CODE OF CIVIL PROCEDURE, 1908

Section 98 - Decision where appeal heard by two or more Judges

ANNOTATION

Amendments Court consisting of more than

The Code of Civil two Judges" in proviso to
Procedure (Amendment) section after Sub-section (2).
Act, 1976-substituted Effective Date
"composed of two or other Code of Civil Procedure
even number of judges (Amendment) Act, 1976 w.e.f.
belonging to a Court
1st February, 1977
consisting of more Judges
than those constituting the
Bench" for the text
"composed of two Judges
belonging to a

Case Cited

1. M/s. Shriram Industrial Enterprises Ltd v. The Union of India MANU/UP/0041/1996:

AIR1996All135.

2. Tej Kaur v. Kirpalk Singh MANU/SC/0321/1995: AIR1995SC1681, JT1995(5)SC201; R.

Viswanathan v. Rukn-Ul-Mulk Syed Abdul Wajid MANU/SC/0038/1962: AIR1963SC1.

3. Baboo Ram v. Ishrat Ali MANU/UP/0036/1975: AIR1975All180.

4. Pulin Behari v. Mahadeb, MANU/WB/0017/1981: AIR 1981 Cal 61 : 1961 (1) Cal HN 55.

5. Tej Kaur v. Kripal Singh, MANU/SC/0321/1995: AIR 1995 SC 1681 : 1995 (5) SCC 119.

6. Zainuddin v. Sohan Lal, MANU/BH/0108/1958: AIR 1958 Pat 290.

7. M/s. Sikkim Subba Associates v. State, MANU/SC/0313/2001: AIR 2001 SC 2062 : 2001 (2) RAJ
52.

8. Mahant Swaran Dass v. Shiromani Gurudwara Parbandhak Committee MANU/PH/0194/1981: AIR

1981 P&H 110.

9. Mt. Rulia Devi v. Raghunath Prasad MANU/BH/0029/1979 : AIR1979Pat115; S.G.P. Committee v.

M.P. Dass Chela MANU/SC/0329/1998: AIR 1998 SC 1978.

10. Ashtbhuja Singh v. Board of Revenue Allahabad MANU/UP/0212/1954: AIR1954All521.

11. P.V. Hemalatha v. Kattamkandi Puthiya Maliackal Saheeda MANU/SC/0501/2002:

AIR2002SC2445.

COMMENTS

There can be only one Judgment in a case. Two contradictory Judgments or Judgments in variance
with each other will not have the effect of deciding any question or issue in the case or of deciding
any of the rights of the parties. It is also plain that such Judgments can neither be enforced nor be
given effect to. Therefore, if two Judges constituting a Division Bench give contradictory decisions or
decisions at variance with each other, in law, such decisions cannot be called as Judgments as they
do not decide any question or issue in the case or proceeding nor do they decide any of the rights of
the parties, the real test being what is the effect of the two decisions on the case or proceedings in
which it is made, the language or phraseology used being wholly immaterial having no bearing. In
such a situation, the decision so rendered will only amount to opinions of the respective Judges. This
principle will, however, not apply where on account of some statutory provisions like Section 98,
Code of Civil Procedure contradictory decisions by their own force lead to decision of any question or
issue in the case for any of the rights of the parties (M/s. Shriram Industrial Enterprises Ltd v. The
Union of India).1

Section 98(1) enumerates that 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) or
such Judges. Sub-section (2) seems to design a situation where no majority opinion agreeing with
the Judgment of the trial Court emerges. It says that: Where there is no such majority which concurs
in a Judgment varying or reversing the decree appealed from, such decree shall be confirmed. The
bar engrafted in Sub-section (2) of Section 98, Code of Civil Procedure applies only to the Division
Bench of the High Court who heard the appeal; and its constraint is inapplicable when the Supreme
Court hears the appeal under Article 136 (Tej Kaur v. Kirpalk Singh; R. Viswanathan v. Rukn-Ul-Mulk
Syed Abdul Wajid).2

Sub-section (2) would have been applicable to bring out this result if the difference between the two
Judges had been confined only to this finding of fact. But actually the difference of opinion between
them was also as to the application of law to the finding of fact as recorded by the Courts (Baboo
Ram v. Ishrat Ali).3 The difference of opinion between Judges, who constitute the Bench hearing the
appeal, on a point of a law alone would be referred to a third or other Judges according to the rules
of that High Court. When the Judges differ in an appeal on a question of facts only, there can be no
reference to the third Judge (Pulin Behari v. Mahadeb)4 and decree shall be confirmed (Tej Kaur v.
Kripal Singh).5 Where a question of law on which the Judges differ is referred to third Judge, such
Judge shall not give his opinion on any other point except the one referred to him (Zainuddin v.
Sohan Lal).6 The words "consisting of" in Section 98(2), Code of Civil Procedure shall mean and also
considered to have relevance only to the sanctioned strength (M/s. Sikkim Subba Associates v.
State).7

Sub-section (3) of Section 98 of the code expressly lays down that nothing in this section shall be
deemed to alter or otherwise affect any provision of the letters patent of any High Court. Even
otherwise the provision of Section 98 of the Code and Clause 26 of the Letters Patent, in this context,
appear to be similar if not virtually in pari materia (Mahant Swaran Dass v. Shiromani Gurudwara
Parbandhak Committee).8 The Letters Patent does not confine the point of difference to a question of
law and since it is not subject to any limitation mentioned in Section 98 of the Code of Civil
Procedure, it must be held that a difference between the Judges constituting a Division Bench, for the
purpose of reference to a third Judge, can be on a question of fact (Mt. Rulia Devi v. Raghunath
Prasad; S.G.P. Committee v. M.P. Dass Chela).9

Letters Patent to certain High Courts of India were granted under the Great Seal of England at the
time of establishing such Courts e.g. High Courts of Calcutta, Bombay, Madras, Allahabad and Patna.
These Letters Patents are construed as an Act passed by Legislature. Letters Patent is an exclusive
privilege granted by the sovereign. Difference in making reference under Section 98 of this Code and
under clause 28 of the Letters Patent (Clause 36 of Letters Patent of Calcutta High Court) is that,
Section 98 gives discretion to make reference to third Judge, while under Letters Patent it is
obligatory. Secondly, under Section 98 only question of law can be referred while under Letters
Patent even questions of fact can be referred. High Courts created after independence of India have
no Letters Patent.

A difference between two Members of the Board of Revenue, a point of law should have been stated
and referred to a third Member of the Board of Revenue under the proviso to Sub-section (2) of
Section 98, Code of Civil Procedure which is applicable to a procedure before the Board of Revenue.
It, however, appears that under the proviso it is discretionary for the Members of the Bench hearing
the appeal to state the point of law on which they differ. If they do not choose to state the point of
law but proceed to give their Judgments differing from each other, the decree of the lower Court
from which the appeal has been filed is to be confirmed (Ashtbhuja Singh v. Board of Revenue
Allahabad).10

Where the two Judges constituting the Division Bench delivered two separate Judgments in which
they have differed on almost all issues arising in the case. After delivering two separate Judgments,
the Judges then formulated the impugned order. The conclusion that since they have delivered two
separate Judgments and have not identified difference on any point of law, the decree of the Court
below passed by the Court is liable to be confirmed in terms of Section 98(2) of the Code of Civil
Procedure (P.V. Hemalatha v. Kattamkandi Puthiya Maliackal Saheeda).11
 The Code of Civil Procedure, 1908
By Anupam Srivastava
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