RAJENDRA KISHORE SAHI Vs. NAND PRASAD

JUDGEMENT

(1.) This is a reference to a Full Bench by a Division Bench in a case in which the two learned Judges constituting that Bench have disagreed on questions of fact. The suit out of which the appeal arises was brought by the plaintiff for a sum of Rs. 12,477-4-6 being as to Rs. 5177-4-6 expenses alleged to be due to the plaintiff and as to Rs. 7300, arrears of salary alleged to be due to the plaintiff. The defendant denied the alleged terms of employment and pleaded that the plaintiff had received all that he was entitled to. The learned Civil Judge who heard the case at first instance decreed the plaintiff's claim for Rs. 1950 only and against that decree the defendant preferred a first appeal to this Court. The learned Judges constituting the Division Bench which heard the appeal disagreed. Thorn J. (as he then was) accepted the defendant's contentions and would have allowed the appeal and would have dismissed the plaintiff's claim in its entirety. Iqbal Ahmad J. was however of opinion that the decree of the learned Civil Judge should be maintained and he would have dismissed the appeal. It is to be observed that the points upon which the learned Judges differed involved purely questions of fact and no point of law arose in the case. The question then arose as to what course the Bench should follow. Conflicting decisions in this Court and other Courts were cited to the Bench and eventually they referred the matter to the learned Chief Justice for the constitution of a larger Bench to decide the question as to what course should be followed in this case. This Full Bench has now been constituted to decide the matter.

(2.) Unfortunately, the Division Bench in their referring order do not formulate a precise question to be answered but in my view the question which arises and which we have to decide can be stated in these terms : "Is the procedure to be adopted by this Court in case of an equal division of opinion between Judges constituting a Division Bench hearing a first appeal to be governed by Clause 27 of the Letters Patent of this Court or by Section 98, Civil P.C." The appellant has contended that the procedure to be adopted in cases of this kind is that laid down in Clause 27 of the Letters Patent of this Court. That Clause reads as follows: And we do hereby declare that any function which is hereby directed to be performed by the said High Court of Judicature at Allahabad in the exercise of its original or appellate jurisdiction may be performed by any Judge or by any Division Court thereof appointed or constituted for such purpose in pursuance of Section 108, Government of India Act, 1915, and if such Division Court is composed of two or more Judges and the Judges are divided in opinion as to the decision to be given on any point, such point shall be decided according to the opinion of the majority of the Judges if there shall be a majority, but if the Judges should be equally divided they shall state the point upon which they differ and the case shall then be heard upon that point by one or more of the other Judges and the point shall be decided according to the opinion of the majority of the Judges who have heard the case including, those who first heard it.

(3.) It is to be observed that Clause 27 of our Letters Patent applies to oases not only of differences of questions of law but also to cases where the Judges have differed on questions of fact and this Section directs that where there is such a difference of, opinion the learned Judges must state the point or points upon which they differ and such point or points must then be decided : by another Judge or Judges and eventually the point or points are to be decided according to the opinion of the majority of the Judges who have heard the case including, those who first heard it. According to the appellant this Section clearly governs this case and therefore the points of fact upon which the Judges differed must be referred- to another Judge or Judges for his or their opinion. On the other hand the respondent contends that this matter is governed by Section 98, Civil P.C., which is in these terms: (1) Where an appeal is heard by a Bench of two. or more Judges, the appeal shall be decided in accordance with the opinion of such Judges or of the majority (if any) of suoh Judges. (2) 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 Judges belonging to a Court consisting of more than two Judges and the 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. (3) Nothing in this Section shall be deemed to alter or otherwise affect any provision of the Letters Patent of any High Court.