Full bench reference

Guest (Querist) 09 February 2021 This query is : Resolved
There are two conflicting judgements on single law point by two divisional bench.
What is the procedure for reference to Full bench in Bombay High Court.

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P. Venu (Expert) 09 February 2021
The information posted is incomplete. Please post the facts as well the context.

K Rajasekharan (Expert) 09 February 2021
Let me try to point out the pros and cons of this complex issue.

It seems there is no well settled principle or procedure in this issue to solve this issue as it is not very easy to settle such an issue.

In fact, the second co-equal bench should have followed the judgement of the earlier equal bench by following judicial discipline.

If they found some difference of opinion with the earlier bench the subsequent bench could have brought the matter to the notice of the chief justice and he could in turn referred it to a larger bench for decision.

Whatever be, the subsequent bench taking a contrary decision is not right in law if the facts of the case are same.

But when the facts of the case are different the subsequent bench has enough authority to take a different decision with justification for deviating from the earlier one.

It seems that a court considering a conflicting decision alone can refer the matter to the chief justice for referring the matter to a larger bench because he is the master of the roaster.

Even a high court judge confronting two conflicting decision of the Supreme Court also cannot refer the matter to the higher court for resolution. But such a bench can choose to follow the one with more merit in their judgement.

It seems there is no mechanism for an advocate to refer such a matter except through his judge who deals with such an issue.

Rather it is better for him and he has every right to use the judgement which is favourable to him in his case.

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Guest (Querist) 09 February 2021
Resp. Sir ,
1. Thank you very much for your kind guidance.
2. Such problem can be guided by only practicing advocate of Hon. HC & Hon. SC with lot experience.
3. For juniors like me your guidance was indeed valuable

Thank you ,
With regards

Madhumilind

Guest (Expert) 09 February 2021
Kind Attn --Author--Madhu -- The better Course would be for the Bench hearing the Case to refer the matter to the Full Bench in view of the Conflicting authorities without taking upon itself to decide whether it should follow the decision of one Bench or the other.

Guest (Querist) 09 February 2021
Ok , there was two stand taken by seniors
1. Move towards Administrative bench headed by His Lordship The Chief Justice and pray for Larger bench reference
2. Move towards concern bench they formulate the law point and send it to His Lordship The Chief Justice and he constitute the Larger bench (Full bench) .

Dr J C Vashista (Expert) 10 February 2021
Very well opined and advised by expert Mr K Rajsekharan, I fully agree and appreciate.

In the situration where two benches of equal strength passing conflicting jundgment on law point, the decision of earlier bench shall hold good if the subsequent bench has not discussed and discarded earlier decision, please refer to MP High Court case titled Jabalpur Bus Operators Association Vs. State of MP

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