M.Katju and S.L.Saraf, JJ. - (1.) Heard Sri Irshad All for the petitioner and Sri Ashok Mehta, learned Chief Standing Counsel for the respondents.
(2.) This application has been filed for a prayer that the direction of the Court dated 16.12.1998 in the present writ petition and the Judgments dated 10.3.1998 and 25,3.1998 in Writ Petition No. 5733 of 1998 as well as the judgment dated 23.12.1998 in Writ Petition No. 44707 of 1998 should be complied with. The case relates to lotteries. We had given a Division Bench decision on 10.3.1998 in Writ Petition No. 5733 of 1998 banning all lotteries in U. P. of all State Governments. Thereafter we passed another Division Bench decision on the review application in the same writ petition on 25.3.1998 in which we disagreed with the decision of the Gauhati High Court dated 16.1.1998 by which the Gauhati High Court held that the Lotteries Ordinance was unconstitutional. Surprisingly, despite these two Division Bench decisions, the Lucknow Bench of this Court took a contrary view in its orders dated 6.5.1998 and 11.1.1999. It is settled law that one Division Bench is bound by the earlier decision of another Division Bench of the same Court as held by the Supreme Court in 1989 (3) SCC 396 : AIR 1972 SC 51 ; AIR 1976 SC 844 : 1989 SCC 337, etc. The Supreme Court has repeatedly held that one Division Bench of a High Court is bound by the decision of an earlier Division Bench of the same Court and hence we fail to understand how the Division Bench of the Lucknow Bench could take a view contrary to the Division Bench decisions of this Court dated 10.3.1998 and 25.3.1998. If the Lucknow Bench disagreed with the decisions dated 10.3.1998 and 25.3.1998, it should have referred the matter to a Full Bench, but it could not itself take a contrary view.
(3.) It seems that the Lucknow Bench was of the view that the decision of the Gauhati High Court was res judicata as the State of U. P. was a party before the said Court. It is settled law that the principle of res Judicata applies when a judgment has become final. Since against the judgment of the Gauhati High Court, an appeal was filed before the Supreme Court which is still pending, the judgment of Gauhati High Court is obviously not res judicata. It is settled law that an appeal is a continuation of the original proceedings. If an appeal against a Judgment is filed, the proceeding becomes inchoate. As such, the judgment of the Gauhati High Court is not res judicata, and hence the subsequent interim orders of the Lucknow Bench dated 6.5.1998 and 11.1.1999 cannot prevail over the final Division Bench judgments of this Court dated 10.3.1998, 25.3.1998 and 23.12.1998.;