JUDGMENT
1. The question referred to the Full Bench is:
Is the procedure to be adopted by the High Court in case of an equal division of opinion between the Judges to be governed by Clause 36 of the Letters Catent or by Section 98 of the Code of Civil Procedure?
2. The Letters Patent were issued in 1862 and were modified in 1865 but previously a section like Section 98 had been introduced into the Civil Procedure Code of 1859 by the Amending Act of 1861. Between 1865 and 1877, it could not be suggested that the Civil Procedure Code prevailed over the Letters Patent. It was obvious that the Letters Patent prevailed over the Civil Procedure Code. In case of difference of opinion between two Judges, the procedure in the Letters Patent was the only procedure to be followed. This was accordingly held in Nundeeput Mahta v. Mr. Alexander Shaw Urquhart. (1870) 13 W.R. 209 A fresh Civil Procedure Code was passed in 1877 and another in 1882 and in these Codes Section 575 similar to Section 98 of the present Code was inserted as in the Code of 1859. As these Codes were after the Letters Patent, the question arose whether Section 575 superseded Clause 36 of the Letters Patent. That the Indian Legislature could alter or amend the provisions of the Letters Patent was clear from Clause 44 of the Letters Patent. Rut for Clause 44 the question would never have arisen. One would have thought that an attempt by the Indian Legislature to alter or amend the provisions of the Letters Patent would have been made in express and unambiguous terms and not left to be inferred by implication. No express attempt was made by the Legislature. Still apparently it was contended that impliedly the Indian Legislature did intend to supersede Clause 36 of the Letters Patent by Section 575 of the Civil Procedure Code. This argument prevailed in Appaji Bhivrav v. Shivlal Khubchand (1870) 13 W.R. 209 a decision of a Full Bench, Westropp, C.J., Melvill and West, JJ. They said:
We consider that the provisions of the Letters Patent in this respect have been superseded by Section 575 of the Act X of 1877–so far as regards cases to which Section 575 is applicable.
3. This was followed in Sri Gridhariji Maharaj Tickait v. Purushotum Gossami (1870) 13 W.R. 209 even in the case of an appeal from the Original Side of the High Court under Section 15 of the Letters Patent and in Hussaini Begam v. The Collector of Muzaffarnagar and other cases. But meanwhile the Privy Council held in Hurrish Chunder Chowdhry v. Kalisundari Debi (1882) L.R. 10 I.A. 4: I.L.R. 9 C. 482 (P.C.), that Clause 15 of the Letters Patent was not supreseded by Section 588 of the Civil Procedure Code. Accordingly in Chappan v. Moidin Kutti (1882) L.R. 10 L.A. 4: I.L.R. 9 C 482 (P.C.) it was held that Clause 15 of the Letters Patent was not controlled by any of the provisions of the Civil Procedure Code and this was applied in Sabapathi Chetti v. Narayanasami Chetti (1901) I.L.R. 25 M. 555: 11 M.L.J. 346 As a result of the group of cases beginning with Hurrish Chunder Chowdhry v. Kalisundari Debi (1882) L.R. 10 L.A. 4: I.L.R. 9 C 482 (P.C.) it was then held in Allahabad (where there is no Original Side) that Clause 36 of the Letters Patent was not superseded by Section 575 of the Civil Procedure Code. This was followed in Roop Laul v. Lakshmi Doss (1905) I.L.R. 29 M.1. though the latter case is from the Original Side. It will be noticed that the reasoning in Lachman Singh v. Ram Lagan Singh (1903) I.L.R. 26 A. 10 is perfectly general and if Clause 36 of the Letters Patent was not to he considered as superseded by Section 575 of the Civil Procedure Code, it must be so as regards all appeals whether the appeals themselves are under the Civil Procedure Code or under Clause 1 5 of the Letters Patent. In spite of this obvious consideration and the decision in Lachman Singh v. Rant Lagan Singh (1903) I.L.R. 26 A. 10 a practice arose in this Court according to which it was supposed that the only effect of the decision in Roop Laul v. Lakshmi Doss (1905) I.L.R. 29 M. 1. was to make Clause 36 of the Letters Patent applicable to appeals under Clause 15 of the Letters Patent but not to appeals under the Civil Procedure Code as to which, in case of difference of opinion, Section 575 of the Civil Procedure Code would continue to apply as before, Hurrish Chunder Chowdhry v. Kalisundari Debi (1882) L.R. 10 L.A. 4: I.L.R. 9 C 482 (P.C.). But this practice is not represented by any reported decision in this Court. In Surajmal v. Horniman (1917) 20 Bom. L.R. 185, it was held that Clause 36 of the Letters Patent applied in an appeal from the Original Side but the reasoning on which the judgment was based was perfectly general and will equally apply to appeals under the Civil Procedure Code. In Veeraraghava Reddi v. Snbba Reddi (1882) L.R. 10 L.A. 4: I.L.R. 9 C 482 (P.C.), it was held that even in the case of appeals from mufassal Courts, Clause 36 of the Letters Patent applied, but the question was not discussed. But in Bhuta v. Lakadu Dhansing (1918) I.L.R. 43 B. 433 (F.B.) the opposite conclusion was arrived at by a Full Bench. Then we have got the decision in Bhaidas Shivdas v. Bai Gulab (1921) L.R. 48 I.A. 181: I.L.R. 45 B. 718: 40 M.L.J. 519 (P.C.), a decision of the Privy Council. That was a case on the Original Side of the Bombay High Court. There was an appeal. The learned Judges differed and Section 98 of the Civil Procedure Code was applied. Under Section 08, Sub-section (2), the question was referred to another Bench and was decided adversely to the plaintiff. This must have been before the Full Bench decision in Bhuta v. Lakadu Dhansing (1921) L.R. 48 T.A. 181: I.L.R. 45 B. 718: 40 M.L.J. 519 (P.C.). The plaintiff then carried an appeal to the Privy Council on the ground that Section 98 was wrongly applied. The Privy Council held that Clause 36 of the Letters Patent ought to be applied.
4. Lord Buckmaster who delivered the judgment of the Judicial Committee rested his conclusion by reference to Section 4 of the Civil Procedure Code. His reasoning is similar to that in Surajmal v. Horniman (1917) 20 Bom. L.R. 185 and was perfectly general, so that even in the case of appeals under the Civil Procedure Code, Clause 36 should apply. Lord Buckmaster expressly approves of the decision in Lachman Singh v. Ram Lagan Singh (1903) I.L.R. 26 A. 10. which was a case of an appeal under the Code. The point was accordingly raised in this Court in Venkatasubbiah v. Venkatasubbarama (1924) 21 L.W. 721. 13. (192S) I.L.R. 7 Lah. 179. The case in Bhaidas Shivdas v. Bai Gulab (1921)L.R. 48 I.A. 181: I.L.R. 45 B. 718: 40 M.L.J. 519 (P.C.), was cited before the learned Judges but the fact that Lachman Singh v. Ram Lagan Singh (1903) I.L.R. 26 A. 10. was approved by the Privy Council seems to have been overlooked. Venkatasubba Rao, J., relied on the previous practice in this Court in applying Section 98 of the Civil Procedure Code to appeals under that Code and he held that Bhaidas Shivdas v. Bai Gulab (1921) L.R. 48 I.A. 181: I.L.R. 45 B. 718: 40 M.L.J. 519 (P.C.) was not intended to overrule the prior rule of law as represented by the practice of this Court. This is the first decision of this Court, apart from practice, decided after a consideration of the point that Section 98 and not Clause 36 of the Letters Patent applied to appeals under the Civil Procedure Code. In Puma Chandra Chatterji v. Narendra Nath Chowdhry (1925) 29 C.W.N. 755 (F.B.). Walmsley, J., held that Clause 36 ought to apply and a similar conclusion was arrived at by a Bench of three Judges in Suresh Chandra Mukherjee v. Shift Kanfa Banerjee (1924) I.L.R. 51 C. 669 at 672 (F.B.). But in a later case in Prafulla Kamini Roy v. Bhabani Nath Roy (1925) I.L.R. 52 C. 1018. Page, J., who was a party to Suresh Chandra Mukherjee v. Shift Kanta Banerjee (1924) I.L.R. 51 C. 669 at 672 (F.B.)changed his opinion and held that the decision of the Privy Council in Bhaidas Shivdas v. Bai Gulab (1924) I.L.R. 51 C. 669 at 672 (F.B.), must He limited to appeals under Clause 15 of the Letters Patent and does not apply to appeals under the Civil Procedure Code. Walmsley, J., who was a party to Purna Chandra Chatterji v. Narendra Nath Chowdhry (1925) 29 C.W.N. 755 (F.B.) deferred to the opinion of Page, J., and was willing to change his opinion. Page, J., invited the legislature to solve the doubts and difficulties by an express enactment. In Punjab Akhbarat and Press Co. v. Ogilvie (1924) 26 Bom. L.R. 470, it was held that Section 98 should apply though the Chief Justice appeared to be inclined to the opposite view if the matter were res integra.
5. At this stage of the Case Law, Act XVIII of 1928 was passed amending section ’98 of the Code of Civil Procedure. An explanation was added to Section 98 to this effect:
Nothing in this section shall be deemed to alter or otherwise affect any provision of the Letters Patent of any High Court.
6. This explanation is perfectly clear and is intended to provide that cause36 of the Letters Patent should not be governed by Section 98 of the civil procedure code. I have referred to the earlier history of the Case Law not for the purpose of construing this amending Act in the light of such history–a practice condemned by the House of Lords in Bank of England v. Vagliana Brothers (1891) A.C. 107 but for a different purpose to be refer-ed to presently. Mr. Krishnaswami Aiyangar, the learned Advocate for the respondents, contended that the Amending Act does not lead to the conclusion that in appeals under the Civil Procedure Code, Clause 36 of the Letters Patent applies. His argument may be thus stated; the Amending Act is declaratory in its nature; it is not intended to alter the law; the law as previously understood was that Section 98 applies to appeals under the Civil Procedure Code and Clause 36 of the Letters Patent applies to appeals under the Letters Patent and this was not intended to be altered by the Amending Act; the effect of the Amending Act is only to confirm the previous state of the law. There is a fallacy in the whole of this argument. It is true that the Amending Act is intended to be declaratory, that is, not only is its object to make the law clear from its date but also to make the Act retrospective ; that is, there is no change in the law. The law both before the amendment and after the amendment is the same. To this extent I agree with the argument of the learned Advocate that the amendment is declaratory. But to assume from this that the Amending Act did not intend to alter the law as expounded by the decisions up to that date does not follow. In the first place, it is not correct to say that there is a well-understood rule of law prior to the amendment in the manner stated by the learned Advocate for the respondents. The decision in Lachman Singh v. Ram Lagan Singh (1903) I.L.R. 26 A. and Veera-raghava Reddi v. Subba Reddi (1919) I.L.R. 43 M. 37: 37 M.L.J.449 indicate the contrary. In my opinion, the object of the amendment is to make it now perfectly clear that for any purpose Clause 36 of the Letters Patent should never be controlled by the Civil Procedure Code. This was the view of Lord Buckmaster in Bhaidas Shivdas v. Bai Gulab (1924) I.L.R. 51 C. 669 at 672 (F.B.) and the cases approved therein. The Amending Act is really the response of the legislature to the tation of Page 1.
7. The learend Advocate for the respondents addressed another argument which also proceeded on the footing that there is a well-understood practice or rule of law prior to the Act. I have already shown that there is no such well-understood practice or rule of law; but apart from this, this argument’s otherwise equally fallacious. He relied on Section 4 of the Amend-ing Act which saves prior existing rights, etc. Clause 3 of the section saves any principle or rule of law previously established “notwithstanding that the same may have been derived by, in or from any enactment hereby repealed.” This shows that Section 4 applied only to the repealing part of the enactment and has nothing to do with the amending part of the enactment. If any rule of law under an enactment amended by the Act of 1928 was intended to be saved, the language used would have been “from any enactment hereby amended or repealed.” Therefore this argument of the learned Advocate also fails.
8. The result is that it is now beyond all doubt that Clause 36 of the Letters Patent applies to all appeals. It may be asked, when does Section 98 of the Civil Procedure Code have any operation and why should the legislature not say that the section does not apply to Chartered High Courts instead of adding an explanation to the section? The reply is that Section 98 applies now only to Courts other than the Chartered High Courts, that is, the Chief Courts and Courts of judicial Commissioners and the reason why the legislature adopted this particular form of elucidating the matter is that it was intended to retain Section 98 as applicable even to Chartered High Courts but to make the application subject to Clause 36 of the Letters Patent. If, at any time, Clause 36 of the Letters Patent ceases to exist, Section 98 will come into operation. It is to attain this particular result that the explanation was added to Section 98 instead of saying that Section 98 does not apply to Chartered High Courts at all. I would answer the question referred to us thus:
The procedure adopted by the High Court should be governed by Clause (36) of the Letters Patent.
Kumaraswami Sastri, J.
9. I agree.
Reilly, J.
10. I agree.
