BALIA, J. - (1.) A Division Bench of this court consisting of Hon'ble Justice M. R. Calla and Hon'ble Justice Shashikant Sharma vide its order dated 24. 11. 2001/3. 1. 2002 ordered for placing these cases before Hon'ble the Chief Justice for constituting a larger Bench for consideration of the following two questions: 1. Whether the judgment dated 13. 12. 2001 has a binding effect as a part of the law of precedent or not? 2. Whether the right to file intra court appeals stands abrogated with the Repealing Act coming into force on 29. 8. 2001 by which the Rajasthan High Court Ordinance, 1949 was repealed notwithstanding the several other existing provisions preserving the powers of the High Court in the matter of administration of justice as contained in Article 225 of the Constitution read with Secs. 52, 54 & 57 of the State Reorganisation Act, 1956? The aforementioned two questions have been referred for determination to as under the orders of Hon'ble the Chief Justice of this Court. . . . .
(2.) THEREAFTER, when these appeals came up for hearing, learned counsel appearing for the respondents raised the following two objections about the maintainability of these special appeals: 1. That these special appeals are directed against an interim order and the order impugned in these appeals is not a final order and, therefore, they are not maintainable under Sec. 18 of the Rajasthan High Court Ordinance, 1949; and 2. That since the Rajasthan High Court Ordinance, 1949 itself has been repealed with effect from 29. 8. 2001, the date on which the His Excellency the President of India gave his assent to the repealing Act and, therefore, the present special appeals are not maintainable. Since an important question was raised about the maintainability of special appeals because of the repeal of the Rajasthan High Court Ordinance, 1949 with the promulgation of Judicial Administrative Laws (Repeal) Act, 2001, (hereinafter to be referred to as `the Act of 2001') affecting large number of cases in the matter of right of appeal to Division Bench against order passed by Single Judge in all the matters pending before Court before various Single Benches and matters to enter the portals in future, a general notice was directed to be issued to the Members of the Bar inviting assistance to the Court on these questions, that any Advocate may appear and argue the matter for the assistance of the Court. A copy of the said Notice was also directed to be sent to the learned Advocate General. Such notice was issued and published in the cause list dated 9. 11. 2001. In response to the aforesaid general notice, a large number of the Members of the Bar responded, appeared and addressed the Court about the question regarding maintainability of the special appeals and the effect of Judicial Administrative Laws (Repeal) Act, 2001 whereby Rajasthan High Court Ordinance, 1949 has been repealed. Hearing was concluded on 24. 11. 2001. On 24. 11. 2001 itself the Court commenced the dictation of judgment in Court. On the first question viz. , appeal being a vested right, the Division Bench reached its conclusion that right of appeal existing at the time of commencement of lis continues till the logical end of the proceedings up to the last stage and such right of appeal is preserved as held in the cases referred to in the judgment.
(3.) IT appears that a part of the judgment was dictated on 24. 11. 2001 and because of the changes in the constitution of Benches, the judgment could not proceed further immediately and the matter again came up before the Division Bench for completion of judgment on 3. 1. 2002. However, during this period, another judgment was delivered by another Division Bench at the Principal seat of the High Court at Jodhpur (Hon'ble Dr. B. S. Chauhan and Hon'ble Harbanslal, JJ) in State of Rajasthan and Another vs. Vasna Ram and Anr. (D. B. Civil Special Appeal No. 846 of 2001, decided on 13. 12. 2001) holding that there is no other provision existing in any Statute, Ordinance or rules providing for an appeal against the judgment and order of the learned Single Judge before a Division Bench other than Sec. 18 of the Rajasthan High Court Ordinance, 1949 and as the Rajasthan High Court Ordinance, 1949 stood repealed, it is difficult to assume that the present appeal is maintainable. It was further held that the Ordinance, Sec. 18 of which provided for an appeal, stands repealed and the repealing Act does not contain any saving clause, and Shri Jangid, learned Addl. Advocate General for the State could not point out any provision analogous to Sec. 18 of the Ordinance, existing in any Statute in force. In such a fact-situation, appeal cannot be entertained. This judgment was rendered at admission stage when Court itself has entertained doubt about maintainability of Special Appeal, without issuing notice of appeal. However, it is to be considered as a matter of judicial discipline that the Court of subordinate jurisdiction ought not to ignore the earlier binding precedent of a court to which appeal from its judgment goes by treating it to be per incuriam. If the earlier judgment is of a coordinate Bench of the same High Court and it reaches a definite conclusion that the earlier judgment rendered by the coordinate Bench is per incuriam, it can reach its own decision in respect of it but even in such cases, the preferable course to be adopted is to make a reference to a larger Bench to have an authoritative pronouncement on it. ;