reads as under : &qu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... judicial order in writing and signed by the Judge is evidently not a requirement of the express language of the Section", do not, in our view, lay down the correct law. The same are, therefore, disapproved. (v) Similarly, the observations in para 7 of the Full Bench decision in 1985 KLT 769 to the following effect, "We accordingly hold that an oral direction of a single Judge in the presence of counsel, followed by an appropriate enforcement by the Court Officer, will satisfy the requirement of Section 3 in the matter of adjourning a case for being heard by a Division Bench, though in appropriate cases, a reasoned order in writing and signed by the Judge will be desirable", do not lay down the correct law and are, therefore, not approved. As indicated earlier, an order in writing signed by the Judge concerned is a must before a matter can be referred by a single Judge to a Division Bench Under Section 3 of the Act. A reasoned order in writing is the requirement of such a judicial order, (vi) A litigant is entitled to ask his lawyer as to why his case has been adjourned by a single Judge to a Division Bench since it necessitates further hearing and costs to the l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e proviso. Some such circumstances justifying the matter being taken out of the main part of Section 3 and put in the proviso could be (i) conflict of views expressed by single Judges of the same Court, there being no Tatter decision of the Division Bench of the same Court or of the Apex Court; (ii) an important question of law of general or public importance affecting a large number of cases; (iii) a new legislation being challenged involving a provision which has no parallel in other statutes and validity of which Is challenged, as In the Ombudsman's case pending In this Court, where reference has been made by a single Judge to a Division Bench or (iv) identical or the same question of law being considered in a matter already before the Division Bench. Needless to say, these Instances are merely illustrative and cannot be exhaustive. 45. In this view of the matter, our answer to the first question is that the word "adjourn" in Section 3 must be construed narrowly, only to mean "refer". Similarly, our answer to the first part of second question is that, since an order of adjournment is a Judicial order, a single Judge passing such order should give brief r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an order would not be an appealable order. There is no question, therefore, of the right of appeal being taken away merely when a single Judge makes a reference to a Division Bench. This conclusion of ours is also supported by the reasoning in Smt. Nirmala Birla's case (AIR 1975 Cal 348) (para 29 supra). The argument that such a right of appeal is adversely affected by making an order of reference, was rejected in para 9 of the Judgment at page 352 of AIR 1975 Cal 348. 47. In the view that we have taken in the preceding paragraph on the latter part of Question No. (2) viz. that an order of reference by a single Judge to a Division Bench is not capable of being challenged in an appeal under Section 5(i) of the Act, it Is not necessary for us to discuss the decisions of the Apex Court on the question that a right of appeal is a substantive right and is a creation of statute. It cannot be taken away lightly. This position is settled in view of the decisions in (i) Garikapati Veeraya v. N. Subbiah Choudhry AIR 1957 SC 540 (ii) Sankar Kerba Jadhav v. State of Maharashtra (1969) 2 SCC 793 : AIR 1971 SC 840 and (iii) U. P. Awas Evam Vikas Parishad v. Gyan Devi AIR 1995 SC 724, where ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hould not decide the question of law and merely because both the Judges agree that the decision involves a question of law. It should be referred to a Full Bench or the entire matter be referred to a Full Bench. If a question of law arises before a Division Bench, which situation is not uncommon, is it open to a Division Bench not to decide it and refer it to a Full Bench. One can understand when there is a conflict of Division Bench decisions on a question of law and there is no subsequent decision of the Apex Court on the point; in such a situation a reference to Full Bench would undoubtedly be justified. In the light of the cases we have discussed above, there is no doubt that the power of two Judges in a Division Bench to refer a question of law to a Full Bench must be exercised sparingly and only in cases where there is a conflict of opinion of Division Benches of this Court and there is no latter decision of the Apex Court on that point. Obviously, if there is a subsequent decision of the Apex Court which resolves the conflict or, in the light of which, one of the Division Bench decisions must be taken to be impliedly overruled and the other Impliedly upheld, the Division Ben ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction 3 of the Act, there is no reason why it should be referred to a Division Bench, in the absence of any of the circumstances indicated in para 20 or 44 or a similar circumstance necessitating reference to a Division Bench. In this view of the matter, though the order of reference dated 2nd April, 1993 passed by the learned single Judge does not meet the requirements Indicated in para 43 or 44, in view of our conclusions in paragraphs 46 and 47, the Division Bench has to hear the matter referred to it by the single Judge. 52. In view of the above, since this petition has been pending since 1989, it should be placed before a Division Bench for being disposed of in accordance with law. The papers may, therefore, be placed before the Chief Justice for necessary orders. K.S. Panicker Radhakrishnan, J. 53. The question that has come up for consideration before the Larger Bench is essentially with regard to interpretation of Ss. 3 and 4 of the Kerala High Court Act, 1958. I had the privilege of going through the judgment of the learned Chief Justice. Learned Chief Justice in his erudite judgment has already dealt with in extenso various arguments addressed at the Bar and has answer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ench of two Judges or of a Full Bench. In the Kerala High Court Act, the power of the single Judge to adjourn the case is dealt with in Section 3 of the Act, which is extracted below : 3. Powers of single Judge.-- The powers of the High Court in relation to the following matters may be exercised by a single Judge provided that the Judge before whom the matter is posted for hearing may adjourn it for being heard and determined by a Bench of two Judges..... On a comparison of the above mentioned two provisions, the words "the matter is posted for hearing" are absent in Section 20 of the T-C High Court Act. A learned single Judge could exercise his powers under Section 3 of the Kerala High Court, only when the matter is posted for hearing. A matter is posted for hearing, only when a Judge sits in the Court. When we look at Section 4 the words "posted for hearing" are also absent. Further, under Section 4, only if both the Judges agree that the decision involves a question of law, the matter or question of law could be referred to a Full Bench. Since the decision is to be taken by two Judges under Section 4. there must be consensus ad item, which precedes a dis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ctions. We have to examine the provisions of Sections 3 and 4 In the light of the above mentioned principles. 59. A learned single Judge has got a duty to exercise the powers conferred on him under clauses 1 to 13 of Section 3 of the High Court Act, which is a power coupled with duty. The only ground on which he could avoid discharging his duty when the matter comes up for hearing is by adjourning the matter to a Division Bench. The functions that he discharges under the substantive part of Section 3 as well as under the proviso are Judicial functions. If a learned Judge abdicates his duties by avoiding the burden of discharging the duties under the substantive part of Section 3 on "unstated" and "undisclosed" grounds, he would be acting arbitrarily. In such a situation it is no answer that he is not deciding a lis between the parties, and therefore no prejudice would be caused. The question is whether the learned Judge has properly exercised his powers under the proviso, and not whether he has properly exercised the powers under clauses 1 to 13 of Section 3, that is resolution of dispute inter-partes. 60. I do not endorse the view that the word "adjourn& ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dictional fact, the existence or non-existence of which depends upon assumption of jurisdiction by a Bench of two Judges. The conduct of adjourning a case by a learned Judge to another day or sine die is altogether for a different purpose. By the said order, no Jurisdiction is conferred on a Bench of two Judges to decide the matter. Therefore we cannot equate an order "adjournment Simpliciter" to the word "adjourn" used in the proviso to Section 3. The Apex Court in Administrator. Municipal Corpn. v. Dattatraya Dahankar (1992) 1 SCC 361 : AIR 1992 SC 1846 held the mechanical approach to construction is altogether out of step with the modern positive approach. The modern positive approach is to have a purposeful construction that is to effectuate the object and purpose of the Act. 62. The purpose to be achieved by adjournment simpliciter and adjournment under the proviso to Section 3 has no comparison. The meaning of the word "adjourn" is not to be taken in abstract, but regard must be had to the setting in which the word occurs and also the subject matter and object of the provision. I also fully endorse the view that the word "adjourn" appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... words, non-exercise of powers under clauses 1 to 13 itself is a prejudice. Arbitrary or improper exercise of power by a learned Judge by adjourning the matter to a Division Bench without discharging duties under the substantive part of Section 3 would Itself be a prejudice. Suppose there are binding decisions of the Division Bench or of the Supreme Court on the point, learned Judge is bound to apply those decisions and adjudicate the rights of the parties under clauses 1 to 13 of Section 3. Instead if he adjourns the case to a Division Bench on "undisclosed grounds". It will be a prejudice to the party. Even if no grounds exist, a learned Judge could abdicate his duty conferred on him under clauses 1 to 13 by shunting the responsibility to the Division Bench on "unstated grounds". That would also amount to arbitrariness. All the above mentioned situations. In my view, would prejudice a party, though learned Judge is not deciding a lis as such. In order to check the possibility of unwanted references, learned Judge should give reasons in the order. 65. I am of the view that the opportunity of the Division Bench as well as litigant public to look at the Reference ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ettered in its exercise, Coke's definition still holds good, discretio est discernere per legem quid sit justum (o), and discretion, when applied to a Court of Justice, means sound discretion guided by law. It must be governed by rule, not by humour, it must not be arbitrary, vague and fanciful, but legal and regular. 68. Are we not aware of the time hallowed phrase that "Justice should not only be done but be seen to be done". Why not a Judge disclose what are the materials which weighed with him when he decided to adjourn the case to be heard by a Bench of two Judges. For that matter, should he wait for any legislative or Judicial compulsion? After taking oath and wearing robe of a Judge and taking a seat in Court for administering justice, can there be any subjectiveness in his action? 69. Supreme Court in S. Nagaraj v. State of Karnataka held that justice is a virtue which transcends all barriers of law; neither the rule of procedure nor technicalities of law can stand in its way. Supreme Court in Sarat Kumar Dash v. Biswajit Patnaik. held that reasons are a link between the maker of the order or the author of the decision and the order itself. Lord Hewart, C. J ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... matter cannot be referred to the Division Bench and the reasoning of the Division Bench decision in Bar Council of Kerala v. Thankappan Pillai 1985 KLT 738 is correct and the Larger Bench decision in Bar Council of Kerala v. Thankappan Pillai (1985 KLT 769 : AIR 1986 Ker 1 (FB) is not correct in so far as it overrules the decision in 1985 KLT 738. I also agree with the views expressed by the Hon'ble Chief Justice that it is desirable to have a reasoned order while adjourning the matter by a single Judge to a Division Bench. 1 further agree that an order of adjournment adjourning the matter by a single Judge to a Division Bench is not an appealable order and there is no question of right of appeal being taken away merely when a single Judge adjourns the case to a Division Bench as held in paragraphs 46 to 48 of the order. As observed by the Hon'ble Chief Justice that since the order of adjournment by the single Judge to the Division Bench under Section 3 Is not appealable even if the order of adjournment contains no reason, the Division Bench has no option but to decide the same. 73. I beg to differ from the opinion of the Hon'ble Chief Justice that an order of adjourn ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ingle Judge to 'adjourn' the matter Is only a power to place the entire matter before the Division Bench and not a particular question of law. In Kallara Sukumaran v. Union of India (1987) 1 KLT 226 : AIR 1987 Ker 212), it is held that the single Judge cannot refer a question of law to the Division Bench. The entire case should be adjourned and even if only a question of law is referred, the entire matter has to be decided by the Division Bench. If there are five questions of law involved and the single Judge feels that only one question needs the opinion of the Division Bench, then also, the entire matter has to be referred and not that question alone. A conscious departure was made from the earlier Act and from the Acts and Rules prevailing in other States by the Kerala Legislature. Therefore, the word 'adjourn' mentioned in Section 3 should be given the plain meaning. When a single Judge adjourns the case to himself also, order of adjournment is a judicial order. No reasons are usually written. Even in such cases, a client may ask the Advocate why it was adjourned. In certain matters, even if a case is adjourned, it may cause some prejudice to the parties. Someti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Mahadeolal Kanodia v. Administrator General of West Bengal AIR 1960 SC 936 that "the Intention of the legislature has always to be gathered by words used by it, giving to the words their plain, normal, grammatical meaning". We may also refer to the legislative history. A conscious departure of the word 'reference' under Section 20 of the T. C. Act while enacting Section 3 of the Kerala Act is indicative of the Intention. The word 'reference' Is used under Section 4 with regard to the powers of the Division Bench. It clearly shows that the Legislature was aware of the difference in the meaning of the verbs 'adjourn' and 'refer' and they are not synonymous. 76. It Is held by the Supreme Court in M/s. Patheja Bros. v. ICICI Ltd. (2000) 8 JT (SC) 252 : AIR 2000 SC 2553) that when the words in the Act are clear, it should be given effect. His Lordship Justice S. P. Barucha observed as follows In the above judgment, (para 12) : "When the words of a legislation are clear, the Court must give effect to them as they stand and cannot demur on the ground that the legislature must have intended otherwise." The word 'adjourned' has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en though it is desirable to have the reasons stated in such orders. But, such orders of adjournment cannot be faulted with merely because reasons were not stated. In fact, the single Judge is expected to adjourn the case to be heard by a Division Bench if he is only bona fide forms an opinion that such course is necessary like in the case of an adjournment of a case from one date to another to his own Bench etc. There should be some reasons. It is true that an order passed by the learned single Judge while adjourning the case to a Division Bench under Section 3 of the Kerala High Court Act is a Judicial order and it should be signed by him. But, as observed by the learned Chief Justice, it is an order which cannot be judicially reviewed. It is not an order within the meaning of Section 5(1) of the Kerala High Court Act. None of the rights of the parties are adjudicated. 77. It is true that even administrative orders should have reasons stated if any of the rights of the parties are affected by such an order. Here, none of the rights are affected and the entire matter is before the Division Bench and the entire matter has to be decided by the Division Bench. On adjournment of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to be heard by the Division Bench, in the circumstances of the case, cannot be adjourned under Section 3 to be heard by a Division Bench merely because he has jurisdiction to decide important questions also. There may be cases where, after hearing the parties, single Judges may feel difficult to form an opinion in view of the complicated nature or very important questions which, in the opinion of the single Judge, should have an authoritative decision by the Division Bench. 79. It is true that normal function of a proviso is to except something out of the enactment. The general rule in construing an enactment containing a proviso is to ensure to consider them together without making either of them redundant. In fact, by Section 3, a definite power is given to the learned single Judge to adjourn the matter to be heard by a Division Bench if he is of the opinion that it is a matter to be heard by two Judges instead of singly by him and no reference order giving reasons is necessary even though it was desirable for reasons stated. The above power given In the section after making clear departure from the parent Act and Section 4 cannot be ignored or restricted stating that it is a me ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing. I agree with the view expressed by the learned Chief Justice that it is desirable that a single Judge passes a reasoned order while adjourning a matter for being heard and determined by a Division Bench. But we cannot strain much to read into. In order to have a desired result, something which Is not there in the Act, when the expressions are capable of a plain interpretation. It is to be noted that the predecessor Act, viz. the Travancore-Cochin High Court Act, 1125 used the expression "refer" in the case of the single Judge also. However, in the successor Act, viz. the Kerala High Court Act, 1958 the word "refer" had been substituted by "adjourn" while dealing with the powers of the single Judge. It is particularly significant in-this context to note that the Travancore-Cochin High Court Act, 1125 was applicable as such to the High Court of Kerala till the Kerala High Court Act, 1958 was brought into force on 9-3-1959. Thus, it can be seen that in the High Court of Kerala Initially the single Judge had to refer a matter to the Division Bench till 1959 when the Kerala High Court Act provided for the new provision requiring the single Judge only t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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