1. Introduction

The case of Shushila Kesarbhai And Others v. Bai Lilavati And Others adjudicated by the Gujarat High Court on May 4, 1973, addresses a pivotal procedural question regarding the resolution of equally divided opinions among judges in High Court Bench decisions. The core issue revolves around whether Clause 36 of the Letters Patent or Section 98(2) of the Code of Civil Procedure, 1908 should govern the procedure when a Division Bench of the High Court is equally split in their judgment on an appeal from a subordinate court.

2. Summary of the Judgment

The Gujarat High Court was presented with a reference involving a discrepancy in judicial opinion within a Full Bench of the Bombay High Court during an appeal from a subordinate court. The crux was whether the procedural guidance in such situations falls under Section 98(2) of the Code of Civil Procedure or under Clause 36 of the Letters Patent. The High Court meticulously examined historical legislative provisions, prior case laws, and the interplay between statutory clauses and judicial precedents.

Ultimately, the court concluded that Clause 36 of the Letters Patent supersedes Section 98(2) of the Code of Civil Procedure in scenarios involving equal division of opinions among High Court judges in appeals from subordinate courts. This landmark decision effectively clarifies the procedural hierarchy and ensures consistency in High Court appellate processes.

3. Analysis

3.1 Precedents Cited

The judgment references a multitude of precedents spanning over a century, reflecting varying interpretations by different High Courts. Notably:

• Bhuta v. I.Lakdu, 21 Bom LR 157 (AIR 1919 Bom 1): A Full Bench of five judges initially held that Section 98(2) governed procedural disputes.
• N. S. Thread Co. v. James Chadwick & Bros., AIR 1953 SC 357: The Supreme Court overruled conflicting interpretations, emphasizing adherence to Clause 36.
• Bliaidas Shivdas v. Bai Gulab, 23 Bom LR 623 (AIR 1921 PC 6): The Privy Council invalidated the earlier Full Bench decision, reinforcing Clause 36's dominance.
• Decisions from the Calcutta, Madras, Lahore, and Patna High Courts consistently upheld Clause 36 over Section 98(2), especially post amendments.

3.2 Legal Reasoning

The court undertook a detailed legislative history analysis, focusing on the evolution of procedural clauses within the Letters Patent and the Code of Civil Procedure. Key points include:

• Clause 36 of Letters Patent: Prescribes the procedure for resolving evenly split opinions in Division Benches, initially defaulting to the senior judge's opinion.
• Section 98(2) of CCP: Provides an alternative procedure, stating that if no majority can be reached, the trial court's decree stands.
• Section 4(1) and 98(3) of CCP: These sections clarify that the special procedures in the Letters Patent are not to be overridden by the CCP, specifically preserving Clause 36's applicability.

The High Court emphasized that legislative intent, as expressed in the amendments, clearly prioritizes the procedural norms established in the Letters Patent over the general provisions of the CCP. References to authoritative texts like Halsbury's Laws of England and Corpus Juris Secundum were used to bolster the argument against implied repeal and to support the preservation of Clause 36.

3.3 Impact

This judgment carries significant implications for the appellate process within High Courts across India:

• Procedural Clarity: Establishes a clear procedural pathway for resolving judicial impasses, reducing ambiguity between statutory clauses and letters patent provisions.
• Uniformity Across High Courts: Encourages consistency in judicial proceedings by aligning procedural norms across different High Courts, adhering to Supreme Court precedents.
• Precedential Weight: Overrules conflicting High Court decisions, reinforcing the supremacy of Clause 36 and setting a binding precedent for future cases.
• Legislative Compliance: Ensures High Courts operate within the intended legislative framework, honoring the specific procedural instructions of their Letters Patent.

4. Simplification of Complex Concepts

5. Conclusion

The Gujarat High Court's judgment in Shushila Kesarbhai And Others v. Bai Lilavati And Others decisively affirms the primacy of Clause 36 of the Letters Patent over Section 98(2) of the Code of Civil Procedure in situations where High Court judges are equally divided in their opinions during appeals from subordinate courts. By meticulously dissecting legislative history, scrutinizing prior inconsistent judgments, and aligning with Supreme Court interpretations, the court ensures procedural uniformity and upholds the legislative intent embedded in the Letters Patent. This decision not only resolves existing ambiguities but also fortifies the appellate process's integrity within High Courts across India.