Rule of per incurium can be applied where a Court omits to consider a binding precedent of the same Court or the superior Court rendered on the same issue of where a Court omits to consider any statute while deciding that issue. However, where in case referred which was decision by two Judges the controversy was exactly the same as it is in instant case and the Supreme Court after considering relevant provisions of Rules came to a conclusion, which is a binding, precedent.
Rule of per incuriam cannot be invoked in the instant case. Moreover a case cannot be referred to a larger Bench on mere asking of a party.
Supreme Court in the case of Tribhuivandas Purshottamdas Thakur v. Ratilal Motilal Patel, (1968) 1 SCR 455 while dealing with a case in which a Judge of the High Court had failed to follow the earlier judgment of a larger Bench of the same Court observed thus:-
“The judgment of the Full Bench of the Gujarat High Court was bidning upon Raju, J. If the learned Judge was of the view that the decision of Bhagwati, J. in Pinjare Karimbhai’s case (supra) and of Macleod, C.J., in Haridas’s case (supra) did not lay down the correct law or rule of practice, it was open to him to recommend to the Chief Justice that the question be considered by a larger Bench. Judicial decorum, propriety and discipline required that he should not ignore it. Our system of administration of justice aims at certainty in the law and that can be achieved only if Judges do not ignore decisions by Courts of coordinate authority or of superior authority. Gajendragadkar, C. J. observed in Lala Bhagwan v. Ram Chand, (AIR 1965 SC 1767).
“It is hardly necessary to emphasis that considerations of judicial propriety and decorum require that if a learned single Judge hearing a matter is inclined to take the view that the earlier decisions of the High Court, whether of a Division Bench or of a single Judge, need to be re-considered, he should not embark upon that enquiry sitting as a single Judge, but should refer the matter to a Division Bench, or, in a proper case, place the relevant papers before the Chief Justice to enable him to constitute a larger Bench to examine the question. That is the proper and traditional way to deal with such matters and it is founded on healthy principles of judicial decorum and propriety.”
Ref AIR 2000 SC 1729 : (2000) 2 SCR 1009 : (2000) 4 SCC 262 : JT 2000 (4) SC 536 : (2000) 3 SCALE 277