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P.Padmanaabhan (advocate)     05 February 2012

Per incuiam order of the high court

 

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.

"The high court does not have the power to overrule a SC judgments it would only distinguish that judgment to the case before it. A mechanism adopted by lower judiciary " 

 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.”

 Therefore   order dated XX-0X-2010 of the Honble High Court in CRP PD no XXXX of  2010 is per incuriam and it can not be proceeded with further by this Honble Court for want of jurisdiction by this court for the obvious and simple reason that an order per incuriam, not being a binding precedent,  does not confer any jurisdiction at all.

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 onble court H 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

 

 

 

 

 

 

 

  



 8 Replies

kvss.prabhakar rao (Advocate )     05 February 2012

Dear Padmanabhan you have done very good job, Thaks for this job. Very good

P.Padmanaabhan (advocate)     05 February 2012

dear thiru.Kvsspr. thnak u for reading,  visiting here and your appercaitaive words recorded here. I would be very greatful to our fraternity if more views are recorded, especially experssing their opinion on my  approach .
I am just back home after a day long drive. Thank u again.Sir.

P.Padmanaabhan.at 08:09 PM IST on 5th Feb 2012

Dr J C Vashista (Lawyer)     06 February 2012

An excellent rather par-excellance pains-taking effort, very well-done. Thanks for enlightening the fraternity including myself.

P.Padmanaabhan (advocate)     09 February 2012

thank u Dr.maj J.V.vashista. the matter wil be aherd ye matter will be heard on heard on 17th Feb and will post here the order  after the honble disposes the memo of objection.

P.Padmanaabhan, advocate. 20:24 hrs IST on 9th Feb 2012

P.Padmanaabhan (advocate)     14 February 2012

with two more daysleft for arguing my obejction by memo on rthe basis of per incuriam principle to the further proceedings by the trial court of recalling  the witness DW1, as   am getting ready for my submission (arguments) I have come across the follwowign judgment too annet per incuriam piciple:   

"The decision of the High Court holding to the contrary is in per curiam without reference to the aforesaid decisions.” -K.H.Siarj V High Court of Kerala (2006)  6 SCC 395 at page 427 para 74: AIR 2006 SC 2339. 

this means where the high cour deciison dors not refer r to the decision of the Supreme Court, the high Court   deciision dealing  with the issue is per incruiam
P.Padmanaabhan , Advocate

P.Padmanaabhan (advocate)     02 March 2012

nice to be here. On 17-02-2012, the hearing was adourned to as i heard it to be on 08-03-2012. But on 28th Feb mornning one fo the learned advocates friend apeparing for defendnats to inofrom me that the case had been called on and taken up for heariing and in view of my absence and at his request on behalf of me , the judge had passed over the matter and waiting for me! I dressed up and drove fast to the colurt..in about 6 to 10 minutes. 

YES. Not 08-03-2012..it was really 28-02-2012 posetd ! It was my mistake. On 17-02-20`12 there was boycot of courts by local lawyers colleagues. And hence  rthe matter had been adjourned  to 28-02-2012.

Any wqawy at the hearign the Honble additonal district and sessions judge ( a aldy) expresed two concerns-

Whether upholding my objection in accrordance with the principle of per incuriam , and not to pursue  the high Court order will amount to contempt commitetd by the  subordinate judge of the High court? 

The other concernw as why noit give opportunity to the defendants 2-7  seeking to recall the witenss  on the strength of the High Couirt order? 

having rasied the two concerns aforesaid , the honble judge adjourned the  matter to 26-03-2012 tin a gesture of  accommodating  my health needs . 

i will meet both the concerns expressed by the court . But my respecetd lawyers colleagues reading here  may also add their views in my new thread " CONTEMPT OF SUPERIOR COURT? " which si to be posetd in afew minutes,   by  way of helping me and guiding me. I will gratefully apprecaite the replies please. 

P.Padmanaabhan. Advocate at 02;20 AM IST on 2 March 2012 

P.Padmanaabhan (advocate)     28 March 2012

vanakkam..the memo of obejction persemnetd on 19-12-2011 last came for hearing on 28-02-2012 I move the court for two week adjournent  to meet the exigency of my need to undergothree surgeries. The court was pleased to adjourn the matter to 26-03 2012. I had undeergone  surgeries on 08-03-2012 and was dicharged from hospital  on 12-03-2012, with advise for further rest of foru weeks . Thus on  26-00-2012 i moved the court on the strength of  my dischage summary for further two wweks adjorunment and cosnequently the haearign will be on 10-04-2012 . I am pre[patign to argue the objection on 10-04-2012. 

P.Padmanaabhan advocate. 10-41 PM /22-41 hrs IST on 28th March 2102

P.Padmanaabhan (advocate)     07 July 2013

It is more than an year since I last posted  on 28rth March 2012 above. Notwithstanding the order  per incuiram dated  28-09-2010, and iwithout considering my objections filed  in writing on n 19-12-2011, by a memo of obejctions, , the trial  court is likley to proceed  to allow rexcall proceedinsg to take place on 10-07-2013. But  wait fro further comments till. 09 and 10th July 2013. 


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