DAGDU Vs. TULSIRAM AND ORS.

JUDGEMENT

(1.) THE material facts giving rise to this reference to a Full Beach may be briefly stated as follows : On 22nd April 1948, Rulers of the States of Gwalior, Indore and certain other smaller States in Central India, entered into a covenant to unite and integrate their territory in one State, called United State of Gwalior, Indore and Malwa (hereafter referred to as the United State) with a common Executive, Legislature and Judiciary and in pursuance of this covenant the United State was inaugurated on 28th May 1948. This High Court of Judicature of the United State was established by an ordinance (No. 2 of 1948) which came into force on 29th July 1948, According to Clause 35 of the Ordinance tribunals, previously functioning as High Courts in the various covenanting States, ceased to exist on the latter date and the pending cases in all such tribunals were transferred for disposal to this High Court. One of these cases, pending before the High Court of Judicature at Indore (civil Second Appeal No. 16 of 1947) which was transferred to this High Court, came up for hearing before a single Judge of this Court. The learned Counsel for both the parties admitted before the learned Judge that the case was governed by a Full Bench decision of the Indore High Court in Civil Second Appeal No. 148 of 1946, decided on 12th April, 1946 but the learned Judge was apparently inclined to differ from the Full Bench decision and has made the present reference to a Full Bench. The learned Judge has remarked in the course of his order of reference that:

(2.) THE first question which requires decision in the above circumstances is, how far the decisions of the High Courts in the covenanting States should be held to be binding on the Judges of this High Court and under what circumstances such decisions are open to re -consideration. In view of the importance of this question, the case has boon put up before this Bench for decision of this preliminary point. The question as to how far the decisions of a previous tribunal, functioning as a High Court in the sumo territory as newly established High Court, are binding has been before the High Courts in India in similar circumstances. The leading case on the subject appears to be Ma Mya v. Ma Them, A.I.R. 1927 Bang. 4 :, 4 Rang. 313 (P.B.), which came up before a Full Bench of the Rangoon High Court consisting of nine Judges. The High Court of Judicature at Rangoon had replaced the Chief Court of Lower Burma and the questions referred to the Full Bench were as follows:

(3.) EIGHT of the nine Judges took in the view that the decision of the Chief Court of Lower Burma were not absolute authorities binding on the High Court on either the Original or Appellate Side, inasmuch as the Chief Court could not be held to be a Court of coordinate jurisdiction with the High Court. These decisions were however, conditional authorities of the highest value to which the greatest weight and respect must be attached and therefore the Judges of the High Court should not consider themselves free to set those decisions at naught, except for the best and most urgent reasons and the principle of stare devises should be applied to these decisions in no narrow or technical spirit.