Whether Judgment Delivered By The Court Without Hearing Another Side Is Binding As Precedent?

 

Friday, 16 April 2021

Whether Judgment delivered by the court without hearing another side / exparte is binding as precedent?

Also, in Municipal Corpn. of Delhi v. Gurnam Kaur,

(1989) 1 SCC 101 at 110, this Court stated:

“11. Pronouncements of law, which are not

part of the ratio decidendi are classed as

obiter dicta and are not authoritative. With all

respect to the learned Judge who passed the

order in Jamna Das case [Writ Petitions Nos.

981-82 of 1984] and to the learned Judge who

agreed with him, we cannot concede that this

Court is bound to follow it. It was delivered

without argument, without reference to the

relevant provisions of the Act conferring

express power on the Municipal Corporation

to direct removal of encroachments from any

public place like pavements or public streets,

and without any citation of authority.

Accordingly, we do not propose to uphold the

decision of the High Court because, it seems

to us that it is wrong in principle and cannot be

justified by the terms of the relevant

provisions. A decision should be treated as

given per incuriam when it is given in

ignorance of the terms of a statute or of a rule

having the force of a statute. So far as the

order shows, no argument was addressed to

the court on the question whether or not any

direction could properly be made compelling

the Municipal Corporation to construct a stall

at the pitching site of a pavement squatter.”

(Emphasis Supplied)

It is clear, therefore, that where a matter is not argued at

all by the respondent, and the judgment is one of

reversal, it would be hazardous to state that the law can

be declared on an ex parte appraisal of the facts and the

law, as demonstrated before the Court by the appellant’s

counsel alone. That apart, where there is a detailed

judgment of the High Court dealing with several

authorities, and it is reversed in a cryptic fashion without

dealing with any of them, the per incuriam doctrine kicks

in, and the judgment loses binding force, because of the

manner in which it deals with the proposition of law in

question. Also, the ratio decidendi of a judgment is the

principle of law adopted having regard to the line of

reasoning of the Judge which alone binds in future cases.

Such principle can only be laid down after a discussion of

the relevant provisions and the case law on the subject. If

only one side is heard and a judgment is reversed,

without any line of reasoning, and certain conclusions

alone are arrived at, without any reference to any case

law, it would be difficult to hold that such a judgment

would be binding upon us and that we would have to

follow it. In the circumstances, we are of the opinion that

the judgment in Yasangi Venkateswara Rao (supra)

cannot deter us in our task of laying down the law on the

subject. 

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL ORIGINAL JURISDICTION

WRIT PETITION (CIVIL) NO. 134 OF 2013

JAYANT VERMA Vs  UNION OF INDIA 

Author: R.F. NARIMAN, J.

Dated: February 16, 2018.

Citation: 2018(4) SCC 743

High Courts, Being Constitutional Courts Of Record, Has Inherent Jurisdiction To Recall Their Own Orders: SC

High Courts, Being Constitutional Courts Of Record, Has Inherent Jurisdiction To

Recall Their Own Orders: SC

Dec 6th 2018, 14:38, by Sukriti

ashok kini

“It is clear that these constitutional courts, being courts of record, the jurisdiction to recall their own orders

is inherent by virtue of the fact that they are superior courts of record.”

The Supreme Court has observed that the High Courts, being courts of record, has inherent jurisdiction to recall their

own orders.

In Municipal Corporation Of Greater Mumbai vs. Pratibha Industries Ltd,, the supreme court dealt with the

question on High Court’s power of recall of its orders.

A single bench of the Bombay High court initially ordered appointment of an arbitrator. Later the judge realised that

the agreement had no arbitration clause, and recalled the said order. On appeal by the other party, the Division

bench held that since there is no provision in Part I of the Arbitration and Conciliation Act, for any court to review its

own order, the review petition filed before the Single judge was not maintainable.

The Corporation approached the apex court challenging the Division bench order and Senior Advocate Ranjit Kumar,

who appeared for the corporation contended that it is always inherent in a High Court, being a court of record, to

recall its own orders. On the other hand, Senior Advocate Shekhar Naphade, who appeared for the other party,

contended that the Arbitration Act is a self contained Code, and, this being so, it is not possible to look outside the

four corners of the Act to find a review power, even by invoking Article 215 of the Constitution of India.

The bench comprising Justice RF Nariman and Justice MR Shah disagreed with the division bench view and said:

“It is clear that these constitutional courts, being courts of record, the jurisdiction to recall their own orders is inherent

by virtue of the fact that they are superior courts of record. This has been recognized in several of our judgments.”

The bench referred to judgments in National Sewing Thread Co. Ltd. v. James Chadwick & Bros., Shivdev Singh &

Ors. v. State of Punjab and M.M. Thomas v. State of Kerala.

The court also disagreed with the Senior Advocate Naphade’s contention that the Act being a self-contained Code, it

interdicts a review or recall application. It said: “Suffice it to state that having held that there is no arbitration

agreement pursuant to the order dated 27.06.2017, the Act will not apply.”