A Look On The Ruling In 2017 (2) KLT 645

(By P. Devasahayam, Advocate, Vanchivoor, Thiruvananthapuram)

This decision (Abdul Kareem v. Muhammed Shafi) was rendered by Honourable Mr.Justice K.Harilal and Honourable Mr.Justice Raja Vijayaraghavan V. It is a case where the Landlord filed petition before the BRC Court for eviction of a tenant under S.11(2)(b) and 11(3) of the BRC Act 1965. Pending the matter Land lord filed two applications, one was for amendment of the petition under Order 6 Rule 17 C.P.C. along with S.23(1)(j) of the BRC Act seeking for incorporating S.11(4)(iii) of the Act with the allegation that the tenant had acquired possession of another building. The other application was for appointment of a commissioner. The Rent Control Court dismissed these applications. In an O.P.(RC) No.3669 of 2013 filed by the Landlord their Lordships concurred with the decision of the Rent Control Court regarding application for amendment and allowed the other application for appointment of commissioner.

I wish to discuss the decision on amendment. It was held by the court that in view of the rigour under S.23(1)(j) of the Act, Order VI Rule 17 C.P.C. cannot be allowed. It was also held that S.23(1)(j) of the Act is confined to the amendment to cure “defect or error” in the Rent Control Petition only and the cause of action for eviction on the new ground arose pending the matter petitioner was disentitled for amendment.

It was so discussed in para.12 of the decision that S.23(1)(j) is confined to cure “defect or error” in the Rent Control Petition only. According to me the literal and purposive interpretation of the Section is not only the application but the entire proceedings including application. It is the principle of law that subsequent event can be considered by the court to shorten litigation and cause of action is applicable only to suits and not application like applications before BRC Court. As per the opinion of his Lordship Justice Mr.V.R.Krishna Iyer the number of acceptance of subsequent event is legion.

Let us consider the earlier decisions on this matter in Abraham v. Associated Engineering Corporation (1984 KLT 985). It was held that Rent Control Court has power for amendment under S.23(1)(j) or inherent power or residuary powers of the Rent Controller as a Court. In Seshambal v. Chelur Corporation (2010 (1) KLT 834) it was so held by the Supreme Court at page 839 and 840, subsequent event can be considered by amendment if there is hearing upon the impact of the rights of the parties. In Mohan v. Jayaprakash (2013 (2) KLT 260) it was a case for amendment by adding a additional party to the proceedings pending the matter. After analyzing the case law it was held that S.22 or 23 of the Act does not mean that the Rent Control Court does not lacks inherent power to do substantial justice in adding parties and amending applications. In Krishna Iyer v. Abdul Rasheed (2015 (1) KLT 511) it was held that S.23 of the Act does not bar the Rent Control Court to exercise any other power which the Civil Court exercises under C.P.C. provided it does not offend the Act and Rules.

It can be seen that S.23(1)(j) of the BRC Act has been interpreted in a hyper technical way in the present case. The basic principles of judicial system under jurisprudence is for rendering substantial justice. This subsequential justice can be done through the channels of truth. There are series of procedures adopted in an enactment to find out truth. The procedures are interrogatories, production of documents, examination of parties etc. The Authority on this matter is cited in Maria Margarida Sequeria Fernandes v. Erasmo Jack de Sequeria (2012 (2) KLT SN 46 (C.No.47) SC = AIR 2012 SC 1727). Truth must be the foundation of Justice. Judges should not sit as mere umpire during trial, but play active role to find out, truth. This value of truth for administration of justice has been discussed at paras 31 to 49 of this judgment. This matter has been re­iterated in another judgment in Shanmugam v. Ariya Kshatriay Rajakula Vamsathu Madalaya Nandhavana Paripalanai Sangam (AIR 2012 SC 2010). The journey of a Judge is to discover the truth. Every trial is a voyage of discovery in which truth is the quest. Paras 24 to 29 deal with truth including English, American and Israel decisions.

S.23 of the Act deals with procedure including amendment of defect or error in orders or proceedings. In this case the tenant was alleged to have obtained possession of another building entiling the landlord for eviction of the tenanted building. The word proceedings mentioned in this section has not been defined.  Applying the principle in Hydon’s case remedy is to be advanced to find out the truth for the administration of justice. As per the ruling in 1988 KLJ 55 interpretation is possible one that is reasonable on common sense.

We Lawyers are arguing our cases with the support of authorities. I have got a doubt as to the interpretation of S.23(1)(j) of the Act in view of this Ruling of their Lordships as to whether it is a pragmatic approach or pedantic approach with the goal to find out the truth for the ends of justice.

Using Sword, Sans Notification, No Offence?

(By Abdul Khader Kunju S., Asst. Public Prosecutor, Cherthala)

The background of the issue

The conflicting decisions of two co-ordinate Benches of the Hon’ble High Court of Kerala creating doubts regarding the proper application of the Arms Act, 1959 (the Act) in Kerala. First one is that held in Azzi v. State of Kerala(2013 (4) KLT 439) and the other one is in Jinu v. State of Kerala(2017 (4) KLT 895). Both by Single Benches. In the former one the Court held as follows:-

“I am of the opinion that though the accused has not inflicted injuries with arm on any person, the act of threatening or intimidating or alarming another person by showing any arm or brandishing a knife or sword or any arm of such description and design with an intend to cause fear of death in the mind of another person or alarming him would come under the expression ‘use’ of arm, constituting the offence under Section 5(1) r/w. Section 27 of the Arms Act. Arms, particularly, in the description or design of knife or sword may have several usages. But, when the accused threatened and caused fear of death in the mind of passengers by the act of brandishing the sword in his hand and shouting that he would stab each of them to death it can be held that he used the sword in violation of Section 5 of the Arms Act and thereby committed the offence there under.”

In the latter case the Court held that:-

“Thus, on reading of Section 5 along with Section 4 of the Arms Act, it can be seen that Section 5 will not be applicable in cases of arms coming under the purview of Section 4 of the Arms Act for which licence is not required. As long as the area wherein the sword used is not a notified area, an offence under Section 27 will not lie.”

In the first case there was no contention that offence under Section 27(1) of the Act would not form if the arms other than a firearm or ammunition is used without licence in a non-notified area, but in the second case the main dispute was that unless the place where the use of arm was held is a notified area there will be no such offence. In both the cases similar acts were done by the accused and both the places are somewhere in and around Kochi. And there is no dispute that the places are not notified areas.

Though apparently the considerations were not exactly the same, both the decisions run around the question whether licence is required to use the arms other than a firearm or ammunition in a non-notified area.

Objects of the Arms Act, 1959

The Arms Act, 1959 came into being on 1.10.1962 by repealing the Indian Arms Act, 1878. The Arms Rules 1962 also came into effect. The Act mainly focuses on regulating the possession, availability and the use of firearms, ammunition and arms other than firearms and ammunition. As per the 1878 Act almost all the types of weapons were included in the definition of arms. As expressed in the object and reasons of the Act, 1959, the 1878 Act was intended to disarm the entire nation, but it was found that, in certain situations, it is necessary to permit the law abiding citizens to have in possession and use firearms. Hence the Act came into effect. The object and reasons of the present Act intended to exclude knives, spears, bows and arrows etc., from the definition.  

Possession not prohibited of certain arms

The possession and acquisition of firearms and ammunition are regulated by Section 3of the Act. According to which no one can have the possession of such arms without licence. Primarily the possession of arms other than firearms and ammunition require no licence.  But in case of special situation prevailing in any area, if the Central Government is of opinion that arms other than firearms are also be regulated, that Government can issue a notification under Section 4 of the Act. Thereupon acquisition, possession and carrying of arms of such class or description also are offences, unless the person, who acquires or possesses holds licence. Section 25 (1-B) (b) penalizes the possession of arms of such description in the notified area.       

Let’s, now go though the ambit of notification under Section 4 of the Act, first.

“4. Licence for acquisition and possession of arms of specified description in certain cases - If the Central Government is of opinion that having regard to the circumstances prevailing in any area it is necessary or expedient in the public interest that the acquisition, possession or carrying of arms other than firearms should also be regulated, it may, by notification in the Official Gazette, direct that this section shall apply to the area specified in the notification and thereupon no person shall acquire, have in his possession or carry in that area arms of such class or description as may be specified in that notification unless he holds in this behalf a licence issued in accordance with the provisions of this Act and the rules made there under.”

Rule 4 of the Arms Rules, 2016, explicitly provides that for the possession etc. of arms other than firearms and ammunition no licence is required in a non-notified area, which says as follows:-

“4. Licence for arms other than firearms and applicability of Section 4.─
(1) Unless the Central or the State Government by notification in the Official Gazette so directs, no licence shall be required for the manufacture, sale, possession for sale or test, of arms of Category V in Schedule I except in the areas notified under Section 4.

(2) In any area specified in the notification issued by the Central Government under Section 4 of the Act, licence for acquisition, possession or carrying in that area of arms of such class or description as may be specified in that notification may also be granted or renewed as provided in Schedule II, subject to such conditions as may be specified in these rules, that Schedule and in the licence.”

Notification in the State of Kerala

No notification is issued under Section 4 of the Arms Act 1959 so far in Kerala, whereas the notification issued by the then Madras Government under Section 17 of the Act of 1878 vide Notification No.222 in respect of the then Malabar District is still in effect in areas covered under the then Malabar District. By explaining the provisions of Section 46 of the Act of 1959 and Section 24 of the General Clauses Act, the High Court of Kerala in Jithu v. The State of Kerala(2014 (3) KLT 243) has settled this position.

Useof arms of every kind in any area is offence

What is obvious from Section 4 of the Act is that, if the Central Government makes a notification in terms of that section the acquisition, possession or carrying of arms other than firearms will also be regulated. Notification has nothing to do with the use of such arms. Use of arms is regulated by Section 27 r/w Section 5 of the Act. The language in Section 4 is clearly comprehensible.

Decision in Jinu’s case

Juxtaposing Section 4 with Section 5 of the Act, the Court in Jinu’scase (supra) observed that in order to attract Section 5 of the Act arms other than fire arms it should be “such class or description as may be prescribed” and therefore, held that as long as the area wherein the sword used is not a notified area, an offence under Section 27 will not lie. In order to understand the nuances of the problem let’s go through the Section 5 of the Act. Punishment under Section 27 of the Act is provided for the contravention of what is stipulated in Section 5 thereof.

“5. “Licence for manufacture, sale, etc., of arms and ammunition —(1) No person shall—

(a) use, manufacture, sell, transfer, convert, repair, test or prove, or

(b) expose or offer for sale or transfer or have in his possession for sale, transfer, conversion, repair, test or proof,

any firearm or any other arms of such class or description as may be prescribedor any ammunition, unless he holds in this behalf a licence issued in accordance with the provisions of this behalf a licence issued in accordance with the provisions of this Act and the rules made there under:

****

****”                                                                            (emphasis added)

And the relevant part of Section 27 reads as follows:-

“27. Punishment for possessing arms, etc.,—

  (1) Whoever uses any arms or ammunition in contravention of Section 5 shall be punishable with imprisonment for a term which shall not be less than three years but which may extend to seven years and shall also be liable to fine.

****

****”

Sword, an arm of prescribed description

One and only hypothesis deriving out of the above provisions is that the use, among other things,of arms of such class or description as may be prescribed, in any area, is offence. Next is to see whether the ‘sword’ is an arm of such class or description as ‘prescribed’. The word “prescribed” is defined under Section 2(g) of the Act to mean as prescribed by rules made under this Act. A schedule is attached to the Arms Rules, 2016 (previously the Arms Rules, 1962) made under the Act.

This aspect is more specifically expressed under Rule 2 of the 2016 Rules, which is as follows:-

“2. Classification of arms and ammunition.─ For the purposes of the Act and these rules, arms and ammunition shall be of the categories specified in columns (2) and (3) respectively of Schedule I and references to any category of arms or ammunition in these rules shall be construed accordingly.”

Sword is one among the categories specified therein. Hence it can be seen that sword is a prescribed arm. In the light of the above, it is apparent that prescription of certain class or description of any arm in addition to the inclusion of such arm in the Schedule is not necessary. Sword being an item included in the Schedule its use is an offence under Section 27(1) of the Act, even in a non-notified area.

Jinu’sCase, a wrong proposition

 Since the sword, being a prescribed arm within the meaning of Section 5 of the Act, its use is an offence under section 27(1) of the Act, irrespective of the fact whether the area is notified or not. In Azzi’scase (supra) it has held that brandishing a sword is using it.  Hence, it seems that, the reasoning in Jinu’scase holds no water and the same needs to be corrected.  

Conclusion

As the law is uncertain at times it is the duty of the Judges to expound it. Respecting the function of Judges, Lord Denning, in the preface to his book ‘The Changing Law’, says:-

“The truth is that the law is often uncertain and it is continually being changed, or perhaps I should say developed, by the Judges. In theory the Judges do not make law. They only expound it. But as no one knows what the law is until the Judges expound it, it follows what they make it.”   

The controversies on the application of law of arms have been the concern of law enforcing agencies since long. As the decisions referred to supra reflect incongruous propositions the lower courts and law enforcing agencies would be put to untold uncertainty. To say less, the judgment in Jinu’scase (supra) becomes another decision to be corrected by the appropriate forum of the Court.

fhfghf

Doubts on Doubts

(By Girish Panju M.S., Deputy Director of Prosecution, Kottayam)

“The Judge, even when he is free, is still is not wholly free. He is not to innovate at pleasure. He is not a knight errant roaming at will in pursuit of his own ideal of beauty or goodness. He is to draw inspiration from consecrated principles. He is not to yield to spasmodic sentiment to vague and unregulated benevolence. He is to exercise a discretion informed by tradition, methodized by analogy, disciplined by system and subordinated to the primordial necessity of order in the social life”(Benjamin Cardozo).

Criminal trial is meant for doing justice to the accused, victim and the society at large so that law and order is maintained (Ambika v. State Delhi Admn.(2000 SCC (Crl.) 522). The paramount consideration of a criminal trial is to render justice and to convict the guilty and protect the innocent. For that the hands of the court cannot be tied up with the fetters of technical procedures so as to prevent them from arriving at the truth. Criminal trial is not like a fairy tale wherein one is free to give flight to one’s imagination and fantasy. It is too panic to say that now a days unmerited acquittals become general, and they tend to lead a cynical disregard of the law. Miscarriage of the justice arises from the acquittal of the guilty not less than from the conviction of an innocent. See Gangadhar Behra v. State of Orissa(2003 Cri.L.J. 41 (SC)) and State of U.P. v. Anil Singh(AIR 1988 SC 1998). It is not judicial heroism to blindly follow the repeated saying that let a hundred guilty men may be acquitted, but let not one innocent be punished. As rightly observed by our Apex Court in Jayal Sahu v. State of Orissa(1994 Cri.L.J. 2254). “An exaggerated devotion to benefit of doubt is a disservice to the society”. Acquittals on the grounds of irrelevant contradictions, irrelevant omissions and due to high technicalities are not a welcome trend.

Each trial has to be conducted within the four corners confined by the Evidence Act. “Court must endeavour to find the truth. There would be failure of justice not only by an unjust conviction but also by the acquittal of the guilty for unjustified failure to produce reliable evidence. Of course the rights of the accused have to be kept in mind and safeguarded,but they should not be over emphasized to the extent of forgetting that the victim also have rights.”See State of Maharashtra v. Dr.Praful B.Desai(2003 (2) KLT SN 35 (C.No.45) SC =2003 Cri. L.J. 2033 (SC).

Section 5 of the Indian Evidence Act stipulates that evidence may be given of fact in issue and relevant fact. Hence we can safely arrive at the conclusion that courts are concerned only with two types of facts and they are (1) fact in issue and (2) relevant fact. In a criminal prosecution the golden principle of jurisprudence is the immunity available to the accused i.e., the presumption of innocence and except in rare occasions the burden of proof is always on the part of the prosecution. As far as a criminal litigation is concerned the fact in issue means “Those facts that are necessary to be proved or disproved to establish the charge against an accused or to establish a defense. A fact is relevant to a fact in issue when the former fact is connected with the later fact in a particular manner or in anyone of the ways referred to in the provisions in Sec.5 to 55 of the Indian Evidence Act.

Fact in issue is the principal matter in dispute and relevant facts are facts which directly or by inference proves, disproves the fact in issue. The principal fact to be proved is known as “Factum probandum”and the evidentiary facts which follows the principal fact is known as “Factum probans”. Section 3 of the Indian Evidence says about the yardstick to be applied for the evaluation of evidence. It stipulates that the supposition of a prudent man is the standard to evaluate whether the material before the court can reasonably be acted to conclude whether a fact exists or not. It is pertinent to note that the legislature in its wisdom includes the words ordinary prudent man and not a juristic or intellectual man.

There are three features of evidences. They are

1.        Relevancy

2.        Admissibility

3.        Probative value

If a fact is relevant and admissible it is counted in evidence. But if a fact is admissible in evidence, but not relevant it cannot be admitted in evidence. After the admission in evidence the court will consider the probative value of evidence. Thus it can be seen that the court has to consider the admissibility first and then its relevancy and finally the probative value. The communication made by a spouse during marriage or professional communication between the counsel and his clients may be relevant in some cases. But it is not admissible and hence cannot admit in evidence. The questions put by the defense to the prosecution witnesses in cross examination only for the purpose of testing the veracity or to impeach the credibility is of nor relevance in most cases. But sorry to say that it is admissible in evidences unless and until it became indecent, scandalous or intended to annoy or insult the witnesses. Evidence is the medium of proof. It is the instrument by means of which fact in issue or relevant facts are brought before court. As already stated all admissible fact are not relevant. S.3 further states that a fact can be proved, disproved and not proved. In most of the acquitted cases the prosecution neither proves nor the defense disproves the fact in issue to the satisfaction of the court. Therefore the case will come under not proved beyond reasonable doubt and the benefit of doubt will be given to the accused. In this juncture it is significant to note what is benefit of doubt.

In the State of Haryana v. Bhagirathreported in (1999 (2) KLT SN 69 (C.No.74) SC) our Apex Court held the view that it is not a legal dosage to be administered at every segment of the evidence, but an advantage to be afforded to the accused at the final end. Unfortunately a misconception is being prevailed in the legal fraternity with respect to evaluation of the evidence and benefit of doubt. In Bhogam Bhai v. State of Gujaratour Hon’ble Supreme Court has got benevolent opportunity to discuss about the guidelines for evaluating the evidence. Apex Court cautioned the trial courts that over much importance cannot be attached to minor discrepancies and it cannot be benefited as reasonable doubts because

            1.         Witnesses cannot be expected to have photographic memory. Witness is not as videotape is played.

            2.         During the crime the witnesses will be overtaken by events. He would not have anticipated the occurrence which so often has an element of surprise.

            3.         Power of observation differs from person to person. What one may notice, the other may not.

            4.         People cannot accurately recall conversations and reproduce the same words used by them or heard by them.

            5.         In regard to the exact time or the time of duration of an occurrence they may make statement by guess. The sense differs from person to person.

            6.         They may not be able to recall the sequence of events. Witness is liable to get confused or mixed up when interrogated later.

         7.         A witness though wholly truthful is liable to be overawed by the unfamiliar court room and the piercing cross examination made by the counsel. Usually they became perplexed and get confused.

This does not mean that the role of test of cross examination for determining the veracity is to be minimized. As rightly observed by our Hon’ble Supreme Court in State of Himachal Pradesh v. Lakhraj((2000) 1 SCC 247) that the material discrepancies are those which are not normal and expected from a normal person. When a witness is subjected to a lengthy and attacking cross examination there is always a possibility of witness committing mistakes which can be termed as omissions, improvements and contradictions. Therefore these infirmities will have to be appreciated in the background of ground realities, which make the witness confused because of the filibustering tactics of the defence counsel. See Jai Shee Yadav v. State of U.P.(2005 (1) KLT SN 5 (C.No.7) SC). Always it is to be borne in mind that practically cross examination is a battle between a well equipped legal practitioner and an ignorant litigant who suffered a lot during the occurrence and continuing the trauma during the investigation and even in the trial. Hence the cardinal question is whether the inconsistencies will touch the fabric of the prosecution case? If it is so definitely it is fatal to the prosecution.

The wrong conceptions among the legal community that 161 statements are the pillars of the prosecution cases is the most panic thing. It is funny to say that they consider it as a holly cow or as sacred Bible. Giving undue importance to the 161 statement prepared by a police officer at his whims and fancies at the cost of the poor and ignorant victims is the most pathetic thing. 161 statements are purely the answers given to the question put by the investigating officers at the time of investigation. They are the answers which is relevant in the eye of a police officer. But on examination of the witness before the court either by a prosecutor or by the defence lawyer the witness will be compelled to answer more aspects on the question put to them. Unfortunately most of our friends think it as a serious aspect which diminishes the scope of the prosecution case. (See AIR 2000 SC 1833).

The legendary Indian Jurist of all time Justice V.R.Krishna Iyer while pronouncing judgement in Inder Singh & Anr. v. Delhi Administrationreported in (AIR 1978 SC 1091) held as follows.

“Credibility of testimony depends considerably on a judicial evaluation of the totality and not an isolated scrutiny. If a case is proved too perfectly, it would be urged that it is artificial. If a case has some flaws it is inevitable because human beings are prone to err. Proof beyond reasonable doubt is a guideline and not a fetish. A guilty man cannot get away with it because truth suffers from some infirmity when projected through a human process. Judicial quest for perfect truth often accounts for police presentation of foolproof convocation. We must be realistic.”

As laid down in Dharmarajan v. State of Keralareported in 2014 (2) KLT SN 62 (C.No.81) = 2014 Cri.L.J. 3162), “Creating doubts for the purpose of doubt is not a reasonable doubt. In this regard it is worth mentioning the dictum laid down by the Hon’ble Apex Court in Yogish Singh v. Mahabeer Singh & Ors.(AIR 2016 SC 5160) that it is the cardinal principle of criminal jurisprudence that guilt of the accused must be proved beyond all reasonable doubts and it is worth to reproduce the observation made by Justice Venkatachaliah in State of U.P. v. Krishna Gopal & Anr.(1988 (2) KLT SN 46 (C.No.62) SC = (1988) 4 SCC 302) that “Doubts would be called reasonable if they are free from zest for abstract speculation. Law cannot afford any favouritism other than truth. To constitute reasonable doubt it must be free from over emotional response. Doubts must be actual and substantial doubts as to the guilt of accused arising from the evidence, or from the lack of it, as opposed to mere vague apprehensions. A reasonable doubt is not an imaginary, trivial or a merely possible doubt, but a fair doubt based upon the reason and commonsense. It must grow out of the evidence in the case.” Justice further observed that “The concept of probability and its degree cannot be obviously be expressed in terms of units to be mathematically enumerated as to how many of such unit constitute proof beyond reasonable doubts. There is an unmistakable subjective element in the evaluation of degree of probability and question of proof. The protection given by the criminal process to the accused is not to be eroded, at the same time uninformed legitimization of trivialities would make a mockery of administration of criminal justice”. The above said words of the Supreme Court apparently show its genuine anxiety about the misconceptions in the field of appreciation of evidence.

Some Thoughts on Simplification of Court Procedures

(By Joseph Chirayath, Advocate, Thrissur)

India can be proud of the fact that we have elected governments under a democratic constitution we gave to ourselves. The Constitution of India is the supreme law of the country, the fountain source of law in India.Judiciary is the branch of government that is endowed with the authority to interpret and apply the law, adjudicate legal disputes and otherwise administer justice. Judicial system in India is one of the oldest legal systems in the world today. It is part of the inheritance India received from the British after two centuries of their colonial rule. The Supreme Court and the various high courts have the power of judicial review and have to interfere to protect the fundamental rights of the citizens, decide appeals and involve in special jurisdictions. They have got original, writ and appellate jurisdictions. All other courts including the district courts come under the category of subordinate courts. They are spread in all districts in the length and breadth of the country. It is with the said courts the people are attached with the most as complainant or accused, plaintiff or defendant, surety or witness etc. The subordinate courts are the supreme judiciary for the majority of the people in India. The system prevailing has done well in the past. But today about seven decades after independence are our courts in tune with the times? We have seen advancement in other sectors like roads, railways, telecommunication, education, health etc; but not in the lower courts. The introduction of alternate dispute redressal system may be in the right direction for bringing speedy justice. But what about the existing court system? I think degenerated practices have to be discontinued and some procedures and practices have to be simplified for imparting speedy and fair justice. I am giving below some points which if implemented will improve the system to some extent.

1. When judgement is pronounced a party has to wait for months to get a certified copy. An appeal or execution petition cannot be filed till the copy is received. As and when judgement is pronounced if copies of it are served to the concerned parties/counsel free of cost at the time of pronouncement will go a long way to ameliorate the hardship suffered by parties. Drafting of decree should be dispensed with to avoid delay. The decree holder can be allowed to include the costs etc. in the execution petition which the court can scrutinize later.

2. Execution shall follow the same suit proceeding. If the decree is to be executed in the same court no separate notice to the judgement debtors is necessary if they were not ex parteon the original side.

3. Process fee should be abolished. So also court fee for interlocutory applications. Work load of advocate clerks and court staff can thereby be reduced. The party approaching the court is paying a hefty court fee now. So it is not fair to ask him to pay for these charges.

4. In recent years courts are not issuing cheques and refund orders to advocates. They are not even handing over cheques and refund orders issued in favour of parties to advocates. The reason stated is that some advocate somewhere has committed foul play. But that is a one in a million case and  the remedy is not this. Stringent action has to be taken by the court against the delinquent under the criminal law and his practice itself can be terminated by the Bar Council. It is a pitiable sight to see very old, sick and lame people dragged to MACT verandas.  The alternative is direct transfer to the bank account of the recipients. Until that system is introduced the best way is to reinstate the practice of issuing cheques in the names of parties and handing them to the concerned advocate/s.

5. When calling cases the name of the advocate should also be mentioned. Mistakes happen when calling case numbers alone or when the numbers are not properly heard and comprehended. Sometimes suits are dismissed or defendants called ex parteor in criminal cases accused are ordered to be arrested or acquitted. It is true some bench clerks do mention the name of the advocate. But many do not. There should be general guideline.

6. Most of the court halls are congested and parties are waiting in the verandas and court yards. In congested court halls public address system should be introduced when calling cases with loud speakers put outside so that the parties can hear when their cases are called. We need larger court halls, more staff and more photostat machines. After all courts generate a good amount of revenue to the government by way of court fee and fine. Justice is not free! Many leaders have been lamenting of the fact that the justice delivery system has no speed. The general public also shares with the view. But the Kerala High Court has pitied on the “frugal budgetary support to the judicial system” (2016 (1) KLT 838). The government must understand that administration of justice is a paramount responsibility of the government.

7. For some time some courts have been publishing list of cases to be taken up on that day. But it seems it is discontinued now. It is good that it is restored. Also, steps should be taken to publish it in the court website on the previous day.

8. Often it is seen that when advocates, parties, witnesses come to court ‘no sitting’ sticker is pasted on the door of the court. There is no necessity to say that it causes much inconvenience to all. In majority of cases the presiding officers can co-operate by intimating absence beforehand which they often do not.

9. The presiding officers should be punctual. Commencement of the work should be at the appointed time both in the morning and in the afternoon sessions. If there is a likely delay in the starting of the work in the afternoon that should be informed in the open court before the court recess at noon. Some judges are doing fine well. It is necessary that there is a general guideline.

10. There is a trend that many new cases are posted to distant dates. It is not fair to drag such cases to far off dates. The person who has filed the suit must have the satisfaction that his adversary knows as early as possible that a suit has been filed against him. After the steps are completed they can be posted in the special list on a convenient date.

11. Receipt system should be introduced in courts. When a document is filed or when a payment is made there should be issued a receipt. Sometimes quarrels arise in courts about filing of vakalat, written statement etc. Along with the respective documents a receipt filled up by the concerned advocate should be got sealed by the court office.

12. When an ex partestay is granted by an appellate court, the appellant shall immediately inform the fact to the respondent by registerd post and file the acknowledgement in court.

13. When court sale is conducted one fourth of the purchase money has to be deposited at the time of sale and the balance and the value of stamp paper have to be deposited within 15 days from the date of sale. It will be better that balance and the value of stamp paper are insisted within 15 days of confirmation of sale but before issuance of sale certificate.

14. When warrants of arrest or attachment of movables are ordered the amins are deputed in most cases on the penultimate date of return of process. Unscrupulous judgement debtors just abscond temporarily on that day escaping the clutches of law thereby defeating the decree holders. That should change. “Every warrant for the arrest of a judgement debtor shall direct the officer entrusted with its execution to bring him before the Court with all convenient speed,...” as mandated by the C.P.C.

Recently, there is a computerisation drive in the courts. That will have good results if implemented responsibly. Let us hope the government wakes up to the reality and in consultation with the High Court try to develop a reformed vibrant subordinate judiciary.