IN THE HIGH COURT OF KERALA AT ERNAKULAM

PRESENT

THE HONOURABLE MR. JUSTICE P.SOMARAJAN

FRIDAY, THE 14

TH

DAY OF JULY 2023 / 23RD ASHADHA, 1945

OP(C) NO. 1419 OF 2023

AGAINST THE ORDER in I.A.No.3/2022 IN I.A.NO.1/2020 IN OS 102/2018 OF

MUNSIFF COURT, WADAKKANCHERY

PETITIONER/2ND DEFENDANT/REPONDENT:

SHAJITHA AGED 47 YEARS, W/O. NAROTHPARAMBIL ABDUL

RAHIMAN, ENKAKKAD VILLAGE, AKAMALA, AYYAMKODE DESOM,

THALAPPILLY TALUK, THRISSUR DISTRICT-, PIN - 680590

BY ADVS.

SANTHOSH P.PODUVAL

R.RAJITHA

CHITHRA S.BABU

RESPONDENT/PETITIONER/PLAINTIFF:

AKBAR, S/O. KOLOTHUKULAM ABDUL RAHIMAN HYDRU, AROOR

VILLAGE, THALAPPILLY TALUK, THRISSUR-680.... REP. BY

POWER OF ATTORNEY HOLDER, K.S.KALANTHAR, AGED 58 YEARS,

S/O.SAITHU MUHAMMED,KULAMBIL PADINJAKKARA HOUSE,

VETTIKKATTIRI DESOM,NEDUMPURA VILLAGE, THALAPPILLY TALUK,

THRISSUR DISTRICT-, PIN - 679531

THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 14.07.2023, THE

COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

2023/KER/56190

O.P.(C)No.1419 of 2023 2

CR

JUDGMENT

Against Ext.P7 order, the 2

nd

defendant came up. It is

an order passed by the trial court refusing to set aside

the report of the Commissioner submitted under Rule 10 of

Order XXVI C.P.C. based on the legal position settled by a

Division Bench of this Court in Francis Assissi v.

Sr.Breesiya (2017 (1) KLT 1041) .

2.The question came up primarily is regarding the

permissibility of the court to set aside or remit back a

Commissioner's report submitted under Rule 9 or 10 of Order

XXVI C.P.C.. The decision rendered by a Division Bench of

this Court on an earlier point of time in Francis Assissi

v. Sr.Breesiya (2017 (1) KLT 1041) and subsequent decisions

of a Single Bench of this Court in Yudathadevus v. Joseph

(2021(5) KHC 668) and a coequal Bench of this Court in Laly

Joseph v. Francis (2023 (2) KLT 516) were brought to the

notice of this Court. It appears that the legal position

settled by the Constitution Bench of the Apex Court in

2023/KER/56190

O.P.(C)No.1419 of 2023 3

Central Board of Dawoodi Bohra Community and another v.

State of Maharashtra and another (AIR 2005 SC 752) and a

subsequent three Judge Bench of the Apex Court in New India

Assurance Co. Ltd. v. Hilli Multipurpose Cold Storage Pvt.

Ltd (AIR 2016 SC 86) was not followed in the abovesaid two

subsequent decisions and even the matter was not referred

to a larger Bench.

3.The scope and ambit of Order XXVI C.P.C. was

discussed in detail by the Division Bench of this Court in

Francis Assissi v. Sr.Breesiya (2017 (1) KLT 1041) and laid

down the legal position in reference to the legal position

covered by Swami Premananda Bharathi v. Swami Yogananda

Bharathi (1985 KLT 144), Chinmaya Saha v. Renuka Halder

(AIR 2016 Cal.33 = 2016 KHC 2319) Dr.Subramonian v.

K.S.E.B. (1987 (1) KLT 355), Thottama v. C.S. Subramaniyyan

(AIR 1922 Mad. 219), Shib Charan Sahu & others v. Sarda

Prasad & another (AIR 1937 Pat. 670), Union of India and

another v. Major Bahadur Singh ((2006) 1 SCC 368), Nair

Service Society v. State of Kerala (2007 (2) KLT 77 (SC))

and in Bombay Dyeing and Mfg. Co. Ltd. v. Bombay

2023/KER/56190

O.P.(C)No.1419 of 2023 4

Environmental Action Group and Others [(2006) 3 SCC 434] .

The legal position laid down by an earlier Division Bench

in Swami Premananda Bharathi 's case (supra) was explained

and distinguished by the Division Bench in Francis

Assissi's case (supra) by relying on the legal position

regarding interpretation of judgment laid down by the Apex

Court in Union of India and another v. Major Bahadur Singh

[(2006) 1 SCC 368], Nair Service Society v. State of Kerala

(2007 (2) KLT 77 (SC)) and in Bombay Dyeing and Mfg. Co.

Ltd. v. Bombay Environmental Action Group and Others

[(2006) 3 SCC 434] . Paragraphs 32 to 40 of the said

judgment (Francis Assissi's case) are extracted below for

reference:

“32. In Swami Premananda Bharathi v. Swami

Yogananda Bharathi (1985 KLT 144) a Division

Bench of this Court held as follows: “That the

first commissioner’s report and proceedings

should be set aside for reasons to be recorded

and then only the court can proceed to appoint

another commissioner to do the work is a

wholesome rule of law based on public policy. The

proceedings in the court below could be expedited

without waste of time and money. We are of the

view, that only if the court has reason to be

dissatisfied with the proceedings and report of

the first commissioner for reasons stated, it can

appoint a second commissioner for further

inquiry. This is a condition precedent. The

provision contained in Order XXVI Rule 12 C.P.C

is “vital”. Strict adherence alone will

2023/KER/56190

O.P.(C)No.1419 of 2023 5

facilitate speedier, effective and cheaper

administration of justice. Therefore, the

appointment of the second commissioner and the

reports filed by him without setting aside the

first commissioner’s report is wholly illegal and

without jurisdiction”.

33. The said decision was rendered after

referring the above said decisions but did not go

into the question of different treatment given to

R.1 to 14 of O.XXVI in accordance with the

purpose to be achieved, but had taken note of

minor difference in the phraseology in O.XXVI

R.10(3) C.P.C. and O.XXVI R.12 C.P.C. As

discussed in earlier paragraph Rule 12 deals with

examination of accounts or adjustment of accounts

through commission. But Rules 10(2) and (3) stand

for commission for local investigation. The power

of Court to examine the Commissioner personally

in open court is engrafted in R.10(2) but there

is no such power included any where in R.11 or

12. But for saying that the report of the

Commissioner shall be evidence in the suit. The

expression “shall form part of the record” as

engrafted in R.10(2) is conspicuously absent in

R.12(2). In fact R.10 and R.12 designed and

intended for meeting different situations are

having different applications and impact, though

the principles laid down therein are one and the

same.

34. Neither in R.10 nor in R.12 the power to

set aside the commission report or to wipe out of

record, is included. The report submitted under

R.12, though shall be in evidence in the suit, it

will not form part of the record as in the case

of R.10 wherein it is specifically stated that

the report of the Commissioner and the evidence

taken by him shall form part of the record . As

discussed in earlier paragraphs both R.10 and 12

emphasis the need to issue and to direct a

further enquiry when the Court has reason to

dissatisfy with the proceedings of the

Commissioner. Necessarily a further enquiry

stands for issuance of a second Commission.

Nowhere it is stated in R.10 or 12 the

requirement of setting aside earlier one or to

discard the earlier one. Setting aside of a

commission report or varying a commission report,

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O.P.(C)No.1419 of 2023 6

stands provided only in R.14(2) which stands for

issuance of commission to make partition. The

Division Bench did not consider the purpose for

which R.10 and 12 was enacted and also the

conspicuous absence of expression “shall form

part of record” in R.12(2) and also absence of

provision either in R.10 or in R.12 for setting

aside or varying the commission report. What is

applied by the Division Bench in that decision is

the public policy to have a speedier, effective

and cheaper administration of justice and not on

the basis of the scheme of O.XXVI C.P.C. and the

Rules thereunder. In fact what is held in that

decision is that the Court can appoint a second

commission for further enquiry only if the Court

has reason to dissatisfy with the proceedings and

report of the first commissioner for the reasons

stated.

35. It is well settled that a judgment has

to be read in whole to appreciate what actually

is rendered, the ratio/rationale and the

principle applied, in order to understand what is

actually given by the judgment/adjudication

thereof. There may be so many

observations/discussions leading to an inference

or in arriving at a conclusion in a judgment. It

is not advisable to pick and choose one or two

words or sentences and to interpret the same

apart from what is actually dealt under the

judgment.

36. While interpreting a judgment on the

rationale/ratio applied therein, the

observations, reasons/discussions made therein in

arriving at a conclusion shall be understood not

in isolation apart from the conclusion arrived

at. The observations must be read in the context

in which they appear to have been stated and

observation made in the judgment should not be

read in isolation apart from the conclusion

arrived therein. Further the observation shall

not be substituted in place of conclusion arrived

at, there cannot be any uniform application of

rules governing interpretation of statutes and

interpretation of judgment/orders. They are

governed by different fields of interpretation.

37. In Union of India and another v. Major

Bahadur Singh ((2006) 1 SCC 368) the Apex Court

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O.P.(C)No.1419 of 2023 7

settled the following in the matter of

interpretation of judgments. “Observations of the

courts are neither to be read as Euclid’s

theorems nor as provisions of the statute and

that too taken out of their context. These

observations must be read in the context in which

they appear to have been stated. Judgments of the

courts are not to be construed as statutes . To

interpret words, phrases and provisions of a

statute, it may become necessary for judges to

embark into lengthy discussions but the

discussions is meant to explain and not to

define.”

38. Then again in Nair Service Society v.

State of Kerala (2007 (2) KLT 77 (SC) = (2007) 4

SCC 1), it was held by the Apex Court that for

construing a judgment, it must be read in its

entirety.

39. In Bombay Dyeing & Mfg. Co. Ltd. v.

Bombay Environmental Action Group and others

((2006) 3 SCC 434 = AIR 2006 SC 1489), the

position stands further reiterated as follows:

“Judgment are required to be read in their

entirety. A judgment cannot be read as a statute.

Construction of a judgment should be made in the

light of the factual matrix involved therein.

What is more important is to see the issues

involved therein and the context wherein

observations were made. Any observations made in

a judgment should not be read in isolation and

out of context.”

40. While applying the above said principle

in interpreting the judgment in Swami Premananda

Bharathi’s case the observation made by the

Division Bench by importing application of public

policy in order to have a speedy disposal,

effective time management and cheaper

administration of justice has to be understood in

that context. The conclusion arrived at by the

Division Bench is that “only if the court has

reason to be dissatisfied with the proceedings

and report of the first commissioner for reasons

stated, it can appoint a second commission for

further inquiry and that is a condition

precedent. The condition precedent is the

dissatisfaction of the proceedings and report of

the first commission. So, in fact, the position

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O.P.(C)No.1419 of 2023 8

rendered in that decision does not have any

inconsistency with the earlier view taken in

Hydrose v. Govindankutty (1981 KLT 360) and Ummer

v. Muhammed (1983 KLT 258).”

(emphasis supplied)

4.In fact, the decision rendered by the earlier

Division Bench of this Court in Swami Premananda Bharathi 's

case (supra) was distinguished and explained in the

subsequent Division Bench decision in Francis Assissi's

case (supra) and there is no conflict in the legal position

laid down in these two decisions.

5.A Constitution Bench of the Apex Court in Central

Board of Dawoodi Bohra Community and another v. State of

Maharashtra and another (AIR 2005 SC 752) had laid down the

principle of binding precedent as follows:

“12.Having carefully considered the submissions made

by the learned Senior Counsel for the parties and

having examined the law laid down by the

Constitution Benches in the abovesaid decisions, we

would like to sum up the legal position in the

following terms:

(1) The law laid down by this Court in a decision

delivered by a Bench of larger strength is binding

on any subsequent Bench of lesser or coequal

strength.

(2) A Bench of lesser quorum cannot disagree or

dissent from the view of the law taken by a Bench of

larger quorum. In case of doubt all that the Bench

of lesser quorum can do is to invite the attention

of the Chief Justice and request for the matter

being placed for hearing before a Bench of larger

quorum than the Bench whose decision has come up for

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O.P.(C)No.1419 of 2023 9

consideration. It will be open only for a Bench of

coequal strength to express an opinion doubting the

correctness of the view taken by the earlier Bench

of coequal strength, whereupon the matter may be

placed for hearing before a Bench consisting of a

quorum larger than the one which pronounced the

decision laying down the law the correctness of

which is doubted.

(3) The above rules are subject to two

exceptions: (i) the abovesaid rules do not bind the

discretion of the Chief Justice in whom vests the

power of framing the roster and who can direct any

particular matter to be placed for hearing before

any particular Bench of any strength; and ( ii) in

spite of the rules laid down hereinabove, if the

matter has already come up for hearing before a

Bench of larger quorum and that Bench itself feels

that the view of the law taken by a Bench of lesser

quorum, which view is in doubt, needs correction or

reconsideration then by way of exception (and not

as a rule) and for reasons given by it, it may

proceed to hear the case and examine the

correctness of the previous decision in question

dispensing with the need of a specific reference or

the order of the Chief Justice constituting the

Bench and such listing. Such was the situation in

Union of India and another v. Raghubir Singh (dead)

by Lrs. & others [(1989) 2 SCC 754] and Union of

India & Another v. Hansoli Devi & Others [(2002) 7

SCC 273].”

(emphasis supplied)

6.Subsequently, another three Bench of the Apex

Court in New India Assurance Co. Ltd. v. Hilli

Multipurpose Cold Storage Pvt. Ltd (AIR 2016 SC 86) had

reiterated the principle of binding precedent. Paragraphs

18 and 19 are extracted below for reference:

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O.P.(C)No.1419 of 2023 10

“18. There is one more reason to follow the law

laid down in the case of J.J. Merchant [J.J. Merchant v.

Shrinath Chaturvedi , (2002) 6 SCC 635] . J.J. Merchant

(supra) was decided in 2002, whereas Kailash [Kailash v.

Nanhku, (2005) 4 SCC 480] was decided in 2005. As per

law laid down by this Court, while deciding the case of

Kailash (supra) , this Court ought to have respected the

view expressed in J.J. Merchant (supra) as the judgment

delivered in the case of J.J. Merchant(supra) was

earlier in point of time . The aforestated legal position

cannot be ignored by us and therefore, we are of the

opinion that the view expressed in J.J. Merchant (supra)

should be followed.

19. Our aforestated view has also been buttressed by

the view expressed by this Court in Central Board of

Dawoodi Bohra Community v. State of Maharashtra (2005)

2 SCC 673 : 2005 SCC (Cri) 546 : 2005 SCC (L&S) 246] ,

wherein a question had arisen whether the law laid down

by a Bench of a larger strength is binding on a

subsequent Bench of lesser or equal strength .

7.It is wholly impermissible for a Bench of lesser

quorum to go into the correctness of the legal position

laid down by an earlier coequal Bench or a larger Bench

except on the question of per incuriam statute or decisis.

It is not permissible for a Bench of lesser quorum to

doubt the correctness of decision rendered by a larger

Bench on an earlier point of time, but will stand bound by

the decision rendered by the larger Bench based on the

principle of binding precedent and only a coequal Bench can

doubt the correctness of the decision earlier rendered by a

coequal Bench and the option then available is to refer the

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O.P.(C)No.1419 of 2023 11

matter to a larger Bench. It is brought to the notice of

this Court that a Single Bench of this Court in

Yudathadevus v. Joseph (2021 (5) KHC 668) , had found fault

with the decision of the Division Bench, which rendered the

decision in Francis Assissi's case (supra) mainly on two

grounds; (1) the decision rendered in Swami Premananda

Bharathi's case (supra) was not understood in a correct

perspective (2) the Division Bench omitted to consider the

decision rendered in State v. Kodakkat Pocker & Others

(1987 (1) KLT 714).

8.Subsequently, a Division Bench of this Court in

Laly Joseph v. Francis (2023 (2) KLT 516) found that the

legal position laid down in Francis Assissi's case (supra)

is an obiter and is not a good law based on the very same

reasons pertaining to the earlier pronouncement in Swami

Premananda Bharathi 's case (supra) and Kodakkat Pocker's

case (supra). Strange enough, the fact that the legal

position rendered in Swami Premananda Bharathi 's case was

taken into consideration by the Division Bench in Francis

Assissi's case (supra) was not even looked into or referred

either by the Single Bench or by the Division Bench. It is

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O.P.(C)No.1419 of 2023 12

the settled law that a wrong decision rendered by a coequal

Bench on an earlier point of time, if it is pertaining to

ratio decidendi will have the binding precedent, unless the

matter is referred to a larger Bench and decided on its

merits. Paragraphs 5 and 11 of the said judgment [Laly

Joseph's case(supra)] are extracted below for reference:

“ 5.......According to us, it will not

constitute a binding precedent for the reason that

it was not an issue that had arisen in that case for

consideration. It can only be treated as an

observation and has no precedential value.

...........

11. In the light of the discussions, we are of

the view that the observation in Francis Assissi’s

case (supra) is an obiter and is not good law as it

was rendered overlooking the statutory provisions as

referable for the Commissioner for local

investigation under O.XXVI Rules 9 and 10 of the

Code by overlooking the earlier binding precedents

of co-ordinate bench. The reference is answered as

above.”

9.Regarding the first ground, the Division Bench has

taken into consideration the decision in Swami Premananda

Bharathi's case (supra) and hence it is not a ground

available for a Bench of lesser quorum (Single Bench) to

rewrite the legal position settled by the Division Bench,

otherwise, it amounts to downplaying the principle of

binding precedents settled by the Apex Court in the

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O.P.(C)No.1419 of 2023 13

abovesaid two cases :- (1) Central Board of Dawoodi Bohra

Community and another v. State of Maharashtra and another

(AIR 2005 SC 752) (2) New India Assurance Co. Ltd. v. Hilli

Multipurpose Cold Storage Pvt. Ltd (AIR 2016 SC 86).

10.It is not within the jurisdiction of a Single

Bench or a Bench of lesser quorum to go into the merits and

demerits of earlier decision laid down by a coequal Bench

or a larger Bench and cannot doubt the binding precedents

and as such, the decision rendered by the Single Bench of

this Court in Yudathadevus v. Joseph (2021 (5) KHC 668)

will not get the sanctity of “in compliance with the

principle of binding precedent” as laid down by the Apex

Court in the abovesaid two decisions. A Bench of lesser

quorum cannot even refer the issue to a larger Bench, but

can be brought to the notice of the Chief Justice so as to

constitute a coequal Bench to go into the question of

doubt, if any, raised by the Single Judge pertaining to the

decision rendered on an earlier point of time either by a

coequal Bench or a larger Bench. The only exception to

this principle is resting on the principles of stare

decisis and the per incuriam statute or decisis. As

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O.P.(C)No.1419 of 2023 14

discussed earlier, even a wrong decision by a larger Bench

or by a coequal Bench will not take away its binding

precedent. Hence, it has to be ascertained in relation to

the ratio decidendi applied and settled.

11.Regarding the second ground, it is necessary to

have a look at the decision rendered in Kodakkat Pocker's

case (supra). Prima facie, it appears that both the Single

Bench and the Division Bench in the abovesaid two

subsequent decisions had applied “pick and choose” of one

word incorporated towards the last portion of the said

judgment i.e. “to set aside” referring to a Commissioner's

report submitted under Rule 10 of Order XXVI C.P.C.. In

fact, the question whether a Commissioner report can be set

aside or not was not taken up or adjudicated in that

decision, but specified only the application of sub-rule

(3) of Rule 10. The relevant portion of the judgment is

extracted below for reference:

“8. O.26 R.9 CPC enables the Court to issue

commission for local inspection whenever it finds that

it is necessary for deciding any matter in dispute.

The object of deputing a commissioner for local

inspection is to gather evidence which from its

peculiar nature can best be had from the spot itself.

The evidence collected and reported by the

commissioner will enable the Court to properly and

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O.P.(C)No.1419 of 2023 15

correctly analyse it commission report will be helpful

to clarify or explain any point which is left doubtful

in evidence on record. O.26 R.10(3) CPC enables the

Court, if for any reason it is dissatisfied with the

proceedings of the commissioner, to make further

enquiry as it shall think fit. Under the sub-rule it

is always open to the Court to analyse the commission

report and to call for fresh report if it is found

that the report and truth are poles apart. The Court

has necessarily to consider the correctness or falsity

of the commission report on the basis of materials and

data available before it. Merely because one of the

parties did not file objection to the commission

report it cannot be said that the court is powerless

to deal with it in a case coming under Sub-Rule (3).

Not only the trial Court, but also the appellate Court

can exercise this power. In a case where the Court

finds that the commission report is totally

unacceptable as it is not in accordance with true

state of affairs, it can always attempt to get at the

truth by deputing another commissioner and its power

to act under sub-rule (3) cannot be minimised or

overlooked on the ground that the contesting party has

not filed any objection to it. It is always the

endeavour of the court to arrive at the correct

decision in a given case and whenever it is found that

the commission report is unacceptable for any valid

reason it can legitimately exercise its power under

sub-rule (3). It is very well within the competence of

the appellate Court also to exercise in appropriate

cases power under O.26 R.10(3) to set aside the

commission report and call for fresh report by

deputing another commissioner .”

(emphasis supplied)

12.What is considered and laid down in that decision

is the application of sub-rule(3) of Rule 10 of Order XXVI

C.P.C. and not in relation to sub-rule(2). Under sub-

rule(3), the court can exercise its jurisdiction by

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O.P.(C)No.1419 of 2023 16

directing further inquiry as it deems fit. That does not

mean that the court can set aside the earlier report of the

Commissioner for the purpose of issuing a second one or

having the jurisdiction to set aside a Commissioner report

set forth under rule 9 or 10 of Order XXVI C.P.C.,

otherwise, it will offend the mandate under sub-rule(2) of

Rule 10 of Order XXVI C.P.C., which was not taken into

consideration in Kodakkat Pocker's case (supra). In fact,

there is a material omission regarding the application of

sub-rule(2) and what is considered is pertaining to the

application of sub-rule(3) alone and hence, the

incorporation of the word “to set aside” along with other

mandate, which would come under the purview of sub-rule(3)

must be understood in that context, otherwise, it would

fall under the mischief of “pick and choose” and will not

get the sanctity of “ratio decidendi”. It is neither

permissible nor advisable to unsettle the legal position by

applying “pick and choose” in relation to an earlier

decision without going into the question whether it would

constitute the ratio decidendi, having the sanctity of

binding precedent. The courts are not expected to unsettle

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O.P.(C)No.1419 of 2023 17

the legal position earlier settled by a coequal Bench or a

larger Bench simply by picking one or two words from a

decision of an earlier point of time without going into the

question of ratio applied and the binding precedent

thereof. Sub-rule(3) to Rule 10 empowers the court to

exercise its jurisdiction in appropriate cases to call for

a fresh report by deputing another Commissioner. No

authority or power is given to the court to set aside the

report. Sub-rule(3) is extracted below for reference:

“10(3)Commissioner may be examined in person -

Where the Court is for any reason dissatisfied with the

proceedings of the Commissioner, it may direct such

further inquiry to be made as it shall think fit .”

(emphasis supplied)

13.The only authority given to the court is to “direct

such further enquiry to be made as it shall think fit”. No

authority or power was given to the court under that sub-

rule to set aside a report presumably on the reason that

it would go against and offend the mandate under Rule 10(2)

of Order XXVI C.P.C., that such report “ shall be in

evidence in the suit and shall form part of the record ”.

This would make the legal position clear that there cannot

2023/KER/56190

O.P.(C)No.1419 of 2023 18

be any authority to the court to set aside a Commissioner's

report submitted under Rule 10 of Order XXVI C.P.C.. On the

other hand, it shall be in evidence in the suit and shall

form part of the record by virtue of the statutory mandate

under sub-rule(2) to Rule 10. In fact, the authority to set

aside a Commissioner's report in relation to the

jurisdiction that can be exercised under sub-rule(3) was

not adjudicated in reference to the mandate under sub-

rule(3) in Kodakkat Pocker's case (supra) and hence the

incorporation of the word “to set aside” in the said

judgment must be understood not as the “ratio decidendi”

applied and laid down in that decision. It is quite

impermissible to pick and choose one word, without going

into the entire judgment so as to give an entirely

different connotation than what is intended or laid down in

that judgment. It is also impermissible to interpret a

judgment as if it were a statute. Incorporation of words

and expression used in a statute, cannot be equated with

the wordings and expressions used in a judgment . While

interpreting a judgment on the rationale/ratio applied

therein, the observations, reasons/discussions made therein

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O.P.(C)No.1419 of 2023 19

in arriving at a conclusion shall be understood not in

isolation apart from the conclusion arrived at. The

observations must be read in the context in which they

appear to have been stated and observation made in the

judgment should not be read in isolation apart from the

conclusion arrived therein. The said question was

elaborately discussed in Francis Assissi's case (supra)

based on the three decisions of the Apex Court in Union of

India and another v. Major Bahadur Singh ((2006) 1 SCC

368), Nair Service Society v. State of Kerala (2007 (2) KLT

77 (SC) = (2007) 4 SCC 1) and in Bombay Dyeing & Mfg. Co.

Ltd. v. Bombay Environmental Action Group and others

((2006) 3 SCC 434 = AIR 2006 SC 1489) .

14.In Union of India v. Dhanwanti Devi [(1996) 6 SCC

44], the Apex Court reiterated that “a precedent by long

recognition matures into rule of stare decisis”. The court

explained that it is not everything said by a Judge while

giving judgment that constitutes a precedent. The only

thing in a Judge's decision binding a party is the

principle upon which the case is decided and for this

reason it is important to analyse a decision and isolate

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O.P.(C)No.1419 of 2023 20

from it the ratio decidendi. According to the well-settled

theory of precedents, every decision contains three basic

postulates - (i) findings of material facts, direct and

inferential. An inferential finding of facts is the

inference which the Judge draws from the direct or

perceptible facts; (ii) statements of the principles of law

applicable to the legal problems disclosed by the facts;

and (iii) judgment based on the combined effect of the

above. A decision is only an authority for what it actually

decides. What is of essence in a decision is its ratio and

not every observation found therein nor what logically

follows from the various observations made in the judgment.

15.The Division Bench in Laly Joseph's case (supra)

has skipped the mandate of referring the issue to a larger

Bench. Further, the Division Bench omitted to consider the

impact of sub-rule (2) to Rule 10 of Order XXVI C.P.C.,

which is the material omission crept in Kodakkat Pocker's

case (supra). It is necessary to refer the rule of

“stare decisis”, which was relaxed into by developing the

principle of “ per incuriam”. A decision is rendered per

incuriam where the Court has acted in ignorance of an

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O.P.(C)No.1419 of 2023 21

earlier decision or the provision of a statute which is

controlling. Although this infirmity can cripple the

authority of an otherwise binding precedent, this rule

should be invoked with caution. In Mamleshwar Prasad v.

Kanhaiya Lal [(1975) 2 SCC 232] , Krishna Iyer, J. observed

a keynote thought on the principle of per incuriam.

“Certainty of the law, consistency of rulings

and comity of courts, all flowering from the same

principle, converge to the conclusion that a

decision once rendered must later bind like cases.

It is no doubt true that in exceptional instances,

where by obvious inadvertence or oversight, a

judgment fails to notice a plain statutory

provision or obligatory authority, running counter

to the reasoning and result reached, it may, not

have the sway of binding precedents. But it should

be a glaring case, an obtrusive omission.”

16.In the light of the above discussion and the

binding precedent applicable as settled by the Constitution

Bench in Central Board of Dawoodi Bohra Community' s case

(supra) and the three Judge Bench in New India Assurance

Co.'s case (supra), the decision rendered in Yudathadevus

v. Joseph (2021 (5) KHC 668) by a Single Bench of this

Court and in Laly Joseph v. Francis (2023 (1) KLT 516) by

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O.P.(C)No.1419 of 2023 22

the Division Bench of this Court cannot claim the sanctity

of binding precedent.

17.Hence, Ext.P7 order passed by the trial court

refusing to set aside the Commissioner's report submitted

under Order XXVI Rule 10 C.P.C. deserves no interference.

The parties are at liberty to apply for a second commission

instead of seeking to set aside the earlier report or to

remand back the same.

With the abovesaid observations, the Original Petition

will stand dismissed.

Sd/-

P.SOMARAJAN

JUDGE

sv

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O.P.(C)No.1419 of 2023 23

APPENDIX OF OP(C) 1419/2023

PETITIONER'S EXHIBITS

Exhibit -P1 A COPY OF PLAINT IN O.S.NO.102/18 ON THE FILE

OF MUNSIFF COURT, WADAKKANCHERRY

Exhibit P2 A COPY OF WRITTEN STATEMENT IN O.S.NO. 102/18

ON THE FILE OF MUNISIFF COURT, WADAKKANCHERRY

Exhibit -P3 A COPY OF REPORT AND SKETCH SUBMITTED BY THE

ADVOCATE COMMISSIONER IN O.S.NO. 102/18 BEFORE

THE MUNSIFF COURT, WADAKKANCHERRY

Exhibit -P4 A COPY OF I.A.3/22 IN I.A. 1/20 IN O.S.NO.

102/18 ON THE FILE OF MUNSIFF COURT,

WADAKKANCHERRY

Exhibit -P 5 A COPY OF DEPOSITION OF PW1 IN I.A.3/22 IN

I.A. 1/20 IN O.S.NO. 102/18 ON THE FILE OF

MUNSIFF COURT, WADAKKANCHERRY

Exhibit -P6 A COPY OF DEPOSITION OF PW2 IN I.A.3/22 IN

I.A. 1/20 IN O.S.NO. 102/18 ON THE FILE OF

MUNSIFF COURT, WADAKKANCHERRY

Exhibit -P 7 A COPY OF ORDER DATED 24/5/23 IN I.A. 3/22 IN

I.A. 1/20 IN O.S. NO.102/18 ON THE FILE OF

MUNSIFF COURT., WADAKKANCHERRY

/TRUE COPY/

PS TO JUDGE

2023/KER/56190