Pankajakshi v. Chandrika

Facts

Two civil appeals from the Kerala High Court raised the question of what happens when the two Judges of a Division Bench hearing a civil appeal differ. Section 98(2) CPC provides for reference to further Judges only on a point of law, and otherwise confirms the decree under appeal, while Section 23 of the Travancore-Cochin High Court Act, 1125 requires reference of any disagreement, on fact or law, to another Judge. In P.V. Hemalatha v. Kattamkandi Puthiya Maliackal Saheeda (2002) a three-Judge Bench had held Section 98(2) to be the special law prevailing over Section 23. A two-Judge Bench doubted that view in 2010, and a three-Judge Bench referred the question to a Bench of five Judges in 2014.

Questions before the Court

1. Does Section 23 of the Travancore-Cochin High Court Act survive the repeal provision in Section 9 of the Kerala High Court Act and the extension of the CPC to Part B States?
2. As between Section 23 and Section 98(2) CPC, which is the special provision that governs a difference of opinion in a Division Bench of the Kerala High Court?

What the Court held

• The Travancore-Cochin High Court Act is the charter of jurisdiction of the High Court in civil, criminal and other matters and does not correspond to the CPC, so it was not repealed when the CPC was extended to Part B States; nor was Section 23 repealed by Section 9 of the Kerala High Court Act.
• A 'specific provision to the contrary' under Section 4(1) CPC must clearly indicate in itself, not by implication, that the special law is affected. Following the Constitution Bench in Sathappan, a High Court's Act, like a Letters Patent, is special law and the CPC general law.
• Section 23, being a special provision, applies to the Kerala High Court in preference to Section 98(2) CPC. Hemalatha was wrongly decided and was overruled; the second referred question did not need an answer.
• Kulwant Kaur v. Gurdial Singh Mann does not state the law correctly: Section 97(1) of the CPC (Amendment) Act, 1976 affects only State amendments to the CPC itself, and Article 254 does not apply to a pre-Constitution law, so Section 41 of the Punjab Courts Act continues as a law in force.

Why it matters

A five-Judge Bench overrules Hemalatha and holds that the charter Act of a High Court is special law which the CPC, as general law, displaces only by a specific provision to the contrary under Section 4(1). In doing so it declares Kulwant Kaur incorrect, holding that Section 41 of the Punjab Courts Act was not repealed by Section 97(1) of the 1976 Amendment Act and continues in force.

In the Court's words

Copied from the official judgment; each passage links to its page.

Provisions interpreted

• Section 98, Code of Civil Procedure, 1908
• Section 4, Code of Civil Procedure, 1908
• Section 23, Travancore-Cochin High Court Act, 1125
• Section 9, Kerala High Court Act, 1958
• Section 97(1), Code of Civil Procedure (Amendment) Act, 1976
• Section 41, Punjab Courts Act, 1918
• Article 254, Constitution

Case and bench

Parties

Pankajakshi (Dead) through L.Rs. v. Chandrika

Case

Civil Appeal No. 201 of 2005 (with Civil Appeal No. 8576 of 2014)

Decided

25 February 2016

Bench

Anil R. Dave, Kurian Joseph, Shiva Kirti Singh, Adarsh Kumar Goel, R.F. Nariman

Opinions

Unanimous. Opinion of the Court by R.F. Nariman, J., signed by all five Judges; Kurian Joseph, J. fully agreed and added separate observations on the need for legislation where Benches are equally divided.

Questions on this case

From free Law Maker papers. Try each one before you open the answer.

1. Question 1, Punjab Local Laws Practice Set 1

   In Pankajakshi (Dead) through LRs v. Chandrika (2016), a Constitution Bench of the Supreme Court considered second appeals under Section 41 of the Punjab Courts Act, 1918. As applied in later Supreme Court decisions, the High Court of Punjab and Haryana hearing such a second appeal:

   1. A. must frame a substantial question of law, as Section 100 CPC alone now governs
   2. B. may re-appreciate all the evidence freely, exactly as in a first appeal on facts
   3. C. need not frame a substantial question of law, as Section 41 continues to govern
   4. D. has no jurisdiction at all, as all second appeals now lie to the District Judge
   Show the answer

   C. need not frame a substantial question of law, as Section 41 continues to govern

   Pankajakshi v. Chandrika (2016) 6 SCC 157 held that Kulwant Kaur v. Gurdial Singh Mann (2001) did not state the law correctly and that Section 41 of the Punjab Act continues to govern second appeals, so a substantial question of law need not be framed. Findings of fact still cannot be disturbed except on the grounds in Section 41.

2. Question 2, Haryana Local Laws Practice Set 1

   In Pankajakshi v. Chandrika (2016), as followed in Lehna Singh v. Gurnam Singh (2024), the Supreme Court held, regarding second appeals before the Punjab and Haryana High Court in matters governed by Section 41 of the Punjab Courts Act, 1918, that:

   1. A. the High Court is not required to frame a substantial question of law before deciding the second appeal
   2. B. the High Court must frame a substantial question of law, since Section 100 CPC alone governs such appeals
   3. C. Section 41 stood repealed by the Code of Civil Procedure (Amendment) Act, 1976 for all pending appeals
   4. D. the High Court may freely re-appreciate the evidence and reverse findings of fact in such appeals
   Show the answer

   A. the High Court is not required to frame a substantial question of law before deciding the second appeal

   Pankajakshi held that Kulwant Kaur v. Gurdial Singh Mann (2001) did not state the law correctly and that second appeals in Punjab and Haryana are heard within the parameters of Section 41, which does not require a substantial question of law. Lehna Singh (2024) applied this and recalled an earlier order that faulted the High Court for not framing one, while noting that findings of fact still cannot be interfered with under Section 41.