Presidential Assent - Lacuna in the Constitution

(By P.K.R. Menon - Senior Advocate, Ernakulam)

Article 111 of the Constitution deals with Assent to Bills by the President of India.

Article 200 deals with the Assent to Bill by the Governor.

Article 201 deals with Assent to Bill reserved by a Governor for the consideration of the President.

For convenience, I shall extract the three Articles:

"111. Assent to Bills.-When a Bill has been passed by the Houses of Parliament, it shall be presented to the President, and the President shall declare either that he assents to the Bill or that he withholds assent therefrom:

Provided that the President may, as soon as possible after the presentation to him of a Bill for assent, return the Bill if it is not a Money Bill to the Houses with the message requesting that they will reconsider the Bill or any specified provisions thereof and, in particular, will consider the desirability of introducing any such amendments as he may recommend in his message, and when a Bill is so returned, the Houses shall reconsider the Bill accordingly, and if the Bill is passed again by the Houses with or without amendment and presented to the President for assent, the President shall not withhold assent therefrom, (underlining supplied)

200. Assent to Bills.-When a Bill has been passed by the Legislative Assembly ofa Slate or, in the case of a State having a Legislative Council has been passed by both Houses of the Legislature of the Stale, it shall be presented to the Governor and the Governor shall declare either that he assents to the Bill or that he withholds assent therefrom or that he reserves the Bill for the consideration of the President:

Provided that the Governor may, as soon as possible after the presentation to him of the Bill for assent, return the Bill if it is not a Money Bill together with a message requesting that the House or Houses will reconsider the Bill or any specified provisions thereof and, in particular, will consider the desirability of introducing any such amendments as he may recommend in his message and, when a Bill is so returned, the House or Houses shall reconsider the Bill accordingly and if the Bill is passed again by the House or Houses with or without amendment and presented to the Governor for assent, the Governor shall not withhold assent therefrom: (Underlining supplied)

Provided further that the Governor shall not assent to, but shall reserve for the consideration of the President, any Bill which in the opinion of the Governor would, if it became law, so derogate from the powers of the High Court as to endanger the position which that Court is by this Constitution designed to fill.

201. Bills reserved for consideration :When a Bill is reserved by a Governor for the consideration for the President, the President shall declare that he assents to the Bill or that he withholds assent therefrom:

Provided that, where the Bill is not a Money Bill, the President may direct the Governor to return the Bill to the House or, as the case may be, the Houses of the Legislature of the Slate together with such a message as is mentioned in the first proviso to Art.200 and, when a Bill is so returned, the House or Houses shall reconsider it accordingly within a period of six months from the date of receipt of such message and, if it is again passed by the House or Houses with or without amendment, it shall be presented again to the President for his consideration.

Articles 111 and 200 do not create any difficulty or problem for implementation by the concerned authorities.

Under Article 111 of the Constitution when a Bill is passed again by the Houses with or without amendment and presented to the President I'or assent the President shall not withhold assent therefrom.

Under the main provision of Art.200, the Governor shall declare either that he assents to the Bill or that he withholds assent therefrom or that he reserves the Bill for the consideration of the President. The second proviso to Art.200 also contemplates a situation of reservation by the Governor for the consideration of the President. In the former case the reservation by the Governor for the consideration of the President is discretionary and in the latter case it is mandatory for the Governor to refer the Bill for the consideration of the President if according to the Governor the situation is one as contemplated under the second proviso to Art.200.

As noted above, under the two situations, the Governor can or has to refer the Bill for the consideration of the President and the President has to consider the Bill under Art.200 of the Constitution.

Under the main provision of Art.201 the President shall declare that he assents to the Bill or that he withholds the assent therefrom.

Under the proviso to Art.201, in a situation where the President directs the Governor to return the Bill to the House, and when a Bill is so returned, the House shall reconsider and if the House with or without amendment again passes it, it shall be presented again to the President for his consideration.

In the absence of a provision similar to the one contained in Art.111 (wherein once the Bill is passed again and presented to the President for assent, the President shall not withhold assent therefrom) in Art.201 the President can once again very well invoke the power vested in him under the main provision of Art.201, that is, the President shall declare that he assents to the Bill or that he withholds assent therefrom.

In the light of the above in the case of Bill referred by the Governor to the President if the President once again withholds assent therefrom, the Bill will not become law and there is no way suggested in the Constitution to implement or execute the will of the legislature as in the case under Arts.111 and 200 of the Constitution wherein once, the. House reconsiders the Bill, the President shall not withhold assent.

The Speaker and the Oath Controversy

(By P.K.R. Menon, Senior Advocate)

Relying on Art.212 of the Constitution of India the Speaker of the Kerala Legislative Assembly has taken the stand that the legality of the oath taken by a legislator of the Kerala Assembly in the name of "Shree Narayana" cannot be gone into by a Court of law. The administration of oath by the protem (for the time being) Speaker, according to the Speaker is beyond judicial scrutiny. According to him under Art.212(1) of the Constitution "the validity of any proceedings in the legislature of a State shall not be called in question on the ground of any alleged irregularity of procedure". In answer to a Presidential Reference made under Art.143 of the Constitution of India, - Special Reference No. 1 of 1964 the Supreme Court had occasion to consider the scope and ambit of Art.212(1) of the Constitution of India. The Hon'ble Supreme Court opined thus:

"It lays down that the validity of any proceedings in the Legislature of a State shall not be called in question on the ground of any alleged irregularity of procedure. Art.212(2) confers immunity on the officers and members of the Legislature in whom powers are vested by or under the Constitution for regulating procedure or the conduct of business, or for maintaining order, in the Legislature from being subject to the jurisdiction of any court in respect of the exercise by him of those powers. Art.212(1) seems to make it possible for a citizen to call in question in the appropriate court of law the validity of any proceedings inside the Legislative Chamber if his case is that the said proceedings suffer not from mere irregularity of procedure, but from an illegality. If the impugned procedure is illegal and unconstitutional, it would be open to be scrutinised in a court of law, though such scrutiny is prohibited if the complaint against the procedure is no more than this that the procedure was irregular". (AIR 1965 SC 745 at 768) (emphasis supplied)

Under Art. 188 of the Constitution

"Every member of the Legislative Assembly or the Legislative Council of a State shall, before taking his seat, make and subscribe before the Governor, or some person appointed in that behalf by him, an oath or affirmation according to the form set out for the purpose in the Third Schedule."

Art.199 deals with vacation of seats by members of the Legislative Assembly. And in Art. 199 the words used in various places are 'his seat', "resigns his seat", the House may declare his seat vacant".

On a fair reading of Arts.188 and 199 of the Constitution of India, the emphasis is not on the membership of the legislature but on a legislator occupying his seat what the legislator resigns is not his membership but his seat. Again under Art. 190(4) the House may declare a legislator's seat vacant.

In the light of the emphasis given to seat (and not membership) in the relevant Articles of the Constitution of India any proceedings in the legislature of a State can have reference to proceedings participated by members who have taken their seats on oath or affirmation according to the form set out for the purpose in the Third Schedule.

Form of Oath or affirmation to be made by a member of the legislature of a State provided in the third Schedule of the Constitution of India reads:-

"1, A.B., having been elected (or nominated) a member of the Legislative Assembly (or Legislative Council), do swear in the name of God that I will bear true faith and allegiance to the Constitution of India as by law established, that I will uphold the sovereignty and integrity of India and that I will faithfully discharge the duty upon which I am about to enter."

(emphasis supplied)

Administering or making and subscribing before the Governor or some person appointed in that behalf by him an oath or affirmation do not form part of proceedings contemplated under Art.212 of the Constitution.

The words "I am about to enter" obtained in the form of the oath or affirmation extracted above would also vouch safe for the fact that only on Oath or affirmation a member of the legislature could occupy a seat and proceedings subsequent to the occupation of the seat alone is taken care of by Art.212 and that too subject to the limitations or norms laid down by the Supreme Court in AIR 1965 SC 745 extracted earlier in this Article.

Administration of Oath or affirmation is either before the Governor or some person appointed in that behalf by him; Members of the legislature after taking Oath or affirmation before the Governor or some person appointed in that behalf by him elects the Speaker. So far as the elected Speaker is concerned, the proceedings he is concerned with can and could be only proceedings starting with his election and after. The Speaker is elected by legislators who have taken their seats on oath or affirmation.

The administration of Oath or affirmation does not form part of the proceedings contemplated under Art.212 of the Constitution. So if the Oath or affirmation is not in accordance with the Constitution and the law, the same shall be gone into by a High Court.

If an oath or affirmation is not in accordance with law, it does not invalidate the actions of the elected representative. And Art.193 provides only for penalty in such an event.

Art.193 leaving out details not necessary for the issue involved reads:

"If a person sits or votes as a member of the Legislative Assembly.... of a State before he has complied with the requirements of Art.188.........he shall be liable in respect of each day on which he so sits or votes to a penalty of five hundred rupees to be recovered as a debt due to the State"

If the Court is to declare that the Oath or affirmation is not in accordance with the third Schedule of the Constitution the only consequence is one of payment of penalty contemplated under Art.193 till the concerned legislator makes an Oath or affirmation as provided in the third Schedule of the Constitution.

The honour and dignity with which the office of the Speaker is looked up to is reflected in the following speech made by Mr. Jawaharlal Nehru, on the occasion of the unveiling of a portrait of the Late Vithalbhai Patel (the first Indian who presided over the Central Legislative Assembly) on March 8,1948 in the Constituent Assembly of India (Legislative). He said:

"Now, Sir, on behalf of the Government, may I say that we would like the distinguished occupant of the chair now and always to guard the freedom and liberties of the House from every possible danger, even from the danger of executive intrusion. There is always a danger..... from majority that it may choose to ride roughshod over the opinions of minority, and it is there that the Speaker comes into protect each single member, or each single group from any such unjust activity by a dominant group or a dominant Government.... The Speaker represents the House. He represents the dignity of the House, the freedom of the House and because the House represents the Nation, in a particular way, the Speaker becomes the symbol of the Nation's freedom and liberty. Therefore, it is right that should be an honoured position, a free position and it should be occupied always by men of outstanding ability and impartiality".

The Article is confined to the jurisdiction of courts to go into the question of the validity of the Oath taken by a Legislator.

A Comment on Kerala Magistrates' Association V. State of Kerala1

[2001 (L)KLT 920 (Sc)]

Generally speaking, our Courts are bound by precedents. Indeed, the Supreme Court of India if the need arises, can revise the precedents. The doctrine of precedent requires the Supreme Court also to follow the precedents, laid down by its Division Benches if another Division Bench constituted by more Judges does not revise them. The position can be stated thus:-

A statement of law by a Division Bench of the Supreme Court is binding on a Division Bench of the same or a smaller number of Judges, and in order that such decision is binding, it is not required that it should be a decision rendered by the Full Court or a Constitution Bench of the Court. Since some conflicts on this issue arose in certain cases, it is suggested by the Supreme Court that for the purpose of imparting certainty and endorsing due authority, decisions of the Supreme Court in the future should be rendered by Division Benches of at least three Judges unless, for compelling reasons, that is not conveniently possible.2

Throughout the common law world the Courts maintain their relevance and accountability to the system by way of reasoning referring to the respective submissions and giving reasons for their acceptance of either submissions. Both these features are not reflected in the Supreme Court's decision in Kerala Magistrates' (Judicial Association) v. State of Kerala.3 Instead it refers to some discussions and consultations among the State of Kerala, High Court of Kerala and the petitioner Association.

The Counsel for the petitioner - Association advanced a three -pronged argument as follows:

1. There was absolutely no justification for not considering the seniority in the integrated cadre on the basis of their regular length of service, which usually forms the basis when integration takes place and in the absence of any special reason indicated by the rule-making authority, the basis has to be held to be arbitrary and irrational.

2. When the rule - making authority decided to have an integration of the two wings, it was expected of them to take into account the total number of posts in the entry grade of both the wings, the promotional avenues available to the incumbents of each wing and the promotional avenue which would be open in the integrated cadre and all other relevant facts and that not having been done, the fixation of quota under the Rule cannot, but be held to be invalid.

3. Provision for promotion in a cadre increases the efficiency of the public service while stagnation reduces the efficiency and makes the service ineffective and therefore, promotion is considered to be a normal incidence of service and, if this test is applied to the integrated cadre constituted under the Rules of 1991, it would appear that the incumbents engrafted from the criminal side have practically no prospect of promotion, as compared to the counterparts.

The Court responded to these submissions saying that the present formula was arrived at jointly by the Full Court in Kerala by referring to the meetings, discussions and consultations of the Government of Kerala and the High Court with different organisations of the Judicial Officers. The Court noted that the present ratio of quota is beneficial to the petitioner in comparison to officers from the civil side. The Supreme Court observed:

"The Court took notice of the fact that on the date of integrating 42 Magistrates, second class will be absorbed in the category of Munsiff Magistrates and all of them will be duly benefited in their scale of pay. The Court also considered that in view of the number of posts available, while Munsiff could expect promotion to 49 posts of Subordinate Judge, the Judicial Magistrate could expect promotion only to 18 posts of C.J.M's, as it existed. But by reason of integration, the chances of promotion of the Magistrates will be much more enhanced, compared to the chances of promotion to the Munsiff. The Court also considered the normal rate of promotion and found that for Munsiff, the rate being 1 - 25, for a Magistrate rate was only 0-30 and on account of integration, the ratio could come to 0-84, which indicates that overall chances of promotion to the Munsiff would get reduced from 1-25 to 0-84, whereas the chances of promotion of the Magistrate get increased from 0-30 to 0-84. The High Court therefore suggested that the ratio of 3:1 should be fixed both in the integrated cadre of the subordinate Judges and C.J.M's for promotion to the post of District Judge as well as in the cadre of Munsiff and Magistrate First Class for the promotion to the post of subordinate Judges. The High Court also was of the opinion that the effect of integration will be that while Munsiff would lose chances of promotion, the Magistrates will improve the chances of promotion, although some senior Magistrates individually will sustain some loss. But such loss is the usual consequence of any integration process. Notwithstanding the aforesaid recommendations of the High Court, the State Government, on receipt of representation from the Magistrates' Association, made further correspondence with the High Court and suggested that the ratio for promotion from the Munsiff and Magistrates to the Subordinate Judges should be fixed at 5:2. The High Court initially had some reservations but ultimately accepted the same and communicated its acceptance to the Government whereafter the Rules were promulgated and R.3(4) of the Rules embodies the aforesaid principles".4

This judgment thus embodies a recapitulation of legislative and administrative ancestry of the Rule rather than a decision on the question whether the Rule violates, the petitioners' Fundamental Rights under Art.14.

In this context it may be worthwhile to recall that the Supreme Court in S.I. Rooplal v. Governor5 has categorically ruled that the seniority of a person in a Department to which he was sent on deputation would be the seniority he had in his parent Department. That was a case where a S.I. of Border Security Force was allowed to be absorbed in the Delhi Police with the seniority he had in the Border Security Force.

Though an analogy could be developed and a precedent created on its strong theoritical grounds, the court dismissed the argument observing thus:-

"This case will be of no assistance to the case in hand where the integration of the two wings of the judicial service has been made under a set of Rules framed by the Governor in exercise of powers conferred under Art. 234 and 235 of the Constitution, after due consultation with the State Public Service Commission and the High Court and the High Court itself has elaborately discussed this question before taking a final decision".5

This case could have been usefully applied as it also involved transfer of personnel from a post to a similar post. The demands of the work are also the same. The only difference could have been the expectation of officials for certain promotional posts.

Since the Court did not follow the policy of pegging this judgment on any jurisprudential principle it had to admit that the decision of the Kerala High Court and the Kerala Government as represented in the Rule may diminish the promotional avenues of officers coming from the civil side. In fact this kind of reasoning may have the tendency of tempting people of frequent litigation. What if the Association of Munsiffs petitions the Court on the ground that admittedly the present Rule may violate Art.14. The Supreme Court may again have to harp on the same note of compromise or reconciliation of the Rules rather than any sound principle as spelt out in Rooplal which was a decision of a 3 member-Bench and therefore a precedent necessarily to be followed by the 2 member-Bench of the decision under comment i f law of precedent meant anything.

Seniority is a hard earned qualification and a senior person should not be put to jeopardy in the name of deputation or integration. In fact it is time for our High Courts to examine the possibility of considering meritorious subordinate judicial officers for appointment to the post of District Judges when they consider Advocates with 7 years' experience as eligible for such appointment. Whether it is independent practice or judicial experience in lower courts, it is experience worthy of consideration for making appointment to senior positions. A review of the appointment procedure is surely the desideratum.

________________________________________________________________________

Foot Note:

1. Dr. K.N. Chandrasekharan Pillai, Professor & Dean, School of Legal Studies, CUSAT, Cochin - 22.

2. See observations in Union of India v. Raghubir Singh AIR 1989 SC 1933.

3. 2001(1)KLT 920 (SC).

4. Ibid 926 ,927.

5. A.I.R. 2000 SC 594

6. Supra n.2 at 925.

The Right to Judicial Reforms

(By Kappillil Anilkumar, Advocate, Ernakulam)

Why should anyone go to a court of law spending his precious time, money, and energy if he does not get a fair trial and speedy justice? Our Constitution guarantees to every citizen the right to equality before law and equal protection of laws. The protection of law can be ensured only through courts and if there is no timely legal protection, it is no protection at all. The ecstasy of our freedom lies in the rule of law. If the nectar of liberty, equality, and fraternity are to be preserved for the generations to come, we should imbibe among ourselves the spirit of the Constitution. The fragrance of justice fades when there is delay and the decadence will lead to the ultimate destruction of all that we have inherited. The people will find it easier to take the disputes to the street rather than take them to courts.

Perhaps if anyone is comfortable with the present scheme of things and the inevitable delays in justice delivery system, he must be the one who belongs to the political folk. Understandably, the politicians of this country, irrespective of the colour of the flag he carries, want the status quo to continue as it suits them and none else. It suits them because as long as they could retain the justice delivery system weak and fragile, they can continue to bluff the millions with their fanciful and unrealistic promises they make and forget the same when they come to power. It suits them because, through delays only they can manage to bring down the common-man's faith in the justice delivery system and make the average citizen a perennial slave to the political masters. Obviously, an efficient, strong, independent judiciary is a nightmare for politician's unbridled control over the other two organs of the democracy, i.e., the executive and the legislature.

The lack of a strong political will have resulted in the denial of financial autonomy to our Judiciary. When we speak with lavish recklessness about the piling up of cases in the Courts, we forget that we do not have adequate number of Judges proportionate to our population. We forget that we do not have adequate physical infrastructure facilities in our courts for the efficient and speedier dispensation of justice. Comparing the salary and perks of a middle-level managerial personnel of a private sector IT Corporate, the salary and perks given to our Judges in the higher judiciary is far from motivating. We have consciously and systematically underestimated their work. We have miserably failed to estimate the amount of physical and psychological fatigue they experience in performing their role as Judges. We have failed to give them a conducive environment to perform by overloading them. The problem with us is that once we elevate a person to the judgeship, we start addressing him next only to Lord Almighty and treat him less humanly. We forget that the job of judging is the most difficult task ever known to mankind and it requires not only knowledge of law but also a divine insight guided by a sense of justice, dedication, and determination. He has to be warm and cold emotional and insensitive, kind and uncompromising, bold and humble, orthodox and liberal in the right proportions. Of course, the task is not meant for the meek and weak. The change from the lawyer hood to the judgeship is a process of re-incarnation in itself. It is an opportunity to re-invent oneself. Considering all these aspects, are we able to do justice to our Judges?

On the other day, there were press reports that from 1st April, there will be 1734 Fast Track Courts established all over the country at the rate of five each in every district. It was reported that the Central Government is going to spend Rs.500/- crores for this purpose. Is it going to solve the problem forever? Is it going to ensure speedier justice to the common-man? What is the modes operandi? Ad-hocism in judicial management is not going to solve any problem. First we should have a vision followed by a strong political will to strengthen the judiciary. Second the judiciary should be given financial autonomy. Third, the number of Judges should be increased both in the higher and subordinate judiciary proportionate to the population increase. Fourth the salary, perks, and superannuation benefits of the judiciary should be restructured making it par with the best in the world. Fifth, the selection process of Judges should give adequate weight age to knowledge of law, perceptive skills, intellectual ability, creative capabilities, and communication skills. Sixth, it must be ensured that every court should have its own self-contained infrastructure like building, spacious court-halls, furniture, and offices for the Judges and staff. Every court should have essential equipments like computers, photocopying machines, etc. with trained manpower to man them. Use of advanced information technology should be encouraged with proper training to the Judges and staff and the introduction of information technology in a phased and systematic manner will accelerate the efficient and speedy disposal of cases. Seventh, there must be a National Judicial Human Resources Development Programme aimed at proving periodic professional enrichment of knowledge to the subordinate judiciary. Eighth, there must be a separate judicial cadre for Management of Justice Delivery System, which involves planning, supervision, staffing, training, fiscal policy-making, co-ordination between other organs of the Government, etc. Ninth, the Law Commission should be entrusted to organise national and international seminars in India on topics of emerging legal issues facilitating participation of Judges of the High Courts and the Judges of equivalent courts from abroad. The High Court Judges should be given sabbatical leave to visit and study the legal systems of other developing countries. Tenth, the existing pedagogical methodology for training the subordinate judicial officers should be revised both in content and practice. Instead of the monotonous and repetitive classroom lectures, participate learning method should be adopted using case studies and class discussions. Apart from imparting training on use of computers essential judicial skills like process of written and oral communication, listening, rapid reading techniques, understanding body language, etc., should be made part of the curriculum. To achieve this, the first step is to train the trainers from among the lawyers and the retired Judges.

The onslaught of globalization and the spread of information technology demand the legal fraternity and the judiciary to wake up to the complex challenges ahead. We cannot remain recalcitrant by praising our own professional virtues. We should not hesitate to reconcile the irreconcilable truth of the day that a high degree of professionalism alone is going to rescue the system from the present rut and ret, meet and redeem it. It is our collective responsibility. If we fail, we will be failing the millions of fellowmen who inherited a Constitution that guarantees them justice, equality, freedom, and liberty; thereby we will be failing a Constitution we have avowed to uphold at all times.

Cause of Action

(By Mathew Philip, Advocate, Kottayam)

The registry of every civil court would look into your Original Suit, quite anxiously to find out one legal coinage. If perchance, it is not there, no doubt your suit will be rejected. Which is this magic word? You already guessed it, but I would like to repeat. cause of action.

I have serious doubt about this combination. Is it a misnomer? 'Cause' has its origin from the Middle English and Latin word 'causa'. This means the Anglo Saxon use began as early as AD 200. "Cause" according to my dictionary (Readers Digest Oxford-Complete word-finder) has this definite meaning - that which produces an effect or gives rise to an action. Then why a 'cause of action'?

Now let's leave the layman's weapon. What about the law dictionary? Black (Black's Law Dictionary) gives this definition - The fact or facts which give a person a right to judicial redress or relief against another. It is further elaborated as "a situation or state of facts which would entitle a party to sustain action and give him right to seek a judicial remedy in his behalf. I add one more description- the right which a party has to institute a Judicial proceeding.

What about cause of action when the great 'wheels of justice' rolling on? There were many many descriptions, but the substance remains the same. It is held that the expression means the bundle of facts which is necessary to be proved to entitle the plaintiff to a decree (AIR 1958 AP. 451), it is synonymous with the right to sue (AIR 1965 All. 590). Thinking in terms of the defendant it means everything which if not proved gives the defendant immediate right to judgment (ILR 58 Cal. 539). Supreme Court would define it as every fact which it would be necessary for the plaintiff to prove, if traversed, in order to support his right to the judgment of the Court. It does comprise every piece of evidence which is necessary to prove (AIR 1985 SC 1289).

However, it has been held that cause of action is not intended to comprise every fact which may be proved in evidence. Bombay High Court held: The bundle of facts which constitute the cause of action in a Civil Suit does not and is not intended to comprise every fact which may be proved in evidence. It is only material facts which must be proved by the plaintiff before he can obtain a decree, that constitute the cause of action (ILR 1954 Bom. 1137).

Suppose a situation arises where the defendant denies the existence of material facts asserted by the plaintiff. Then it is held that cause of action has to be judged mainly from the allegations in the plaint, not from the defence set up by the defendants (1966 (2) Andh. WR 263, AIR 1974 Mad. 209).

CPC says the court within which cause of action wholly or in part arises, has got jurisdiction to try the suit. Can any court stake a superior claim on the ground that majority of cause of action arose within its jurisdiction? It has been held that its percentage to the whole cause of action is immaterial. Even if only one percentage of cause of action is arising within the jurisdiction of court A, the suit can be instituted in Court A (AIR 1965 Mgs. 316; 1989 (1) KLTSN 22 p. 13).

How the Courts apply this principle in a fact situation. It is widely held that issue of S.80 notice would not form cause of action. Of course, with a sound reason, conceding that S.80 notice is a condition precedent, it is still to be observed that it is something succeeding the cause of action. S.80(3) provides that the cause of action should be stated in the notice. In the circumstances it has been held that S.80 notice is not part of plaintiff's cause of action (AIR 1960 Cal.391). It is also observed that neither can issue nor service of S.80 notice can form part of cause of action. (AIR 1960 Cal. 458; AIR 1970 Pat. 212).

Consider a cricket match. When the entire dispute over the match was occasioned, discussed and settled in Calcutta and there the plaintiff through his agent was appraised of the decision, mere fact that the decision was conveyed to the plaintiff club by a letter received by the club at Sealdah, will not take the cause of action to Sealdah and give Sealdah Court jurisdiction (AIR 1969. Cal. 224).

What about cause of action, in infringement of trade mark. When a trade mark is registered at Madras and product manufacture there, will a suit lie against a defendant at M.P., in a Madras Court. It is held that Part of cause of action arose at Madras and hence a suit will lie (AIR 1991 Mad. 217).

Regarding contract, cause of action arises where the contract was made, or was to be performed, or performance completed or where in performance any money out of contract to which the suit relates is expressly or impliedly payable (AIR 1979 Pat. 120). Where a breach of contract is alleged, suit may be instituted at a place where the contract was made or breach was committed (AIR 1989 SC 1239).

An interesting question arose in a matrimonial cause. Plaintiff's wife was residing at J. She went to her mother's place at P where she kept her ornaments and returned to J. Subsequently she expired at J. Plaintiff filed a suit in a Court at J for the return of gold ornaments. Question arose as to whether the court at J has got jurisdiction to try the case. It has been held that the term cause of action had a very wide implication. It meant a bundle of facts which the plaintiff had to prove before he succeeded in the suit. The fact that the plaintiff's wife died at J was one of such facts. Therefore, the Court at J has got jurisdiction to try the suit (ILR1958 Cut. 180).

Finally, a forgery case. A draft obtained at Madras branch of a bank payable at its Bombay branch. Despite instructions to stop payment, Bombay branch honoured the same presented through a third party. It was held the whole cause of action stems out of the draft and Madras where the draft was issued would be also the forum for suit for damages (AIR 1983 Mad. 357).