Legal Language: A Lingustic Perspective

(K.G. Rajamohan, Librarian, High Court of Kerala)

Introduction

Language is the chief means of communication and is the chief medium of thought. It is perhaps the greatest of man's inventions. Language is the expression of human thinking and is subject to continuous change. It has sometimes been considered as a coding system for ideas. It is usually used for denoting the typical human faculty of interpersonal communication by means of written or spoken symbols which acquire meaning according to usage. Language is mainly a means to bring others to think, feel and act as we desire, it is a medium for inter psychological and social activity. Language is vague, ambiguous, changeable, idiomatic and complex. Artificial languages have been used as alternatives to natural language. Example: Shorthand.

2. Legal Language

Legal language is the professional or occupational language. Most of the terms are technical in nature. These terms are not common in natural language. Legal language is used for expressing most accurately the meaning of the terms used in judicial circles.

The technical terms used in law or similar such disciplines are distinct from ordinary language. The legal language can be had from the legal words (Vocabulary), phrases, maxims in common usage, in judicial proceedings, pronouncement, documentary, commercial transactions, administrative and statutory warning etc. The very existence of the legal terminology is documentary.

The basic need of legal language arises out of the communicative and interpretative capacity of words itself. Every word in law should be interpreted in its own meaning. It is quite impossible to find out exactly similar and corresponding words with regard to legal terms in other languages.

3. Legal vocabulary

A legal vocabulary is a set of expressions which have a legal meaning. This set can be further divided into two subsets, one of which comprises exclusively legal expressions, for example, writ, decree, injunction, appeal etc., and other set used both in common language (literal language) and in legal language, such as justice, custody, witness, divorce, order etc.

The legal documents comprise of also neutral expressions, i.e., expressions which are used in legal language without having a specific legal meaning, such as the norms, i.e., house, water, tree etc.

Legal vocabulary differs from common vocabulary of a language both quantitatively and qualitatively. A specific qualitative feature of legal vocabulary is the fact that its terms are more accurate than the expressions of the common language.

Legal vocabulary achieves this results by the following means:

a. It uses a high number of technical terms of specific, clear-cut meaning such as Bail, writ, oath, etc.

b. It uses some specific combinations of words of clear-cut meaning for example, unless otherwise stated, aid and advice, not withstanding, locus stand.

c. It uses legal definitions, for example:--Article 16, Schedule II.

d. By avoiding the use of synonyms, homonyms, etc.

4. Documentary Language Vocabulary

The development of jurisprudence in the past decade has given rise to numerous documentary languages. The documentary legal language and its vocabulary are derived from the natural legal language and its vocabulary. It is possible for transformation of certain natural legal vocabulary into vocabulary of the documentary legal language.

The construction of a documentary legal vocabulary brings about a number of problems.

a. It is due to the fact that the documentary language, as an artificial language is selective, i.e., documentary legal vocabulary does not include all the words of the natural legal language.

b. It is a strictly standarised language which eliminates any ambiguity of meaning of the expressions used.

There is a possibility for transformation of certain natural legal vocabulary of the documentary legal language.

Generally speaking, the words in law have different meanings, viz. Intended meaning, i.e., law addresses only the intended meaning. Secondly, ordinary meaning, i.e., The reasonable meaning which the plaintiff probably attributes. Third one is comprehended meaning, i.e., meaning attributed to language by the hearer or reader. In general, this is the kind of meaning that is important in law.

Usually words have ordinary meaning and assigned meaning. The ordinary meaning is the commonly accepted meaning, it may be with respect to a particular group or community whereas in the matter of assigned meaning a particular person using a word may assign it a special meaning.

5. Distinction between legal and common language

There is a clear-cut distinction between legal and common language. It is mainly on homonyms and synonyms. In common language a word has several homonyms whereas in legal language it has only fewer meaning or homonyms at all. The words such as Bar & Bench, trial etc. have fewer meanings in legal language than the common language.

6. Relation between legal and common language

a. There are some whose common and legal meaning are identical i.e., the meaning of legal language fully agrees with the meaning of the common language.

Example:--Client, divorce, heirs, witness, etc

b. The tendency of legal language to restrain and specify more accurately the meaning of the expressions of common language.

Example:--Consideration, litigation, etc

c. The shifting of meaning of a word in the common language when it is used in the legal language.

7. Acquisition of legal vocabulary

The legal vocabulary is enriched by means of the following:

a. Borrowing:-

Borrowing of words or lexical items from one language to the other. In English language a lot of words and phrases are borrowed from Latin, Arabic, Greek etc. The Latin maxims are very generously used in English law. '

b. Coinage:

This is the other mode by combination of more than one words. Example: Aid and Advice, Law and Order.

c. Other type of acquisition of legal vocabulary are by adoption and adaptation.

8. Characteristic of Legal Language:

a. Co-ordinate Construction:

The peculiar feature of legal language is that it is full of co-ordinate constructions.

b. Technical terms/Jargons

The asset of legal language is the abundance of technical terms.

Example: Writ, suit, etc.

c. Use of Capital letters

In order to give specific meaning to the words, Capital letters are used at initial positions.

Example:- Article, Act, Schedule, Section etc.

d. Legal maxims

The legal maxims are yet another special feature of legal language.

Example:--Actio quaelibet it sua via                         (An action keeps its course)

e. Usages:

Certain addressing terms are used only in judicial circles, which is not so common in ordinary usage in common language.

Example: Your Lordship, Your Honour, The Honourable.

f. Definite meaning:

The words used in legal language has very definite and concrete meanings. Alternative meanings are very rare.

g. Ambiguity:

Less ambiguity is the Characteristic of legal language.

h. Punctuation marks:

Punctuation marks play an important role in legal language and the misplace ment of punctuations often creates problems.

9. Scope for machine translation

The legal language is full of technical terms so that it is easy for machine translation. In legal language synonyms and homonyms are very rarely used. Preparation of legal dictionary is also easy.

10. Conclusion

For lawyers language has a special importance because it is the greatest instrument of social control. Curiously enough, lawyers regard law as the sole means of social control, forgetting that law is only one department of language.

From the professional point of view, words are of central importance for the lawyer, because language is the tools of their trade. Words occupy the lawyers attention in the drafting and interpretation of law. Words are said to be the raw material of the legal profession, and the assiduous study of words, and the proper use of words have always been part of the lawyer's most desirable accomplishments" [1]. "The legal profession is defined as the vocation based on expertness in the law and its application" [2]

The ambiguity of words gives troubles to lawyers not only in manipulating their own technical language but also in the construction of non-legal language in documents. Lawyers are aware of ambiguity so they preserve a moderately precise technical language. The legal language is widely enriched by contributions from Latin, Arabic, Greek etc. Etymological conceptions, semantic conversions, borrowing, translations, custom and usages all are the contributive factors to the legal language.

An analysis of legal language should be intended to bring out the peculiarities, characteristic features, its practice and practicability exercised by lawyers, jurists, law students, scholars, professionals and such other personnel who are invariably connected with the subject.

References

1. BLOM-COOPER, Louis; The Law As Literature: An Anthology of great writing in and about the law, London: Bodley, 1961.

2. Encyclopedia Britannica: Macropaedia, Vol.10 p.779; Chicago, University of Chicago, 1979.

3. MARTINO, AA Ed: Deontic Logic Computational Linguistics and Legal Information Systems, Vol.11 Chapter: Legal Thesauri, by Victor Knapp, pp. 276-81.

4. NAYEEM, M.A; Library Service in Legal Profession, Herald of Library Science, Vol.24 (4), 1985, pp. 308-12.

5. Rajamohan, K.G.: Linguistic Analysis of Legal Language, 1989 (1) KLT Journal part p.13 & 14.

6. WILLIAMS, Glanville; Learning the Law, 11th ed.

________________________________________________________________________________

Footnotes:

1. Lord Birkett

2. Encyclopedia Britannica, Vol.10, p.779.

A Woeful Difference

(Varghese T. Abraham, Subordinate Judge, Ernakulam)

Home I returned on that day

Sorry and soil weather was on that day

Heavy was the work and fatigued the body

Hurried up blood pressure and worried was mind

Sat on the chair and relaxed for seconds

Recalled the mandate: "Clear up the dues"

Opened I the box - the peon brought

Untied the file - a 'Jambuvan Docket'.

Appeared in the scene - my better half in a hurry

Piercing was the look and showered her queries

"Are you a restless creature in this world?

Round the clock you work and speaks never a word

How handsome were you on that wedding day!

A promising bud in the lawyer's robs

"Industrious Junior" said your Senior

"Feather on my cap" praised my father

Took me you to joyful resorts

Purse you had with plenty of notes

Came daily to home numerous clients

Shined you in the Bar surpassing the giants

Misfortune fell - "111 fate" I say

Joined you service - despite my protest

Dissuaded my father and also the in-laws

Persuaded the hostile enemies in the Bar

Bring you home paltry amounts a mensem

How can we live in this city of commerce?

Suffered I a lot and held up my tongue

Now I say - because of our kids.

Wake you up early in the dawn

Work you till late in the dusk

Frugal comforts - this family is denied

Conjugal comforts -1 am also deprived

Talks none to me: I am Ceaser's wife

Comes none here - except your staff

o on foot our children to school

Excursion trips - their forbidden fruits

Look there! See! your neighbour - a lawyer

Fabulous income gets he a year

Medicore was he! (I heard) in the class room

Medalist nay he! but fairs in the court room

Salmond and Winfield he never cares

Denning and Cardozo are not his friends

Voluminous evidence doesn't he read

Age old doctrines never he bothers

Acquisition matters and Accident claims

Accelerate his income; also his fame

Resides he in a Building - A Babel's Tower in the town

Mints he money - like herrings spawning in the sea

Gets he time to relax with wife

Lead his children a luxurious life

Clients queue up early in the morning

Crowd of visitors daily I see.

Fashionable dress wears she with pleasure

Weekly shoppings makes she in this town

Make they cheerful trips in luxurious vehicles

Travel we in crowded omnibus with kids

"Divine is the work" often you say

Impoverished future awaits you I say

Status and salutes you get I know

Impecunious Head is a curse to the Home"

Stood I up to pacify the wooing wife

"Darling I concede: Painful is our life

Different am I from a lawyer in this land

I 'AM AN INCOME TAX PAYEE; He's not.

Proper Court Fee

(Shaji Oommen, Advocate, Ernakulam)

Kerala Court Fees and Suits Valuation Act 1959 Act 10 of 1960, Schedule I and II fixes the amount of court fees to be paid by the litigants in suits and other proceedings. Advocates of the State has had raised the grievance that the amount of court fees fixed in the Schedule is very high and made representations to the authorities of the State, so as to enable the litigants to get justice which are denied because of heavy court fees levied.

The Kerala Court Fees and Suits Valuation Act provides in its Schedule II, Article 11(r) that in a writ petition under Article 226 and 227 of the Constitution of India, the Court fees to be levied is Rs.25/-. In schedule II of the Act, Article 3(2) (c) provides that in case of an appeal under S.5 of the Kerala High Court Act 1958, the court fees to be paid is Rs.100/- against judgments of a single Judge under Article 226 and 227 of the Constitution of India.

The question as to whether the occupier or the owner of a building is liable to pay 5 years of arrears of Building tax under the Kerala Panchayat Act 1960 came up for consideration before the High Court in original Petition No.2760 of 1989. The High Court office insisted payment of court fees at Rs.25/- for 5 years and the same was levied. Against the judgment of the Single Judge in the above case Writ appeal No.828 of 1989 was preferred and High Court office returned the appeal memorandum stating that Rs.100/- paid in the writ appeal is insufficient, presumably on the view that court fees should be paid treating the appeal as 5 appeals. The writer of this Article who filed the above writ appeal returned the above appeal memorandum with the endorsement that Rs.100/- alone is liable to be paid as the appeal which arose out of a single proceedings and in support of that stand cited the decision of Supreme Court in Civil Appeals No.41 of 1962, an Orissa case, decided on 5-4-1963 reported in 1963 KLT 1063. Thereon the High Court office accepted the contention and sent up the writ appeal before the Bench without referring the question before the Bench to render a decision on the subject to enable the Law Journals to report for the guidance of the Bar. So far Kerala High Court has not rendered a decision on this question.

It is thus made clear that in writ appeals relating to Revenue Recovery proceedings initiated for recovery of arrears of Building tax for many years under the Kerala Panchayats Act and Rules the court fees to be levied is only Rs.100/- and not the multiples of such years-challenged.

Interlocutory Order v. Intermediate Order

(Thomas P. Joseph, Advocate, Kottayam)

The nature of an order framing charge against the accused has often been a point of controversy, particularly after the enactment of the Code of Criminal Procedure, 1973 (hereinafter referred to as the 'Code', for brevity). The question is whether the order is interlocutory, attracting the bar of revision under S.397(2) or it partakes, the nature of a final order. The various High Courts have expressed divergent views on it, all based on the decision, of the Supreme Court in V.C. Shukla v. State (AIR 1980 SC 962). In Jayaprakash v. State (1981 KLT 100) and Sarojini Amma v. Sarojini (1987 (2) KLT 520) the view taken by the Kerala High Court, relying on the decision of the Supreme Court referred to supra, is that such an order is purely interlocutory. But the Madhya Pradesh High Court has taken the view (1988I JR Vol.15 P.67) that the order is intermediate and the bar under S.397(2) of the Code does not apply. In Abdullakutty's case (1982 KLT 861) Chandrasekhara Menon J., doubting the view taken in 1981 KLT 100, held that an order framing charge is not interlocutory. The latest decision on the point is in N.K. Narayanan v. Vidhyadharan (1989 (2) KLT 613/1989 (2) KLI 439) where Sreedharan, J., relying on AIR 1978 SC 47 and AIR 1980 SC 962 and dissenting from 1987 (2) KLT 520, has ruled that the bar of revision under S.397(2) of the code does not apply to an order framing charge as it is not interlocutory.

The word, 'interlocutory order' has not been defined in the Code. In AIR 1978 SC 47, Untwalia, J., said that an order rejecting the plea of the accused on a point, which, when accepted, will conclude the particular proceeding, will surely be not an interlocutory order. In that decision, approval has also been given to the decision in AIR 1977 S.C. 2185. It has however to be noted that the facts involved in those cases were not similar to the one in N.K. Narayanan's case.

For a better appreciation of the points decided in AIR 1978 S.C.47, it is necessary to refer to some of the decisions referred to therein. In Kuppuswami Rao v. King (AIR 1949 FC 1) the accused was charged for certain offences, and after examination of some witnesses, he raised an objection relating to the very jurisdiction of the Court, on the ground of want of sanction from the Governor. In that decision, Lord Esher was quoted thus: "if their decision, whichever way it is given, will, if it stands, finally dispose of the matter in dispute, I think that for the purpose of these rules, it is final. On the other hand, if the decision, if given in one way, will finally dispose of the matter in dispute, but if given in the other, will allow the action to go on, then, I think, it is not final, but interlocutory".

In Parameshwari v. State (AIR 1977 SC 403), challenge was against an order under S.94 of the Code, directing a person, not party to the proceedings, to produce documents in Court. That order was held to be an intermediate order. The distinction made in that case was that if the order is against a party to the proceedings, he could always challenge it in due course if the final order goes against him, but that cannot be said of a person who is not a party to the proceedings. It was further observed that the meaning had to be considered separately in relation to the particular purpose for which is required to be interpreted and that no single test can be applied to determine whether an order is final or interlocutory. Having regard to the facts involved in that case, the order was held to be not interlocutory.

In Amar Nath and others v. State (AIR 1977 SC 2185) it was again a case of the accused challenging the order of the criminal Court, issuing process to him. It was argued that the Magistrate had issued summons in a mechanical way without applying judicial mind. Fazal Ali, J. speaking for the Division Bench held that "steps in aid of the pending proceedings", such as summoning the witnesses, adjourning the cases, etc. may amount to interlocutory orders, and that orders which are ‘matters of moment and which affect or adjudicate the rights of the accused.......cannot he said to be interlocutory orders". Applying these principles, the order issuing summons to the accused was found to be not interlocutory. It was however, on the definite finding that the order, issuing summons to the accused, did involve a decision regarding the rights of the accused.

In AIR 1978 SC 47 (Madhulimaye's case), the accused challenged the order framing charges against him, rejecting his objection concerning the very jurisdiction of the Court to take cognizance of the complaint, as according to him, there was no proper sanction from the Government as required under S.199(4) of the Code. The challenge was therefore not merely to framing of the charges, but concerning the very jurisdiction of the Court, as well.

In V.C. Shukla's case (AIR 1980 SC 962) the order involved, was that of the Special Judge, appointed under the Special Courts Act, 1979, framing charge against the accused. It was argued that the appeal is not maintainable under S.11(1) of the said Act, as the order is interlocutory. Then previous decisions in AIR 1949 FC1, AIR 1977 SC 403, AIR 1977 SC 2185 and AIR 1978 SC 47 were considered. It may be noted that in all those decisions - excepting the one in AIR 1977 SC 403 where the order related to direction to a person not party to the proceedings - challenge was to the very jurisdiction of the Court. This aspect was taken note of by Fazal Ali, J. also when he observed at P.969 of AIR 1980 SC thus: "......Before proceeding further, it may be observed that the objection taken by the appellant in the aforesaid case (in AIR 1978 SC 47) related to the root of the jurisdiction of the Sessions Judge, and if accepted would have rendered the entire proceedings void ab initio. The case before this Court was not one based on allegations of fact on which cognizance was taken by a trial court and after having found that a prima facie case was made out, a charge was framed against the accused. Even so, the ratio decided, in the aforesaid case was, in our opinion absolutely correct and we are entirely in agreement with the learned Judges constituting the Bench that the order of the Sessions Judge framing charges, in the circumstances of the case, was not merely an interlocutory order, but partook the nature of a final order........"  It has to be remembered that approval to the decision in AIR 1978 SC 47 was made in the circumstances of the case, the circumstance being that the order under attack related to the very "root of the jurisdiction" of the Court. On the argument that the order framing charge affected the person's liberty substantially, it was held by Fazal Ali. J. thus: (at page 970 of AIR 1980 SC)"..........there can be absolutely no doubt regarding the correctness of the observations made by Chandrachud, J. This decision, however, is no authority for holding that an order framing charge is not an interlocutory order.........". The argument that the order is a matter of moment and therefore it cannot be said to be interlocutory also did not find favour with the court (see P.971 of AIR 1980 SC). It was unequivocally held that "the order impugned framing charge is purely an interlocutory order as it does not terminate the proceedings but the trial goes on until it culminates in acquittal or conviction...... the other side of the picture is that if the special court refused to discharge the accused and framed charges against him, then the order would be interlocutory, because the trial would still be alive". The inescapable conclusion which emerges is that an order that does not terminate the proceedings or finally decide the right of the parties, is interlocutory.

One does not forget that the decision (in AIR 1980 SC 962) was made in relation to an order of the special Judge appointed under the Special Court's Act, 1979, or that having regard to the object of the said Act, the word, "interlocutory order" in S.11(1)of that Act, could not be given a wider meaning as that word occurring inS.397(2) of the Code, carries. But, it has also to be noted, that in either case, the order framing charge does not terminate the proceedings, but the trial goes on until it culminates in acquittal or conviction. If so, the effect of such an order, be it under the Special Courts Act or the Code can only be the same - by such order, the Magistrate only holds that there is ground to presume that the accused has committed an offence triable under this chapter......". It neither affect nor adjudicate the rights of the accused. It is worthwhile to note the view expressed by D. A Desai, J. (concurring with Fazal Ali, J. in AIR 1980 SC 962) considering Ss. 239 and 240 of the Code, that an order framing charge is "made in the course of proceeding conducted according to procedure prescribed in Chapter XIX. Without anything more, it would be an interlocutory order...". Referring to the argument that the order is a matter of moment, that it affect the right of the accused and therefore it is not interlocutory, it was thus held (atp.1005):......."......it does not make the order framing charge anything other than an interlocutory order. The order framing charge even after applying the ratio of the later decisions would not be an order other than an interlocutory order. It would be unquestionably an interlocutory order."

The ratio which emerges from the above decisions is that whether an order is interlocutory or not depends on the facts of each case, and if it does not relate to the root of the jurisdiction of the court, but is only a step in aid of the pending proceedings, it is surely an interlocutory order. Framing of charges is only a step in aid of the pending proceedings. It does not affect or adjudicate the right of the accused.

In N.K. Narayanan's case, there was no challenge to the jurisdiction of the court; the issue of summons to the accused was not under attack, and the only plea was that there was no sufficient material before the Magistrate to frame charge against the accused. The order impugned, applying the ratio of the decisions of the Supreme Court, in my humble opinion, is purely interlocutory. The view taken in 'N.K. Narayanan's case' requires reconsideration.

Rent Control Petition by or Against a Firm

(By Susheela R. Bhatt, Advocate, Ernakulam)

Is a petition by or against a firm in the firm name alone maintainable under the Rent Control Act? The question sprang up many a times before our High Court. But it appears, that the answer to the question is still beset with conflicting approaches.

In Chhotelal Pyarelal v. Shikkarchand (AIR 1984 SC 1570) the Supreme Court had held that under the CP. and Berar Letting of Houses and Rent Control Order (1949) a petition is not maintainable in the firm name since the Code of Civil Procedure does not apply to the proceedings under that Act. The ratio laid down is that the firm is merely a compendious name for the partners constituting it and it is only by virtue of the provisions of Order XXX of C.P.C. that a firm can sue and be sued in its own name.

It is important to note that Order XXX of the Code of Civil Procedure as such is not applicable to the Rent Control Court and the Appellate Authority under the Kerala Act also. Yet, it is held in Javerilal Kalyanji v. Mis. Sheth Brothers & others (1989 (2) KLT 555 : 1989 (2) KU 445) that the ratio in Chhotelal is not applicable to the proceedings under the Kerala Act because of the ambit of the definition of the word 'landlord'. In the definition of the term 'landlord' the legislature has used the expression 'person'. After taking note of the fact that the expression 'person' is not defined under the Kerala Act, the court took resort to S.2(26) of the Interpretation and General Clauses Act, 7 of 1125 to hold that the term 'landlord' must be taken to include a firm as well. Adopting and applying the same reasoning for construing the meaning and ambit of the expression 'person' used in the definition of the word 'tenant' under the Kerala Act, it is to be reasonably resolved that a petition against a firm for eviction, in the firm name is maintainable under the provisions of the Kerala Act. The ratio in Javerilal's case is based on the reasoning mentioned below:

"The Supreme Court in Chhotelal Pyarelal's case (AIR 1984 SC 1570) was not dealing with such a situation when they held thin no application for eviction could be maintained against a firm in the firm name when Order XXX did not apply lo the proceedings. The provisions of the Kerala Act noted above are clear pointer that a petition could be maintained under the Act in the firm's name". (1989 (2) KLJ 555 at page 560)

The approach and reasoning reflected in Javerilal's case was adopted and accepted by the court in Vinod Kumar v. Mohammed Rasheed (1991 (2) KLT 16 at page 17 paragraph 3). The decision in Javerilal's case is cited before the court which decided Vinod Kumar's case.

Maintainability of a petition for eviction in the firm's name under the provisions of the Kerala Act was again canvassed before a Division Bench of our High. Court in Sreenivasa Kamath v. Anantha Kamath & Sons (1992 (1) KLT 190). Contention raised on behalf of the tenant was that the landlord is a firm and eviction petition filed in the firm name is not maintainable. Chhotelal Pyarelal's case (AIR 1984 SC 1570) was cited as a precedent. The Division Bench held that the contention is tenable and consequently set aside the order of eviction.

It is unfortunate that the decision is Javerilal Kalyanji's case (1989 (2) KLT 555:1989 (2) KLJ 445; and Vinod Kumar's Case (1991 (2) KLT 16) were not brought to the notice of the Division Bench which decided Sreenivas a Kamath's case. That apart it is doubtful whether the decision in Sreenivasa Kamath's case has the effect of overruling the decisions in Javerilal Kalyanji and Vinod Kumar. While discussing the question of maintainability of the petition the court has observed:

"No serious argument was advanced by counsel for the respondent controverting the position that in the firm name a petition can (not?) be filed under the Act."

The Court, therefore, assumed that a petition for eviction in the firm name is not maintainable.

Dealing with exceptions to the Rule of stare decisis it is stated by Rupert Cross in 'Precedent in English Law' (page 144) thus:

"In some cases the court makes no pronouncement on a point with regard to which there was no argument, and yet the decision of the case as a whole assumes a decision with regard to the particular point. Such decisions are said to be'sub silentio'and they do not constitute a precedent."

The Supreme Court in M/s. Good Year India Ltd. v. State of Haryana (AIR 1990 SC 781 at 796) has said that "A decision on a question which has not been argued cannot be treated as a precedent."

Again in State of U.P. v. Synthetics And Chemicals Ltd. (1991) 4 SCC 138 at page 163). the Supreme Court has stated thus:

"Here again the English Courts and jurists have carved out an exception to the rule of precedents. It has been explained as rule of Sub silentio. 'A decision passes sub silentio, in the technical sense that has come to be attached to that phrase, when the particular point of law involved in the decision is not perceived by the court or present to its mind' (Salmond on Jurisprudence 12th Edn. page 153)."

Viewed in the light of these principles the decision of our High Court in Sreenivasa Kamath's case (1992 (1) KLT 190) on the point regarding the maintainability of the petition in the firm name, appears to be sub silentio and hence can be considered as an exception to the rule of stare decisis.

It may be that the ratio of the decision in Javerilal’s case requires reconsideration.

In Haji P. Mammu v. Abdu Rahiman Basha (l986 KLT 1250), the letting out of the building in question was in favour of the firm Messers Haji P. Mammu., One of the grounds urged to evict the tenant was the 'need of the landlord for own occupation' under S. 11 (3) of the Kerala Act. The tenant took the defence based on the 2nd proviso to S. 11 (3) of the Kerala Act. Availability of the said defence was canvassed against on the premises that the tenant is a firm and hence is not a natural person. The said contention was disposed of by the Division Bench holding that the firm name is a compendious name for all the partners of the firm and that the defence under 2nd proviso to S.ll(3) "would be applicable to the partnership". In coming to the said conclusion the Division Bench relied on the decision of the Supreme Court in M/s.Madras Bangalore Transport Company (West) v. Inder Singh & others (AIR 1986 SC 1564). In this case the contention that the old firm and the new firm were different legal entities and therefore the occupation by the new firm amounted to subletting by the old firm was repelled by the Supreme Court with the observation:

"This contention is entirely without substance. A firm unless expressly provided for the purpose of any statute which is not- the case here, is not a legal entity. The firm name is only a compendious way of describing the partners of the firm. Therefore occupation by a firm is the occupation by its partners. Here the firms have a common partner. Hence the occupation has been by one of the original tenants........."

In the light of the trend of the decisions stated above, it has to be again considered by the court whether a firm is a person for the purpose of the Kerala Act.

It may not be out of place to point out that the ratio in Chhotelal's case was pressed into service before the Supreme Court in Shah Phoolchand Lalchand v. Parvathi Bai ((1989) 1 SCC 556). The Court rejected the contention in the following words:

"In our view it is not open to Mr. Nayar to raise this contention at this stage at all. This contention is not one which would have been fatal to the eviction petition. Had this contention been raised in the trial court or even in the first appellate court, itwould have been open to the respondent to amend the eviction petition and join the partners as respondents. In the aforesaid decision in Chhotelal Pyarelal Case relied upon by Mr. Nayar, the objection to the maintainability of the petition was raised at the earliest stage and was wrongly negatived by the trial court."

Narration of the facts in Javerilal's case (vide paragraph 10 of the judgment) disclose that the objection regarding maintainability on the basis of the ratio in Chhotelal, was raised for the first time at the stage of Revision. In Vinodkumar's Case (1991 (2) KLT 16) the said contention was raised before the execution court. Whether the contention was raised, from the very beginning of the proceedings in Sreenivasa Kamath's case is not clear from the facts set out in the decision. Whatever that be it is submitted that the contention falls in the realm of procedure and as a matter of caution, is it not better to implead both the firm and its partners in a petition under the Rent Control Act?