w w w . L a w y e r S e r v i c e s . i n



The Triveni Engineering & Industries Limited, Uttar Pradesh v/s The State of Karnataka, rep., by its Principal Secretary, Department of Co-operation & Others


Company & Directors' Information:- TRIVENI ENGINEERING AND INDUSTRIES LIMITED [Active] CIN = L15421UP1932PLC022174

Company & Directors' Information:- TRIVENI ENGINEERING AND INDUSTRIES LIMITED. [Amalgamated] CIN = U99999UP1997PLC022266

Company & Directors' Information:- TRIVENI ENGINEERING LIMITED [Active] CIN = U29119UP2006PLC032060

Company & Directors' Information:- TRIVENI ENGINEERING AND INDUSTRIES LIMITED [Not available for efiling] CIN = U99999DL1986PLC023275

Company & Directors' Information:- D P ENGINEERING INDUSTRIES LIMITED [Active] CIN = U27310DL2008PLC176856

Company & Directors' Information:- A K ENGINEERING INDUSTRIES (INDIA) PRIVATE LIMITED [Active] CIN = U25206DL1997PTC085204

Company & Directors' Information:- G L ENGINEERING INDUSTRIES PRIVATE LIMITED [Active] CIN = U28920MH1981PTC023662

Company & Directors' Information:- B V M ENGINEERING INDUSTRIES LIMITED [Active] CIN = U28111DL1972PLC005983

Company & Directors' Information:- R R R ENGINEERING INDUSTRIES PRIVATE LIMITED [Strike Off] CIN = U74899DL1993PTC055069

Company & Directors' Information:- A. V. ENGINEERING INDUSTRIES PRIVATE LIMITED [Strike Off] CIN = U99999DL1974PTC007360

Company & Directors' Information:- G D R ENGINEERING INDUSTRIES PVT LTD [Strike Off] CIN = U27109UP1971PTC003388

Company & Directors' Information:- L S ENGINEERING INDUSTRIES PRIVATE LIMITED [Strike Off] CIN = U74899DL1977PTC008484

Company & Directors' Information:- I B I ENGINEERING INDUSTRIES PRIVATE LIMITED [Strike Off] CIN = U45202PB1974PTC003422

Company & Directors' Information:- A H B ENGINEERING INDUSTRIES PVT LTD [Strike Off] CIN = U35999WB1988PTC044786

Company & Directors' Information:- O K ENGINEERING INDUSTRIES PRIVATE LTD [Active] CIN = U74899DL1987PTC027660

Company & Directors' Information:- R P ENGINEERING INDUSTRIES PRIVATE LIMITED [Strike Off] CIN = U99999DL1973PTC006781

Company & Directors' Information:- S V ENGINEERING INDUSTRIES PVT LTD [Under Liquidation] CIN = U74210TG1981PTC003174

Company & Directors' Information:- TRIVENI INDUSTRIES LIMITED [Active] CIN = U15122UP2015PLC072202

    W.A. Nos. 31266-31267 of 2013

    Decided On, 09 December 2013

    At, High Court of Karnataka Circuit Bench At Dharwad

    By, THE HONOURABLE MR. JUSTICE DILIP B. BHOSALE & THE HONOURABLE MR. JUSTICE B. MANOHAR

    For the Appellant: Shriharsh A. Neelopant, Advocate. For the Respondents: ------



Judgment Text

Dilip B. Bhosale, J.

1. We have heard Sri Subramanya Jois, Learned Senior Counsel for the appellants and Learned Additional Government Advocate Smt. K. Vidyavathi for the Respondent-State.

2. These appeals, by original respondent No.3 in writ petition, are directed against the Order dated 11th December, 2012 passed by the Learned Single Judge, whereby W.P. No. 13841/2006 has been finally allowed at the stage of admission. Since the order is short, it would advantageous to reproduce the same;

'Petitioners are the Directors of second respondent society. The second respondent society entrusted certain works to the third respondent under a deed of agreement dated 19-10-2000 as per Annexure-A. On the question of payment of certain money there came to be a dispute between second respondents and the third respondent. In the circumstances, the third respondent approached first respondent-Government by giving representations. On the basis of these representation a notice was issued to the second respondent. Now under the impugned orders at Annexure-B and B1 dated 16-12-2003 and 1-3-2004 respectively the Government directed the second respondent to pay certain money to the third respondent. Petitioners being the Directors of the second respondent are before this court.

2. As per Clause 19 of the agreement if there is any difference between the parties, then they have no work out their remedy by approaching an Arbitrator. Therefore, the impugned orders passed by the first respondent Government is without jurisdiction. On this ground alone the impugned orders are liable to be set-aside. Accordingly, the following:

ORDER

i) Petition is hereby allowed.

ii) The impugned orders at Annexure-B and B1 passed by the first respondent are hereby quashed.

iii) However, the third respondent is at liberty to proceed against the second respondent for recovery of money in accordance with the terms of the agreement/Annexure-A.

iv) Ordered accordingly.

3. Mr. Jois, Learned Senior Counsel for the appellant, at the outset, submitted that the Learned Single Judge was not justified in disposing of the writ petition finally, in favour of the petitioner, in view of the law laid down by this Court in LALBI vs. MODINAMMA@ MODINBEE AND OTHERS ILR 2012 KAR 4403, (FOR SHORT 'Lalbi'), Mr. Jois submitted that in the writ petition the Learned Single Judge after its restoration which was dismissed for non-prosecution, without issuing notice to the appellant decided the writ petition finally in favour of the respondent-petitioner, in his absence. He submitted that the appellant did not have a notice after its restoration either to show cause why rule nisi be not issued or that the petition would be heard and disposed of finally at the stage of admission. He, therefore, submitted that the order of the Learned Judge deserves to be set-aside.

4. It would be necessary to state few facts that are necessary and relevant to understand the controversy raised for out reconsideration. It appears that initially a notice was issued to the Respondents, including respondent No.3-appellant to show cause why 'rule nisi' should not be issued. The writ petition was filed before the Principal Bench and then it was transferred to the Circuit Bench at Dharwad after its establishment in 2008. When the writ petition was placed before the Court, none appeared for the petitioner and as a result thereof it came be to be dismissed for non-prosecution vide order dated 11th July, 2011. The order dated 11th July, 2011 reads thus:

'Service report received for the Court below indicates that the petitioners No.1 and 2 have been served personally and the petitioner No.3 has been served through his wife and the service is held to be sufficient by the endorsement of the Senior Civil Judge, Athani. Despite service of notice issued through Court, the petitioners have not made representation for appearance it appears that the petitioners are not interested in prosecuting the petition.

The petition therefore, stands dismissed for non-prosecution. Registry to dispatch the copies of this order to the petitioners.'

5. The petitioners, who are respondent Nos.3 to 5 in the present appeals, filed applications bearing I.A. Nos.1 and 2 of 2012 for condonation of delay and for recalling the order dated 11-7-2011. According to the appellant, the applications were not served on them or their Advocate, who was on record before the order of dismissal dated 11-07-2011 was passed. The order sheet placed on record at page No.276 supports this contention urged on behalf of the appellant.

6. The interim application was allowed vide Order dated 26-11-2012. The order dated 26-11-2012 reads thus:

'The first application is filed to recall the order dated 11-07-2011, dismissing the petition for Non-Prosecution.

The second application is filed to condone the delay in filing the first application.

I perused the affidavits in support of these applications. I am convinced with the explanation of the petitioners for not prosecuting the petition. I am of the opinion that one more opportunity is to be provided. However, on account of latches on the part of the petitioners, some inconvenience is caused ot the respondents. In the circumstances, the following:

ORDER

Applications are hereby allowed.

Delay is condoned.

7. After restoration of the writ petition, no fresh notice was issued either by the court or by the registry. The petition was heard by the Learned Judge on 11th December, 2012 and it was finally disposed of in favour of the petitioner. Though the order shows that Sri. Shankar Hegde Associates appeared for respondent No.3, Mr. Jois, Learned Senior Counsel, on instructions, submitted that after restoration of the writ petition, notice was not issued to the respondents nor Mr. Shankar Hedge, who was on record, was served. He submitted that Mr. Shankar Hedge did not appear when the writ petition was finally allowed. He further submitted that the order of restoration of the writ petition was not within the knowledge of the appellant nor was it communicated to the appellant by the petitioners-respondents 3 to 5 herein or by their Advocate. Mr. Jois, in support of this contention invited our attention to the letter/Email issued by Mr. Shankar Hegde and Associates, which is placed on record at page 264 dated 4th April, 2013. The text of the Email reads thus:

'I have been seeing the mails sent by you. I felt the proper way of reply will be to forward the certified copies of the application for restoration filed by petitioners, the restoration order passed, the copy of the cause list. I have applied for them and I will be forwarding the same on its receipt. Please bear in mind that neither myself nor my office is served with restoration application. In cause list the name of name of the office is shown as Hegade instead of Hegde. Therefore even the cause list didn’t reach us. As website is open anybody can see the status of the case and check on which dates the above said case referred by you was posted. I will be sending the certified copies within 4 to 5 days (soon after receiving the same). I have informed you telephonically about this fact several times.'

8. It is in this backdrop, Mr. Jois, Learned Senior Counsel submitted that it was not open to the Learned Single Judge to dispose of the writ petition finally in favour of the petitioners in the absence of the appellant-respondent No.3 for two reasons, one, after restoration of the petition notice was not issued for final disposal of the writ petition at the stage of admission as contemplated by Rule 13 of the Writ Proceedings Rules, 1977 (for short 'writ Rules'). He submitted that this Court in LALBI, had an occasion to consider the en tire scheme of the writ Rules including different Forms appended thereto and having considered that it has laid down the correct position of law. Two, he submitted that in any case, Learned Single Judge ought to have issued fresh notice to the respondent in the writ petition i.e., appellant after having restored the writ petition to file, making it clear that the writ petition would be heard and disposed of finally at the stage of admission. Mr. Jois also submitted, as a mater of fact, the Learned Single Judge ought to have issued notice even on the application for restoration since there was a delay in filing the same.

9. Smt. K. Vidyavathi, Learned Additional Government Advocate though could not and did not dispute the submission made by Mr. Jois insofar s the procedure is concerned, invited our attention to another judgment of the Division bench in K. PEDDANNA vs. THE MANAGEMENT OF KSRTC, DAVANAGERE DIVISION ILR 2013 KAR 4335, (for short 'K. Peddanna') presided over by K.L. MANJUNATHJ,J. In this judgment, after considering the judgment of the Division Bench in LALBI, the Division Bench as opined that the said judgment is per incuriam.

10. Having confronted with this and after having gone through the judgment of the Division bench in K. PEDDANNA, Mr. Jois, Leaned Senior Counsel submitted that it was not open to the Division bench in the said judgment tor pronounce the judgment of the co-ordinate Bench in LALBI per incuriam. He submitted that the Division Bench in K. PEDDANNA had no reason and/or was not justified in differing from the judgment of the co-ordinate Bench in LALBI, which decided the questions of law formulated therein. He submitted, if at all the Division Bench wanted to differ, they could have, at the most, recorded their differing opinion and referred it to the Full Bench. He submitted that in any case, the judgment of the Division Bench in LALBI which considered the entire Scheme of Rules and all Forms appended thereto cannot be termed as per incuriam. He submitted judicial discipline demands that the co-ordinate Bench after having recorded their differing view should refer the matter to the Full Bench. In support of his contention, he placed reliance upon the judgments of the Supreme Court in SUNDARJAS KANYALALBHATHIJA AND OTHERS vs. THE COLLECTOR, THANE, MAHARASHTRA AND OTHERS AIR 1990 SC 261, and in JAISRISAHU vs. RAJDEWAN DUBEY AND OTHERS AIR 1962 SC 83.

11. He also took us trough the judgments of the Supreme Court, to emphasize that why the judgment in LALBI cannot be held per incuriam, in MAYURAM SUBRAMANIAN SRINIVASAN vs. C.B.I. (2006) 5 SCC 752; in N. BHARGAVAN PILLAI vs. STATE OF KERALA (2004) 13 SCC 217; NARMADA BACHAO ANDOLAN vs. STATE OF MADHYA PRADESH AND ANOTHER AIR 2011 SC 1989. He also invited our attention to the Black’s Law Dictionary to explain what is per incuriam. Mr. Jois, Learned Senior Advocate also invited our attention to several paragraphs of the judgment in LALBI to contend that this judgment considers all relevant Rules including FORMS and answer the questions that were framed in paragraph 7 thereof. He also specifically invited our attention to paragraph 10 of the judgment, wherein the Division Bench made reference to the arguments advanced by designated Senior Advocates practicing in this Court for decades, including the Additional Advocate practicing in this Court for decades, including the Additional Advocate General and the request made by them to make it clear as to what procedure is contemplated by the Rules, which needs to be followed, while dealing with the writ petitions. He also invited our attention to some of the observations made by the Division Bench in K. PEDDANNA and submitted that this judgment does not refer to the scheme of the Rules and other relevant Forms. He submitted, as a matter of fact the judgment in K. PEDDANNA is per incuriam. In the circumstances, he prayed for making reference to the Full Bench to consider whether the law laid down by the Division Bench in LALBI can be held to be per incuriam.

12. Having regard to the relevant Rules, Smt. K. Vidyavathi, Learned Additional Government Advocate also joined him in making such request. She fairly submitted that the judgment of the Division Bench in LALBI cannot be termed as per incuriam.

13. In LALBI, the Division Bench framed the following questions for determination:

1) Whether the Learned Single Judge was right in disposing of the writ petition finally at the stage of admission in the absence of the appellant, who was respondent No.3 in the petition, though was served with the notice contemplated by the first proviso to Clause (a) of Rule 13 of the Writ Proceedings Rules, 1977 without indicating in the order, issuing notice, that the petition may be/will be heard and disposed off finally at the stage of admission?

2) Whether the Court can allow the writ petition finally before issuance of rule nisi in the absence of the contesting respondent, if the respondent chooses not to enter his appearance even after service of notice in Form II-A or III-A of the Rules, on the date of hearing to show cause, why the rule nisi should not be issued?

3) Whether the Court can allow the writ petition finally dispensing with issuance of rule nisi in the absence of the contesting respondent, who chooses not to appear at the stage of hearing on the notice to show cause why rule nisi should not be issued, particularly when he has no notice of hearing the petition finally at that stage?

14. Since a point of procedure was involved, not only the Advocates who were appearing for the parties in the said appeal but Senior Advocates Mr. S. Shankar and P.S. Rajgopal, who were present in the Court, and so also Mr. K.M. Nataraj, Leaned Additional Advocate General, practicing in this High Court for decades, were also heard. Several Judgments of the Supreme Court and this Court were cited and considered. The Division Bench also considered the relevant Writ Rules, and in particular Rule Nos.13, 17 and 21 there of including High Court Rules and in the light of the judgments of the Supreme Court and so also the judgments of this Court in NAGENDRAPPA vs. STATE OF KARNATAKA ILR 1993 KAR 2361, DR. M.M. NIRMALA vs. NEW MANGALORE PORT AND TRUST AND OTHERS 1995(4) KAR L.J. 660 and B.U. BALU vs. state of Karnataka ILR 1989 KAR 3076, recorded its conclusions in paragraph 43. The conclusions recorded by the Division Bench in LALBI read thus-

(a) If the Court is satisfied, upon hearing Learned Advocate for the petitioner, it may direct rule nisi even without issuing notice to show cause why rule nisi should be issued, and may or may not grant ad-interim order or dismiss the writ petition after recording brief reasons;

(b) The Court, if it deems fit, may cause notice to the respondent to show cause why rule nisi should not be issued. If the order issuing notice/emergent notice is passed without indicating in the order, that the petition may be/will be heard and disposed off finally, shall not allow the writ petition and dispose it off, where the respondent chooses not to enter his appearance even after service of the notice;

(c) If the notice is issued without indicating that the petition may be/will be disposed off finally at the stage of admission, in that event, if the respondent enters his appearance (in person or through an Advocate), and if the Court intends to dispose of the writ petition finally, it may make it so clear to the parties on the first date itself or at the earliest and record it in the order while granting time to the respondent to file objections and documents. Despite passing such order, if the respondent chooses either not to file objections and documents or to remain absent on the subsequent date/s, the Court may proceed to decide the petition finally even in the absence of such respondent or issue Rule with/without interim order;

(d) If the Court issues notice indicating that the petition may be/will be heard and disposed off finally at the stage of admission, in the order issuing notice, may allow the writ petition and dispose it off even in the absence of the respondent if he chooses not to enter his appearance after service of such notice;

(e) It would be more appropriate, if the Court finds that some important question of law is involved or substantial rights of the parties are under consideration, and that quick assessment of the issue/question involved is not possible, as far as possible, shall not dispose of the writ petition in the absence of reply affidavit/objections and documents of the respondent and it would be more appropriate to issue rule with/without interim order/relief in favour of the petitioner.

15. In K. PEDDANNA, the Division bench considered only Form-IIIA of the Writ Rules, which is a notice under Rule 13(A) proviso and, in particular the last paragraph of the said notice, which reads thus-

If you fail so to appear on the said date or any subsequent date to which the matter may be posted as directed by the Court, without any further Notice, the petition will be dealt with, heard and decided on merits in your absence.

16. The other Rules and the Forms were not considered by the Division Bench in K. PEDDANNA. Having considered the last paragraph of Form No.III-A, the Division Bench in paragraphs 7 and 8 observed thus-

'Lalbi vs. Modinamma @ Modinbee & Others (Supra), has no application if a writ Court has issued notice to the respondent or to any party in Form No.III-A as per Rule 13 of the Writ Proceedings Rules, 1977. Therefore we are of the opinion that the said Judgment shall be held as per incuriam. We are also of the opinion that when once notice has been issued there is no necessity for the Court to issue a notice for the second time, before taking up or deciding the case on merits if a party has failed to appear pursuant to a notice issued in Form No.III-A.

That without any further notice the petition may be heard, dealt with and decided on merits. The parties are very well aware of the same. The Rules of procedure are intended for their benefit also. Therefore to assign a restrictive meaning is inappropriate. The Rules of procedure should be read in order to assist the Court in the quicker dispensation of justice leading to a benefit to the parties. Form III-A has been understood by all, in the manner an indicated above. Millions of cases are disposed off on such an understanding. Therefore to reinterpret the Form contrary to its intention and contrary to the procedure that is being followed all these decades is inappropriate and uncalled for. Therefore we hold that the Judgment Lalbi vs. Modinamma @ Modinbee & Others (Supra), is per incuriam. Therefore we hold that when a notice is issued in Form No.III-A, the Court is well within its jurisdiction to hear and dispose off the matter without any further notice.'

(emphasis supplied)

17. At this stage it would be relevant to notice what the per incuriam doctrine means. The Black‘s Law Dictionary Ninth Edition explained the Doctrine of per incuriam as under:

Per incuriam (per in-kyoor-ee-em), adj. (Of a judicial decision) wrongly decided, us, because the judge or judges were ill-informed about the applicable law.

'There is at least one exception to the rule of stare decisis. I refer to judgments rendered per incuriam. A judgment per incuriam is one which has been rendered inadvertently. Two examples come to mind: first, where the judge has forgotten to take account of a previous decision to which the doctrine of stare decisis applies. For all the care with which attorneys and judges may comb the case law, errare humanum est, and sometimes a judgment which clarifies a point to be settled is somehow not indexed, and is forgotten. It is in cases such as these that a judgment rendered in contradiction to a previous judgment that should have been considered binding, and in ignorance of that judgment, with no mention of it, must be deemed rendered per incuriam; that, it has no authority …. The same applies to judgments rendered in ignorance of legislation of which they should have taken account. For a judgment to be deemed per incuriam, that judgment must show that the legislation was not invoked.' Louis-Philippe Pigeon, Drafting and Interpreting Legislation 60 (1988).

'As a general rule the only cases in which decisions should be held to have been given per incuriam are those of 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 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 ed. 1991).

(emphasis supplied)

18. The Supreme Court also had several occasions to consider what per incuriam doctrine means. In NARMADA BACHAO ANDOLAN case the Supreme Court explained the per incuriam doctrine as follows-

PER INCURIAM – Doctrine:

'60. 'Incuria' literally means 'carelessness'. In practice per incuriam is taken to mean per ignoratium. The Courts have developed this principle in relaxation of the rule of stare decisis. Thus, the 'quotable in law' is avoided and ignored if it is rendered, in ignorance of a Statute or other binding authority. While dealing with observations made by a seven Judges’ Bench in India Cement Ltd. etc. etc. v. State of Tamil Nadu etc. etc., AIR 1990 SC 85, the five Judges’ Bench in State of West Bengal v. Kesoram Industries Ltd. & Ors., (2004) 10 SCC 201: (AIR 2005 SC 1646 : 2004 AIR SCW 5998). Observed as under:

'A doubtful expression occurring in a judgment, apparently by mistake or inadvertence, ought to be read by assuming that the Court had intended to say only that which is correct according to the settled position of law, and the apparent error should be ignored, far from making any capital out of it, giving way to the correct expression which ought to be implied or necessarily read in the context, …… A statement caused by an apparent 20 rypographical or inadvertent error in a judgment of the Court should not be misunderstood as declaration of such law by the Court.'

Thus, 'per incuriam' are those decisions given in ignorance or forgetfulness of some statutory provision or authority binding an the Court concerned, or Statement of law caused by inadvertence or conclusion that has been arrived at without application of mind or proceeded without any reason so that in such a case 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.'

(emphasis supplied)

19. In MAYURAM SUBRAMANIAN SRIVINVASAN’S case, Supreme Court while explaining the meaning of word 'incuria' in paragraph 11 observed thus-

11. 'Incuria' literally means 'carelessness'. In practice per incuriam is taken to mean per ignoratium. English courts have developed this principle in relaxation of the rule of stare decisis. The 'quotable in law', as held in young v. Bristol Aeroplane CO. Ltd., is avoided and ignored if it is rendered, 'in ignoratium of a statute or other binding authority'. Same has been accepted, approved and adopted by this Court while interpreting Article 141 of the Constitution of India, 1950 (in short 'the Constitution') which embodies the doctrine of precedents as a matter of law. The above position was highlighted in State of U.P. v. Synthetics and Chemicals Ltd. To perpetuate an error is no heroism. To rectify it is the compulsion of the judicial conscience. The position was highlighted in Nirmal Jeet Kaur v. State M.P.

(emphasis supplied)

20. The per incuriam doctrine was again examined and explained in N. BHARGAVAN PILLAI. The Supreme Court in paragraph 14 thereof observed thus-

'14. Coming to the plea relating to benefits under the probation Act, it is to be noted that Section 18 of the said Act clearly rules out application of the Probation Act to a case covered under Section 5(2) of the Act. Therefore, there is no substance in the accused-appellant’s plea relating to grant of benefit under the probation Act. The decision in Bore Gowda case does not even indicate that Section 18 of the Probation Act was taken note of. In view of the specific statutory bar, the view, if any, expressed without analyzing the statutory provision cannot in our view be treated as a binding precedent and at the most is to be considered as having been rendered per incuriam. Looked at from any angle, the appeal is sans merit and deserves dismissal which we direct.'

(emphasis supplied)

21. If the judgment in LALBI is read in the light of the Supreme Court judgments, it would not be possible for us to agree with the view that the said judgment is per incuriam. As a matter of fact, the Division Bench in LALBI to which one of us (Dilip. B. Bhosale. J) was a party, has considered the scheme of writ Rules including the High Court of Karnataka Rules and Form NO.III-A and Form No.IV. As against which we do no find such consideration by the Division Bench in K. PEDDANNA. We are unable to agree with the Division Bench in K. PEDDANNA that the judgment in LALBI is per incuriam.

22. In this connection, we would also like to refer to the judgment relied upon by Mr. Jois in SUNDARJAS KANYALAL BHATHIJA, it would be relevant to reproduce the following observations made by the Supreme Court in the said judgment.

17. It would be difficult for us to appreciate the judgment of the High Curt. One must remember that pursuit of the law however glamorous it is, has its own limitation on the Bench. In a multi-judge court, the Judges are bound by precedents and procedure. They could use their discretion only when there is no declared principle to be found, no rule and no authority. The judicial decorum and legal propriety demand that where a learned single Judge or a Division bench does not agree with the decision of a Bench of co-ordinate jurisdiction, the matter shall be referred to a larger Bench. It is a subversion of judicial process not to follow this procedure.

20. The Chief Justice Pathak, in a recent decision stressed the need for a clear and consistent enunciation of legal principle in the decisions of a Court Speaking for the Constitution Bench (Union of India Vs. Raghubir Singh (1989) 2 SCC 754LAIR 1989 SC 1933) leaned Chief Justice said (at p. 766) (of SCC) (at p.1939 of AIR).

'The doctrine of binding precedent has the merit of promoting a certainty and consistency in judicial decisions, and enables an organic development of the law, besides providing assurance to the individual as to the consequence of transactions forming part of his daily affairs. And, therefore, the need for a clear and consistent enunciation of legal principle in the decisions of a Court.'

(emphasis supplied)

23. In JAYASRI SAHU vs. RAJDEWAN DUBEY AND OTHERS (supra), the Supreme Court observed thus-

9. Then there is the question of the practice to be followed when there is a conflict among decisions of Benches of the same High Court When a Bench of the High Court gives a decision on a question of law, it should in general be followed by other Benches unless they have reasons to differ from it, in which case the proper course to adopt would be to refer the question for the decision of a Full bench. In Buddah Singh v. Laltu Singh, ILR 37 All 605 : (AIR 1915 PC 70) the Privy Council had occasion to discuss the procedure which should be adopted when a Bench of a High Court differs from the opinion given:

@ page SC 88

by a previous Bench. After referring to Suraya Bhukta Vs. Lakhsminarasamma, ILR 5 Mad 291 and Chinnasami Pillai v. Kunju Pillai, ILR 35 Mad 152 where decisions had been given based on the opinions expressed by Devananda Bhatta in the Smriti Chandrika, the Privy Council observed:

'Curiously enough there is no reference in either of the Madras judgments referred to above to a previous decision (Parasara Bhattar Vs. Rangaraja Bhattar, ILR 2 Mad 202) of the same court to which Turner, C.J., was also a party. In that case the rule of the Smriti Chandrika was not accepted nor was the literal construction of the Mitakshara followed. It is usual in such cases where a difference of opinion

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arises in the same court to refer the point to a Full Bench, and the law provides for such contingencies. Had that course been followed their Lordships would probably have had more detailed reasoning as to the change of opinion on the part at least of one Judge'. (pp.622, 623 (of ILR All) (at p.77 of AIR)). (emphasis supplied) 24. It is well settled that when a Bench of the High Court gives a decision on a 'question of law', it should in general be followed by other Benches unless they have reasons to differ from it, in which case the proper course to adopt would be to record the question for the decision of a Full Bench. Indubitably, it is open to a Bench of co-ordinate jurisdiction to differ on a 'question of law' from the view/opinion expressed by another Bench. But, when it differs on a 'question for decision of a Full Bench. As observed by the Supreme Court in SUNDARJAS KANYALAL, BHATHIJA, the judicial decorum and legal propriety demands that where a Learned Single Judge or a Division bench does not agree with the decision of a Bench of co-ordinate jurisdiction, the matter shall be referred to a Larger Bench. 25. In LALBI, the Division Bench, has rendered a judgment on the questions of law, as framed therein, and did not deal with merits of the case at all. The questions were framed at the request of bar, as could be seen from paragraph 10 of the judgment and they were addressed in the light of the scheme of the Writ Rules. All relevant rules so also the relevant forms including Form III-A were taken into consideration by the Division Bench. By no stretch of imagination one can say that the judgment in LALBI was rendered in ignorance or forgetfulness of some statuary provision or authority binding on the Court or a statement of law caused by inadvertence or conclusion that has been arrived at was without application of mind or proceeded without any reason so as to call it per incuriam. A judgment per incuriam is one which has been rendered inadvertently or given in ignorance or forgetfulness of some statutory provisions or some authority binding on the Court. We agree with the Division bench in K. PEDDANNA that 'the Rules of Procedure are intended for the benefit of parties'. This exactly has been approved and stated by the Division Bench in LALBI. The Rules of Procedure need to be read not only to enable the Court quicker dispensation of justice, but to do substantial justice in the matter. As a matter of fact, the Division Bench in LALBI has read the Rules for the benefit of litigants and to provide them reasonable opportunity before dispensation of justice and to avoid violation of the principles of natural justice. We are of the considered view that the judgment in LALBI is not per incuriam. 26. It is in this backdrop, we request the Hon’ble Chief Justice to refer the following question under Section 7 of the Karnataka High Court Act, 1961 for the opinion of a Full Bench- 'Whether the judgment of the Division Bench in Lalbi can be held to be per incuriam?' The Learned Additional Registrar General is directed to place this order before the Hon’ble Justice for appropriate directions.
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