1. These original petitions, filed under Article 227 of the Constitution of India, raise challenges against two interlocutory orders passed in Ext.P1 suit. One among them raises an important question regarding legality and sustainability of the Third Party Procedure under Order VIIIA of the Code of Civil Procedure, 1908 (in short, “Code”) inserted by a notification in the Kerala Gazette dated 09.06.1959. In the wake of the amendments to the Code by Code of Civil Procedure (Amendment) Act (Act 104 of 1976) and Code of Civil Procedure (Amendment) Act, 2002 (Act 22 of 2002), it is contended that the said Order no longer exists as part of the Code.
2. Bare minimum facts, relevant for adjudication, are thus: Petitioner is the defendant in Ext.P1 suit. Allegations in the plaint show that the plaintiff supplied materials for building construction to M/s.Sukam Constructions Pvt. Ltd. in order to construct a building for M/s.Pentagon Builders. As per the plaint averments, a sum of Rs. 32,92,735/- was due to the plaintiff (contesting respondent) from M/s.Sukam Constructions Pvt. Ltd. towards the cost of materials. Petitioner filed Ext.P2 written statement opposing the plaint claims. He contended that the suit is barred by limitation. He relied on an agreement dated 22.05.2012 to contend that the entire alleged dues were discharged and no claim subsisted between the parties. According to him, the said agreement was made after a full and final settlement of the disputed amounts. In the above suit, the petitioner preferred an amendment application (Ext.P3 in O.P.(C) No.32 of 2016). That application was considered by the trial court and Ext.P4 order was passed allowing the amendment in part. Dissatisfied with the lesser extent of the amendment allowed, the aforementioned original petition has been filed.
3. Also the petitioner filed application invoking Rule 1 of Order VIIIA of Code seeking leave of the court to issue a third party notice to M/s.Pentagon Builders in the suit. The application was considered by the trial court and as per Ext.P4 order in O.P.(C) No.28 of 2016 the prayer was turned down on factual grounds. This order too is challenged by the petitioner.
4. Heard Sri.C.S.Manu and Sri.S.K.Premraj, learned counsel for the petitioner and Sri.S.Nirmal, learned counsel for the plaintiff/respondent. Sri.G.Sreekumar and Sri.P.B.Krishnan ably assisted the court as amicus curiae.
5. Legal issues involved in O.P.(C) No.32 of 2016 are quite simple in nature. This petition is filed by challenging Ext.P4 order passed by the trial court disallowing a portion of the amendments sought to be made to the written statement. On a perusal of Ext.P1 plaint, it can be seen that the plaintiff specifically alleged that the petitioner/defendant was engaged in construction of apartments for M/s.Pentagon Builders. It is also averred that the defendant, being a contractor carrying on the building construction, demanded the plaintiff to supply building materials worth Rs. 32,92,735/-. Tenor of the averments in the plaint would further show that the plaintiff had no direct dealing with M/s.Pentagon Builders.
6. In Ext.P2 written statement, the petitioner/defendant candidly admitted the transactions between him and the plaintiff. As per the averments in Ext.P3 amendment application, it would appear that the petitioner wanted extensive amendments to the written statement and if the same were allowed, it would have resulted in projecting a new case. Court below rightly considered scope of the amendments sought for and found that except some minor corrections in the facts pleaded, no substantial change to the averments in the original written statement could be allowed as it would enable the defendant to wriggle out of the admissions clearly made. Notwithstanding the proposition that an amendment of pleadings should be liberally considered, if it is appropriately made at the appropriate time, it is settled law that a party cannot be allowed to withdraw from an express admission made in the original pleading by resorting to an amendment. In other words, admissions consciously made shall not be allowed to be uprooted by an amendment made as an afterthought.
7. Having regard to the facts and circumstances and also with reference to the material pleadings, I do not find any reason to disagree with the impugned Ext.P4 order in O.P.(C) No.32 of 2016. I therefore find that prayers in the above original petition are devoid of any merit and it is worthy of a dismissal only.
8. Challenge in O.P.(C) No.28 of 2016 is against disallowing leave to the petitioner to issue a third party notice to M/s.Pentagon Builders, Kozhikode in the above suit as it is contended that there is a substantial common question arising between the parties to the litigation and the third party sought to be impleaded. According to the petitioner, the third party should be brought to the party array so as to bind them by the decision in the case. Going by his case, delay in completion of the construction work was never due to any lackadaisical attitude of M/s.Sukam Constructions Pvt. Ltd. It was due to the fault and failure of the third party sought to be impleaded. Therefore, fault cannot be attributed to M/s.Sukam Constructions Pvt. Ltd. As the third party sought to be impleaded was responsible for the delay and default in the construction, the matters need to be settled between the respondent and third party. Hence, their presence is essential for a proper adjudication of the case.
9. Respondent/plaintiff opposed the impleadment raising factual and legal issues. According to the 1st respondent, he has no privity of contract with the 2nd respondent herein (third party). It is also contended that after exhaustive amendments to the Code, the provisions in Order VIIIA do not exist in the Code because in Section 97 of the Code of Civil Procedure (Amendment) Act, 1976 (Act No.104 of 1976), hereinafter referred to as “the Amendment Act, 1976”, it is clearly mentioned that any amendment made or any provision inserted in the principal Act by a State Legislature or a High Court before the commencement of the Amendment Act, 1976 shall, except insofar as such amendment or provision is consistent with the provisions of the principal Act as amended by the Amendment Act, stand repealed. It is to be noted in this context that the expression principal Act connotes the Code itself. It is contended that the provisions in Order VIII A are not consistent with the provisions in the principal Act as amended by the Amendment Act, 1976 and fo
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r that reason they are inoperative. A provision similar to Section 97 of the Amendment Act, 1976 can be seen in Section 16 of the Code of Civil Procedure (Amendment) Act, 2002 (Act No.22 of 2002), hereinafter referred to as “the Amendment Act, 2002”. On this score also the entire provisions in Order VIIIA ceased to exist as part of the principal statute, viz., Code of Civil Procedure, 1908. It is therefore contended that the said provision cannot be applied as claimed by the petitioner.
10. I deem it apposite to look into Articles 246 and 254 of the Constitution of India to clearly understand the legislative competence of the Parliament and State Legislature in the matter of civil procedure. I shall quote those provisions:
“246. Subject-matter of laws made by Parliament and by the Legislatures of States.- (1) Notwithstanding anything in clauses (2) and (3), Parliament has exclusive power to make laws with respect to any of the matters enumerated in List I in the Seventh Schedule (in this Constitution referred to as the “Union List”).
(2) Notwithstanding anything in clause (3), Parliament and, subject to clause (1), the Legislature of any State also, have power to make laws with respect to any of the matters enumerated in List III in the Seventh Schedule (in this Constitution referred to as the “Concurrent List”).
(3) Subject to clauses (1) and (2), the Legislature of any State has exclusive power to make laws for such State or any part thereof with respect to any of the matters enumerated in List II in the Seventh Schedule (in this Constitution referred to as the 'State List').
(4) Parliament has power to make laws with respect to any matter for any part of the territory of India not included in a State notwithstanding that such matter is a matter enumerated in the State List.”
254. Inconsistency between laws made by Parliament and laws made by the Legislatures of States.- (1) If any provision of a law made by the Legislature of a State is repugnant to any provision of a law made by Parliament which Parliament is competent to enact, or to any provision of an existing law with respect to one of the matters enumerated in the Concurrent List, then, subject to the provisions of clause (2), the law made by Parliament, whether passed before or after the law made by the Legislature of such State, or, as the case may be, the existing law, shall prevail and the law made by the Legislature of the State shall, to the extent of the repugnancy, be void.
(2) Where a law made by the Legislature of a State with respect to one of the matters enumerated in the Concurrent List contains any provision repugnant to the provisions of an earlier law made by Parliament or an existing law with respect to that matter, then, the law so made by the Legislature of such State shall, if it has been reserved for the consideration of the President and has received his assent, prevail in that State:
Provided that nothing in this clause shall prevent Parliament from enacting at any time any law with respect to the same matter including a law adding to, amending, varying or repealing the law so made by the Legislature of the State.”
Civil procedure, including all matters in the Code at the commencement of the Constitution, limitation and arbitration could be seen placed as Entry No.13 in List III - Concurrent List in the VII Schedule to the Constitution as prescribed under Article 246.
11. Cardinal question to be answered is whether Section 97(1) of the Amendment Act, 1976 and Section 16(1) of the Amendment Act, 2002 have the effect of repealing the provisions added by way of amendments to the Code by the State Legislatures and the High Court’s after commencement of the above Amendment Acts. In this context, the concept of repugnancy assume great importance, which I shall address in the subsequent paragraphs.
12. Third party procedure envisaged under Order VIIIA of the Code was inserted, along with other amendments, in the First Schedule to the Code, by notification No.B1-3312/1958 dated 07.04.1959 in the Kerala Gazette No.23 dated 09.06.1959. It can be seen from the notification that the High Court of Kerala with the previous approval of the State Government made the amendments.
13. First of all, I shall deal with the source of power for adding Order VIIIA to the Code. Section 121 falling within Part X of the Code says that Rules in the First Schedule shall have the effect as if enacted in the body of the Code until annulled or altered in accordance with the provisions of that Part. Section 122 of the Code recognizes the power of certain High Courts to make rules. High Courts, which are not Courts of Judicial Commissioner, posses the power to make rules. The Section is quoted hereunder for profit:
“122. Power of certain High Courts to make rules.- High Courts not being the Court of a Judicial Commissioner may, from time to time after previous publication, make rules regulating their own procedure and the procedure of the Civil Courts subject to their superintendence, and may by such rules annul, alter or add to all or any of the rules in the First Schedule.”
Section 126 of the Code specifies that rules made under Section 122 shall be subject to the previous approval of the State Government in which the court, whose procedure the rules regulate, is situate or if the court is not situate in any State, then with the approval of Central Government.
14. Another relevant provision is Section 128 of the Code. For the purpose of this case, I need only refer to Sub-sections (1) and (2)(e) of Section 128 of the Code. Those provisions are excerpted hereunder:
“128. Matter for which rules may provide.-
(1) Such rules shall be not inconsistent with the provisions in the body of this Code, but, subject thereto, may provide for any matters relating to the procedure of Civil Courts.
(2) In particular, and without prejudice to the generality of the powers conferred by subsection (1), such rules may provide for all or any of the following matters, namely:-
(e) procedure where the defendant claims to be entitled to contribution or indemnity over against any person whether a party to the suit or not;
When a challenge was earlier made against sustainability of Order VIIIA of the Code, a learned Single Judge in Union of India v. Anchery Lonappan and others (AIR 1980 Kerala 180) took following view:
“Order VIIIA was inserted in the Code by the Kerala High Court by virtue of powers vested in it under Sections 122 and 128 of the Code. As per Section 157, an amendment like the one inserting Order VIIIA will continue to have the same force and effect as any other provisions of the Code so long as the same is not inconsistent with other provisions. Section 97 of the Code of Civil Procedure (Amendment) Act 1976 also saves it, as it is not in any way inconsistent with the amended provisions. Hence, Kerala Amendment inserting O.VIIIA in the Code for 'Third Party Procedure' by notification published in Kerala Gazette dated 9-6- 1959 is unaffected by the Amendment Act of 1976 (which came into force on 1-2-1977). As per O.VIIIA, Rule 1, the court is bound to issue notice to third party when an interim application has been made thereunder to implead him though it is not bound to implead a party under it.”
Notwithstanding subsequent relevant pronouncements by the apex Court, a view almost similar to that in Anchery Lonappan was taken by a Single Judge in Kunnoth Moidu v. Mohammed Iqbal Shah and others (2014 (4) KHC 92). Decisions of the Supreme Court touching on the point was not considered in Kunnoth Moidu. In a review petition in the above case, the learned Judge reasserted the same view (see Mohammed Iqbal Shah v. Kunnoth Moidu (2017 (1) KLT 782).
15. The position now canvassed is that the above view is incorrect in the light of the pronouncements by the Supreme Court, apropos of the scope of Amendment Act, 1976, especially Section 97 of the said Act.
16. To begin with, I shall extract Section 97(1) and (3) of the Amendment Act, 1976:
“97. Repeal and savings.
(1) Any amendment made, or any provision inserted in the principal Act by a State Legislature or a High Court before the commencement of this Act shall, except in so far as such amendment or provision is consistent with the provisions of the principal Act as amended by this Act, stand repealed.
(3) Save as otherwise provided in subsection (2), the provisions of the principal Act, as amended by this Act, shall apply to every suit, proceeding, appeal or application, pending at the commencement of this Act or instituted or filed after such commencement, notwithstanding the fact that the right, or cause of action, in pursuance of which such suit, proceeding, appeal or application is instituted or filed, had been acquired or had accrued before such commencement.”
Section 97(2) of the said Act deals with the impact of amendment to various provisions in the principal Act. Since that Sub-section has no relevance to the case on hand, I do not venture to elaborate on it.
17. Section 97(1) of the said Act clearly proclaims that any amendment made or any provision inserted in the principal Act by a State Legislature or a High Court before commencement of the amending Act shall, except insofar as such amendment or provision is consistent with the provisions of the principal Act, as amended by the Amendment Act, 1976, stand repealed. It is amply clear that intendment of the said provision was to prune or snip the provisions added by the State Legislatures or the High Court’s which are not consistent with the amended principal Act.
18. Sub-section (3) of Section 97 of the Amendment Act, 1976 unambiguously show that except as otherwise provided in Sub-section (2) of the Section, amended provisions of the principal Act shall apply to every suit, proceeding, appeal or application pending at the commencement of the Amendment Act. They will apply to such suit, proceeding, etc. instituted or filed after such commencement, notwithstanding the fact that the right or cause of action for the suit, proceeding, appeal, etc. had been acquired before commencement of the amended principal Act. This provision clarifies that the Amendment Act was intended to commence forthwith and the procedure in respect of matters pending and those are to be filed after the Amendment Act should be governed by the amended principal Act.
19. Before making any observation regarding the above decisions by the Single Judges, I shall deal with the relevant decisions rendered by the Supreme Court explaining the scope of Section 97 of the Amendment Act, 1976.
20. First decision to be considered in this context is Ganpat Giri v. IInd Additional District Judge, Balia and others (AIR 1986 SC 589). It is mentioned in the opening sentence that the Supreme Court was principally concerned in the case with the effect of Section 97 of the Amendment Act, 1976 on any amendment made or any provision inserted in the Code by a State Legislature or a High Court prior to the commencement of the Amendment Act, 1976, ie., prior to 1st February, 1977, in the different local areas in India where the Code is in force, if they were inconsistent with the provisions of the Code, as amended by the Amendment Act.
21. Relevant facts, as revealed from the judgment, show that the 3rd respondent obtained a decree for recovery of money on 29.07.1977 against the appellant before the apex Court. In execution of the said decree, immovable property belonging to the appellant was brought to sale on 04.08.1978 and in the court sale, 3rd respondent was declared as the successful bidder. Before the sale was confirmed, on 12.08.1978 the appellant filed an application for setting aside the sale under Order XXI Rule 90 of the Code on several grounds. Later he filed another application stating that the sale was liable to be set aside as the 3rd respondent, who was the decree holder, had not obtained permission from the executing court, under Order XXI Rule 72(1) of the Code, for participating in the auction. Executing court upheld the plea of the judgment debtor (appellant) and the sale was set aside on 20.02.1979. Application filed under Order XXI Rule 90 of the Code was dismissed as not pressed. 3rd respondent, aggrieved by the decision, filed a revision before the District Court. That Court dismissed the revision petition on 13.10.1980. Against that decision, the 3rd respondent approached the High Court under Article 226 of the Constitution of India. That petition was allowed by the High Court holding that the case was governed by Order XXI Rule 72 of the Code as it was in force in the State of Uttar Pradesh before the Amendment Act, 1976 came into force. Supreme Court noticed that both the executing court and the District Court had upheld the contention of the judgment debtor that on the commencement of the Amendment Act by virtue of Section 97 thereof the local amendment made to Order XXI Rule 72 of the Code, prior to that date, ceased to operate and Code, as amended by the Amendment Act, applied to the case. In the said factual matrix, the Supreme Court decided the case and made the following observations in paragraphs 3 and 4:
“3. The principal Act referred to in S. 97 is the Code. By the Amending Act several amendments were carried out to the Code on the basis of the recommendations of the Indian Law Commission which had considered extensively the provisions of the Code before it submitted its 54th Report in 1973. By the time, the Law Commission took up for consideration the revision of the Code, there were in force in different parts of India several amendments to the Code which had been effected by the State Legislatures or by the High Courts. The subject of civil procedure being in Entry 13 of List III of the Seventh Sch. to the Constitution, it is open to a State Legislature to amend the Code insofar as its State is concerned in the same way in which it can make a law which is in the Concurrent List. S. 122 of the Code empowers the High Courts to make rules regulating the procedure of civil courts subject to their superintendence as well as rules regulating their own procedure. These rules no doubt must not be inconsistent with the body of the Code. But they can amend or add to rules in the First Sch. to the Code. S. 129 of the Code which is overlapping on S. 122 of the Code to some extent confers power on the Chartered High Courts to make rules as to their original civil procedure. As mentioned earlier, before the Amending Act came into force on Feb. 1, 1977 many of the provisions of the Code and the First Sch. had been amended by the State Legislatures or the High Court’s as the case may be and such amended provisions had been brought into force in the areas over which they had jurisdiction. When the Amending Act was enacted making several changes in the Code Parliament also enacted S. 97 providing for repeals and savings and the effect of the changes on pending proceedings.
4. There are three sub-sections in S. 97 of the Amending Act. A reading of S. 97 of the Amending Act shows that it deals with the effect of the Amending Act on the entire Code both the main part of the Code consisting of sections and the First Sch. to the Code which contains Orders and Rules. S. 97(1) of the Amending Act takes note of the several local amendments made by a State Legislature and by a High Court before the commencement of the Amending Act and states that any such amendment shall except insofar as such amendment or provision is consistent with the provisions of the Code as amended by the Amending Act stands repealed, It means that any local amendment of the Code which is inconsistent with the Code as amended by the Amending Act would cease to be operative on the commencement of the Amending Act, i.e., on Feb. 1, 1977. The repealing provision in S. 97(1) is not confined in its operation to provisions of the Code including the Orders and Rules in the First Sch. which are actually amended by the Amending Act. The object of S. 97 of the Amending Act appears to be that on and after Feb. 1, 1977 throughout India wherever the Code was in force there should be same procedural law in operation in all the civil courts subjects of course to any future local amendment that may be made either by the State Legislature or by the High Court, as the case may be, in accordance with law. Until such amendment is made the Code as amended by the Amending Act alone should govern the procedure in civil courts which are governed by the Code. We are emphasising this in view of the decision of the Allahabad High Court which is now under appeal before us.”
In paragraph 11 the Supreme Court observed thus:
“11. Now reverting to S. 97(1) of the Amending Act, the High Court was in error in holding that because no amendment had been made to R. 72 by the Amending Act, S. 97(1) had no effect on the Rule as it was in force in the State of Uttar Pradesh before the commencement of the Amending Act. As observed earlier, the effect of S. 97(1) is that all local amendments- made to any of the provisions of the Code either by a State Legislature or by a High Court which were inconsistent with the Code as amended by the Amending Act stood repealed irrespective of the fact whether the corresponding provision in the Code had been amended or modified by the Amending Act and that was subject only to what was found in sub-sec. (2) of S. 97. Subsec. (3) of S. 97 provides that save as otherwise provided in sub-sec. (2) the provisions of the Code as amended by the Amending Act shall apply to every suit, proceeding, appeal or application pending at the commencement of the Amending Act or instituted or filed after such commencement notwithstanding the fact that the right or cause of action in pursuance of which such suit, proceeding, appeal or application is instituted or filed had been acquired or had accrued before such commencement. Sub-sec. (3) of S. 97 sets at rest doubts, if any, by making the Code as amended by the Amending Act applicable to all proceedings referred to therein subject to sub-sec. (2) of S. 97.”
22. A Bench consisting of two learned Judges of the apex Court in Kulwant Kaur v. Gurdial Singh Mann ((2001) 4 SCC 262) eminently considered applicability of Section 100 of the Code after the Amendment Act, 1976, vis-a-vis, Section 41 of the Punjab Courts Act, 1918. As a result of Amendment Act, 1976, a court of second appeal could not dispose of a matter unless a substantial question of law was formulated. Whether Section 41 of the Punjab Courts Act, which did not require formulation of such a question, was repugnant to the amended Section 100 of the Code? It was contended that Section 41 of the Punjab Courts Act had to be taken as negatived under the doctrine of implied repeal. The opposite party contended that on account of the saving provisions in Sections 4 and 100 (1) of the Code, the Punjab Courts Act had been saved and could not be declared repugnant to the amended Section 100 of the Code. It was further contended that in case of inconsistency, the Punjab Courts Act, being a special or local law, would prevail over the Code. Supreme Court in that factual background held that Section 97(1) of the Amendment Act, 1976 has an overriding effect as against any amendment or provision inconsistent with the provisions of the principal Act, viz., the Code. In that context, the decision in Ganpat Giri was relied on.
23. In yet another decision by a two Judge Bench, viz., Philomina Jose v. Federal Bank Ltd. and others (AIR 2006 SC 1162), the apex Court considered the scope of Rules 3, 5 and 8 of Order XXXIV of the Code with reference to the declaration of law in Ganpat Giri. But, it is pertinent to point out that both in Kulwant Kaur and Philomina Jose, a decision by a three Judge Bench of the Supreme Court in Pt.Rishikesh and another v. Salma Begum ((1995) 4 SCC 718), directly touching on Ganpat Giri, was not considered.
24. Decision in Pt.Rishikesh has a direct impact on the questions involved in this case, as it explicitly dealt with the principles laid down in Ganpat Giri. A batch of appeals, by certificate under Article 133 of the Constitution, arose from a judgment of the Full Bench of Allahabad High Court in Chandra Rani v. Vikram Singh (1979 All LJ 401), were considered by the Supreme Court. The respondents laid suits in the Courts of Small Causes for recovery of arrears of rent or for rent and possession from the appellants. On their committing default in payment of rent in the pending suits, their defences were struck off under Order XV Rule 5 of the Code as amended by the State amendment. Challenge was against the virus of Order XV Rule 5 prevailed in the State of Uttar Pradesh. On a reference, the Full Bench held that the amendment was not inconsistent with the Amendment Act, 1976 and not void under Article 254(1) of the Constitution. Based on Ganpat Giri, it was argued before the Supreme Court that object of the Central Act was that the Code should be uniform throughout India and that Uttar Pradesh Act came into force prior to the Central Act, which was brought into force on 01.02.1977. Further contention was that all the pre-existing amendments made by the appropriate State Legislature or High Court stood repealed. According to the contesting parties, Order XV Rule 5 of the Code as amended in Uttar Pradesh was one such prior amendment made by the State Legislature, which was inconsistent with the Central Act from the date of its commencement and by operation of Clause (1) of Article 254 of the Constitution, the State Act became void.
25. Interpreting Article 254 of the Constitution, following observations are made:
“9. The question, therefore, is whether Rule 5 of Order 15 is inconsistent with the Central Act and thereby became void under Article 254(1) of the Constitution? Entry 13 of the Concurrent List of the Seventh Schedule to the Constitution, namely, Civil Procedure, including all matters included in the Code of Civil Procedure, empowers Parliament and the Legislature of the State to make or amend the law in that behalf. The Legislature of the State has power to amend sections as well as Schedules to the Code while a High Court is empowered to amend the orders on the Schedules. The Central Act being an Amending Act to the Code of Civil Procedure Act, 1908 (5 of 1908), existing at the commencement of the Constitution, appropriate amendments are permissible. Article 254(1) envisages that
“If any provision of a law made by the Legislature of a State is repugnant to any provision of a law made by Parliament which Parliament is competent to enact, or to any provision of an existing law with respect to one of the matters enumerated in the Concurrent List, then, subject to the provisions of clause (2), the law made by Parliament, whether passed before or after the law made by the Legislature of such State, or, as the case may be, the existing law, shall prevail and the law made by the Legislature of the State shall, to the extent of the repugnancy, be void.”
Clause (2) of Article 254 is an exception to clause (1) which adumbrates that where a law made by the Legislature of a State with respect to one of the matters enumerated in the Concurrent List contains any provision repugnant to the provision of an earlier law made by Parliament or an existing law with respect to that matter, then, the law so made by the Legislature of such State shall, if it has been reserved for the consideration of the President and has received his assent, prevail in the State, provided that nothing in this clause shall prevent Parliament from enacting at any time any law with respect to the same matter including a law adding or amending, varying or repealing the law so made by the Legislature of the State. (emphasis supplied)”
In paragraph 15, the principles regarding repugnancy have been clearly mentioned:
“15. Clause (2) of Article 254 is an exception to clause (1). If law made by the State Legislature is reserved for consideration and receives assent of the President though the State law is inconsistent with the Central Act, the law made by the Legislature of the State prevails over the Central law and operates in that State as valid law. If Parliament amends the law, after the amendment made by the State Legislature has received the assent of the President, the earlier amendment made by the State Legislature, if found inconsistent with the Central amended law, both Central law and the State law cannot coexist without colliding with each other. Repugnancy thereby arises and to the extent of the repugnancy the State law becomes void under Article 254(1) unless the State Legislature again makes law reserved for the consideration of the President and receives the assent of the President. ...........”
26. In the above background, the observation in Ganpat Giri was examined by the learned Judges in paragraph 20. Following are relevant for our purpose:
“ The ratio therein must be understood in the light of the facts therein. Rule 72 of Order 21 CPC was amended by the State Legislature, equally the Central Act repealed the existing rule and reenacted the rule so as to be self-operative and complete code consistent with the development of the law. Therefore, the Bench held that State Amendment since was not consistent with the Central Act, the State Amendment was declared repugnant to the Central Act. Therefore, it became void unless it was re-enacted by the State Legislature, reserved for consideration and received the assent of the President. The ratio on the facts in that case is unexceptionable but observations which we have noted above gave rise to a construction advanced by the counsel. The wide construction put up by the Bench with due respect does not appear to be sound. .........”
27. In Pt.Rishikesh, the Supreme Court was called upon to pronounce on the distinction between “making the law” and “commencement of the operation of an Act”. It has been observed that inconsistency in the operation of the Central and State laws would generally arise only after the respective Acts commenced their operation. Section 3(13) of the General Clauses Act defines “commencement” to mean the day on which the Act or Regulation comes into force. It is further observed that Article 254(1) and (2) and in a way Section 97 of the Amendment Act, 1976 are also alive to the distinction between “making the law” and “commencement of law”. It is therefore held that although Rule 5 of Order XV was inserted by the Uttar Pradesh State Legislature before commencement of the Amendment Act, 1976, since the provision was not inconsistent with the Central Act it was not repealed.
28. The principle that can be deduced from Pt.Rishikesh is that the condition precedent to bring about repugnancy should be that there must be an amendment to the principal Act under a Central Act and the previous amendment made by a State Legislature or a provision made by a High Court must occupy the same field and operate in a collision course. If that is so, the State Act or the provision made by a High Court inconsistent with or incompatible with the Central Act becomes void, unless it is reenacted, reserved for consideration and received assent of the President after the Central Act made by the Parliament.
29. In Pt.Rishikesh, it was specifically found by the Supreme Court that Rule 5 of Order XV, as amended by the State Act, was on a subject not occupied by the Central Act and therefore the State Act remained to be a valid law after the Amendment Act, 1976. Contention that all pre-existing amendments stood obliterated unless a fresh amendment by the State Legislature or a High Court was made after 01.02.1977 reserved for consideration and received the assent of the President was not accepted by the Supreme Court.
30. View taken in Pt.Rishikesh's case was doubted when State of Kerala v. Mar Appraem Kuri Co.Ltd. ((2012 (7) SCC 106) came up for consideration before the Supreme Court. Accordingly, the matter was placed before a Constitution Bench to decide with certitude the following questions:
(1) Whether making of the law or its commencement brings about repugnancy or inconsistency as envisaged in Article 254(1) of the Constitution?
(2) The effect in law of a repeal.
In that case, the question posed for determination was whether Kerala Chitties Act, 1975 became repugnant to the Chit Funds Act 40 of 1982 (Central Act) under Article 254(1) of the Constitution upon making of the Central Act or whether the Kerala Chitties Act, 1975 would become repugnant to the Central Act as and when the notification under Section 1 (3) of the Central Act, bringing the Central Act into force in the State of Kerala, was issued.
31. The Bench, after considering the relevant constitutional provisions and the precedents on the subject, made the following observations:
“30. That, in Deep Chand v. State of U.P. (AIR 1959 SC 648), three principals were laid down as indicative of repugnancy between a State law and a Central law, which have to be borne in mind by the State Legislature whenever it seeks to enact a law under any entry in the Concurrent List. Thus, where there is a Central law which intends to override a State law or where there is a Central law intending to occupy the field hitherto occupied by the State law or where the Central law collides with the State law in actual terms, then the State Legislature would have to take into account the possibility of repugnancy within the meaning of Article 254 of the Constitution. In this connection, it was submitted that Tests 1 and 2 enumerated in Deep Chand do not require the Central law to be actually brought into force for repugnancy between two competing legislations to arise in the context of Article 254 of the Constitution.”
Observations in paragraphs 47 and 48 are also relevant:
“47. The question of repugnancy between parliamentary legislation and State legislation arises in two ways. First, where the legislations, though enacted with respect to matters in their allotted spheres, overlap and conflict. Second, where the two legislations are with respect to matters in the Concurrent List and there is a conflict. In both the situations, the parliamentary legislation will predominate, in the first, by virtue of non obstante clause in Article 246(1); in the second, by reason of Article 254(1).
48. Article 254 (2) deals with a situation where the State legislation having been reserved and having obtained the President's assent, prevails in that State; this again is subject to the proviso that Parliament can again bring a legislation to override even such State legislation.”
Finally, the Constitution Bench concluded that repugnancy arises “on the making and not on commencement” of the Central Act. The law laid down in Pt.Rishikesh has been affirmed. The Constitution Bench reaffirmed the principle that where there is a Central law which is intended to override a State law or where there is a Central law intending to occupy the field hitherto occupied by the State law or where the Central law collides with the State law in actual terms, then the State Legislature would have to take into account the possibility of repugnancy within the meaning of Article 254 of the Constitution. On this premise, I shall examine the legal justification for Order VIIIA to continue in the Code.
32. As mentioned earlier, drawing power from Section 128(1) and (2)(e) of the Code, the above said provision was added. Apparent object of such a provision is to avoid multiplicity of proceedings.
33. The expressions “multiplicity of proceedings” or “multiplicity of actions”, according to Black's Law Dictionary, is the existence of two or more law suits litigating the same issue against the same defendant. If I am to illustrate; assume A filing a suit against B on the basis of a cause of action. At that time, if A had another cause of action against B, which could have been legally clubbed with the cause of action in the suit, then, instead of filing a second suit, the law permits A to file a composite suit against B based on the causes of action. This is an instance where multiplicity of proceedings can be avoided. In the above illustration, if B, the defendant, has a cause of action accrued against A, either before or after A filing the suit, but before B has delivered his defence or time allowed has not expired, B can raise a counter claim in A's suit to avoid multiplicity of proceedings. Phrases “multiplicity of proceedings” or “multiplicity of actions” connote plurality of litigations between the same parties in respect of causes of action existing at a given point in time. In the garb of avoiding multiplicity of proceedings, A cannot file a single suit against B and C, if causes of action against them are entirely different, especially when law does not permit joinder of causes of action. With this understanding, I shall examine the provisions in Order VIIIA of the Code as it now stands.
34. Rule 1 of Order VIIIA of the Code says that where a defendant claims to be entitled to contribution from or indemnity against any person not already a party to the suit (a third party) he may by leave of the court issue a notice (a third party notice) to that effect with the seal of the court. The provision insists that such notice shall be filed into court with a copy of the plaint and shall be served on the third party according to the rules relating to service of summons.
35. Rule 2 speaks about the effect of notice. From the time of service upon the third party of the notice, he shall be deemed to be a party to the action with the same rights in respect of his defence against any claim made against him, if he had been duly sued in the ordinary way by the defendant. It shows that the defendant, who caused his impleadment, will be treated as plaintiff for the purpose of his defence.
36. Rule 3 is very important. If the third party desires to dispute the plaintiff's claim in the suit, as against the defendant on whose behalf the notice has been given or his own liability to the defendant, the third party may enter appearance in the suit on or before the date fixed for his appearance. If he does not enter appearance, he shall be deemed to admit validity of the decree that may be obtained against such defendant, whether by consent or otherwise and his own liability to contribute or indemnify, as the case may be, to the extent claimed in the third party notice.
37. Another provision worthy to be noticed is Rule 6 of Order VIIIA of the Code. It reads thus:
“Leave to defend.-The court may upon the hearing of the application mentioned in Rule 5, give the third party liberty to defend the suit upon such terms as may be just, or to appear at the trial and take such part therein as may be just, and generally may order such proceedings to be taken, documents to be delivered or amendments to be made, and give such directions as appear proper for the most convenient determination of the question or questions in issue, and as to the mode and extent in or to which the third party shall be bound or made liable by the decree in the suit.”
On a perusal of the above Rule, it will be clear that in a given case the court has discretion and power to do all necessary things, determine all questions between the parties to the suit and all questions raised by the parties to the suit vis-a-vis the third party.
38. Rule 8 is also relevant. It speaks about the questions between co-defendants. The provision clearly shows that where a defendant claims to be entitled to contribution from or indemnity against any other defendant to the suit, a notice may be issued and the same procedure shall be adopted for determination of such question between the defendants, as if the last mentioned defendant were a third party. However, it provides that nothing contained in the provision shall prejudice the right of the plaintiff against any defendant in the suit.
39. Rule 9 allows a third party, who has been brought on record, to issue a notice with the leave of court to another third party, if the former claims to be entitled to contribution from or indemnity against the latter. By resorting to Rule 9 of Order VIIIA of the Code, any number of parties can be added, if the qualifications prescribed therein are satisfied.
40. Sri.P.B.Krishnan strongly contended that the provisions in Order VIIIA of the Code, as it now stands, are not only in conflict with the provisions in the parent Act as amended by Amendment Acts, 1976 and 2002, but also tend to cause prejudice to a plaintiff, who does not want to fight against a third party.
41. It is important to note that at no point of time a provision akin to Order VIIIA was there in the Central Act (Code). High Court of Kerala ostensibly with the avowed object of preventing prolific litigations added the provision. One of the parameters for understanding whether there is repugnancy between the parent Act and the amended provisions of the Code is to see whether the Central law as amended intended to occupy the field hither to occupied by the law enacted by the State. As mentioned earlier, since no provision existed at any time in the parent Act, similar to Order VIIIA, it cannot be stated at first blush that the provisions therein are in conflict with the parent Act.
42. Another aspect to be reckoned for determining repugnancy, according to the Constitution Bench decision in Mar Appraem, is whether the State law in actual terms collides with the Central law. If that be so, the State law will have to take into account the possibility of repugnancy within the meaning of Article 254 of the Constitution. In order to buttress this contention, Sri.P.B.Krishnan relied on certain provisions in the amended Code. According to him, the provisions in Order VIIIA are in conflict with those in Order II Rules 1 and 3 of the Code.
43. Order II Rule 1 says that every suit shall as far as practicable be framed so as to afford ground for final decision upon the subjects in dispute and to prevent further litigation concerning them. It is emphasised by the learned counsel that Order VIIIA will only help to widen the scope of dispute by allowing parties to join issues not only with the defendant in the suit, at whose instance a third party was impleaded, but also giving him an opportunity to fight against an unwilling plaintiff. This, according to the learned counsel, is a direct conflict between the provisions.
44. Order II Rule 3 is about joinder of causes of action. It reads thus:
“Joinder of causes of action.- (1) Save as otherwise provided, a plaintiff may unite in the same suit several causes of action against the same defendant, or the same defendants jointly; and any plaintiff having causes of action in which they are jointly interested against the same defendant or the same defendants jointly may unite such causes of action in the same suit.
(2) Where causes of action are united, the jurisdiction of the Court as regards the suit shall depend on the amount or value of the aggregate subject-matters at the date of instituting the suit.”
It is argued by the learned counsel for the respondent that a plaintiff, who has no cause of action against a third party, shall not be compelled to fight against him and further, the third party shall not be permitted to fight against the plaintiff too. Under the scheme of Order VIIIA, a third party added at the instance of the defendant gets a right to question the plaintiff's claim as well, although the plaintiff in a given case may not be interested in fighting against the third party. This is also another area of conflict, according to the learned counsel.
45. Provisions in Order II Rules 1 and 3 of the Code remain unchanged after the two amendments. Provisions in Order VIIIA and the aforementioned provisions co-existed without any conflict. Therefore, without identifying any other provision in the amended Code, which is in conflict with Order VIIIA, it may not be possible to accept the respondent's contentions.
46. Another provision, which is said to be incongruous to Order VIIIA, is Order II Rule 6 of the Code. It now reads thus:
“Power of Court to order separate trials.-
Where it appears to the Court that the joinder of cause of action in one suit may embarrass or delay the trial or is otherwise inconvenient, the Court may order separate trials or make such other order as may be expedient in the interests of justice.”
As per Section 53 of the Amendment Act, 1976, the original provision was substituted by the above provision. Before the said amendment, the original provision was thus:
“Power of Court to order separate trials. Where it appears to the Court that any causes of action joined in one suit cannot be conveniently tried or disposed of together, the Court may order separate trials or make such other order as may be expedient.”
The object sought to be achieved by the substituted provision is clear. If a court finds that joinder of causes of action in one suit may embarrass or delay the trial or is otherwise inconvenient, it may order separate trials or make such other order as may be expedient in the interests of justice. Solemn object of this provision, certainly, is to have a speedy and fair trial. Unnecessary issues raked up in a suit, which may cause difficulties, embarrassment or delay in the trial process, are sought to be eliminated by the substituted provision. Learned counsel for the petitioner vehementally contended that the provisions in Order VIIIA of the Code openly militate against Order II Rule 6 of the Code. It is further contended that by operation of the said provision if the plaintiff, who is the dominus litis (master of the suit), cannot cause embarrassment or delay in the trial, certainly the defendant also cannot unnecessarily protract the litigation. It will be all the more clear when we understand that the two amendments to the Code were made with the solemn object of resolving the disputes effectively and within the shortest possible time.
47. The statement of objects and reasons to the Amendment Act, 1976 show that the 14th report of the Law Commission indicated broad lines about the “Reform of Judicial Administration” on which the Commission wanted revision of the Code. A detailed and comprehensive examination of the question of revision of the Code was undertaken by the Commission in its 27th report. While making the recommendations, the Law Commission took into consideration the recommendations made by the 14th report, the amendments made by various State Legislatures in the body of the Code, the amendments made in the Orders by the various High Courts and the Rules of Procedure in the United Kingdom. A bill incorporating the recommendations made by the Law Commission in the 27th report was introduced in the Parliament. That Bill was referred to a Joint Committee of both Houses of Parliament. While the Bill was pending before Lok Sabha, it lapsed owing to the dissolution of that House. Before re-introducing the Bill, the Law Commission was requested to further examine the Code from the basic angle of minimising costs, avoiding delay in litigation, implementing the directive principles and resolving divergence of judicial opinions with regard to certain provisions of the Code. The Law Commission submitted its 54th report on the Code in February, 1973. In this report the recommendations by the Law Commission in its 14th and 27th reports have also been considered. I shall extract paragraph 5 from the statement of objects and reasons for completeness of discussion:
“After carefully considering the recommendations made by the Law Commission in its Twenty-seventh, Fortieth, Fifty-fourth and Fiftyfifth Reports, the Government have decided to bring forward the present Bill for the amendment of the Code of Civil Procedure, 1908, keeping in view, among others, the following basic considerations, namely:-
(i) That a litigant should get a fair trial in accordance with the accepted principles of natural justice;
(ii) That every effort should be made to expedite the disposal of civil suits and proceedings so that justice may not be delayed;
(iii) That the procedure should not be complicated and should, to the utmost extent possible, ensure fair deal to the poorer sections of the community who do not have the means to engage a pleader to defend their cases.”
48. If one scans through the statement of objects and reasons of the Amendment Act, 2002, it can be seen that it was also introduced to avoid hardship to the litigants and also to achieve consistency for fair play and justice.
49. It is axiomatic that speedy trial is a constitutional right, under Article 21 of the Constitution, recognized by superior courts. In many decisions including that in Salem Advocate Bar Association v. Union of India ((2005) 6 SCC 344) the apex Court reiterated the necessity of speedy trial. If, at the volition of a defendant, a third party is added to a suit and at the instance of that third party, another third party is added, the chain may elongate causing untold prejudice and hardship to the plaintiff. Therefore the provisions in Order VIIIA are anathema to the concept of speedy trial.
50. Besides, Order II Rule 1 of the Code clearly says that every suit shall, as far as practicable, be framed so as to afford ground for final decision upon the subjects in dispute and to prevent further litigation concerning them. I do not think that on the pretext of preventing multiplicity of proceedings, the framers of the Code ever intended to make a suit complicated by adding parties with whom the plaintiff does not wish to fight. Further, addition of more and more parties at the instance of the defendant or at the instance of newly added third party will only complicate, obfuscate or digress the real issue brought by the plaintiff before the court. Above all, if in a case the plaintiff has no cause of action against the third party, then there is no question of avoiding multiplicity of proceedings by adding a third party. Then, addition of a third party to a suit cannot be justified on the ground of avoiding multiplicity of proceedings. Power of the court to add or strike out parties dehors application of a party to the suit, as provided in Order I Rule 10(2) of the Code, is a safeguard to see that all the proper or necessary parties are brought on record for a complete, effective and justiciable adjudication of the case. Provision in Order II Rule 6 of the Code, after its substitution by the Amendment Act, 1976, and most of the provisions in Order VIIIA, added by the State amendment, are in collision course. Therefore it can only be seen that the Central law collides with the State law in actual terms. For the above reason, I find that Order VIIIA is repugnant to the Code, as amended by the Amendment Act, 1976. Hence, I am of the definite view that the provisions in Order VIIIA ceased to operate after the Amendment Act, 1976 as it was repealed. In order to make it operative the State Legislature should again enact a law and obtain assent of the President.
51. Having found so, the remaining question to be answered is whether a Single Judge can differ from the views expressed in Anchery Lonappan, Kunnoth Moidu and Mohammed Iqbal Shah without referring them to a larger Bench. In other words, whether those pronouncements oblige a Single Judge to follow them as binding precedents. I hold a definite view, with great respect, that those decisions do not constitute binding precedents in the context of this case. I shall set out the reasons.
52. Judgment in Anchery Lonappan's case was pronounced much before the verdicts by the Supreme Court in Ganpat Giri and Pt.Rishikesh. Therefore, in the light of those pronouncements and also by the decisions in Kulwant Kaur and Philomina Jose (supra), I find no difficulty to come to a conclusion that the decision in Anchery Lonappan's case cannot be regarded as a binding precedent for the reason that the effect of Section 97 of the Amendment Act, 1976 was not considered in the manner in which it was done in the above decisions. Hence, it can be safely concluded that the decision in Anchery Lonappan's case no longer holds the field.
53. Learned Single Judge in Kunnoth Moidu's case has referred to Prabhakara Prabhu v. Canara Bank (1996 (1) KLT 682) and followed the decision to a great extent. That was also a decision by a Single Judge. The facts in Prabhakara Prabhu's case show that in a suit for recovery of money advanced by a bank, the defendant filed a written statement disputing the claim. From the narration of facts in the judgment it can be seen that the revision petitioner before this Court (4th defendant in the suit) was having a contention that a third party had orally agreed to contribute to or indemnify against his liabilities towards the bank. However, no such contention was raised in the original written statement. Subsequently he filed an additional written statement making an averment that the counter petitioner (third party) was liable to indemnify the petitioner against the bank's claim. The plaintiff opposed initiation of a third party proceedings on the ground that the suit would be protracted, if the petition was allowed. Further, it was contended that impleading a third party would cause inconvenience to the plaintiff. In the light of the aforementioned factual settings this Court formulated following principles regarding the scope and applicability of the provisions in Order VIIIA of the Code:
“(1) The defendant must show that there exists a prima facie case and there are bona fides in his claim against the third party.
(2) While considering the petition under Rule 1 of Order 8A, the Court must be satisfied that the plaintiff is not unduly embarrassed or put to additional expense or difficulty. If the adjudication of the question between the defendant and the third party would embarrass the plaintiff in his trial, the court generally exercises its discretion by ordering the trial of those issues subsequent to the trial of the action.
(3) The Court will dismiss the application if it is found that the claim is outside contribution or indemnity.
(4) The Court will dismiss the application if the case is one of two great complication or difficulty to be properly tried in the original action and if the Court finds that these matters cannot be properly tried together with the original action.
(5) The Court cannot refuse to implead third parties merely on the ground of inconvenience to plaintiff.
(6) The Rule applies irrespective of the fact whether the suit claim is admitted by the defendant or not and is not limited to a claim out of the same transaction or simultaneous transaction.
(7) There need not be any privity of contract between the plaintiff and the third party for application of the provisions of Order 8A C.P.C.
(8) The third party has every right to contest his liability to contribute or to indemnify the defendant; he can also step into the shoes of the defendant and fight the defendant on all grounds, which are available to the defendant himself.
(9) The Court must consider the question of maintainability of the suit before issuing third party notice on the defendant's petition.”
This decision was followed in Kunnoth Moidu's case by the learned Single Judge.
54. Learned counsel strongly contended that from Prabhakara Prabhu's case, it will be clear that this Court had taken cognizance of the difficulty and inconvenience that would be faced by a plaintiff, if a third party was impleaded in a suit against his volition. According to the learned counsel, the observations in paragraphs 2 and 5 quoted above are diametrically opposite to the statutory provisions in Order II Rule 6 of the Code. On a perusal of Order II Rule 6 of the Code, it can be seen that the observations are not only against the spirit of the amended provision, but also runs contrary to the stipulations therein.
55. It is further pointed out that as per the ratio in Prabhakara Prabhu's case, there need not be any privity of contract between the plaintiff and the third party for applying the provisions of Order VIIIA. Such an interpretation will militate against Order I Rule 3 of the Code, which says that all persons may be joined in one suit as defendants where any right to relief in respect of or arising out of the same act or transaction or series of acts or transactions is alleged to exist against such persons, whether jointly, severally or in the alternative. Further condition to apply Order I Rule 3 of the Code is that if separate suits were brought against such persons, any common questions of fact or law would arise. In a third party procedure contemplated under VIIIA of the Code, none of these conditions is required to be satisfied. Learned counsel, therefore, contended that the law laid down in Prabhakara Prabhu's case, without referring to any of the binding precedents referred to above, pronounced by the Supreme Court, also cannot be treated as a precedent touching on the present issue. It is pertinent to note that as such there was no challenge against legality and sustainability of Order VIIIA in that case. Although, it was rendered on 12.03.1996, i.e., much after pronouncements in Ganpat Giri and Pt.Rishikesh, the ratio therein was not considered in Prabhakara Prabhu.
56. Learned Single Judge in Kunnoth Moidu's case simply applied the ratio in Prabhakara Prabhu's case without having regard to the aforementioned decisions of the Supreme Court. Therefore, the ratio in Kunnoth Moidu's case cannot be treated as a binding precedent regarding the issue involved in this case. Not only that, the right to have a continued existence for Order VIIIA of the Code was not specifically challenged in Kunnoth Moidu's case. It is therefore crystal clear that the ratio in both Prabhakara Prabhu and Kunnoth Moidu do not stand in the way of me deciding the legality of Order VIIIA after the said amendments to the Code.
57. The provisions in Order VIIIA of the Code indirectly came up for consideration before a Division Bench of this Court in Federal Bank Ltd. v. C.K.Jayapalan (2016 (3) KLT 493). On the facts and circumstances in that case, Division Bench distinguished the decision in Prabhakara Prabhu's case and found that the provisions in Order VIIIA of the Code were not applicable to the case on hand. Therefore, the above judgment also do not make any pronouncement on the legality and sustainability of Order VIIIA .
58. A review petition was filed in Kunnoth Moidu's case. It was considered by the learned Single Judge (Mohammed Iqbal Shah's case). Three grounds were urged for reviewing the order. First ground was that the review petitioner was not served with a notice in the revision. That contention was repelled finding that he never contested the matter before the court below and it was further observed that no prejudice was caused to the review petitioner on account of disposal of the case.
59. Second ground urged for review was that the provisions in Order VIIIA of the Code inserted by the State amendment would not survive the Amendment Act, 2002. Despite raising this contention, none of the binding precedents mentioned above was considered by the learned Single Judge to find if the provisions in Order VIIIA survived the Amendment Act, 2002. Interestingly, the effect of Amendment Act, 1976 was also not considered. If the provisions in Order VIIIA of the Code did not outlive the Amendment Act, 1976, then there is absolutely no reason to find any impact on it by the Amendment Act, 2002, because of the fact that it could not be operative in 2002. As the law in Mohammed Iqbal Shah's case was rendered without regarding either Section 97 of the Amendment Act, 1976 or Section 16 of the Amendment Act, 2002 or the relevant precedents on the point, I am afraid, I can only hold that the decision is per incuriam.
60. The rule of per incuriam was evolved in order to guard against the possibility of inconsistent decisions on same points of law by different courts. A Constitution Bench of the Supreme Court in A.R.Antulay v. Ramdas Sriniwas Nayak and another (AIR 1984 SC 718) observed thus:
“Per incuriam are those decisions given in ignorance or forgetfulness of some inconsistent statutory provision or of some authority binding on the court concerned, so that in such cases some part of the decision or some step in the reasoning on which it is based, is found, on that account to be demonstrably wrong.” Further, it was observed: “It is settled rule that if a decision has been given per incuriam the court can ignore it”. This decision was followed by a three Judge Bench of the Supreme Court in Rattiram and others v. State of M.P. through Inspector of Police (AIR 2012 SC 1485). The above principle has been restated by a two Judge Bench of the Supreme Court in Panduranga v. State of Karnataka (2013 (1) KLT 874). Therefore, the principle that a decision rendered per incuriam is not a binding precedent is no longer res integra.
61. Upshot of the above discussion is that in the above decisions, viz., in Anchery Lonappan, Prabhakara Prabhu and Kunnoth Moidu (supra) the learned Judges did not consider the legality or sustainability of the provisions in Order VIIIA of the Code after the Amendment Acts, 1976 and 2002. Hence those decisions are clearly distinguishable on many counts. Therefore those decisions cannot detain me from deciding on the sustainability of the provisions in Order VIIIA of the Code after the said amendments. The ratio in Mohammed Iqbal Shah's case is per incuriam as it was rendered without referring to the statutory provisions and binding precedents, despite raising a specific challenge against Order VIIIA. Therefore, that decision can be ignored as per incuriam in view of the pronouncement of law by the Supreme Court.
In the result, I hold that the provisions in Order VIIIA added by the State amendment, are in conflict with the amended Central law contained in Order II Rule 6 of the Code and therefore the said provisions stood repealed by Section 97 of the Amendment Act, 1976. I also hold that the provisions in Order VIIIA ceased to exist after 01.02.1977, the date of commencement of the Amendment Act, 1976. For the above reason, I find that the Amendment Act 2002 has no effect on the said provision.
In the result, both the original petitions are dismissed.