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.

Anomaly with Section 38 of Kerala Chitties Act

(By Jose Makil, Advocate, Kottayam)

Chitty is an indegenous device of practicing thrift popular for long time especially among the lower and middle income groups. By contributing smaller amounts of instalments and that too, during a short span of say 25 to 50 months, big sums can be procured which can be used say for purposes of daughters' marriage, for purchasing property, mustering capital etc. etc.

This is a panacea for the present economic crunch, non availability of funds, and will inculcate financial austerity which leads to economic redemption.

There are three wings to chitty functioning. Firstly Foreman who organises the subscribers, give security to the register, give bid amounts to the prized subscribers by security and in default realizes amounts from them. Secondly the prized subscriber who bid the chitty by lossing discount to a maximum of thirty percent and pay the further instalments punctually and he has also to pay foreman's commission. Thirdly non-prized subscriber has to remit the instalments punctually, after deducting Veethapaliza.

Veethapaliza is the amount of discount divided between the subscribers.

While the rights of the foreman is to get fully the first instalment to receive Veethapaliza for his subsequent subscriptions and foreman's commission, the prized subscriber has to get his prized amount less foreman's commission and Veethapaliza for subsequent instalments.

But in the case of non prized subscriber he has to remit his share of amount less Veethapaliza and Foreman's Commission.

But there is an unjust clause in the present Kerala Act that even if the non prized subscriber is at a fault to remit instalments, he is entitled to Veethapaliza.

S.38(1) of the Kerala Chitty Act is reproduced below:

"Refund of non prized subscriber's subscription(1) Except in the case of termination of a chitty under Clause (A) or Clause (B) of S.36 every non-prized subscriber shall unless otherwise provided for in the Variola, be entitled to get back his subscriptions at the termination of the chitty without any deduction for Veethapaliza. if any. received by him."          (underline supplied)

This is unjust in the sense that when the non prized subscriber defaults, the foreman has to pay his prized subscribers from his pocket.

This leniency to non prized subscriber will disturb the harmony between foreman and prized subscriber.

Moreover while the prized subscriber defaulter has to forgo his Veethapaliza in a lump for future subscriptions, his non-prized defaulter counterpart retain the privilege for Veethapaliza which is unfair and unequitable.

But in the previous Travancore Act (XXVI of 1120) as per Ss.25 & 27, the defaulter non prized subscriber would also forfeit Veethapaliza if there is a provision in the Variola. The said sections are reproduced below:

S.25. "Non prized subscribers to pay subscription and get receipts. Every non prized subscriber shall by his subscription at the time and place mentioned in the variola and shall on such payment be entitled to get a receipt from the foreman. In default of such payment, he shall be liable to such consequences as are provided for in the Variola", (underline supplied)

S.27. "The time when a non prized defaulting subscriber is entitled to recover contributions (1) A defaulting non-prized subscriber shall be entitled at the termination of the Chitty to recover from the foreman his contributions subject to such deduction as may be provided for in the Variola".(underline supplied)

Thus in 40 months duration chitty, if there is a provision in Variola, that if a non prized subscriber default say after the 15th instalments, he has to forgo the whole of Veethapaliza earlier received as per receipt, if after 30th instalment the subscriber has to forgo 25% Veethapaliza, if after 35th instalment the deduction may be 50%. The deducted Veethapaliza can be distributed among other subscribers on termination of Chitty. Hence the above said S. 38 of present Act is liable to be challenged

Departure of Lord Denning - A Tribute

(By Justice C.K. Thakker, Judge, High Court of Gujarat, Ahmedabad)

As earth thy body keeps, thy soul the sky,

So shall this verse preserve thy memory;

For thou shall make it live,

Because it sings of thee.

On March 5, 1999, Lord Denning passed away. After completing 100 years of age, the Master of the Rolls left us leaving behind him plethora of precedents, several memorable judgments and numerous thought provoking books1.

Often innovative, occasionally controversial and undoubtedly a great Judge of twentieth century, Lord Alfred Thompson Denning, popularly known as "Tom Denning" was born on January 23, 1899 at Whitchurch in Hampshire. After graduating from Oxford University, he was called to the Bar in 1921. In 1944, Lord Denning was appointed as a Judge of the High Court. In 1949, he was promoted to the Court of Appeal and in 1957, to the House of Lords. In 1962, he was appointed the Master of the Rolls and occupied that position upto 1982.

The contribution of Lord Denning will never be forgotten by legal world. Take any branch of law and you will find judgments of Lord Denning. May it be Contract or Tort, Equity or Trust, Family matters. Landlords and Tenants, Town Planning, Housing Development, Labour Law, Interpretation of Statutes, Administrative Law or Constitutional Law, there are bound to be important decisions of Lord Denning.

Lord Denning believed in doing justice - full and complete. He, therefore, interpreted statutory provisions in the light of the ultimate goal to be achieved, which was Justice. Inspite of the limitations of a Judge, according to him, it was possible to do justice to the cause by interpreting law as required in the case on hand. In his words, "a Judge must not alter material of which it is woven but he can and should iron out the creases."2 Though, the House of Lords did not approve the view of Lord Denning and described it as "a naked usurpation of the legislative function "3, it cannot be gainsaid that in interpreting a statute, a Judge should not be oblivious and ignorant of justice.

In upholding the right of locus standi. Lord Denning did not stick to the traditional view of "person aggrieved". He evolved the concept of "sufficient interest" of an applicant who approaches a court of law."4

In R. v. Greater London Council, ex parte Blackburn,5 prohibition was sought restraining the Council from illegally exhibiting pornographic films. Locus Standi of Blackburn was challenged. Negativing the contention and upholding locus standi of the applicant, Lord Denning observed; "If Blackburn had no sufficient interest, no other citizen had and in that event no one would be able to bring an action for enforcing the law and transgression of law would continue unabated". Though House of Lords reversed the decision of Lord Denning 6, in his well known work7, Lord Denning said; "I must confess that whenever an ordinary citizen comes to the Court of Appeal and complains that this is that Government Department - or this or that Local Authority -or this or that Trade Union - is abusing or misusing its power -I always like to hear what he has to say." (Emphasis supplied)

In the field of Administrative Law, the contribution of Lord Denning will be remembered for all time to come. In English Legal system, which was under the influence of Dicey, it was Lord Denning who openly proclaimed; "It may truly now be said that we have developed system of administrative law". He delivered several judgments on the principles of natural justice. Regarding bias, his views were unambiguous and clear. Applying the test of likelihood of bias, he ruled that the Presiding Officer must be above bias or prejudice. Reiterating the test of Lord Hewart, C.J.8, that "Justice should not only be done but manifestly and undoubtedly be seen to be done"; and of Lord Bowen, J.9 that "Judges, like Caesar's wife must be above suspicion", Lord Denning said; "Reason is plain enough. Justice must be rooted in confidence andconfidenceis destroyed when right minded people go away thinking 'the Judge was biased' "10 (Emphasis supplied)

Often the concept of "natural justice" was criticised describing it as an "unruly horse". The reply of Lord Denning was that, "With a good man in the saddle, unruly horse can be kept under control. It can jump over obstacles. It can leap fences put up by fictions and come down on the side of justice."11

About the right to be represented by a counsel, Lord Denning asserted that "when a man's reputation or livelihood is at stake, he not only has a right to speak by his own mouth but has also right to speak by Counsel or Solicitor. Even a prisoner can have his friend." 12(Emphasis supplied)

In 'Delegated Legislation', Lord Denning declared that "whereas administrative function can often be delegated judicial function rarely can be. No judicial Tribunal can delegate its function, unless it is enabled to do so expressly or by necessary implication." Lord Denning said; "When an Act is held ultra vires, it is null and void and of no legal effect whatsoever. Such void act cannot even be ratified subsequently. Effect of ratification is to make it equal to a prior command but as a prior command in the shape of delegation would be useless, so also is a ratification".13

His contribution to the "Doctrine of Estoppel" is unique in nature. Under the traditional law, the doctrine could be used only as a defence but could not be made the cause of action. In other words, it could be used as a shield but not as a sword 14. Lord Denning challenged the limited application of the doctrine. In his opinion, the doctrine was based on equity, where justice would prevail over truth. In High Trees,15Lord Denning held that the doctrine of estoppel need not be inhibited by narrow application as defence and it was open to the applicant to invoke the doctrine of equitable estoppel * to get appropriate relief from a competent Court.

Lord Denning believed in preservation and maintenance of Rule of law. Hence, when injunction was sought against an illegal act of a public authority and it was contended by the authority that if injunction were granted, there would be administrative chaos, Lord Denning proclaimed; "I must say this: If a local authority does not fulfill the requirements of the law, this Court will see that it does fulfill them. It will not listento suggestion of chaos...................Even if chaos should result, still law must beobeyed."16(Emphasis supplied)

Lord Denning was a progressive Judge. He believed in doing justice to the case on hand. His judicial philosophy is reflected in the following statement; "My root belief is that the proper role of the Judge is to do justice between parties before him. If there is any rule of law, which impairs, the doing of justice, then it is the province of the Judge to do all that he legitimately can to avoid that rule - or even to change it - so as to do justice in the instant case before him. He need not wait for legislation to intervene; because that can never be of any help in the instant case".17

He was, however, conscious of the limitations of a Judge and hence proceeded to state; "I would emphasise, however, the word "legitimately"; the judge is himself subject to law and must abide by it."18

He reiterated what Thomas Fuller said more than three centuries ago; "Be you ever so high, the law is above you."19

Lord Denning always emphasised that a judge must be cool, quiet and sober. He stated; "One thing a Judge must never do. He must never lose his temper."20

Lord Denning was a champion of personal liberty and individual freedom, but not at the cost of interest of society at large. According to him, a balance must be struck between private rights and social security. In a country where Parliament is sovereign and can do everything, "but make a woman a man and a man a woman". Lord Denning stated; "To my mind it is fundamental to our society to see that powers are not abused or misused. If they come into conflict with freedom of an individual or with any other of our fundamental freedoms, then it is the province of the Judge to hold the balance between the competing interests.21

Lord Denning was very popular with law students. Mr. Alex Lyon, M.P. who was a law student said; "Lord Denning was my great Hero when I was a law student. I used to go to sit in the Court just to listen to him. He has a beautiful voice and beautiful delivery but I was also enthralled by what he was doing to the law to advance it into the twentieth century."22

On his seventy-ninth birthday, a student from the University of Toronto sent a birthday card to Lord Denning. It was a cartoon showing a horse and a rider leaping over a fence and was titled; "Obstruction to Justice." The horse had a streamer on his tail, with a label, 'Public policy'. The rider was a Judge, in joyous mood and in full control, with wig and gown flying. Lord Denning was very much pleased and replied wishing that the students should become good horsemen and horsewomen.23

On July 31, 1982, farewell was given to Lord Denning on his retirement. In valedictory speech, the Lord High Chancellor, Lord Hailsham of St. Marylebone said; "It is given to few men to become a legend in their lifetime. There would be few in this country who would deny that Lord Denning is one of these few. From the numbers and standing of his own fraternity of the law assembled here today to do him honour, we can readily infer, that he has been and is a golden legend."

The Lord High Chancellor concluded:

"Without him, things will never be quite the same again. I like to think that notwithstanding his retirement our period of creativity will not quite come to an end, still less relapse once more into quiescence. But, master of the Rolls, we shall miss you. We shall miss your passion for justice, your independence and quality of thought, your liberal mind, your geniality, your unfailing courtesy to colleagues, to counsel, and to litigants in person who, like the poor, are always with us, particularly in the Court of Appeal. Above all, we shall miss you and your gift of friendship, your sturdy independence, and your unflagging and effervescent enthusiasm. Now you belong to history. But here you see around you a company of admirers and friends. We wish you well, both you and Lady Denning. Come and see us often. Wherever lawyers are gathered together they will always rejoice to see you in their midst."24

Many Judges have been admired for their learning and erudition but Lord Denning was loved by one and all. It was because of his basic humanity, unfailing courtesy and kindness towards litigants, lawyers and brother judges. Lord Scarman said; "He was the finest judge that I ever met in my time, one of my heroes." Lord Woolf, the present Master of the Rolls recalls how Lord Denning guided him when he was a young advocate. Rich tribute was paid by Lord Chief Justice Bingham when he stated; "Lord Denning was the best known and best loved judge of this, or perhaps any generation".

The author was fortunate enough to have Lord Denning's blessings in all his works25. Though the author had no occasion to meet Lord Denning personally, he would always cherish the memory of Lord Denning for the blessings and encouragement extended to him for the last more than six years.

Though Lord Denning is not with us today, one should remember that "the fact that we cannot see our friends or communicate with them after transformation which we call 'death' is no proof that they cease to exist."

We can only pray God for eternal and everlasting peace to the departed soul by stating what Alic Gary said:

''Ye doubting souls, from doubt be free-

ye mourners, mourn no more;

For every wave of Death's dark sea,

Breaks on that blissful shore".

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1."Freedom under the Law" (1949); "The Changing Law" (1953); "The Road to Justice" (1955); "The Discipline of Law" (1979); "The Due Process of Law" (1980); "The Family Story" (1981); "What Next in the Law"(1982); "The Closing Chapter" (1983); "Landmarks in the Law" (1984).

2. Seaford Court Estates Ltd. v. Asher;(1949) 1 KB 481; (1949) 2 All. ER 155; (AC) See also Asher v. Seaford Court Estates Ltd.; (1950) All. ER 1018; 1950 AC 508.(HL)

3. Magor & St. Mellons Rural District Council v. New Port Corporation; (1951) 2 All ER 839:1952 AC 189.

4. Attorney General of Gambia v. Pierra Sarr N'Jie; 196l AC 617: (1961) 2 All ER 504: (1961) 2 WLR 504:(196l) 2 WLR 845: Maurice v. London County Council; (1964) 2 QB 362; Attorney General ex rel Mc Whirter v. lndependent Broadcasting Authority; 1973QB 629: (1973) 1 All ER 689: (1973) 2 WLR 344; Rex v. Greater London Council, ex parte Blackburn; (1976) 3 All ER 84: (1976)1 WLR 550; Gouriet v. Union of Post Office Workers; (1977) 1 All ER 6960: (1977) 2 WLR 310: 1977 QB 729

5. (1977) All ER 696: (1977) 2 WLR 310: 1977 QB 729(CA)

6. Gouriet v. Union of Post Office Workers (1977) 3 All ER 70; (1977) 3 WLR 300:1978 AC 435 (HL).

7. “The Discipline of Law” (1979); P.144; See also V.G. Ramachandran;" Law of Writs"; (1993); pp. 24-25.

8. R.V. Sussex Justices; (l924) 1 KB 256 (259): 1923 All ER 233:93 LJKB 129.

9. Leeson v. General Council of Medical Education & Registration; (1889) 43 Ch D 366 (385): 1886-90 All ER 78:61 LT 849.

10. Metropolitan Properties Ltd. v. Lannon;(1069) 1QB 577 (578): (1968) 3 All ER 304: (1968) 3 WLR 394.

11. Enderby Town Football Club Ltd. v. Football Assn. Ltd.; 1971 Ch D 591 (606): (1971) 1All ER 215; See also "The Discipline of Law" (1979); pp. 170-73.

12. Pett v. Greyhound Racing Association (I); (1968) 2 All ER 545 (549) : (1969) 1 QB 125 (132) : (1968) 2 WLR 1471.

13. Barnard v. National Dock Labour Board; (1953) 1 All ER 1113 (1119):(1953)2 QB 18; see also "The Discipline of Law"(1979);pp 79-81.

14. "The Closing Chapter"; (1983); pp 254-57; "The Discipline of Law"; (1981); pp 199-223.

15. Central London Property Trust Ltd. v. High Trees House Ltd.; (1947) 1 KB 130; (1946) 1 All ER 256; see also Robertson v. Minister of Pensions; (1948) 2 All ER 767: (1949) 1 KB 227; Lever(Finance)Ltd. v. Westminister Corporation; (1970) 3 All ER 496:(1971) 1QB 222.

16. Bradbury v. London Borough Council; (1967) 3 All ER 434 (441): (1967) 1 WLR1311.

17. "The Family Story"; (1981) p. 174.

18. Ibid. It was however, doubtful whether the word "legitimately" had any significance in view of another statement;

"I never say 'I regret having to come to this conclusion but I have no option. There is always a way round. There is always an option - in my philosophy - by which justice can be done'." "The Family Story"; (1981); p. 208.

Jowell & McAuslan; "Lord Denning: The Judge and the Laws"; (1984); p.80.

19. "The Family Story";(1981); p.l79.

20. Ibid; at p. 206.

21. Ibid; at p. 179; see also "Freedom Under the Law"; (1949); p. 179; "The moral of it all is that a true balance must be kept between personal freedom on the one hand and social security on the other."

22. "The Listener"; September27, 1979.

23. "The Discipline of Law"(1979);pp. 172-73.

24. "Farewell to Lord Denning"; The Lord High Chancellor Lord Hailsham of St. Marylebone; on July 30, 1982.

25. Justice C.K. Thakker; "Administrative Law": (1992); V.G. Ramachandran; "Law of Writs"; Fifth edition by Justice C.K. Thakker; (1993); "Criminal Procedure"; (1994); "Civil Procedure"; (1997); "Lectures on Administrative Law" (1998); Ratanlal & Dhirajlal "Law of Crimes"(24th edn.) by Justice C.K. Thakker (1998).