' ALI SAIN DINO METLO, J.---The question referred to the Full Bench is: "Whether learned single Judge is debarred under law, equity or standard of propriety from hearing the case involving factual or legal controversy on which the same learned Judge has already expressed an opinion in some other case before?"
2. The background of the reference is that on 21-10-2006, plaintiff Nos.1 to 7, residents of Block 2, PECHS, Karachi and plaintiff No,8, a non-governmental organization (NGO) interested in maintaining and improving environment of Karachi, filed a Suit, bearing No,1385 of 2006, re: Syed Tahir Hussain Mehmoodi and others versus Tayyab and others, contending that Block 2, of PECHS was a residential area in which construction of only ground ,plus one storey building was permissible but respondents 1 to 4, in collusion with rest of the respondents, were bent upon to construct a ground plus seven storeys building to the detriment of their easement rights. They sought declaration to the effect that construction of such multi-storeyed building was illegal and prayed for the cancellation of sanction/approval of plan for the multi-storeyed building. They also prayed for injunction to restrain respondents 1 to 4 from raising construction beyond ground plus one storey and mandatory injunction to direct them to demolish the construction which they had already Made.
3. Along with the plaint, an application, bearing C.M.A. No,7842 of 2006,s for temporary injunction was also moved on which ad interim injunction restraining the defendants from raising construction beyond first floor was granted on the same day i.e, 21-10-2006. After a number of adjournments and extensions of the interim order, extending over a period of more than one and half years, learned counsel for the plaintiff, on 19-5-2008, asked His Lordship, sitting on original side, before whom the suit had been fixed for more than a dozen times during which he had also argued the matter partly, to recuse himself on the ground that His Lordship, by an order, passed on 1-2- 2008, in two other similar suits, bearing No,465 of 2006, re: Mrs. ALBA D'SA and others versus Mrs. Naheed Rabani and others and No,724 of 2006, re: Tufail Suteria and another versus Tariq Mumtaz and others, filed by him, had refused to grant injunction 2008 YLR 738 Karachi.
4. Learned counsel for the plaintiffs, at the very outset, stated that he had no doubt about any personal bias on the part of His Lordship and did not dispute his personal honour and judicial integrity. According to him, he wanted His Lordship to recuse only because he, having already expressed his opinion on issues of fact and law similar to those involved in the present suit, may not be able to decide the matter with open mind and objective impartiality.
5. Referring to the observations made in the case of Porter and another versus Magill, reported in (2001) UKHL 67, learned counsel for the plaintiff argued that for the purpose of determining apparent bias on the part of a tribunal, the court should no longer ask whether in the facts and circumstances of a case there was a real danger of bias. Rather, the test, per the learned counsel, was whether the relevant circumstances, as ascertained by the court, would lead a fair-minded and informed observer to conclude that there was a real possibility that the tribunal had been biased. According to the learned counsel, in view of the opinion already expressed by his Lordship in the order passed in suit Nos. 465 of 2006 and 724 of 2006, dismissal of plaintiff's application for temporary injunction (C.M.A. No,7842 of 2006) was a foregone conclusion and, therefore, per the learned counsel, a fair-minded and informed observer can very well conclude that there was a real possibility that His Lordship had been prejudiced.
6. Whether the test be 'real danger of bias' or 'real possibility of bias' or 'reasonable apprehension of bias', as had been applied at different times, and whether the test be applied by the arbiter himself, or by an informed and fair-minded observer in court or by a casual observer, the question is whether a Judge, who has expressed his opinion on a question of fact or of law while deciding a case, will lose open-mindedness and objective impartiality and will be disqualified to decide any other case of similar nature.
7. If the proposition is accepted, then a Judge can decide only one case of a kind in his life. He cannot decide second case of similar nature at any subsequent time. The necessary consequence will be that for every second case of similar nature, a separate Judge will have to be appointed, which will be an impossibility in a litigious society of the present day.
8. In Porter's case, heavily relied upon by the learned counsel for the plaintiffs, in which impartiality of the auditor and fairness of his investigation were seriously challenged, it was held that the auditor's certificate, issued under section 20 of the Local Government Finance Act, 1982, regarding the loss caused to the Westminster City Council by its councilors and their liability to make the loss good, was not liable to be quashed on the ground that the auditor, during the course of inquiry, had expressed his opinion against the councilors in a press conference, which had been given wide publicity in print and electronic media.
9. The main thrust of arguments of the learned counsel for the plaintiffs was that in the previous case His Lordship, in disregard of the law laid down by the Supreme Court, had erred in refusing to grant temporary injunction and thereby allowing the construction of the buildings beyond ground plus one storey and, therefore, per learned counsel, His Lordship should not be allowed to repeat the error. In this regard, it may be observed that the intra-court appeal, bearing HCA No,25 of 2008, which the learned counsel had filed against the previous order of His Lordship, was disposed of on 15-2-2008, by a consent arrangement, under which construction of the multi-storyed building was allowed to be carried out according to the sanctioned plan at the risk and cost of the owners/builders. After the disposal of appeal by such consent arrangement, there was no justification for agitating the matter further. Moreover, we are not sitting in appeal against the previous order of His Lordship, nor the parties of the previous case are before us.
10. As regards the question of repetition of error is concerned, there is always room for correction.
The law of precedent does not bind a Judge to repeat his mistakes. A Judge, who is supposed to be open to advice, can always be persuaded to reconsider his previous decisions in the light of correct position of law and dictates of justice. Instances are not lacking where the superior courts, including the Supreme Court, have revisited and changed their previous decisions. If His Lordship had not considered the law laid down by the Supreme Court at the time of passing the previous order, he can very well be persuaded to consider the same at the time of deciding the application in the present case and his previous decision, if per incurium, will not be binding upon him
11. The precedent of R v. Bow Street Metropolitan Stipendiary Magistrate and others, ex parte Pinochet Ugarte (No,2), reported in (1999) All. ER (HL), cited by the leading counsel of the plaintiffs, in which a Law Lord was held to be disqualified from hearing an extradition appeal due to his previous association with a charity (having served as its director) closely associated with a party to the extradition appeal, has no relevance to the present case, as no such association was attributed to his Lordship.
12. Even otherwise, open mind does not mean empty mind. A person cannot be free from the influences of the society in which he lives. His Lordship Jerome Frank of US Second Circuit Court of Appeals, in Rt. JP Linahan, Inc. (138 F.20.650), quoted by Sir Louis Blom-Cooper, in his comments on 'Bias on Appeal', published in Public Law 2005, p.227 observed: "The human mind, even at infancy, is no blank piece of paper. We are born with predispositions, and the process of education, formal or informal, creates attitudes which precede reasoning in particular instances and which, therefore, by definition, are prejudices. Without acquired slants and preconceptions, life could not go on. Every habit constitutes a prejudgment; were those prejudgments, which we call habits, absent in any person, were he obliged to treat every event as an unprecedented crisis presenting a wholly new problem, he would go mad. Interests, points of view, preferences, are the essence of living. Only death yields complete dispassionateness, for such dispassionateness signifies utter indifference. To live is to have a vocation, and to have a scheme of values is to have a point of view, and to have a point of view is to have a prejudice or bias."
13 Every preconception or prejudice may not be equated with bias,. Even in the case of Davison v.
Scottish Ministers (2004 UKHL 34), in which Lord Hardie, one of the three lords of Extra division, hearing reclaiming motion of Davidson, was held to be disqualified from hearing the case due to his pie:ions active legislative role, as Lord Advocate, in the passage of the relevant Bill through the House of Lords, it was observed that expression of judicial 'opinion in an earlier case did not denote a lack of open-mindedness. Paragraph 10 of the judgment reads: "10. Rarely, if ever, in the absence of injudicious or intemperate behaviour, can a judge's previous activity, as such, gives rise to an appearance of bias. Over a time, of course, judges acquire a track record, and experienced advocates may be able to predict with more or less accuracy how a particular Judge is likely to react to a given problem. Since Judges are not automata this is inevitable, and presenting a case in the way most likely to appeal to a particular tribunal is a skill of the accomplished advocate. But adherence to an opinion expressed judicially in an earlier case does not of itself denote a lack of open-mindedriess; and there are few experienced Judges who have not, on fresh argument applied to new facts in a later case, revised an opinion expressed in an earlier. In practice as the case shows, problems of apparent bias do not arise where a Judge is invited to revisit a question on which he or she has expressed a previous judicial opinion, which must happen in any developed system, but problems are liable to arise where the exercise of judicial functions is preceded by the exercise of legislative functions."
14. It is the era of specialization. A Judge, who has gained experience of deciding a particular category of cases, can understand and deal with the other cases of same category more efficiently. It will be better if his experience is utilized in deciding cases of similar nature instead of preventing him from dealing with such cases and thereby wasting his expertise. By this, we do not suggest that cases should be decided only on the basis of expertise of a Judge unshared with the bar as that may amount to moving the doing of justice from the Court to the Chamber. A judge should be more advised than learned.
15. For the above reasons, we are of the considered opinion that a judge is not disqualified to hear a case simply because he had expressed his opinion on similar questions of fact and law while deciding a similar case earlier. After examining the question referred to us from all angles, it is answered in negative.