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

No Bar For Filing Application Under Order 1 Rule 10, Even When That Filed Under Order 22 Rule 4 Of CPC Is Dismissed As Not Maintainable

No Bar For Filing Application Under Order 1 Rule 10, Even When That Filed Under Order 22 Rule 4 Of CPC Is Dismissed As Not Maintainable: SC [Read Judgment]

Oct 5th 2017, 08:17, by Sukriti

Justice, according to the law, does not merely mean technical justice, but that law is to be administered to advance justice, the bench observed.

The Supreme Court, in Pankajbhai Rameshbhai Zalavadia vs Jethabhai Kalabhai Zalavadiya (Deceased) through LRs & Ors, has held that there is no bar for filing the application under Order 1 Rule 10, even when the application under Order 22 Rule 4 of the CPC was dismissed as not maintainable.

Setting aside the high court order, terming it a ‘hyper technical approach’, a bench comprising Justice Arun Mishra and Justice Mohan M Shantanagoudar observed that the legal heirs of the deceased person in such a matter can be added in the array of parties under Order 1 Rule 10 of the Code read with Section 151 of the Code, subject to the plea of limitation as contemplated under Order 7 Rule 6 of the Code and Section 21 of the Limitation Act, to be decided during the course of trial.

In the instant case, suit was filed against some persons, including a person who had already died. The court ordered that the suit had abated as against that defendant. The plaintiff’s application under Order 22 Rule 4 of the Code for bringing on record the legal representatives of deceased defendant was also dismissed by the trial court. Later, he filed an application for impleading the legal representatives of deceased defendant, which was also dismissed by the trial court by applying the principle of res-judicata merely because the application filed earlier under Order 22 Rule 4 of the Code was dismissed on account of non-maintainability. The high court affirmed the trial court order.

With respect to application under Order 22, the apex court observed: “If one of the defendants has expired prior to the filing of the suit, the legal representatives of such deceased defendant cannot be brought on record in the suit under Order 22 Rule 4 of the Code.”

But the bench also observed that the trial court could have treated the said application filed under Order 22 Rule 4 of the Code as one filed under Order 1 Rule 10 of the CPC, in order to do justice to the parties. “Merely because of the non-mentioning of the correct provision as Order 1 Rule 10 of the Code at the initial stage by the advocate for the plaintiff, the parties should not be made to suffer,” it said.

The bench said: “There is no bar for filing the application under Order 1 Rule 10, even when the application under Order 22 Rule 4 of the Code was dismissed as not maintainable under the facts of the case. The legal heirs of the deceased person in such a matter can be added in the array of parties under Order 1 Rule 10 of the Code read 27 with Section 151 of the Code subject to the plea of limitation as contemplated under Order 7 Rule 6 of the Code and Section 21 of the Limitation Act, to be decided during the course of trial.”

Read the Judgment Here

Suit For Mere Injunction Not Maintainable When Defendant Can Successfully Raise Cloud Over Plaintiff’s Title: SC

Suit For Mere Injunction Not Maintainable When Defendant Can Successfully Raise Cloud Over Plaintiff’s Title: SC [Read Judgment] Oct 24th 2018, 16:55, by Sukriti ashok kini ‘A suit for mere injunction does not lie only when the defendant raises a genuine dispute with regard to title and when he raises a cloud over the title of the plaintiff.’ The Supreme Court has reiterated that a suit for bare injunction would not be maintainable when a defendant could successfully raise cloud over the title of the plaintiff. The Jharkhand State Housing Board had approached the apex court assailing the high court and trial court judgment that had decreed a suit for permanent injunction filed by one Dildar Singh. The board contended that the suit is not maintainable without seeking the relief of declaration of title as the suit schedule property was recorded in the revenue records in the name of the defendant. It was also contended that, without seeking right, title, possession and correction of entries in record of right, plaintiff cannot maintain the suit for injunction. The high court, while rejecting its appeal, had observed that as the plaintiff is in possession of the property, he can protect his possession against any interference and it is not necessary to prove his title to the property. The bench comprising Justice N.V. Ramana and Justice Mohan M. Shantanagoudar observed that the board by relying upon the land acquisition proceedings and the possession certificate could successfully raise cloud over the title of the plaintiff and in those circumstances plaintiff ought to have sought for the relief of declaration and the suit for injunction simplicitor could not have been entertained. The bench said: “It is well settled by catena of Judgments of this Court that in each and every case where the defendant disputes the title of the plaintiff it is not necessary that in all those cases plaintiff has to seek the relief of declaration. A suit for mere injunction does not lie only when the defendant raises a genuine dispute with regard to title and when he raises a cloud over the title of the plaintiff, then necessarily in those circumstances, plaintiff cannot maintain a suit for bare injunction.” Read the Judgment Here