AIR 1975 GUJARAT 39

Gujarat High Court

Hon'ble Judge(s): P. N. Bhagwati , C.J. AND B. J. Divan, M. U. Shah, A. D. Desai, J. M. Sheth, P. D. Desai, C. V. Rane , JJJ

(A) Letters Patent (1865) (Bom) , Cl.36— Scope - First Appeal to High Court from decision of Subordinate Court - Judges of Division Bench equally divided in opinion - Procedure - Cl.36 and not S.98. C.P.C. applies - AIR 1919 Bom 1 (FB) held no longer good law in view of AIR 1921 PC 6. Civil P.C. (5 of 1908) , S.4, S.98— The procedure to be adopted by the High Court in case of equal division of opinion between Judges hearing a first appeal from a decision of a Subordinate Court is governed by clause 36 of the Letters Patent and not by Civil P. C. S. 98. AIR 1919 Bom 1 (FB) held no longer good law in view of AIR 1921 PC 6.(Para 26) Clause 36 is wide enough to include appeals from Subordinate Courts as well as intra High Court appeals under Cl. 15 and, therefore, the procedure for resolving difference of opinion set out in clause 36 is applicable to both appeals. This procedure is different from that set out in S. 98, Civil P. C. and it is clearly, qua S. 98, a special form of procedure presrcribed by clause 36 and is saved by S. 4 (1), Civil P. C. It is therefore, clear as a matter of plain grammatical construction that under the present Code the procedure in case of difference of opinion in appeals from subordinate Courts is governed by clause 36 of the Letters Patent and not by S. 98. C.P.C. Moreover, subs. (3) o....