1. A difference having arisen between my learned brother and my self in the matter of the decision of this appeal, my learned brother taking the view that the appeal should be allowed and decreed in part in favour of the plaintiff-appellant in the sum of Rs. 1500, and I taking the view that the appeal should be dismissed, a question arises to the manner in as which the appeal should be disposed of.
2. Section 98 of the CPC, is in these terms:
“98. Decision where appeal heard by two or more Judges:
(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 (it 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;
Provided that where the Bench hearing the appeal is composed of two Judges belonging to a Court consisting of more than two Judges, and 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; and
(3) Nothing in this section shall be deemed to alter or otherwise affect any provision of the Letters Patent of any High Court.”
3. Under sub-s. (2) of Section 98 of the CPC, where there is no such majority which concurs in a judgment, varying or reversing the decree appealed from, such decree shall be confirmed.
4. The proviso to sub-s. (2) of Section 98 of the CPC, has no application for the simple reason that the High Court of Assam does not consist of more than two Judges.
5. As regards sub-s. (3) of Section 98 of the CPC, which apparently contemplates a Letters Patent appeal, it was added to S. 98 by the repealing and amending Act XVIII[18] of 1928. In the words of the learned Commentator D.F Mulla, it does no more than give effect to the decisions before that Act, namely, that where an appeal is heard by a Bench of two Judges of a High Court and the Judges differ then, if the appeal is a Letters Patent appeal, the procedure is governed by cl. 36, Letters Patent, (vide Bhai Das Shiv Das v. Bai Gulab, 48 I.A 181 : (A.I.R (8) 1921 P.C 6); Roop Lal v. Lashmi Doss, 29 Mad. 1; Roy Nandipat Mahata v. Alexander Shaw, 13 W.R 209 : (4 Beng L.R 181); Surajmal B. Mehta… v. B.G Horniman & Others…, 20 Bom. L.R 185 : (A.I.R (4) 1917 Bom. 62 (S.B)); Lachman Singh v. Ram Lagan Singh, 26 ALL. 10 : (1903 A.W.N 162); Justin Hull v. Arthur Francis Pauli, 24 C.W.N 352 : (A.I.R (7) 1920 Cal. 1009)), but if the appeal is one under the Code of Civil Procedure, the procedure is governed by Section 98 of the CPC, (vide Bhuta Jayatsingh v. Lakadu Dhansingh, 43 Bom. 433 : (A.I.R (6) 1919 Bom. 1 (F.B)); Tin Tin Nyo v. Mg. Ba Saing, 1 Rang. 584 : (A.I.R (11) 1924 Rang. 148); Prafulla Kamini Roy v. Bhahani Nath, 52 Cal. 1018 : (A.I.R (13) 1926 Cal. 121) and Punjab Akhbarat & Press Co. Ltd. v. C.M.G Ogilvie, 7 Lah. 179 : (A.I.R (13) 1926 Lah. 65).
6. The Assam High Court is not a chartered High Court. The appeal before us is not a Letters Patent appeal, but one under Section 96 of the CPC. It is true that a Full Bench of the Madras High Court in the case reported in Dhana Raju v. Balkishen Das Moti Lal Daga, 32 Mad. 563 : (A.I.R (16) 1929 Mad. 641 (F.B)), has held that in the case of an equal division of opinion between the Judges of the High Court, in an appeal preferred to it under the Code of Civil Procedure, the procedure to be adopted by the High Court is governed by cl. 36 of the Charter, and not by Section 98 of the CPC. Even so, the position, so far as this Court is concerned, apart from the fact that it is not a chartered High Court, would seem to be governed by Section 98 of the CPC, as this Court consists of two Judges only, Clause 36 of Letters Patent of the Calcutta High Court, which has been made applicable, with necessary modifications, by the Assam High Court Order, 1948, presupposes that the High Court consists of more than two Judges, for, it says “the case shall then be beard upon that point by one or more of the other Judges,” I do not think cl. 36 means that where there are only two Judges and a difference of opinion arises between them, a reference will nevertheless be made to a third Judge to be appointed. Undoubtedly, if the Assam High Court consisted of more than two Judges, a reference would have to be made to a third Judge, and no difficulty would have arisen even if the decision of the Madras High Court, to which reference has been made, were followed.
7. In this connection, it is significant to observe that S. 9, Assam High Court Order, 1943, which empowers the High Court of Assam to apply the law in force immediately before the prescribed day (5th April 1948) relating to the powers of the Chief Justice, single Judges and Division Courts of the High Court in Calcutta and with respect to all matters ancillary to the exercise of those powers, says that it will apply with the necessary modifications. In my opinion, the necessary modification in the application of cl. 36 of Letters Patent of the Calcutta High Court would mean that so long as this Court consists of two Judges only, cl. 36 of Letters Patent of the Calcutta High Court is, for all practical purposes, inoperative.
8. In this view, the order which automatically follows as a result of difference of opinion between my learned brother and myself is that the decree of the trial Court from which the appeal has been preferred, is confirmed.
9. Decree confirmed.