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?

Muslim Women (Protection of Rights on Divorce) Act 1986 ~ Whether a Money Minting Machinery?

(By Samji David, Advocate, Trivandrum)

The historic decision of the Supreme Court in the Shahbano Case (AIR 1985 SC 945) led the Central Government to enact the Muslim Women (Protection of Rights on Divorce) Act, 1986. The purpose was not to deprive a divorced woman from claiming maintenance, but to entitle her for the same. Section 3 of the Act allows a divorced woman to realise reasonable and fair provision and maintenance during the iddat period and mahr or dower from her husband.

The definition of divorced woman according to Section 2(a) is "a Muslim woman who was married according to Muslim Law, and has been divorced by, or has obtained divorce from her husband in accordance with Muslim Law". This definition recognises divorce at the instance of the wife and hence it should no longer a unilateral act. That is, to claim the benefit of Section 3, it is immaterial how the divorce came into being.

Section 125of the Criminal Procedure Code, 1973, empowers a divorced wife to claim maintenance till her re-marriage or the death of either parties. Moreover the capacity of the wife to maintain herself would be a material factor in determining that claim. But under the present Act, a Muslim woman would be entitled to get a lumpsum amount as reasonable and fair provision for maintenance. There is no question of regular payments as being done in Section 125 of the Cr. P.C. The reason is that under Muslim Law, marriage is considered as a contract and the dissolution of it would make the parties strangers.. Of course re-marriage would disentitle a divorced woman from claiming the maintenance but it is noteworthy that she may be able to get her claim immediately since Section 3(3) of the Act prescribes a time limit for disposing such applications. Any how, she may be at liberty to arrange another marriage after receiving the maintenance amount in lump. This maintenance can be claimed by any divorced woman irrespective of her affluence. In Aharnmed's case (1990 (1) KLT 172) an unsuccessful attempt was made to prevent an affluent woman from claiming maintenance from her former husband. The court observed that even millionaire wife who lives in luxury and affluence is entitled to claim the benefit of Section 3. The object of the provision is to equip the woman, whoever she may be or her position may be, with a legal right. But to a cunning and ambitious woman, the section may be a way to richness, because the Act neither restrict re-marriage nor limit the number of times a woman can claim maintenance. A woman may, after receiving fair maintenance amount in lump, marry another man with the same motive of claiming maintenance. Is it a lacuna in the Act or machinery for minting money?