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HIGH COURT OF PATNA (FULL BENCH)
S. S. Sandhawalia, CJ., S. Roy and U.P. Singh, JJ.
Akhauri Krishna Kumar Sinha and ors - Appellants
Vs.
Mundrika Prasad - Respondent
Appeal from original Order no. 28 of 1982 (R)
Decided on : 11.9.1984
PRECEDENT - BINDING NATURE - LARGER BENCH - RATIO DECIDENDI - JUDICIAL DISCIPLINE - SINGLE JUDGE BOUND BY DIVISION BENCH JUDGMENT - EXCEPTIONS TO THE BINDING NATURE OF PRECEDENTS - REASONS FOR BINDING NATURE OF PRECEDENTS - JUDICIAL ANARCHY - UNIFORMITY AND CERTAINTY IN LAW - JUDICIAL DECORUM AND LEGAL PROPRIETY - JUDICIAL POLICY - DOCTRINE OF PRECEDENT - LINCHPIN OF JUSTICE SYSTEM.
Fact of the Case:
A Single Judge of the High Court referred a matter to a Full Bench for reconsideration of a Division Bench judgment on the ground that it did not lay down the correct law. The Division Bench judgment was relied upon by the appellants in an appeal against an order of the Judicial Commissioner dismissing their application to set aside an ex parte order.
Finding of the Court:
The Full Bench held that the Single Judge was bound to follow the Division Bench judgment and could not dissent from it. The Full Bench further held that the case did not come within the parameters where a smaller Bench could even remotely seek the reconsideration of the law laid down.
Issues: 1. Whether a Single Judge is bound to follow a Division Bench judgment? 2. What are the exceptions to the binding nature of precedents? 3. What are the reasons for the binding nature of precedents?
Ratio Decidendi: 1. A Single Judge is bound to follow a Division Bench judgment. 2. The exceptions to the binding nature of precedents are: (a) where it is unequivocally manifest that its ratio has been impliedly overruled or whittled down by a subsequent judgment of a superior court or by a larger Bench of the same Court; (b) where it can be held with certainty that a co-equal Bench has laid the law directly contrary to the same; and (c) where it can be conclusively said that the judgment of the larger Bench was rendered per incuriam by altogether failing to take notice of a clear cut statutory provision or an earlier binding precedent. 3. The reasons for the binding nature of precedents are: (a) to secure uniformity and certainty in the law; (b) to avoid judicial anarchy; (c) to maintain judicial decorum and legal propriety; and (d) to uphold the doctrine of precedent, which is the linchpin of the justice system.
Final Decision: The Full Bench held that the reference to it was not competent and sent the case back to the Single Judge for a decision on merits in accordance with law.
S. S. Sandhawalia, C. J.–What is the precise import of the doctrine of precedent and its binding nature, which admittedly is the linch pin of our justice system; – becomes the focal question in this reference by the learned single Judge recording a frontal dissent against the ratio of the Division Bench JUDGMENT : of this very Court and seeking its reconsideration by a Full Bench.
2. The issue aforesaid stems from an appeal directed against the ORDER :of the Judicial Commissioner, Ranchi, whereby he declined to set aside an ex parte ORDER :passed earlier by him on the 27th of January, 1981. One Munga Devi is said to have executed a will in respect of her properties on the 3rd of March, 1970, in favour of the Opposite Party. On her death; an application under Section 276 of the Indian Succession Act, 1925, for the grant of probate, was moved by the opposite party. Therein notices were ORDER :ed to be issued to the appellants in accordance with law and a general notice was also issued. By an ORDER :dated the 26th of September, 1980, the service on the original appellant No.1 (Akhauri Raghubir Lal) was considered as sufficient, as the acknowledgement due receipt sent to him was received back duly signed on his behalf. Later, by an ORDER :dated the 4th of December, 1980, the learned Judicial Commissioner directed that service on Appellant No. 2 was also sufficient under ORDER :V Rule 19A of the Code of Civil Procedure. The case was thereafter posted for hearing on December 18, 1980, and, again on January 22, 1981, and, since nobody appeared on behalf of the appellants, proceedings against then were taken ex parte and evidence was recorded on behalf of the respondent, and the case was directed to be listed for ORDER :s on January 27, 1981. Meanwhile, after court hours on the 22nd January, 1981, an application was moved on behalf of original appellant No.1 for permission to contest the case, and, another such application was moved on the next date also, but both of them were rejected by the learned Judicial Commissioner on the 27th of January, 1981, and, by the same ORDER :he directed issue of probate in favour of the respondent.
3. The appellants then applied under ORDER :IX Rule 13 of the Code of Civil Procedure for setting aside the ex parte ORDER :dated the 27th of January, 1981. At the time of hearing, no evidence was led by the parties, and the Judicial Commissioner took the view that there was no adequate material before him to establish that there was sufficient cause for setting aside the ex parte ORDER :and dismissed the application on the 27th of January, 1982. The present appeal has been preferred against the said ORDER :.
4. When it camp up before the learned Single Judge, reliance on behalf of the appellants was squarely placed on a Division Bench JUDGMENT : of this Court in the Union of India v. Shri Laxmi Oil Mills (1984 BBCJ 137). The learned Single Judge, however, relying on R.S. Bhatnagar v. Bhakt Sajjan (AIR 1978 Allahabad 139), and quoting therefrom, has observed as under : –
"True it is that the Division Bench in Union of India v. Sri Laxmi Oil Mills (supra) did not take into consideration the difference between illegality and irregularity in the service of summons as it was not dealing the case falling under second proviso of ORDER :IX, Rule 13, of the Code. With great respect to the Hon'ble Judges who decided the case of Union of India v. Sri Laxmi Oil Mills (supra), I am constrained to say that it does not lay down the correct law. I, therefore refer the following questions for decision by a Full Bench :"
5. Before us an objection has been taken at the very threshold by the learned Counsel for the appellant that this reference to the Full Bench is not competent. It was submitted that the learned Single Judge was bound to follow the decision of the larger Division Bench in the Union of India v. Sri Laxmi Oil Mills (supra), and, in refusing to do so, there has been a breach of judicial discipline, which s
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