TMI Blog1961 (10) TMI 108X X X X Extracts X X X X X X X X Extracts X X X X ..... st for referring the question to another Full Bench for a re-consideration of the matter. It was held by the Full Bench of this Court in the aforesaid case of (1960) 1 Guj LR 82 : (AIR 1960 Gujarat 40) that the judicial precedents of the Bombay High Court prior to the 1st of May, 1960, i. e., the day on which the State of Gujarat came into being fell within the ambit of the words the law in force immediately before the appointed day in Section 87 of the Bombay Reorganisation Act of 1960, and were binding on this High Court. Section 87 of the aforesaid Act runs as follows : Territorial extent of laws. -- The provisions of Part II shall not be deemed to have effected any change in the territories to which any law in force immediately before the appointed day extends or applies and territorial references in any such law to the State of Bombay shall, until otherwise provided by a competent Legislature or other competent authority, be construed as meaning the territories within that State immediately before the appointed day. By the provisions of Part II of the aforesaid Act the State of Gujarat was formed. Part II is made up of three sections. By Section. 3, it is provided t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d that in considering the territorial extent or application of the law in force no change should be deemed to have taken place in the territories of the pre-existing State of Bombay in spite of the fact that some territories have been carved out of such pre-existing State and a new State of Gujarat has been formed. Ordinarily when a law is enacted and in that law there is a territorial reference to a particular State, the reference it to the territories forming part of that State. If any new territories are included within that State, such a reference would cover such new territories. If any territories are excluded from that State, then the reference would not extend to such excluded territories. In order to provide for the continued operation of the laws in force within the territories of the pre-existing State of Bombay, in spite of the territories of the new State of Gujarat being excluded therefrom, it has been provided by the second part of Section 87 that the territorial reference in such law to the State of Bombay should be construed as meaning the territories which were within the State of Bombay immediately before the appointed day. 2. A question then arises as to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be law in the abstract sense, we cannot say of any such declaration or interpretation the it is a law. When We are using the term in this concrete sense it is not only correct enough for ordinary political purposes, but correct without qualification, to say that 'Laws are general rules made by the State for its subjects'. The expression law is often used in an extended sense even in non-judicial matters. As observed by Sir Frederick Pollock, clubs and societies have their laws. There are laws of cricket and laws of whist, and as might be expected, the distinction between the concrete and the abstract sense is not always exactly observed in popular usage. 3. We have to consider the meaning of the word law as used in the expression law in force immediately before the appointed day appearing in Section 87 and consider the intention of the legislature when so legislating. As the language of the section indicates it must be a law in force, that is, it must be a law in operation as such and it must extend or apply to the territories referred to in the said section. It must be a law enforceable in every Court having jurisdiction to enforce it, including the Supr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... her staled that the modern practice is that a judge of first instance will as a matter of judicial comity usually follow the decisions of another Judge of first instance unless he is convinced that the judgment was wrong. The decisions, however, of subordinate courts are not recognised as being authoritative where there is another Court which is subordinate to that Court, It is stated in Salmonds Jurisprudence, 11th Edition at page 169 that the true rule of law was that one High Court Judge could not bind another. It is however further stated that such refusals to follow precedent were unusual for on the principle of judicial comity a Court would usually follow the decisions of its predecessors, so as to avoid conflicts of authority and to secure certainty and uniformity in the administration of justice. 4. In India, some High Courts have both Original and Appellate jurisdiction and an appeal lies in certain matters from a decision of a single Judge of a High Court to a Division Bench of that Court. A decision of a High Court Judge of a State is regarded as binding on all the subordinate courts in that State. A decision of a Division Bench of a High Court is regarded as binding ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The principles of judicial comity and legal propriety require, in order to avoid conflict of authority and to secure certainty, uniformity and continuity in the administration of justice, that one Judge of a High Court sitting singly should follow the decision of another Judge of the same High Court sitting singly, and that a Division Bench of a High Court should follow another Division Bench of the same High Court, that a decision of a Full Bench consisting of the same number of Judges should follow the decision of a Full Bench of equal number of Judges and that a decision of a larger Full Bench should be considered authoritative and binding on all other benches constituted of a lesser number of judges. 5. The Supreme Court has dealt with the question relating to decisions of two different Full Benches in the case of Atma Ram v. State of Punjab, reported in AIR1959SC519 . In that case, the Supreme Court observes at page 527 as under: ...... the better course would have been to constitute a larger Bench, when it was found that a Full Bench of three Judges, was inclined to take a view contrary to that of another Full Bench of equal strength. Such a course becomes necessa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r Singh, reported in [1960]3SCR975 , the Supreme Court has laid down that a decision of a Full Bench should be regarded as binding on a Division Bench of the same High Court. In that case, the Supreme Court, at p. 1122 observes as under; When a Full Bench decides a question in a particular way every previous decision which had answered the same question in a different way cannot but be held to have been wrongly decided. We had recently occasion to disapprove of the action of a Division Bench in another High Court taking it upon themselves to hold that a contrary decision of another Division Bench on a question of law was erroneous and stressed the importance op the well-recognised judicial practice that when a Division Bench differs from the decision of a previous decision of another Division Bench the matter should be referred to a larger Bench for final decision. If, as we pointed out there, considerations of judicial decorum and legal propriety require that Division Benches should not themselves pronounce decisions of other Division Benches to be wrong, such considerations should stand even more firmly in the way of Division Benches disagreeing with a previous decision of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d by the Supreme Court cannot be regarded as a 'law in force'. Similarly the decision of a Division Bench of a High Court which is liable to be followed by another Division Bench of the same High Court only on the basis of judicial Comity and which is liable to be rendered ineffective by a Full Bench of the same High Court and which is liable to be overruled by the Supreme Court cannot be regarded as law in force . In Our view, it would be straining the language of the legislature to regard the same as law in force'. 9 Judicial precedents are, often referred to as case law. It may with propriety be said that in England principles of equity have emanated from the Court of Chancery and the theory that judicial precedents are merely declaratory of the law would not be applicable thereto. In the context however of Section 87 of the Bombay Re-organisation Act, we cannot hold that the Indian Legislature intended, when dealing with the territorial extent of laws to include judicial precedents in the expression law in force' in Section 87-Section 87 of the Bombay Re-organisation Act, 1960, is in line with Section 119 of the States Reorganisation Act, 1956. The said Sect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , 1956, judicial interpretations given by the High Court of Saurashtra and the highest Court in Kutch Were preserved as law in force in the territories of the former States of Saurashtra and Kutch the same would continue in Operation in those territories as law in Force' under Section 87 of the Bombay Re-organisstion Act of 1960, unless the same were lawfully set aside or had ceased to operate by reason of legislative changes effected between 1st November, 1956, when the new State of Bombay was created and the 1st of May, 1960 when the new State of Gujarat was formed. Each newly created State has its own High Court under which various subordinate Courts function. There would be considerable confusion if Courts put different interpretations on the same enactment in different territories of the same State. We do not contemplate that the legislature could ever have had such an intention when, enacting Section 119 of the States Reorganisation Act, 1956, or Section 87 of the Bombay Re-organisation Act, 1960. 10. Our attention was called to Section 88 of the Bombay Re-organisation Act, 1960, where a power is given to the appropriate Government to adapt laws, and to Section 89 wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndhra High Court on this point has observed at (1960) 1 Guj LR 88 : (at page 4S of AIR) as follows:- We find considerable difficulty in agreeing with that view. We say this with some hesitation, Co-ordinate jurisdiction in the ordinary connotation of that expression is that which is exercised by different Courts of equal rank and status over the same subject-matter and within the same territory and ordinarily at the same time. Each Court muss have jurisdiction to deal with the same subject-matter. We do not Intend to suggest that for all purposes co-ordinate jurisdiction is to be equated with concurrent jurisdiction or simultaneous jurisdiction but we are unable to see our way to the conclusion that simply because this Court is in a sense a successor to the High Court of Bombay in respect of the territories which now form part of the State of Gujarat, it is a Court of co-ordinate jurisdiction with that predecessor. 13. The learned Advocate-General who represents the State of Gujarat before us, strongly urged that the Gujarat High Court is a Court of co-ordinate jurisdiction with the Bombay High Court as it existed prior to 1st May, 1960, and that the decisions of the Bomba ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... st to ascertain whether two High Courts were of coordinate jurisdiction or not: Whether the two Courts are of equal rank and status or of equal authority and exercise similar jurisdiction. 17. A Court of co-ordinate jurisdiction must be a Court of equal rank and of equal status. That test is satisfied in the present case. The Gujarat High Court is a Court of the same rank and of the same status as the High Court of Bombay immediately prior to the appointed day. By Section 28 of the Bombay Re-organisation Act, 1960, it is provided that as from the appointed day, there shall be a separate High Court for the State of Gujarat and the High Court of Bombay shall become the High Court for the State of Maharashtra. By Section 29 It is provided that such of the Judges of the High Court of Bombay holding office immediately before the appointed day as may be determined by the President shall on that day cease to be Judges of the High Court of Bombay and become Judges of the High Court of Gujarat. By Section 30 it is provided that the High Court of Gujarat shall have, in respect of any part of the territories included in the State of Gujarat, all such jurisdiction, powers and authority as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1st May, 1960, in and in relation to the territories now forming part of the State of Gujarat if the exercise of the same jurisdiction is the test it is satisfied only to the extent that the jurisdiction exercised by the Gujarat High Court in respect of the territories forming part of the State of Gajarat was wholly exercised by the Bombay High Court prior to the appointed, day in the same territories. The Bombay High Court has however exercised jurisdiction over other areas. It has also exercised ordinary original civil jurisdiction under Clauses 11 and 12 of the Letters Patent. The Gujarat High Court does not exercise similar jurisdiction in respect of any territory. 18. It is urged that the continued simultaneous existence of both the Courts constitute a test for considering whether they are Courts of co-ordinate jurisdiction. That, however, does not appear to us to be a test. A Court which has ceased to exist and to function can be regarded as a Court of co-ordinate jurisdiction with a Court which succeeds it, if the other conditions which govern the matter are satisfied. The case of Pledge V. Carr, reported in (1895) 1 Ch. 51 was cited, in this connection. Lord Hers-chell, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Gujarat High Court being a successor Court, the question of reciprocity does not arise. Though strictly speaking, the Gujarat High Court may not be regarded 35 a Court of co-ordinate jurisdictions with the Bombay High Court as it existed prior to 1st May, 1960, the principles which govern the decisions of Courts, of co-ordinate jurisdiction, would apply. The aforesaid principles were evolved by the Courts themselves with a view to secure uniformity, certainty and continuity of judicial decisions and there is no reason why the same should not be extended to a court which is a successor to another Court of the same rank and status, when the successor Court is invested with all the jurisdiction, power and authority of the-other Court in respect of all the territories in respect whereof the successor Court exercises jurisdiction. 22. Taking all the circumstances into account, we are of the view and we hold that the decisions of the Bombay High Court given prior to 1st May, 1990. are binding on this High Court to the same extent as if they were given by this-High Court itself. 23. In the Full Bench case, Bhimasankaram, J., in the course of his judgment observes at page 95 as un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ld to be a Court of co-ordinate jurisdiction with the High Court. This decision is distinguishable as the two courts were not regarded as being Courts of equal rank or status. The Full Bench even in that case has observed that the decisions of the Chief Court were conditional authorities of the highest value to which the greatest weight and respect must be attached and that the Judges of the High Court of Rangoon should not consider themselves free to set those decisions at naught except for the best and most urgent reasons. It further observed that the principle of stare decisis should be applied to those decisions in no narrow or technical spirit. 25. Our attention was also drawn to a decision of a Full Bench of the High Court of Madhya Bharat in the case of Chandulal v. Babulal, reported in Ala 1952 MP. 171. The view taken in that case was that the Madhya Bharat High Court could not he looked upon as successor to the Indore High Court or any High Court of any Covenanting States. It has been held in that case that the High Courts in the Covenanting States were altogether abolished and as an independent High Court with power and stability and fresh outlook had come into exi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... prior to the appointed day, i.e., to 1st May 1960, do not constitute any law in force immediately before the appointed day' within the meaning of Section 87 of the Bombay Re-organisation Act, 1960. We hold that the decisions of the High Court of Bombay given prior to 1st May 1960 have as much binding force and effect as if 'they were-the decisions given by the Gujarat High Court itself. A decision of a single Judge of the Bombay High Court given prior to 1st May 1960 would have the same binding force and effect as a decision of a single Judge of the Gujarat High Court; a decision of a Division Bench of the Bombay High Court given prior to 1st May 1960 would have the same binding force and effect as a decision of a Division Bench of the Gujarat High Court and a decision of a Full Bench of the Bombay High Court given prior to 1st May 1960 would have the same binding force and effect as a decision of a Full Bench of the Gujarat High Court. N.M. Miabhoy, J. 29. With the greatest respect, I regret I am unable to agree with the view taken by the majority as to the correct interpretation of Section 87 of The Bombay Reorganisation Act, 1960. and the application of the pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of judicial administration in the State -of Gujarat. Consequently, the Division Bench referred the matter to a Full Bench and the then learned Chief Justice constituted a Full Bench consisting of himself, my learned brother Bhagwati, J. and myself. The matter was argued from the same three aspects which were discussed in the Full Bench decision of the Andhra High Court. The learned counsel who appeared before that Full Bench did not seem to support the decision of the Andhra High Court on the principle of 'stare decisis'. The learned Advocate General who appeared for the respondent, however, supported the decision on the other two grounds and Mr. V. B. Patel, who a powared for the petitioner in AIR1960Guj40 , resisted both those grounds. The Full Bench unanimously decided that the correct interpretation of Section 87 of The Bombay Reorganisation Act, 1960, was that it preserved for the High Court of Gujarat the judicial precedents created by the-composite Bombay High Court before 1st May 1960 and that those judicial decisions were impressed with the same strength or infirmity with which those precedents were impressed in the composite High Court of Bombay, and that those p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r amicus curiae. There was a distinct cleavage of submissions made by those counsel. Mr. M. K. Joshi and Mr. N. C. Trivedi went to the extreme length of contending that no decision of the High Court of Bombay is binding upon this Court, and that, on the creation of the High Court of Gujarat, the true legal position was that it started with a clean state. Mr. I. N. Nanavaty agreed with the learned Advocate General that Section 87 of The Bombay Reorganisation Act, 1960, did not apply. However, he did not agree with him that the High Court of Bombay and the High Court of Gujarat were also Courts of, co-ordinate jurisdiction. His submission was that the High Court of Gujarat was the successor of the High Court of Bombay and the decisions of the latter Court were binding on this Court on the principle of succession. Mr. S. B. Vakil, on the other hand, argued that Section 87 of the Bombay Reorganisation Act, 1960, was applicable to the problem and that the decision of the former Full Bench was a correct decision. He .contended that the composite High Court of Bombay was not a Court of co-ordinate jurisdiction with the High Court of Gujarat. Very able and learned arguments were advanced a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed and by which the area of an existing State may be either increased, diminished or the boundaries thereof altered. From the Act, it is quite clear that the Parliament was creating the two new States under Clause (a) of Article 3 which provides that Parliament may, by law, form a new State by separation of territory from any State-Section 3 of the Act specifies the territories of the State of Gujarat and assigns the residuary territories of the State of Bombay to the State of Maharashtra. Article 4 provides that any law referred to in Article 2 or Article 3 shall contain, inter alia, such provisions as may be necessary to give effect to the provisions of that law and may also contain such supplemental, incidental and consequential provisions as the Parliament may deem necessary. The Act created for the State of Gujarat a number of institutions and the High Court of Gujarat was one of them. 32. Part IV of the Act, beginning from Section 28 and ending with Section 40, contains Provisions relating to the High Court. Section 28 states that, as from 1st May 1960, there shall be a separate High Court for the State of Gujarat. Section 30 provides that that High Court shall have, in re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mendment, as may be necessary or expedient for the purpose of facilitating the application in relation to the two new States of any law made before 1st May 1960. Section 89 confers a power upon the authorities mentioned therein, including courts of law, to construe the law in such manner without affecting the substance as may be necessary or proper in regard to the matters be fore such authorities notwithstanding that no provision or insufficient provision may have been made by the appropriate Government under Section 88 of the Act. 34. Section 2 of the Act is the defining section. Clause (a) thereof defines appointed day as meaning 1st day of May, 1960. Section 2(d) defines the term law and that definition deserves to be stated in full. It is as follows: 2(d): 'Law' includes any enactment, ordinance, regulation, order, bye-law, rule, scheme, notification or other instrument having, immediately before the appointed day, the force of law in the whole or in any part of the State of Bom- bay . 35. These are the material provisions of the Act which require to be borne in mind for the purpose of determining the problem before this Full Bench. From the provisions o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... law in force before the appointed day , and law made before the appointed day . It is in the context or these different expressions that the first question relating to the construction of Section 87 wilt have to be decided. 38. AS the term law has not been defined exhaustively, learned arguments were advanced at the bar as to what is the true meaning of that term. Reference was made to Salmond's Jurisprudence as to the correct definition of this term. From that book, it appears that there are two main theories propounded by the jurists as to the correct connotation of the term law . One theory defines law as general command issued, by the State to its subjects and enforced through the agency of courts of law by the sanction or physical force , (vide Jurisprudence by Salmond, Eleventh Edition, page 53). The second theory defines law as that which is recognized and administered by the Courts. According to this theory, no rule which is not recognized and administered by the Courts is law. According to this theory law ' is not made by Legislature alone, but it is also made by law Courts. Therefore, Salmond says at page 41 of his book; It is therefore, to the courts an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... icular case in which it is enunciated, hut it is applicable to all other cases which resemble that particular case in its essential features. This is known as the ratio decidendi of the case and it is this ratio which constitutes the judicial precedent. 41. Judicial precedents have different force and effect to different Courts depending upon the Court in which they are created, in which they are sought to be used, and the relationship existing between the Court in which the precedent is created and the one in which it is intended to be Used, it is, therefore, necessary first to know the hierarchy of Courts in the territories over which the composite High Court of Bombay exercised jurisdiction including the territory assigned to the State of Gujarat. In the State of Bombay, the Courts were divided into two bred categories, viz., (i) subordinate Courts, and ('i) co-ordinate Courts. Boardly speaking, in the former category were the Courts of (i) judges or Junior Division, (ii) Judges of Senior Division (iii) Judges of Small Cause Courts, and (iv) District Judges and Judges of City Civil Courts. I propose to omit the criminal Courts for the purpose of the present discussion. In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n with one another. 44. Judges exercising jurisdiction in the subordinate Courts were subordinate to the High Court. They were subordinate not only to Division Benches and Full Benches, but also to single Judges of the High Court. A judicial precedent created in the High Court of Bombay, whether by a single Judge or a Division Bench or a Full Bench, was binding on all the subordinate Courts on the ground that these Courts were under the appellate and revisional jurisdiction of the High Court and thus the relationship existing between the two sets of Courts was one of subordination and superiority. When a judicial precedent of the High Court of Bombay was cited in a subordinate Court, the latter Count was bound to follow it A failure to follow it was an error of law and was bound to be corrected by a Court of superior jurisdiction. Exactly for the same reason, a judicial precedent created by a Division Bench of the High Court was binding on a single Judge of the High Court. But, as. Division Benches and Full Benches were Courts of co-ordinate jurisdiction, the judicial precedents created by any one of them were not binding On the other on the ground of subordination. However, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... brought to the notice of another Division Bench, then, the practice was to get the matter referred to the Chief Justice. Such a practice was also prevalent in the High Court of Calcutta as appeals from the observations made in [1960]3SCR578 . This practice appears to have been approved by the Supreme Court in two recent judgments reported in [1960]3SCR578 (supra) and 1960CriLJ126 .118 at p. 1122. A precedent created by a Full Bench, did not perhaps have the effect of over-ruling a Precedent created by a Division Bench of a Full Bench of smaller size. But, the logical consequence of the observations made by the Supreme Court in the aforesaid two cases is that, when a Full Bench differs from a Division Bench on a point of law, apart from the fact that the subordinate Courts are bound by the decision of the Full Bench, the Division Benches also are bound to follow the decision of the Full Bench on account of the operation of the principle of judicial comity. As already observed, the practice in the Bombay High Court was to follow the precedent of a larger Full Bench in preference to the precedent of a smaller Full Bench. However, according to Young's case (1944) 1 KB 718 both the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ause it as necessary to do so in order to decide the point in hand. 47. Before I say anything further on the same subject, it is necessary to make a few observations on a topic which is of a controversial (nature and over, which different submissions were made in this Court. The question is whether a judicial precedent declares or creates law or whether it at all declares or creates anything. Two principal theories hold the field. One theory is known as the declaratory theory, according to which all precedents are merely declaratory and they do not make any law. This theory is based on the view that the Court administers justice according to law and that, when It decides a point! of law, it does not create new law, but only decides what the law is According to this theory, when a judicial precedent is created in the field of constitutional law, statutory law, personal law or customary law, the precedent does not purport to create any law, but, it only declares what the law in the relevant branch is. In other words, the law in these four branches existed and exists apart from the precedent and what the precedent does is only to ascertain and state what the law is Some jurists see ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re at Bombay, in the exercise of its ordinary original Civil jurisdiction, such law or equity shall be the law or equity which would have been applied by the said High Court to such case if these Letters Patent had not issued . The heading for this and the next two clauses is as follows : Law to be administered by the High Court. . From this clause, it is quite clear that the High Court of Bombay administered not merely law, but, also exercised equity jurisdiction. It was contended at the bar that the equity jurisdiction which the High Court of Bombay exercised was to be exercised on the same principles which were exercised by the Court of Chancery of the High Court of England and that no new principles could have been recognised by the High Court of Bombay. In other words, the contention was that the principles which had been settled by the Court of Chancery till the date of the Letters Patent were crystallised and no new principles could have been enunciated or applied by the High Court of Bombay. No authority was cited in support of this proposition. In the absence of any binding authority, I am not prepared to read the above clause in the aforesaid manner. In my judgmen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... discretion in the administration of justice. Though the statute law has recently encroached upon a very vide field of judicial discretion, it cannot be denied that there is still a considerable area in which judicial discretion has not been tied down. In fact, in several matters modern tendency is to invest the judiciary with discretion in the administration, of laws. The Legislature in such matters contents itself by only laying down broad principles on the basis of which the law is to be administered. The law of procedure and the law of evidence are instances in point. Although the legislature has prescribed a number of laws on those subjects, it has left a number of other matters to be decided by Courts of law. In this field, which is left to the discretion of the Judges, whenever a question of law arises and is answered on a general principle, the Judge creates Jaw which is binding on the inferior Courts on the principle of subordination and on the Courts of co-ordinate jurisdiction on the principle of judicial comity. In the field of personal law also, although the theory applies that Courts declare laws, it cannot now be denied that the Hindu and the Mahomedan Laws are, now t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as to what the law on a subject is can be found not merely by reading statute law or text On personal law, but, by knowing what the Judge have said on the subject if they have said anything at all or by reasonably anticipating what they are likely to say on it. 50. Article 141 of the Constitution provides that the law declared by the Supreme Court shall be binding on all courts within the territory of India. Apart from the question as to whether the Supreme Court does Or does not create any law, having regard to Article 141, it cannot be doubted that it is that Court which settles what the law for the Indian Courts is and whatever may be the view of any jurist as to what the law is in certain branches, if the Supreme Court gives a decision on that subject, then, the law is as embodied in that decision and no other. It is true that this Article is not applicable to the law declared by the Indian High Courts; but. at the same time, having regard to the practice, which, as already mentioned, was being followed by the High Court of Bombay and which it also the practice which is being followed by all the other Indian High Courts, it cannot be denied that the decisions of the High Cou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ny change in the. tern tries to which any law in force immediately before the appointed day exists or applies. The second limb states that the territorial references in any such law to the State of Bombay shall, until otherwise provided by a comp tent legislature or other competent authority, be construed as meaning the territories within that State immediately before the appointed day. There is some force in the view that the fist limb of the section has been inelegantly worded. It was pointed out by the former Full Bench that the idea which was sought to be conveyed by this first limb could have been more elegantly expressed. However, in the course of the arguments at the bar in the present Full Bench, there was no dispute as to the correct meaning to be attached to this first limb except the interpretation of the expression law in fovcel. It was not disputed that this limb provides that the change of territories made by Part II of the Act shall not make any change in the 'law in force' in that territory before the change; and that if the limb is read in conjunction with a portion of the second limb, it meants that such law shall remain in force until otherwise provided b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the rival contentions the expression any law in force immediately before the appointed dry is either split up info various parts or retained intact. According to one submission, the adjective 'any' gives a clue to the intention of the Legislature. According to another submission, the main term -is 'law' and the words 'in force' only quality that term. Mr. Nanavaty contends that the expression 'any-law in force' should be cut no into two parts, viz. 'any law' and 'in force', and that the expression 'in force' is an expression of abridgment and not of extension. On the other hard. Mr. Vakil con-tends that it is improper to cut up the expression -into different parts. He contend that the true legislative intent can be gathered only by inter- pretins the composite expression any law in force-immediately before, the appointed day as one In-divisible whole. He submits that the Intention of the Legislature is not to preserve only statute or written law, but the whole gamet of laws which-was in force before 1st May 1960. The expression- 'law in force' is to be found in same of the sections which I have quoted, speciall ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... In the first instance, we have be remember that the two new States are not being brought into existence by an act of State. They are being brought into existence, by a valid law. What is being brought into existence is not two independent States, but two new units in one and the same sovereign State. Therefore, unless the Legislature can be attributed an indention to create- not only new States, but also to wipe off laws existing in the old State, it would not be proper to attribute the letter intention to the Legislature. The argument may be tested in another way. Though the residuum of the former Bombay State has been called the State of Maharashtra, there is no doubt that that State retains all that which is not separated from the State of Bombay. There is no doubt that the High Court of Bombay retains the same jurisdiction over the territories of the State of Maharashtra which it had over the whole State of Bombay, and that the High Court of Bombay retains all its old jurisdiction intact except that its territorial jurisdiction is truncated- If this is so, then, there cannot be any doubt that the law administered by the High Court of Bombay for the State of Maharashtra will re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d to advance an argument to the contrary and, therefore, to baulk such an argument, the Legislature seems to have made the provision found in Section 87. Thc Legislature has enacted Section 87. to prevent anyone from arguing that my change in law had taken place. On the other hand, if the view which has appealed to the majority were to be accepted is the correct view, then, with due respect, it may be pointed out that that view implies that, whereas the Legislature knew or assumed that a change of law was taking place, it made a provision only for written laws and not for non-written laws which, as is well-known. Includes a substantial proportion, of the law in force. There is no reason for supposition as to why the Legislature should have wade such a distinction between written and non-written laws'. If the Legislature did not intend to create any change, was there any reason at all 'or supposing that the Legislature should intend that the written laws should remain in force and the non-written laws should go by the board? In my judgment, this is a very vital consideration which must be taken into account in interpreting Section 87 However, it is contended that the legal e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 54. In my judgment, therefore, Section 87 does not create any fiction, but it enacts a prohibition which prohibition has been Introduced for the sake of clarification. If somebody is minded to argue that a change of law has taken place, then, it is enacted to prevent him from so arguing and that, in my judgment, is the true scope and object of Section 87. 55. The next argument is that the language of the second limb can apply only to statute laws and to no other. The argument is that the expression territorial references in any such law to the State of Bombay can only apply to statute laws inasmuch as such territorial references are to be found in statute laws and no other, I am unable to agree with this contention. In my judgment such law must necessarily refer back to the 'law in force' referred to in the first limb of the section. Moreover, I am not prepared to agree that territorial references can be found only in statute laws and not In any other law. I have already quoted certain passages from Mulla's Principles of Mahomedan Law, wherein territorial references are to be found in spite of the fact that that law is not a part of the statute law-I do not se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e expression is a composite One and must be read and construed as a whole. 58. The argument that the adjective 'any' before the word 'law' shows that it is used in the concrete sense of the term law and not in its abstract sense, does not appeal to me. It is con. tended by Mr. Nanavaty that the adjective 'any' can be used only with reference to concrete law and not with reference to abstract law and he contends that the expression 'concrete law' is used only in respect of statute law and no other kind of law. In support of this argument, Mr. Nanavaty relies upon a passage from Salmond's Jurisprudence, Eleventh Edition, page 37, which is as follows :- The term law is used in two senses, which may be conveniently distinguished as the abstract and the concrete. In its abstract application we speak of the law of England, the law of Jibel, criminal law, and so forth. Similarly, we use the phrases law and order, law and justice, courts of law. In its concrete application, on the other hand, we say that Parliament has enacted or repealed a law; we speak of the by-laws of a railway company or municipality; we hear of the corn laws or the navigati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e bald proposition that it must necessarily be confined to such laws. In any case, the term 'applies' is of welder ambit and applies not merely to statute laws but to other laws as well, (For example, we say that Sunni Bohras of Gujarat are governed by the Hindu Law or that Hindu Law applies to the Sunni JJohras of Gujarat.) 61. The learned Advocate-General also contends that Section 87 embodies a rule of construction and, therefore, it can apply only to statute laws and not to others. I am unable to agree with this submission. So far as the first limb of Section 87 is concerned, there is no doubt that it does not embody a rules of construction at all. The Legislature does not say so either expressly or impliedly. It is true that, in the latter part of Section 87, the Legislature does state in express terms that any law in force which has a territorial content shall be construed as applicable to the respective States. But, as I have already pointed Out, the scope of the second limb of Section 87 is narrower than the scope of the first limb. Moreover, if my view is correct that territorial reference is to be found not only in statute law, but also in other kinds of laws, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... As and when the question will arise for interpretation of these expressions, the task will have to be undertaken in the context in which the expression has come to be used. I may only observe that o r attention was drawn to the fact that the High Courts of Calcutta and Bombay have taken two different views regarding the expression 'law in force' used in Article 13 of the Indian Constitution. In Naresh Chandra Bose v. Sachindra Nath Deb, reported in AIR1956Cal222 , the view is taken that that expression extends even to customary law, personal law like the Hindu and the Mohammedan Law and is thus more comprehensive than the expression 'existing law' as defined in Article 366(10). In the State of Bombay v. Narasu Appa Mali, reported in 53 Bom LR 779 r AIR1952Bom84 , however, the view is taken that personal law is not included in the expression 'law in force'.. It is not necessary for me to express any opinion as to which of the aforesaid two views is correct. I may only observe in passing that, for taking the aforesaid view, the learned Judges of the Bombay High Court have not given any reason whatsoever and that view, if it is ultimately held to be binding on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 39;Bombay in Nanoo Sheikh v. Emperor, reported in AIR1927Bom4 , and it was decided therein that the Excise Officer was a police officer within the meaning of Section 25 of the Indian Evidence Act. The moment this decision was given, it was no longer open to anyone to speculate 'as to what the law on the subject was. It is true the question was one of fact when it arose for the first time, but, it became a question of law aper the decision was given. It is quite clear to me that, if any counsel were to express an opinion on the above subject by merely reading the Act alone, he would be guilty of negligence if his answer does not coincide with the Bombay cafe if the question was to be answered with reference to the Bombay territory; though it would be open, to him to state that the Privy Council was likely to take a different view But, if he was asked to express an opinion as to what the 'law in force' is as to whether an excise officer is or is not a police officer within the meaning of Section 25 of the Indian Evidence Act, he is bound to answer that the law is as decided by the High Court of Bombay in the aforesaid case. 67. There are several instances in the histor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aw. 70. Moreover; in the matter of the statute law, a mere knowledge of the statute is not the same thing as the knowledge of the law in force. If the statute has been challenged on constitutional grounds and if the statute has been held to be void as offending the fundamental rights or as beyond the competence of the Legislature, then, a knowledge of the statute will not give a counsel knowledge of the enforceable law, but, on the contrary, is likely to give him an Incorrect information on the subject. The counsel must necessarily knew whether a Court of Justice has or has not held that particular piece of statute law to be void or incompetent and the knowledge of the latter subject can by no means be derived by merely reading any statute book, but must necessarily be derived by access to the case-law. Therefore, though one must accept that it is the Legislature which creates the statute law, in order to acquire knowledge of statute law in force, knowledge of case law is equally essential, because, enforceable law is not that which exists on the statute book, but, it is that which is to be found on the statute book and in the interpretation thereof by judicial precedents create ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntended to give two different meanings to the two expressions used by it. There cannot be doubt that the expression law made before the appointed day used in Sections 88 and 89 refers only to statute laws and to no other. In, my judgment, if the Legislature intended that Section 87 should refer only to statute or written laws and not to other kinds of laws, the Legislature would have used the expression law made before the appointed day in preference to the expression ''law in force immediately before the appointed day . The fact that the Legislature has not done, this, which was the obvious thing to do if such was its intention, is a strong argument against the construction sought to be placed by the learned Advocate-General, Mr. Nanavaty, Mr. Joshi and Mr. Trivedi. 73. Another argument which is urged against the view that case-law permeates the expression 'law in force' is that is offends against an important attribute of the term 'law'. It is contended that one important attribute of law is that it is certain and does not change from time to time. It is urged that this important attribute will be lacking if we interpreter the expression 'law in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he territory of Gujarat Moreover, in my judgment, Section 32 of the Act has conferred this power upon this Court. That section preserves for this Court the law in force as regards the practice of the High Court of Bombay. It is true that Section 82 does not preserve the practice of the High Court of Bombay as such, but, what it preserves is the law in force' with respect to practice. But, in my judgment, in this connection, the maxim 'Cursus curiae est lex curiae' applies. Broom on Legal Maxims, Ninth Edition, at p. 94, states as follows: Every Court is the guardian of its own records and master of its own practice; and where a practice has existed it is convenient, except to cases of extreme urgency and necessity, to adhere to it, because it is the practice, even though no reason can be assigned for it; for an inveterate practice in law generally stands upon principles that are founded in justice and convenience . Cresswell, J., in Fresman v. Tranah (1852) 12: CB 406 at page 414, has observed : It was a common expression of the late Chief Justice Tindal, that the course of the Court is the practice of the Court . If any precedent of the High Court of Bo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... law, if in the States of Kerala, Mysore and Rajasthan, a point of law arises before a subordinate Court that Court will be completely at large and will be in a position to decide it on is Own view of the matter, untrammelled by anything whatsoever and the point will remain res integra until the matter comes before the reliant High Court, The High Courts created in these three territories are separate and independent. The Mysore High Court took this view in AIR 1959 Mys 1 (FB). Therefore, that High Court immediately after its establishment did not have precedents which could have guided its subordinate Courts. The result of this is that, whereas a territory which formerly belonged to one or other integrating State, had a settled law, the aforesaid interpretation will throw the legal system in that territory out of gear and, so to say, a situation will arise in which nobody will be able to know, until the matter is finally decided by the High Court, as to what law is applicable to the territory. On the other hand, if the view which appeals to me is adopted, then, the subordinate Courts, before which the point of law arises will be bound to answer the point in the same manner in which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n with respect to other laws. On the contrary, in my judgment, the presumption should be that the Legislature did not intend to create a partial change of this kind, and thereby to shock the conscience of the people by suddenly breaking, them away from a legal system, to which they were used till then. It is true that the Legislature has now brought some of those laws in harmony with the laws of the former Bombay State. But, that appears to have beep done by subse-quent legislation and as a matter of policy and, after due deliberation. If the Legislature applied this niethod for change in the statute law, it is legitimate to think that it intended the same method to he used in respect of the other laws, also. The. Legislature instead of giving a free hand to the subordinate Courts to decide the cases untrammelled by any judicial precedent whatsoever, must have intended those Courts to administer the laws in accordance with the principles which were obtaining in these territories and must have left the question as to whether any partiaular law was proper and just for the High Court to decide in course of time or for it to change if it intended to do so in the interest of uniformity ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t page 93, in paragraph 28, after stating that that Section can only mean that the change of territories provided for by Part II of the Act will not make any change in the law obtaining in that territory before the change, till otherwise provided by a competent Legislature, the learned Chief Justice Subba Rao proceeded to observe. If there was a law obtaining in the Andhra area before the Constitution of the Andhra State to the effect that the Madras High Court deci-sions would be binding on the Andhra High Court, this provision can legitimately be invoked. But, obviously, there could not have been any such law, for the simple reason that there was no High Court of Andhra in existence prior to its constitution. On this simple ground, this contention should be negatived . With the greatest respect, tile observations do not appear to indicate the correct approach. The question for consideration is whether the expres-sion, 'the law in force', includes case-law and that aspect of the case, with due respect, does not appear to have been considered by the learned Chief Justice at all. The observations made by Bhimasankaran, J., at page 95, instead of supporting the view t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ght of appeal from Rangoon to Calcutta, and during the 22 years that the Chief Court of Lower Burma was in existence I have been unable to remember any occasjon where the decisions of the Calcutta High Court were considered of greater authority than those of Madras or Bombay by reason of the Burma Laws Act, Section 13 (2). This is of considerable importance for if the word law in that sub-section included the judicial decisions binding on the Original Side of the Calcutta High Court, it would clearly have been otherwise. Several learned Judges have construed the word law as covering not merely legislative enactments but also the English Common Law and they must be taken to have considered that it did not include the judicial decisions of the Calcutta High Court. In this construction I consider that they were justified''. The only reason given for not including in the term law case-law is that, in the remembrance of the learned Chief Justice, for nearly 22 years no one at the bar had raised the contention that the term law used in Section 13 (2) of Act 21 of 1863 of the Burma Laws Act of 1898 included case-law. With respect, this can hardly be regarded as a good o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... It is no doubt true that by virtue of Section 119 of the States Reorganisation Act, 1956, the taws operative in the respective areas continue to be operative until otherwise provided by a competent legislature or other competent authority. It should, however, be stated that such laws do not include what is called Judge-made law as has been held in AIR 1927 Rang 4 in similar circumstances''. The learned Judge follows the judgment of the Rangoon Court and does not give any independent reasons for holding that the Judge-made law is not 'law' within the meaning of Section 119. The learned Judge has also made reference to the confusion which, in his opinion, was likely to arise if case-law was included in the expression 'law in force'. This is what he says : Nor can it be suggested that this Court should apply to cases arising in different areas the law as interpreted by the High Courts respectively exercising jurisdiction formerly over those areas in regard to the same provision of law. That would mean that this High Court would not bo functioning as an integral entity but would have split itself into different entities, possibly taking different vie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... other proceedings in that State till such time as a duly constituted authority modifies them . The learned Chief Justice disposed of the question as to whether the expression laws and the usages includes case-law or not in the following words : The Full Bench (referring to a former Full Bench of the High Court), if I may say so without disrespect, rightly held that the term ''Laws and usages as used in these two clauses cannot be held strictly speaking to cover judicial decisions . There is no further discussion On the subject on this point at all, nor is the above view supported by any further reasoning. 81. The same question arose before a Full Bench of the Kerala High Court in the case of Lakshmikutty Amma v. Madhavan Pillai, reported in AIR1958Ker111 . The question for consideration was whether decisions of the Travancore and Cochin High Courts were binding on the High Courts of Travancore-Cochin and Kerala. The answer was in the negative. With respect, no reasons have been given for this conclusion as would appear from a paragraph at page 114 of the report The Judges of the Travancore-Cochin High Court had no similar reason to take a view knowing i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... S. T. Desai in AIR1960Guj40 , both he and I felb difficulty in accepting that contention. The contention was based mainly upon the decision in. The principle that, when two Courts are of co-ordinate jurisdiction, the precedents of one are binding on the other on the principle of judicial comity was never in dispute. That principle has also not been challenged by any side before the present Full Bench. The main question for consideration is as to what is the exact connotation of the expression a Court of co-ordinate jurisdiction . The test which was laid down by Subba Rao, the learned. Chief Justice in M. Subbarayudu's case, was as follows: Whether the two Courts are of equal rank and status or of equal authority and exercise similar jurisdiction . The Division Bench aforesaid found difficulty in-accepting the latter part of the test laid down by the learned Chief Justice. This doubt arose on another ground also. Can it be stated that a Court which was already in existence long before another Court came into existence was a Court of co-ordinate jurisdiction with the latter Court although the latter Court was not in existence when the precedents of the former Court were created ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... posite High Court of Bombay is now extinct and that two new Courts have come into existence -- the High Court of Maharashtra and the High Court of Gujarat, --that, both these Courts are co-inheritors of the jurisdiction of the composite High Court in their respective territories and that the precedents of the composite High Court are binding on the High Court of Gujarat as the successor Court of the composite High Court of Bombay. 88. I am not in agreement with the submission, of Mr. Nanavaty and Mr. Trivedi that the High Court of Bombay is extinct and that the present High Court of Maharashtra at Bombay is a successor of the composite High Court of Bombay. The argument is that, by the Act, two new States and two new High Courts are created. It is not necessary to express any opinion on the first limb of this argument as to whether the residuary State of Bombay, after the separation of the territories assigned to'Gujarat, is a new State or a residuum of the old State of Bombay. The question with reference to the High Court of Bombay must be answered with reference to the provisions contained in Part IV and some Other relevant sections. Section 28 states that, as from the app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uggest that the High Court at Bombay was the same High Court but with a truncated territorial jurisdiction. It is hardly probable that the Legislature would not have made the aforesaid provisions for the High Court at Bombay if it had intended to create a new High Court for the State of Maharashtra. Under the circumstances, I cannot agree with the submissions of Mr. Nanavaty and Mr. Trivedi. Mr. Nanavaty alternatively contends that, even if the High Court of Bombay is not extinct, the High Court of Gujarat must be considered to be a successor of the High Court o Bojnbay, ( described in the Act as the High Court of Bombay) in relation to the territory of Gujarat. He contends that though the expression 'succession' is, usually used in connection with inheritance, that expression ig not confined in law only to the law of inheritance. A person or an Institution can be said to succeed another living person or institution if, on the former, devolves the jurisdiction, power and authority of the latter, either in whole or in part. Mr. Nanavaty may be right in making .this submission. But, ag a general rule, one does not associate the word 'successor* with the estate of a livin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the tests to be applied for determining which are Courts of co-ordinate jurisdiction, I may first dispose of a few general submissions which were made by Mr. Vakil on this point. 90. Mr. Vakil contends that the principle of co-ordinate jurisdiction is a principle peculiar to British jurisprudence and that the basis for the application of that principle to the Indian jurisprudence is completely lacking. The contention is that the principle of co-ordinate jurisdiction can apply only to Courts situated in one and the same realm and following the same legal system. He contends that the principle is based on the fundamental fact that both the Courts administer one and the same system of law and, in order that the law may be uniform for the whole realm, it is necessary or expedient to evolve a principle that Courts exercising the same jurisdiction and having the same rank and status should follow the precedents, of each other, so that there may be no confusion of uncertainly in the administration of law. The argument is interesting at first sight and even attractive. But, in my judgment, there is a fallacy in at least a part of this argument. The States in India are not sovereign ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion is the same. Still, the principle of co-ordinate jurisdiction has never been applied at the level of subordinate Courts. No one has ever argued that a decision given by one District Judge was binding upon his joint or successor District Judge, or that the decision of a Judge of the Senior Division was binding on his joint or successor Civil Judge or the decision of a Judge of the Junior Division was binding on his joint or successor Civil Judge. This is a good illustration to show that the principle of co-ordination is not brought into existence in the interests of uniformity or certainty of law. This principle so far as I know and that has not been disputed at the bar, is applicable only to the higher strata of Courts. In fact, in the composite State of Bombay it was applicable amongst the Judges of the Court, although I may mention that I was told that the Judges of he City Civil Court of Bombay had evolved a similar practice for themselves. In any case, the principle has been confined to the higher Courts and the principle obviously appears to have been evolved to preserve decorum and respect amongst the Judges Chief High Courts. 92. Mr. Vakil further contends that co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e territory of Gujarat. 95. Mr. Vakil then contends that the whole principle is self-stultifying. He says that, in the ultimate analysis, the principle of co-ordinate jurisdiction has its root of authority only in the precedents of the two Counts of co-ordinate authority and the root can be cut off by one of the two Courts at any moment. He says that if the High Court of Gujarat accepts this principle to-day, it can on the very next day create a precedent to the contrary and there will be no certainty that the principle will be applied at all times. The argument points out more a flow inherent in the principle of co-ordination than refutes the plea for the application thereof. In my judgment the defect cannot be used as a ground for denying the exis-tence of the principle which as I have already pointed out above, is well settled as a principle of judicial practice. 96. According to Halsbury, Third Edition, Volume 22 page 801, paragraph 1689, there is no statute or common law rule bv which one Court is bound by the decision of another Court of co-ordinate jurisdiction. That book describes the application of the principle of co-ordination as a rule of modern practice. This is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not Courts of co-ordinate jurisdiction alone. Therefore, a test must be found which will distinguish between a concurrent Court and a co-ordinate Court. It is for this reason that, in the former Full Bench the test was not com-plelely rejected. But, the controversy is as to what is the test which is to be applied for the purpose of distinguishing a Court of concurrent jurisdiction from a Court of co-ordinate jurisdiction. One of the arguments is that concurrent Courts are also Courts of co-ordinate jurisdiction; but, the latter Courts have a wider connotation inasmuch as they include in their ambit predecessor and successor Courts also. Therefore, it is urged that the test which distinguishes a concurrent or simultaneous Court from a co-ordinate Court is that, in the case of the former the two Courts must exist simultaneously at one and the same time; whereas, in the latter case, the two Courts may exist one after another. It follows from this that the jurisdiction of one Court may be anterior in point of time than that of another Court and yet. if the first test is satisfied, the Courts will be Courts of co-ordinate jurisdiction. There is high authority for this proposition. In En ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the decision of a predecessor Court of the same jurisdiction. It is true that in none of the above English cases, any reasoning is given in support of the proposition aforesaid. But. it cannot be denied that the Courts which decided the point were composed of Judges of great eminence and learning, such as Lord Herschell. Lord Scrutton, Lord Davy, Lord Lindley and Reading, C. J. I would require very strong ground to differ from a proposition laid down by such eminent and learned Judges. Therefore I accept it as a correct principle that a successor Court is bound by the precedent of a predecessor Court of equal rank. This supplies a good point for distinguishing a concurrent Court from a co-ordinate Court, but it does not answer the question whether the test of similar jurisdiction is correct or not. 98. On principle, I have no doubt whatsoever that the test of territorial jurisdiction is an important test, for the purpose of considering the principle of co-ordination. It is well known that the three High Courts established to the Presidency Towns of Calcutta, Madras and Bombay exercised the same kinds of jurisdiction, it is equally well known also, though some learned Judges ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... before 1st of May 1960, the composite Bombay High Court had the same kind of jurisdiction over the territory of Gujarat which the High Court of Cujarat exercises after that date over the same territory. It was contended that, therefore, the test of territorial jurisdiction ought not to be applied with reference to two different points of time. It was contended that the jurisdiction of the two Courts over the territory of Gufarat being identical at different points of time, one Court would be co-ordinate with the other, in spite of the fact that, at the time when the composite High Court of Bombay exercised its jurisdiction over the territory of Gujarat, it also happened to exercise jurisdiction over the territory which is now the territory of Maharashtra. I am by no means convinced about the validity or correctness of this argument. In my judgment, there is considerable force in the argument that, in order that Courts may be Courts of co-ordinate jurisdiction, they must be Courts which must respect the decisions of each other, and that the principle of mutuality must apply in such cases. If the situation is such that only one Court happens to respect the decision of another Cou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rat, then, the latter Court cannot extend the principle of comity to the former Court. In my judgment, having regard to the view taken in AIR 1927 Rang 4 in a contingency of the aforesaid type, there is no doubt whatsoever that the High Court of Bombay is not likely to respect the decisions of the High Court of Gujarat. In that view of the matter also, in my judgment, the principle of co-ordination is inapplicable in the present case. 101. In my judgment, there is also some substance in the argument of Mr. Vakil that the jurisdiction which the composite High Court exercised is not the same as the jurisdiction conferred upon the High Court of Gujarat by the Act. According to the Letters Patent, the composite High Court of Bombay exercises ordinary original jurisdiction over Greater Bombay. The original side of tfiat High Court also exercises jurisdiction over persons residing in the territory of the whole State. Under the Act, this jurisdiction is not and cannot be inherited by the High Court of Gujarat. It is true that the High Court of Gujarat does exercise original jurisdiction in some matters, such as, a few matters arising under the Indian Companies Act and under the Banking ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , either before the former Full Bench or before the present Full Bench. 104. For the aforesaid reasons, I have come to the conclusion that the proponents of the principle of co-ordinate jurisdiction are not right in contending that this Court is a Court of co-ordinate jurisdiction with the High Court of Bombay as it existed before 1st May 1960 and, consequently, in my judgment, the precedents created in that Court cannot be held to be binding on the principle of judicial comity. 105. For the aforesaid reasons, I have reached the following conclusions : I. The law which was administered by the former High Court of Bombay and as interpreted by the precedents of that Court was the law in force on 1st May 1956 for the territory of Gujarat, and that law in force is preserved intact by Section 87 o the Act and, consequently, the precedents created by the High Court of Bombay before that date are binding on this Court on the ground that it forms a part and parcel of the law in force preserved by Section 87 of the Act. II. Those precedents will be binding on the different heirarchies of Courts in the territory of Gujarat in the same manner as they were binding to the same o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ision of the Supreme Court will be followed by this Court. (iii) A precedent, though not expressly overruled by a decision of Privy Council, Federal Court or Supreme Court, which is inconsistent with the decision of any of these bodies or Courts will not be binding on this Court. (iv) A precedent which is given per incuriam or a decision which is given sub silentio will not be followed by this Court. IV. On the principle of co-ordinate jurisdiction, I have come to the conclusion that that principle is not applicable between the composite High Court of Bombay and the High Court of Gujarat and that the precedents of the composite High Court of Bombay cannot be followed by this Court on the basis of that principle. V. I may make the following observations on a point which is connected but which does not directly arise for decision. In Young's case (1944) 1 KB 718, it has been laid down that when there are two conflicting decisions of the same Court, then, the Court is entitled and bound to decide which of the two conflicting decisions of its own, it will follow. I have given my anxious thought to this principle and, on the whole, I have come to the conclusion that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ate General who appeared on behalf of the Union of India submitted that the decisions given by the High Court of Bombay prior to 1st May 1960 should be considered binding on this High Court and he advanced three contentions in support of this submission. The first contention was--and it was this contention which found favour with us then--that the decisions of the High Court of Bombay given prior to 1st May 1960 were included in the expression any law in force immediately before the appointed day in Section 87 of the Bombay Reorganisation Act, 1960, and that their binding character therefore, continued notwithstanding the bifurcation of the former State of Bombay and they were accordingly binding on this High Court. Dealing with this contention S. T. Desai, C. J., as he then was speaking on behalf of the Full Bench observed as follows: It Is next necessary to consider in turn whether decisions of the Bombay High Court are to be regarded as 'law in force' in the territories which constituted the State of Bombay. On this point Mr. Patel had little to say. We on our part find no difficulty in giving a comprehensive connotation to the expression any law in force immedia ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... High Court is in a real sense an off-spring of the pre-reorganisation High Court of Bombay. We contemplate the pedigree with filial sentiment and gratitude. Then it is said that we are a Court of co-ordinating jurisdiction with the High Court of Bombay as regards citation of decisions of the High Court of Bombay prior to the appointed day and it is in support of this proposition that the Advocate-General has relied on the Full Bench decision of the High Court. of Andhra of which we have made mention. We should have examined the argument here in some detail and also referred to the views expressed by the learned Judges who decided the Full Bench case but it will not be necessary to do so in view of the conclusion already reached by us on the construction and meaning of Section 87 of the Reorganisation Act. The learned Chief Justice of the Andhra High Court, as he then was, has in his judgment in that case expressed the opinion at page 91 of the report that it would not be inappropriate to call a successor Court a Court of co-ordinate jurisdiction, with its predecessor if their jurisdictions at the point of time they exercised it are similar to or co-extensive with each other. The le ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in doubt or dispute. The question is whether the decisions of that Court are binding as precedent. We should have pursued the matter but since we have already reached our conclusion on a reading of the sections of the Reorganisation Act and particularly that of Section 87, we need not burden this judgment with any discussion of the same. We accordingly on the question referred to us gave the opinion that the decisions of the High Court of Bombay given prior to 1st May 1960 are binding on this High Court. 109. This decision being a decision of a Full Bench of this High Court was followed unquestioningly by all Judges of this High Court whether sitting singly or as members of a Division Bench until 19th June 1961 when an appeal came up for hearing before a Division Bench of this High Court consisting of Raju and Bakshi, JJ. Two decisions, one a decision of the High Court of Bombay given prior to 1st May 1960 and the other a decision of the High Court of Punjab, which took conflicting views on a purticular point of law which was material to the decision of the appeal, were cited, before the Division Bench. The competing claims of these two decisions for acceptance raised th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly, the Supreme Court, and that the Spe-cial Bench should, therefore, consider itself free to disregard the decision of the previous Full Bench by reason of the superiority of numerical strength of the Judges composing the Special Bench. This preliminary question raises a point of considerable importance relating to the dcctrine of judicial precedents and it is necessary at this stage to determine the same before entering upon a detailed discussion on the question whether the decisions of the High Court of Bombay, given prior to 1st May 1960 should be regarded as binding on this High Court. 111. In order to arrive at a correct determination of thjs preliminary question it is necessary to understand and appreciate the nature and ex-tent of the doctrine of judicial precedents as it exists to-day in Corpus Juris. This inquiry will not only help in the determination of this preliminary question but will also reveal the true principle on which the question referred to the Special Bench should, in my opinion, be decided. The doctrine of judicial precedents is peculiar to the English system of administration of justice and since we in India have inherited the English sys-tem of adminis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n. But there is no statute or common law rule by which one Court is bound to abide by the decision of another of equal rank; it does so simply from what may be called the comity among Judges. In the same way there is no common law or statutory rule to oblige a Court to bow to its own decisions: it does so again on the grounds of judicial comity. I shall have occasion later on to refer also to some decisions of our own Supreme Court which point out that the doctrine of judicial precedents ultimately rests on judicial comity and judicial decorum and does not owe its origin to any statute or common law rule, the history of the doctrine of judicial precedents clearly illustrates that it is by a process of self-stultification that the English Judges have developed the doctrine in its present form and that there is no statute or common law rule which compels obedience to an individual precedent. The process which ultimately culminated in the acceptance Chief the doctrine of judicial precedents as it exists to-day was a long and slow process and may be described in the words of Sir Carleton Alien as follows: ''In English law, the habit of noting deci-sions seems to have ar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d, though Lord Mansfield himself, while remaining a firm believer in stare decisis, did not himself always adhere faithlully to it. By the end of the eighteenth century, all the foundations of the modern doctrine of precedent were laid but it could not reach its final development until certain changes, especially in the system of judicature and in the nature of the law reports, had been fulfilled. By 1833 it is recognized that the decisions of higher tribunals are binding in lower tribunals, unless plainly un-reasonable and inconvenient', and that no judge is at liberty to depart from a principle once laid down merely on the ground that it is not 'as convenient and reasonable as he himself could have devised'. In the latter half of the nineteenth century the system of judicature is simplified, the reports are regularized, the hierarchy of authority becomes settled, and the general rules for the application of precedents are well defined and observed . There are certain general rules which are now well recognized, as governing the application of precedents so far as the Courts in England are concerned. Each Court is bound by the decisions of Courts above it, and the d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... merical strength has been rejected by the Divisional Court. Lord Coddard C.J., in the latter case of 1949 2 KB 354 observed as follows in this connection:-- Before considering the law applicable to the case, we think it well to emphasize that a Divisional Court of five Judges has no greater powers than one of three or even two. This Court is bound by its own decisions as is the Court of Appeal, whatever be the number of Judges that may constitute it . The Court of Appeal is also, like the Divisional Court, bound by its own previous decisions irrespective of the number of Judges constituting the Court. This was authoritatively settled in (1944) 2 All ER 293. Even prior to 1944 there was a stream of authority for this view, broken only by a few dissentient voices. The minority opinions were, however, disapproved in Young's case 1944 2 All ER 293 and Lord Creene, M. R., delivering the judgment of the full Court of Appeal held after a carerful examination of the whole matter, that the Court of Appeal is bound to iollow previous decisions of its own as well as those of Courts of co-ordinate jurisdiction. The learned Master of Rolls also dispelled the impression that the full ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n and there is, therefore, no reason why one Bench or Division should be permitted to disregard the decision of another bench or Division merely on the ground that the former consists of a larger number of Judges than the latter. The jurisdiction or powers of a Bench or Division do not increase or change with the number of Judges composing it and it would be illogical to hold that a Bench or Division consisting of the same number of Judges cannot overrule the decision of another Bench or Division, but a Bench or Division consisting of a larger number of Judges can disregard such decision. Barton J., in the concluding paragraph of his judgment in the Tramways case (1914) 18 CLR 54, has expressed the same view while dealing with the power of the High Court in Australia to review its own previous decisions. According to that learned Judge changes in the number of appointed Justices can,.....never of themselves furnish a reason for review . The rule regarding the application of judicial precedents in the Divisional Court and the Court of Appeal thus represents an extreme development of the doctrine of judicial precedents. The same position also obtains in regard to the House of Lor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... certainty to the rules of law by which men have to guide themselves is of greater importance than arriving at the rule which is best in itself or most logically harmonious as part of a system. It may be that a principle which is once established by decisions is not as perfect and national as it ought to be but that is no reason why it should be reversed. It is often more important that the law should be certain than that it should be ideally perfect Wherever a decision is departed from, the certainty of the law is sacrificed to its rational development, and the evils of uncertainty thus produced may far outweigh the very trifling benefit to be derived from the correction of the erroneous doctrine. The decision, while it stood un-reversed, may have been counted on in numerous cases as definitely establishing the law. Valuable property may have been dealt with in reliance on it; important contracts may have been made on the strength of it; it may have become to a great extent the basis of expectation and the ground of mutual dealings. Justice may therefore imperatively require that the decision, though founded in error, shall stand invoilate none-the-less communis error facit jus. I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d by the doctrine of judicial precedents that cases occur when the Court finds itself bound by its own prior decisions of which it now disapproves hut which nevertheless it is forced to follow. A good illustration of this may be found in Olympia Oil and Cake Co. Ltd. v. Produce Brokers' Co. Ltd. (1915) 112 LT 744, where the Court of Appeal followed its own prior decisions with the greatest reluctance. Buckley L. J., said: I am unable to adduce any reason to show that the decision which I am about to pronounce is right .....But I am bound by authority, which of course it is my duty to follow.'' Phillimore L. J., was even more emphatic: With reluctance -- I might almost say with sorrow -- I concur in the view that this appeal must be dismissed. I trust that the case will proceed to the House of Lords . Cases also arise where the Court is compelled in the interests of justice to spuriously distinguish its previous decisions because it cannot by reason of the doctrine of judicial precedents disregard them. The Court being powerless to overrule its previous decisions is driven to find distinctions which do not exist and which the Court would not have adopted if ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ithin the High Court itself the decisions may be rendered by a single Judge or by a Division Bench of two Judges or by a Full Bench of three or more Judges. Now Clause 36 of the Letters Patent of the High Court of Bombay which applies to this High Court by reason of the provisions of Sections 30 and 35 of the Bombay Reorganisation Act, 1960, provides that any function which is directed to be performed by this High Court in the exercise of its original or appellate jurisdiction can be performed by any Judge of the High Court or by any Division Court constituted Chief two or more Judges of the High Court. It follows from this as a necessary corollary that all Judges of the High Court have co-ordinate jurisdiction meaning thereby the same jurisdiction in its entirety. Whatever can be done by a single Judge can he done by Division Bench of two or more Judges and vice versa. Each Bench of the High Court whether consisting of one Judge or two or more Judges has co-ordinate jurisdiction and if the principle which has been accepted in the Divisional Court and the Court of Appeal in England is applied, the result would be that the decision of a single Judge would be binding on a Division Be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ial element of it is that the Courts should deem themselves bound by decisions of Courts of co-ordinate jurisdiction, and that it should not be left in cases precisely on all fours for Judge A to decide points of law in one way and Judge B in another, Think for a moment of the embarrassment that would be caused to the legal profession and to the litigating public if there was no such thing as a settled point of law, and if there could be no certainty as to what the decision on any point of law would be until after judgment had been given. The Supreme Court has also recently approved this rule which requires a Judge sitting singly in the High Court to follow the previous decisions of another single Judge of the High Court in the following passage in the judgment in [1960]3SCR578 : .....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 of 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under the rules made by the High Court almost always heard by a Division Bench constituted of two Judges of the High Court. In England also the decision of the Divisional Court in respect of matters of procedure is considered binding on a single Judge of the High Court even though the single Judge and the Judges constituting the Divisional Court are all judges of the same High Court having co-ordinate jurisdiction with one another. The reason is that the determination of the single Judge in respect of matters of pro-cedure is subject to appeal to the Divisional Court. Lord Creen M. R,, in Youngs' case 1944 1 KB 718 (supra) also observed while negativing the argument that the full Court of Appeal can overrule the previous decision of a Division of the Court of Appeal consisting of lesser number of Judges : Certainly it cannot be said that there is any statutory right of appeal from a decision of the Court of Appeal to the lull Court. Of course the anology of the Divisional Court is not very appropriate for it is not every decision of the Divisional Court which is binding on a single Judge but it is only the decision rendered by the Divisional Court on matters of proced ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion Bench should not pronounce upon the correctness of the decision of the previous Division Bench but should refer the matter to a Full Bench so that the Full Bench can reconsider the matter and decide whether the decision of the previous Division Bench correctly lays down the law. The Full Bench may consist of three or more Judges and once a decision is rendered by the Full Bench, it should be regarded as binding on all single Judges and Division Benches of the High Court. This prin-ciple has been approved by the Supreme Court in the following passage from the judgment in Mahadeolal's case, [1960]3SCR578 (supra):- 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 ..... But quite apart from any rule, considerations of judicial propriety and decorum ought never to be ignored by Courts in such matters. There are also observations to the same effect in a later decision of the Supreme Court reported in [1960]3SCR975 , where it has been stated:- ..... We had recently occasion to disapprove of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot correctly laid down in such decision. In these cases the principle of superiority of numerical strength amongst Benches of co-ordinate jurisdiction is recognized and given effect to and a departure is made from the rule which requires that a Court should hold itself bound by the decision of another of co-ordinate jurisdiction. Now the question is, of these two competing principles which should prevail so far as Full Benches of the High Court are concerned. It is of course axiomatic that a Full Bench constituted of three Judges of the High Court -- which is the minimum strength of a Full Bench -- is bound by the previous decision of another Full Bench constituted of three judges of the High Court. That this should be so is clear from the fact that both the Full Benches are Benches of co-ordinate jurisdiction and the numerical strength of the Judges composing both the Full Benches is the same. What is the position, however, when a Full Bench consisting of more than three Judges of the High Court is confronted with the previous decision of another Full Bench consisting of three Judges of the High Court or a Full Bench consisting of a larger number of Judges of the High Court is con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ad, JJ.) in Emperor v. Purshot-tam. Four out of the five Judges who constituted the later Full Bench came to the conclusion that the decision of the previous Full Bench was wrong. Shah, J., however, disagreed and held that the law was correctly laid down in the decision of the previous Full Bench. The net result was that the opinion of four Judges prevailed over the opinion of five Judges of co-ordinate jurisdiction and the decision of the previous Full Bench ceased to be a binding authority even though five Judges subscribed to the view taken in that decision as against four Judges who subscribed to the view taken in the later decision. It was the anomaly of this situation which prompted Beaumont, C. J., to make the aforesaid observations. This anomaly is, however, inherent in the principle of superiority of numerical strength and should not stand in the way of acceptance of that principle in its application to Full Benches of the High Court. The same anomaly also arises when tour or five Judges of the High Court, each sitting singly take one view of the law on a particular point while a Division Bench consisting of two Judges takes a different view or when three or lour Division ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of another Full Bench consisting of a lesser number of Judges and declare that the law was not correctly laid down in such decision. The result in such a case of course would be that the previous decision would cease to be a binding authority and would, for all practical purposes, be regarded as overruled by the later deci-sion. It cannot therefore, be controverted that the Special Bench constituted of five Judges of this High Court can re-consider the question whether the decisions given by the High Court of Bombay prior to 1st May 1960 are binding on this Court notwithstanding the previous decision of the Full Bench of three Judges of this High Court. This preliminary question having been settled, I will now proceed to consider the mam question refen-ed to the Special Bench namely, whether the deci-sions of the High Court of Bombay given prior to 1st May 1960 are binding on this High Court. 118. The argument which found favour with the previous Full Bench was that the decisions of the High Court of Bombay given prior to 1st May 1960 could be regarded as ''law in force in the territories which constituted, the State of Bombay and their binding character, therefore, con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e should be formed a new State to be known as the State of Gujarat comprising some of the territories of the State of Bombay therein set out and that the said territories should thereupon cease to form part of the State of Bombay. It was also provided by Section 3(1) that the residuary State of Bombay should be known as the State of Maharashtra. By Section 3(2) certain villages in the Umbergaon Taluka were constituted into a separate Taluka of the same name and included in Surat District. There was also some provision made in Section 3(2) for including certain villages in the Songadh Taluka of Surat District and Sagbara Taluka of Broach District. Consequential amendments were also made in the First Schedule to the Constitution by Section 4 for the purpose of showing under the heading The States the States of Gujarat and Maharash-tra. Section 5 saved the power of the State Government to alter after the appointed day the name, extent or boundaries of any District, Taluka or Village in the State. The result was that certain territories specified in Section 3(1) were carved out of the territories forming part of the State of Bombay and constituted into the new State of Gujarat while ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 60 are binding on this High Court was one of the provisions contained in this Part and it was in the following terms: 87. Territorial extent of laws: The provisions of Part II shall not be deemed to have effected any change in the territories to which any law in force immediately before the appointed day extends or applies and territorial reference in any such law to the State of Bombay shall, until otherwise provided by a competent Legislature or other competent authority, be construed as meaning the territories within that State immediately before the appointed day. The previous Full Bench held on a construction of Section 87 that the judicial precedents of the High Court of Bombay prior to 1st May 1960 were wjthin the extensive scope and ambit of the words law in force in that Section and were, therefore, binding on this High Court. It is this construction of Section 87 which has been assailed before the Special Bench and the question, therefore, is what is the true scope and ambit of the expression law in force in Section 87. 120. The language of Section 87 does not present any difficulty in interpretation if one approaches it bearing in mind certain well-estab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch attributes to the Legislature an intention to bring about an absurd or mischievous result. The construction put by the previous Full Bench on the language of Section 87 does not accord with these well-known principles of interpretation and is founded on the erroneous view that the words law in force occurring in that Section are words of the widest amplitude sufficient to take within their meaning and coverage judicial precedents of the High Court of Bombay prior to 1st May 1960. 121. The provisions of Part II carved out certain territories from the State of Bombay and constituted them into the State of Gujarat and the State of Bombay with the residuary territories continued as the State of Maharashtra. Now ordinarily when a new State is formed out of the territories carved out from another State, the laws of the old State would, in the absence of any other provision, cease to apply to the territories of the new State. The old State would have no legislative competence in respect of the territories forming part of the new State and since the laws of the old State can operate only within the territories of the old State they would not apply to the territories forming part of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed. Section 87 therefore, provided that the laws in force immediately before the appointed day should continue to apply to the same territories to which they applied immediately before the appointed day as if no bifurcation of the territories of the State of Bombay had taken place under the provisions of Part II. Now this provision was obviously necessary only for the laws in force immediately before the appointed day which extended or applied to the territories affected by the bifurcation made by the provisions of Part II and which as a result of such bifurcation would have ceased to apply to that part of the territories which went out of the State of Bombay to form the State of Gujarat. If there were any laws in force immediately before the appointed day which extended or applied to the territories affected by the bifurcation made by the provisions of Part II but the extent or application of which to any part of the said territories Was not liable to be affected by such bifurcation, there was obviously no necessity to make any provision for preserving and continuing the extent or application of such laws to the said territories. It is, therefore, obvious that Section 87 was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Advocate General in regard to the use of the word Jaw in different Sections of the Act. The learned Advocate General pointed out that the word law was used in three different combinations in various Sections of the Act. The word law simpliciter was used in Sections 44 and 94, the words law made'' were used in Section 88 and the words law in force were used in Sections 30 to 36, 87 and 90. Two contentions were advanced by the learned Advocate General founded on the distinction in these three different combinations in which the word law was used. 123. The first contention of the learned Advocate General was that as contrasted with the word law which might mean only statute law, the words law an force had a wider connotation and included not only statute law but also non-statute law such as personal law, customary law, common law and what is loosely termed case law . This contention is manifestly wrong. I do not see how the addition of the words in force can have the effect of enlarging the scope and meaning of the word law when it occurs in the combination law in force . The words in force must be read with the words which follow and which indicate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ference to the guestion whether it was or was not in force immediately before the appointed day. That part of the law which was in force immediately before the appointed day would be included within the words law in force and the rest would be excluded. It will thus be seen that the word law when occurring in the combination law in force has no wider meaning than the word law simpliciter but has on the contrary a more restricted meaning. Whether the word 'law in any particular Section means only statute law or also includes non-statute law must, therefore, depend upon the context in which the word law is used and the subject and the occasion and the object of the Section and the combination in which the word law occurs namely law in force would not help in the determination of the question. 124. The second contention of the learned Advocate-General was based on the distinction in the combinations in which the word law was used in Sections 87 and 88 of the Act. The learned Advocate-General pointed out that the words law made were used in Section 88 whereas the words used in Section 87 were law in force . The words ''law made in Section 88, argue ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o such part of the law as was immediately in force before the appointed day. The words law in force have been used in Section 87 because the Legislature wanted to refer not to statute laws made by the Legislature but to laws which were in force immediately before the appointed day. The words law made if used in Section 87 would not have carried out the legislative intent. A law may have been made by the Legislature but may not be in force and in that even though it would be covered by the words law made it would not be within the scope and intendment of the words law in force . The difference in the language employed in Sections 87 and 88 cannot, therefore, be urged as a ground for holding that the words law in force include not only statute law but also non-statute law. The determination of this question must depend upon the true scope and meaning of the term law as used in the expression law in force in Section 87. 125. Amongst the counsel who appeared before us those who wanted to confine the meaning of the words law in force in Section 87 to statute law leaned heavily on the definition of law in Section 2(d) which referred only to statute law and which was i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ia Act, 1935, observed that that Section applies not only to statutory enactments then in force but to all lows, including even personal laws, customary laws and common laws . Article 372 of the Constitution of India also contains the same words and they have been interpreted in the same manner by the High Court of Bombay in Bank of India v. John Bowman, AIR1955Bom305 . It is therefore, clear that the words law in forse are words of wide amplitude which can take in not only statute law but also non-statute law but the question is whether in the context in which they occur in Section 87, they bear such broad meaning or their meaning is restricted by the context as also by the subject of the enactment and the scope and object in contemplation. I have said before and I way say again that words used with reference to one subject-matter of set of circumstances may convey a meaning quite different from that which the same words used with reference to another set of circumstances and another subject-matter would convey. General words admit of indefinite extension or restriction, according to the subject to which they relate, and the scopes and object which they are designed to achie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntially interpretative and not legislative. His whole effort is to find the law and not to manufacture it. In the vast majority of cases which are directly or indirectly governed by decisions, the Judge does not 'make' law as an act of original creation. He merely applies a principle illustrated by previous examples. He ascertains the principle from precedents cited before him and applies it to the facts of the case before him. He is in this process limited in his material; he can work only upon materials which exist in the present or the past; he does not consciously project a rule into the future, but applies what he conceives to be an existing rule derived from precedents to the concrete case before him. There are no doubt a large number of cases of first impression in which he can find no specific authority to guide him; but here also it would not be correct to say that he makes law. In such cases he decides not on precedent but on principle . He decides upon considerations which his professional training leads him to believe are consistent with the general principles of law. If he has to decide upon the authority of natural justice, or simply the common-sense o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... powers are quite different in this respect from those of the legislator in the proper sense of that term. The Judge's function is to interpret and not to legislate. Though in the Process of interpretation the Judge inevitably affects the development of the law and to that extent, his function is certainly creative but to attribute to him any law-making power is to ignore the real nature of the judicial function. It was not with our reason that Lord Esher M. R., said in Willis v. Baddeley(1892) 2 Q. B. 324 :- There is in fact no such thing as Judge-made law, for the judges do not make the law, they frequently have to apply existing law to circumstances as to which it has not previously been authoritatively laid down that such law is applicable . Scrutton L. J., also gave expression to the same view in Hamett v. Fisher (1927) 1 K. B. 402, when he observed: This Court, sits to administer the law; not to make new law if there are cases not provided for . It may be that in the Court of Chancery in England the theory that judicial precredents are merely declaratory of law could not prevail having regard to the known history of the system of equity administered by that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... class of limited interest as is possessed by a Hindu widow. Since the quality of the right which a daughter takes who inherits immovable property from her father, has been differently determined in different parts of India, the question arose as to what was the law which regulated the succession of the deceased. Now it is absolutely settled that the law of succession is in any given case to be determined according to the personal law of the individual whose succession is in question. Prima facie any Hindu residing in a particular province in India is held to be subject to the particular doctrines of Hindu law recognised in that province. But this law is not merely a local law. It becomes the personal law and part of the status of every family which is governed by it and consequently, where any such family migrates to another province governed by another law, it carries its Own law with it. The personal law of the immigrant would, therefore, be the law of the place from where he migrated unless of course it has been shown that he has renounced his original law in favour of the Taw of the place to which he, migrated. It was in the light of this statement of the law that the Judicial ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urt decision was 1859. In this their Lordships hold that he was clearly wrong. He was treating the decision of 1859 as if it were a statute which imposed law for the first time. It was nothing of the sort. It was declaratory of the law as it had existed . * * * * * * It was argued by Sir E. Richards that this would entail the consequence that the law of the emigrated family would be subject to every change brought about by the decisions of the Courts of the Province where they no longer were. This is not so. The law must be the Family law as it was when they left. A judgment declaratory of law as having always been would bind; but it would be a different thing if subsequent customs became incorporated in the law. The distinction is pointed out in the case of Vasudevan v. Secy. of State ILR Mad 157 in the judgment of the Court (Sir A. Collins C. J and Muttusami Ayyar, J.) It will, therefore, be seen that the Judicial Committee of the Privy Council also regarded judicial decisions given on questions of personal law as declaratory of the law as it always existed and not as of themselves making the law. If the declaratory theory of judicial precedents was recognized and ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... so points unmistakably to the conclusion that it is this principle which furnishes file true explanation of the binding character of judicial precedents. It is clear that it is by a process of selfstultification -- by forging letters on their own feet -- that the Judges have evolved the doctrine which attaches absolute binding character to judicial precedents. The evolution of the doctrine in India has been, as I have pointed out, different from the evolution in England and much of the rigidity which affects the doctrine as it prevails in England is absent in India. This difference in the operation of the doctrine in the two countries --which is by no means inconsiderable -- again throws into hold relief the true basis and operation of judicial Precedents and illustrates the validity of this principle based On judicial comity and judicial decorum. I may refer in this connection to a paradoxical position which arises in regard to decisions of the House of Lords and which brings out clearly the point which I wish to make The legal view in England today is that the House of Lords is bound by its own decisions. Suppose a lawyer who puts forward this proposition is asked what is his aut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as I have pointed out above, on the principle of judicial comity and decurum and they have no binding effect except by reason of what may be called comity amongst Judges. Judicial precedents thus lack the most distinctive characteristic of law and I do not see how they can be regarded as law. 129. But quite apart from this argument there is another argument which is equally fatal, to the contention that judicial decisions must be regarded as law, Judicial precedents are divisible into two classes, which may he distinguished as authoritative and persuasive. These two differ in respect of the kind of influence which they exercise upon the future course of the administration of justice. An authoritative precedent is one which the Judges must follow whether they approve of It or not. It is binding upon them and excludes their judicial discretion for the future. A persuasive precedent on the other hand is one which the Judges are under no obligation to follow, but which they will take into consideration, and to which they wil1 attach such weight as THEy consider proper. A persuasive precedent depends for its influence upon its own merits and not upon any legal came which it his to r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o decide the litigation unfettered by such judicial decision. The result would be that such judicial decision would be law at one stage of the litigation but would cease to be law at another stage. Such judicial decision would be law in one Court and cease to be law in another Court. The same absurdity would result also in the case of a Judicial decision of a Division Bench consisting of two Judges of the High Court or even a Full Bench consisting of three or more Judges of the High Court. If a judicial decision is law, it must be law which governs the rights and liabilities of the parties in all Courts and it should not make any difference as to whether the litigation in respect of such rights and liabilities is pending in the subordinate Court or before a single Judge or a Division Bench or a Full Bench of the High Court or in the Supreme Court. That, however, is obviously not the position This circumstance, in my opinion, strongly militates against the contention that judicial decisions must be regarded as law. 130. There is also another argument which logically follows upon the previous argument and must lead to the conclusion that judicial decisions cannot be regarded as la ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his argument by itself would, in my opinion, be sufficient to dispose of the contention that judicial decisions should be regarded as law. 131. But the matter does not rest there are various anomalies which would arise it judicial decisions were regarded as law. Suppose there are two decisions -- each of a single Judge of the High Court--which have taken conflicting views on a point of law. This may have happened through, inadvertence because the earlier decision was not cited before the Judge who gave the later decision or the inadvertence may be intenitenal-- a Nelsonian blind-eye . The question might well be asked in such a case: which of the two decisions is law? Now if a judicial decision is regarded as law because it has binding authority on other Courts, it is clear that the answer to the question must be that neither decision is law for in view of the conflict it cannot be said of either decision that it has any binding authority on other Courts. It is well-settled law that where decisions of equal standing are irreconcilably in conflict, the Court is not bound by either decision and Sections free to pick and choose between them. Neither decision can, therefore, be re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce of the decision of the Full Bench would be that the rule laid down by the decision of the Division Bench which was law while the earlier decision of the single Judge held the field and which ceased to be law during the period which the two decisions of single Judge stood side by side and, which again became law after the decision of the Division Bench would again cease to be law after the decision of the Full Bench. If on the other hand it is regarded that the rule laid down by the Full Bench was always law and that the Full Bench merely declared what was always law, it would follow that the rule laid down by the Division Bench was not law even when the decision of the Division Bench held the field and was not overruled by the decision of the Full Bench. But that would negative the theory that the decision Of the Division Bench was law so long as that decision stood unreversed by the Full Bench. These and others are the anomalies which would arise if the theory that judicial precedents are law is pushed to its logical conclusion. The real explanation behind the operation of judicial decisions seems to be that judicial decisions are not law but they are merely declaratory of law ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t was the law even at the time when the decision of the Full Bench stood unreversed by the Supreme Court and that consequently the decision of the Full Bench did not represent the correct law. The law was always that which was ultimately declared by the Supreme Court and it was that law which governed the rights and liabilities of the parties. The Full Bench had erroneously declared the law and such erroneous declaration was set right by the Supreme Court fail to see how under these circumstances the decision of the Full Bench can be said to be law. So long as no finality attaches to a judicial decision it is impossible to regard the judicial decision as law. The decision of the High Court can always be overruled by the Supreme Court and once the Supreme Court has overruled the decision Of the High Court, the rule laid down by the Supreme Court is the law as it always existed and the contrary rule laid down by the decision of the High Court cannot at any time be said to have been the law. Even so far as the Supreme Court is concerned, the decisions of the Supreme Court do not make law; the Supreme Court merely declares the law and that is why Article 141 of the Constitution of Indi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve, as a result of the bifurcation, ceased to apply to the portion of the territories carved out of the State of Bombay to farm the State of Gujarat. It is only if these two conditions are satisfied that the law can come within the scope and ambit of Section 87. Such law would obviously be only statute law. It is clear that it cannot be said of judicial decisions that they have any territorial extent or application at all. Judicial decisions are binding on certain Courts under certain circumstances on considerations of judicial comity and judicial decorum and they do not extend or apply to any territories as such. Take the raze of two parties resident in Calcutta. Suppose they enter into a contract in Calcutta a part of which is to be per formed in Madras and a breach of the contract is committed by one of the parties whom I will for the purpose of the present discussion call the defendant. Now it is obvious that the suit to recover damages for breach of the contract can be filed by the other party namely the plaintiff either in Calcutta or in Madras. If the suit is filed in Calcutta, the rights and liabilities of the parties would be adjudicated upon in accordance with the judicia ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dance with the judicial precedents of the High Court of Calcutta but in accordance with the judicial precedents of the High Court of Madras. The judicial precedents of the High Court of Calcutta would not govern the determination of the rights and liabilities of the parties though the parties are resident in Calcutta and the contract is made in Calcutta and is to be substantially performed in Calcutta but the rights and liabilities of the parties would be determined in accordance with the judicial precedents of the High Court of Madras because the forum in which the suit is brought would under the doctrine of judicial precedents be bound by the judicial precedents of the High Court of Madras. This example illustrates very forcibly the proposition with which I started namely, that judicial precedents merely bind certain Courts under certain circumstances on the principle of judicial comity and judicial decorum and they do not extend or apply to any territories as such as to fall within the scope and ambit of the words law in force in Section 87. 134. There is also another reason why I am inclined to take the view that judicial decisions cannot be regarded as coming within the s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nted day should be deemed to be decisions of this High Court for in that event this High Court could have considered the correctness of such judicial decisions in accordance with the well recognized rules governing the application of judicial precedents. The Legislature has, however, not provided such machinery and the inference must, therefore, be irresistible that the Legislature did not intend to include judicial decisions given by the High Court of Bombay prior to the appointed day within the scopes and meaning of the words law in force'' in Section 87. The Legislature could not have Intended that so far as the State, of Gujarat is concerned, the law as declared in the decisions of the High Court of Bombay given prior to the appointed day-- whether the decisions be of a single Judges or of a Division Bench or of a Full Bench--should be petrified and that it should not at all be open to this High Court or to the Supreme Court hearing appeals from this High Court to set right any erroneous declaration of law contained in such decisions. The consequence of accepting the argument that the decisions of the High Court of Bombay given prior to the appointed day are law in fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... istence of such a power in this High Court would be Inconsistent with the judicial decisions given by the High Court of Bombay prior to the appointed day, being law in force. I must, therefore, hold that judicial decisions cannot be regarded as coming within the scopes and ambit of the words law in force'' in Section 87. 135. Before I part with this question I must refer to Section 119 of the States Reorganisation Act, 1956, which is a Section similar to Section 87 of the Bombay Reorganisation Act, 1960. By Part II of the States Reorganisation Act, 1956, various new States were brought into existence. Several territories were transferred from the former Stage of Hyderabad to the State of Andhra and from the former State of Travancore-Cochin to the State of Madras. There was formed the new State of Kerala out of some of the territories of the former State of Travancore-Cochin and the former State of Madras. The islands of Laccadivi, Minicoy and Amindivi were constituted into a new Part C State. The new State of Mysore was germed out of the territories of the former States of Mysore and Coorg and some of the territories of the former States of Bombay, Madras and Hyderabad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r of the territories from one State to another and the constitution, of new States, laws in force immediately before the appointed day should continue to extend and apply to the same territories to which they extended or applied immediately before the appointed day. Now if the words law in force in Section 119 of the States Reorganisation Act, 1956, included decisions of various superior Courts in the territories affected by the reorganisation of States, the result would indeed be disastrous. Take for example the State of Bombay which as a result of the reorganisation of the States lost some of its territories to the State of Mysore and acquired the territories of the then existing States of Saurashtra and Kutch and sane of the territories of the then existing States of Hyderabad and Madhya Pradesh. Over the territories drawn from these different States different High Courts exercised jurisdiction and if judicial decisions were regained as law in force, there would he within the State of Bombay as newly constituted, different interpretations of the same or similar legislative enactments as also different rules of law on the same or similar points. If the High Court of Saurashtra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the correct law. The Legislature surely could not have intended to bring about such an absurd and mischievous result by the provisions of Section 119 of the States Reorganisation Act, 1956. It might also be noted that if judicial decisions were regarded as law in force, judicial decisions given by the High Court of Saurashtra and the highest Court in Kutch would be preserved as law in force in the territories of the former States of Saurashtra and Kutch by virtue of the provisions of Section 119 of the States Reorganisation Act, 1956, and the same would continue in operation in the said territories as law in force under the provisions, Chief Section 87 of the Bombay Reorganisation Act, 1960, unless the same were lawfully set aside or had ceased to operate by reason of Legislative changes effected between 1st November 1956, when the State of Bombay was reorganised and 1st May 1960, When the State of Bombay was bifurcated and the State of Gujarat was constituted. The result would toe that judicial decisions given by the High Court of Saurashtra and the highest Court in Kutch would continue as law in force in the territories of the former States of Saurashtra and Kutch even after the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the Act which says that this High Court should regard itself as bound by the decisions of any other High Court for the purpose of ascertaining the law. It is the law ascertained by this High Court unfettered by any decision of the High Court of Bombay which would continue in force in the territories forming part of the State of Gujarat under Section 87. Take for example a particular Section of the Transfer of Property Act. The correct meaning of this Section would be the law in force in the territories of the State of Bombay immediately before the appointed day and for the purpose of ascertaining the law in force it would be open to this High Court to determine the correct meaning even though it be different from that placed On the Section, by the High Court of Bombay. The High Court of Bombay may have placed an erroneous interpretation on the Section. It is not the erroneous interpretation of the Section which would be in force in the territories of the State of Bombay immediately before the appointed day. The law in force immediately before the appointed day in the territories of the State of Bombay would be the correct meaning of the Section and it would be open to this High ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... We, however, did not examine the validity of the contention in any detail, for we were inclined to accept the construction of Section 87 put forward by the learned Advocate General on behalf of the Union of India which included judicial decisions within the scope and ambit of that section. The contention has been fully debated before us this time and after giving my most anxious and careful consideration to the arguments advanced on all sides, I am of the opinion that the view which I was then inclined to entertain was the correct view and that the High Court of Bombay prior to the appointed day cannot be regarded as a Court of co-ordinate jurisdiction with this High, Court. 139. Considerable argument was advanced before us as to when two Courts can be said to be Courts of co-ordinate jurisdiction. Various attempts were made to formulate a precise definition which would, indicate with certainty and definiteness the circumstances under which two Courts can be said to be Courts of co-ordinate jurisdiction. But in my opinion all those attempts were futile. I find that it is not possible to formulate any precise test for determining when two Courts can be said to be Courts of co-or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... derick Pollock but formulated ft in words which enlarge the area of the concept of co-ordinate jurisdiction. The Full Bench decision of the Andhra Pradesh High Court laid down as the second characteristic that two Courts should exercise similar land not same jurisdiction before they can be regarded as Courts of co-ordinate jurisdiction. The test which was thus formulated by the Full Bench decision of the Andhra Pradesh High Court for ascertaining whether two Courts are Courts of co-ordinate jurisdiction was: Whether the two Courts are of equal rank and status or of equal authority and exercise similar jurisdiction? . I on my part find it difficult to accept this test as a valid test for determining Whether two Courts are Courts of co-ordinate jurisdiction. According to this test it is not necessary that the two Courts should exercise the same jurisdiction but it would be enough if the Jurisdiction exercised by the two Courts is similar. This would considerably widen the scope of the concept of co-ordinate jurisdiction and bring within the concept many Courts which are admittedly not Courts of co-ordinate jurisdiction. Take for example the High Court of Madras and the High Court of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... connotation of the word co-ordinate is not the same as that of the Words concurrent or simultaneous . The concept of co-ordinate jurisdiction and the concept of concurrent or simultaneous jurisdiction are totally different concepts touching the question of jurisdiction at different angles. The concept of concurrent or simultaneous jurisdiction has reference to the point of time at which jurisdiction is exercised while the concept of co-ordinaite Jurisdiction has reference to the sameness of quantity or degree. Simultaneity or co-existence is not a necessary ingredient of co-ordination; co-ordination has no reference to point of time and can take in successive acts of the same status or level. The jurisdiction of two Courts may, therefore, be concurrent or simultaneous without being necessarily co-ordinate and similarly the jurisdiction of two Courts may be co-ordinate without being necessarily concurrent or simultaneous. It would not, therefore, be right to equate co-ordinate jurisdiction with, concurrent or simultaneous jurisdiction. It is not necessary that two Courts should be simultaneously in existence in order that they can be regarded as Courts of co-ordinate jurisdict ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t co-ordinate in jurisdiction with the other Court after the abolition. It is not the exercise of jurisdiction at the same point of time that is determinative of the matter but it is the sameness of the content of jurisdiction, whether exercised at one point of time or at different points of time, that affords the true test for determination of the question whether two Courts are Courts of co-ordinate jurisdiction. But the matter does not rest merely on principle. There are authorities both of the English Courts and of the Courts in India in which the view has been taken that the simultaneous continued existence of two Courts is not a necessary concomitant of co-ordinate jurisdiction and that even a Court which has ceased to exist can be regarded as a Court co-ordinate in jurisdiction with an existing Court. Turning first to the English authorities, I must refer to the decision of the Court of Appeal in (1895) I Ch. 51. That was a decision given by the Court of Appeal on 12th November 1894 in an appeal from, the Chancery Division of the High Court. The Division of the Court of Appeal which gave the decision consisted of three very eminent Lord Justices Lord Herschell, L. C., Lord J ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as binding on the Court of Criminal Appeal, Lord. Reading, C. J., proceeded upon the ground that the Court for the consideration of the Crown Cases Reserved which ceased to exist as a result of Section 20(4) of the Criminal Appeal Act, 1907, was a Court co-ordinate in jurisdiction With the Court of Criminal Appeal. This must, however, emerge very clearly from this decision that the decisions of the Court for the Consideration, of the Crown Cases Reserved are regarded as binding on the Court of Criminal Appeal even though the Court for the Consideration of the Grown Cases Reserved ceased to exist and its place was taken by the Court of Criminal Appeal by virtue of the provisions of Criminal Appeal Act, 1907. Apart from these decisions of the English Courts there are at least two decisions of the High Courts in India which support the view that Courts of co-ordinate jurisdiction need not be Courts of concurrent or simultaneous jurisdiction. This very question are so before the Full Bench of the Andhra Pradesh High Court in (supra) and the Full Bench negatived the contention that co-ordinate jurisdiction connotes the same idea as concurrent Jurisdiction or simultaneous jurisdiction a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iction, exercised by this High Court is the same as that exercised by the High Court of Bombay prior to the appointed day. Both these conditions must be satisfied for it is only then that the next step can be taken in the process of determination of the auction whether the High Court of Bombay prior to the appointed day was a Court co-ordinate in jurisdiction with this High Court. My Lord the Chief Justice has in his judgment referred to various sections of the Bombay Reorganisation Act, 1960, which clearly show that this High Court has been invested with the same jurisdiction, power and authority as was exercised immediately before the appointed day by the High Court of Bombay in respect of the territories now forming part of the State of Gujarat. This High Court has succeeded to all the jurisdiction, power and authority which the High Court of Bombay had until the appointed day ill and in relation to the territories now forming part of the State of Gujarat. This High Court is, therefore, obviously a Court of the same rank and status as the High Court of Bombay immediately before the appointed day. The question, however, is whether this High Court has the same jurisdiction which w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... igh Court in respect of the territories forming part of the State of Gujarat. The contention in other words was that though this High Court did not enjoy the same territorial jurisdiction as the High Court of Bombay prior to the appointed day and could not, therefore, be said to be a Court co-ordinate in Jurisdiction with the High Court of Bombay prior to the appointed day, the converse position was not true, for the High Court of Bombay prior to the appointed day enjoyed the whole of the jurisdiction exercised by this High Court in respect of the territories terming part of the State of Gujarat and could, therefore, be regarded as a Court co-ordinate in jurisdiction with this High Court. This contention is, in my opinion, devoid of merit and I cannot accept the same for several reasons. If the concept of co-ordinate jurisdiction involves the element of sameness of jurisdiction, a is obvious that the territorial jurisdiction of two Courts must be the same before they can be said to be Courts of co-ordinate jurisdiction. The sameness or equality of territorial jurisdiction must be accepted as an essential feature Of co-ordinate jurisdiction. Judged by this criterion, I do not see ho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urt of Bombay prior to the appointed day. But this, it is conceded, is not the position and even the contention pressed for our acceptance does not go so far. It is not disputed before us that this High, Court cannot be regarded as a Court co-ordinate in jurisdiction with the High Court of Bombay prior to the appointed day for this High Court does not possess the whole of the jurisdiction enjoyed by the High Court of Bombay prior to the appointed day and the decisions of this High Court could not, therefore, have been binding on the High Court of Bombay prior to the appointed day if the latter High Court had continued to exist with the same jurisdiction. But if that is so, it must follow as a necessary corollary that the High Court of Bombay prior to the appointed day also could not be regarded as a Court co-ordinate in jurisdiction with this High Court and that the decisions of the High Court of Bombay prior to the appointed day could not bind this High Court of co-ordinate jurisdiction. It may also be noted that the acceptance of the contention urged before us could lead to absurd and startling results. It is clear from the provisions of Part IV which deal with High Courts tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Present contention the High Court of Bombay prior to 1st November 1956 could not be considered to be a Court co-ordinate in jurisdiction with this High Court. The logical outcome of the acceptance of the present contention would be that the High Court of Bombay prior to 1st November 1956 would not be a Court co-ordinate in jurisdiction with this High Court not would the High Court of Bombay from 1st May 1960 be a Court co-ordinate in jurisdiction with this High Court but the High Court of Bombay only during the period 1st November 1956 upto 1st May 1960 would be a Court co-ordinate in jurisdiction with this High Court. If that is so, the result would be that only those decisions of the High Court of Bombay which were given during the period 1st November 1956 to 1st May 1960 would be binding on this High Court and that the decisions given by the High Court of Bombay prior to 1st November 1956 and subsequent to 1st May 1960 would not be binding on this High Court. Then again consider the position which would arise if some territories were added to the State of Gujarat subsequent to 1st May 1960, which territories were not comprised within the State of Bombay. It was conceded that if ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eptionable but I very much doubt its applicability in the present case where the two Courts which, it is contended, are Courts of co-ordinate jurisdiction are not simultaneously existent in two different States but one of the Courts is the inheritor of a part of the jurisdiction of the other Court which, when it functioned, exercised the whole of the jurisdiction possessed by the first Court. I need not tarry any longer on this proposition for I have already come to the conclusion, on other grounds discussed in the preceding paragraphs of this judgment, that the High Court of Bombay prior to the appointed day could not be regarded as a Court of co-ordinate jurisdiction with this High Court. 144. In the course of the arguments before us, various decisions were cited where the question as to when Courts could be said to be Courts of co-ordinate jurisdiction came up for consideration as a result Chief the reorganisation of various States and the constitution Chief new States. My Lord the Chief Justice has in the majority: judgment made a careful examination of all the decisions and expressions of opinion On this point and I am in respectful agreement with it. I do not, therefore, c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urt should not be regarded as binding on the first Court. After all the rules governing the application of the doctrine of judicial precedents have been evolved with a view, to securing uniformily, certainty and continuity in the administration of justice and if it is found necessary in order to achieve the same object that the doctrine of judicial precedents should also be applied to a Court which is a successor to another Court of the same rank and status and which is invested with all the jurisdiction, power and authority of the Other Court in respect of all the territories over which it exercises jurisdiction, the Court should not shrink from so applying the doctrine of judicial precedents. There are various decisions of different High Courts in India which support the view that the successor Court must regard itself bound by the decisions of the predecessor Court when the successor Court can trace its entire jurisdiction to the predecessor Court and there is also a decision of the Supreme Court which impliedly accepts this as the correct view. But even if there were no decisions I do not see why on principle the decisions of the predecessor Court should not be regarded as bind ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ew also appears to have been taken by the Full Bench decision of the Mysore High Court in AIR 1959 Mys 1 (supra), where the question was whether the Mysore High Court was bound by the decisions of the former Chief Court of Mysore and the decisions of the High Court of the former State of Mysore as it existed prior to 1st November 1956. S. R. Das Cupta, C. J., considered the question from two different angles. The learned Chief Justice considered in the first instance whether the High Court of Mysore could be regarded as a successor of the High Court of the former State of Mysore as it existed prior to 1st November 1956 and came to the conclusion that it could not be so regarded. The conclusion may best be set out in the words of the learned Chief Justice himself: It is difficult to see how under these circumstances this High Court can be said to be a representative or successor-in-interest of the High Court of the former State of Mysore. If it can be held to be a representative or successor-in-interest of the High Court of the former State of Mysore, then it can be equally called a representative-in-interest of the High Courts of the former State of Bombay and/or of Madras and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... they were decisions of the successor Court. The Supreme Court in an appeal from the High Court of East Punjab in [1960]3SCR975 (supra), treated the High Court of East Punjab as the same Court as the Lahore High Court so far as the territories forming part of the State of East Punjab were concerned. Though there was a Full Bench decision of the Lahore High Court on the particular point, a Division Bench of the High Court of East Punjab in a subsequent decision refused to follow the Full Bench decision of the Lahore High Court. The Supreme Court strongly disapproved this course adopted by the Division Bench of the East Punjab High Court in terms which clearly indicate that the Supreme Court regarded the High Court of East Punjab as the same Court as the Lahore High Court, presumably by reason of the continuity established by the succession of the High Court of East Punjab to the jurisdiction, power and authority of the Lahore High Court in respect of the territories forming part of the State of East Punjab. The Supreme Court observed: ''One would have thought that after this pronouncement by a Full Bench of the High Court the controversy would have been set at rest for a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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