Code
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 (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:
Provided 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 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.
(3) Nothing in this section shall be deemed to alter or otherwise affect any provision of the Letters Patent of any High Court.
Explanation of Section 98 CPC
Section 98 CPC lays down the procedure for deciding an appeal when it is heard by a Bench consisting of two or more judges.
The provision ensures that appeals are decided fairly even when judges on the Bench hold different opinions. The general rule is that the decision of the majority prevails. If most judges agree on a particular outcome, that opinion becomes the judgment of the court.
Majority Decision Rule
When an appeal is heard by three or more judges, the opinion supported by the majority determines the result of the appeal.
For example, if two out of three judges agree to allow an appeal, the appeal will be allowed.
When Judges Differ Equally
Problems arise when an appeal is heard by an even number of judges and they disagree.
In such a situation, if there is no majority supporting a reversal or modification of the decree, the original decree remains unchanged and is confirmed.
This rule protects the decree already passed by the lower court from being overturned without a clear majority.
Difference on a Point of Law
If the judges disagree on a legal question and the Bench forms part of a larger court, the disputed point of law may be referred to one or more additional judges.
Those judges hear only the specific legal issue referred to them.
The final decision is then made according to the majority opinion of all judges who participated in deciding that legal question.
Effect of Sub-section (3)
Sub-section (3) protects the special powers and procedures contained in the Letters Patent of High Courts.
Therefore, Section 98 CPC does not override or modify those special provisions.
Importance of Section 98 CPC
Section 98 CPC promotes certainty and consistency in appellate proceedings. It provides a clear mechanism for resolving disagreements among judges and ensures that appeals are not left undecided merely because judicial opinions differ.
The provision also maintains stability by confirming the lower court’s decree when there is no majority in favour of changing it.
Illustration
Illustration 1
A three-judge Bench hears an appeal.
Two judges agree that the appeal should be allowed, while one judge disagrees.
Since the majority supports the appeal, the appeal is allowed.
Illustration 2
A two-judge Bench hears an appeal.
One judge wants to reverse the trial court’s decree, while the other judge wants to uphold it.
Since there is no majority supporting reversal, the original decree remains confirmed.
Illustration 3
A two-judge Bench of a High Court disagrees on the interpretation of a statutory provision.
The judges refer the legal question to another judge of the same court.
After considering the issue, the majority opinion among all participating judges determines the outcome.
Common Questions and Answers
1. What is the purpose of Section 98 CPC?
Answer:
Section 98 CPC provides rules for deciding appeals heard by a Bench of two or more judges, particularly when there is a difference of opinion.
2. What happens when the majority of judges agree?
Answer:
The appeal is decided according to the majority opinion of the judges hearing the case.
3. What happens if two judges disagree and there is no majority?
Answer:
The decree appealed against is confirmed unless the matter involves a point of law that can be referred to another judge.
4. Can a point of law be referred to another judge?
Answer:
Yes. Where judges of an even-numbered Bench differ on a point of law, that issue may be referred to one or more additional judges for determination.
5. Does Section 98 CPC override the Letters Patent of High Courts?
Answer:
No. Sub-section (3) specifically preserves the provisions of the Letters Patent of High Courts.
Conclusion
Section 98 CPC establishes a practical framework for deciding appeals heard by multiple judges. It ensures that majority opinions prevail, provides a mechanism for resolving disagreements on legal issues, and protects the validity of lower court decrees when no majority exists for reversal. The provision strengthens consistency, fairness, and judicial efficiency in appellate proceedings.
