Right to Live Repugnant to Right to Die!?

(C.K. Radhakrishnan, Advocate, Ernakulam)

If a person has got the right to choose his residence, spouse, profession and mode of living, what impedes him to end his life too? Shall it be a matter of choice, how to die and when to die? If one has got the right to retain his being what prevents him to end it too? If a Socialistic Welfare State cannot provide a person adequate humane living conditions, why shall the law retrench his right to die?

Article 21 of Indian Constitution lays down that "No person shall be deprived of his life or personal liberty, except according to the procedure established by law." Whereas S.309 of I.P.C. state "whoever attempts to commit suicide and does any act towards the commission of such offence, shall be punished with simple imprisonment for a term which may extend to one year or with fine or with both. But catena of judicial pronouncements have accentuated that the term "life" is not limited to a mere physical existence, but it means life with dignity. Decency and dignity are non-negotiable faces of human life. The very canon of Art.21 enlivens that right to live with human dignity and all the bare necessities of life like food, clothing and shelter. II protection against the arbitrary deprivation of life is enunciated, enabling vistas for retention of life must also be ensured. Every right has a positive as well as negative aspects. Thus logically right to live corresponds right to end life also. If it is so, what gives the State the right to dictate to an individual as to how to exercise his rights? Such paternalistic approach should be abhorred. S.309 of Indian Penal Code clamps a restriction on the right of life guaranteed by Art.21. Indeed all rights may not be absolute, it may fall within the reasonable precincts erected by the State.

Suicide does not harm others and does no damage to the persons or properties of others. One's life or one's body with all its limbs are his sole property, and if the State transgresses on its disposal as and when one desires, it is arbitrary. This Section 309 of Indian Penal Code is an abrogation on the tenets of Article 21 of Indian Constitution. Suicide is an act of self destruction. It is an act of extinguishing one's own life by one's own act. If the State cannot keep a person contented with his life, what rationale is there to claim a right over him?

Right from the dawning days of republic Indian Judiciary has reproached the kernel of S.309 I.P.C. In State v. Sanjay Kumar (1985 Crl.L.J. 931) it was held that "Continuance of S.309 I.P.C. is an anachronism, unworthy of a humane society like ours. Instead of sending accused to a psychiatric clinic, society gleefully sends him to mingle with criminals, as if trying its best to see that in future he does fall foul of the punitive sections of Penal Code. S.309 has no justification right to continue, remaining on the statute book. Need is for humane, civilised and socially-oriented out look and penology". Even the Law Commissions had recommended for the deletion of this aboriginal provision - S.309 I.P.C - from the Code. Still the chauffers of administration are going on unheeded. The irony of this offence is that, if the accused fails in his mission he is incacerated, and if he succeeds, he escapes from the cudgils of law.

Legal Profession - Some Restrictions

(By P.S. Vasavan Pillai, Advocate, Trivandrum)

One of the problems that besets the legal profession today is the over-crowding of advocates in it. When the number of professionals increases, all. won't get enough remuneration. This will tempt them to adopt methods and habits which derogate from the high standards of professional ethics, manners and behaviour patterns. This in the result will lower the prestige and usefulness of this time-honoured and noble profession. So it is absolutely necessary to check the flow of hands into the legal profession.

With the above object in view I would suggest the following points.

1. The time between two enrolment functions should be increased. Now there is one enrolment after every three months or so. It is enough only once in a year the enrolment is held. This will tempt many not-too-serious candidates to seek other avenues.

2. Legal profession is one where more dedication, perseverance and intellectual acumen are required than in any other profession. Now any one with an LLB degree, however less meritorious it may be, can be allowed into the profession. Hereafter only those with atleast a second class LLB degree should be enrolled as advocates.

3. A limit to the number of advocates to be enrolled in a year should be prescribed taking into consideration the need of the hands required for a State Bar. I understand there is such a method before licensing the Chartered Accountants.

To compensate for the loss of revenue .to the Bar Council on account of this numerical restriction, the fee of enrolment can be increased from the present Rs.250/-to Rs.1000/- or so.

4. It is only good that an upper age limit is prescribed for future enrolment. Now there is a lower age limit. A person can get the LLB degree before he is 25. So the upper age limit can be fixed at 30. One need not be allowed to enter the profession because he does not find a place anywhere else. Those who love the profession shall come into it sufficiently early. Those who do not love it, will be liabilities for the profession. They will only deteriorate the standards. So they can be kept away.

An exception to this upper age limit can be given in the case of judicial officers because they are already associated with the legal profession and courts.

5. Now some advocates have more than enough briefs while some others have no briefs at all. This also is not an ideal situation. Accumulation of too many briefs in some hands will itself cause delay to the disposal of cases. On the other hand those without enough files will stoop to habits which militate against professional values, standards and prestige. To remedy the situation I would suggest that a limit should be fixed to the briefs which an advocate can accept in a year.

This is not at all a volatile suggestion in view of the fact that there are .already some restrictions enjoined on those advocates conferred with 'Senior" status.

The Bar Councils have a duty to see that the profession upholds the high standards and prestige. So they can legitimately enforce the above suggestions. If at present they are not empowered to do it fully, they can persuade the Government to amend the law.

An Anachronism

(By P.S. Vasavan Pillai, Advocate, Trivandrum)

India is proclaimed to be a secular democracy and its Constitution envisages equality of all persons. Art. 14 of the Constitution quite proudly states that all persons will have equality before the law and that there will be equal protection of laws within the territory of India. Art. 15 categorically prohibits discrimination on grounds of religion, race, caste, sex etc.

However, the Code of Civil Procedure, 1908 which is subject to the Constitution of India contains a section that prescribes discrimination on the basis of rank, race and nationality, even after its amendment in 1976. S.57 of the Code of Civil Procedure which guides all Civil Courts in India reads, "Subsistence allowance—The State Government may fix Scales, graduated according to rank, race and nationality, of monthly allowances payable for the subsistence of judgment debtors". Needless to say this section is violative of the explicit mandates of the Constitution and also its spirit.

It is astonishing that the offensive wording of S.57 of the Civil Procedure Code has escaped so far the notice of lawyers, the Ministry of Law and the Law Commission. It is a shame to retain this Section as such. Therefore it is to be reworded at the earliest.

Why Hear the Accused on the Question of Sentence?

*(By M. Marcus, B.A., M.L., Advocate, Ernakulam)

In life many things are taken for granted but in law we should be reluctant to do so lest we are led astray from the path of law.S.235(2) Code of Criminal Procedure 1973 is an instance of it since the legislative draftmanship of it militates against certain fundamental concepts in criminal jurisprudence for the reason that as it stands the section does not take note of the change in the status of person who is tried for an offence. The sub section under consideration reads as under:-

"IF THE ACCUSED IS CONVICTED, THE JUDGE SHALL UNLESS HE PROCEEDS IN ACCORDANCE WITH THE PROVISIONS OF SECTION 360 HEAR THE ACCUSED ON THE QUESTION OF SENTENCE, AND THEN PASS SENTENCE ON HIM ACCORDING TO LAW".

It can be safely said that at least three distinct words known to criminal jurisprudence indicate the various stages in law of a person subject to criminal proceedings. In the first stage he is under suspicion by the authorities of law touching his complicity in the criminal act and is known as 'SUSPECT'. The second stage refers him as the 'ACCUSED' and the third stage is reached when after examining the evidence of the prosecution and considering the defence the court comes to the conclusion that he is guilty. In other words the court finds him guilty of the offence charged against him in the trial. When this stage is reached the hitherto accused becomes a 'CONVICT' in the language of the law.

It is on the convicted person or the 'Convict' that punishment is to be imposed. That part of the judgment which indicates the punishment is called 'sentence' in law. The passing of a sentence is of sufficient significance touching the liberty and sometimes">iie life of the convict and that is why the protection of a fair trial is envisaged in our criminal justice system. The caution with which one should embark upon the administration of criminal justice is well said by Manu the ancient law giver in India which deserves to be quoted in extenso:-

"AS A HUNTER TRACKS A WOUNDED BEAST

TO ITS LIER BY ITS DROPS OF BLOOD

SO LET A KING TRACE CRIME TO JUSTICE

BY CLOSE SEARCHED PROOF"

I feel that this is the best piece of advice that can be given to any person enjoined by law to administer criminal justice. It stresses the importance of proof of guilt. The proof of guilt takes place usually by the trial of the accused. It may be noted in this connection that the words 'suspect', 'accused', or 'convict' are not defined in the Code of Criminal Procedure in India, so is the fate of the word 'sentence' and we have to look to the English law to get at the import of these terms. The word 'suspect' points to a person around whom some suspicion lingers of his complicity in a criminal offence. Touching the nature of suspicion Lord Bacon said "Suspicion is like bats among birds" which is indicative of the less pleasant feature of it. The law is aware of the elusive nature of suspicion so it requires that suspicion should be "reasonable" or there should be reasonable grounds for the suspicion. Still the law says that suspicion by itself cannot be a ground to punish a person for a crime alleged to have been committed by him that is why it is said "Suspicion howsoever grave is not a substitute for proof.

We now come to the concept of an 'Accused'. The Lexicon Webster Dictionary (Encyclopadic Edn.) Vol. 1 at p. 8 explains the import of the term 'Accused' reading:

"A PERSON OR PERSONS CHARGED WITH A CRIME -- A DEFENDANT IN A COURT OF LAW". Stroud's judicial Dictionary Vol. 1.1971 Edn.onP.311 says "to accuse or threaten to accuse of a crime was not restricted to the narrow meaning of accusing by the course of law but meant to allege or threaten to allege before any third person". In the legal literature we do not find a final and single statement as to when a person is said to be an 'accused' for the purpose of criminal law. One view is that the person in the dock at the commencement of the trial is the "accused person". Here the person becomes an accused when he is before the judge in the open court. Another view is of Sir Patrick Devlin in his work 'Criminal Prosecution in England' on P.28 which would say that whenever evidence in the possession of the Police is weighty enough to frame a charge it is the point of time that a suspect turns to be an accused. Despite these various shades of meaning it is certain for the purpose of criminal law that a person can be an accused in criminal proceedings till he is found guilty after which his status changes and he is known as a'Convict'. To put it shortly the status being an accused is antecedent to conviction but the status of being a convict is post decisional one. The word 'Convict' is explained at page 223 of the Lexicon Webster Dictionary mentioned above meaning" to prove or find guilty of an of fence especially after trial before a legal tribunal. Stroud's Judicial Dictionary at page 558 mentions that the word 'Convicted' or 'Conviction' of a person accused is equivocal. It is further said that in common parlance no doubt it is taken to mean the verdict at the time of trial but in strict legal sense is used to denote the judgment of a court. It was so held by Tindel C.J. in Burgess v. Boetifeur, 13 L.J.M.C. 126. The person who has reached this post decisional stage in a criminal court is called a 'Convict' and it is the 'Convict' on whom the 'Sentence' is to be passed. Bouvier's Law Dictionary Vol.1 p.56 gives the meaning Accusation in criminal Law as a charge made to a competent officer against one who has committed a crime or misdeameanor so that he may be brought to justice and punishment. On page 362 the word 'convict' is explained as one who has been condemned by a competent authority which further says that to condemn is to find guilty of a crime or misdemeanor.

The word 'Sentence' in Law is derived from the Latin expression 'Sentire' which means 'feeling'. The sentence of court is the declaration of the punishment to be inflicted upon the convict. The aspect of the feeling of the judges is clear when we read in judgments "We feel that the lesser sentence will meet the ends of justice" found in certain decisions reported. Stroud's Judicial Dictionary mentions that sentence includes any order of the court made on conviction (emphasis by me).

Christopher J. Emmins. M.A. Senior Lecturer in Law at the Inns of Court School of Law in his work "A practical approach to sentencing" in his introduction observes "sentencing is about the way courts deal with a person after he has pleaded guilty or been found guilty -in other words is about what happens from the moment when a person charged with an offence ceases to be merely "the accused" and becomes an offender". In part one of the book, page -15 "That ominous phrase the sentence of the Court is so familiar to us that we rarely pause to ask just what we mean by the word sentence".

In the light of what has been mentioned above there cannot be any manner of doubt that sub-section (2) of S.235 Code of Criminal Procedure 1973 is ill phrased for the reason that it directs the court to hear the "Accused" on the question of sentence. The proper thing would have been to say that the judge shall hear the 'Convict' on the question of sentence since the question of sentence or hearing on it arises only after conviction and that is why the section says "if the accused is convicted", in its opening part. Unfortunately the word 'Accused' is replanted in the section even after the word "convicted" whereby the legislative draftsman committed error of law by not distinguishing between an accused and a convict. It is felt that the present anomaly in the section can be removed if instead of the expression hear the "accused" on the question of sentence the expression hear the CONVICT on the question of sentence is used by necessary amendment to the section.

Foot Note

*Formerly Prof: of Law, Govt. Law College, Kerala, Reader in Law, Lai Bahadur Sastri National Academy of Administration, Govt., of India, Mussorie (U.P.)

March of Law

(K.S. Rajamony, Senior Advocate, Ernakulam)

CIVIL LAW

Scariah Varghese v. Marykutty, (1991 (2) KLT 71) raises some fundamental jurisprudential problems. Notwithstanding the absence of any statute law obliging a Christian to maintain his minor children, Varghese Kalliath, J. has held that he has a legal obligation to provide maintenance for his minor children on the ground of justice, equity and good conscience. It is submitted that this is a correct decision despite the thought provoking critical comment on the decision in 1991 (2) KLT Journal 40 by Sri. V.K. Sathyavan Nair. This decision has an interesting background. In Chacko Daniel (1952 KLT 595) Koshi C.J. and Govinda Pillai, J. held that the personal law relating to Christians in Travancore does not make a father legally liable to maintain his children and that no civil court can give them relief. The only remedy is to resort to the provisions of the Cr. P.C. This was a very unsatisfactory judgment. The Court said that the law that should be applied was English Law and conceded that under English Law the father had a duty to maintain and educate his children, but wrongly accepted the English Common Law principle that the civil court cannot enforce the obligation. In India if there is a civil right, it can always be enforced through a suit in the civil court under S.9 C.P.C. In fact, even a statutory right can be spelt out of S.125 Cr. P.C. (old S.488) which has two limbs, one conferring the substantive right of maintenance and the other the procedure to enforce the claim. It is incorporated in the Cr. P.C. only for providing a speedy and inexpensive relief which does not preclude enforcing the right through the civil court. The question again arose before a Full Bench consisting of Koshi C.J. and Subramonia Iyer and Joseph Vithayathil JJ. in Cheriya Varkey (AIR 1955 T.C. 255). Eventhough in the appeal the right to maintenance of the wife and child came up, unfortunately, counsel gave up the right for the child in view of the decision in 1952 KLT 595 and pressed the right of the wife alone. Thus the correctness of 1952 KLT 595 did not in terms come up for consideration. The Full Bench speaking through Vithayathil, J. held that in matters not governed by statute or customary law, principles of justice, equity and good conscience applied and those principles could be found in the Common Law of England, that even under the Common Law the husband had a legal obligation to maintain his wife, that the husband's obligation is in no way different from that applicable to Hindus and that marriage created a status with certain obligations attached to it and one of such obligations was to maintain his wife. It is not difficult to see that all these principles apply with equal force to the child's right to maintenance also even though the right of the child as such was not gone into by the Full Bench. The question of the child's right collaterally arose later before a Full Bench consisting of P. Govindan Nair, T.S. Krishnamoorthy Iyer and M.U. Issac, JJ. in Commissioner of I. T. v. Paily Pillai (1972 KLT 24). The question involved was one of tax liability and the problem was whether a gift deed executed by the assessee in favour of his minor son .was a transfer otherwise than for adequate consideration. The Full Bench held that the transfer was only in the nature of a gift because, there was no legal obligation on the part of the Christian father to maintain his minor child and for this conclusion 1952 KLT 595 was relied on. AIR 1955 T.C. 255 was not referred to and the correctness of 1952 KLT 595 had not been canvassed in Paily Pillai's case. In the above circumstances Varghese Kalliath, J. rightly adopted the principles laid down in AIR 1955 T.C. 255. See State of U.P. v. Synthetics & Chemicals Ltd. (J.T. 1991 (3) SC 268) for a discussion on the doctrine of precedents. The decision to grant maintenance to the child can be supported on other grounds also. Art.51A (a) of the Constitution lays down that it shall be the Fundamental Duty of every citizen to abide by the Constitution and respect its ideals. Art.29(f) embodies the Directive Principles that children are given opportunities and facilities to develop in a healthy manner and in conditions of freedom and dignity and that childhood and youth are protected against exploitation and moral and material abandonment. Art.21 guarantees the right to life and livelihood. Courts have not unoften recognised new heads of public policy to prevent vacuums in the legal system. Indian Legal System is based on justice, equality and good conscience. See AIR 1991 SC 2234. Did not the Supreme Court in the Central Inland Water Transport Corporation Case (AIR 1986 SC 1571) strike down an unconscionable service rule on the theory of inequality of bargaining power? The Court said (at p.1612), "In deciding any case which may not be covered by authority, our courts have before them the beacon light of the preamble to the constitution. Lacking precedent, the court can always be guided by that light and the principles underlying the Fundamental Rights and the Directive Principles enshrined in our constitution." Similarly, did not the Supreme Court evolve the new theory of ‘distributive justice’ in Lingappa (AIR 1985 SC 389)? It is interesting to note in this connection that in France, the civil code has a specific provision that a judge cannot refuse to decide a controversy on the ground that there is no law on the subject. Anyway, such serious gaps in personal law point to the urgent need for a uniform civil code for the Indian people as envisaged in Art.14 of the Constitution.

The newly enacted S.138 in the Negotiable Instruments Act which has come into force w.e.f.1.4.1989 is giving rise to interesting problems. A Division bench in Manoj K. Seth (1991 (2) KLT 65) has held that a post-dated cheque has to be considered to have been drawn on the date it bears and not on the date it is delivered. The question was whether the cheque was presented within six months from the date on which the cheque was drawn as required by the proviso (a) to S.138. The reason given is that a postdated cheque becomes operative only from the date it bears, though in between the date of delivery and the date it bears, it is negotiable. The judgment is deficient in two respects. In the first place, the impact of S.118(b) of the Negotiable Instruments Act providing that, until the contrary is proved, it will be presumed that every negotiable instrument bearing a date was made or drawn on such date, has not been examined though a passing mention of that section is made. Secondly, even though the Bench has rightly disagreed with the view taken by the Madras High Court in Babu Xavier's case (1990 TNLJ (Crl) 121) in fairness reasons should have been given for the disagreement. Was it not necessary to give an opportunity to the drawer to adduce evidence contrary to the presumption, if he had any?

In a judgment of excessive brevity, Thulasidas, J. held in Calcutta Sanitary Wares (1991 (1) KLT 269) without stating any reasons that where the non-payment by the bank was on account of the drawer issuing stop-payment instruction, prosecution under S.138 is nevertheless maintainable. With respect, this does not appear to be correct in terms of S.138 which makes bouncing of the cheque an offence only for insufficiency of funds in the bank. A judgment of the Karnataka High Court reported in 1991(1) KLT SN37 and another by the Punjab & Haryana High Court reported in 1991 (1) KLT SN 40 have rightly taken the view that if a cheque is returned unpaid with the remark "payment stopped", S.138 is not attracted.

Rightly overruling 1991(1) KLT 651 a Division Bench has held in 1991(1) KLT 893 that the payee cannot go on presenting the cheque in the bank again and again to create fresh causes of action for proceeding under S.138.

In Dunlop India Ltd. (1991(1) Civil L.J. 29), the Calcutta High Court held, following 1989 (2) SC. 602, that when a registered postal cover is returned With the endorsement "refused" there will be a "resumption that the letter was tendered to the addressee. The Court relied on S.27 of the General Clauses Act and S.114(f) of the Evidence Act. Mere denial of service by the addressee is not sufficient to rebut the presumption. Similarly, in Jankala Raghunath Patra (1991 (1) Civil L.J. 215) - the Orissa High Court held, following AIR 1989 SC 630 that when a notice sent by registered post at the correct address was returned with the endorsement that the postman visited the place of address several times but found the addressee absent, the letter shall be deemed to have been delivered to the addressee. When the registered letter containing a notice under S.106 of the T.P. Act was returned with an endorsement as above, it was treated as sufficient compliance with the requirement of S.106. The time of 15 days given in the notice would be calculated from the date of the return of the envelope.

Padmanabhan, J. has held in Kunhiraman v. Manoj 1991 (2) KLT 190 that the result of DNA test can lend strong support to other evidence in deciding paternity. The DNA test is of far-reaching importance in both civil and criminal law. This new technique has created a revolution in forensic science. The scientific community, however, is not yet agreed on standards that ensure the reliability of DNA finger printing which is still on trial. The DNA technique demonstrates how the two sister disciplines of law and medicine can interact in delivering justice. The only regret is that evethough legislation has advanced to give relief to the illegitimate child, it has not progressed enough to award maintenance to the mother of the child by the putative father. There are a large number of similar issues which are on the border land of law and medicine. Spare parts of human beings are now on sale. Does a man have the right to sell his kidney? Does his body belong to him? Has he the right to destroy his body part by part when criminal law has made suicide, prostitution etc. offences? To whom does the dead body belong and can organs be removed from a dead body? When can a person be considered to be dead? If it is possible to bring back life by techniques like massaging, and use of heart-lung machines, whether transplantation can he done in the meantime? There is a story of a Professor of Surgery who while performing an operation observed that the patient was not breathing. He asked the anesthetist, "the patient seems to be dead at my end, how is the position at your end?" Matters of common interest between law and medicine should be identified and explored, because, everyone of such issues has social dimensions.

Is a petition under Art.227 against the revisional order of the District Judge under the Rent Control Act a continuation of the rent control proceedings? No, says Padmanabhan, J. in Krishna (1991 (2) KLT316). It is an original proceeding and hence the tenant cannot claim the benefit of depositing arrears of rent under S.11(2)(c) as a matter of legal right. However, a Division Bench consisting of Bhat Ag. C.J., and Krishnamoorthy, J. has held, though in a different context, that Art.227 is not an original proceeding and hence a Writ Appeal does not lie under S.5 of the High Court Act against the decision of a Single Judge exercising powers under Art.227 following AIR 1986 SC1272. This conflict may have to be resolved in an appropriate case.

Where there is a direct conflict between two decisions of the Supreme Court rendered by Judges of equal strength, which of them should be followed by the High Court? Full Benches of three High Courts have held that the High Court must follow the judgment which appears to it to lay down the law more elaborately and accurately. It is not correct to say that the latest judgment must be mechanically followed. The three decisions are AIR 1981 P. and H. 213, AIR 1988 Bom. 9 and AIR 1991 All. 114. The Allahabad Full Bench further held that a writ petition under Art.226 can lie against an interlocutory order passed in a civil suit from which there is no appeal or revision, if it is found that the impugned order violates fundamental principles of law and causes substantial injustice to the aggrieved party, subject of course to the well-established principles of writ jurisdiction. Under S.115 C.P.C.as amended in Allahabad, no revision lies to the High Court against an appellate order made by the District Judge in suits of less than Rs.20,000/- valuation. According to the Full bench, a writ will lie against the District Judge's Appellate order. The Full Bench however dismissed the writ petition as the opposite party was a private individual.

East India Corporation v. Shree Meenakshi Mills (JT. 1991 (2) SC. 397) presents a hard case, but makes good law. There was a provision in the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 by which a residential building occupied by a tenant on a monthly rent exceeding Rs.400/- was excluded from the operation of the Act. Since the monthly rent was Rs.900/- the landlord filed the suit in 1980 in the Civil Court for eviction and obtained a decree. When the Appellate Court and the High Court confirmed the decree, the tenant filed an Appeal before the Supreme Court and Special Leave was granted on 24.9.1984. While the appeal was pending, that provision of the Tamil Nadu Act was struck down as unconstitutional by the Supreme Court in AIR 1986 SC 1444. The result of the declaration was as though that provision had never been enacted and the jurisdiction to order eviction rested exclusively in the Rent Control Court. The civil court decree therefore became null and void. Jurisdictional defects cannot be cured by consent of parties. S.10 of the Tamil Nadu Rent Control Act (corresponding to S.11(l) of the Kerala Rent Control Act) prohibits eviction of a tenant whether in execution of a decree or otherwise except in accordance with the provisions of that Act. The jurisdiction of the Civil Court though not expressly barred, is impliedly barred on the principles stated in Dhulabhai's case (AIR 1969 SC 78). The Supreme Court held that, with the declaration of invalidity of the section, the Civil Court had become coram non judice and its proceedings resulting in the decree had become a nullity. The appeal was allowed and the decrees of the Courts below were set aside. The Kerala High Court had been holding consistently that S.11(l) of the Rent Control Act does not affect the jurisdiction of the civil court to pass a decree for eviction, but only prohibits the execution of the decree. The only exception was a decision by Kochu Thommen, J. as he then was, in Narayanan v. Ratnamma (1987 (2) KLT 473) which stood overruled by the Division Bench in Gaurikutty Amma v. Kesavan (1988 (1) KLT 649) which in turn now stands overruled in the East India Corporation case by T. Kochuthommen and Sahai, JJ.

Can a court which has no jurisdiction be conferred with jurisdiction by applying the principle of res judicata? No, answers the Supreme Court in Isabella Johnson (AIR 1991 SC 993). There can be no estoppel on a pure question of law. The landlord filed a petition for eviction before the Rent Controller. The tenant contended that the jurisdiction vested in the civil court and not in the Rent Controller. On that plea the petition was rejected. The landlord then filed a suit in the civil court. Now the tenant contended that the civil court had no jurisdiction and that it vested in the Rent Controller. The landlord contended that the earlier decision of the Rent Controller constituted res judicata even if that decision was wrong and that such an inconsistent plea was barred by estoppel. Differing from an earlier two judge-bench decision in AIR 1979 SC 1911, that three-judge bench held that the civil court had no jurisdiction and it cannot be conferred by the principle of res judicata or estoppels.

In General Electrical Technical Services Co. v. Punj Sons (P) Ltd. (JT1991 (3) SC 360) the Supreme Court has reaffirmed the principle that Banks must pay when demand is made for the enforcement of a Bank Guarantee. Courts should not interfere with this contractual obligation except when there is strong prima facie case of fraud by the beneficiary and to prevent irretrievable injustice. Otherwise, the very purpose of Bank Guarantees would be negatived and the fabric of trading operations will get jeopardised. Stay against-Bank, granted by the High Court, was vacated.

Gauhati High Court has pointed out in 1991 (1) Civil L.J. 771 that mere registration of a document is not by itself sufficient proof of its execution. Endorsement by the Sub Registrar is not conclusive proof of the fact of execution. There must be clear evidence that it was the purported seller who put his signature and after fully knowing its contents. That is the requirement of S.67 of the Evidence Act.

The Supreme Court has held in Shanti Devi L. Singh (1991 (1) Civil L.J. 95) that the certificate of sale issued in a court sale or by a Revenue officer does not need registration. Certificate issued by the Tax Recovery Officer under the I.T. Act is also covered by this principle contained in S.17(2)(xii) of the Registration Act. Under S.89(2) every court granting a certificate of sale shall send a copy to the Registering Officer. S.89(4) imposes a similar obligation on 'Revenue Officer' which expression includes 'Tax Recovery Officer'. The Registering Officer shall file the copy in his Book No.1. However, the certificate of sale is not exempted from the levy of stamp duty.

In Durga Singh (AIR 1991 H.P. 1) a Division Bench has held that a compromise decree passed on the basis of statement made by Government Pleader without complying with the requirements of Art.299 is invalid. P.C. Balakrishna Menon, C.J. has pointed out that an adjustment of the suit under O.23 R.3 C.P.C. can only be by a lawful agreement or compromise and that in the absence of an agreement in terms of Art.299(l) of the Constitution, there was no valid compromise and the decree passed on it cannot be enforced.

Patasibai (JT1990 (3) SC 68) is a case where the plaint was rejected invoking O.VII R.11 C.P.C. as it did not disclose any cause of action. Even after issue of summons the provision can be applied if there is no triable issue. Order VII Rule 11 is frequently invoked to get election petitions which do not disclose any cause of action dismissed. Trial lawyers can usefully invoke O.VI R.16 and O.VII R.11 C.P.C. to weed out frivolous cases.

In Mary Soniz Zachariah (1990 (1) KLT 130) Thomas, J. directed the Central Government to take a decision within 6 months of the receipt of judgment, on the recommendation of the law commission to make necessary amendments to S.10 of the Indian Divorce Act. It is not known whether the direction has been implemented.

In Kunhi Kelu (1990 (2) KLT 506) a Division Bench held that a revision under S.20 of the Rent Control Act has to be heard by a Division Bench as required under S.3(4) of the High Court Act and suggested appropriate amendments to enable a single Judge to hear the revision petitions. Government does not appear to have bestowed any thought on the problem yet.