(3) Nothing in this section shall be deemed to alter or otherwise affect any provision of the letters patent of any High Court.
Where, however, there is difference of opinion on a point of law between the members of a Bench composed of two judges, they may state the point of law upon which they differ for decision by a third or more of the other Judges and such point shall be decided according to the opinion of the majority of the Judges who have heard the appeal, including those who first heard it.
A finding of fact recorded by the courts below cannot be interfered with when there is a difference of opinion between the Judges constituting the Bench. In such a case sub-section (2) of S. 98 will be applicable as respects that finding alone on which there is a difference of opinion and not to the result of appeal itself when in the opinion of the Judge the lower court has misapplied the law on the facts found but the other Judge does not concur in that view.
Where the opinion of the third Judge on the legal point is severable from his opinion on the finding of fact that becomes conclusive by the application of S. 98 (2) irrespective of the opinion recorded by the third Judge.
The language employed in sub-section (2) of section 98, C.P.C., is imperative and in mandatory terms. The object appears to be that on a question of fact when there is a difference of opinion, the view expressed by the court below, in the absence of a majority opinion, needs to be given primacy and confirmed.
When such is the animation, the Supreme Court cannot enlarge the scope of the controversy by itself examining the correctness of the finding of fact and decide which view of the two is correct. This would be in direct negation of the legislative mandate expressed in sub-section (2) of section 98, C.P.C.
The difference of opinion between Judges, who constitute the Bench hearing the appeal, on a point of law alone would be referred to a third or other Judges according to the rules of that High Court. By implication, on question of fact, when there is no majority opinion varying or reversing the decree appealed from, such decree should be confirmed.
In Mulla’s Code of Civil Procedure, 14th Edn., Vol. I, at p. 587, it is stated thus :
“No reference can be made under this section if the Judges differ on a question of fact. The power to refer can only be exercised if there is a difference of opinion on a point of law.”
Dissent to be recorded:
Where the appeal is heard by more judges than one, any Judge dissenting from the judgment of the court shall give his dissenting judgment, with reasons for the same. (Order XLI, Rule 34).
Where a reference is made to the third Judge on the difference of opinion on the question of law, it is not open to the third Judge to go behind the question of fact arrived at by both the Judges. Under S. 98 only the question of law on the admitted fact can be referred to a third Judge for disposal.