Dear friends,
in an old link relating to per incuriam principle ( https://www.lawyersclubindia.com/forum/PER-INCURIAM-4982.asp) i fidn the follwing two comments- -
"It simply means "Through want of care" Under Article 141 of the Constitution of India, law declared by the Supreme Court of India shall be binding on all courts within the territory of India. It create a Constitutional organ whose declarations of law is binding on all Courts in the Republic. At times court are not aware or failed to bring to the notice of the Court, of such rulings of the SC and decision is given, such decision is called Per Incuriam.”
I have an interesting situation as explained below- to meet which the aforesaid comments are not adequate .Hence this posting seeking to elicit better views on the matter . -
the trial court passed an order in an IA filed under order 18 Rule 17 of CPC. ( recall of witness). The authority on the issue is the apex court judgment in the case of Vadiraj Naggappa Vernekar Vs. Sharadchandra Prabhakar Gogate (reported in 2009 (4) SCC 410) . ( hereinafter as Vadiraj case )
The case law had been specifically pleaded in the counter filed in the IA. Still the trial judge passed order ignoring the case law that lays down the scope , purpose and application of the said procedural Order in the CPC. That is to say, the law of recall of witness has been laid down in that case in five cardinal principles:
“16. In our view, though the provisions of Order 18 Rule 17 CPC have been interpreted to include applications to be filed by the parties for recall of witnesses, the main purpose of the said rule is to enable the Court, while trying a suit, to clarify any doubts which it may have with regard to the evidence led by the parties. The said provisions are not intended to be used to fill up omissions in the evidence of a witness who has already been examined. As indicated by the learned Single Judge, the evidence now being sought to be introduced by recalling the witness in question, was available at the time when the affidavit of evidence of the witness was prepared and affirmed. It is not as if certain new facts have been discovered subsequently which were not within the knowledge of the applicant when the affidavit evidence was prepared. In the instant case, Sadanand Shet was shown to have been actively involved in the acquisition of the flat in question and, therefore, had knowledge of all the transactions involving such acquisition. It is obvious that only after crosse xamination of the witness that certain lapses in his evidence came to be noticed which impelled the appellant to file the application under Order 18 Rule 17 CPC. Such a course of action which arises out of the fact situation in this case, does not make out a case for recall of a witness after his examination has been completed. The power under the provisions of Order 18 Rule 17 CPC is to be sparingly exercised and in appropriate cases and not as a general rule merely on the ground that his recall and re-examination would not cause any prejudice to the parties. That is not the scheme or intention of Order 18 Rule 17 CPC.
17. It is now well settled that the power to recall any witness under Order 18 Rule 17 CPC can be exercised by the Court either on its own motion or on an application filed by any of the parties to the suit, but as indicated hereinabove, such power is to be invoked not to fill up the lacunae in the evidence of the witness which has already been recorded but to clear any ambiguity that may have arisen during the course of his examination. Of course, if the evidence on reexamination of a witness has a bearing on the ultimate decision of the suit, it is always within the discretion of the Trial Court to permit recall of such a witness for re-examination-in-chief with permission to the defendants to cross- examine the witness thereafter. There is nothing to indicate that such is the situation in the present case. Some of the principles akin to Order 47 CPC may be applied when a party makes an application under the provisions of Order 18 Rule 17 CPC, but it is ultimately within the Court's discretion, if it deems fit, to allow such an application. In the present appeal, no such case has been made out “
The trial judge never considered the aforesaid case law authority at all. Then the order was taken in revision to the High Court under Article 227 of COI. The vadiraj case had been pleaded in the Grounds of revision itself. Here again the judge dismissed the civil revision petition without considering the aforesaid authority . The judge was chambermate of the counsel representing the respondents. R2 was the daughter in law of the counsel and the judge e and the counsel were chamber mates for over 15 years.
The matter was taken to the Apex Court in an appeal with SLP. But the SLP itself was dismissed without leave to appeal. Because the counsel who made submissions seeking leave was not focusing on the issue of the both courts below not considering the case law laying down the law of recall. The vadiraj case had been adverted to in the SLP itself. I was present in the 7th court when the SLP was moved .
Now, since there was no disposal of appeal as such.. dismissal of SLP leave the lower Court order ( High Courtintact. A review aw short field since the fate is a foregone ! The same judge wil dispsose the review petition and he will not favour us.
The original trail court order was in the year 2010 and the high court order too was in the same year. The dismissal fo SLP was SLP was in Fbe 2011.
Now the trial court posted the re-examination of the witness –
I have filed the following objection by a memo:
“The following objection is raised in respect of the current consequential proceedings in enforcement of the order dated XX-0X-2010 of the Honble High Court passed in CRP PD NoXXXX of 2010 and the same may kindly be recorded. It is most humbly prayed that suitable instructions may be given to the defendants 2-7. .
Inasmuch as the order dated XX-0X-2010 passed by this Honble Court, admittedly without hearing either side and in the absence of parties of both side, and recorded in the said order itself, in I.A.No. XXX of 2009, filed by the defendants 2-7 as petitioners under Order 18 Rule 17 of CPC, having been mpugned under Article 227 of Constitution of India in CRP (PD) NO XXXX of 2010 in the Honourable High Court of Judicature at Madras, and the High Court having rendered its decision on XX.-0X.2010, the order dated XX-0X-2010 of this Honble Court has merged with the aforesaid order of the Honurable High Court dated XX-0X-2010 which is now final.
The order of the High court dated XX-0X-2010 is in per incuriam and is not a binding precedent on this Honble Court. With the result this Honble Court does not have jurisdiction to engage itself in consequential proceedings in enforcement of the aforesaid order Per incuriam.
Authorities.
Doctrine of Merger: In the land mark case of Kunhayammed & Ors.Vs.State of Kerala & Anr.- 2000 (6) SCC 359 :JT 2000 (9) SC 110 : AIR 2000 SC 2587 , the Honble Supreme Court of India, quoting another judgment of the Apex Court, has held that-
“Their Lordships referred to an earlier decision of this court in U.J.S. Chopra Vs. State of Bombay AIR 1955 SC 633 wherein it was held:
A judgment pronounced by a High Court in exercise of its
appellate or revisional jurisdiction after issue of a notice and
a full hearing in the presence of both the parties would replace
the judgment of the lower court, thus constituting the judgment
of the High Court the only final judgment to be executed
in accordance with law by the courts below.”
Therefore, the order dated XX-0X-2010 in CRP PD No.XXXX of 2010 is the final order in the matter of recall of DW1., made by the Honble High Court in exercise of its revisional jurisdiction under Article 227 of Constitution of India.
Moreover, it is most humbly submitted that the aforesaid order dated XX-0X-2010
has not been modified or revised by any judgment of the Apex court in any appeal as such in exercise of its appellate jurisdiction under Article 136 of Constitution of India. Therefore, as on this date, the final order dated XX-0X-2010 of the honble High Court is the final judgment, and in view of the Apex court ruling that such a final judgment has to be executed “ in accordance with law by the courts below”, this honble Court in the current proceedings seeking to enforce the aforesaid order dated 28-09-2010 has to follow law and not otherwise.
It is respectfully submitted that the “in accordance with law” means and includes this Court acting under necessary jurisdiction. It is most respectfully submitted further that the order dated 28-09-2010 passed by the Honble High Court in CRP PD No.2442 of 2010 is, though the final judgment to be executed only in accordance with law by this court , incontrovertibly in per incuriam and hence it can not and does not confer on this court any semblance of jurisdiction at all.
Hence the current proceedings seeking to enforce the order dated 28-09-2010 of the Honble High court is without jurisdiction.
Per Incuriam:
N. Bharhavan Pillai v State of Kerala- (2004) 13 SCC 217at 223 para 14 : AIR 2004 SC 2317 -
“A decision Per incuriam is not binding”
Central Board of Dawood Bohra community State of Maharashtra (2005) 2 SCC 673 at 679-80 para 7 : AIR 2005 SC 752-
“Per incuriam means a decision rendered
by ignorance of a previous binding decision of
its own or of a court of coordinate or higher
jurisdiction or in ignorance of the terms of a
statute or of a rule having the force of law”
State of Punjab v Surinder Kumar -(1992) 1 SCC 489 : AIR 1992 SC 1593
“A decision is available as a precedent only
if it decides a question of law”
Precedents – Per incuriam decision- Constitution of India – Art. 141.\
V. Kishnan Rao vs Nikhil Super Speciality Hospital and Another. [ (2010) 5 Supreme Court Cases 513 –
“When a judgment is rendered by ignoring
provisions of a statute and earlier larger Bench
decision on the point, such decision is
per incuriam – Such judgment is not a binding
precedent ”
As early as in 1984, in the case of Syed Mohideen vs Government Of Tamil Nadu
And Anr. on 26 October, 1984- AIR 1986 Mad 188: (1985) IILJ 348 Mad, decided
on 26-10-1984 by a Full Bench of three judges (M Chandurkar, CJ, Sathiadev, S
Kader JJ ) has quoted the para 24 of the Apex Court judgment in the case of
Jeisri v. Rajdewan, AIR 1962 SC 83 to the following effect which are part of
observations in Halsbury's Laws of England, Third Edition, Vol. 22, para 1687,
pages 799-800:
"The Court is not bound to follow a decision of its own if
given per incuriam. A decision is given per incuriam
when the court has acted in ignorance of a previous
decision of its own or of a court of a co-ordinate jurisdiction
which covered the case before it, or when it has acted
in ignorance of a decision of the House of Lords. In the
former case it must decide which decision to follow,
and in the latter it is bound by the decision of the House
of Lords".
“To the type of cases referred to in the passage from the
Halsbury's Laws of England cited above, must also be
added decisions which are rendered without noticing the,
crucial and relevent statutory provisions or the prov
of rules governing the relevant controversy.”
Later in another case of Philip Jeyasingh vs The Joint Registrar Of ... decided on
22 January, 1992- (1992) 2 MLJ 309 : (1992) 1 L.W. 216, again a Full Bench of the
Honble High Court of Judicature at Madras, after quoting para 23 of the judgment
of aforesaid Syed Mohideen case has held :
“The proposition that a decision per incuriam need not be
followed as a binding precedent is well established.”
The said order is per incuriam because it was passed without considering and applying the binding authority of the Honble Apex Court in the case of VADIRAJ NAGAPPA VERNERKAR –vs- SHARAD CHANDRA PRABHAKAR COGATE, decided on 24.02.2009, [2009] 4 SCC 410- In this case the law of recall under Order 18 Rule 17 of CPC in scope and application is explained in five lucid principles and the same is NOT considered and applied at all in the order dated XX-0X-2010 in CRP PD no.XXXX of 2010. Hence the character of the order dated XX-0X-2010 is order in per incuriam, that is, not being a binding precedent , and this Honourable Court has no jurisdiction to further proceed with the order dated XX-0X-2010.
Therefore any proceedings to enforce an order in per incuriam is not in accordance with law and will be against the ruling of the Apex Court in U.J.S. Chopra Vs. State of Bombay AIR 1955 SC 633 and quoted by the Bench of three judges in the aforesaid case of Kunhayammed & Ors. Vs. State of Kerala & Anr.
It is most humbly submitted that , should the defendants still need this Honble Court to enforce the order in per incuriam dated XX-0X-2010, it is incumbent on them , in view of the aforesaid case laws of the Apex Court and of Full Benches of our own High Court, to approach the Honble High Court for further clarification or direction to this Court by appropriate steps in the High Court. The 2nd plaintiff would fully be cooperating with them in accordance with law in any proceedings before the honble High Court.
Is my above objection sustainable? May the illustrious members of this club throw further light on this matter. Please. The opposite side has field a very brief counter objection to my memo of objection . Let us ignore it for the time being. For submissions the mater is posted to a date in Feb middle.
P.Padmanaabhan. Advocate at 02:21 am IST on 5th Feb 2012
