SHUSHILA KESARBHAI Vs. BAI LILAVATI

JUDGEMENT

(1.) THIS reference to a Full Bench of seven Judges is necessitated because a question has arisen whether a decision given by a Full Bench of five Judges of the Bombay High Court in Bhuta v. Lakdu, 21 Bom LR 157 : (AIR 1919 Bom 1) (FB) lays down the correct law. The point which has been referred to us for our opinion is, whether the procedure applicable in case of difference of opinion amongst Judges constituting a Division Bench where they are equally divided in opinion in the decision of an appeal from a subordinate Court is governed by Section 98, sub -section (2) of the Code of Civil Procedure, 1908, or Clause 36 of the Letters Patent. The Full Bench of five Judges has taken the view in 21 Bom LR 157 : (AIR 1919 Bom 1) (FB) that in such a case Section 98, sub -section (2) applies and not Clause 36 and this view taken by five Judges of the Bombay High Court is assailed in the present reference. The reference has been made by J. M. Sheth and B. K. Mehta, JJ. on a difference of opinion arising between them in a First Appeal preferred from a decree passed by the Third Joint Civil Judge (Senior Division), Ahmedabad. The two learned Judges differed on a question of fact and arrived at contrary conclusions. Mr. Justice J. M. Sheth was of the view that the decree of the trial Court should be confirmed while Mr. Justice B. K. Mehta was inclined to hold that the decree of the trial Court should be reversed. Now, if Section 98, sub -section (2) were applicable, the result of the difference of opinion between the two learned Judges would be that the decree of the trial Court would have to be confirmed. But, if on the other hand the procedure applicable were governed by Clause 36 the point of difference between the two learned Judges would have to be heard by one or more of the other Judges of the High Court and the decision would follow according to the opinion of the majority of the Judges who have heard the case including those who have first heard it. That might conceivably produce a different result from that reached on an application of Section 98. sub -section (2). The question, therefore, assumes significance as to what is the proper procedure applicable in a case of this kind. Which of the two rival provisions applies : Section 98, sub -section (2) or Clause 36?

(2.) NOW on this question a large multitude of authorities was cited before us. The decisions referred on behalf of the parties ranged over a period of about hundred years and represented conflicting opinions held by different High Courts from time to time. It is not possible to discover any logical consistency in these decisions which may be aptly described in the words of Lord Goddard "as a rough sea of contradictory authorities" and we do not think any useful purpose will be served by indulging in the long and rather tedious exercise of examining this welter of decisions. That would unnecessarily encumber the judgment and instead of helping to elucidate the point at issue serve to confound it by burying it in a mass of authorities. It will be sufficient, in our opinion, if we broadly indicate the categories in which the decisions are capable of being divided and refer only to some of the important decisions, particularly those delivered by the Bombay High Court. But before we proceed to do so," we may first examine the question on principle, unfettered by any decisions of the Bombay High Court or other High Courts and aided only by such pronouncements of the Privy Council and the Supreme Court as bear directly on the interpretation of the relevant statutory provisions and consider for ourselves what is the proper answer to be given to the question referred to us.

(3.) NOW , before we proceed further with the narration of the history, we may conveniently at this stage examine the true scope and ambit of Clause 36. It is clear on a plain grammatical construction of the language of Clause 36 that it applies in all cases where a Division Court composed of two or more Judges is performing a function "which is hereby directed to be performed by the...High Court... in the exercise of its original or appellate jurisdiction". Clause 36 is couched in language of the widest amplitude and it applies irrespective whether the Division Court is exercising original jurisdiction or appellate jurisdiction, the only condition being that the function performed by the Division Court in exercise of such jurisdiction must be a function directed by the Letters Patent to be performed by the High Court. It was common ground between the parties that Clause 15 confers appellate jurisdiction on the High Court by providing for an intra -High Court appeal against a judgment of a Single Judge of the High Court and. therefore, when a Division Court is hearing an appeal under Clause 15, it is performing a function which is directed by Clause 15 to be performed by the High Court in exercise of its appellate Jurisdiction and consequently, if the Judges constituting the Division Court are equally divided in opinion, the procedure would be governed by Clause 36. But, what would be the position where a Division Court is hearing an appeal from a subordinate Court? Can it be said in such a case that the Division Court is performing a function which is directed by the Letters Patent to be performed by the High Court in the exercise of its appellate jurisdiction? Is the hearing of an appeal from the subordinate Court a function directed to be performed by the High Court by any clause of the Letters Patent? The answer is clear and beyond doubt if we look at Clause 16. That clause provides that the High Court of Bombay shall be a Court of Appeal from the Civil Courts of the Province of Bombay and from all other Courts subject to its superintendence, and shall exercise appellate jurisdiction in such cases as are subject to appeal to the High Court by virtue of any laws or regulations now in force. There was at one time some controversy as to the true meaning and import of the last part of Clause 16 and particularly the words "laws or regulations now in force". Clause 15 of the Letters Patent of 1862 which clause 16 replaced included a provision to the following effect: "or shall become subject to appeal to the said High Court by virtue of such laws and regulations relating to civil procedure as shall be hereafter made by the Governor -General in Council" in addition to the words "laws or regulations now in force". These words were omitted from Clause 16 when the Letters Patent of 1865 were issued and only the words "laws or regulations now in force" were retained. The Calcutta High Court in a decision given in India Electric Works v. Registrar of Trade Marks, AIR 1947 Cal 49 inferred from this change that the appellate jurisdiction of the High Court as specified in Clause 16 was confined only to the jurisdiction to hear appeals from the Civil Courts mentioned in that clause and appeals under Acts passed and Regulations in force upto the year 1865 and if any appellate jurisdiction was conferred on the High Court by any subsequent statute, it was not within the appellate jurisdiction contemplated under Claire 16. This view taken by the Calcutta High Court was overruled by the Supreme Court in a case which went from the Bombay High Court. The decision in that case is reported in N. S. Thread Co. v. James Chadwick and Bros., AIR 1953 SC 357. Mahajan J., speaking on behalf of the Supreme Court pointed out in this decision after referring to Clause 44: