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Prafulla Kumar Dutta Vs. Ganesh Chandra Bose and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtKolkata High Court
Decided On
Case NumberFull Bench Reference No. 2 of 1967 in A.F.O.D. No. 806 of 1964
Judge
Reported inAIR1973Cal106,79CWN203
ActsCalcutta High Court Rules - Rule 1; ;Calcutta High Court Orders; ;West Bengal Premises Tenancy Act, 1956 - Section 13(6)
AppellantPrafulla Kumar Dutta;ganesh Chandra Bose and anr.
RespondentGanesh Chandra Bose and anr.;prafulla Kumar Dutta
Appellant AdvocateLala Hemanta Kumar and ;Manik Ch. Banerji, Advs.
Respondent AdvocateD.N. Trivedi, Adv.
Cases ReferredAlok Kumar Roy v. Dr. S. N. Sarma
Excerpt:
- sabyasachi mukharji, j.1. in this case the plaintiffs filed ejectment suit no. 1691 of 1963 in the city civil court. calcutta for recovery of posses-sion of premises no. 43. serpentine lane, calcutta. the plaintiffs purchased the premises by a conveyance dated 11th september. 1962. the defendant attorned the tenancy and paid rent to the plaintiffs upto the month of october, 1962. according to the plaintiffs they reasonably required the entire premises for their own occupation. the plaintiffs further contended that the deposits of the rent from the months of december. 1962 to june, 1963 were invalid and the defendant was not entitled to protection against eviction. the plaintiffs further alleged that they had determined the tenancy by serving upon the defendant by registered post a.....
Judgment:

Sabyasachi Mukharji, J.

1. In this case the plaintiffs filed ejectment suit No. 1691 of 1963 in the City Civil Court. Calcutta for recovery of posses-sion of premises No. 43. Serpentine Lane, Calcutta. The plaintiffs purchased the premises by a conveyance dated 11th September. 1962. The defendant attorned the tenancy and paid rent to the plaintiffs upto the month of October, 1962. According to the plaintiffs they reasonably required the entire premises for their own occupation. The plaintiffs further contended that the deposits of the rent from the months of December. 1962 to June, 1963 were invalid and the defendant was not entitled to protection against eviction. The plaintiffs further alleged that they had determined the tenancy by serving upon the defendant by registered post a combined notice of ejectment and notice of suit dated 22nd August, 1963 requiring the defendant to quit, vacate and deliver vacant possession of the premises on the expiry of the last day of September, 1963. The defendant filed his written statement, The defendant contended that the plaintiffs should be required to prove strictly that both of them reasonably required the premises in question for their own use and occupation. The defendant further contended that the notice was illei gal and insufficient and did not determine the tenancy. Issues were framed at the trial. One of the issues was 'Has the notice of ejectment been duly serv-ed Is the same valid and sufficient?' Evidence was given. The learned trial Judge recorded that the learned lawyer for the plaintiff did not press the case of reasonable requirement and as such the suit was contested on the solitary question of default. The next question that was considered was the validity and sufficiency of the notice under Section 13 (6) of the West Bengal Premises Tenancy Act. 1956. It appears that there was a notice dated 20th October. 1962 by which the defendant was asked to quit, vacate and deliver up vacant possession of the premises on the expiry of the last day of November. 1962 on the ground that the premises in question was reasonably required by the plaintiffs. There was a second notice dated 22nd August, 1963 which recited that the portion at the back of the premises No. 43, Serpentine Lane was reasonably required by the plaintiffs for their use and occupation and the defendant was a defaulter in payment of the rent and called upon him to quit, vacate and deliver vacant possession on the expiry of the last day of September. 1963. The notice concluded by stating that in case of failure to com-ply with the notice a suit for recovery of possession would be brought against the defendant. The learned trial Judge held that the defendant in the written statement did not challenge the service of the notice and the trial Court further held that the notice had been duly served and it was valid and sufficient in law. The trial court was of the opinion that whatever might be said about the first notice, the second notice did not suffer from any kind of infirmity. Accordingly, the trial Court decreed the suit and gave the plaintiffs possession after evict-Ing the defendant. In view of the difficulties of fixing up an alternative accommodation the trial court allowed the defendant six months' time from the date of the decree on condition of his paving to the plaintiffs, month by month an amount equivalent to the rent and in default of such payment, the decree which was to remain suspended for six months would become executable forthwith. The defendant preferred an appeal from the decree passed by the City Civil Court. Some of the grounds taken, inter alia, were that the trial court was wrong in holding that the notice marked as exhibit 2 was legal, valid and sufficient to determine the defendant's tenancy, that the court below took an erroneous view of legal presumption as to service of notice, the Court below was wrong in presuming the service of notice and that the court below erred in law in holding that the service of notice was effective because the acknowledgment. Exhibit 3, bore the signature of the defendant. Exhibit 2 was the notice dated 22ndAugust, 1963. By the said notice the defendant was called upon to vacate and deliver vacant possession of the portion at the back of the premises No, 43, Serpentine Lane on the expiry of last day of September, 1963 as that portion was reasonably required by the plaintiffs for their own occupation and as the defendant was a defaulter in payment of rent for the month of November. 1962. Exhibit D was the notice dated 20th October, 1962. By the said notice the defendant was called upon to quit, vacate and deliver the possession of the portion at the back of the premises No. 43, Serpentine Lane. Calcutta, on the expiry of the last day of November, 1962. as the portion was reasonably required by the plaintiffs for their own occupation.

2. The appeal came up for hearing before a Division Bench of this Court consisting of P. N. Mookerjee. J. and A. K. Dutt, J. The aforesaid Division Bench held that in disposing of the said appeal two fundamental questions arose, namely :--

(1) whether one Division Bench of this Court has authority to hold that another Division Bench did not correctly state the law or the effect of the prior Special Bench decision;

(2) whether the learned Judges in 71 Cal WN 686 = (AIR 1968 Cal 1861 had authority to override, as they pur-Ported to do. the Bench decision in ILR (1966) 2 Cal 1.

The Division Bench held that so far as they were concerned they had no doubt in their mind yet they adopted the above course, in the words of the learned Judges of the Division Bench, 'out of respect for law and for retrieving it from the quagmire, into which it has been thrown by the precipitate observations in : AIR1968Cal186 '. The aforesaid reference was made under Rule 2 of Chapter VII of the Appellate Side Rules, of this Court. The reference came up for hearing originally before a Full Bench consisting of Ray, J., Sankar Prasad Mitra, J., and Bagchi, J. It has been observed in the judgment of the said Full Bench dated 9th of February that counsel on behalf of the respondent before the Full Bench had contended that the notice in the present case gave grounds of reasonable requirement of the premises, and also gave notice of the institution of a suit failing delivery of the possession and therefore the present case did not raise any controversy as to whether the notice required grounds to be stated or not. Counsel for the ap-pellant on the other hand had contended, as recorded by the said Full Bench, that though the notice stated the grounds, yet he would raise the contention that the notice was invalid in law. In view of the aforesaid facts it was contended be-lore the Full Bench that inasmuch as the notice in this case contained the grounds, the court would not be required to go into the question whether the grounds were required to be stated in the notice or not and the question would be of academic interest in the present case. In the aforesaid view of the matter the Full Bench felt it necessary to find out how the point arose in this appeal as to the correctness of the aforesaid decisions in the cases of Punam Chand Daga v. Subhakaren Dosani. : AIR1968Cal186 and M K. Bhimani v. Kesha'b Chandra Basil, TLR (19661 2 Cal 1. The Full Bench therefore sent the matter back to the Division Bench for finding as to how the question of correctness of the aforesaid two Bench decisions arose in the facts and circumstances of the present case. Thereafter the matter was placed before the Division Bench consisting of P. N. Mookerjee, J. and A. K. Dutt. J. By an order dated 13th of May, 1968 the .said Division Bench made it clear that reference was being made under Rule 3 of the Chapter VII of the Appellate Side Rules, and not under Rule 2 as wrongly typed in the original order of reference. The Division Bench further made it clear that this reference had been made on a clear finding that the point referred did arise in the instant case and they reiterated that finding and further recorded that the learned advocates appearing for theparties before them, namely, Mr. Chakra-borty and Mr. Lala. did agree, after full discussion in Court, that the said points did arise in this appeal. In those circumstances, the Division Bench did not feel called upon to give their reasons for the said finding nor did they feel obliged under the law to state those reasons for the purposes of this reference or for sending the matter back to the Full Bench.

3. The reference has, thereafter, come before us for disposal. At the hearing of the reference counsel for the respondent stated before us that the matter had been amicably settled between the parties and as such he was not in a position to make any submissions as to the questions referred. He further submitted that the appeal had become infructuous.

4. It appears to us that in the facts and circumstances of this case the questions referred to us for determination of the Full Bench are of academic interest for reasons more than one. Firstly, in view of the facts narrated before and in view of the fact that there is a clear finding that the said notice had been served upon the tenant, the question, whether a notice under Section 13 (6) of the West Bengal Premises TenancyAct, 1956 required the grounds for ejectment for which suit was to be instituted for the recovery of possession to be stated or not. is not a relevant and material question at all. We have not been able to appreciate in view of the facts and circumstances narrated before, how the question arises and how the conflict of decisions referred to in the order of rei ference to this Full Bench is at all relevant for the determination of the questions involved in the appeal out of which the present order of reference has been made. Be that, as it may. we will accept the finding for the purpose of answering the reference recorded by the Division Bench in its order dated 13th of May, 1968 that the points do arise in the instant case. The Division Bench as mentioned hereinbefore did not give any reason for that finding because it was recorded by the Division Bench that the learned advocates appearing before them had agreed that such points did arise and furthermore as the Division Bench felt they were not called upon to give any reasons for the said findings. The controversy however has become of academic interest, secondly, in view of the fact that the learned advocate for the respondent has stated before us that the parties have settled the matter amicably between themselves. Thirdly, we are of the opinion that this question has become of academic interest in view of the Special Bench Decision of this Court in the case of Abdul Gani v. Md. Israil, : AIR1968Cal554 . Counsel for the appellant however contended before us that for the purpose of settling; the procedure of this Court, we should answer the questions referred to this Full Bench.

5. The decision in : AIR1968Cal186 and the decision in the case of M. K. Bhimani v. Keshab Chandra Basu, ILR (1966) 2 Cal 1 as well as Special Bench decision in the case of Suraya Properties (P.) Ltd v. Bimalendu Nath Sarkar reported in : AIR1964Cal1 deal with the question as to whether it is necessary to mention in the notice under Section 13 (6) of the West Bengal Premises Tenancy Act. 1956, the ground or grounds of elect-ment for which a suit is to be instituted for recovery of possession. The case of Surava Properties (P.) Ltd. v. Bimalendu Nath Sarkar, : AIR1964Cal1 was a reference disposed of by Special Bench consisting of 5 learned Judges of this Court namely, Bose. C. J., Bachawat, J., Sinha J.. P. N. Mookerlee J., and G. K. Mitter. J. Two questions were referred to the said Special Bench. It is not necessary to refer to the first question that was referred to the said Special Bench. Question No. 2 referred was in the following terms :--

'What notice is contemplated under Section 13 (6) of the West Bengal Premises Tenancy Act, 1956 Is it a notice to quit or a notice of a suit or a combined notice to answer both the above purposes? Is it a notice required in addition to a notice under Section 106 of the Transfer of Property Act or a notice in lieu of it? What, if any, are its necessary elements or contents Is it necessary to mention in it the ground or grounds of eiectment under the aforesaid Act. on which the suit is to be brought Or, in other words, need it be a notice of such grounds ?

Bose, C. J., observed at page 983 of the report as follows :--

'I now propose to consider the other material part of the second question, namely what, if any, are the necessary elements or contents of a notice under Section 13 (6) and is it necessary to mention in it the ground or grounds of ejectment under the Act?'

His Lordship thereupon proceeded to discuss the different provisions of the statute and then set out the question and in answer to question No. 2 at p. 985 of the report his Lordship answered the second question as follows :--

'A notice as contemplated under Section 13 (6) is essentially a notice of suit. Where it is necessary to serve a notice to quit under Section 106 of the Transfer of Property Act, it is still necessary to serve it. A notice under Section 13 (6) may be combined with the notice under Section 106 but the period of such combined notice shall not be less than a month expiring with a month of the tenancy. There is no prescribed form of such a notice. It is not necessary to mention in the notice under Section 13 (61 the ground or grounds of eiectment for which a suit is to be instituted for recovery of possession. There is, however, nothing to prevent the landlord from setting out such ground in the notice. The notice, however will not be a notice of such grounds.'

Bachawat, J., answered the question at page 937 of the 'report in the following terms :--

'The notice under Section 13 (6) is a notice of suit or proceeding. The notice sufficiently complies with the rec, uire-ment of Section 13 (6), if by express words or necessary intendment, it conveys to the tenant conversant with the facts and circumstances of the case, the information that the landlord intends to file a suit or proceeding for recovery of the possession of the premises on any of the grounds mentioned in Section 13 (1) except Section 13 (1) (.11 and (k) on the expiry of the period of the notice. A notice which gives this information is sufficient and it is not necessary that thenotice should mention the particular ground or grounds on which the suit or proceeding will be instituted. The notice under Section 13 (6) is not the notice to quit, it is not a notice in lieu or in place of the notice under Section 106 of the Transfer of Property Act and where the latter notice is necessary for the determination of a lease, such notice must still! be given; but the two notices may be effectively given by a single document.' Sinha. J.. answered the second question at page 1001 in the following manner :--'In cases where Section 106 does not apply, for example in the case of statutory tenants or tenants under a statute, no question arises of serving a notice to quit. In other words, no determination of tenancy is necessary to obtain a right to possession. In certain circumstances however, it is possible to recover possession even from a statutory tenant. Previously no notice was necessary in such case, in order to file a suit to recover possession. Such a notice is now necessary under Section 13 (6). In such a case it is nothing but a notice of suit and the period of notice must be not less than a month expiring with the month of the notice. For such a notice however, no particular form has been prescribed and we cannot lay down any particular form. The form must be one that carries out the intent and purpose of the statute. I agree with the answer to Question No. 2 as given by my Lord the Chief Justice.'

P. N. Mookerjee. J., observed at page 1010 of the report as follows :

'(1) the notice under Section 13 (6) of the West Bengal Premises Tenancy Act, 1956. is a notice of suit and not a notice to quit or a combined notice, answering both the above descriptions or purposes;

(2) that it is a notice required in addition to and not in lieu of notice under Section 106 of the Transfer of Property Act. where this latter notice is otherwise necessary. The two notices, however, may be combined in one and the same document and may expire or may be made to expire simultaneously; and

(3) that it must express the intention to file the suit, mentioned in the section, and necessarily therefore, must mention the said ground or grounds too, on which the suit is proposed to be brought. In other words, expression of the above intention and mention of the above ground or grounds would be necessary and sufficient also to validate the said notice and would constitute its essential requisites or contents; and answer the corresponding point under the references accordingly;' G. K. Mitter. J., after elaborate discussion observed at page 1027 of the report. 'So far as second question is concerned.

I concur in the answer thereto given by my Lord the Chief Justice.'

6. Therefore there were clear, unequivocal observations end finding by Bose. C. J., Sinha. J. and G. K. Hitter. J., that it is not necessary to mention in a notice under Section 13 (6) the ground or grounds for eiectment for which suit was to be instituted for recovery of the possession. It also appears to us that Bachewat, J. agreed with the said decision of the three aforesaid learned Judges, but his Lordship's answer to this question was perhaps capable of an alternative argument that his Lordship had held that such grounds need not be stated in cases where from other facts it would be clear to the tenant what the grounds were for which suit or proceedings was to be instituted. P. N. Mookerjee. J. on the other hand, held a contrary view, namely, such grounds had to be stated in a notice under Section 13 (6) of the West Bengal Premises Tenancy Act. 1956. It is manifest to us that the majority of the learned Judges of the Special Bench (Bose, C. J., Sinha. J. and G. K. Mitter, J.) has clearly held that such grounds were not necessary in a notice under Section 13 (6) of the West Bengal Premises Tenancy Act. 1956. The answer was unequivocal and clear; That finding of the majority of the learned Judges of the Special Bench would, therefore, be binding on the Division Benches of this Court until reversed by another Full Bench of this Court or by the Supreme Court of India.

7. One of the cases, it appears. that were referred to the Special Bench. came up for consideration before a Division Bench consisting of P. N. Mooker-jee, J., and Laik, J. and that decision of the Division Bench is in ILR (1966) 2 Cal 1 (supra). The said Division Bench, it appears, observed that in order to appreciate principles laid down by Special Bench or Full Bench, a Court was entitled to look into the reasoning to find out the real answer intended to be given, and particularly, if the answers did not follow straight from the body of the judgment. The Court further felt, the Court had to reconcile the ambiguity if possible. The Court by a process of interpretation held that the Special Bench in : AIR1964Cal1 had held that the ground or grounds of eiectment need not be given in a notice under Section 13 (6) of the West Bengal Premises Tenancy Act, 1956. only when from correspondence and surrounding circumstances the tenant was aware of such grounds. The Division Bench has certainly the authority to interpret the judgment of a Special Bench, if the judgment of the Special Bench on any particular question, is not clear and unambiguous. If, however, the Special Bench has clearly answered a q uestionin a particular manner and there is no ambiguity in the language used by the maiority of the Judges of the Special Bench it is not open to any Division Bench to find out the real purpose or the intention of the learned Judges of the Special Bench. The intention of the learned Judges of the Special Bench must be found from the language used and if the language used is clear and unequivocal the only dutv of the Division Bench is to follow it, unless there is a contrary decision by the Supreme Court. In this case we have quoted above the clear and unambiguous language in which three of the learned Judges of the Special Bench consisting of five learned Judges answered the question namely, Bose C. J., Sinha. J., G. K. Mitter, J. and they have unequivocally stated that the grounds of ejectment need not be stated in a notice under Section 13 (6) of the West Bengal Premises Tenancy Act, 1956, It was therefore not open for the Division Bench in the case of ILR (1966) 2 Cal 1 to construe that clear unequivocal expression in any manner contrary to what has been expressed on the plea of finding out the real intention of the learned Judges of the Special Bench or the prin-ciples behind the reasonings of the learned Judges of the Special Bench. It, therefore, appears to us that the decision of the Division Bench in ILR (1966) 2 Cal 1 (supra) on the question of the contents of the notice under Section 13 (6) of the West Bengal Premises Tenancy Act. 1956 was contrary to the decision of the Special Bench in the case of : AIR1964Cal1 (SB). Therefore this decision of ILR (1966) 2 Cal 1 (supra) cannot be described as an interpretation of the decision of the Special Bench in : AIR1964Cal1 (supra) on the question whether notice under Section 13 (6) of the West Bengal Premises Tenancy Act, 1956 required grounds to be stated or not. The said question again came up for consideration in : AIR1968Cal186 before a Division Bench consisting of Sinha, C. J. and Arun Kumar Mukherjea. J. The learned Judges of the said Division Bench held as indeed they are bound to, following the Special Bench decision in : AIR1964Cal1 (supra) that the grounds of ejectment need not be stated in a notice under Section 13(6) of the West Bengal Premises Tenancy Act. 1956. Their Lordships considered the aforesaid decision in ILR (1966) 2 Cal 1 and in view of the clear unequivocal pronouncement on this question by the Special Bench, their Lordships, in our opinion rightly held that the decision of the Division Bench in the case of ILR (1966) 2 Cal 1 (supra) was not correct on the question of the contents of the notice under Section 13 (6)of the West Bengal Premises Tenancy Act, 1956.

8. The question again came up for consideration before the Full Bench in : AIR1968Cal554 Sinha. C. J., after setting out the question No. 2 which was referred to the Special Bench in : AIR1964Cal1 (SB) (supra) observed at page 64 of the report, that the Special Bench had answered the second question as follows :--

'A notice as contemplated under Section 13 (6) Is essentially a notice of suit. Where it was necessary to serve a notice to quit under Section 106 of the Transfer of Property Act. it is still necessary to serve it A notice under Section 13 (6) may be combined with a notice under Section 106 but the period of such combined notice shall not be less than a month expiring with the month of the tenancy. There is no prescribed form of such a notice. It is not necessary to mention in a notice under Section 13 (6) the ground or grounds of ejectment for which a suit is to be instituted for recovery of possession. There is, however, nothing to prevent the landlord from setting out such ground in the notice. The notice however, will not be a notice of such grounds'.

Sinha. C. J. further went on to observe that the answer was binding on the said Bench in : AIR1968Cal554 and indeed on all Division Benches of this Court until and unless set aside by the Supreme Court. At page 68 of the report Sinha. C. J. summarised the decision in : AIR1964Cal1 as follows :--

'(1) A notice as contemplated under Section 13 (6) is essentially a notice of suit.

(2) It is a notice distinct from the notice to quit under Section 106 of the Transfer of Property Act.

(3) Both the notices must he served before the landlord can be permitted to evict the tenant, but the two may be combined and the period of such a combined notice shall not be less than a month expiring with the month of the tenancy.

(4) There is no prescribed form of such a notice.

(5) It is not necessary to mention in a notice under Section 13 (6), the ground or grounds of eiectment but the landlord may set out such grounds although the notice will not be treated as a notice of such grounds. In other words, in the course of the proceedings he may rely on other grounds which are open to him'.

In view of the aforesaid decision It is clear therefore that the questions referred to this Full Bench would be of academic interest in disposing of thepending appeal out of which this reference has been made. It is also clear from the aforesaid decision that the deci sion in ILR (1966) 2 Cal 1, on the question of the contents of the notice under Section 13 (6) of the West Bengal Premises Tenancy Act. 1956 was wrong and contrary to the decision of the Special Bench of this Court in : AIR1964Cal1 .

9. We now propose to answer the questions referred to us. The first question referred to us is in the following terms :--

'(1) Whether one Division Bench of this Court has authority to hold that another Division Bench did not correctly state the law or the effect of a prior Special Bench decision;'

Rule 1. Chapter VII of the Appellate Side Rules of this Court provides that whenever one Division Bench shall differ from another Division Bench or a Special Bench upon a point of law, the case shall be referred to for a decision of the Full Bench. Therefore, we answer the first question referred to Us by saying that one Division Bench has not the authority to hold that another Division Bench did not correctly state the law, or the effect of a prior Special Bench decision. But this statement has to be qualified by stating if a Division Bench has held contrary to the clear unambiguous finding of the Special Bench and has on the plea of interpretation of the Special Bench decision held contrary to what has been held by the Special Bench, a subsequent Division Bench, is entitled to ignore the decision of the Division Bench and rely on the clear and unequivocal pronouncement of law in any Special Bench decision. We answer the first question referred to us accordingly.

10. The second question referred to us is in the following terms :--

'Whether the learned Judges in : AIR1968Cal186 (supra), had authoritv to override as they purported to do. the Bench decision in ILR (1966) 2 Cal 1 fsupra).'

As mentioned hereinbefore we are of the opinion that the decision in ILR (1966) 2 Cal 1. was contrary to the clear pronouncement of the decision of the majority of the Judges of the Special Bench in : AIR1964Cal1 on the question of the notice under Section 13 (6) of the West Bengal Premises Tenancy Act, 1956 and as such the learned Judges in : AIR1968Cal186 , had authority and indeed was bound to follow the decision of the Special Bench on this point in : AIR1964Cal1 and for that purpose to hold contrary to the decision of the Division Bench in ILR (1966) 2 Cal 1. in as much it was contrary to the clearpronouncement of the majority of the Judges of the Special Bench of this Court. We answer the second question accordingly.

11. Certain decisions were referred to us and they were also mentioned in the order of reference to the Full Bench. In the case of Mahadeolal Kanodia v. Administrator General of West Bengal, : [1960]3SCR578 the Supreme Court observed that a Division Bench should not take upon itself to say that an earlier division bench ruling of the same High Court cited before it was wrong, but should follow the usual procedure in case of difference of opinion with an earlier decision, of referring the question to a larger bench. The Supreme Court observed that judicial decorum, no less than legal propriety formed the basis of judicial procedure. 'Similarly, a Single Judge differing from a decision of another Single Judge in a previous case on a question of law should refer the case to a larger Bench instead of deciding the case in accordance with his own view. The Supreme Court noted that it was the uniform practice in all the High Courts in India that if one Division Bench differed from an earlier view on a question of law of another Division Bench, a reference was made to a larger Bench. The Supreme Court noted that in Calcutta High Court a rule to this effect had been in existence since 1867. It has to be noted however that in the aforesaid case the Supreme Court made the said observation when one Division Bench of this Court had observed that the earlier Division Bench view was wrong. But in that case there was no clear pronouncement of any Special Bench or a Full Bench of this Court on the point. Therefore, one Division Bench was not competent to say that the earlier Division Bench was wrong on a question of law. Here, however, as mentioned hereinbefore, the Division Bench in ILR (1966) 2 Cal 1 (supra) held contrary to the clear and Unequivocal negative answer given by Special Bench by a process of interpretation and made a negative answer into a positive one which, in our opinion, the Division Bench in ILR (1966) 2 Cal 1, had no authority or jurisdiction to do. Therefore, the only course open to the Division Bench in : AIR1968Cal186 was to follow the Special Bench Decision and to ignore the decision of the Division Bench in ILR (1966) 2 Cal 1 (supra). In the case of Jaisri Sahu v. Raidewan Dubey, : [1962]2SCR558 , the Supreme Court observed that when a Bench of the High Court gave a decision on a question of law, it should, in general, be followed by other Benches unless they had reason to differ from it, In which case the proper course to adopt Would be to refer the question for thedecision of a Full Bench. Reliance wasalso placed on the observations of the Supreme Court in the case of Alok Kumar Roy v. Dr. S. N. Sarma, : [1968]1SCR813 , where the Supreme Court observed that it was necessary to emphasise that judicial decorum had to be maintained at all times and even where criticism was justified it must be in language of utmost restraint, keeping in view that the person making the comment was also fallible. Even when there was justification for criticism the language should be dignified and restrained,

12. We have answered the questions referred to us in the manner indicated before. We hope this will bring to an end a rather unpleasant controversy. The answers may be placed by the Learned Chief Justice before the appropriate Division Bench for final disposal of the case. The costs of the Full Bench will abide by the result of the appeal.

Arun k. Mukherjea, J.

13. I agree.

M.M. Dutt, J.

14. I agree.


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