Civil Appeal No. 500 of 1965

5th September, 1967.

Petitioner Counsel: Raj Bahadur, B.R. Agarwala, M/s. Gagrat and Co.
Respondent Counsel: M.V. Goswami, M.S.K. Sastri, S.P. Nayar, R.H. Dhebar

Cases Cited:
1. (1962) 2 SCR 558, at pp. 567-569.
(1961) 3 Guj. LR 529.
AIR 1922 Bom. 149(2)=(1921) 23 Bom. LR 802.
(1961) 3 Guj. LR 269 (Sp. F.B.)
(1961) 3 Guj. LR 529.
(1921) 23 Bom. LR 802
3. (1965) Civil Appeal No. 764 of 1964 decided on March 1, 1965 (Supreme Court).

JUDGMENT

JUDGMENT:- Shah, J.-Before parting with the case, it is necessary to deal with certain questions of fundamental importance in the administration of justice which the judgment of Raju J. raises. The learned Judge observed-(1) that even though there is a judgment of a single Judge of the High Court of which he is a member or of a Division Bench of that High Court, he is not bound to follow that precedent, because by following the precedent the Judge would act contrary to section 165 of the Indian Evidence Act, and would also violate the oath of office taken by him when entering upon his duties as a Judge under the Constitution; and (2) that a judgment of a Full Bench of the Court may be ignored by a single Judge, if the Full Bench judgment is given on a reference made on a question of law arising in a matter before a single Judge or a Division Bench. Such a judgment, according to Raju J., would "not be a judgment at all" and "has no existence in law".

2. The observations made by the learned Judge subvert the accepted notions about the force of precedents in our system of judicial administration. When it appears to a single Judge or a Division Bench that there are conflicting decisions of the same Court or there are decisions of other High Courts in India which are strongly persuasive and take a view different from the view which prevails in his or their High Court or that a question of law of importance arises in the trial of a case the Judge or the Bench passes an order that the papers be placed before the Chief Justice of the High Court with a request to form a special or Full Bench to hear and dispose of the case or the questions raised in the case.It is true that every Judge of a High Court before he enters upon his office takes an oath of office that he will bear true faith and allegiance to the Constitution of India as by law established and that he will duly and faithfully and to the best of his ability knowledge and judgment perform the duties of office without fear or favour affection or ill will and that he will uphold the Constitution and the laws but there is nothing in the oath of office which warrants a Judge in ignoring the rule relating to the binding nature of the precedents which is uniformly followed.s which enunciate rules of law form the foundation of administration of justice under our system. It has been held time and again that a single Judge of a High Court is ordinarily bound to accept as correct judgments of Courts of co-ordinate jurisdiction and of Division Benches and of the Full Benches of his Court and of this Court. The reason of the rule which makes a precedent binding lies in the desire to secure uniformity and certainty in the law.

3. We may refer to the observations made by Venkatarama Aiyar J., in Jaisri Sahu v. Rajdewan Dubey1 and the cases referred to therein. If decisions of the same or a superior Court are ignored, even though directly applicable, by a Judge in deciding a case arising before him, on the view that every Judge is entitled to take such view as he chooses of the question of law arising before him as Venkatarama Aiyar J., observed, the "law will be bereft of all its utility if it should be thrown into a state of uncertainty by reason of conflicting decisions".

4. The effect of a precedent of the Gujarat High Court fell to be considered indirectly in this case. Before Raju J., it was urged for the first time in the course of this litigation that in the absence of the sanction of the Charity Commissioner the Court sale was invalid. Counsel for the auction-purchaser contended that this question was not raised before the District Court and that Court cannot be said to have acted illegally or with material irregularity in not deciding the question. Counsel for the auction-purchaser relied upon two decisions in support of that proposition: Karimbhaiv. Hariprasad2 and Haridasv. Ratansey3. He urged that under the Bombay Reorganization Act, 1960, the jurisdiction of the Bombay High Court which originally extended over the territory now forming part of the State of Gujarat, ceased when a new High Court was set up in the State of Gujarat, but it was held by a Full Bench of the High Court of Gujarat in State v. Gordhandas4 that the decision of the Bombay High Court will be regarded as binding since the Gujarat High Court had inherited the jurisdiction, power and authority in respect of the territory of Gujarat. When pressed with the observations made in the two cases cited at the Bar, Raju J. found an easy way out. He observed that the judgment of the Full Bench of the Gujarat High Court had "no existence in law", for in the absence of a provision in the Constitution and the Charter Act of 1861, a Judge of a High Court had no power to refer a case to a Full Bench for determination of a question of law arising before him, and a decision given on a reference "had no existence in law". The learned Judge also thought that if a Judge or a Division Bench of a Court makes a reference on a question of law to a Full Bench for decision, it would in effect be assuming the jurisdiction which is vested by the Charter of the Court in the Chief Justice of the High Court. In so observing the learned Judge completely misconceived the nature of a reference made by a Judge or a Bench of Judges to a larger Bench. When it appears to a single Judge or a Division Bench that there are conflicting decisions of the same Court, or there are decisions of other High Courts in India which are strongly persuasive and take a view different from the view which prevails in his or their High Court, or that a question of law of importance arises in the trial of a case, the Judge or the Bench passes an order that the papers be placed before the Chief Justice of the High Court with a request to form a special or Full Bench to hear and dispose of the case or the questions raised in the case. For making such a request to the Chief Justice, no authority of the Constitution or of the Charter of the High Court is needed, and by making such a request a Judge does not assume to himself the powers of the Chief Justice. A single Judge does not by himself refer the matter to the Full Bench; he only requests the Chief Justice to constitute a Full Bench for hearing the matter. Such a Bench is constituted by the Chief Justice. The Chief Justice of a Court may, as a rule, out of deference to the views expressed by his colleague, refer the case; that does not mean, however, that the source of the authority is in the order of reference. Again it would be impossible to hold that a judgment delivered by a Full Bench of a High Court after due consideration of the points before it is liable to be regarded as irrelevant by Judges of that Court on the ground of some alleged irregularity in the constitution of the Full Bench.

5. The judgment of the Full Bench of the Gujarat High Court was binding upon Raju J. If the learned Judge was of the view that the decision of Bhagwati J., in Karimbhai's case1 and of Macleod C.J., in Haridas's case2 did not lay down the correct law or rule of practice, it was open to him to recommend to the Chief Justice that the question be considered by a larger Bench. Judicial decorum, propriety and discipline required that he should not ignore it. Our system of administration of justice aims at certainty in the law and that can be achieved only if Judges do not ignore decisions by Courts of co-ordinate authority or of superior authority. Gajendragadkar C.J. observed in Lala Shri Bhagwan v. Shri Ram Chand3:

"It is hardly necessary to emphasise that considerations of judicial propriety and decorum require that if a learned Single Judge hearing a matter is inclined to take the view that the earlier decisions of the High Court, whether of a Division Bench or of a Single Judge, need to be reconsidered, he should not embark upon that enquiry sitting as a Single Judge, but should refer the matter to a Division Bench, or, in a proper case place the relevant papers before the Chief Justice to enable him to constitute a larger Bench to examine the question. That is the proper and traditional way to deal with such matters and it is founded on healthy principles of judicial decorum and propriety."

6. In considering whether a precedent of a Court of co-ordinate authority is binding, reference to section 165 of the Evidence Act is irrelevant. Undoubtedly, every judgment must be based upon facts declared by the Evidence Act to be relevant and duly proved. But when a Judge in deciding a case follows a precedent, he only regards himself bound by the principle underlying the judgment and not by the facts of that case.

7. It is true that every Judge of a High Court before he enters upon his office takes an oath of office that he will bear true faith and allegiance to the Constitution of India as by law established and that he will duly and faithfully and to the best of his ability, knowledge and judgment perform the duties of office without fear or favour, affection or ill will and that he will uphold the Constitution and the laws: but there is nothing in the oath of office which warrants a Judge in ignoring the rule relating to the binding nature of the precedents which is uniformly followed.