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Case Number

F.A.F.O No. 1 of 1990

Attorney(S)

U.N.Sharma
S.P.Mehrotra
N.B.Singh

Judges

R. Dayal
Sudhir Narain
T.P Garg, JJ.

Acts

Article 225 of the Constitution, the provisions contained in Section 98 of the Code of Civil Procedure
Rule 3 of Chapter VIII of the Rules of Court, 1952 and observed:Rule 3 of Chapter VIII of the Rules
confirmed.17. Section 15(3) of the Mysore High Court Regulation, 1884, as amended by Act XII of 1930,
Section 98, Civil Procedure Code or Section 429 of the Criminal Procedure Code
Section 98 of the Code of Civil Procedure. Sub-section (2) of the section
sub-section (2) of Section 98 of the Code of Civil Procedure,
Section 15(3) of the Mysore High Court Regulations of 1884.
Section 98 of the Mysore Civil Procedure Code provided:(1)
Section 15(3) of the Mysore High Court Regulations 1884,
Section 15(3) of the Mysore High Court Regulations
Section 15 of the Mysore High Court Regulations
SECTION 229 GOVERNMENT OF INDIA ACT 1935
Section 98(2) of the Code of Civil Procedure
Section 98 of the Code of Civil Procedure
ARTICLE 225 CONSTITUTION OF INDIA
Section 575 of the Civil Procedure Code.
Rule 3 of Chapter VIII of the Rules
SECTION 98 CIVIL PROCEDURE CODE
Sub-section (3) of Section 98
sub-section (2) of Section 98
Rules of Court, 1952. Rule 3
Rule 3 of the Rules

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Smart Summary

Structured Summary of the Provided Opinion (Full Bench — R. Dayal, J.)

Factual and Procedural Background

This appeal was filed by the appellants seeking to set aside the judgment and decree dated 7.10.1989 of the Civil Judge, Bareilly, which had made an arbitrator's award dated 23.2.1988 a rule of the Court with a slight modification regarding interest. A Division Bench (Hon'ble Om Prakash, J. and Hon'ble S.C. Verma, J.) heard the appeal and delivered conflicting judgments on 9.12.1993: Om Prakash, J. dismissed the appeal, while S.C. Verma, J. allowed it, held that the arbitrator had committed a manifest error of law, set aside the award and remitted it for reconsideration by the arbitrator with ancillary directions.

After delivering their separate conflicting judgments, the Division Bench framed a question and referred it to a third Judge to be nominated by the Acting Chief Justice: “While on the facts and in the circumstances of the case, the impugned award deserves to be set aside.” The Acting Chief Justice nominated Hon'ble D.S. Sinha, J. as the third Judge. Justice Sinha observed that the reference had been made after conflicting full judgments were delivered and relied on Rule 3 of Chapter VIII of the Rules of Court, 1952, and certain authorities to conclude that such a reference, made post-delivery without specifying the point(s) of difference, was incompetent.

The Chief Justice directed listing before a Full Bench, and the case was ultimately placed before the Full Bench consisting of Hon'ble Justice R. Dayal, Hon'ble Justice Sudhir Narain and Hon'ble Justice T.P. Garg. Counsel for the parties were heard (S.P. Mehrotra for appellants; U.N. Sharma for respondents). The Full Bench framed the principal point for decision and proceeded to analyse statutory provisions, rules and precedents before issuing directions as to further procedure.

Legal Issues Presented

Whether the reference by the Division Bench to a third Judge (after delivery of conflicting full judgments and without stating specific point(s) of difference) was incompetent.
If that reference was incompetent, whether the judgment and decree of the trial court stood confirmed under Section 98(2) of the Code of Civil Procedure.
If the decree did not stand confirmed automatically, what procedure should be followed to dispose of the appeal (i.e., whether the original bench or some other bench must determine if the difference was on a point of law and then decide between the alternatives in Section 98(2)).

Arguments of the Parties

Appellant's Arguments (Sri S.P. Mehrotra)

Under the proviso to sub-section (2) of Section 98 of the Code of Civil Procedure, a Division Bench divided in opinion may refer only a point of law to another Judge; that Judge must hear only that point and the appeal is to be decided according to the majority opinion thereafter.
Because the two Judges did not refer any specific point of law and instead rendered full judgments including proposed orders, they became functus officio, and their subsequent reference was incompetent.
Consequently, the decree of the lower court stood confirmed under Section 98(2).

Respondent's Arguments (Sri U.N. Sharma)

The reference to the third Judge was valid under the High Court Rules (Rules of Court, 1952), which permit referral by nomination of another Judge and provide procedures for reference.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Birendra Kumar Rai v. Union of India (AIR 1992 Allahabad 151)	Authority relied upon by Justice Sinha to hold that reference to a third Judge after delivery of conflicting judgments and without stating points of difference is incompetent and ultra vires; suggested that in such case reference should be to a larger Bench or appeal to Supreme Court.	The Full Bench examined and concluded that the decisions in this Court taking that view do not lay down the correct law, after analysing statutory provisions and Supreme Court authority.
Smt. Nirmal Swaran Singh v. Rozu-ud-din (1993 21 ALR 463)	Authority cited alongside Birendra Kumar Rai to support the view that post-judgment reference without stating points of difference is incompetent.	The Full Bench noted this decision but held that it did not state the correct law in the light of higher authority (Supreme Court decisions) and statutory interpretation.
Mohammadabad Municipality v. Sri Ram Singha (Full Bench)	Used to show preservation of Letters Patent powers and historical practice concerning reference procedures.	The Court relied on the decision as support for the view that Letters Patent powers were preserved and relevant to the procedural analysis.
Umaji Keshao Meshram v. Smt. Radhikabai	Relied on by respondent's counsel to argue that rules made under Article 225 may have scope; cited to support respondent's submission.	The Full Bench considered the authority but rejected the submission that Rules of Court should prevail over statutory provisions, noting Article 225 makes rules subject to statute.
Lal Singh v. Ghanshyam Singh	Held (by majority of that Court) that where two Judges delivered judgments without reservation they could not thereafter refer the appeal under Section 575 CPC; cited in analysis of competence to refer after delivery of judgments.	The Full Bench observed that this view was not approved by the Supreme Court and therefore did not control; the Court relied on later Supreme Court authority that disapproved Lal Singh's principle.
R. Viswanathan v. Rukn-ul-Mulk Syed Abdul Wajid (AIR 1963 SC 1)	Supreme Court authority considering competence to refer after differing judgments and holding that reference may be valid depending on the intention of the judges and circumstances; disapproved Lal Singh.	The Full Bench relied on this Supreme Court decision to conclude that procedural irregularity (reference after delivery of judgments) does not necessarily invalidate a subsequent reference, and that intention and circumstances matter.
Mt. Akbari Begam v. Rahmat Husain	Held that reference of the whole case so that the new Bench should dispose of it is not warranted by Section 98 or by the Letters Patent; Section 98 confines reference to specific points of law.	The Court cited the reasoning to emphasize that Section 98 is confined to points of law and that the object is to avoid rehearing questions on which there was no difference.
Rajendra Kishore Sahi v. Nan Prasad (AIR 1938 Allahabad 641)	Held that where two Judges disagree, procedure in Letters Patent (Clause 27) applies and not Section 98 CPC, illustrating the interaction between Letters Patent and statutory provision.	The Full Bench cited this case to show that Clause (3) of Section 98 acknowledges that Section 98 does not affect Letters Patent provisions, affecting which procedure governs when Letters Patent differ.
Kerala State Electricity Board v. M.R.F. Limited	Principle that the court must ensure parties do not suffer unmerited hardship because of court orders; cited as a guiding duty.	The Full Bench invoked this principle to justify not penalising the appellant by treating the decree as automatically confirmed when the bench had not consciously adopted Section 98 alternatives.
Karali Charan v. Apurba Krishna; Umar Baksh v. Commissioner of Income Tax, Punjab; Jehangir v. Secretary of State; Narayanana v. Lingappa	These cases were cited in the judgment of the Supreme Court discussed in R. Viswanathan, showing divergence from Lal Singh and indicating that intention of judges matters.	The Full Bench referred to these authorities (as discussed in R. Viswanathan) to support the proposition that post-delivery reference may not be illegal and that intention is significant.

Court's Reasoning and Analysis

The Full Bench proceeded in a stepwise statutory and precedential analysis, confined to the material in the opinion:

The Court first identified that the Division Bench, after delivering two conflicting signed judgments (completing the process of decision-making), framed a question and referred the matter to a third Judge without stating specific point(s) of difference. The Court characterized that proffered question as amounting to a reference of the whole case rather than a discrete point of law or fact.
The Court then compared the operative provisions and rules:
- Letters Patent (historical para 27) required stating the point(s) of difference for reference and deciding according to the majority including the original Judges.
- Rules of Court, 1952 (Rule 3, Chapter VIII) contemplate that if Judges are equally divided they may state the point on which they differ and the case shall then be heard upon that point by another Judge nominated by the Chief Justice; Rule 6 permits reference to a larger Bench.
- Section 98(2) CPC provides that where an appeal is heard by a Bench of two or more Judges and there is no majority concurring in varying or reversing the decree, the decree shall be confirmed; the proviso allows reference only where the court has more Judges than the Bench and the difference is on a point of law.
- Article 225 of the Constitution permits the High Court to make rules, but those rules are subject to statutory provisions; accordingly, where there is conflict between a statutory provision (Section 98) and the Rules of Court, the statutory provision prevails.
From these sources the Court derived the legal framework: when Judges are equally divided, the default statutory consequence under Section 98(2) is confirmation of the decree unless the proviso's two essential conditions for reference exist: (a) the High Court is composed of more Judges than the Bench and (b) the difference is on a point of law. Even when rules contemplate broader references, Section 98 governs and has overriding effect by virtue of Article 225 (rules are subject to law).
The Full Bench addressed the procedural posture at hand: the Division Bench had rendered full judgments without adopting either of the two Section 98(2) alternatives consciously and then made a comprehensive reference rather than specifying a point of law. The Court held that this amounted to a procedural irregularity (reference after finalisation and not confined to a point of law), but emphasized that such irregularity does not render the later conduct of the High Court incompetent automatically.
The Court relied on Supreme Court authority (R. Viswanathan) to show that the correctness of post-judgment references is a question of the intention of the Judges and of the circumstances; Lal Singh's restrictive principle was not accepted as controlling because it was disapproved by the Supreme Court. Thus, procedural irregularity does not necessarily result in invalidity; the proper remedial course is to ensure the appeal is disposed of in accordance with Section 98 and without causing unmerited hardship to the parties.
Applying these principles to the present case, the Full Bench concluded that the reference to a third Judge by the Division Bench was incompetent insofar as it did not identify a point of law and amounted to reference of the whole case after delivery of final opinions. Nonetheless, because neither alternative in Section 98(2) had been validly adopted by the original Bench, the decree should not be treated as automatically confirmed to the prejudice of the appellant.
Accordingly, the Court directed that the matter be placed before the Chief Justice to list the appeal for further orders before the same Bench that initially heard the appeal (or another bench nominated) so that that bench may, consciously and in the light of Section 98, decide whether the difference was on a point of law and then adopt the appropriate course (confirm the decree or refer the point of law in accordance with Section 98).

Holding and Implications

Core Ruling: The Full Bench held that the Division Bench's reference to a third Judge, made after delivery of conflicting full judgments and without specifying the particular point(s) of difference, was incompetent as a proper exercise under the proviso to Section 98(2) of the Code of Civil Procedure.

Immediate Implications (direct effect on the parties):

The decree appealed against is not to be treated as automatically confirmed by operation of Section 98(2) merely because the original Division Bench did not adopt the alternatives consciously; automatic confirmation would unfairly penalize the appellant.
The Full Bench directed that the matter be placed before the Chief Justice to list the appeal for further orders before the Bench which initially heard the appeal (or, if that Bench is not available, a bench nominated by the Chief Justice). That Bench must then examine, in the light of Section 98, whether the division was on a point of law. If it finds no point of law, it must confirm the decree; if it finds a point of law, it must decide which of the two alternatives in Section 98(2) to adopt (i.e., make the specified reference and proceed as the statute contemplates).
The Full Bench made clear that it remains open to the original Bench to make a fresh reference confined to a point of law, if appropriate.

Broader Implications:

The opinion emphasises the primacy of statutory procedure (Section 98 CPC) over High Court rules made under Article 225 when there is a conflict: rules are subject to statute.
The Court recognized that post-judgment references and procedural irregularities must be addressed so as to avoid causing unmerited hardship to parties; hence the remedy is corrective procedure rather than automatic penal consequences.
No new rule of law overturning Section 98 is created; rather, the Full Bench clarified the correct interplay between Section 98, Letters Patent/rules, and relevant precedents, and prescribed the remedial course in the circumstances presented.

This summary is confined to the material expressly contained in the provided opinion and does not add or infer facts beyond that text.

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The Union Of India And Another v. Joginder Singh Bhasin And Another

R. Dayal, J.:— This appeal was filed by the appellants for setting aside the judgment and decree dated 7.10.1989 passed by the Civil Judge, Bareilly making award of the arbitrator dated 23.2.1988 a rule of the Court with a slight modification about interest. The appeal was heard by a Division Bench consisting of Hon'ble Om Prakash J. and Hon'ble S.C Verma, J. They were divided in their opinion and rendered on 9.12.1993 conflicting judgments. While Hon'ble Om Prakash, J. dismissed the appeal, Hon'ble S.C Verma, J. allowed the appeal holding that the arbitrator had committed manifest error of law and so the award was liable to be set aside and directing that the award be remitted for reconsideration by the arbitrator in accordance with the observations made in the judgment and in accordance with law. Some ancillary directions were also given. After delivering these judgments the learned Judges passed another order referring the following question for decision by a third Judge to be nominated by the Hon'ble Acting Chief Justice.

“While on the facts and in the circumstances of the case, the impugned award deserves to be set aside.”

2. Accordingly, a direction was given for the record to be placed before the Hon'ble Acting Chief Justice for nominating a Judge at an early date. The Hon'ble Acting Chief Justice nominated Hon'ble D.S Sinha, J. as the third Judge before whom the case was directed to be listed. Hon'ble D.S Sinha, J. in his order dated 6.7.1994 took note of Rule 3 of Chapter VIII of the Rules of Court, 1952 and observed:

“Rule 3 of Chapter VIII of the Rules of Court contemplates that should the Judges be equally divided in opinion as to the decision to be given on any point they may state the point upon which they differ and each Judge shall record his opinion thereon. The case is then to be heard upon that point alone by the Judge nominated by the Chief Justice. Further, division in opinion conceived of by the Rule 3 of the Rules is a division at a stage prior to the finalisation of the process of decision making i.e before the delivery of judgment. Difference of opinion after the finalisation of the process of decision making i.e after the delivery of the judgment is not contemplated. In the instant case two conflicting judgments were delivered and duly signed by the Hon'ble Judges, completing the process of decision making and bringing into existence two valid judgments, and the question for reference for decision by a third Judge to be nominated by the then Hon'ble the Acting Chief Justice, without stating the point or the points upon which difference existed, was framed thereafter.”

3. In support of his view, Hon'ble Sinha J. referred to Birendra Kumar Rai v. Union of India . AIR 1992 Allahabad 151. and Smt. Nirmal Swaran Singh v. Rozu-ud-din . 1993 21 ALR 463., and said that this Court has firmly ruled that reference to third Judge for his opinion under Rule 3 of Chapter VIII of the Rules of Court after delivery of conflicting judgments, and without stating the point or points on which there was difference amongst the Judges forming the Division Court, is incompetent and ultra vires. Further, the learned Judge observed that “in the case of Birendra Kumar Rai v. Union of India (supra) it has been further ruled that in a situation as is obtaining in the instant case proper course will be reference to a larger Bench, in the instant case to a Full Bench, or an appeal before the Hon'ble Supreme Court of India.” The conclusion reached by the learned Judge is as under.

“Inevitable conclusion, therefore is that no reference otherwise than on difference of opinion on a point of fact or law arising before the finalisation of the process of decision making, to be precise before delivery of the judgment, is visualized either by Rule 3 of the Rules or by the proviso to sub-section (2) of Section 98 of the Code.

Now, in the circumstances of the case, following three alternatives are available:

(i) Confirmation of the decree under appeal by the Division Court which heard the appeal under Section 98(2) of the Code;

(ii) Appeal to the Hon'ble Supreme Court of India by the aggrieved party;

(iii) Reference of the whole case to a Full Bench.

Let the case, therefore, be placed before the Hon'ble the Chief Justice for orders.”

4. The then Hon'ble Chief Justice passed an order on 18.8.1994 directing the listing of the matter before a Full Bench in the following words:

“List before S.C Mohapatra, D.K Trivedi and Sudhir Narain, JJ.”

5. Subsequently, Full Bench was reconstituted on 10.11.1995 by the following order;

“List before the Bench of Hon'ble Justice R. Dayal, Hon'ble Justice Sudhir Narain and Hon'ble Justice T.P Garg.”

6. That is how the matter is before this Full Bench. We have heard Sri S.P Mehrotra, Advocate, on behalf of the appellants and Sri U.N Sharma, Advocate, on behalf of the respondents. Sri S.P Mehrotra has submitted that under the proviso to sub-section (2) of Section 98 of the Code of Civil Procedure, the learned Judges who were divided in their opinion could refer to a third Judge only a point of law on which they differed and the third Judge was then to hear only on that point of law and it was thereafter that the appeal was to be decided according to the opinion of the majority of the Judges who heard the appeal including those who had first heard it, but since the learned Judges did not refer any specific point of law and rendered full judgment including orders, they became functus-officio, and so, thereafter, they could not make reference and consequently, the reference is incompetent and, therefore, the decree of the lower Court stood confirmed under sub-section (2) of Section 98. On the other hand Sri U.N Sharma, has submitted that reference to the third Judge was valid under the High Court Rules.

7. The point for decision in the reference is whether the reference by the Division Bench to a third Judge was incompetent and, if so, whether the judgment and decree of the learned trial court stood confirmed under Section 98(2) of the Code of Civil Procedure and if, the judgment and decree, of the trial Court have not stood so confirmed, then how the matter should proceed further.

8. At the very outset it may be pointed out that the Hon'ble Judges of the Division Bench though, after delivering their separate conflicting judgments framed a question reproduced in paragraph 1 above, that was neither a question of fact nor of law. It, in substance amounted to referring the whole case for decision by the third Judge:

9. Now, a reference may be made to the relevant rules and statutory provisions and also the authorities cited at the bar. The relevant provisions in the statute and also in the rules speak in one voice that where an appeal is heard by two or more Judges, the appeal is to be decided in accordance with the unanimous opinion of the Judges constituting the bench, if there is unanimity, and by the majority opinion, if majority opinion is available. The difficulty arises where the Judges constituting the bench are equally divided and no majority opinion is available. For the sake of brevity, while referring to the relevant provisions we shall be rearing only to those portions which bear on the course to be adopted where the Judges are equally divided in their opinion.

10. The High Court of Judicature at Allahabad was established by the Letters Patent of His Majesty issued on 17th March 1866. Para 10 thereof provides, inter alia, that an appeal shall lie to the High Court from the judgments of one Judge of the High Court in the matters specified therein. Para 27 thereof provides that if the Division Court composed of two or more Judges in the exercise of its original or appellate jurisdiction “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 he other Judges and the point shall be decided according to the opinion of majority of the Judges who have heard the case including those who first heard it.” Thus, according to this paragraph, reference was required to be made on every point of difference whether of law or of fact on which the Judges differed and it was thereafter that the case was required to be decided according to the opinion of the majority including the Judges who first heard it. By para 17(a) of the United Provinces High Courts (Amalgamation) Order, 1948 promulgated in exercise of the powers conferred by Section 229 of the Government of India Act, 1935 and all other powers in that behalf which came into force on the appointed day, i.e 26th of July, 1948 the Letters Patent dated 17th March, 1866 ceased to have effect from the appointed day except for the purpose of constituting or giving effect to that order. Para 9 of the Amalgamation Order, inter alia, provides that subject to the provisions of this order, the law in force immediately before the appointed day with respect to practice and procedure in the High Court in Allahabad shall, with the necessary modifications apply in relation to the new High Court, and accordingly that High Court shall have all such powers to make rules and orders with respect to practice and procedure as are immediately before the appointed day exercisable by the High Court in Allahabad. The first proviso to that paragraph says that any rules or orders which are in force immediately before the appointed day with respect to practice and procedure in the High Court in Allahabad shall until varied or revoked by rules or orders made for the new High Court, apply with the necessary modifications in relation to practice and procedure in the new High Court as if made by that Court. Para 13 of the order says that the “law in force immediately before the appointed day relating to the powers of the Chief Justice, single Judges and division Courts of the High Court in Allahabad and with respect to all matters ancillary to the exercise of those powers, shall, with the necessary modifications, apply in relation to the new High Court.” Thus paras 9 and 13 preserved the powers of the High Court to hear Letters patent appeals. In this view, we find support from the decision of a Full Bench comprising five learned Judges of this Court in Mohammadabad Municipality v. Sri Ram Singha Singhasan.

11. The High Court framed new rules in exercise of the powers conferred by Article 225 of the Constitution and all other powers enabling it in that behalf and these rules are known as the Rules of Court, 1952. Rule 3 in Chapter VIII of these rules, inter alia, says that when a case to which the provisions of the Code of Criminal Procedure do not apply is heard by a Division Bench composed of two or more Judges and should “the Judges be equally divided they may state the point upon which they differ and each Judge shall record his opinion thereon. The case shall then be heard upon that point by one or more of the other Judges as may be nominated by the Chief Justice and the point decided according to the opinion of majority of the Judges who have heard the case including those who first heard it.” Thus, under Rule 3 reference is contemplated on both points of law and fact. Rule 6 in Chapter V of the Rules of Court provides for reference to a larger Bench as under:—

“6. Reference to a larger Bench—The Chief Justice may constitute a Bench of two or more Judges to decide a case or any question of law formulated by a Bench hearing a case. In the latter event the decision of such Bench on the question so formulated shall be returned to the Bench hearing the case and that Bench shall follow that decision on such question and dispose of the case after deciding the remaining questions, if any, arising therein.”

12. Thus this rule, inter alia, provides for reference of the whole case to a Bench of two or more Judges. Relying upon this rule Sri U.N Sharma has submitted that this Full Bench may decide the whole case. However, the most important provision is contained in Section 98 of the Code of Civil Procedure. Sub-section (2) of the section says that “where an appeal is heard by a Bench of two or more Judges and there is no majority which concurs in a judgment varying or reversing the decree appealed from, such decree shall be confirmed”. Proviso to that sub-section says that “where the Bench hearing the appeal is composed of two or other even number of Judges belonging to a Court consisting of more Judges than those constituting the Bench of the Judges composing the Bench differ in opinion on a point of law, they may state the point of law upon which they differ and the appeal shall then be heard upon that point only by one or more of the other Judges and such point shall be decided according to the opinion of the majority, (if any) of the Judges who have heard the appeal, including those who first heard it.” Thus, sub-section (2) provides two alternatives; one is to confirm the decree from which the appeal has arisen, and the other is to make reference on a point of law on which the Judges differ. For making a reference, the two essential conditions which must necessarily be present are, first that the Court must consist of more Judges than those that constituted the Bench and, second, that they must differ on a point of law. Reference is also contemplated to be made before a final decision is recorded by the Judges. It is only after a decision on the point of law referred has been decided that the case is to be decided according to the opinion of majority of the Judges who have heard the appeal including those who first heard it. However, as will appear from the later part of the judgment, this is merely an irregularity and not an essential condition to be complied with for the competence of the reference. Sub-section (3) of Section 98 provides that nothing in the section “shall be deemed to alter or otherwise affect any provision of the Letters Patent of any High Court.” Thus, where there is a conflict, between the provisions contained in Section 98 and the Letters Patent of any High Court which are still in force, the Letters Patent prevail. Rules made by the High Court under Article 225 of the Constitution of India do not have this type of over-riding effect over a statutory provision. Article 225 expressly makes the power to make rules of the Court subject to the provisions of any law of the appropriate legislature, and so where there is a conflict between a statutory provision and any rule the statutory provision must prevail. In the instant case, there is a clear conflict between the statutory provision-and the relevant rules. The statutory provision contained in Section 98 of the Code of Civil Procedure contemplates dismissal of the appeal where the Judges are equally divided in opinion, and permits them to make reference only on a point of law. On the other hand, the rules do not at all contemplate dismissal of an appeal in such situation and provide for reference both on a point of law and fact also reference of the whole case before a larger bench. So, in view of Article 225 of the Constitution, the provisions contained in Section 98 of the Code of Civil Procedure have over-riding effect.

13. However, Sri Sharma has submitted that the Rules of Court were made in exercise of the constitutional powers contained in Article 225 of the Constitution, and for this reason alone, the rules should prevail over the statutory provisions and has referred in support of his submission to Umaji Keshao Meshram v. Smt. Radhikabai. However, we do not see any merit in this submission. When Article 225 itself specifically makes the rules made under that Article subject to statutory provisions, it is in compliance of the constitutional provision contained in that Article that statutory provisions prevail over the rules framed under that Article. We find nothing in the authority referred by Sri Sharma to support his submission. The authority has merely clarified that the words “subject to” cannot be construed as referring only to a provision limiting or restricting the jurisdiction and powers of the existing High Court but also include a provision which enlarges the jurisdiction and powers of the existing High Courts. “Article 225, therefore, comprehends within its scope not only the jurisdiction which the existing High Courts possessed immediately prior to the commencement of the Constitution but also the jurisdiction and powers which the other Articles of the Constitution, such as Articles 226, 227 and 228 confer upon the High Courts.”

14. In Lal Singh v. Ghanshyam Singh, majority of the Court held that where a bench of two Judges hearing an appeal and differing in opinion have delivered judgments on the appeal as judgments of the Court without any reservation, they are not competent to refer the appeal to other Judges of the Court under Section 575 of the Civil Procedure Code. But this judgment, as will appear later, has not been approved by the Supreme Court in R. Viswanathan v. Rukn-ul Mulk Syed Abdul Wajid . AIR 1963 SC 1.. In Mt. Akbari Begam v. Rahmat Husain,4 where a reference was made for determination of the specified questions and also for disposal of the case, it was held by Sulaiman, C.J that “the order certain points to be referred is perfectly justified but the reference of the whole case, so that the new Bench should dispose of it, is neither warranted by Section 98 Civil Procedure Code nor by the Letters Patent. Under the former section when a bench differ in opinion on a point of law, they may state the point of law upon which they differ and the appeal shall then be heard upon that point only by another bench. It is obvious that hearing by the other Judges is confined to the specific points and can not cover the whole case over again. The object obviously is that there should not be further hearing of questions on which there has been no difference of opinion at all. Section 98 is confined to points of law only, but the newly added sub-section (3) makes it subject to the provisions of our Letters Patent. Section 98 would apply only when there is no similar provision in the Letters Patent; but if there is a special provision, S. 98 would not apply to a chartered High Court.”

15. In another decision Rajendra Kishore Sahi v. Nan Prasad . AIR 1938 Allahabad 641., it was held that where two Judges composing a Division Bench hearing a first appeal have disagreed either in law or in fact, the procedure to be followed is that laid down in Cl. 27 of the Letters Patent of the High Court and not that laid down in Section 98 of the Code of Civil Procedure. But that is so because Clause (3) of Section 98 itself makes it clear that section is not to affect any of the provisions of Letters Patent of any High Court.

16. We therefore, hold that where an appeal is heard by two or more Judges and the Judges are equally divided in their opinion and there is no majority which concurs in a judgment varying or reversing the decree appealed from, the appeal is to be disposed of in terms of Section 98 of the Code of Civil Procedure. Under that section decree of the lower Court may be confirmed. Another alternative procedure of reference is also available under the proviso to sub-section (2), if two essential conditions exist namely, first, that the court is composed of more Judges than those constituting the bench that heard the case, and second, that the difference is on a point of law. If this alternative procedure is decided to be acted upon, the Judges may state the point of law upon which they differ. Then the appeal is to be heard upon that point by one or more of the other Judges and such point is thereafter to be decided according to the opinion of the majority of the Judges who have heard the appeal including those who first heard it. Where any of these two essential conditions stipulated in the proviso does not exist, the alternative procedure of reference is not available. In such situation, there is no choice except to confirm the decree from which the appeal has arisen. However, where the first condition exists, namely, that the High Court is composed of more Judges than those constituting the bench that heard the appeal and the Judges constituting the bench render full judgments and refer the whole case, instead of a point of law, procedural irregularity occurs, because firstly, the reference is made after rendering their final opinions on the merits of the case and, secondly, reference is not confined to a specified point of law on which difference of opinion exists. But merely because the learned Judges have recorded their respective final opinions including the proposed orders does not imply that they have become functus officio. Despite the recording of final opinion of the individual Judges, a final operative order capable of execution still remains to be passed. In such case none of the two available alternative procedures has been adopted. To say that since reference is incompetent, the decree appealed against should be deemed to be confirmed would be to penalise the appellant for no fault of his. Choice for dismissal under Section 98 was not made by the bench and there is no presumption that if provisions of Section 98 were brought to the notice of the bench, the bench would necessarily have confirmed the decree appealed against. Keeping in view the fundamental rule reiterated by the Supreme Court in Kerala State Electricity Board v. M.R.F Limited, in paragraph 24, “it is an imperative duty of the court to ensure that the party to the lis does not suffer any unmerited hardship on account of an order passed by the court.” Our conclusion is that in such case, the bench that initially heard the appeal and if that bench, for any reason is not available, any other bench which may be nominated by the Chief Justice for hearing the appeal should consider in the light of the provisions of section 98 whether the difference of opinion was on a point of law. If the learned Judges find the answer to be in the negative, they will have no alternative except to confirm the decree. If the answer is in the affirmative, they will decide which of the two alternative courses available should be adopted. The decision has to be a conscious one to be taken in the light of Section 98. In this view, we find support from the decision of the Apex Court in R. Viswanathan v. Rukn-ul-Mulk Syed Abdul Wajid. There the court was considering the ground of incompetence of the Mysore High Court, which was at the relevant time a foreign Court, to deliver the judgment set up as a bar to the trial of the Madras suit. Both the Judges of the Mysore High Court constituting the Division Bench had differed on almost every question raised in the appeal. One learned Judge was for reversing the judgment of the trial court and the other learned Judge was for affirming the same. Thereafter, the case was referred to the full Bench under Section 15(3) of the Mysore High Court Regulations of 1884. The Court observed:

“29…………………………………The relevant statutory provisions then in operation relating to the procedure to be followed in the event of a difference between Judges constituting a Bench were these: Section 98 of the Mysore Civil Procedure Code provided:

“(1) 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) of such Judges.

(2) Where there is no such majority which concurs in a judgment varying or reversing the decree appealed from such decree shall be confirmed.”

17. Section 15(3) of the Mysore High Court Regulation, 1884, as amended by Act XII of 1930, provided.

“The decision of the majority of Judges comprising Full Bench of the High Court or other Bench of the said Court consisting of not less than three Judges shall be the decision of the Court.

When a bench of the High Court consists of only two Judges and there is a difference of opinion between such Judges on any material question pending before it, such question shall be disposed of in the manner prescribed by Section 98, Civil Procedure Code or Section 429 of the Criminal Procedure Code as the case they may be or at the discretion of either of the Judges composing the Bench it shall be referred to a Full Bench and the decision of the majority of the Judges on such Full Bench shall be the decision of the High Court.”

If Judges constituting the Bench differed and there was no majority concurring in varying or reversing the decree appealed from, the judgment had to be affirmed. But it was open to the Judges or either of them to refer under Section 15 of the Mysore High Court Regulations the questions on which there was a difference to a Full Bench. The true rule envisaged by Section 15(3) of the Mysore High Court Regulations is that the Court or the referring Judge shall set out the material questions on which there is a difference of opinion without expressing any opinion on the result of the appeal. The two Judges did disagree; they disagreed on almost every question which had a bearing on the claim made by the plaintiffs, and they delivered their separate opinions expressing their mutual dissent, and even incorporated in their respective opinions the final orders to be passed or their respective views in the appeals. In so doing the Judges committed a procedural irregularity; but in our judgment, this procedural irregularity does not affect the competence of the Full Bench constituted to hear the reference under Section 15(3) Balakrishanaiya, J. and Kandaswami Pillai, J. did deliver separate and self contained opinions, setting out the final orders which in their respective opinions should be made in the appeals, but their intention was clear; they intended that in view of the difference of opinion (so expressed) the case should go before a Full Bench, and Balakrishanaiya, J. passed an order for reference presumably with the concurrence of Kandaswami Pillai, J.”

18. In para 30 of the judgment, reference was made to Lal Singh's case (supra) and it was held that this does not assist the plaintiffs in support of the plea that reference to Full Bench was invalid and the Mysore High Court was incompetent to hear the reference. Several reasons were given, one reason is as under:

“30……………………………..Again the principle of Lal Singh's case, as broadly enunciated by the majority of the Court has not been approved in many later cases in other High Courts; for instance, Karali Charan v. Apurba Krishna. Umar Baksh v. Commissioner of Income Tax, Punjab and Jehangir v. Secretary of State. In these cases it was held that in each case the question is one of intention of the Judges differing in their opinions. The Mysore High Court held in Narayanana v. Lingappa, that it is not illegal to refer a case under Section 15(3) of the Mysore High Court Regulations 1884, after the Judges differing have recorded judgments including the final orders they are to make, and without any reservations.”

19. Thus the Apex Court did not approve the view taken in Lal Singh's case and said that in each case the question is one of intention of Judges differing in their opinion. So, with respect, the decisions of this Court in Birendra Kumar Rai v. Union of India and Smt. Nirmal Swaran Singh v. Rozu-ud-din taking a contrary view do not lay down correct law. In the instant case, the learned Judges constituting the bench that heard the appeal did not make any conscious choice from the two alternatives available to them, since the provisions of Section 98 were not brought to their notice. No specific point of law was referred by them. So reference was incompetent. The matter needs be disposed of by the bench that heard the matter initially by deciding which of the two options mentioned in Section 98(2) of the Code of Civil Procedure should be exercised. It is made clear that it will be open to them to make fresh reference on a point of law.

20. So, we direct that the matter be placed before the Hon'ble the Chief Justice for a direction to list the appeal for further orders before the bench consisting of Judges who initially heard the appeal and rendered conflicting judgments, for disposal in the light of this judgment.

The Union Of India And Another v. Joginder Singh Bhasin And Another

Structured Summary of the Provided Opinion (Full Bench — R. Dayal, J.)

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Appellant's Arguments (Sri S.P. Mehrotra)

Respondent's Arguments (Sri U.N. Sharma)

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

The Union Of India And Another v. Joginder Singh Bhasin And Another

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