A Dead Proviso

(By R. Rama Narayana Prabhu, Advocate, Ernakulam)

As we all know, all the tenants under the Kerala Buildings (Lease and Rent Control) Act, 1965 are entitled for protection against eviction under S.11(3) by the grace of 2nd proviso to S.11 (3) of the Act. it is also a well settled preposition that whoever claims protection under any proviso shall prove that he is entitled for the protection. When it comes in the case of 2nd proviso protection the burden to prove the same is heavy on the shoulders of tenants.

2. Before going in deep with regard to the various aspects of the 2nd proviso, it will not be out of context to mention about the background for the Rent Control Legislations. Act 2 of 1965 is a welfare legislation, intended to prevent illegal and arbitrary eviction of tenants by the landlords, under the ordinary law. In Nagindas v. Dalpathram (AIR 1974 SC 471) the Apex Court of India justified the Legislative intention behind the various Rent Control Legislations in the country.

3. It is also to be borne in mind that, in order to meet the socio-economic crisis which was the off shoot of the Second world war, the Legislatures enacted various Rent Control Legislations such as the Madras Buildings (Lease and Rent Control) Act, 1949, the Travancore-Cochin) Building Lease and Rent Control) Order 1950, the Kerala Buildings (Lease and Rent Control) Act, 1959 etc. in order to check illegal and arbitrary eviction and demand of higher and unconscienable rent by the landlords.

4. But, what about the present socio-economic condition prevailing in the State? If we are keeping a close eye, it can be seen that the socio-economic conditions are changing rapidly. Now, the tenants are no longer a weaker section as they were. They are affluent and strong enough to stand on their own legs, without any support from the landlords. The tenants 'now a days' are not dependent on their landlords for the building. Most of the tenants are having buildings of their own and the remainder is capable of putting up the buildings. They are making handsome profit out of their businesses, conducted in the tenanted buildings.

5. Now we return to 2nd proviso to S.11(3) which reads as follows:- 'Provided further that the Rent Control Court shall not give any direction to a tenant to put the landlord in possession, if such tenant is depending for his livelihood mainly on the income derived from any trade or business carried on in such building and there is no other suitable building available in the locality for such person to carry on such trade or business'.

There are two limbs for this proviso (i) if such tenant is depending for his livelihood mainly on the income derived from any trade or business carried on the such building and (ii) and there is no other suitable building available in the locality for such, person to carry on such trade or business.

Here the tenant has to prove both these limbs then only he will be entitled to the protection, otherwise not. In order to prove the first limb, the tenant can produce books of accounts, balance sheet etc. of his business. If the tenant has other business apart from the business conducted in the tenanted premises, he has to produce relevant documents of that business before the Court for a comparison as to his main source. But the irony is that, if a tenant is conducting a 'multi crore' turnover business in the tenanted building and conducting a 'multylakh' turn over business in another building, is it a fit case to grant protection saying that the tenant is depending for his livelihood mainly on the income derived from the 'multi crore' turnover business carried on in the tenanted building? The answer is 'No'. Then how can the Court grant benefit to a tenant who is really depending for his livelihood mainly on the income derived from the trade or business carried on in the tenanted premises? The answer is very simple. He shall produce all the relevant documents of his business to prove the same before the court and also adduce oral evidence to that effect and here the court can adopt the 'test of comparative hardship' to ascertain whether the tenant is entitled for the protection of first limb of second proviso to S.11(3) of the Act.

6. The test of 'comparitive hardship' envisaged under S.11(10) suits to second proviso to S.11(3) rather than to S.11(8). The Court, on the evidence on record, can come to a conclusion by applying the said test. If the available evidence leads to a irresistible conclusion that the hardship which may be caused to the tenant by granting eviction will out weigh the advantage to the landlord, it may grant protection to the tenant as to first limb otherwise not. By this test of comparative hardship the Court can do justice to those tenants who would be on roads if the eviction is ordered. Hence word 'livelihood' assumes great importance in deciding the matter.

7. Then comes the second limb:- Here the tenant has to prove that no other suitable buildings are available in the locality. The tenant cannot escape from the burden saying that it is a negative proof. In landmark decision reported in 1976 KLT 1 (D.B.) our High Court held that 'it is capable of easy and positive proof by examination of Accommodation Controller or such other effective means'. One could see many practical difficulties in relying the 'vacancy register' maintained by the Accommodation Controller. Invariably the 'Vacancy Register' also will be 'Vacant' and to the contrary one could see numerous new building bearing 'to let' boards. Here the words 'such other effective means' employed in 1976 KLT 1 assumes great importance by which the tenant is duty bound to plead and prove by effective means that 'no other suitable buildings are available in the locality'. The 'suitability' of the building may vary with the size of the pocket of the tenants. But by means of the relevant documents that to be produced by the tenant to prove the 'main source' the court can also come to a conclusion that whether the tenant can afford the building available in the locality, in deciding the second limb to proviso (2) to S.11(3) of the Act.

8. The decision of our High Court (D.B.) reported in 1999 (3) KLT 373 in my opinion created some confusion with regard to the 'burden of proof under second proviso to S.11(3). But the Hon'ble High Court of Kerala in another decision reported in 2000 (3) KLT 809 explained 1999 (3) KLT 373 and held that 'we do not see anything in the decision of this Court in Krishnankunju Raveendran v. Sukumara Pillai, which compells us to take a different view' and further held that 'mere oral assertion without any supporting materials to show the income is not sufficient to prove that the tenants are mainly depending for their livelihood on the income derived by them from the business carried on in the petition schedule building'. 'The evidence regarding the income derived by them is peculiarity with in their knowledge and the best available evidence should be produced by them', and the Hon'ble High Court settled another controversy by further holding that', 'It cannot be expected that a tenant would now get a building on the rent that he originally agreed to pay to his landlord, in the same locality and in the same town. Rents have gone up. He will have to pay the prevalent rent in the locality consistent with the economic situation now obtaining'. 'The use of the expression 'suitable building' can only mean suitable for his needs'. 'Thus the Hon'ble High Court interpreted the word 'suitable building' also.

9. On the analysis of the second proviso, facts and the case laws discussed herein above, one could see that the burden to prove the second proviso to S.11(3) of the Act becomes heavier and heavier on the shoulders of the tenants. The tenants have to plead and prove by cogent evidence, oral as well as documentary both the limbs of second proviso which is practically impossible. Proving of only one limb will not entitle the tenant for such protection. Hence one cannot be blamed in saying that the second proviso to S.11(3) of the Act is 'a dead proviso'.

Dismissal of Complaint Under S.203 Cr.P.C. A Misconception

(By E.P. Abu, Advocate, Mannarkkad)

In dissenting with the order reported in 2001 (2) KLT SN 48 (Cases No. 55), the writer of the article in 2001 (3) KLT, page 9 has misconceived or perhaps misinterpreted the order of Hon'ble Mr. Justice N. Krishnan Nair.

What the order implies is that the Magistrate should not dismiss the complaint strait away on seeing that there is no offence made out in the complaint itself.

What S.203 Cr.P.C. envisage is that after considering the statement of complaint and witnesses on oath the court sees that there is no offence made out, it is but to dismiss the complaint, not before that.

Certainly the court need not wait until the statement is recorded, but even if there the complaint itself does not reveal an offence, what the provision desires that the Magistrate should consider the statement of complainant and witness on oath and if this statement made out an offence then the Magistrate shall proceed with the case, lest ends.

It does not mean that the Magistrate should wait for the statements of complainant and witnesses, but only when the complainant render his presence to the access of the court and then, only then the Magistrate should enquire into the matter after considering the statements of the complainant and witnesses.

It is not mandatory on the part of the Magistrate that the court should wait for a long time to get the statements recorded, but, when complaint itself does not reveal any offence, the complaint should not be dismissed without filing statements on oath of the complainant and witnesses, if he himself made available to the access of the court.

That is what is intended by the decision, according to me.

Medical Negligence Aspects of Litigation

(By M.J. Kuruvilla, Advocate, Cochin)

Tremendous changes that took place in the last few years have shattered many concepts governing human relations. Real property has receded to the back yard. Intellectual property has taken its place. A variety of goods hitherto unknown and provision of services never contemplated before have made their appearance on the scene. Defective goods and deficient services have appeared in abundance everywhere. Exploitation of the consumer has reached an all time record. The Consumer Protection Act, 1986 should be viewed against this background.

The Act had been amended in 1991 and in 1993. The amendments were made so that the Act became more comprehensive. The services of the professionals like the doctors were not in the ambit of the Act till the Supreme Court judgment in 1996 in IM.A. v. V.P. Shanta. The patient became a consumer of service and the doctor the provider of such service.

Let us examine whether the provisions of the Act bite or only bark. It may also be examined whether they are in fact made applicable. So too whether this Act has boomeranged and adversely affected the patient's interest. No doubt this Act has served as an open invitation to speculative litigation. The inexpensive nature of litigation and the gambling instinct in human nature together have played havoc.

To impose deterrent penalty on the litigant if he is found guilty of malice or is motivated by extraneous considerations to curb vexatious and frivolous litigation is a step in the right direction. But the very purpose of the Act will be defeated if the deserving patient is scared away. While the patient should never suffer the doctor should never be penalised unjustifiably. Mass education and spread of legal literacy alone could provide a comprehensive solution.

The public and the medical and the legal professionals should clearly understand what constitutes professional negligence. In a nutshell, it is the knowledge about the legal injury resulting in the course of care or service rendered by a professional due to lack of his due and reasonable care. We will confine our attention to medical negligence. The fact that something went wrong or the patient suffered is no solid ground for litigation. The basic question in litigation is whether the patient has suffered due to negligence on the part of the doctor who provided the service for consideration.

The ingredients of negligence are well known. The first ingredient is the duty of care on the part of the doctor. As soon as the doctor accepts a patient this duty starts. The question is whether the doctor has accepted the patient and if so at what point of time. The moment a patient walks into a doctor's chamber the doctor patient relationship is not established. The patient should make sure the type of service he wants to obtain from the doctor and whether the particular doctor can provide that service. If a patient goes for a consultation what the patient can legitimately expect is just advice regarding his ailment and may be advice regarding its management, but not the actual managements. This is grossly correct. But if the patient is in need of urgent medical help which the doctor is capable of providing and there is a risk involved in delay if he is referred else where the doctor has an implied responsibility to render that emergency care. In technical terms it means that the doctor has to stabilize his patient, if it is within his competence, before he is referred elsewhere. Neither should the doctor embark on any therapeutic adventure that is not in the patient's interest. It could even be disastrous.

Ordinarily the doctor has a right to choose his patient. But in an emergency he has no choice but to take up responsibility if he is available and capable of such service. It has been said time and again that there are situations where a surgeon has to perform surgery even in a kitchen with the patient on the kitchen table with the kitchen knife as the only tool. This is not just his moral or ethical duty but his legal duty. Tracheotomy is such a procedure if a patient is choking with a foreign body in his throat. Indecision kills, so does undue delay.

The second aspect is the breach of the duty to care. The doctor has the duty to decide the modality of treatment. The judgment can go wrong. But the process of decision making must be faultless. If there are more than one method of dealing with clinical situation, he should choose that which is best for the patient. In any clinical situation there is only one best treatment. Others are all but the next best ones. When a doctor chooses an alternative he must have reason to do so. The infrastructure, the feasibility, the tangibility and various other factors may contribute to his decision. But he has the duty to elaborate and be transparent.

There is a general apprehension among the public that it is difficult to establish medical negligence. Many lawyers share this apprehension as well. The truth is that one cannot prove negligence where it does not exist. On the other hand where there is negligence, there is absolutely no difficulty to establish it. The initial task of the lawyer is the precise location of the negligent act. The next is a proper description of the act so that it stands out against the clinical background.

It is clear from the discussion that unless the patient or his counsel knows clearly what is the 'right approach in a particular clinical situation' one cannot put his finger and say 'this is the negligent act of omission or that is the negligent act of commission'. So too the doctor should, not only know what the law expects him to do, but also do that and properly account for his act before law.

We often quote Lord Denning's judgment in which his Lordship said that he could not attribute negligence if the doctor has followed one standard method of treatment. What was really admitted was the inability of the court to decide the case. His Lordship's judgment was just and correct in 1953. Not so in 2001. Now we know better. We are able to decide what the doctor should have done in a particular case. Prudence and reason should prevail over emotion and foolhardiness. It may not aways be possible to offer the best for the patient. But the doctor should account why he deviated. Error in judgment is not culpable. But with the information available and with the facility that is present a culpable error is one that "a reasonable doctor would not make under identical circumstance. That is the criterion for making a decision.

The third aspect concerns the damage suffered. In spite of duty to care and breach of that duty if the patient has not suffered damage, a verdict of negligence will not be forthcoming. The cause effect aspect has to be positively established.

The patient and the relations depend on the symptoms and feelings of wellbeing for the assessment of their disease and the outcome of the treatment. The interpretation of investigation and tests is equally difficult. They have little idea about the advantages and disadvantages of the different modalities of treatment. Unfortunately the doctor seldom offer a satisfactory explanation for his action. This is not because there is none, but due to the inability of the doctor and his counsel to explain his nonculpability.

There are a lot of misconceptions about investigations. It is settled medical practice that an investigation should be done only if that helps in the diagnosis or treatment. Even when an investigation is indicated the doctor should make sure that the risk involved in the investigative procedure does not outweigh the disadvantages.

The patient gets agitated and alleges negligence if something odd happens or if something does not happen the way the patient wants or anticipates. There is an ocean of difference between something happening in the natural course of events and the same or similar thing is made to happen.

There is confusion among the public regarding sequence and consequence. A surgeon operates and the patient dies the very next day. The events are in perfect chronological sequence. But to establish that the death is the consequence of the operation one has at least to provide conclusive evidence that the death would not have taken place had he not been operated.

Complication is another term that is often misunderstood. The word complication literally means something made worse or more difficult. An illustration may make matters clear. At one time the treatment for duodenal ulcer with gastric outlet obstruction was bypassing the obstruction. This is achieved by joining the stomach to the second part of the intestine called the jejunum by a side to side anastomosis. If instead of the proximal portion of the jejunum, the third part of the intestine viz. the ileum is used it is not a complication. It is an error in the technique. This is a negligent act. It is a disaster. The fact that it is referred to as a complication does not make it a complication. Nor the fact that bigger surgeons have made such, similar or worse mistake can be used to shield negligence.

Therapeutic errors are of two kinds. Procedural errors and executional errors. Procedural errors are due to errors in the sequence of the steps. These show lack of sufficient professional knowledge. The executional errors are errors in the performance of any one step. These are due to lack of professional skill. Both types of errors are culpable.

Several hazards are described in standard text books. They give details about difficult situations where caution should be exercised. The object is to ensure that the particular error or the group of errors does not occur. In the 60's the author was a student of surgery in England. He used to spend a lot of his time in a particular room in the Hunterian museum in Lincoln's Inn Fields. Specimens with the caption "Errors to be avoided" were the exhibits of attraction. One specimen was remarkable. It was the tracheo-broncheal tree of a soldier. The tracheotomy wound was demonstrated. Late Sir Barrette of Barrette Ulcer fame did the tracheotomy. A piece of arachnut was lodged at the tracheal bifurcation and completely occluded the right bronchus and partly the left bronchus and caused asphyxia death. The exhibit was intended to show the futility of a tracheotomy in such a situation. It cautioned against a possible mistake that should be avoided. It was never intended to provide a shield for those who make the mistake in the future.

Apparent health and wellbeing sometimes give wrong signals and even mislead. At times the actual state of affairs may be completely masked. The cataract patient provides the best illustration. Say, the patient was blind before surgery. He is blind after surgery too. The initial blindness was because of the opacity of the lens and could have been corrected by removal of the lens. But the blindness that followed surgery was because of the opacity that develops in the other refractory media of the eye. This blindness will not yield to simple measures. The patient has ended up worse than before though the patient will be oblivious of what has happened to him.

A number of tragedies can be cited. Worse still, some patients may feel better while really going downhill. The various bypass procedures done on patients with obstructive malignant growths that could be easily respected will bare testimony. They are crimes and fraud on the patients. It is true and the author cannot deny that sometimes one may have to pay a price to stay alive. In extreme circumstances one may have to part with a limb or a member just to survive.

Specialization and superspecialisation in medicine and law are not new. But the pace at which these are taking place now is phenomenal. Before separation of specialities there are common grounds. In course of time these areas become smaller and smaller and totally vanish. The pendulum has swung too far. Many specialities have drifted far apart. There are gray areas claimed by nobody. Medical negligence is in such a realm.

Defensive medical practice has been an anticipated problem. This amounts to the doctor starting to care more for his safety rather than that of his patient. The other problem is the increase in the number of complicated, invasive and expensive investigations resorted to. Of course this is to a large extent stage-managed by the industry and the business houses. A practical solution may be the introduction of a universal insurance scheme for doctors and hospitals. The scheme can be similar to the third party insurance scheme for motor vehicle accidents. The victims of medical mishaps could then be adequately compensated without burning the doctor's fingers. This will help the doctor to work without fear.

For fair dispensation of justice in medical negligence litigation the medical and legal professionals should clearly understand the concept of medical negligence. The terms like complication and the difference between terms like sequence and consequence should be properly comprehended. This information should not be stagnated and be confined to the professionals. It should percolate far and wide among the public at large.

"Soumini" Not Sound Law

(By M.R. Rajedran Nair, Advocate)

Soumini, found guilty offence under S.21 of the Narcotic Drugs and Psychotropic Substances Act, 1985, was convicted and sentenced to undergo rigorous imprisonment for 10 years and to pay a fine of Rupees one lakh, and to undergo rigorous imprisonment for one year more in default of payment of fine, by the 1st Additional Sessions Judge, Kozhikode. The High Court of Kerala, in the decision reported in 2001 (2) KLT 546, set aside the conviction and sentence and set her at liberty. Her acquittal by the High Court is just and proper for the reason that there was non-compliance with the mandatory requirements of Ss.42 and 50 of the NDPS Act. The High Court relied on the decision of the Supreme Court in Koluttumottil Razak v. State of Kerala (2000 (4) SCC 465).

But incidentally, in para 6 of the judgment, the following observations were made:

"Admittedly, Pw-1 was Additional Sub Inspector of Nadakkavu Police Station on the date of incident. The prosecution has no case that he was the Station House Officer at the relevant time. So as per S.41, PW-1 is neither empowered officer nor authorised officer. It is true that  there is a Government Notification G.O. (M.S.) 146/90/TD dated 22.10.1990 whereby the Government of Kerala had empowered all the officers in the Police Department of and above the rank of Sub Inspector of Police and all officers in the Excise Department of and above the rank of Excise Inspector to exercise the power and perform the duties specified in S. 42 of the NDPS Act within the area of their respective jurisdiction. But the notification has not been incorporated as Rule. As per R.78(3) [Sic. S. 78(3)], the same has to be placed before Legislature. Nothing has been brought to my notice to show that the notification has been placed before the Legislature and it has become a Rule. Hence it is to be found that PW.l is neither an authorised officer nor an empowered officer to detect the offence."

It is submitted that the finding that PW.l, the Additional Sub Inspector of Police Nadakkavu Police Station, was neither an authorised officer nor an empowered officer does not appear to be correct proposition of law. If that be the law it will have the startling consequence of almost all cases under the NDPS Act, 1985 ending in acquittal. An empowered Officer or authorized Officer need not necessarily be a Station House Officer. According to the relevant portion of S.41 (2) of the NDPS Act, any such officer of the Revenue Drugs Control. Excise. Police or any other department of a State Government, as is empowered in this behalf by general or special order of the State Government, if he has reason to believe from personal knowledge or information given by any person and taken in writing, that any person has committed an offence punishable under Chapter IV or that any narcotic drug, or psychotropic substance in respect of which any offence punishable under Chapter IV has been committed etc... may authorise any officer subordinate to him but superior in rank to a peon, sepoy or a constable, to arrest such a person, or search a building, conveyance or a place, whether by day or night, or himself arrest a person or search a building, conveyance or a place.

The learned Judge noticed that as per the Government Notification G.O. (M.S.) 146/90/TD dated 22.10.1990, the Government of Keralaempowered all the officers in the police department of and above the rank of Sub Inspector of Police etc... to exercise the power or perform the duties specified in S.42 of the NDPS Act. It cannot be disputed that PW-1, Additional Sub Inspector of Police is an officer of the rank of Sub Inspector of Police. But the court found that he is neither an authorised officer nor an empowered officer to detect the offence for the reason that the notification has not been incorporated as a Rule and nothing had been brought to the notice of the Court to show that the notification had been placed before the Legislature and has become a Rule.

Obviously, the Court was referring to the requirement under s.78(3) of the Act, according to which

"Every Rule made by the State Government under this Act shall be laid, as soon as may be after it is made, before the Legislature of that State."

The requirement of laying before die Legislature of the State is only with respect to Rules made by the State Government under the powers conferred by S.78 of the Act. S.77 requires that every Rule made under the Act by the Central Government and every notification issued under Clause (xi) of S.2, S.3 and clause (a) and explanation (1), (2) of S.27 shall be laid, as soon as may be after it is made or issued, before each House of Parliament. There is no requirement of laying the orders passed by the Central or State Government in exercise of the powers under S.41(2) before he Houses of Parliament or Legislature of the State. The Government orders will be effective as soon as it is published in the official Gazette. There is no requirement of incorporating the notification as a Rule.

Even in a case where there is requirement of laying before Parliament or State Legislature, the Rule or Notification will not always automatically become invalid for non-compliance with that requirement. The requirement of laying Statutory Rules or notifications before the Parliament or State Legislature is part of the mechanism of Parliamentary control of delegated legislation. There are different modes of laying. The rules and notifications may be simply laid as in S.78(3), or they may be subject to negative resolution as in S.77, or they may be laid with a stipulation that they would expire unless confirmed by affirmative resolution, or they may be laid in draft. In any case, the requirement is only to the extent stipulated in the parent Act. The Apex Court in Bharat Hari Singhania v.C.W.T. (1994 SCC Supp. (3) 46) held

"The requirement of laying before the House is one form of Parliamentary Control. But by that means, the rules does not acquire the status of the Statute made by the Parliament. Indeed the rules are effective as soon as they are made and published (emphasis supplied)".

In Atlas Cycle Industries v. State ofHaryana (1979 SCC (2) 196) the Supreme Court held that by S.3(6) of Essential Commodities Act, 1955 which ordained that every order made under that section by the Central Government or by any Officer or authority of the Central Government shall be laid before the both Houses of Parliament as soon as may be, after it is made, the legislature never intended that non-compliance with the requirement of laying as envisaged therein should render the order void.

The legal position was reiterated in State of M.P. v. Hukum Chand Mills Karmachari (1996 (7) SCC 81) in relation to S.95(3) of Madhya Pradesh Co-operative Societies Act, which reads as follows.

"95(3). All rules made under this Act shall be laid on the table of the legislative Assembly.

Even otherwise, there is always a presumption of validity of legislation including subordinate legislation. Even when there is a requirement of laying before Parliament or State Legislature, the subordinate legislation will not become invalid for not positively showing that the notification was placed before the Legislature. The burden to prove positively that the subordinate legislation is invalid for non-compliance with the laying procedure before the Parliament/State Legislature will be with the person who challenges the Rule/Notification.

In this background, it is submitted that while the acquittal of Soumini is right in view of the findings regarding non-compliance with Ss.42 and 50 of the NDPS Act, the reasoning for holding that the Additional Sub Inspector of Police, Nadakkavu Police Station, is neither an authorised officer nor an empowered officer to detect an offence is not correct statement of law.

Procedural Bottle Necks - A Study of Procedure for

Obtaining a Certified Copy of Order/Judgment - High Court

(By M.R. Rajendran Nair, Advocate)

Archaic procedure and absence of practical approach coupled with governmental indifference in financial matters contribute to avoidable delay in administration of justice.

High Court Judges are over burdened with judicial and administrative work. Appointments of Judges even to the extent of sanctioned strength are never made. There are Judges who dispose of large number of cases. The stenographers'/typists' strength is grossly inadequate in these areas. Computerisation is only halfway. But there are areas where with the existing infrastructure better result can be achieved and the procedure could be speeded up.

Let us have a look at the current procedure for gelling a certified copy of an order/ judgment of High Court.

Judgment is dictated to a stenographer either in open court or in chamber. Stenographer transcribes the judgment in duplicate and after carrying out the correction if any places it for signature of the Judge. After the Judge signs the judgment the same is pronounced in the open court, if not dictated in court. It is sent to another section for typing the cause title. After cause title is typed, the judgment along with the cause title is taken back to the stenographer of the Judge. There an entry is made in a register and thereafter the copy of the judgment is sent to the judgment section of copying section. Original judgment along with the file of the case is sent to the concerned section.

After pronouncement of judgment, the process of preparation and typing of cause title and routing the same through stenographer to the copying section takes considerable time.

A copy application with court fee stamp affixed is filed. If you want the copy urgently another application is to be separately filed with additional court fee. The application filed are distributed by the section officer concerned among the court fee examiners. They scrutinize the application. If it is free from defect the applications are sealed and court fees are cancelled by a class IV employee. The details of applications are entered in the court fee register separately kept for that purpose. Thereafter the applications are taken by a Class IV employee to copying section. It will be distributed among the concerned copyists. There are different seats for Appeals, Original Petitions, Civil Revision Petitions, Criminal Cases, pending matters etc. Those copyists enter the application in the "A" register maintained by the copying section. It is recorded in 'B' register also. 'A' register is open for inspection by advocate, clerk and clients. 'B'register is kept by the office.

Thereafter all the applications are sent to the judgment section, where the judgments are preserved. The judgments might not have reached that section by this lime in case of fresh disposal. Copy applications are sorted out and kept in order of priority based on application number, year wise. When the judgment reaches the section, application will be taken up and the application along with the judgment will be sent to another seat. A notice will be prepared by the assistant concerned indicating the value of court fee stamps to be produced in the notice book and the carbon copy of the same will be affixed on the notice board.

Therefore the advocate/clerk will produce the required stamps, before that assistant. The production of stamp will be noted on the copy application and the receipt of stamp will be accounted in a register namely 'Receipt'.

These stamps are kept in safe custody. Copy application with the judgment will be sent to photo copying section/typing section. The required copies are taken in that section. There is a procedure of comparing the original with the copy. But this requirement is dispensed with in cases where photocopies are taken. Copy of the order/judgment along with the original is the taken to the cabin of Registrar for affixing Court Seal on each page of the copy. Then the original judgment and copies taken (unsorted) are taken to the judgment section. There 'Assistants' sort the certified copies, enter the details in 'B' Register kept there. Thereafter retaining the original judgment in the judgment section copies (not stapled or stitched) are taken to issuing seat. That dealing Assistant is expected to collect the required stamp, already produced, from the concerned Seat and affix the stamps on the copies and to make necessary endorsement on the face of the docket. Then the copy is placed in the 'A' Register and taken lo the Examiner. After thorough scrutiny to find out whether the copy is legible and complete and affixed with the required stamp etc., the Examiner subscribes the signature certifying that it is the true copy.

Thereafter details are entered into ready list. A notice will be published fixing the date for appearance for collecting certified copy. When the Counsel/Clerk/Party appears, copy will be delivered after taking signature in the 'A' Register. More or less same if not more complicated is the procedure for obtaining certified copies of any other documents including those of pleadings. More than 25 employees in various grades work in the copying section of the High Court, involving an annual expenditure of many lakhs. The fees levied will not be enough to meet the expenditure incurred. In addition to this lot of work is done by advocates and their clerks to expedite matters. The evening crowd at the copying section is parallel to the one before a movie house on the day of release of a box office hit.

This bullock cart procedure can be substituted by a simple, less costly procedure. Sufficient number of Stenographers must be provided. The judgments including cause title must be typed by them. All orders/judgments can be made available on computer. The certified copy can be served on demand by getting a print out from the computer and certifying the same on the spot against payment of prescribed fee, commensurate with the expense involved. This will not only reduce the work load but also improve the image of all those who are responsible for administration of justice including. Bench and Bar.