- (1.) The present appeals arise out of two reference orders - one by a Division Bench of this Court dated 8.11.2010 to 3 learned Judges of this Court, and the second by a 3-Judge Bench of this Court dated 27.8.2014, placing the matter before 5 learned Judges of this Court.
(2.) The reference order by two learned Judges, after referring to Section 98 of the Code of Civil Procedure, 1908, reads as follows:- "6. The above view was followed by three Judge Bench Court in P.V. Hemalatha vs. Kattamkandi Puthiya Maliackal Saheeda and Anr, 2002 AIR(SC) 2445. That was a case in which the High Court of Kerala had, relying upon Section 98 of CPC, confirmed the decree under appeal despite difference of opinion between the two Judges comprising the Bench on a question of fact. This Court held that while Section 23 of the Travancore-Cochin High Court Act is the general law, Section 98(2) is a special provision. Section 23 of the Travancore-Cochin High Court Act reads as under: "23. Reference by Chief Justice.-Where two Judges forming a Division Bench agree as to the decree, order or sentence to be passed, their decision shall be final. But if they disagree, they shall deliver separate judgments and thereupon the Chief Justice shall refer, for the opinion of another Judge, the matter or matters on which such disagreement exists, and the decree, order or sentence shall follow the opinion of the Judges hearing the case." 7. Section 9 of the Kerala High Court Act by which the Travancore-Cochin High Court Act was repealed to the extent of its repugnance may also be extracted. It reads: "9. Repeal.-The provisions of the Travancore-Cochin High Court Act, 1125 (5 of 1125), insofar as they relate to matters provided in this Act, shall stand repealed." 8. In our opinion Section 23 of the Travancore-Cochin Act is in the nature of a special provision while Section 98(2) is in the nature of general law. As between the two, the former would apply in preference to the latter. The decision of this Court in P.V. Hemalatha's v. Kattamkandi Puthiya Maliackal Saheeda and Anr. to the extent it takes a contrary view, in our opinion, requires to be reconsidered. 9. That apart, the question whether in an appeal arising out of an order passed by the High Court to which Section 98(2) of the CPC applies, this Court can in exercise of its power under Article 136 of the Constitution direct the matter to be placed before a third Judge to resolve the conflict arising from two differing judgments, has not been examined either in P.V. Hemalatha's or Tej Kaur's case. We, therefore, consider it appropriate to refer to a larger Bench for consideration and an authoritative pronouncement the following two questions: (1) Whether Section 23 of the Travancore-Cochin Act remains unaffected by the repealing provisions of Section 9 of the Kerala High Court Act. If so, whether Section 23 is in the nature of a special provision vis-a-vis Section 98(2) of CPC. (2) Whether this Court can under Articles 136 and 142 of the Constitution direct in any appropriate case a reference to a third judge to resolve the conflict arising between two judges of the High Court hearing an appeal, on a question of fact."
(3.) The 3-Judge Bench in turn referred the matter to a 5-Judge Bench as follows:- "In the reference order, the 2-Judge Bench has doubted the correctness of the decision of this Court in P.V. Hemalatha Vs. Kattamkandi Puthiya Maliackal Saheeda and Anr. Since the decision has been given by a 3-Judge Bench in P.V. Hemalatha, we are of the view that correctness of the decision in P.V. Hemalatha has to be considered by a Bench of 5 Judges. 2. The matter is, accordingly, referred to a Bench of 5 Judges. 3. The matter may be placed before the Chief Justice for appropriate administrative order in this regard. S.L.P. (Civil) No. 34457 of 2010 Leave granted. 2. The issues involved in the present Appeal are identical to the issues that arise in Civil Appeal No. 201 of 2005. Civil Appeal No. 201 of 2005 has been referred to a Bench of 5 Judges. 3. For the self same reasons, this Civil Appeal is also referred to a Bench of 5 Judges to be heard along with Civil Appeal No. 201 of 2005. 4. The matter may be placed before the Chief Justice for appropriate administrative order in this regard.";