1960 A I R 941

ဆရာကြီးဦးမြသင်ကြားပို့ချချက်များ

မီးသေခြင်းဆိုင်ရာဥပဒေသသည်အမှုတမှု၏အဆင့်ဆင့်နှင့်သက်ဆိုင်သော်လည်း၊တရားမကျင့်ထုံးဥပဒေပုဒ်မ၁၀၅(၁)တွင်အကျုံးဝင်လျင်၊ဒီကရီကိုအယူခံဝင်ရာ၌ကြားဖြတ်အမိန့်မှန်ကန်မှုရှိမရှိ၊စောဒကတက်ခြင်းကိုပိတ်ပင်ခြင်းမပြု။

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1960 A I R  941

Supreme Court of India

Satyadhyan Ghosal And Others vs Sm. Deorajin Debi And Another 

on 20 April, 1960

Equivalent citations: 1960 AIR 941, 1960 SCR (з) 590

အမှုတွင်အိန္ဒိယတရားလွှတ်တော်ချုပ်ကအောက်ပါအတိုင်းဆုံးဖြတ်သည်-

“Remand order-Interlocutory-Whether can be challenged in appeal from final decree or order-Res judicata”

အိန္ဒိယတရားလွှတ်တော်ချုပ်ကစီရင်ချက်စာမျက်နှာ၄တွင်၊မီးသေခြင်းဆိုင်ရာဥပဒေသ၏သဘောကိုအောက်ပါအတိုင်းပြဆိုသည်-

“The principle of res judicata is based on the need of giving a finality to judicial decisions. What it says is that once a res is judicata, it shall not be adjudged again. Primarily it applies as between past litigation and future litigation. When a matter-whether on a question of fact or on a question of law-has been decided between two parties in one suit or proceeding and the decision is final, either because no appeal was taken to a higher court or because the appeal was dismissed, or no appeal lies, neither party will be allowed in a future suit or proceeding between the same parties to canvass the matter again. This principle of res judicata is embodied in relation to suits in s. 11 of the Code of Civil Procedure; but even where s. 11 does not apply, the principle of res judicata has been applied by courts for the purpose of achieving finality in litigation. The result of this is that the original court as well as any higher court must in any future litigation proceed on the basis that the previous decision was correct. The principle of res judicata applies also as between two stages in the same litigation to this extent that a court, whether the trial court or a higher court having at an earlier stage decided a matter in one way will not allow the parties to re-agitate the matter again at a subsequent stage of the same proceedings. Does this however mean that because at an earlier stage of the litigation a court has decided an interlocutory matter in one way and no appeal has been taken therefrom or no appeal did lie, a higher court cannot at a later stage of the same litigation consider the matter again?”

စီရင်ချက်စာမျက်နှာ၇နှင့်၈တွင်၊တရားမကျင့်ထုံးဥပဒေပုဒ်မ၁၀၅အကြောင်းကိုအောက်ပါအတိုင်းဖွင့်ဆိုသည်-

“The present Code in its 105th section uses practically the same phraseology except that the word “any such order" has been substituted by ‚”any order" and an additional provision has been made in the second sub-section in respect of orders of remand. 

The expression " such order" in s. 591 gave rise to a contention in some cases before the Privy Council that s. 591 applied to non-appealable orders only. This contention was overruled by the Privy Council and that view was adopted by the Legislature by changing the words " any such order "to" any order". 

As regards the orders of remand it had been held that under s. 591 of the Code a party aggrieved by an order of remand could object to its validity in an appeal against the final decree, though he might have appealed against the order under s. 588 and had not done so. 

The second sub-section of . 105 precludes an appellant from taking, on an appeal from the final decree, any objection that might have been urged by way of appeal from an order of remand.”

စီရင်ချက်စာမျက်နှာ၈တွင်၊အိန္ဒိယတရားလွှတ်တော်ချုပ်ကအောက်ပါအတိုင်းဆက်လက်သုံးသပ်သည်-

“It is clear therefore that an interlocutory order which had not been appealed from either because no appeal lay or even though an appeal lay an appeal was not taken could be challenged in an appeal from the final decree or order. A special provision was made as regards orders of remand and that was to the effect that if an appeal lay and still the appeal was not taken the correctness of the order of remand could not later be challenged in an appeal from the final decision. If however an appeal did not lie from the order of remand the correctness thereof could be challenged by an appeal from the final decision as in the cases of other interlocutory orders. The second sub-section did not apply to the Privy Council and can have no application to appeals to the Supreme Court, one reason the supreme Court against an order of remand. There appears to be no reason therefore why the appellant should be precluded from raising before this Court the question about the applicability of s. 28 merely because he had not appealed from the High Court's order of remand, taking the view against him that the section was applicable. We are unable to agree with the learned Advocate that the decision of the Privy Council in Ram Kirpal Shukul's Case (1) affects this matter at all.”

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PETITIONER: MAHADEOLAL KANODIA

                                 Vs.

RESPONDENT: THE ADMINISTRATOR-GENERAL OF WEST BENGAL

DATE OF JUDGMENT: 20/04/1960

BENCH:

GUPTA, K.C. DAS BENCH:

GUPTA, K.C. DAS GAJENDRAGADKAR, P.B.

WANCHOO, K.N.

CITATION: 1960 AIR936  1960 SCR(3) 578

အမှုတွင်အိန္ဒိယနိုင်ငံတရားရုံးများ၏ဆုံးဖြတ်ချက်များကိုလိုက်နာရသောတရားစီရင်ရေးမူကိုပြဆိုထားသည်မှာ၊မှတ်သားလိုက်နာဖွယ်ရာဖြစ်သည်-

“Held, also, that judicial decorum ought never to be ignored.

Where one Division Bench or a judge of a High Court is unable to distinguish a previous decision of another Division Bench or another Single judge and holds the view that the earlier decision was wrong, the matter should be referred to a larger Bench to avoid utter confusion.

Deorajan Devi v. Satyadhan Ghosal, [1953] 58 C.W.N. 64,overruled.”

စီရင်ချက်စာမျက်နှာ၈တွင်၊အိန္ဒိယတရားလွှတ်တော်ချုပ်ကအောက်ပါအတိုင်းအကျယ်တဝင့်သုံးသပ်ပြဆိုသည်-

“Before we part with this appeal, however, it is our duty to refer to one incidental matter.

We have noticed with some regret that when the earlier decision of two judges of the same High Court in Deorajan's Case was cited before the learned judges who heard the present appeal they took on themselves to say that the previous decision was wrong, instead of following the usual procedure in case of difference of opinion with an earlier decision, of referring the question to a larger Bench.

Judicial decorum no less than legal propriety forms the basis of judicial procedure.

If one thing is more necessary in law than any other thing, it is the quality of certainty. 

That quality would totally disappear if judges of co-ordinate jurisdiction in a High Court start overruling one another's decisions.

If one Division Bench of a High Court is unable to distinguish a previous decision of another Division Bench, and holding the view that the earlier decision is wrong, itself gives effect to that view the result would be utter confusion.

The position would be equally bad where a Judge sitting singly in the High Court is of opinion that the previous decision of another single Judge on a question of law is wrong and gives effect to that view instead of referring the matter to a larger Bench. 

In such a case lawyers would not know how to advise their clients and all courts subordinate to the High Court would find themselves in an embarrassing position of having to choose between dissentient judgments of their own High Court.

As far as we are aware it is the uniform practice in all the High Courts in India that if one Division Bench differs from an earlier view on a question of law of another Division Bench, a reference is made to a larger Bench.

In the Calcutta High Court a rule to this effect has been in existence since 1867.

It is unfortunate that the attention of the learned judges was not drawn in the present case to that rule.

But quite apart from any rule, considerations of judicial propriety and decorum ought never to be ignored by courts in such matters.

On the merits, as we have found that the view of law taken by the High Court in this case is correct, the appeal is dismissed.”