Kerala HC Explains Doctrine Of "LAW OF CASE" -Binding Nature Of Previous Orders In Subsequent Stages Of A Case [Read Judgment]

In a curious case entangled in strange set of facts, a Division Bench of the Kerala High Court comprising Justices P.N Ravindran and Justice Dama Sheshadri Naidu had occasion to explain the doctrine of ‘law of case’, which deals with the binding nature of previous orders in subsequent stages of a case.

A civil contractor had two arbitral awards passed in his favour against the Government. The Civil Appeals filed by the Government against the awards were dismissed. In further appeals filed by the Government before the High Court, the appeals were allowed in part, with modification of award. Against the modification made by the High Court, the Contractor moved the Supreme Court.  The Supreme Court, set aside the impugned judgments of the High Court holding that they were on wrongful premises.  Further, the appellant contractor was granted “liberty to the appellant to file Review Petitions” before the High Court. Accordingly, the Contractor filed review petitions before the High Court.  Another Division Bench which considered the review petitions formed the opinion that review was unnecessary, and posted the appeals for fresh hearing.

Two questions emerge from the above fact situation- When the judgments of the High Court were already set-aside by the Supreme Court, what is the further scope for granting liberty to the appellant-contractor to file review?. Also, when the review was so filed by the contractor, could the Division Bench of the High Court have re-opened the concluded appeals for further hearing in the review petition filed by the contractor, especially so when the Court observed that the review was unnecessary.

When appeals thus re-opened came for final hearing before the present Division Bench, the Bench was confronted with the question as to whether the orders passed by the previous Division Bench directing the fresh hearing of appeals will be binding on the matter. It was in that context that the ‘Doctrine of Law of the Case’ was discussed.

By referring to various jurists, the judgment authored by Justice Dama Sheshadri Naidu summarised that the “law of the case”, fetters a later Bench in the same case from taking a contrary stand to that taken earlier by the previous Bench. It was also made clear that this doctrine was different from the law of precedents, as the binding force of precedents is only to the extent of similarity of facts. Whereas, in law of case, the previous orders passed by the same Court or any superior Court in the case, binds the subsequent proceedings of the case. For example, the orders passed in interlocutory applications might bind subsequent proceedings. Or, the directions issued by an appellate Court while remanding a matter might bind the subsequent proceedings at lower Court.

Applying the said doctrine in the instant case would have meant that the Court should hear the appeals afresh. That would have led to an anomalous result, in that it would amount to re-opening the judgments which were totally set-aside by the Supreme Court; the incongruity gets further aggravated when it is seen that such re-opening is being done in the review petition filed by the Contractor, depriving him of the benefit of the Supreme Court judgment. Also, the State, which did not initiate any further proceedings against the judgments of the High Court which partially rejected its appeal, will get benefited from the re-hearing process at the cost of the contractor.

The Court observed that the ‘doctrine of law of the case’ was not a rigid doctrine, and had three exceptions : to address new evidence, to deal with a change in controlling legal authority, and to prevent a miscarriage of justice. Holding that application of this doctrine in the case will result in miscarriage of justice, the Court refrained from its application.  The Court also noted that the issue involved the interpretation of the true intent of the order of the Supreme Court, which granted liberty to the appellant-contractor to seek review before High Court, while setting aside the judgments of the High Court. However, the Court expressed that it would not be proper on the part of High Court to attempt interpretation of the Supreme Court order.

The Court shunned adjudication of the matter on considerations of judicial propriety. The matter was closed stating that the parties may approach the Supreme Court seeking clarification of its order.