1997 PLP (Trib (PTD)

"(1) The decision of Full Bench of the Court cannot be dissented from by a Division Bench or a Single Bench, (2) the decision of a Division Bench of the Court cannot be dissented from by a Single Bench, (3) the decision of a Division Bench of the Court can be dissented from by another Division Bench or even by the same Bench and may be overruled by a Full Bench but it cannot be dissented from by a Single Bench, and (4) the decision of a Single Bench can be dissented from by another or the same Single Bench and can be overruled by a Division Bench or a Full Bench."

8. The other judgment cited in this behalf was Jamal v. The State (PLD (1960) Lahore 1192) wherein it was held as under:

"Chaudhri Muhammad Anwar, Advocate, the learned counsel for the appellant next urged that as Division Bench had taken a certain view in Criminal Appeal No. 767 of 1959, this Division Bench could not take a contrary view and if the view taken in the 1959 case was considered untenable, it was the duty of this Division Bench to refer the case to a larger Bench so that the law may be authoritatively laid down. I am clearly of the view that this contention is without force. Precisely the same question was considered in Bashir Ahmad etc. v. The State PLD 1960 Lah. 687, in which a judgment of Abdul Aziz Khan and A.R. Khan, JJ., with regard to another aspect of section 342 of the Code of Criminal Procedure was considered and in the leading judgment delivered by me I expressed the view, which was concurred in by Sajjad Ahmad, J. that a decision of a Division Bench was not binding on another Division Bench. It is unnecessary to give here elaborate reasons for that view and all that need be said is that it is not obligatory for a Division Bench if it does not agree with the views of another Division Bench to follow the views it does not agree with, and in case it is not prepared to do this, to refer the case to a Full Bench."

9. The Honourable Judges of the High Court held that the view expressed in above decisions was bound to create confusion and particularly when there are two different views taken by two Division Benches and the issue is heard by a Single Bench with the agreement of a Single Bench with the decision of one of the Division Benches would ipso facto result in dissenting from the decision of another Division Bench while both the decisions as per the principles laid down in the above judgments have a binding effect on a Single Bench. However, it cannot be said as to which decision out of the conflicting decisions will have the binding effect. It was further observed that particularly the position of the subordinate judiciary would be very confusing. It was further observed that anomally which it will create will be beyond any remedy. A subordinate Judge may have to sit in judgment on the decisions given by two Division Benches and to decide for himself as to which decision would be acceptable to him. It was further held that the position created by these decisions was likely to be conductive to creating confusion and chaos. It was further noted in the above judgment that as soon as the two conflicting decisions were given a situation arose where a third Division Bench was confronted with the difficulty an the same point of law which was decided in the first two cases. The Division Bench could not defy as to which view would prevail and as such a reference was made to learned Chief Justice to constitute a Full Bench to have a final and authoritative verdict on this point.

10. It was further expressed by the Honourable Judges of the High court that there was no statutory provisions for the proposition that the decision of one Division Bench will be binding on another Division Bench but there were decisions directly or indirectly wherein it has been laid down that the decision of one Division Bench has binding effect on another Division Bench. After an elaborate survey of the case law from Pakistan and Indian jurisdiction the Honourable Judges sitting on the Division Bench made reference to a Larger Bench for decision on three points. Out of three questions referred to the Larger Bench following question only is relevant for our purposes: "Is the decision given by the one Division Bench binding on another Division Bench and if so to what extent"?

11. The above question was considered by a Larger Bench and Honourable Mr. Justice Waheeduddin Ahmed speaking for the Larger Bench observed as follows: "Admittedly there is no statutory provision in the law applicable to Pakistan on this point. The answer to the question, therefore, depends on the consideration of judicial propriety and decorum which forms the basis of judicial procedure. Both the counsel for the parties urged before us that the uniform practice in all the High Courts in pre-partition and post-partition India is that if one Division Bench differs from the earlier views on a question of law, a reference is to be made to a Larger Bench. But there is no authoritative decision so far as Pakistan is concerned in this respect. On the contrary in the case of Bashi, Ahmed v. State (PLD 1960 Lah 687) and in the case of Jamil v. State (2) two Division Benches of this Court have observed that the decision of the Division Bench can be dissented from by another Division Bench on the same High Court. In fact, the present trend of decisions show that it has become a common practice in this court that a Division Bench, if it does not agree with the view taken on a point of law in the earlier Division Bench, dissents from it and proceeds to decide the matter on the view formed by them. It is, therefore, quite obvious that there is lot of uncertainty and confusion both in the minds of the subordinate judiciary and litigant public about the doctrine of judicial certainty, which is not at all conducive and proper in the administration of justice in this province."

12. While giving resume of the conflict in the Indian jurisdiction and final decision by the Supreme Court of India in the case of Mahadeolal Kanodla v. The Administrator General of West Bengal AIR (1960) SC 936, the following observations were cited:

"Before we part with this appeal, however, it is our duty to refer to one incendental matter. We have noticed with some regret that when the earlier decision of two Judges of the same High Court in Deorajin's case 58 Cal. W.N. 64, 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 thing, it is the quality of certainty. That quality would totally disappear if Judges of coordinate 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, it self gives effects to that view the result would be utter confusion. The position would be equally bad where a Judge sitting singly in the High Courts 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 that 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 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. " 13 Another judgment from Supreme Court of India in Jaisri Sahu v Rajdewan AIR 1962 SC 83 was cited with approval. In this case the Supreme Court of India held as follows:

"When a Bench of the High Court gives a decision on a question of law, it should, in general be followed by other Benches unless they have reasons to differ from it, in which case the proper course to adopt would be to refer the question for the decision of a Full Bench. Law will be bereft of all its utility if it should be thrown into a state of uncertainty by reason of conflicting decisions, and it is, therefore, desirable that in case of difference of opinion, the question should be authoritatively settled. It sometimes happens that an earlier decision given by Bench is not brought to the notice of a Bench hearing the same question, and a contrary decision is given without reference to the earlier decision. When two such conflicting decisions are placed before a later Bench, the correct procedure to follow in such a case would be for the Bench hearing the case to refer the matter to a Full Bench in view of the conflicting authorities without taking upon itself to decide whether it should follow the one Bench decision or the other. "

14. Some decisions from English jurisdiction and Privy Council were also cited and ultimately held that the following principles emerge which can be safely adopted by the High Court. "(1) That in order to maintain the judicial decorum and propriety the decision of a Division Bench on a question of law should be followed by other Bench. If they differ from it the proper course to adopt would be to refer the question for the decision of a Full Bench. (2) The decision of one Division Bench on a question of fact is not binding on the other Division Bench. (3) If the decision of one Division Bench has not come to the notice of the other Division Bench and a different view is taken in the subsequent Division Bench case, when such two conflicting decisions are placed before the Bench, proper procedure to follow in such case would be, for the Bench hearing the case, to refer the matter to a Full Bench in view of the conflicting authorities without deciding the question itself. In my opinion, if the above-principles are not followed, it is bound to create not only uncertainty but confusion in the minds of the litigant public and subordinate Courts about the judicial decision of this Court. It will also not enhance the prestige of this Court."

15. However, it was observed in the end that the abovementioned principles will not be applicable to per incur am decisions which carry no binding effect. The same principles have been approved by the Honourable Supreme Court of Pakistan in a recent judgment, Multiline Associates v. Ardeshir Cowasjee PLD 1995 SC 423 wherein it has been held as under:

"In such circumstances, legal position which emerges is that the second Division Bench of the High Court should not have given finding contrary to the findings of the 1st Division Bench of the same Court on the same point and should have adopted the correct method by making a request for constitution of a larger Bench, if a contrary view had to be taken. In support reference can be made to the cases of the Province of East Pakistan v. Dr. Azizul Islam (PLD 1963 SC 296) and Sindheswar Ganguly v. State of West Bengal (PLD 1958 SC (Ind.) 337), which is a case of Indian jurisdiction. We, therefore, hold that the earlier judgment of equal Bench in the High Court on the same point is binding upon the second Bench and if a contrary view had to be taken, then request for constitution of a larger Bench should have been made."

16. The above point has been considered by Supreme Court of India in some recent judgments also but we are of the opinion that in view of the availability of judgments by the superior Courts in Pakistan we need not to look for guidance from the judgments of superior Courts in Indian jurisdiction and, therefore, we do not propose to refer the said judgments. The above-discussion leaves no scintilla of doubt that in view of the law as laid down by the superior Courts the decision of a Division Bench is binding on the other Division Benches of the same judicial institution. As already held by the Honourable High Court and Honourable Supreme Court it is absolutely necessary to observe this principle in order to avoid the conflicting decisions by the Benches of equal strength which is bound to create complications, confusion and chaos which will result in uncertainty and would be ultimately disastrous to the administration of justice.

17. Consequent to the above-conclusion we are of the considered opinion that a mistake of law has taken place whereby the earlier decisions of Division Bench of the Tribunal has been ignored and a different view has been taken by the learned Accountant Member sitting in the Division Bench and the learned third Member to whom the difference of opinion was referred. It appears that the learned third Member was not assisted properly on this aspect of the legal decision and consequently a different view was taken whereby the earlier view taken by the Division Bench was dissented and contrary view was taken instead of making reference to the Chairman for constitution of larger Bench. The order of this Tribunal, dated 24-12-1992 is, therefore, hereby recalled. The rectification application is allowed accordingly.

18. The learned representatives for the parties have submitted that in view of the importance of the issue and conflicting views wherein have emerged the appeal may be heard by a Full Bench. We are inclined to agree with the submission of learned representatives for the parties. It is directed that the file be placed before the Chairman for constitution of larger Bench to hear the appeal afresh. M.B.A./321/Trib.