R.S. Bakshi and Another vs H.K. Malhari and Another

S.B. Sinha, C.J.—The reference to a Division Bench has been made by a learned Single Judge of this Court noticing conflict in the decisions of the Supreme Court in Major D.N. Sood v. Shanti Devi;, 1997 (10) SCC 428 and Vinod Kumar Chowdhry Vs. Smt. Narain Devi Taneja,

The petitioner under Article 226 of the Constitution of India was filed by the petitioners herein questioning the order dated 17.3.2001 passed by the second respondent whereby and whereunder an application of the first respondent herein seeking leave to defend was allowed.

Before the learned Single Judge a question arose as to whether an application under Article 226 would be maintainable.

Learned Single Judge noticed that a Division Bench comprising of two Hon''ble Judge of the Supreme Court in D.N. Sood''s case (supra) considered the question as to whether a revision petition would lie against an order granting leave u/s 25B of the Delhi Rent Control Act.

A learned Single Judge of this Court in a similar situation entertained the revision petition where against the Supreme Court was moved. The Apex Court held:

"This appeal arises out of a petition filed by the respondent (landlord) for the eviction of the appellant (tenant) under the provisions of Section 14-D of the Delhi Rent Control Act, 1958 (hereinafter referred to as the Act). In the said proceedings the appellant has been granted leave to defend by the Addl. Rent Controller, Delhi by order dated 22.9.1992. Feeling aggrieved by the said order passed by the Addl. Rent Controller, the respondent filed a revision petition in the Delhi High Court u/s 25(B)(8) of the Act. The appellant raised an objection about the maintainability of the said revision petition and placed reliance on the earlier judgments of the High Court holding that an order granting leave to defend is interlocutory in nature and a revision does not lie against the said order. By the impugned judgment the learned Single Judge of the High Court has disagreed with the said view in the earlier judgments of the Court and has held that a revision lies u/s 25(B)(8) of the Act against an order granting leave to defend. The learned Judge has differed from the earlier judgments of the High Court on the ground that at the time the said judgments were delivered the provisions of Section 14-B, 14-C and 14-D were not there and they were introduced by the Amendment Act of 1988 and that in view of the changed scenario it must be held that a revision to the High Court will lie against an order of the Rent Controller granting to defend.

We are unable to endorse this approach of the learned Judge in departing from the law laid in the earlier decisions of the High Court holding that an order granting leave to defend is an interlocutory order against which a revision does not lie. If the learned Judge was not inclined to agree with the said view, on the basis of the amendments introduced in the Act by the Amendment Act of 1988, the proper course for him was to refer the matter to be considered by a Larger Bench. Sitting singly the learned Judge could not disagree with the view expressed earlier by other coordinate Benches of the High Court. Till the view taken in the earlier decision was reversed by a Larger Bench the learned Judge was bound by it. We are, Therefore, unable to upheld the impugned judgment of the High Court taking the view that the revision filed by the respon dent was maintainable and on the basis of the law as laid down in the earlier decisions of the High Court which has not been overruled, it must be held that the revision filed by the respondent was not maintainable."

Before the Apex Court in D.N, Sood''s (case), however, a judgment of Full Bench comprising of three Judges of the Supreme Court in Vinod Kumar''s case (supra) had not been brought to it.

In the aforementioned situation, the reference has been made in terms of Article 14 of the Constitution, a decision of the Apex Court is binding on all Courts including itself. Having regard to the hierarchy of courts, it is axiomatic that a decision of Larger Bench shall be binding on a decision of the smaller bench. When a Division Bench comprising of two Hon''ble Judges of the Supreme Court differs with the judgment of a co-ordinate bench or a bench comprising of larger number of Judges it can refer the matter to a bench of three Judges. It cannot even refer the matter to the Constitutional Bench. In Coir Board Ernakulam Kerala State and Another Vs. Indira Devi P.S. and Others, it was held:

"1. We have considered the order made in Civil Appeals Nos. 1720-21 of 1990. The judgment in Bangalore Water Supply and Sewerage Board Vs. A. Rajappa and Others, was delivered almost two decades ago and the law has since been amended pursuant to that judgment though the date of enforcement of the amendment has not been notified. 2. The judgment delivered by seven learned Judges of this Court in Bangalore Water Supply''s case does not, in our opinion, require any reconsideration on a reference being made by a two-Judge Bench of this Court, which is bound by the judgment of the Larger Bench."

The Apex Court, undoubtedly however, having regard to the provisions of Article 137 of the Constitution has requisite jurisdiction to review its own judgment.

In Mahadeolal Kanodia Vs. The Administrator-general of West Bengal, , the Apex Court observed:

"19.. . . Judicial decorum no less than legal propriety forms the basis of judicial procedure. If one thing is more necessary in law than any other thing, it is the quality of certainty. That quality would totally disappear if Judges of co-ordinate jurisdiction in a High Court start overruling one another''s decisions. If one Division Bench of a High Court is unable to distinguish a previous decision of another Division Bench, and holding the view that the earlier decision is wrong, itself gives effect to that view the result would be utter confusion. The position would be equally bad where a Judge sitting singly in the High Court is of opinion that the previous decision of another single Judge on a question of law is wrong and gives effect to that view instead of referring the matter to a Larger Bench. In such a case lawyers would not know how to advise their clients and all courts subordinate to the High Court would find themselves in an embarrassing position of having to choose between dissenting judgments of their own High Court."

And yet in Union of India (UOI) and Another Vs. Raghubir Singh (Dead) by Lrs. Etc., , it has been held:

"28. This Court also laid down in Acharya Maharajshri Narendra Prasadji Anandprasadji Maharaj and Others Vs. The State of Gujarat and Others, , that even where the strength of two differing. Division Benches consisted of the same number of Judges, it was not open to one Division Bench to decide the correctness or otherwise of the views of the other. The principle was re-affirmed in Union of India (UOI) and Others Vs. Godfrey Philips India Ltd., which noted that a Division Bench of two Judges of this Court in Jit Ram Shiv Kumar and Others Vs. State of Haryana and Others, had differed from the view taken by an earlier Division Bench of two Judges in Motilal Padampat Sugar Mills Co. Ltd. Vs. State of Uttar Pradesh and Others, , on the point whether the doctrine of promissory estoppel could be defeated by invoking the defense of executive necessity, and holding that to do so was wholly unacceptable reference was made to the well accepted and desirable practice of the later Bench referring the case to a Larger Bench when the learned Judges found that the situation called for such reference."

In A.R. Antulay Vs. R.S. Nayak and Another, , it was held:-

"It appears that when this Court gave the aforesaid directions on 16th February, 1984, for the disposal of the case against the appellant by the High Court, the directions were given oblivious of the relevant provisions of law and the decision in The State of West Bengal Vs. Anwar Ali Sarkar, See Halsbury''s Laws of England, 4th Edn. Vol 26 page 297, para 578 and page 300, the relevant notes 8, 11 and 14: Dias on Jurisprudence, 5th Edn, pages 128 and 130: Young v. Bristol Aeroplane Co. Ltd. (1944) 2 All ER 293. Also see the observations of Lord Goddard in Moore v. Hewitt (1947) 2 All ER 270) and Penny v. Nicholas (1950) 2 All ER 89. "Per in-curiam" are those decisions given an 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. See Morelle v. Wakeling (1955) 1 All ER 708. Also see State of Orissa and Others Vs. Titaghur Paper Mills Company Limited and Another,

In Vijay Laxmi Sadho v. Jagdish AIR 2001 SCW. 223, the Apex Court held that its earlier decision is binding on it. The rule of per incuriam can be applied where a court omits to consider a binding precedent. This aspect of the matter has been considered recently in Government of Andhra Pradesh and Another Vs. B. Satyanarayana Rao (Dead) by Lrs. and Others, , where it has been held that rule of per incuriam should be applied. Rule of per incuriam can be applied where a court omits to consider a binding precedent of the same court or the superior court rendered on the same issue or where a court omits to consider my statue while deciding that issue, A case cannot be referred to a Larger Bench on mere asking of a party. A decision by two Judges, has a binding effect on another coordinate Bench of two Judges, unless it is demonstrated that the said decision by any subsequent change in law or decision ceases to laying down a correct law. (See Arnit Das Vs. State of Bihar, The question yet again came up for consideration before the Apex Court in A-One Granites v. State of U.P. AIR 2001 SCW 848. Recently in Bharat Petroleum Corporation Ltd. Vs. Mumbai Shramik Sangha and Others, , a five Judge Bench of the Apex Court held: "The order of reference to a Constitutional Bench is dated 13.1.1998. Two learned Judges of this Court have doubted the correctness of the scope attributed to Section 10 of the Contract Labour (Regulation and Abolition) Act, 1970- in the Constitution Bench judgment in Gammon India Ltd. and Others Vs. Union of India (UOI) and Others, . This is how the matter comes before us. We are of the view that a decision of a Constitution Bench of this Court binds a Bench of two learned Judges of this Court and that judicial discipline obliges them to follow it, regardless of their doubts about its correctness. At the most, they could have ordered that the matter be heard by a Bench of three learned Judges. Accordingly, this matter shall now be heard and decided by a Bench of two learned Judges."

This aspect has also been considered recently by Full Bench of Andhra Pradesh High Court in Gururaj Mini Roller Flour Mills and Another Vs. Govt. of India and Others, , it was held:

"23. Keeping in view of our findings aforementioned, we are of the opinion that the observations made by the Division Bench in WP No. 13603 of 1987 are not correct and cannot be said to be laying down a good law. The latter Bench, in our opinion, could not have taken a different view from that taken by another Division Bench in WA No. 1489 of 1987 having regard to the law of precedent operating in this behalf."

Yet again, a Full Bench of Andhra Pradesh High Court in B. Rajeswar Reddy Vs. K. Narasimhachari and Others, held that judgment of the court is not to be read as a statute. The ratio decidendi must be culled out from reading a judgment in its entirety in the following terms:

"26. It is also well-known that judgment of a Court is not to be read as a statute. In General Electric Co. v. Renusagar Power Co. (1987) 4 SCC 13, it was held:-

"As often enough pointed by us, words and expressions used in a judgment are not to be construed in the same manner as statutes or as word and expressions defined in statutes. We do not have any doubt that when the words, adjudication of the merits of the controversy in the suit were used by this Court in State of U.P. v. Janki Saran Kailash Chandra, the words were not used to take in every adjudication which brought to an end the proceeding before the Court in whatsoever manner but were meant to cover only such adjudication as touched upon the real dispute between the parties which gave rise to the action. Objections to adjudication of the disputes between the parties, on whatever ground, are in truth not aids to the progress of the suit but hurdles to such progress. Adjudication of such objections cannot be termed as adjudication of the merits of the controversy in the suit. As we said earlier a broad view has to be taken of the principles involved and narrow and technical interpretation which tends to defeat the object of the legislation must be avoided."

Dias on Jurisprudence at page 139 observed that: What is law in a precedent is its ruling or ratio decidendi, which concerns future litigants as well as those involved in the instant dispute. Knowing the law in this context means Knowing how to extract the ratio decidendi are distinguished as obiter dicta and are not authoritative. Three shades of meaning can be attached to the expression ''ratio decidendi'', the first which is the translation of it is the reason for (or of) deciding. Even a finding of fact may this sense be the ratio decidendi. Thus a Judge may state a rule and then decide that the facts do not fall within it. Secondly it may mean ''the rule of law preferred by the Judge as the basis of his decision; or thirdly, it may mean ''the rule of law which other regard as being a binding authority''. . . ...there is temptation to suppose that a case has once fixed ruling which is there and discoverable here and now and once and for all. This is not so far the ratio is rut only the ruling given by the deciding Judge for his decision, but any one of a series of rulings as elucidated by subsequent interpretations. The pronouncement of the Judge who decided the case is a necessary step towards ascertaining the ratio but the process by no means ends there, subsequent interpretation is at least as significant, sometimes more so."

In State of Punjab v. Baldev Singh AIR 1999 SC 2372 after referring to Commissioner of Income Tax Vs. M/s. Sun Engineering Works (P.) Ltd., , it was held that a decision is an authority for what it decides and not that everything said therein constitutes a precedent. The Courts are obliged to employ an intelligent technique in the use of precedent bearing it in mind that a decision of the Court takes it colour from the questions involved in the case in which it was rendered."

We, Therefore, are of the opinion that judgment of the Apex Court in Vinod Kumar Chaudhary v. Smt. Narain Devi (supra) having not been brought to the notice of the Apex Court in the later judgment in D.N. Sood v. Shanti Devi (supra) that the former judgment shall prevail over in D.N. Sood''s case wherein the legal question was neither noticed nor considered. No arguments on merit were advanced. The binding precedent in Vinod Chaudhary''s case was not brought to its notice. The said decision was, Therefore, rendered per incuriam.

In Union of India and Ors. v. Harjeet Singh Sandhu 2000 (3) Scale 336, it was held:

"We agree with submission of the learned Additional Solicitor General that the case of Dharam Pal Kukrety being a Three-Judges Bench decision of this Court should have been placed before the Two-Judges Bench which heard and decided Major Radha Krishan''a case."

The question raised before this Court is answered accordingly and the matter is remitted to the learned single Judge for disposal of the matter on merits.