‘Larger bench’s order binding on smaller one’

SC says only a bench of co-equal strength can ask CJ to form larger bench to revisit verdict

ISLAMABAD:

The Supreme Court has ruled that “judicial discipline” and “propriety” demand that a division or two-judge bench follows the decision of a three-judge bench.

"As a judgment of a larger bench is binding on the smaller benches, judicial discipline and propriety demand that a two-member bench should follow the decision of a three-member bench,” said an 11-page verdict authored by Justice Syed Mansoor Ali Shah.

Justice Shah was part of a three-judge bench – led by Justice Manzoor Ahmad Malik – which interpreted the second proviso to Rule 90 of Order XXI of the Code of Civil Procedure (CPC), 1908.

“If a two-member bench concludes that an earlier judgment of a three member bench is so incorrect that in no circumstances can it be followed, the proper course for it is to set out the reasons why it could not agree with the judgment of the three-member bench…

“[It should then] refer the matter to the Hon’ble Chief Justice for constitution of a three-member bench,” it said. “If the 3-judge bench also comes to the conclusion that the earlier judgment of a three-judge bench is not correct, then the reference of the matter to a five-member larger bench is justified.”

The court said a division bench cannot jump over a three-judge bench and directly ask for constitution of a bench larger than three-member bench to review the principle of law declared by that bench.

"It is now a well-established principle of practice and procedure of this court that the earlier judgment of a bench of this court is binding not only upon the benches of smaller numeric strength but also upon the benches of co-equal strength…

“A bench of co-equal strength cannot deviate from the view held by an earlier bench, and if a contrary view has to be taken, then the proper course is to request the Hon’ble Chief Justice for constitution of a larger bench to reconsider the earlier view.

The verdict said the law declared by the SC should be clear, certain and consistent, as it is binding on all other courts of the country, under Article 189 of the Constitution of Pakistan, 1973.

"The doctrine of binding precedent promotes certainty and consistency in judicial decisions, and ensures an organic and systematic development of the law," it said.

The case

An SC division bench, after citing several judgments, had observed with regard to an earlier order of a three-judge bench that “there appears to be some ambiguity in the law laid down by this court”.

The division bench had later granted leave to appeal to consider the question as to whether a 20% deposit of the auction price is obligatory for an objector without an order requiring the same being passed by the banking court in terms of second proviso to Rule 90 of Order XXI, CPC.

The judgment observed that the second proviso to Rule 90, Order XXI, CPC where an applicant is to "deposit such amount not exceeding twenty percent of the sum realized at the sale", or "furnish such security”, as the court may direct, went unnoticed.

"The expression ‘as the Court may direct’ leaves little room to speculate whether the applicant is to deposit the 20% of the sale amount at the time of filing the objection petition or at a subsequent stage under direction of the court.

“The expression ‘such amount not exceeding twenty percent’ further strengthens the position that the amount required to be deposited by the applicant is to be determined by the court which must not exceed twenty percent of the sale amount but can be less than that.

"An applicant cannot anticipate what the direction of the court would be in this regard and, therefore, he cannot deposit the requisite amount at the time of filing the objection petition.

“The mandatory requirement of the second proviso appears to become operative only once the court determines the ‘amount not exceeding twenty percent of the sum realized at the sale’ and directs the applicant to deposit the same.

“The observations made by the bench that second proviso to Order XXI, Rule 90 of the CPC mandates every application under the provision to be accompanied by 20% of the auction price in order to be entertained and an objection petition which is not so accompanied by the deposit of 20% of the auction sale price is not maintainable from its inception, appears to be contrary to the language of the proviso.”

The judgment noted that a member of the division bench Justice Umar Ata Bandial that granted leave in C.P. No.756-L of 2020 was also a member of the three-judge bench that decided the case of Habib and Company (supra).

"This shows that his lordship also doubted the correctness of the view expressed in the said case and deemed it proper to reconsider the same.

“The two-member bench that granted the leave, however, did not make a request to the Hon’ble Chief Justice for constitution of a larger bench to reconsider the question…

“A smaller bench cannot request for the constitution of a larger bench to revisit the opinion of a larger bench on any question or principle of law; only a bench of co-equal strength can make such a request. As a judgment of a larger bench is binding on the smaller benches," said the judgment.