9911796707
TMI Blog2011 (9) TMI 1079X X X X Extracts X X X X X X X X Extracts X X X X ..... claration of title of the plaintiffs over the plaint schedule property measuring 30 cents in Sy. No. 962/1/2/6,1 of Kulathupuzha Village and for recovery of possession with mesne profits. THE same was decreed on 14/02/1990. THE defendants filed AS No. 49/1990 before the Sub Court, Kottarakkara against the judgment and decree, along with a petition to condone the delay, filed as IA No. 1290/1990. The delay petition was dismissed and consequently the appeal was also dismissed. Annexure I is the copy of the decree, in AS No. 49/1990. When EP No. 14/2005 was filed by the decree holder, the revision petitioners contended, in the objection filed, that the execution petition is barred by limitation. The learned Munsiff ordered delivery of the property, against which the revision petitioner filed WP (C) No. 24765/2005. This Court set aside the order of the Court below and directed the Court below to pass fresh order. The petitioners thereafter filed an additional objection to the execution petition and the Court below ordered delivery, against which the present Civil Revision Petition is filed. In the detailed reference order, the learned Single Judge has referred to the dec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... quently, dismissal of an appeal as time barred is also not a decree. Finally, it was held that as no decree was passed by the High Court in the Second Appeal the decree of the First Appellate Court remained unaffected and the enforceability once commenced remained undisturbed for a period of 12 years there from. The execution process initiated by the appellant long after the expiry of 12 years from 01/08/1973 is thus irretrievably barred. The next decision relied upon is Chandi Prasad's case2. The matter was considered by a three Judge Bench on a reference, when the correctness of the decision in Ratansingh's case1 was doubted by a two Judge Bench. The facts of the case therein show that after the dismissal of the appeal by the First Appellate Court on 04/01/1974, the appellant preferred a Second Appeal before the High Court and after the dismissal of the appeal, a formal decree was drawn on 30/10/1986. The application for execution of the decree was filed on 26/03/1997. It was contended that in the absence of a stay order the date of decree of the Trial Court/First Appellate Court would be the enforceable date for the purpose of Article 136. The contention by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... against the ex-parte decree with a petition to condone the delay. The Trial Court, in the meanwhile, condoned the delay in filing the petition for setting aside the ex-parte decree. The said order was challenged by the decree holder/plaintiff in a revision petition which was dismissed. Thereafter, both the application for condoning the delay as well as the appeal filed by the first defendant, were dismissed for default. Subsequently, before the Trial Court, the plaintiff raised an objection regarding the maintainability of the application to set aside the ex-parte decree, as an appeal was filed against the decree. The defendant contended that since the appeal was dismissed for default, the Explanation to Order IX Rule 13 of the Code of Civil Procedure will not create a bar. Ultimately, the matter reached the Apex Court at the instance of the first defendant against whom the orders were passed by the Trial Court, the first Appellate Court and the High Court. The Apex Court considered the question whether an appeal accompanied by an application for condoning the delay in filing the appeal, is an appeal in the eye of law, when the application for condoning the delay in f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ling the same is not condoned. Therein, the proceedings of the Land Board was challenged before this Court by the State in a revision along with an application for condoning the delay. The application for condoning the delay was dismissed and accordingly the revision was also dismissed. When the State Land Board directed to reopen the matter the respondents challenged the same before this Court. The revision petition was allowed and the State challenged the decision of this Court before the Apex Court. The effect of the same was considered. The Apex Court considered the principles laid down in various decisions and it was held that since the earlier revision petition was not decided on merits, the doctrine of merger cannot be applied to the facts and circumstances of the present case. The observation in Chandi Prasad's case 2004 (3) KLT 654 (SC) [2004 KHC 1184 : 2004 (8) SCC 724. and other decisions holding the view that when an appeal is dismissed on the ground that delay in filing the same is not condoned, the doctrine of merger shall not apply was also relied upon. The argument thus raised herein is that the decision of the Apex Court in Chandi Prasad's case (supra) an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to be better on point of law, are the following: Smt, Kalabai Choubey and Others v. Rajabahadur Yadav and Another, A. M. Bholanath Karmakarand Others v. Madanmohan Karmakar and Others, M/s. Indo Swiss Time Limited, Dundahera v. Umrao and Others and M/s. Boards Boards Pvt. Ltd., Jaipur v. M/s. Himalaya Paper (Machinery) Pvt. Ltd., New Delhi Shri. Sreekumar also referred to a Full Bench decisions of the Gujarat High Court in Gujarat Housing Board, Ahmedabad v. Nagajibha and that of the Allahabad High Court in Gopal Krishna Indley v. 5th Addl. District Judge, Kanpur and Others and Govindanaik G. Kalaghatigi v. West Patent Press Co. Ltd. wherein the view taken is that in the case of conflict between two decisions of the Apex Court presided over by Judges of equal strength, the decision of the later Bench would be binding on the High Court and other Courts. Learned counsel tried to distinguish these decisions by referring to various principles laid down in certain other decisions by the Apex Court. Incidentally, we find that the decision of a Division Bench of this Court in Deputy Commissioner v. Anandan took the view that the High Court is bound to follow the later decision in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court in Siddharam Satlingappa Mhetre v. State of Maharashtra and Others and Safia Bee v. Mohd. Vajahath Hussain alias Fasi. It was pointed out by the learned Advocate General that the decision of the Apex Court in Ratansigh's case (supra) did not refer to the binding decisions of the Apex Court, especially in Messrs Mela Ram's case and Sheodan Singh's case. They were also binding on the decision of the later Bench which decided Chandi Prasad's case (supra). It is therefore submitted that the decision of the Apex Court in Ratansigh's case (supra), Chandi Prasad's case (supra) and the last of the decision in Kondottiparamban Moosa's will be per incuriam. Our attention was invited to the principles stated in Chandi Pradad's case and Shyam Sundar Sarma's case. It was submitted that on the point of law, the decision of the Apex Court in Shyam Sundar Sarma's case (supra) is the correct one. Various decisions of the Apex Court and this Court were relied upon in this context. A catena of decisions which have taken the view that the later decision of the Apex Court will have to be followed, were relied upon by the learned counsel for the respond ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court in United India Insurance Co. Ltd. v. Alav and it was held thus in paragraphs 58 to 61: 58. It is true that the Division Bench in Kannan's 1999 (2) KLT 643 case has made a reference to Ajit Singh's (1994 (4) SCC 67 )case in preference to Wardington's case 1995 (4) SCC 428 A perusal of the decision in Ajit Singh's case shows that in para 5 an observation has been made to the following effect:- 5...........Inasmuch as the appellants have filed an application for reference under Section 18 of the Act that will manifest their intention. Therefore, the protest against the award of the Collector is implied notwithstanding the acceptance of compensation. With great respect, the above quoted observation can neither be construed as the ratio or even an obiter in that case.- Mr. Philip Mathew, the learned counsel for the petitioners contended that since the decision in Ajit Singh's case is also a two Judge Bench decision, it should be preferred to the subsequent two decisions of equal strength, namely, Wardington's case and Shivabai's, 1997 (9) SCC 710 case each of which was decided by two learned Judges. Our attention was invited by Mr. Ph ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... decision in Delhi Transport Corporation v. D.T.C. Mazdoor Congress, 1991 (Supp) SCC 600 dealing with the expression 'declared' as against the words 'found' or 'made'. The Apex Court held that a decision which is not expressed and is not found on reasons nor proceeds on consideration of issue cannot be deemed to be a law declared to have a binding effect as is contemplated by Article 141 of the Constitution. Reference was then made to the decision in State of U.P. v. Synthetics Chemicals Ltd., 1991 (4) SCC 139 where it was held: Any declaration or conclusion arrived without application of mind or preceded without any reason cannot be deemed to be declaration of law or authority of a general nature binding as a precedent. Restraint in dissenting or overruling is for sake of stability and uniformity but rigidly beyond reasonable limits is inimical to the growth of law...........Law declared is not that can be culled out, but that which is stated as law to be accepted and applied. A conclusion without reference to relevant provision of law is weaker than even casual observation . (emphasis ours) 60. K. S. Radhakrishnan, J. speaking for the Court in Alav ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ticle 141. It was held that in case of a clear conflict between two decisions of the Apex Court of equal number of Judges, the later decision would be binding on the High Court. (ii) In Govindanaik G. Kalaghatigi v. West Patent Press Co. Ltd., AIR 1980 Kar. 92 a Full Bench of five learned Judges of the Karnataka High Court held that if two decisions of the Apex Court on a question of law cannot be reconciled and one of them was by a Larger Bench while the other is by a smaller Bench, the decision of the larger Bench, whether it is earlier or later in point of time, should be followed by the High Courts and other Courts. However, if both such Benches of the Apex Court consists of equal number of Judges, the later of the two decision should be followed by the High Courts and other Courts. This opinion of the Full Bench is to be found in para 12 at page 95. (iii) In Amar Singh Yadav v. Shanti Devi, AIR 1987 Pat. 191 (FB), a Full Bench of the Patna High Court held that where there is a direct conflict between two decisions of the Apex Court rendered by Benches of equal strength, the High Court must follow that judgment which appears to it to state the law more elaboratel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rose in that case was as to whether State Legislature could levy vend fee or excise duty on industrial alcohol. The Bench answered the question in the negative as industrial alcohol being unfit for human consumption, the State Legislation was incompetent to levy any duty of excise either under Entry 51 or Entry 8 of List II of the Seventh Schedule. While doing so, it was not preceded by any discussion. No reason or rationale could be found in the order. This gave rise to an important question, if the conclusion is law declared under Article 141 of the Constitution, or it is per incuriam and is liable to be ignored. Supreme Court explained the meaning of the words 'per incuriam' and dealt with the rule of sub-silentio. Supreme Court in the above mentioned decision held: 'incuria' literally means 'carelessness'. In practice per incuriam appears to mean per ignoratium. English Courts have developed this principle in relaxation of the rule of stare decisis. The 'quotable in law' is avoided and ignored if it is rendered, 'in ignoratium of a statute or other binding authority': Young v. Bristol Aeroplane Co. Ltd, 1944(1) KB 718. Same has been acce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ason cannot be a declaration of law, or authority, as a binding precedent. Therefore, the Bench was of the view that what is relevant is the declaration of law by the Apex Court and any declaration made or conclusion arrived at without application of mind or proceeded without any reason, cannot be a declaration of law or authority as a binding precedent. Hence, this will act as a binding principle whenever a Court is confronted with the question of analysing the decisions to find out the law declared in them. 23. In Union of India and Others v. Dhanwanti Devi and Others, which is relied upon by Shri Sreekumar, learned counsel for the petitioners, the relevant principles were restated. IT was held that what is binding is the ratio and not every observation therein. Para 9 laid down the principle thus: It is not everything said by a Judge while giving judgment that constitutes a precedent. The only thing in a Judge's decision binding a party is the principle upon which the case is decided and for this reason it is important to analyse a decision and isolate from it the ratio decidendi. According to the well-settled theory of precedents, every decision contains thre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ring the question posed herein. In that manner, the question whether a decision is a binding one or not will have to be addressed by a Court, whenever such issues are posed before it. 12. As already noticed, a Division Bench of this Court in Deputy Commissioner v. Anandan had taken the view that the later one will have to be followed and that a learned Single Judge in Krishnan Namboodiri's case also held that the later one will have to be followed, when both decisions are rendered by Benches of co-equal strength. Unfortunately, the binding decisions of the two Full Benches of this Court in Alavi's case (supra) and Joseph's case (supra) were not brought to the notice of the learned Single Judge before whom the various questions were argued. In the reference order, in para 7, after referring to the decision of a Division Bench in Deputy Commissioner v. Anandan, that of a Full Bench of the Allahabad High Court in Gopal Krishna Indley v. 5th Additional District Judge, Kanpur and Others and also that of the Full Bench of Gujarat High Court in Gujarat Housing Board, Ahmedabad v. Nagajibhai Laxmanbhai and Others, the learned Judge was of the view that So much so, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o consider any statute while deciding that issue. The next decision relied upon by the learned Advocate General is Central Board of Dawoodi Bohra - Community and Another v. State of Maharashtra and Another. We will be discussing in detail the said judgment in the later part. 14. In this context, we will have to necessarily consider the various principles governing the interpretation of Article 141 of the Constitution. The said Article reads as follows: 141. Law declared by Supreme Court to be binding on all Courts-The law declared by the Supreme Court shall be binding on all Courts within the territory of India. Evidently, in the light of the same, the declaration of the Apex Court on legal issues are binding on all Courts in INdia. As held in Delhi Transport Corporation's case65, the expression 'declared' is wider than the words 'found' or 'made' and 'law declared by the Supreme Court is the law of the land'. INcidentally, it is profitable to notice that questions have arisen as to the binding nature of precedents as far as the Supreme Court and other Courts are concerned. We may now refer to the decision of a Constitut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Learned counsel for the petitioners relied upon the following decisions of the Apex Court in the context of highlighting the meaning of the words per incuriam . They are: Union of India and Another v. Raghubir Singh (Dead) by Lrs. Others, Central Board of Dawoodi Bohra Community and Another v. State of Maharashtra and Another and Subhash Chandra and Another v. Delhi Subordinate Service Selection Board and Others. The decision of the Apex Court in Raghubir Singh's case69 is by a Constitution Bench which elaborately considered the law on precedents and the importance of the same and the various circumstances under which the Apex Court will be justified in overruling its own decisions. After referring to Bengal Immunity Company Ltd. 's case70, the Apex Court held thus in para 15 : The question then is not whether the Supreme Court is bound by its own previous decisions. It is not. The question is under what circumstances and within what limits and in what manner should the highest Court over-turn its own pronouncements. After surveying the position in various countries, viz. England, Australia and United States of America, their Lordships relied upon the principle ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r lesser number of Judges. This principle has been followed in India by several generations of Judges. We may refer to a few of the recent cases on the point. In John Martin v. State of West Bengal, 1975 (3) SCC 836, a Division Bench of three Judges found it right to foliow the law declared in Haradhan Saha v. State of West Bengal, 1975 (3) SCC 198, decided by a Division Bench of five Judges, in preference to Shut Nath Mate v. State of West Bengal, 1974 (1) SCC 645 decided by a Division Bench of two Judges. Again in Indira Nehru Gandhi v. Raj Narain, 1975 (Supp) SCC 1, Beg, J. held that the Constitution Bench of five Judges was bound by the Constitution Bench of thirteen Judges in Kesavananda Bharati v. State of Kerala, 1973 (4) SCC 225. In Ganapati Sitaram Balvalkarv. Waman Shripad Mage, 1981 (4) SCC 143 this Court expressly stated that the view taken on a point of law by a Division Bench of four Judges of this Court was binding on a Division Bench of three Judges of the Court. And in Mattulal v. Radhe Lal, 1974 (2) SCC 365, this Court specifically observed that where the view expressed by two different Division Benches of this Court could not be reconciled, the pronouncement of a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n rendered by ignorance of a previous binding decision such as a decision of its own or of a Court of coordinate or higher jurisdiction or in ignorance of the terms of a statute or of a rule having the force of law. A ruling making a specific reference to an earlier binding precedent may or may not be correct but cannot be said to be per incuriam. (emphasis supplied) 12. Having carefully considered the submissions made by the learned Senior Counsel for the parties and having examined the law laid down by the Constitution Benches in the above said decisions, we would like to sum up the legal position in the following terms: (1) The law laid down by this Court in a decision delivered by a Bench of larger strength is binding on any subsequent Bench of lesser or co-equal strength. (2) A Bench of lesser quorum cannot disagree or dissent from the view of the law taken by a Bench of larger quorum. In case of doubt all that the Bench of lesser quorum can do is to invite the attention of the Chief Justice and request for the matter being placed for hearing before a Bench of larger quorum than the Bench whose decision has come up for consideration. It will be open only ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f Bombay. An objection was raised in the matter later when it was being heard by a larger Bench. Therefore, the relevant principles were laid down in Reghubir Singh's case (supra) and in Dawoodi Bohra Community's case (supra) while considering the objection regarding the validity of the reference made to the larger Bench. In fact, in Raghubir Singh's case78 itself the Apex Court while considering the binding nature of declaration of law by Article 141 of the Constitution of India, has emphasised the principles relating to the doctrine of binding precedents and the limitations of it which require a re-adjustment at a later point of time. R. S. Pathak, C. J. who spoke for the Bench, declared the position in illuminating passages at pages 766 and 767 (paragraphs 7 to 11), thus: 7..........The range of judicial review recognised in the superior judiciary of India is perhaps the widest and the most extensive known to the world of law. The power extends to examining the validity of even an amendment to the Constitution, for now it has been repeatedly held that no constitutional amendment can be sustained which violates the basic structure of the Constitution. (Se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nes at the other. Explaining the conceptual import of what Holmes had said, Julius Stone elaborated that it is by the introduction of new extra-legal propositions emerging from experience to serve as premises, or by experience-guided choice between competing legal propositions, rather than by the operation of logic upon existing legal propositions, that the growth of law tends to be determined. (Julius Stone: Legal Systems and Lawyers Reasoning, pp. 58-59). 11. Legal compulsions cannot be limited by existing legal propositions, because there will always be, beyond the frontiers of the existing law, new areas inviting judicial scrutiny and judicial choice-making which could well affect the validity of existing legal dogma. The search for solutions responsive to a changed social era involves a search not only among competing propositions of law, or competing versions of a legal proposition or the modalities of an indeterminacy such as fairness or reasonableness , but also - among propositions from outside the ruling law, corresponding to the empirical knowledge or accepted values of present time and place, relevant to the dispensing of justice within the new parameters. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... atutory provision or of some authority binding on the Court concerned, so that in such cases some features of the decision or some step in the reasoning on which it is based is found on that account to be demonstrably wrong. This definition is not necessarily exhaustive, but cases not strictly within it which can properly be held to have been decided per incuriam, must in our judgment, consistently with the stare decisis rule which is an essential part of our law, be of the rarest occurrence'. Rupert Cross J.W. Harris, Precedent in English Law 149 (4th Edn. 1991) 17. The argument raised by the learned counsel hence is that the decision of an earlier three Judge Bench is binding on a later Bench of equal or smaller strength and a decision rendered without noticing the same, is per incuriam. Our attention was then invited to a decision of a Division Bench of Delhi High Court in Wee Aar Constructive Builders v. Simplex Concrete Piles (India) Ltd. Therein, two conflicting decisions of the Apex Court in Nilkantha Sidramappa Ningashetti v. Kashinath Somanna Ningashett and Essar Constructions v. N. P. Rama Krishna Reddy arose for consideration. In fact, the Apex Court in Essa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was a case where the latter Bench overruled the decision, on a point of law, by an earlier Bench. In a recent decision of the Apex Court in Sidharam Satlingappa Mhetre v. State of Maharashtra and Others also, the very same principles were reiterated in the light of Raghubir Singh's case [Union of India v. Raghubir Singh] and other subsequent decisions and in paragraphs 149 and 150 the principle was laid down thus: 149. The analysis of English and Indian Law clearly leads to the irresistible conclusion that not only the judgment of a larger strength is binding on a judgment of smaller strength but the judgment of a co-equal strength is also binding on a Bench of Judges of co-equal strength. In the instant case, judgments mentioned in paragraphs 135 and 136 are by two or three Judges of this Court. These judgments have clearly ignored a Constitution Bench judgment of this Court in Sibbia's case, 1980 (2) SCC 565 which has comprehensively dealt with all the facets of anticipatory bail enumerated under Section 438 of Code of Criminal Procedure. Consequently, judgments mentioned in paragraphs 135 and 136 of this judgment are per incuriam. 150. In case there is no ju ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r before a larger bench. Consequently it must be assumed and presumed that no smaller or coordinate bench ever lays down or intends to lay down a principle contrary to the binding decision of an earlier larger or co-ordinate bench. (v) If a smaller or co-ordinate bench refers to the decision of an earlier Larger bench or coordinate bench and takes a decision explaining the same, such explanation/understanding of the larger/coordinate bench decision by such smaller or co-ordinate bench shall be followed later by all smaller or co-ordinate benches unless they resort to the course of reference as indicated in (iv) above. (vi) If any smaller or co-ordinate bench unfortunately overlooks or omits to refer to an earlier binding precedent of a larger or co-ordinate bench and a conflict of the nature referred to in proposition (i) exists, such later decision has no binding sway and must be reckoned as rendered per incuriam. Such decisions per incuriam cannot be followed. Subordinate Courts with respect must choose to follow the earlier binding precedents notwithstanding the later per incuriam decision of the smaller or co-ordinate bench. Shri S. Sreekumar, learned couns ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h an earlier Bench decision. Paragraphs 9 and 10 of the judgment are important in this context. Their Lordships considered a case where two conflicting decisions are placed before a latter Bench. It was held that the correct procedure to be followed by the Bench would be refer the question for the decision of a Full Bench. Thus, it is a case where the earlier judgment was brought to the notice of the latter Bench, unlike the situation herein. The decision of the Apex Court in Kunhayammed and Others v. State of Kerala and Another relied upon herein by both sides, was one considering the scope of doctrine of merger. Mainly it was one considering the effect of dismissal of a Special Leave Petition in limine and by reasoned orders. The relevant principles are stated in Paragraphs 32, 34, 40, 41, 42, 44(vi), which are as follows: It may be that in spite of having granted leave in appeal, the Court may dismiss the appeal on such grounds as may have provided foundation for refusing the grant at the earlier stage. But that will be a dismissal of appeal. The decision of the Supreme Court would result in superseding the decision under appeal attracting doctrine of merger. But if ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wallowed up, Merger in law is defined as the absorption of a thing of lesser importance by a greater, whereby the lesser cease to exist, but the greater is not increased, an absorption or swallowing up so as to involve a loss of identity and individuality (para 42) Once leave to appeal has been granted and appellate jurisdiction of Supreme Court has been invoked the order passed in appeal would attract the doctrine of merger; the order may be of reversal, modification or merely affirmation. (para 44(vi). We will now come to certain other decisions, referred to by the learned counsel, which also reiterate the principles applicable in different situations. In State of U.P. v. Ram Chandra Trivedi their Lordships held that the High Court will be justified in following the opinion expressed by larger benches in preference to those expressed by smaller benches. It was held that the same principle was followed by the Apex Court as a rule of law. Their Lordships laid down the principle in para 22. The same is the view expressed in Union of India and Another v. K. S. Subramanian. 21. A Full Bench of this Court in Peter v. Sara, following some of the decisions of the Apex Court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ine to be exercised when there is a clear pronouncement of the law by the Apex Court, in the light of Article 141 of the Constitution of India, was highlighted in many of these decisions. In this regard, one of the earlier decisions of the Apex Court in Ballabhdas Mathuradas Lakhani and Others v. Municipal Committee, Malkapur is relevant. In para 4 of the judgment, their Lordships held as follows: The decision was binding on the High Court and the High Court could not ignore it because they thought that relevant provisions were not brought to the notice of the Court. 24. In Ganga Sugar Corporation Ltd. v. The State of U.P. and Others, another Constitution Bench held that the decisions of the Apex Court are declaratory for the nation. IN para 29, their Lordships declared the legal position thus: Enlightened litigative policy in the country must accept as final the pronouncements of the Supreme Court by a Constitution Bench unless the subject be of such fundamental importance to national life or the reasoning is so plainly erroneous in the light of later thought that it is wiser to be ultimately-right rather than to be consistently wrong. Stare decisis is not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e, this Court stated that the law laid down in D.C. Bhatia case would be applicable, it was not open to the High Court to state that it would prefer to follow the decision in Rattan Arya case, 1986 (3) SCC 385. Indeed it is a matter of judicial discipline that requires that when this Court states as to what the law on the matter is, the same shall be binding on all the Courts within the territory of India. This mandate of Article 141 of the Constitution is not based on any doctrine of precedents, but is an imprimatur to all Courts that the law declared by this Court is binding on them. If that is so, it was not open to the High Court to consider the effect of the decisions in Rattan Arya case, its scope, what was decided therein and whether there could be any distinction between that decision and the decision rendered in D.C. Bhatia case. THE clear pronouncement made by this Court in Shobha Surendar case was that D.C. Bhatia case was applicable with reference to Section 31 of the Karnataka Rent Control Act and, therefore, in view of that decision the High Court's decision was upset in another matter where the High Court had followed the Padmanabha Rao case (supra). In effect, P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... endered by a single Judge of the High Court of Kerala vide Rajendran v. Jose, 2001 (3) KLT 431. Learned Judge has directed that the decision of this Court in Hari Singh v. Sukhbir Singh, 1988 (4) SCC 551 is not to be followed as this Court laid down the said legal proposition without adverting to Section 431 of the Code. The single Judge of the High Court of Kerala by-passed the legal proposition made by the Apex Court in the following manner:- The learned Sessions Judge imposed sentence in default on the basis of the observation made by the Apex Court in Hari Kishan and State of Haryana v. Sukhbir Singh, AIR 1988 SC 2127, that Court may enforce the order by imposing sentence in default. It appears that while disposing of that appeal attention of Apex Court was not drawn specifically to the provisions of Section 431, CrPC providing for recovery of money (other than fine) payable by virtue of any order made under the Criminal Procedure Code. 7. Saying so, learned single Judge set aside that part of the order passed by the Sessions Court directing an accused to undergo simple imprisonment for a period of six months in case of his committing default in payment of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... followed by the subordinate Courts in Kerala. We express our disapproval of the course adopted by the said Judge in Rajendran v. Jose, 2001 (3) K.LT 431. It is unfortunate that when the Sessions Judge has correctly done a course in accordance with the discipline the single Judge of the High Court has incorrectly reversed it. The judicial discipline to be maintained by the High Courts and Subordinate Courts, and the practice to be followed have been emphatically laid down therein. Another important decision of the Apex Court is one in Director of Settlements A.P. and Others v. M. R. Apparao and Another wherein also it was held that what is binding under Article 141 is the ratio decidendi and not a finding of fact. It was noticed that the obiter dictum may not be a binding precedent but it is of considerable weight and that a decision of the Apex Court cannot be assailed on the ground that certain aspects were not considered or that relevant facts were not considered by the Supreme Court. This question was considered in the context of considering the circumstances wherein a decision can be stated as per incuriam. It was also held that the decision of the High Court refusing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Supreme Court. A judgment of the High Court which refuses to follow the decision and directions of the Supreme Court or to revive a decision of the High Court which had been set aside by the Supreme Court is a nullity. (Emphasis supplied) Even though learned counsel for the petitioner Shri S. Sreekumar submitted that the decision of the Full Bench in Joseph's case requires reconsideration by a larger Bench, we are not impressed by the said argument. In fact, as we have already noticed, in the said decision, which was one arising under Section 18 of the Land Acquisition Act, 1894, this Court analysed three decisions of the Apex Court on the point. It was held that the observation made on the interpretation of Section 18 of the Act is the earliest of the one, viz. Ajith Singh's case cannot be construed as a ratio. Therefore, the said decision was not followed obviously for the absence of a ratio decidendi. In the decision of the Full Bench of this Court in Alavi's case also, the Full Bench has laid down the principle that ratio decidendi of a decision is the binding factor. Their Lordships analysed the decision of the Apex Court in Civil Appeal Nos. 16904 to 16 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nalysis of the principles stated in various decisions of the Apex Court and other High Courts including this Court, so as to act as guidance to the High Courts and Subordinate Courts, when faced with a conflicting decisions, are summarised below: (i) In case of conflicting views taken in the decisions of two Benches of equal strength of the Apex Court, the decision later in point of time, will prevail over the earlier one; (ii) What is binding is the ratio decidendi. A decision is only an authority for what it actually decides. (iii) A decision which is not expressed and is not found on reasons nor proceeds on consideration of issue cannot be deemed to be a law declared to have a binding effect as is contemplated by Article 141 of the Constitution. Similarly, any declaration made or conclusion arrived at without application of mind or preceded without a reason, cannot be a declaration of law, or authority as a binding precedent; (iv) It is well settled that what is the essence of a decision is the ratio and not every observation, nor what logically follows from various observations made in it. (v) The enunciation of the reason or principle on wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gth will be without the colour of a binding precedent under Article 141 of the Constitution. It may not be proper for the High Courts or subordinate Courts to criticise and characterise a decision of the Apex Court which has laid down a point of law as per incuriam. Such is not the function of the High Court or subordinate Courts. In the light of the decision of the Supreme Court in Bengal Immunity Co. Ltd. 's the law declared by the Supreme Court is binding in all Courts in India except the Supreme Court. The decisions of the Apex Court in Raghubir Singh's case and Central Board of Dawoodi Bohra Community's case have laid down the circumstances wherein the decisions of larger Benches will have to be followed by Benches of lesser strength. Therefore, those guidelines will act as a pointer for the High Courts and subordinate Courts while examining the binding nature of a decision of the Apex Court, under Article 141 of the Constitution whenever there are conflicting decisions. The caution expressed by the Apex Court in various cases mentioned above, that the High Court cannot refuse to follow a binding decision of the Apex Court, is important in this context. ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
