When  there  is  Already  an  Agreement  of  Sale,  Whether  the Execution  of  Another  Sale  Agreement  and  Sale  Deed  Thereto Will  Bind  the  Earlier  Agreement  Holder

(By N. Subramaniam, Advocate,  High Court of Kerala, Ernakulam)

Specific Relief Act.

Question : When there is already an agreement of sale, the execution of another sale agreement and sale deed, will it bind the plaintiff, the earlier agreement holder?

Ans. No. It will not bind the earlier agreement holder.

1995 (2) CTC 313 (Valiya Perumal Nadar v. Santhana, Chettiar), AIR 1999 SC 2213 = (1999) 3 SCC 722 (Kondiba Dagudu Kadam v. Savithribai Sopan Gujjar), AIR 2008 SC 1541 = (2008) 4 SCC 530 = (2008) 2 MLJ 1115 (Thiruvenkidam Pillai v. Navinit Animal), AIR 2007 SC 1332 = (2006) 13 SCC 608 = (2007) 3 MLJ 377 (Sanjay Varma v. Manikroy), (2010) 13 SCC 128 = (2011) 1 MLJ 723 (Harnarayan (Dead) by LRs v. Mamchand (Dead) by LRs), 2001(1) CTC 5 (Guruswamy Nadar v. P. Laxmi Ammal (Dead) and 13 others), 2008 (3) KLT Suppl. 1221 (SC) = AIR 2008 SC 2025 = (2008) 4 SCC 219 (Chokalinga Swamy (idol) through its hereditary Trustee R.N. Pillai v. Jnanaprakasam (Dead) by LRs.), 2008 (2) KLT Suppl. 13 (SC) = AIR 2008 SC 2560 = (2008) 5 SCC 976 (Guruswamy Nadar. v. P. Laxmi Ammal (dead) through LRs).

Amendment of Civil Procedure Code - To Pace with

Time

(By V.K. Babu Prakash, Judicial I Class Magistrate, Karunagappally)

The Code of Civil Procedure is going to have a major change. The amendment Bill No. L of 1997 which was introduced on the 14th August 1997 in the Upper House of Indian Parliament (Rajya Sabha) has passed it on. There after it went up in the floor of the Lower House (Lok Sabha) which has also passed it on 29.11.1998. Thus the amendment Bill met the touch stone of the warp and woof of legislation. The name of the Bill is called the Code of Civil Procedure (Amendment) Bill 1997. The law relating to the procedure in Civil Suits and proceedings in India (Except in the State of Jammu and Kashmir, Nagaland and Tribal areas of Assam and certain other areas) is contained in the Code of Civil Procedure 1908. The Code has been amended from time to time and the major change swept into it was by the Amendment Act 104 of 1976. The Code is mainly divided into two parts namely sections and orders while the main principles are contained in the sections, the detailed procedures with regard to the matters dealt with by the sections are specified in the orders. Under S.122 High Courts have powers to amend by rules the procedure laid down in the orders.

In the Law Ministers Conference held in New Delhi on 30.6.1997 and 1.7.1997 resolved to introduce the amendment proposal recommended by the 129th Law Commission report headed by Justice Malimath. Thus the Bill was drafted and after necessary changes it was introduced in the Rajya Sabha. After passing the fire test in both the Houses of parliament, the President of India affixed his seal on it. Yet the amended Act awaits to have a formal declaration of its commencement date.

The major proposals of amendment can be looked at by a birds' view. It can be catalogued as follows:-

Clause2:- In S. 26 of the Code, a suit is instituted by presentation of a plaint or in such other manner as may be prescribed by rules made by High Court. Since these rules are different with different High Courts, the requirements for institution of suit are not uniform. The rules made by some High Courts require plaint to be supported by an affidavit stating the genuineness of the claim of the plaintiff and of the documents on which he relies upon while no such affidavit is required under the rules made by some High Courts. With a view to bring uniformity and lay down simple procedure to complete the pleadings, CI.2 amends S.26 of the Code and provides that facts must be proved by affidavit in every plaint.

Clause 3:- Amends S.27 of the Code with a view to lay down a fixed time frame to send summons to defendants. It seeks to provide 30 days from the institution of suit within which summons should be sent to defendants.

Clause 4:- In CI.(c) of S.32 of the Code, the Court is empowered to impose a fine not exceeding five hundred rupees for the purpose of compelling the attendance of any person in the court. CI.4 substitutes "five thousand rupees" in place of "five hundred rupees" in the said section for the reason of decrease in the money value since the time provision was made.

Clause 5:- S.58 of the Code provides for the detention and release of a person from civil prison in execution of a decree. Since the time provisions of S.58 were made, the value of money has decreased considerably. In this view, CI.5 seeks to amend S.58 and it substitutes for the words "one thousand rupees" and "five hundred rupees" the words "five thousand rupees" and "two thousand rupees" respectively.

Clause 6:- S.60 of the code provides for attachment and sale of properties in execution of a decree. CI.6 seeks to amend S.60 by substituting "one thousand rupees" in place of "four hundred rupees" for the reason of decrease in the money value since the time provisions were made.

Clause 7:- Provides for the settlement of disputes outside the court. The provisions of CI.7 are based on the recommendations made by Law Commission of India and Malimath Committee. It was suggested by Law Commission of India that the Court may require attendance of any party to the suit or proceedings to appear in person with a view to arriving at an amicable settlement of dispute between the parties and make an attempt to settle the dispute between the parties amicably. Malimath Committee recommended to make it obligatory for the court to refer the dispute, after issues are framed, for settlement either by way of arbitration, conciliation, mediation, judicial settlement or through Lok Adalat. It is only when the parties fail to get their disputes settled through any of the alternate dispute resolution method that the suit could proceed further. In view of the above, CI.7 seeks to insert a new S.89 in the Code in order to provide for alternate dispute resolution.

Clause 8:- In S.95 of Code, the Court may award compensation not exceeding one thousand rupees in case it appears to the court that an arrest, attachment or injunction has been effected and such arrest, attachment or injunction was applied for insufficient ground or that there was no reasonable ground for instituting the suit. Sub-cl.(2) of the said section bars a suit for compensation in respect of such arrest, attachment or injunction if an order has been passed by the court on an application for compensation under sub-s.(1). In this circumstance CI.8 seeks to substitute "fifty thousand rupees" in place of "one thousand rupees".

Clause 9:- S.96 of the Code provides for an appeal from original decree. Since , the time provisions were made the value of money has considerably decreased and the pecuniary limits of "three thousand rupees" require to be revised. CI.9 therefore seeks to substitute. "Twenty-five thousand rupees" in place of "three thousand rupees" in S.96.

Clause 10:- Justice Malimath Committee examined the issue of further appeal against the judgment of Single Judge exercising even a first appellate jurisdiction. The Committee recommended for suitable amendments to S.100A of the Code with a view to provide that further appeal in this regard shall not lie. The Committee also recommended for suitable enactment by Parliament for abolition of appeal to a Division Bench against the decision and order rendered by a Single Judge of the High Court in a proceeding under Arts.226 or 227 of the Constitution. CI.10 seeks to substitute a new S.100A with a view to provide for no further appeal in the above cases.

Clause 11:- S.102 of the Code bars record appeal when the amount or value of the subject matter of the suit does not exceed one thousand rupees. Justice Malimath Committee recommended the amendments in S.102 in order to substitute a limit of twenty-five thousand rupees in place of one thousand rupees for the reasons of decrease in the value of money since the time provisions were made CI.11 seeks to bring in a limit of twenty-five thousand rupees to bar record appeal.

Clause 12:- S.115 of the Code provides for revision by the High Court of an order or decision of any court subordinate to such High Court. The Malimath Committee noticed that when the records of the lower courts are sent to the High Court in the revisional proceedings, it is imperative that records of proceedings pending in the subordinate court should not be sent unless High Court so desires and revision should not operate as stay of proceedings before the trial court. The Committee while agreeing in principle that scope of interference against interlocutory orders should be restricted, felt that the object can-be achieved more effectively without demanding the High Court of the power of revision. CI.12 seeks to achieve the above object by suitable amendments to S.115.

Clause 13:- S.148 of the Code provides for enlargement of time by the court. Where any period is fixed or granted by the court for any act prescribed or allowed by the Code, court has discretion to enlarge such period. CI.13 seeks to put a limit on enlargement of such period by inserting the words "not exceeding thirty days in total" in S.148 with a view to minimise the procedural delay at the instance of either party to a suit.

Clause 14:- O.IV if the code provides for the institution of suits. Sub-r.(1) of R.1 of O.IV states that every suit shall be instituted by presenting a plaint to the court. Since a copy of plaint is sent before court and a duplicate copy of plaint is needed for records, suitable amendments are made in this regard by CI.14 which requires institution of a suit by presenting plaint in duplicate to the court. Sub-r.(2) of R.1 of the said order requires compliance of certain formalities by the registry of court. With a view to dispel the doubts when a suit is regarded to have been instituted, CI.14 inserts a new sub-r.(3) to provide that the plaint shall not be deemed to be duly instituted unless it complies with the requirements specified in sub-rr.(1) and (2).

Clause 15:- O.V of the Code provides for issue and service of summons. The Malimath Committee looked into the problem of arrears of cases in the courts and recommended amendments to the Code with a view to lay down a fixed time frame within which pleadings are to be completed. CI.15 seeks to substitute sub-r.(1) of R.1 of O.V to provide for filing written statements within thirty day from the day of institution of the suit except in few situations. CI.15 amends Rr.2, 6 and 7 to ensure that copy of plaint along with all documents on which plaintiff relies upon are delivered with summons to the defendant. This clause substitutes R.9 to provide for delivery of summons by speed post, courier service, fax message or by electronic mail, service as the High Court may prescribe by rules. It makes the Code up-to-date with the changing needs of the time.

Clause 16:- O.VI of the Code provides for pleadings generally. CI.16 seeks to provide that person verifying the pleading shall furnish an affidavit in support of the pleadings. This clause omits Rr.5, 17 and 18 of O.VI to bring in consistency with new changes in the Code.

Clause 17:- In O.VII of the Code, R.14 provides for production of documents on which plaintiff sues. CI.17 seeks to substitute R.14 to provide where a plaintiff sues upon a document in his possession, he shall enter such documents in a list and shall produce it in court when plaint is presented by him and shall deliver document and a copy thereof to be filed with the plaint. The new rule further provides in case a document or copy thereof is not filed with the plaint, it shall not be allowed to be received in evidence on behalf of plaintiff at the hearing of the suit.

Clause 18:- O.VIII of the Code provides for written statement and set-off. CI.18 seeks to substitute R.1 of O.VIII to provide a fixed time frame within which pleadings are to be completed. The new provisions required the defendant to present a written statement within thirty days from the date of service of summons on the defendant. CI.18 inserts R.1A to provide it a duty of defendant to produce documents upon which relief is claimed or relied upon by him. R.1A requires the defendant to produce documents in his possession in the court and deliver the document and a copy thereof when the written statement is presented by him. R.1A further requires in case a document or copy thereof is not filed with the written statement. It shall not be allowed to be received in evidence on behalf of defendant of the hearing of the suit.

Clause 19:- R.2 of O.IX is being substituted so as to provide that where there is default on the part of plaintiff to deliver summons to the defendant, the suit shall be dismissed by the court. This is in addition to non-payment of cost by the plaintiff as a ground of dismissal of suit.

It is proposed by amending R.5 of O.IX so as to reduce the period from one month to seven days within which the plaintiff is required to apply for fresh summons where summons earlier issued remain unserved.

Clause 20:- O.X is proposed to be amended by inserting Rr.1A, IB and 1C in the said order. This amendment is consequential to the insertion of new S.89 vide CI.7 of the Bill.

Clause 21:- Rr.2 and 15 of O.XI are proposed to be amended by fixing time limit to decide an application for leave to deliver interrogatories and to provide that an application for inspection of documents by the parties can be made only before the settlement of issues.

Clause 22:- R.2 of O.XII is proposed to be amended for reducing the time from fifteen days to seven days which notice to admit a document may be given by any party to the suit.

Further the second proviso to R.4 of the said order is being omitted so as to curtail the discretion of the court in the matter of allowing any party to amend or withdraw admission made by him.

Clause 23:- Rr.1 and 2 of O.XIII are proposed to be substituted so as to provide that the original of documents of which copies have been filed with the plaint and written statement shall be submitted before the settlement of issues is made by the court.

It is also proposed to omit R.5 so that issues are framed within time and no application for amendments are striking out the issue is entertained by the court.

Clause 25:- O.XVI is proposed to be amended so as to fix a time limit within which can application may be made for summoning of witness. Further it is proposed to provide that a party applying for summons shall pay fee towards calling the summons within a period not later than seven days from the date of making application.

Clause 26:- O.XVII lays down the procedure for granting adjournments. The Committee on Subordinate Legislation (Eleventh Lok Sabha) recommended that it should be made obligatory in the judgment to record reasons for adjournment of cases as well as award of actual and not merely notional cost against the party seeking adjournment in favour of the opposite party. It is proposed to make it obligatory for the Judges to record the reasons in writing where the court grants adjournment and to award the actual cost to the opposite party. Further limit up to three adjournments has also been fixed in a case.

Clause 27:- O.XVIII provides for manner of recording the evidence. It is proposed to confer the power of recording of evidence by the commissioner to be appointed by the court.

Clause 28:- O.XX makes it compulsory for a party filing appeal to annex the certified copy of the decree to the Memorandum of Appeal. Justice Malimath Committee has pointed out that it takes a long time for obtaining certified copy of the decree and thus filing of appeal takes a long time. It is proposed to dispense with annexing certified copy of the decree along with Memorandum of Appeal and it is also proposed that the whole judgment shall be made available to the parties immediately after the judgment pronounced.

Clause 29:- O.XXVI enables the court to issue commission only in cases where witness resides outside the local limits of the jurisdiction of the court. It is proposed to amend O.XXVI by inserting a new R.4A so as to enable the court to issue commission in any case where the interest of justice so demands.

Clause 30:- It has been observed that after obtaining temporary injunction the party in whose favour injunction has been granted caused delay in disposal of cases on flimsy and unreasonable grounds. To curb this practice it is proposed to amend O.XXXIX so as to provide that the party who applies for obtaining injunction shall also furnish security so that it may not adopt delaying tactics during the trial of the case.

Clause 31:- Seeks to interest a new O.XXXIXA. Under the existing provisions of the Code of Civil Procedure, 1908 no application for interim injunction can be moved unless the suit is filed first in the court having competent jurisdiction. In matters relating to property disputes particularly it may help a person if such a person can make an application to be court of competent jurisdiction for appointment of a commission to ascertain the factual status of the property so that at the time of filing of the regular suit the report of the Commissioner is available relating to the factual status of the property.

Clause 32:- Proposes to amend O.XLI of the First Schedule so as to provide for filing of appeal on the basis of the copy of the judgment, to avoid delay as obtaining copy of decree takes considerable time. Further to avoid delay it is proposed that an appeal may be filed in the same court which passed the judgment and that court shall direct the parties to appear before appellate court. 

John Deserved Acquittal

(A Comment on 1999 (2) KLT 699: John v. George Jacob)

(By M.R. Rajendran Nair, Advocate, Ernakulam)

What is the meaning of the expression "receipt of information" obtained in proviso (b) to S.138 of the Negotiable Instruments Act, 1881? Does it mean 'receipt of information in writing'? Does it exclude receipt of information by other modes? In the decision reported in 1999 (2) KLT 699 it is held that the expression 'receipt of information' in S.138 (b) of Negotiable Instrument Act means the 'receipt of information 'in writing' and not a mere oral information, though the words In writing' do not find mention in that provision in that context. The learned Judge declared this to be the legislative intention.

The relevant statutory provision reads as follows:-

"S.138. Dishonour of cheque for insufficiency, etc., of funds in the account.-Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank such person shall be deemed to have committed an offence and shall, without prejudice to any other provision of this Act be punished with imprisonment for a term which may extend to one year, or with fine which may extend to twice the amount of the cheque, or with both:

Provided that nothing contained in this section shall apply unless -

(a) The cheque has been presented to the bank within a period of 6 months from the date of which the it is drawn or within the period of its validity, whichever earlier;

(b) The payee or the holder in due course of the cheque, as the case may be, makes a demand for the payment of the said amount of money by giving a notice in writing to the drawer of the cheque, within fifteen days of the receipt of information by him from the bank regarding the return of the cheque as unpaid; and

(c) The drawer of such cheque fails to make the payment of the said amount of money to the payee or, as the case maybe, to the holder in due course of the cheque, within fifteen days of the receipt of the said notice.

Explanation -For the purpose of this section, "debt or other liability" means a legally enforceable debt or other liability".

S.138-142ofNegotiableInstrumentsAct, 1881, introduced by the Banking Public Financial Institutions and Negotiable Instruments (Amendment Act. 1988 (66 of 1988). created and defined a new offence. The conditions stipulated in provisos a, b and c are conditions precedent for initiating prosecution for an offence under S.138. Provision (b) stipulates that the payee or holder in due course must make a demand for the payment of the amount covered by the cheque by giving a notice in writing to the drawer of the cheque.

Giving of the notice in writing must be within 15 days of the receipt of information by him from the bank regarding the return of the cheque as unpaid. In this provision while dealing with the notice to the drawer of the cheque (accused) the legislature unequivocally states that the notice must be in writing. At the same time in respect of information by the payee or holder in due course of the cheque regarding return of the cheque as unpaid there is no stipulation that the information must be received in writing. Suppose, on the basis of information received orally or by other modes than in writing, the payee or holder in due course issues notice in writing to the drawer of the cheque making a demand for payment within 15 days of receipt of such information. Can it be said that such notice is insufficient? All that can be insisted on is that the complainant should prove positively that the notice in writing was issued within 15 days of the receipt of information. Failure of the complainant to prove this positively will result in acquittal of the accused. That will not be a 'disastrous consequence' as visualized in the reported Judgment.

It is submitted that certain fundamentals regarding interpretation of statutes especially in relation to penal provisions must be borne in mind in this context. Where, in a statutory provision express words are used in one limb and those words do not find a place in another limb the maxim of "expressio unis est exclusio alterius" applies.

Secondly penal provisions are to be construed strictly. In the instant case along with the words 'receipt of information' the words 'in writing' were also added under the cover of legislative intention. Here is a situation where the context clearly showed that the legislature wanted to exclude the words 'in writing' while dealing with 'receipt of information' by the payee or holder in due course. Therefore it was not permissible for the court to add the words 'in writing'. The information can be received orally, visually, and by any other mode of communication. What is relevant is whether demand for payment is made within 15 days of the receipt of information. Hence the word 'receipt' definitely means the act or an instance of receiving. Once it is shown that the information was received and no demand was made by giving a notice in writing within 15 days thereof, prosecution under S.138 cannot be initiated. The court is not entitled to read in words not used by the legislature and to prevent the acquittal of the accused. Penal provisions are to be construed strictly in favour of those who become liable.

A court has to interpret the law as it stands. It is the duty of the court to construe the provisions of an enactment according to the language used. The precise words of the relevant statutory enactment is to be applied and administered as accurately as possible. The courts must give first precedence to the plain meaning of the language used in the statute regardless of the consequences thereof. There is an equal duty to restrict the meaning of the general words, whenever it is found necessary to do so in order to carry out the legislative intention. Thus modification of the language of a statute is possible only under exceptional circumstances. The duty of the court is not to put a construction which seems to the court to be the best in the sense that it will work out with most justice or with the least inconvenience, but to put a construction which seems to the court to be the best in the sense that it is the nearest to the language of the legislature.

Moreover the courts are not to supply causes omissus. An interpretation which has the effect of adding certain words and clauses to an enactment should be avoided unless the section as it stands is meaningless or of doubtful meaning. 'Receipt of information' is wide enough to include all means of receipt of such information. To restrict the scope of 'receipt' to 'receipt in writing' is uncalled for and absolutely unnecessary. More so when the construction widens the ambit of the penal provisions preventing the acquittal of the accused.

In the case on hand, the complainant deposed that he knew of the dishonour of the cheque when he went to his Bank on 20.12.1989. And the Bank Manager also deposed that the cheque return memo was also prepared on 20.12.1989. Admittedly, the notice as stipulated in proviso (b) to S.138 of Negotiable Instruments Act was sent only on 9.1.1990; that is, beyond 15 days of the receipt of information by the complainant from the Bank regarding the return of the cheque as unpaid. Therefore, the condition precedent for applying S. 138 did not exist. John deserved acquittal.

Section 249 of the Kerala Panchayat Raj Act 1994 -

A Clog on Civil Jurisprudence

(By Dinesh M. Pillai, Advocate, Kattappana)

The Kerala Panchayat Raj Act 1994 has brought a far reaching effect on the social life of every citizen of the State with three-tier panchayat system having direct and substantial interference in the social and economic affairs of the State. The Panchayats, its Secretaries, President, Members and other officials are given wide powers to regulate the said affairs in wide perspectives, with provisions for punishing those who disobey their orders. In other words, the Act has brought more powers down from the Central and State Governments to the members of the panchayats, conferring the Panchayat, the status of self governments. Almost all the development, progress in the State at the local level are being conducted through the Panchayats and its machineries.

The security of every citizen from illegal acts on the part of any authority depends upon their right to challenge the said acts before the appropriate forums. When the authorities of lower grade engage directly with the social, economical and commercial activities touching the general public is given with more governmental powers, the chance for disputes from citizens, with regard to the implementation of the said functions also increases. In those contingencies, when the Panchayats exceeds in their authority or acts illegally what is the remedy open to the aggrieved citizen. Of course he is having a civil right to approach the civil court against the acts of the Panchayat or its functionaries.

It is in this context I would like to invite the reader's attention to S.249 of the Kerala Panchayat Raj Act which provides that no suit or other civil proceedings against a Panchayat or against the President, Vice-President or any other member or employee there of or any person acting under the direction of the Panchayat or any member or employee thereof for anything done or purporting to be done under the Act in its or his official capacity shall be instituted until the expiration of one month after notice in writing has been given.

The Governments and its functionaries exercising sovereign authority are provided with some sort of immunity or exceptions from civil proceedings with the intentions to see that the developmental functions of the said functionaries are not intercepted by unnecessary litigations.

S.80(1) of C.P.C. provides that every suit against the Governments or public officers shall not be instituted until the expiry of 2 months after notice in writing has been delivered. The requirement of notice under S.80(1) of C.P.C. was contempted on several occasions even by various judicial pronouncements as an unjustified discrimination between suits against citizens and those against Governments. The said arguments has become stronger especially in the view that in later times the Governments have ventured in a big way in ordinary commercial and trading activities and do no longer confine themselves to what are known as sovereign acts. Considering the above aspects sub-s.2 to S.80 was incorporated by 1974 amendment, providing for grant or leave to institute suits to obtain urgent or immediate reliefs against the Government or officials without giving notice under S.80(1).

So even in a suit against the governments, provision is made for grant of leave to exempt the requirement of notice where the reliefs sought for are urgent or immediate. Where as in the case of any Panchayat or its officials any suit, disregarding its urgency can be filed only on the expiration of one month's notice and there is no provision to exempt the same in any contingency. The citizens of our State, whose social economic, and commercial affairs are governed by the Panchayats are deprived of the speedy remedy by way of a civil suit due to the strict provision for want of notice.

Usually a Village Panchayat is governed by the Committee of members each of whom are elected from a small constituency consisting of 1000 to 1500 voters. In our State which is polluted by over politics it is quiet possible that the civil right of a citizen can be invaded by the act of a Panchayat at the instigation of one of its members. More over the Panchayats which are very much hasty in seeing that the funds allotted to it for each financial year is utilised in the respective year itself is showing over enthusiasm in their so called development activities even at the risk of the civil rights of its citizen.

The Kerala Panchayat Act 1960 which is the predecessor of the Kerala Panchayat Raj Act 1994 contained provision for two months previous notice as compulsory for instituting suits against the Panchayats. But S.123 of the said Act specifically exempted the suits for injunction from the want of notice. The absence of a like provision in the Kerala Panchayat Raj Act enabling the aggrieved citizen to seek for urgent relief before the civil courts against the apprehended illegalities from the Panchayats is a clogue on the civil right of the citizens causing heavy hardship and injury to them.

Of course, a clever litigant with the help of a smart lawyer may be able to get over the rigorous provision for notice by fabricating evidence to show that a statutory notice had been placed in the office of the Panchayat or by impleading the Secretary, President or members of the Panchayat in their personal capacity. But the said tricks need not always click and does not serve the necessities of a litigant who want to fight against the apprehended illegality of the Panchayat.

I believe that it is high time to incorporate appropriate amendment in the Kerala Panchayat Raj Act, enabling the citizen to sue against the Panchayats for urgent and immediate reliefs without giving notice or at least with the leave of the court to exempt the notice. Of course it is for the State Legislature which is having about 50 percentage of its members as law graduates to see that appropriate amendment is made in the Act.

Jurisdiction of the High Court over Consumer Fora

(By Kauser Edappagath, Advocate, Kannur)

In two notable verdicts delivered recently, the High Court of Kerala practically usurped the powers and functions of the Consumer Courts and minimised the sphere of its jurisdiction. The verdicts were delivered in the cases, Jancy Joseph v. Union of India (1999 (1) KLT 422) and Malappuram Bus Private Operators Assn. v. Mohan (1999 (2) KLT 898). In the former case the Single Bench of the Kerala High Court held that women cannot be arrested for recovering money in executing the order of the Consumer Forum and regarding recovery of money from others arrest can be ordered only if it is found that the person concerned have means to pay and they are neglecting to pay the amount, while in the latter case it was held that the Consumer Forum had no jurisdiction to deal with the fare stages or fares of stages carriage and the passenger in a bus is not a consumer for the purpose of the Consumer Protection Act. To my mind, with due respect to the highest Court of the State, both the judgments are not justifiable both on legal and factual grounds.

In both the cases, the decision of the Consumer Forum were challenged before the High Court without taking up the same before the Appellate Forum provided under the Consumer Protection Act, 1986. Thus, at the very outset, there arises a question, whether an order passed by the Consumer Forum or the Commission, as the case may be, is amenable to writ jurisdiction under Art. 226 of the Constitution of India?

The Consumer Protection Act ,1986, has been introduced with the avowed object of providing better protection of the interests of the consumers by way of settlement of consumer disputes through swifter and cheeper machinery. The Act has created hierarchy of bodies to hear the appeal. The order passed by the District Forum is appealable before the State Commission under S.17 of the Act and an order passed by the State Commission is appealable before the National Commission under S19 of the Act. An order of the National Commission can be challenged in appeal before the Supreme Court under S.23 of the Act. The Forum constituted under the Act is entitled to decide a consumer dispute and whether the complainant before it is a consumer or not within S.2(d). If the Forum decides the said question wrongly, its order, made following the procedure prescribed in the statute, can be questioned in the manner provided under the Act. The very purpose of the Act and the intention of the Parliament would be defeated if the High Court is allowed to interfere in the proceedings of the Consumer Courts created for speedy disposal of consumer disputes. The Forum, State Commission as well as the National Commission must be allowed to discharge their duty speedily and without any interruption or judicial intervention. Of course in A. V. Georgekutty v. State of Kerala and Ors. (AIR 1994 Kerala 19) and in Babu Joseph v. CDR Forum (1997 (1) KLT 679) the High Court held that if there is serious miscarriage of justice, complete jurisdictional error and compelling reasons, it can, in rarest of rare cases, interfere in the proceedings of the Consumer Forum. No such compelling reasons or jurisdictional error are there in both the cases now under discussion.

In Jancy Joseph v. Union of India(1999 (1) KLT 422), it was on the assumption that S.27 of the Act prescribes one of the modes of the execution of the Forum that the High Court arrived at the conclusion that women cannot be arrested for recovery of money in execution and the means of the judgment debtor should be considered when the power under S.27 is exercised. In fact only S.25 of the Act prescribes the modes of execution. S.27 is only a penal provision. By invoking S.27 alone the order of a Forum cannot be executed; it can only be executed by invoking S.25. S.27 is made with a view to persuading the judgment debtor to comply with the order whereby enabling the Forum or the Commission to enforce its order as quickly as possible. The Hon'ble High Court was of the view that the Forum has no power to order the arrest of a woman for recovery of amount in view of S.56 of the Civil Procedure Code, which says that no Court shall order the arrest or detention in the civil prison of a woman in execution of a decree for recovery of the amount. First of all S.56 of CPC is not applicable to the proceedings before the Consumer Forum in view of S.13(4) of the C.P. Act. As per S.13(4) the District Forum shall have the same power as is vested in a Civil Court under the Code of Civil Procedure 1908 only in respect of the six matters mentioned hereunder. Execution and arrest do not find place in the said six matters. Secondly, S.56 of the C.P. Code is applicable only in the case of execution of a decree. As already stated, S.27 of the Consumer Protection Act does not deal with execution. Now by the verdict of the High Court, the order of the Consumer Forum can be enforced only as a decree of a Civil Court which w as never intended by the Parliament while enacting the law. Moreover in the instant case the Original Petition has been filed seeking a prayer to declare that S.27 of the Act is unconstitutional and for a further prayer that the petitioner being a woman cannot be arrested or detained in civil prison. The question whether a person of no means can be arrested for the recovery of money was neither raised nor argued in the Original Petition. In that extent, the verdict of the High Court passes 'precedents subsilentio'. One of the objects behind the Consumer Protection Act is to overcome the process of long delayed and harassing proceedures and technicalities in the Civil Court. The entire object of the Act would be defeated if the provision of arrest and detention in Civil Procedure Code is made applicable to S. 25 and 27 of the Act. The Act itself is enacted to provide for better protection of the interest of the consumer as stated in the preamble. The Apex Court has also ruled in Lucknow Development Authority v. M.K. Gupta (AIR 1994 SC 497) that the provision of the Act has to be construed in favour of the consumer to achieve the purpose of enactment as it is a social benefit-oriented legislation.

In Malappuram Bus Private Operators Association v. Mohan(1992 (2) KLT 898), the Hon'ble High Court while holding that Consumer Forum has no jurisdiction to deal with the fare stages or fares of stage carriage did not interpret S.3 of the Consumer Protection Act in its proper perspective. The provision contained in the Motor Vehicles Act 1988 would not be a bar for the jurisdiction of the machinery created under the Consumer Protection Acton account of S.1(4) and 3 of the Consumer Protection Act. The Act itself contains all the inclusive and exclusive clauses. S.3 says that the remedy afforded under the Act is in addition to the other remedies which may in existence. S. 1 (4) provides that "save as otherwise expressly provided by the Central Government by notification the Act may apply to goods and services". Therefore, the existence of any provision in any other law will not be a bar for the machinery created under the Consumer Protection Act unless that law is posterior to the Consumer Protection Act and contains a specific provision to the effect that the jurisdiction of the Consumer Protection Act is ousted. The Motor Vehicles Act, 1988 is anterior to the Consumer Protection Act, 1986. The Hon'ble High Court further went to the extent of saying that a passenger in a bus is not a consumer as defined under S.2(d) of the Act. The expression service as defined by the 1986 Act means service of many description which is made available to a potential user and includes provision of facilities, inter alia, in connection with transport. Thus, it is patently clear that a passenger in a bus is a consumer as defined under S.2(d) of the Act. This becomes obvious when one reads the pro vision dealing with the definition of 'complaint' in S.2(c) and 'service' in S.2(o) of the 1986 Act.

These two judgments, which narrowed and curtailed the scope and ambit of the Consumer Protection Act, require reconsideration by a larger Bench.