Code of Civil Procedure, 1908
Section 98 CPC: Decision Where Appeal Is Heard by Two or More Judges
Section 98 of the Code of Civil Procedure, 1908 lays down the rule to be followed where an appeal is heard by a Bench consisting of two or more Judges. It addresses majority decisions, evenly divided Benches, reference of a point of law, and the relationship of the section with the Letters Patent of a High Court.
Text of Section 98 CPC
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.
How Section 98 CPC Works
Majority opinion controls the appeal
When an appellate Bench consists of two or more Judges, the decision follows the opinion of all the Judges where they agree, or the opinion of the majority where there is a majority.
No majority for reversal or variation
If there is no majority concurring in a judgment that would vary or reverse the decree under appeal, Section 98(2) provides that the decree appealed from is to be confirmed.
Difference on a point of law in an even-numbered Bench
Where an even-numbered Bench belongs to a Court consisting of more Judges and the Judges differ on a point of law, the differing point may be stated and heard by one or more of the other Judges. That point is then decided according to the majority opinion of all Judges who heard the point, including the Judges who originally heard the appeal.
Letters Patent of High Courts
Section 98(3) preserves any applicable provision of the Letters Patent of a High Court. The section therefore does not override such Letters Patent provisions merely by reason of Section 98 itself.
Important: The CPC may be affected by State amendments, High Court rules and applicable Letters Patent provisions. These should be checked where relevant to a particular appeal.