Kinds Of PrecedentAuthoritative Precedent Authoritative Precedent is one which judges must follow whether they approve it or not .Authoritative Precedent are the legal sources of law . An authoritative precedent comes from the superior court or senior court followed by its subordinate court. A lower court /Inferior court are bound to follow the rulings of the higher court if the Judge in the present case disagrees with the legal principle. The supreme court is authoritative for all courts in India&High Court to all subordinate courts .A court is bound to follow precedent of that Jurisdiction only if it is directly in point .”Directly in Point “ Means

a) Question resolved in precedent case same as resolved in pending caseb) Resolution of that question necessary to the disposition o the precedent case .c) Significant facts of precedent case present in pending case.d) No additional facts in pending case to be treated as significant

Authoritative Precedent in England are the decisions of superior courts of justice.Authoritative Precedent are of 2 kinds

I. Absolutely Authoritative PrecedentIn this case they have to be followed by the judges even if they do not approve of them. They are entitled to implicit obedience.

II. Conditional Authoritative PrecedentIn this case the courts can disregard them under certain circumstances .Ordinarily they are binding but under special circumstances they can be disregarded.The court is entitled to do so if the decision is a wrong one The decision must be contrary to law and reason.

A conditional Precedent can be disregarded either by dissenting or by overruling Overrulling :In this case the precedent overruled is authoritatively pronounced to be wrong so that it cannot be followed by the court in the futureDissenting ;A court declines to follow the precedent and lays down law in a different senseThe conflict thus created can be resolved only by a superior tribunal when a occasion arises.Till that is done the law remains in a state of uncertainity . ۩ In India , the decision of single Judge of a High Court is only conditionally authoritative and may be dissented from by another single Judge or it may be overruled by a Division Bench .If one Division Bench dissents from another Division Bench ;Procedure to be followed.-[Seshamma Vs. Venkata Narasimha Rao (1940 ) 1 MLJ 400 (FB)] “While a Judge of a High Court sitting alone is not bound on a question of law by the decision of another Judge sitting alone, this principle goes further .The Divison Bench is the final court of appeal in an Indian High Court unless the case is reffered to a full bench , and one division bench should regard itself bound by the decision of another division bench on a question of law .In England where there is the Court of Appeal , the divisional courts follow the decisions of other divisional courts on the grounds of judicial comity .If a division bench does not accept as correct the decision on a question of law of another division bench , the only right and proper course to adopt is to refer the matter to a full bench for which the rules of this court provide .If this course is not adopted the courts subordinate to the courts are left without guidance.”Question –Whether the decision of a full bench of the High Court can be overruled by another Full Bench consisting of larger number of judges –[Ningappa Vs Emperor (941)Bom 408] Chief Justice Beamount expressed the view that the decision of a full bench , unitil it is overruled by the privy council , is absolutely authoritative.” There is no doubt that a full bench can overrule a division bench and that full bench must consist of 3 or more judges ; but it would seem anamolous to hold that a later full bench can overrule an earlier full bench merely because the later bench consistes of more judges than earlier .If that were the rule , it would mean that a bench of seven

judges , by a majority of four to three could overrule a unanimous decision of abench of six judges though all judges were of coordinate jurisdiction.”[Raja of Mandasa Vs. Jagammaykula , IR 1932 Mad 612 ]-Madras High Court –View –A full bench may be overruled by a numerically stronger full bench.-Wallace , J “The rules on the appellate side permit a division bench to refer any matter to a full bench and there are precedents for a division bench referring the decision of a full bench for consideration to a larger bench .”The proper procedure to be adopted is “to refer the matter to the chief Justice and it is then for him to consider whether the question should be reconsidered by a larger bench .” Cessante ratione legis cessat lex ipsa –means when reason for any particular law ceases so does the law itself.Thus according to Black stone –A precedent must be followed if they aren’t absurd /unjust.

۩ A court of superior Jurisdiction can overrule the decision of a subordinate court .A court of subordinate jurisdiction can simply dissent from another court.ie a coordinate court can refuse to follow the precedent of another court and also lay down a different rule on the same point .The conflicts B/W the 2 coordinate courts can be resolved by a superior court ۩ In India , the decision of Single judge of a High Court is only a conditionally authoritative precedent .Another judge of the same High Court can differ from him .A division bench of the same High Court can overrule the same .A decision of the full bench of same court is binding on a bench consisting of two or more judges.

[K.C.Nambiar Vs. State of Madras AIR 1953 Mad 351]-CHIEF Justice Subba Rao “A single Judge is bound by the decision of a division bench exercising appellate jurisdiction .If there is a conflict of bench decisions , he should refer the case to a bench of two judges who may refer it to a full bench .A single judge cannt differ from a division bench unless a full bench or supreme court has overruled that decision specifically or laid down a different law on the same point .But he can’t ignore a bench decision on the ground that some observations of supreme court made ina different context might indicate a different line of reasoning .A division bench must ordinarily respect another division bench of coordinate jurisdiction ; but if it differs , the case should be reffered to a full bench.”

۩ In England The decisions of H.O.L. are absolutely binding on all courts &H.O.L itself bound by its own decisions The court of Appeal is bound by its own decisions or by those of coordinate jurisdiction .There are 3 exception to this rule .

1. If there are two conflicting decisions of a court , it must decide which of the two it should follow .

2. If the decision of a court is in conflict with the H.O.L , it must refuse to follow it even if it is not expressly overruled by the decision of H.O.L.

3. The court is not bound to follow a decision of its own if it is satisfied that the decision was given per incuriam .

persuasive precedent –It is merely historical persuasive precedent is one which the Judges are under no obligation to follow but which they will take into consideration and to which they will attach great weight as it seems to deserve.It depends for its influence upon its own merits not upon any legal claim which it has recognition Source of persuasive precedent

a) When a court lower in hierarchy agreed with and followed the same reasonings of Appeal in decision:Man guilty of raping his wife [RVR 1991].

b) Decisions of courts in other countries which have the common law systems (eg :Australia , Canada , NZ)in dealing similar issues esply America.A persuasive precedent becomes binding through adoption of per.precedent by a higher court.

c) Decision of superior court in other portion of Common Wealth Nations eg :Irish courtsd) Judgement of Privy Council – When sitting as final court of appeal from other members and

parts of the common wealth.e) Judicial Dicta –Statement of law which go beyond occasion &lay down a rule that is irrelevant to

the purpose in hand /stated by way of analogy / regarded by a later court as being unduly wide.

In Attorney General Vs. Dean and canons of Windsor –Lord Campell “ Observations made by the members of the House …beyond ratio decidendi which is propounded and acted upon in giving judgement , although they may be entitled to repect , are only to be followed in so far as they may be considered agreeable to sound reason and to prior authorities .”

Authoritative Precedent

1.Authoritative Precedent is one which judges must follow whether they approve it or not.

2.They are the legal sources of law .

3.They establish law in pursuance of definite rule of law which confers upon them that effect.

persuasive precedent

1.persuasive precedent is one which the Judges are under no obligation to follow but which they will take into consideration and to which they will attach great weight as it seems to deserve.

2. It is merely historical

3.If they succeed in establishing law at all , they do so indirectly by serving as the historical ground of some later authoritative precedent

Original Precedent A point of law which has never been decided before , then whatever the judges dedcide will form a new precedent for later(future ) cases to follow .The Judge may find a case closest in principle to the one he is deciding on and may use similar rulling .this is called reasoning by Analogy .The number of original precedent is small &develop in law ina country .It makes a heavy burden on judge.Case :Donogue Stephenson (1932)-Snail in bottle case –Negligence .Bhimsingh Vs. State of J&K –Habeas Corpus case –Bhimsingh M.L.A detained by JK police –SC order state Govt to release and pay him Rs .50000/--Compensation.Declaratory Precedent This is an already existing rule of law . It is followed in the present and future .This precedent is the first recognized by the court and Judges .There need never been a specific case decided on the same or similar issues in order for a court to take notice of customary or traditional precedent in its deliberation .

It follow because its already a law & number of declaratoty precedent is numerous .Case :Bhavasagar Vs.State of A.P(1993) –Bhavasagar arrested illegally by police under Habeas Corpus .H.c.order to release pay 20000/- compensation It poses less strain on Judge.

Circumstances which destroy or Weaken the binding forces of precedent-Exception.The operation of the precendent is based on legal presumption that judicial decisions are correct..What is delievered in a judgement must be taken to be an established truth.But precedent may not always be in force .Precednet that is overruled is deprived of all authority .The various ways in which a precedent may lose all or much of its binding force are.

1.Abrogated DecisionsAbrogated means cancel .a decision ceases to be binding if a statute or statutory rule inconsistent with it , is subsequently enacted , or if it is reversed or overruled by a higher court .

¶ Reversal : Reversal occurs when the same decision is taken on appeal and reversed by the appellate court eg.Court of Appeal reverse the decision of High Court .

¶ Overruling : This occurs when the High Court declares in another case that precedent case (prior one )was wrongly decided and so is not be followed.Overrulling is one important method by which the Doctrine of Precedent is kept flexible .When a decision is overrules the authority is no longer binding either on subsequent courts or the court itself which is overruling .Overrulling need not be expressed but implied. Until 1940 the court of Appeal follow its own previous decision though manifestly inconsistent with a later decision of House of Lords provided it had not been expressly overruled .Lord Wright in case of House of Lords questioned and Court of Appeal in Young,s case accepted the new principle that it is not bound by its previous decision if it cannot stand with a subsequent decision of House of Lords.Reason 1.Previous court didn’t correctly interpret the law 2. Later court considers that the law contained in the previous ratio should no longer be applicable.Disadvantage –Overrulling not only affect future cases but also present one. It is retrospective –Though the cases started before the precedent was overruled it nevertheless decided according to new law.* It is possible to apply both the mechanism of reversing and overruling in the same case.

¶ Distinguishing :if a Judge decides that the material facts of the case in front of him are sufficiently different from the material facts of the case containing the precedent then he is not bound by precedent .Balfour Vs.Balfour (1919)& Merrtt Vs.Merritt(1990)-In both wife making claim against husband for breach of contract .In Balfour it was decided that claim could not succeed because there was no intension to create legal relation &merely domestic arragment B/W husband and Wife , so no contract .In Merritt the court distinguished the case from Balfour because although parties were husband and wife , the agreement was made after they had separated .It was in writing –Legally enforceable contract .RatIos may be wide/narrower .In wide less material facts &difficult to distinguish .

In India -24TH Amendment of constitution –Passed to nullify the decision of S.C. in Golak Nath case.; 25TH Amendment -Remedy for situation from decision of S.C.in Bank Nationalisation case.2.Affirmation or reversal or different Grounds.

A decision is affirmed or reversed on different ground on a appeal .Suppose there are two points: A & B; In Court of Appeal decided on pt A and in appeal to House of Lords decided on pt B , with nothing said upon A.View –Jessel .M.R- Judgement of the lower court affirmed on different grounds –It is deprived of all authority . The higher court – The conduct on the part of appellate court that it didn’t agree with pts mentioned.Although this may be correct at sometimes and not always.It may shift the grounds of decision because it is the easiest way to decide a case& it relief itself of disagreeable necessity of overruling court below by finding another ground on which the judgement could be supported.There are case report where Judgements affirmed on different points have been regarded as authoritative. Case reversed on another pt that have been decided in the lower court is not necessarily deprived of judicial determination of the law, but on other hand it may shake the authority of the pt decided. A decision either affirmed / reversed on another point is deprived of any absolute binding force it might otherwise had , but remains as an authority followed by court that thinks that particular point have been rightly decided.

3.Ignorance Of Statute A precedent is not binding if it was rendered in ignorance of a statute or a rule having the force of a statute,i.e.delegated legislation.This rule was laid down for house of Lords by Lord Halsbury in the leading case and for the court of Appeal as the leading example of a decision Per Incuriam which would not be binding on the court .

This rule applies if The earlier court →knew the statute→bt didn’t refer to / had not present to its mind precise

terms of statute. Court →knew the statute→ yet not appreciate its relevance to the matter in hand.

Even a lower court can impugn a precedent on such grounds .but misconstruction of statute /ignoring rule of construction by earlier court is no ground for impugning the authority of precedent. A precedent on construction of a statute is as much binding as any other and the fact that it was mistaken in its reasoning does not destroy its binding force.

4. Inconsistency with earlier decision of higher court A precedent loses its binding force if the court that decided it overlooked an inconsistent decision of a higher court .Eg.Court of Appeal decides a case in ignorance of a decision of the House of Lords which went other way , therefore the decision of Court of Appeal is per incuriam and is not binding either on itself (or) on lower courts .bt the decision of House of Lords is binding.This rule applies precedent in other courts such as to Divisional Courts.

5.Inconsistency B/W earlier decisions of the same rank .A court is not bound by its own previous decisions that are in conflict with one another .This rule has been laid down in

Court of Appeal Court of Criminal Appeal Divisional Court House Of Lords

Reaons of conflict situation *Conflicting decision occurs from a time before the binding force of precedent was recognized.*Through inadvertence because earlier cases not cited *Miss relavant authority –because of vast no. of precedent & heterogenous way in which they are reported /not.

*Prior decision not cited –it is assumed that court acts in forgetfulness / ignorance.*New decision conflict with old & it is given per incuriam & not binding on later court..

When the later court is not bound by the decision given per incuriam , this does not mean it is bound by first case .The rule is that when ther are previous inconsistent decisions of its own , the court is free to follow either earlier/ later .This rule has been laid down for the Court of Appeal , applied to other courts

This exception to binding force of precedent belongs to both the category of 1) Abrogation by subsequent facts (disregarde coz subsequent inconsistent decision on same level

of authority)2) Inherent vice.(disregarded coz in.vice of ignoring earlier case)

When authorities of equal standing are irreconcilably in conflict , a lower court has the same freedom to pick and choose B/W them as the schizophrenic court itself.

1) It may refuse later decision through per incuriam (shows boldness of judge to take this)2) Follow a decision on ground that it is the latest authority .

6. Precedents subsilentio or not fully argued

Here The authority of the precedent involved saying that the decision was arrived at subsilentio.

Subsilentio-The term by which the decision passess when the particular point involved in the decision is not perceived by the court or present in its mind. i.e Court decides in favour of a party due to point A , bt Point B was neither argued nor considered by court .So though point B was logically involved in the facts and case has specific outcome , the decision is not authority on point B and point B is said to pass subsilentio.

Eg.Gerard Vs. Worth of Paris , Ltd Discharged employee of a company –obtained damages for wrongful dismissal –applied for a garnishee order on a bank account standing in the name of the liquidator of the company .Point argued- Priority of the claimnant’s debt – therefore Court of Appeal granted order.Point not argued- whether garnishee order could be properly be made on the account standing in the name of the liquidator .When this pt argued in subsequent cases in C.O.A , the court held its not bound by previous decision.

Sir Wilfrid Greene ]→ point has to be decided by court B4 order was given→ since its decided → W/O argument, W/O Ref to crucial word of rule , W/O any citation of authority → it wasn’t binding & not followed.Precedent subsilentio –not authoritative (1661)Counsel : “A hundred precedent sunsilentio are not material “Twisden.J: “ Precedent subsilentio and without argument are of no moment Precedent subsilentio in not one case but series of case – if predecessors failed to consider a point is pronounced.

? whether precedent loses authoritative force by fact that its not argued/not fully argued by the losing party .Chief reasons of Doctrine of precedent : A matter that has been once fully argued and decided should not be allowed to be reopened.When jugement given W/O losing party represented there is no assurance that relevant consideration have been brought to the notice of the court and decision is regarded as not possessing absolute authority even if it does not fall with in subsilentio rule.Thus in Court of Criminal

Appeal & Divisional court –this opinion is adopted which will reconsider a decision that was not argued on both sides .

If there is a general exception for unargued cases , the subsilentio rule turns out to be a merely particular application of wider principle.A precedent is not destroyed – coz badly argued ,inadequately considered & fallaciously reasoned .Thus a arbitary line has to be drawn –B/W- Total absence of argument on particular pt- which vitiates the precedent & inadequate argument- ground for impugning the precedent , only If its is absolutely binding and indistinguishable. K.Balakrishna Rao Vs. Haji Abdulla Sait .[(1980) 1 SCC 321]Binding force of precedent does not depend on whether a particular pt argued or not but the pt with which a argument was subsequently advance was actually decided by the Supreme Court.

7. Decision of Equally Decided CourtsWhere an appellate court is equally decided the practice is to dismiss the appeal on principle ,”Semper praesumitur pro neganto”.

The rule adopted by the House of Lords is that the decision appealed from becomes the decision of the House Of Lords.In Vera Crus –C.O.A –Not bound by previous decision of evenly ÷ C.O.AIn Hart Vs.The RiverDale Mill C.Ltd- C.O.A –bound by decision of evenly ÷ Court of Exchequer Chamber (whose decision co equal authority with C.O.A)Galloway Vs. Galloway – Not bound by previous decision of evenly ÷ C.O.AThis practice is not seen now-H.O.L sit with uneven number – In H.C & S.C –Decision by majority.

8. Erroneous Decisions.Decisions becomes erroneous by being founded on wrong principles or by conflicting with fundamental principles of common law.Court can disregard such decisions , but such decision would have stood for some time in establishing law and people will have acted in reliance on it, dealt with property and made contracts on the strength of it and in general made it a basis of expectations and a ground of mutual dealings. It is better @ that situation that decision though founded in error should stand- communis error facit jus.The rule that courts are bound by decisions of higher courts and in some cases by their own decision, even though wrong , must stand as authority until overruled by a higher authority .On this erroneous decisions of H.O.L are corrected by statute .

London Transport Executive Vs. Betts[(1959) AC 213] –Lord Danning –View- H.O.L could disregard a prior decision of its own which conflicts with fundamental principles of common law .

In Scruttons Ltd Vs.Midland Silicones Ltd [(1962)AC 446] -H.O.L by a majority of four to one disregarded own previous decision in Elder , Dempster and Company Vs. Paterson Zochonis and company [(1924) AC 522].

In some instances courts will refuse to overrule decisions which they consider to be wrong but overrule which have stood the test of time.

Court don’t overrule well established precedents affecting proprietary rights or affordings particular defences to criminal charges

Courts overrule erroneous decisions of long standing which involve injustice to the citizen (or)which concern area of law such as taxation , where it is important for citizen to establish what the correct law is.

The supreme Court of India has also differed from its previous decisions in many cases .In Bengal Immunity Co.Ltd Vs.State Of Bihar –Held –There is nothing in our constitution which prevents the supreme court from departing from previous decision if it is convinced of its error and its baneful effect on the general interests of the public.

STARE DECISIS

Stare Decisis–see the decisions ; to stand by past decision.This is known as judicial precedent.

“Stare Decisis et Non Queita Movere”-Stand by what has been decided and donot unsettle the established.

Stare Decisis Rule –A principle of law which has become settled by a series of decisions is generally binding on the courts and should be followed in similar cases.This rule is based on expediency and public policy .Though it is followed by courts it is not applicable in all cases.The reason is that previous decisions should not be allowed to perpetuate a wrong if the court is convinced that the previous decision is wrong. Stare Decisis Rule is not so imperative /inflexible that it cannot be departed from but its application must be determined in each case by discretion of the court .

Origin – There was no doctrine of stare decisis as there was no reporting of the decisions of the courts.It was in 17TH century the decisions of Exchequer courts came to be reported in England and were given a binding force.In 1833 –famous decision of chief Justice Park in Mirehouse Vs. Rennel reiterated the urgent need for recognizing the binding force of precedents .In 1873 &1875 –supreme court of Judicature Acts came .It is firmly established then to U.S.A & all common wealth nations.U.S –Decisis more flexible due to federal character . Englsnd- nomore bound by own decision . India – same as England but change according to circumstances from time to time.

This doctrine has been recognized by the constitution of India Article 141 –Law declared by S.C shall be binding on all courts of India .The expression “All courts “-Include S.C.

a ) In Bengal Immunity Co.Ltd .Vs. State of Bihar [AIR 1955 SC 661]–It was held the expression does not include S.C.Which mean like H.OL. if with valid reason , S.C can depart from previous decisions.

b) Minerva Mills Ltd.Vs.Union of India [(1980) 3 SCC 625]Supreme court observed “Certainity and continuity are the essential ingredients of the rule of law.certainity in the application of law would be considerably eroded and suffer a serious setback if the highest court in the land were readily to overrule the view expressed by it in the field for a number of years.. iIt would create uncertainity , instability and confusion if the law propounded by this court on the faith of which numerous cases have been decided and many transactions have taken place is held to be not the correct law after a number of years.”

c) Mahadevlala Vs.Administrator –General of West Bengal –Supreme court held –The judges of coordinate jurisdiction should not set aside one another’s judgements, for judicial decorum no less than judicial propriety , forms the basis of judicial procedure and certainity in law is not only desirable but also essential .Thus a single Judge of H.C should not hold that decision of another single Judge is erronoes W/O referring to the larger bench .This rule also applies to division bench .

d) Sheshamma Vs.Venkata Rao [1940 Mad LJ 400] –Madras H.C.-Held –Division bench is the final court of appeal in a H.C.If a division bench does not accept the decision of another division bench then refer the matter to the Full Bench .

e) Yedlapat Venkateswarlu Vs.State of Andhra Pradesh [AIR 1978 AP 333]– Andhrapradesh H.C – Same view as above case.

f) Maktul Vs.Manbhari [AIR 1958 SC 918]-Held that correctness of decision has been changed from time to time and in fact has been reversed and its decision has been considerably impaired by Privy Council , the doctrine of stare decisis is not applicable.

h) Bachan Singh Vs.State of Punjab [(1982 )3 SCC 24]-Similar view taken by S.C as above .

i) Jagmohan Singh Vs.State of U.P [AIR 1973 SC 947]-It was urged before the supreme court that the question of constitutional validity of death sentence stood concluded against the petitioners by the decision of a constitutional Bench of 5 jugdes of the supreme court and couldnot therefore be allowed to be reagitated before a bench consisting of same no. of Judges .The plea was rejected by Supreme court pointing out that rule of stare decisis though a necessary tool in what Maitland called “ the legal smithy ‘ , is only a useful servant and cannot be allowed to turn into a tyrannous master.

j) State of Washington Vs. Dawson and co.- Brandeis .J- Stare Decisis is ordinarily a wise rule of action .But it is not universal and inexorable command .” If the rule of stare decisis was followed blindly and mechanically , it would dwarf and stultify the growth of law and affect it scapacity to adjust itself to the changing needs of the society

The Supreme Court pointed out supervening Cirumstances which justified a reconsideration of the decision in certain cases.

Jagmohan Singh Vs.State of U.P – The introduction of new code of criminal procedure in 1973 by which the sec .354(3) made life sentence the rule in case of offences punishable with death or in the alternative imprisonment for life and provided for imposition of sentence of death only in exceptional cases for special cases.

Menaka Gandhi Vs.Union of India [AIR 1978 SC 5971978) 1 SCC 248]- The decision of Supreme court gave a new interpretation to Article 21 and 14 .The new dimension of Articles 21 and 14 rendered death penalty provided in sec. 354 (3) of the code of criminal procedure ,1973 , vulnerable to an attack on a ground which was not available at the time when the case of Jagmohan Singh was decided in 1973.

As the case of Jagmohan was decided ,India has ratified two international instruments of human rights and particularly the International Covenant on civil and Political Rights .Under those circumstances Supreme court didn’t follow Stare Decisis.

Advantages

1. Dispose the case early , efficiently and in decent manner .2. Reduces litigation expenses & increase court convenience .3. Judges arrive at conclusion early and reduces strin and speed up cases.4. certainity in administration of justice.5. Doctrine based on the ethical principle and universal sense of justice.

Disadvantages

1. Certainity in changed circumstances causes obstacles in science , technology , and social .2. It is based on public policy and its formulation of adherence to precedent .3. Minute discrepancies are there.Therefore principle of equality is not extended accurately .4. Codification of judgement is a big task .

Ratio Decidendi

This is the legal principle which lays behind the decision and it is this ratio which will provide the precedent for the judges to follow in the future cases(the remainder of the judgement is obiter dicta).Rule of law applied by and acted on by the court or the rule which the court regard as governing the case.

A decision of the court can be seen from two aspects 1. What a case decides

What it decides generally is ratio decidendi / rule of law for which it is authority .2. What it decides B/W the parties

It includes more .It is impracticable if there is no end to litigation and parties reopen dispute at any time.Therefore law provides that once case heard , appeal taken , issue raised parties to dispute & sucessors bound by the court finding on issues ,decision onit .decision given on it .According to this principle matters are “rea Judicata “ and no more dispute.Eg

A sues for negligence in motor accident > B < prosecuted for careless driving Court.In this 1. A & B –Bound against each other as the findings of the case 2.3RD parties not involved in original case will not be bound nor the original parties in a subsequent dispute with 3rd party .3.If B prosecuted for careless driving neither he nor prosecutor will be bound by the findings of the facts in the original action .4. Findings in an action may be conclusive even as against the third parties.Therefore the judgement acts in rem .i.e .against all world.

Pettition against the nullity of marriage court decision valid for → for respondent , petitioner & also 3rd party.

In Penn –Texas Corportaion Vs. Murat Anstalt Foreign company applied for certain Docs from English company .Court held -court has power to order to produce certain docs only if they were specifically identified , therefore court didn’t order .Now English company contend – court has no such general power was previously decided but this argument had already been decided in 1st application and was ‘res judicata’.Both applications finally taken to Court of Appeal-Lord Denning Rejected plaintiff ‘s contention that earlier decision unnecessary to the decision as it is unappealable. Unappeable because -English company successful in 1st application & no order against which they can appeal.-Since that finding unnecessary to the decision court proceeded to final decisionIllogical & unfortunate - The company had no right of appeal in 2nd application –coz its already decided in 1st proceeding in which they are successful.In this type of case a compromise would be to regard both proceedings as part of one continuing action i.e.general findings in the 1st application would be conclusive in the second –but in courts of lower /equal status & not in higher tribunals to which the appeal should lie.

Proposition

Doctrine of precedent in common law –Rules of law are developed in very process of application .The fundamental notion is that law should result from being applied to live issues raised B/W Parties& argued on both sides. Judge may let fall various observation not relavant to issues and illustrate his general reasoning by reference to hypothetical situation &law which he consider to apply to them .Havindg decided on one point he may indicate how he would have decided if pronounced on other points if necessary to the case .The observation by the way are Obiter dicta are W/O binding authority .They help to rationalize the law and suggest solution to problem not yet decided by court.Ratio decidendi refers to the proposition of law for which the case is authority .If we think the rule as a line of graph then the case itself is like a point through which the line is drawn..Cases 1.Presented with order but judgement without supported reason .

2. Lengthy judgements support decision with several proposition.

When a court states a new rule it can’t have before it all possible situation which rule stated might cover , but also undesirable ones that it should apply.In such case court . 1. should view that original rule too widely stated –therefore restrict its application .2. If not court state rule which neither concerned nor obliged to formulate all possible exceptions.It must be dealt with as and when it arise.

Various methods of Determining Ratio Ratio is ageneral rule without which the case would have been decided otherwise.

1. Reversal test –Prof.Wambaugh Take a proposition of law given by Judge →Reverse /Negate→ if alt then proposition/ratio is the part of it → If no difference then its not.This test not useful - where no proposition of law given .-i.e report is statements of facts and order that was made.

- where court gives several reasons for its decision- in such each reason reversed would remain unaltered –The 1st reason is ratio and the rest are obiter dicta.

2. Prof.Good hart According to this ratio is to be determined by ascertaining the facts treated as material by the judge together with his decision on those facts

This directs us from the judges from what they say and what they do .This helps us to derive ratio from cases where no judgement given.

In cases where judgement given , it is from this we must determine which facts the judge deemed material and which not .Facts → Judgements → Material facts test → Proposition of law are only authoritative as they are relavant to facts in issue in a case Immaterial facts→anything absent in judgement to the contrary . We cannot always rely on the Judge’s resoning in case because there are caseswhere Judge backs up his decision with argument on policy and justice. This test is very useful method for ascertaining ratio decidendi .But in current practice the court seem to pay more attention to the Judge’s own formulation of law .

Bridges Vs. Hawkesworth A customer found purse on the floor of shop .Dispute arose whether shall be given to finder/ shopkeeper .The court followed “finder –keeper ‘ principle and gave it to customer treating shop as public place.South Staffordshire Water Co .Vs Sharman (1896)2 Q B44

Plaintiff owned a pool .Defendent found gold ring in the mud pool .Plaintiff claimed those rings .Defendant argued based on Bridges case .The court held that gold rings shall be given to plaintiff because the mud pool was owned and occupied by them &it is plaintiff’s private place.Donoghue Vs. Stevenson It is leading case in torts and consumer justice .Plaintiff with Lady friend went to cooldrink shop & purchased ginger beer in a black coloured bottle .She drank and felt uneasy and vomiting .Found a decomposed snail in bottle & sued the manufacturer for negligence .Trial court quashed the petition and they reached the House of Lords.

Judgement : H.O.L In favour of plaintiff & ordered manufacturer to pay compensation .Here we have to know how H.O.L Gave judgement in favour of plaintiff.If similar type of case filled before any court then court 1st consider ratio decidendi upon which H.O.L order manufacturer to pay compensation.

a) A-Defendant –Manufacturer of ginger beer .b) Decomposed snail found in the opaque black bottle .since black no body could observe it &it

caused ill –health to plantiff’s ladyfriend.c) Contract B/W A & Retailer of supply the merchandise of goods .Therefore A liable to

supply.If no contract then too A should merchandise under ‘Sale of Goods Act’ .Therefore A violated his duty of care.

d) The distributor supplied by trusting manufacturer & diin’t know the decomposed snail presence.

e) Threfore retailer with bonafide intention sold to customer .f) The concerned person who supply the bottle did not note.g) The health of plaintiff ‘s ladyfriend got spoiled .h) This happened in Scotland & plaintiff sued A in Britain .There were different laws &

procedures in Scotland & Britain .Therefore trial court erred in determining duty of care of manufacturer.

i) In above both question of facts and question of law found.The court considers both .j) The trial &appellate court in Scotland quashed proceedings &plaintiff appealed to England .

1. Advocate of A argue that law in both countries different & this is based on Scotland law &H.O.L have no authority to decide.

2. Based on points a , b , f, g –Advocate of plaintiff argue due to negligence of A his ladyfriend got ill health & A ‘s duty is to supply merchandise of goods.

3. Based on points b, c, h –Advocate of plaintiff argue whether / not agreement B/W A and Retailer . A is liable to supply merchandise of good .Therefore liable under law of torts .

4. Based on points b , h –A situated far from plaintiff & but caused tort .Therefpre A is neighbour.

These points are ratio decidendi which are the outcome of analysis.

Ratio – Hrere courts 1st deals with the law and enunciate a certain rule &find that the rule doesn’t apply as defendant comes with exception.

Hedley Byrne & Co. Ltd Vs. Heller & Partners Ltd. In business a man relies on advice of another person & then there is duty even in absence of contractual relationship .No such duty if disclaimed of responsibility ofor his advice. Suppose the court decides a point in favour of plaintiff and other in favour of defendant but judgement for the defendant .In these cases the facts are assumed and in some cases actual facts operate,

to take the case out of rule as stated by court .so some rules ststed are unnecessary tfor decision .We can’t regard them as obiter dicta . In the above 2 cases the rule is ratios and not dictum.

Dissenting Judgement – Though valuble may be but court cannot count as ratios as it has no part in reaching the final decision .Lord Dunedin- “If not clear what ratio decidendi was then it is no part of the later tribunal ‘s duty to spell out with great difficulty a ratio decidendi in order to be bound by it.”

Jessel .M.R-“A rulling given by ajudge in a case may be right /wrong in the circumstances of the case the judge might have felt it right .Later the circumstances have been change .After changed circumstances the judgement given by the 2nd judge may be quite against the judgement of the former .If the 3rd should scan both the judgements and should interpret them and should give his own judgements depending upon the real intention of the framer of the act .Those rationes are genuine which come nearer to the intention of legislature.”

Genuineness of Ratio Decidendi in the precedent considered in following points1. A rulling given in a precedent if not related to the facts of the case .such rulling is not good.2. A rulling given against the real intention of legislature is not good rulling .If a rulling points out

the defects in the statute , which creeps in the statute due to the oversight or ill –intentionor against constitutional law then Judge can point out such defect and can give a rulling.Such rulling becomes good rule.Eg.The S.C squashed Sec.303 of IPC in Mithu Vs. State (1984) case.

3. When a Judge or court gives a new rulling , it is his / its liability to explain rationes in giving such new rulling.

4. If rulling not rationale/ reasonable then such rulling is not taken into consideration (not become ratio decidendi.)

5. A court may give more ratio decidendi in one case if there are several facts &matter 6. The obiter dicta cannot form ratio decidendi .7. Lord Denning .M.R “If the court has to interpret the wills , trust deeds , sale deeds ,shall rely less

on the rulings of the precedent and more on the real intention of the testator , trust author , and other parties to the deeds , as the case may be .Then only the court should come to a conclusion depending upon each of such circumstances.”

8. In Donoghue Vs.Stevenson case the H.O.L defines ‘neighbour ‘ Principle in a wider sense and made manufacturer liable to pay compensation to the plaintiff.

9. If there are two or more judges trying a case , unanimously gave rulings in that case (R.D).In Macnaughton’s case 15 justicesdelivered rulings and those have become famous ‘Macnaughton’s Insanity Rullings’.

10. When 2 or more Judges delievered their rulings , which minority dissented even then rulings are valid ratio decidendi .In R Vs. Prince case the majority of justices gave rulling about Mens rea and found that the accused was guilty of abduction.