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1948 DIGILAW 1 (MP)

Dagdu v. Tulsiram

1948-10-18

BHIDE, MEHTA, REGE

body1948
JUDGMENT : BHIDE, J. 1. The material facts giving rise to this reference to a Full Bench may be briefly stated as follows: On 22nd April 1948, Rulers of the States of Gwalior, Indore and certain other smaller States in Central India, entered into a covenant to unite and integrate their territory in one State, called United State of Gwalior, Indore and Malwa (hereafter referred to as the United State) with a common Executive, Legislature and Judiciary and in pursuance of this covenant the United State was inaugurated on 28th May 1948. This High Court of Judicature of the United State was established by an ordinance (No.2 of 1948) which came into force on 29th July 1948. According to cl.35 of the Ordinance tribunals, previously functioning as High Courts in the various covenanting States, ceased to exist on the latter date and the pending cases in all such tribunals were transferred for disposal to this High Court. One of these cases, pending before the High Court of Judicature at Indore (civil second Appeal No.16 of 1917) which was transferred to this High Court, came up for hearing before a single Judge of this Court. The learned counsel for both the parties admitted before the learned Judge that the case was governed by a Full Bench decision of the Indore High Court in Civil Second Appeal No.143 of 1946, decided on 12th April 1946 but the learned Judge was apparently inclined to differ from the Full Bench decision and has made the present reference to a Full Bench. The learned Judge has remarked in the course of his order of reference that: "according to usage, the judgment of the Indore High Court is not binding on the Madhya Bharat High Court (this Court) and was only entitled to respectful consideration by the Judges of this Court." The learned Judge, therefore, referred the question of law arising in the case to a Full Bench. The question of law as framed by him is in substance the same which was referred to the Indore Fall Bench High Court in Civil Second Appeal No.143 of 1946, referred to above and the present reference is tantamount to nothing more than an attempt to have the Full Bench decision of the Indore High Court reconsidered, because the learned single Judge was inclined to differ from it. 2. 2. The first question which requires decision in the above circumstances is how far the decisions of the High Courts in the covenanting States should be held to be binding on the Judges of this High Court and under what circumstances such decisions are open to reconsideration. In view of the importance of this question, the case has been put up before this Bench for decision of this preliminary point. 3. The question as to how far the decisions of a previous tribunal, functioning as a High Court in the same territory as newly established High Court, are binding has been before the High Courts in India in similar circumstances. The leading case on the subject appears to be Ma Mya v. Ma Thein, AIR (14) 1927 Rang. 4: (4 Rang. 313 (F.B.)) which came up before a Full Bench of the Rangoon High Court consisting of nine Judges. The High Court of Judicature at Rangoon had replaced the Chief Court of Lower Burma and the questions referred to the Full Bench were as follows: (1) Is the High Court in exercise of its ordinary original jurisdiction bound by the authorized reports of the decisions of the Chief Court of Lower Burma, and if so to what extent? (2) Is the High Court in exercise of its appellate jurisdiction bound by the authorised reports of the Chief Court of Lower Burma, and if so, to what extent? 4. Eight of the nine Judges took in the view that the decision of the Chief Court of Lower Burma were not absolute authorities binding on the High Court on either the Original or Appellate Side, inasmuch as the Chief Court could not not be held to be a Court of coordinate jurisdiction with the High Court. These decisions were however, conditional authorities of the highest value to which the greatest weight and respect must be attached and therefore the Judges of the High Court should not consider themselves free to set those decisions at naught, except for the best and most urgent reasons and the principle of stare decisis should be applied to these decisions in no narrow or technical spirit. 5. 5. One of the Judges - Cunliffe, J. - went further and held that the true test to be applied in solving the question whether the decisions of the Chief Court were binding on the High Court was to regard both the present High Court and the Chief Court from the point of view of their main civil and criminal jurisdiction and also from the point of view of their status in relation to the Court of appeal immediately above them. He was of the opinion that the difference between a Court of record and a Court not of record should not affect in any way at all the legal value of a tribunal's decision. The territorial jurisdiction did not affect the status of a Court one way or the other and looked at from this point of view the Chief Court should be held to be a Court of coordinate authority and the High Court should consider itself bound by its authorized reports of the Chief Court of Lower Burma. 6. In coming to the above conclusions the learned Judges of the Full Bench considered at length the English as well as Indian case law on the point. The learned counsel for both the parties have relied on this decision and have not attempted to dispute its correctness. 7. It will appear from the above that the majority of the learned Judges of the Full Bench treated the decisions of the Chief Court of Lower Burma as conditional and not absolute binding authorities chiefly on the ground that the Lower Burma Chief Court was inferior to the High Court of Rangoon and not a Court of co-ordinate jurisdiction. In the present instance the High Court of Judicature at Indore was not a Court of inferior status like the Chief Court of Lower Burma and therefore the Indore High Court must be looked upon as a Court of co-ordinate jurisdiction. This was conceded before us by the learned counsel for the parties. It is possible that some of the highest tribunals in the covenanting states may not have had the same status as the Indore High Court and their decisions may, therefore, be only conditional and not absolute authorities according to the view of the majority of the Judges of the Full Bench of the Rangoon High Court. It is possible that some of the highest tribunals in the covenanting states may not have had the same status as the Indore High Court and their decisions may, therefore, be only conditional and not absolute authorities according to the view of the majority of the Judges of the Full Bench of the Rangoon High Court. But it is unnecessary to go into that question for the purposes of this reference as we are concerned in this case with a Full Bench decision of the Indore High Court, which was admittedly a Court of co-ordinate jurisdiction. It would, therefore, appear that according to the view of all the Judges of the Full Bench of the Rangoon High Court, the Full Bench decision of the Indore High Court being that of a Court of co-ordinate jurisdiction, ought to be treated as a binding authority and should stand on the same footing as a Full Bench decision of this Court. 8. The above conclusion is in conformity with the English law on the subject as summarized on pp.192 and 193 of Salmond's Jurisprudence (Edn. 8). Leaving aside the House of Lords, which has a special status, this High Court might be taken to correspond to the Court of appeal in England and as regards that Court, the rule in respect of the authority of precedents is stated as follows (see p.193): "The Court of Appeal is, it would seem, absolutely bound by its own decisions and by those of older Courts of co-ordinate authority, for example, the Court of Exchequer Chamber." 9. Our attention has not been drawn to any other decisions of the Indian High Courts, containing discussion of the subject like the Full Bench decision of the Rangoon High Court referred to above. In some cases the decisions of preceding tribunals have been accepted as binding by the succeeding High Court even though the previous tribunal was of a lower status. For example, there are several decisions of the Lahore High Court in which the decisions of its predecessor - the Punjab Chief Court - have been taken as binding (see Sher Khan v. Muzaffar Khan, 1 Lah. 25: (55 I.C. 944: (AIR (7) 1920 Lah. 321), Sundar Singh Nighaiya, 6 Lah 94: (AIR (12) 1925 Lah. 466) and Lachman Singh v. Naman, AIR (16) 1929 Lah. 25: (55 I.C. 944: (AIR (7) 1920 Lah. 321), Sundar Singh Nighaiya, 6 Lah 94: (AIR (12) 1925 Lah. 466) and Lachman Singh v. Naman, AIR (16) 1929 Lah. 174: (118 I.C. 434); but on the other hand there are a few rulings in which the decisions of predecessor tribunals have been held to be merely entitled to be treated with great respect but not as a binding authorities (see e.g. Rajendra Bahadur v. Rajeshwar Bali, AIR (21) 1934 Oudh 360: (149 I.C. 239), It is unnecessary to refer to these rulings in detail as in none of the rulings which were cited is to be found any discussion of the underlying principles and they do not, therefore, throw any independent light on the subject. 10. Apart from authorities, there is no reason to suppose that the Rulers of the Covenanting States in deciding to unite and intergrate their territory for the purpose of administration had any intention to unsettle the law obtaining in their territories. In this connection cl.5 of the Ordinance (in?) relation to the High Court of the United State (ordinance No.II [2] of 1948) is significant. It runs as follows: "The High Court shall apply the laws and the usages prevailing in any State forming part of United State to civil, criminal and other proceedings in that State till such time as a duly constituted authority modifies them." The provisions of cl.(3) of ordinance No.1 of 1948 are still more explicit. That clause is as below: "When the administration of any Covenanting State has been taken over by the Rajpramukh as aforesaid or when any State has been merged in the State of Madhya Bharat as aforesaid, all Laws, Ordinances, Acts, Rules, Regulations, etc., having the force of law in the said State shall continue to remain in force until repealed or amended under the provisions of the next succeeding section, and shall be construed as if reference in them to the Ruler or Government of the State were references to the Rajpramukh or the Government of the United States respectively." 11. The above provisions of law clearly show that the authority promulgating the above mentioned ordinances, intended to maintain the staus quo as regards the laws obtaining in the covenanting states. The above provisions of law clearly show that the authority promulgating the above mentioned ordinances, intended to maintain the staus quo as regards the laws obtaining in the covenanting states. Now, judicial decisions of the High Court have the force of law and they should, therefore, stand on a similar footing and be treated similarly. 12. The question whether the term 'law' can cover the Judicial decisions - which constitute what is known as Judge-made law - was also considered in the Full Bench decision of the Rangoon High Court, mentioned above. It was held therein that the term "law" applies to enactments of the Legislature and cannot be held, strictly speaking, to cover judicial decisions. Even so, there seems to be no doubt that judicial decisions form an important complement to the Statutory law. In most cases, judicial decisions supplement a statutory law by laying down correct interpretation of its provisions where there is ambiguity or doubt and thus become a necessary and valuable addition to that law. It cannot be believed in view of the circumstances in which the United State came into existence, that there could be any intention to deprive judicial decisions of the highest tribunal in the Covenanting States of their validity or force by the mere establishment of a common High Court. Any such result would create a void in the existing law and would lead to an uncertain position as regards many points in the existing law and would be most embarassing both to the Courts and litigant public.It would, therefore, be, in my opinion, in consonance with the intention of the Ordinances referred to above to treat the principles established by the decisions of the High Courts in the Covenanting States on the same footing as the laws, usages, rules, regulations, etc., referred to in them, i.e., to follow them until they are modified by any competent authority. It may of course be found that some of these decisions are conflicting or opposed to the preponderence of authority in the Indian High Courts. In such cases, the conflict may have to be removed by a reference to a Full Bench of this Court. It may of course be found that some of these decisions are conflicting or opposed to the preponderence of authority in the Indian High Courts. In such cases, the conflict may have to be removed by a reference to a Full Bench of this Court. But in the meantime on the wholesome principle of "stare decisis" the Courts in the United State ought, in my opinion, to follow authorised reports of the High Courts in the Covenanting States when applicable to the cases coming before them until these decisions are overruled by this High Court, or until the law laid down therein is modified by any legislative enactment. 13. For reasons given above, I am of opinion that the decisions of the Indore High Court, being of a tribunal of co-ordinate jurisdiction, should be held to be binding authorities in the same manner as though they were decisions of this High Court. It follows that such decisions must be followed by all Subordinate Courts in respect of matters decided therein. So far as this Court is concerned, it is well recognised that Full Bench decisions are binding on Division Benches and Single Judges and it is not open to a Single Judge or a Division Bench to dissent from them merely because they are inclined to take a different view. The object of a Full Bench decision generally is to settle the law on doubtfull points and once the law on such points is settled, the decision of the Full Bench becomes binding. It would obviously create an intolerable situation if it were open to any Judge to ask for reconsideration of such a case merely because he happens to take a different view. The following remarks in Broom's Legal Maxims of Equity (Edn. It would obviously create an intolerable situation if it were open to any Judge to ask for reconsideration of such a case merely because he happens to take a different view. The following remarks in Broom's Legal Maxims of Equity (Edn. 10) are very pertinent in this context: "It is, then an established rule to abide by former precedents, stare decisis, where the same points come again in litigation, as well to keep the scale of justice steady, and not liable to waiver with every new Judge's opinion, as also because the law in that case being solemnly declared what before was uncertain and perhaps indifferent, is now become a permanent rule, which it is not in the breast of any subsequent Judge to alter according to his private sentiments; he being sworn to determine, not according to his own private judgment, but according to the known laws of the land - not delegated to pronounce a new law, but to maintain the old jus-dicere et non juss-dare." 14. It may of course be necessary at times to reconsider even a Full Bench decision for example, owing to a change in the law or owing to a contrary decision of a superior Court of some palpable and serious error affecting the decision discovered subsequently; but such occasions are very rare. In the present instance, the point of law proposed for reconsideration is the same as question (1) which was referred to the Full Bench in civil second Appeal No.143 of 1946 of the Indore High Court, as already stated. That question has been fully considered by the Full Bench and it was conceded before us that no new points arose. There was, therefore, no justification for inviting a fresh reference to a Full Bench. 15. I would accordingly hold that the Full Bench decision in civil second Appeal No.143 of 1946 of the Indore High Court is binding on the learned Judge who made the reference and would return the case to him for decision according to law. Mehta, J. - I agree. Rege, J. I agree.