BHAGWATI,C.J. - (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.
We may preface the discussion of this question by a brief history of the relevant legislative provisions which fall for consideration. The first Code of Civil Procedure enacted by the Governor -General in Council was Act 8 of 1859. Before this Code of 1859 was enacted, the procedure of the mofussil Courts was governed by special Acts and Regulations and the procedure of the Supreme Courts was regulated by their own Rules and Orders and certain Acts such as Act 17 of 1852 and Act 6 of 1854. The Code of 1859 applied to mofussil Courts only and not to the Supreme Courts which were established by a Royal Charter. Vide the Preamble and Section 382 of the Code of 1859. Section 23 of Act 23 of 1861 which amended the Code of 1859 prescribed the procedure to be followed where Judges hearing an appeal in the Sudder Court, that is an appeal from a subordinate Court. were equally divided in opinion. It provided that if the difference was on a point of law, the Judges should state the point on which they differed and the case would then be re -argued upon that question before one or more of the other Judges and determined according to the opinion of the majority of the Judges by whom the appeal was heard but if the difference was on a point of fact, the decree of the trial Court should be affirmed. There were at this time in the Presidency of Bombay two Courts, namely, the Supreme Court established by Royal Charter and the Court of Sudder Dewany Adawlut and Sudder Foujdary Adawlut. On 6th August 1861 the High Courts Act, 1861 was enacted by the British Parliament. Section 1 of this Act empowered Her Majesty, by Letters Patent to erect and establish High Courts of Judicature at Fort William in Bengal, Madras and Bombay and Section 9 provided that

"Each of the High Courts to be established under this Act shall have arid exercise all such Civil, Criminal ............ Jurisdiction, original and appellate and all such powers and authority for and in relation to. the administration of justice in the Presidency for which it is established, as Her Majesty may by such Letters Patent as aforesaid, grant, and direct subject, however, to such directions and limitations as to the exercise of Original Civil and Criminal Jurisdiction beyond the limits of the Presidency Towns as may be prescribed thereby; and save as by such Letters Patent may be otherwise directed and subject and without prejudice to the legislative powers in relation to the matters aforesaid of the Governor -General of India in Council, the High Court to be established in each Presidency shall have and exercise all jurisdiction and every power and authority whatsoever in any manner vested in any of the Courts in the same Presidency abolished under this Act at the time of the abolition of such last -mentioned Courts."
The Courts abolished under the Act were those referred to in Section 8 and so far as the Presidency of Bombay is concerned, they were the Supreme Court and the Court of Sudder Dewany Adawlut and Sudder Foujdary Adawlut. Her Majesty in exercise of the power conferred under Section 1 issued three Letters Patent in identical terms on 14th May, 1862 establishing High Courts of Judicature at Fort William in Bengal, Madras and Bombay. We are concerned only with the High Court of Bombay and we will, therefore, confine our attention to the Letters Patent in regard to the High Court of Bombay. There were two characteristics of the Letters Patent of 1862 which deserve to be noted. One was the absence of a provision similar to Clause 36 so that the Letters Patent of 1862 did not prescribe what should be the procedure to be followed where there was an equal division of opinion between Judges constituting a Division Bench. The other was the introduction of Clause 37 which enacted that
"the proceedings in the High Court in Civil cases shall be regulated by the Code of Civil Procedure enacted by the Legislature of India of which Act 23 of 1861 forms a part."
The procedure set out in Section 23 of Act 23 of 1861 was thus admittedly applicable in case of difference of opinion amongst Judges hearing an appeal in the High Court. The Letters Patent of 1862 were, however, revoked by Her Majesty by issuing fresh Letters Patent on 28th December, 1865 and it is with these Letters Patent of 1865 that we are concerned in the present reference. It would be convenient at this stage to make a brief reference to some of the relevant clauses of the Letters Patent of 1865. Clause 15 confers a right of appeal to the High Court from the judgment of one Judge of the High Court or "one Judge of any Division Court pursuant to Section 108 of the Government of India Act". Clause 16 provides for the exercise of appellate jurisdiction by the High Court over the Courts in the Province and is in the following terms: -
''And we do further ordain that the said High Court of Judicature at Bombay shall be a Court of Appeal from the Civil "Courts of the Presidency 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 said High Court by virtue of any laws or regulations now in force".
Clause 36 lays down the procedure to be adopted in case the Judges composing a Division Court are divided in opinion as to the decision to be given on any point. It reads: -
"And we do hereby declare that any function which is hereby directed to be performed by the said High Court of Judicature at Bombay 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 one hundred and eight of the 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."
We have reproduced here Clause 36 as it stands after its amendment by the Repealing and Amendment Act 18 of 1928. Prior to its amendment, Clause 36 provided that if the Judges are equally divided in opinion the opinion of the senior Judge shall prevail. That was the form in which Clause 36 stood at the time when it came up for consideration before the Bombay High Court in 21 Bom LR 157 : (AIR 1919 Bom 1) (FB) (supra). Clause 44 is the last clause to which we may refer and it is in these terms: -
"And we do further ordain and declare that all the provisions of these Our Letters Patent are subject to the legislative powers of the Governor -General in Legislative Council and also of the Governor -General in Council under section seventy -one of the Government of India Act, 1915, and also of the Governor -General in cases of emergency under section seventy -two of that Act, and may be in all respects amended and altered thereby."
It may be noted that Clause 37 of the Letters Patent of 1862 was dropped in the Letters Patent of 1865 and instead a new Clause 37 was introduced which empowered the High Court to make Rules and Orders for the purpose of regulating of proceedings in civil cases which may be brought before the High Court. The result was that the Code of 1859 ceased to apply to the High Court though the appellate jurisdiction of the Sudder Court to hear first appeals under laws and regulations then in force, particularly Section 72. clause (4) of Regulation IV of 1827 and to hear Second Appeals under Section 372 of the Code of 1859 became vested in the High Court by virtue of the second part of Section 9 of the High Courts Act, 1861 and Clause 16 of the Letters Patent of 1865. Of course if any provisions of the code of 1859 were adopted by Rules and Orders made by the High Court under Clause 37 they would apply to the High Court but, in the absence of such Rules or Orders, the Code of 1859 did not apply to the High Court since the issue of the Letters Patent of 1865, Thereafter if there was a difference of opinion amongst Judges constituting a Division Court, it was liable to be resolved by following the procedure set out in Clause 36 and Section 23 of Act 23 of 1861 had no application.
(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:
"That being so the last words of the clause 'now in force' on which emphasis was placed in the Calcutta judgment lose all their importance, and do not materially affect the point. The true intent and purpose of Clause 44 of the Letters Patent was to supplement the provisions of Clause 16 and other Clauses of the Letters Patent. By force of this Clause appellate jurisdiction conferred by fresh legislation on the High Courts stands included within the appellate jurisdiction of the Court conferred by the Letters Patent............

In our opinion the learned Judges were in error in thinking that the appellate jurisdiction possessed by the High Court under the Letters Patent of 1865 was narrower than the jurisdiction it possessed under Clause 15 of the Letters Patent of 1862. Whatever jurisdiction had been conferred on the High Court by Clause 15 of the Letters Patent of 1861 was incorporated in the Letters Patent of 1865 (as amended) and in the same measure and to the same extent by the provisions of Clauses 16 and 44 of that Charter.........We have not been able to appreciate this distinction and it seems to us it is based on some misapprehension as to the true intendment of Clause 44 of the Letters Patent. The purpose and intent of Clause 44 of the Letters Patent was to declare that in addition to the jurisdiction conferred by Clause 16 it would also exercise the appellate jurisdiction which from time to time would be conferred on it by subsequent enactments". (Underlining is ours).
It would, therefore be seen that Clause 44 is intended to serve the same purpose as the words which found a place in Clause 15 of the Letters Patent of 1862 but which were subsequently omitted when Clause 16 of the Letters Patent of 1865 came to be enacted. This clause includes within the appellate jurisdiction of the High Court conferred by Clause 16 of the Letters Patent such further appellate jurisdiction as may from time to time be conferred on the High Court by subsequent legislation. Whenever, therefore the High Court exercises appellate jurisdiction whether by virtue of any laws or regulations in force when the Letters Patent of 1865 were issued or by virtue of any subsequent legislation, it does so under Clause 16 read with Clause 44. The High Court in either case exercises appellate jurisdiction conferred under Clause 16 read with Clause 44 and when it does so, it performs a function directed to be performed by it by Clause 16 read with Clause 44 so as to attract the applicability of Clause 36. Clause 36 is, therefore, not confined in its application to appeals under Clause 15 but it also applies in case of appeals from subordinate Courts for the latter fall within the appellate jurisdiction under Clause 16 read with Clause 44. This conclusion follows inevitably from the observations of the Supreme Court in AIR 1953 SC 357 (supra).
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