Section 98 — Decision where appeal heard by two or more Judges
When a Bench of two or more Judges hears an appeal, who wins? It is decided by the opinion of the Judges, or their majority. If there is no majority willing to vary or reverse the decree, the decree below is simply confirmed. And where an even-numbered Bench splits on a point of law, that point is referred to other Judges — while nothing here disturbs a High Court’s letters patent.
How to read Section 98
Majority decides (1)
An appeal heard by a Bench is decided by the opinion of the Judges — or, where they differ, by the majority (if any) among them.
Tie → confirm (2)
If no majority concurs in a judgment varying or reversing the decree appealed from, that decree is confirmed — an even split leaves the decision below standing.
Split on law; patents saved (proviso, 3)
An even-numbered Bench that differs on a point of law may state it and have it heard by other Judges. And nothing in § 98 alters a High Court’s letters patent (3).
The bare Act
(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.→ Hearing & disposal of first appeals: Order XLI
(2) Where there is no such majority which concurs in a judgment varying or reversing the decree appealed from, such decree shall be confirmed:
2(3) Nothing in this section shall be deemed to alter or otherwise affect any provision of the letters patent of any High Court.
1. The bracketed words were substituted by Act 104 of 1976, s. 34 (w.e.f. 1-2-1977) for the earlier words describing the constitution of the Bench. 2. Sub-section (3) was inserted by Act 18 of 1928, s. 2 and the First Schedule.
Key terms decoded
A collegiate appellate court — the appeal is heard by several Judges sitting together, not one.
Where the Judges differ, the view of more than half of them prevails. “If any” signals that on an even Bench there may be no majority.
Changing (varying) or overturning (reversing) the decree appealed from. To do either, a majority must concur.
The decree below stands. A bare tie cannot disturb it — the appellant, not having carried a majority, fails.
The Judges disagree on a question of law (not merely of fact). Only then does the reference machinery of the proviso open.
The split Judges frame the precise legal question on which they differ, so it can be heard afresh by others.
The stated point is referred to further Judge(s) of the same Court; the answer is then the majority of all who heard the appeal, including those who first heard it.
The royal charter constituting a chartered High Court — which often has its own Letters-Patent-Appeal rule. § 98(3) leaves those provisions untouched.
The picture — how the Bench decides
A Bench speaks by majority. The catch is the tie: with no majority to disturb the decree, the appellant simply fails and the decree below is confirmed. The one escape from deadlock is a pure point of law — which an even Bench may refer out to further Judges, the answer then turning on the majority of everyone who heard it.
Section 98, part by part
Sub-section (1) — an appeal heard by a Bench is decided by the opinion of the Judges, or the majority among them.
Sub-section (2) — if no majority will vary or reverse the decree, it is confirmed. The proviso gives one escape from deadlock: a pure point of law can be referred to other Judges.
Sub-section (3) — a saving: nothing in § 98 disturbs a chartered High Court’s letters patent (including its Letters-Patent-Appeal provisions).
How the parts work as one body
One rule, one tie-breaker, one saving
Amendment history — a timeline
Sub-section (3) was inserted — expressly preserving the letters patent of the chartered High Courts (and their Letters-Patent-Appeal provisions) from any effect of this section.
The proviso’s words on the constitution of the even-numbered Bench were substituted — refining when a point of law may be referred to other Judges of a larger Court.
Connected provisions
Section 98 governs how a Bench’s decision is reached in an appeal — the appeal itself being the first appeal of § 96, worked by Order XLI. It sits beside § 99 (no reversal for error not affecting the merits) and § 107 (powers of the appellate court).