The Law Relating to Contempt of Courts

(By K. Chandrasekharan, Sr. Advocate, Ernakulam)

Contempt of Courts is a difficult question and is a touchy question so far as Judges and other judicial officers are concerned. There is another field, difficult and touching and that relates to the executive and covers the field of official secrets. With imparting information and maintaining transparency in matters of Government the place for the Official Secrets Act gets limited to some aspects of defence and external affairs mostly. That is the reason why the freedom of information bill pending before Parliament has become necessary. Several provisions of the Official Secrets Act, 1923 will get obsolete once the bill is enacted into law, as there are alternative or new provisions of the Official Secrets Act, 1923, to that extent 1923 will not be law. The Official Secrets Act is not repealed as such, but large portions of it are replaced by the new enactment.

The field of Contempt of Court is however more difficult to tackle. The three wings of the Indian Constitution are the Executive, the Parliamentary and the Judicial Wings, Contempt of the Legislature or Parliament are to be dealt in accordance with rules framed by them. Contempt of the Executive can be punished by the ordinary law of defamation covered by Ss.499 to 502 of the Indian Penal Code, 1860. Contempt of Courts (of the Judiciary, the Judges, the Sub Judges, Munsiffs and Magistrates) were dealt with in periods past by the provisions of the Civil Procedure Code, the Criminal Procedure Code, the Indian Penal Code and under the inherent powers of Courts. There has been changes after the country became free. Art.129 with reference to the Supreme Court and Art.215 of the Constitution relating to High Courts, treat the two Courts as Court of record having all powers of such a Court including the power to punish contempt of itself. Parliament has since enacted the Contempt of Courts Act, 1971, Central Act 70 of 1971 and this covers both civil contempt and criminal contempt and also covers all Courts including the High Courts. It is also necessary to mention here that Art. 19(l)(a) of the Constitution which refers to all citizens having the right to freedom of speech and expression do not include Contempt of Courts in view of the various laws and Constitutional provisions sighted earlier. The Supreme Court has also held more than once that the prestige or authority of the Court cannot be lowered even in the garb of criticising a Judgment.

Inspite of the definition of Contempt of Court in the 1971 enactment and inspite of the fairly reserved manner in which the Supreme Court, the High Courts and other courts in the country have acted in the matter of contempt proceedings coming for an enquiry and decision, the subject of contempt remains a dicey question. The subject also has a large coverage on who can pursue contempt proceedings, what can be the subject matter, and what is the decision to be in particular cases. An element of controversy is inherent in all the above. One that came before the Delhi High Court recently is against the editor of a Magazine, 'Wah India'. The magazine published in its issue of April 16-30, 2001 a ranking given by fifty senior advocates about Delhi High Court Judges - their manners in Court, general reputation on personal integrity, quality of Judgment, knowledge of law, punctuality, receptiveness in the arguments addressed. With the Court ordering confiscation of copies of the particular issue of the magazine, reproduction of the contents is not possible. However, many had already read it, some others taken notes and some taken copies also. The credibility of the judiciary as such was not questioned and cannot be considered also. But there are certain side issues that arise. The petition against the magazine and its editor was filed in the High Court by the Bar Council of Delhi. The editor in chief of the journal rendered an apology to Court when the hearing started. The question arises as to how the Bar Council is aggrieved? Apart from the court Suo Moto taking up proceedings, any person or any public man for that matter can pursue the matter since the subject undoubtedly is one in the public interest. If the Bar Council as such is not a person particularly outraged or aggrieved, the Bar Council will be only in the nature of any person who in the public interest has acted. The Editor-in-chief of the Magazine tendered apology and the proceedings were terminated. Is the apology tendered in a genuine and bona fide manner? Do the apologies tendered in contempt cases flow from the heart or they are prompted by the need to escape from the consequences of conviction namely fine or imprisonment. There are suggestions that the provisions for tendering apology contained in S. 2(c)(i) of the 1971 Act should be deleted. Probably that cannot be because fine or imprisonment will then become mandatory.

There is another aspect in regard to Contempt of Court and that is the contempt of the Constitution or negation of the Constitution that is committed by the Executive, say taking away life under Art.21 of the Constitution. Can a mere Presidential proclamation of Emergency as in 1975 clear that way for acceptance by Court! Attorney General Niren De told the Supreme Court that Courts are helpless if life was taken away illegally, I would add, even as against the specific provision contained in Art.21. I believe that the statement by itself is a Contempt of Court. How can an executive act of the President negate an Article of the Constitution. Such situations cannot be repeated and some method has to be found out to fill up the loop holes in the law of Contempt. Blatantly submitting that a provision of the Constitution would become unimplementable, before court, whose duty is to implement the Article should be treated as Contempt of Court. Either 1971 Act should be amended or the Constitution amended and specific provisions included. There is no question of any interpretation of an Article of the Constitution, when a provision containing a basic feature of the Constitution is before Court. The Keshavananda Bharathi case has held that basic features cannot be taken away or nullified. Here an executive act like a Presidential proclamation has taken away the rights and jurisdiction of Courts is the plea. The plea itself is in Contempt of Court. The canvas of contempt should be available wherever the law is in danger on account of contempt, and thus it would include every authority and every person including Government dealing with law and the constitution.

Tax And Fee - The Distinction

(By Markose Thomas, Advocate, High Court of Kerala)

-----That the power to tax involves the power to destroy-----

Marshall John, in M'Culloch v. Maryland 17 US (4 Wheat) 316,431 (1810).

There is no generic difference between a tax and fee; both are compulsory extraction of money by public authorities. But whatever minute difference there is, it needs to be analysed in detail because the distinction is mainly ascertainable by analysing the various decisions of Supreme Court with regard to the principle of quid pro quo in relation to fee. It is also important to analyse the distinction as our Constitution itself provides for a distinction between the two.

The etymology of the two words is useful in understanding the distinction.

Fee

Fee is a word bequeathed to Modern English by the feudal system (and indeed it is closely related etymologically to feudal). It came via Anglo-Norman fee from Medieval Latin feodum or feodum Source also to feudal.

Tax

Tax originally denoted "assess an amount to be levied" the notion of "imposing such a levy" is a secondary development. The word comes via old French taxer from Latin taxare. From taxare was derived by the medieval Latin noun taxa 'tax, piece of work imposed' which passed into English through Anglo-Norman tasque as task.

The Distinction

There are a fairly large number of decisions of the Supreme Court dealing with the distinction between a tax and a fee and they indicate the essential characteristics of a fee1One of the most important decision in which there is a detailed and illuminating discussion on the above aspects is AIR 1954 SC 282. Mukherje, J. delivering the judgment of a Constitutional Bench of seven Judges of the Supreme Court stated that a neat definition of what tax means has been given by Latham C.J. of the High Court of Australia in Mathew 's v. Chicory Marketing Board, 60 CLR 263 and quoted the following passage from that decision-passage from that decision-

"A tax is a compulsory exaction of money by public authority for public purpose enforceable by law and is not a payment for services rendered".

The learned Judge then elaborated the matter as follows:-

"It is said that the essence of taxation is compulsion that is to say, it is imposed under statutory power without the tax payer's consent and the payment is enforced by law." Vide Lower Mainland Dairy v. Crystal Dairy Ltd., 1993 AC 168.

The characteristic of tax is that it is an imposition made for public purpose without reference to any special benefit to be conferred on the payer of the tax. As the object of a tax is not to confer any special benefit upon any particular individual there is, as it is said, no element of 'quidpro quo' between the tax payer and public authority. Another feature of taxation is that as it is a part of the common burden, the quantum of imposition upon the taxpayer depends generally upon his capacity to pay.2

A fee is generally defined to be a charge for a special service rendered to individuals by some governmental agency. The amount of fee levied is supported to be based on the expenses incurred by the Government in rendering the service, though in many cases the costs are arbitrarily assessed. Ordinarily the fees are uniform, and no account is taken of the varying abilities of different recipients to pay. A fee is paid for performing a function. A fee is not ordinarily considered to be a tax. If the fee is merely to compensate an authority for service rendered, it can hardly be called a tax.3

The Constitutional Perspective

Under the Indian Constitution, the Government's power to levy a tax is not identical with that of its power to levy a fee. While the powers to levy taxes is conferred on the State legislatures by the various entries in List II, in it there is Entry 66 relating to fees, empowering the State Government to levy fees in respect of any of the matters in this list, but not including fees taken in any Court. The result is that each Stale Legislature has the power, to levy fees, which is coextensive with its powers to legislate with respect to substantive matters and it may-levy a fee with reference to the services that would be rendered by the State under such law.

Clause (2) of Art.110 and Clause (2) of Art.199 of the Constitution, the former occurring in the Chapter of Parliament and the latter in relation to the State Legislature, are in identical terms as follows:

A bill shall not be deemed to be a Money Bill by reason only that it provides for the demand or payment of fees for licenses or fees for services rendered.....

The Constitution, therefore, clearly draws a distinction between the imposition of a tax by a Money Bill and the impost of fees by any other kind of Bill. So also in the Seventh Schedule both in List I and List II a distinction has been maintained in relation to the entries of tax and fees. In the Union List entries 82 to 92 A relate to taxes and duties and entry 96 carves out the legislative field for fees in respect of any of the matters in the said list except the fees taken in any Court. Similarly in the State List entries relating to taxes are entries 46 to 63 and entry 66 provides for fees in respect of any of the matters in the said list except the fees taken in any Court. Our Constitution, therefore, recognises a different and distinct connotation between tax and fee.

The Case Law

It is necessary to review some of the decisions of the Supreme Court to pin point the precise difference as far as practicable in order to resolve the distinction between a tax and fee.

The leading case of Supreme Court, which has been referred and followed in many subsequent decisions, is the case of Commissioner, Hindu Religious Endowments, Madras v. Sri. Lakshmindra Thirtha Swamiar of Shirur Mutt4. The point decided therein was that the provision relating to the payment of annual contribution contained in S.76(1) of the Madras Hindu Religious and Charitable Endowments Act, 1951 is a tax and not a fee and so it was beyond the legislative competence of the Madras State Legislature to enact such a provision.

There were some very useful and leading principles from the decision of the Supreme Court in5 pointing out the difference between tax and fee. At page 1042 says Mukherjee, J.

"The distinction between a lax and a fee lies primarily in the fact that a tax is levied as a part of a common burden, while a fee is a payment for a special benefit or privilege....public interest seems to be at the basis of all impositions, but in a fee it is some special benefit which the individual receives".

In the case of Hingir Rampur Coal Co. Ltd. v. State of Orissa6 the challenge was to the cess levied by the Orissa Mining Areas Development Fund Act, 1952. The petitioners stand was that the cess levied was not a fee but a duty of excise on coal and hence beyond the competence of the State Legislature. The cess imposed was upheld as a fee. Gajendragadkar, J. delivered the judgment on behalf of the majority and discussed the point at some length. At page 545 Says the learned Judge: "a fee is levied essentially for services rendered and as such there is an element of quid pro quo between the person who pays the fee and the public authority which imposes it".

The Supreme Court in Nagar Muhapalika, Varanasi v. Durga Das Bhattachary7 held that the annual licence fee charged from the rickshaw owners and the driver of the Varanasi Municipal Board could be justified only on the basis of the element of quid pro quo. The fee was held to be ultra vires and illegal because after excluding certain items of expenditure the balance did not constitute sufficient quid pro quo for the amount of the licence fee charged.

In the case of Secretary, Government of Madras, Home Department v. Zenith Lamp & Electrical Ltd. 8the character of Court fees came up for consideration as to whether they are taxes or fees or whether they are sui generis. Although after referring to the various entries of the seventh schedule in the different lists it was noticed that court fees were not taxes and they were covered by separate entries of fees exclusively meant for courts, yet the broad principles of the requirement of quid pro quo were made applicable in the case of court fees also. Even so, Sikri, CJ. speaking for the court pointed out at page 982 (SCC p. 170 para 31).

"But even if the meaning is the same, what is 'fees' in a particular case depends on the subject matter in relation to which fees are imposed. The learned Chief Justice further observed at the same page: "In other words it cannot tax litigation, and make litigates pay, say for road building or education or other beneficial schemes that a Stale may have. They must be a broad correlationship with the fees collected and the cost of administration of civil justice".

Observations of Chandrachud, J. speaking for the Court in the case of Government ofA.P. v. Hindustan Machine Tools Ltd. 9at page 401 are quite apposite and may be usefully quoted here (SCC p. 282, para 22).

"One cannot take into account the sum total of the activities of a public body like a Gram Panchayat to seek justification for the fees imposed by it. The expenses incurred by a Gram Panchayat or a Municipality in discharging its obligatory functions are usually met by the imposition of a variety of taxes. For justifying the imposition of fees the public authority has to show what services are rendered or intended to be rendered individually to the particular persons on whom the fee is imposed. The Gram Panchayat here has not even prepared an estimate of what the intended services would cost it".

In Municipal Council Madurai v. R. Narayanan10 endeavour was made as in the case of Nagar Mahapalika, Varanasi11 to justify the impost by the Municipal Council as a tax. Krishna Iyer. J. speaking for the Court repelled that argument and since the impost could not be justified as fee the resolution of die Municipal Council was held to be invalid.

In Kewal Krishnan Puri case12 Untwalia, J. made the following observation.

1...it must be shown with some amount of certainty, reasonableness or preponderance of probability that quite a substantial portion of the amount of fee realised is spent for the special benefit of its prayers. (SCC p. 425)

2...a fee is levied essentially for services rendered and as such there is an element of quid pro quo between the persons who pays the fee and the public authority which, imposes it. (SCC p. 426)

3…it (service) means service in relation to the transaction, property or the institution in respect of which he is made to pay the fee (SCC p.427).

But in Sreenivas General Traders & Ors. v. Slate of A.P.13the Supreme Court pointed out that the decision in Kewal Krishan Puri14 case does not lay down any legal principle of general applicability. The observation made therein seeking to quantify the extent of correlation between the amount of fee collected and the cost of rendering of services, namely, "At least a good and substantial portion of the amount collected on account of fees, may be in the neighbourhood of two third or three-fourths, must be shown with reasonable certainty as being spent for rendering services in the market to the payer of fee", appears to be an obiter. It was not intended to lay down a rule of universal application but it was a decision, which must be confined to the special facts of the case.

In M/s. Kishan Lai Lakasmi Chand v. State of Haryana15the Supreme Court restated the distinction between tax and fee and pointed out that quid pro quo is an essential element of fee. But in the case of P. Kanadasa v. State of Tamil Nadu 16B.P. Jeevan Reddy, J. speaking for the Court differentiated between tax and fee and pointed out that the element of quid pro quo need not be established in each and every case and in case of regulatory fee the element of quid pro quo is totally irrelevant.

Conclusion

The distinction between a tax and a fee lies primarily in the fact that a tax is levied as part of a common burden, while a fee is a payment for a specific benefit or privilege. If the element of revenue for general purpose of the State predominates, the levy becomes a tax. In regard to fee, there is, and must always be, correlation between the fee collected and the service intended to be rendered. In determining whether a levy is a fee, the true test must be whether its primary and essential purpose is to render specific services to a specified area of class; it may be of no consequence that the State may ultimately and indirectly be benefited by it.

A levy in the nature of fee does not cease to be of that character merely because there is an element of compulsion or coerciveness present in it, nor is it a postulate of a fee that it must have direct relation to the actual service rendered by the authority to each individual who obtains the benefit of the service. Merely because the collections for the services rendered or grant of a privilege or licence are taken to the consolidated fund of the State and not separately appropriated towards the expenditure for rendering the service is not by itself decisive.

If the object of the fee is to provide general revenue to the authority rather than to compensate it and the amount of fee has no relation to the value of the service, the fee will amount to a tax. Where it appears that under the guise of levying a fee the authority is attempting to impose a tax, the court has to scrutinise the claim to find out whether there is a real co-relationship between the service and the levy whether it is so co-extensive as to be a pretence of a fee but in reality a tax and whether a substantial portion of the fee collected is spent in rendering services.

The power of any legislature to levy a fee is conditioned by the fact that there must be 'by and large' a quid pro quo for the services rendered. Thus the element of quid pro quo in the strict sense is not always a sine qua non for a fee. However, correlationship between the levy and the services rendered or expected is one of general character and not of mathematical exactitude. All that is necessary is that there should be a 'reasonable relationship' between the levy of the fee and the services rendered.

________________________________________________________________________

1. (a) Commissioner, H.R.E. v. LT, Swamiar AIR 1954 SC 282. (b). Ratilal v. State of Bombay, AIR 1954 SC 388. (c). Jaganath V. State of Orissa, AIR 1954 SC 400. (d). Hingir-Rampur Coal Co. v. State of Orissa, AIR 1961 SC 459. (e). S.T. Swamiar v. Commr. H.R. and C.E. AIR 1963 SCC 966. (f) Corpn. of Calcutta v. Liberty of Cinema. AIR 1965 SC 1107. (g). Nagar Mahapalika v. Durga Das AIR 1968 SC 1119. (h). Lakhan Lai v. State of Bihar AIR 1968 SC 1408. (i). Commissioner H.R. & C.E. v. U. Krishna Rao, AIR 1970 SC 1114. (j). D.C. & G. Mills v. Chief Commr. Delhi, AIR 1971 SC 344 and (k). Indian Mica & Micarite Industries Ltd. v. State of Bihar, AIR 1971 SC 1182.

2. (a) Keural Krishna Pari v. state of Punjab, (1980) 1 SCC 416; (1973) 3 SCR 1217; (b) Sreenavas General Traders v. State of A.P. (1983) 4 SCC 353; (c) Subash Chander Kamalesh Kumar v. State of Punjab, AIR 1990 P & H 259.

3(a) Ram Chander v. State of U.P. 1980 Supp. SCC 27; (1980) 3 SCR 104; (b) Southern Pharmaceutical and Chemicals, Trichur v. Stale of Kerala (1981) 3 SCC 391; 1981 SCC (Tax) 320; (1982) 1 SCR 519, (c) Municipal Corporation of Delhi v. Mohd. Yasin (1983) 3 SCC 229; 1983 SCC (Tax) I54;(d) Ram Chander Kumar Co. v. State of UP. (1980) 2 SCR 104; 1980 Supp. SCC 27.

4. AIR 1954 SC 282; 1954 SCR 1005; 1954 SCJ 335.

5. Ibid.

6. (1961) 2 SCR 53; AIR 1961 SC 459.

7. (1968) 3 SCR 374; AIR 1968 SC 1119; (1968) 2 SCJ 836.

8. (1973) 2 SCR 973; (1973) 1. SCC 162; 1973 SCC (Tax) 203.

9. 1975 Supp. SCR 374: (1975) 2 SCC 274.

10. (1976) 1 SCR 333; (1975) 2 SCC 497; 1975 SCC (Tax) 386.

11. Supra 7.

12. (I979) 3 SCR myr (1980) 2 SCC 416, AIR 1980 SC 1008.

13. (1983) 3 SCC 354

14. Supra 12.

15. 1998 Supp (4) 46l

16. 1996 (7) JT 17. 

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).

Portriat of a Profession

(By T.P. Kelu Nambiar, Senior Advocate, Ernakulam)

For some time now, I have been thinking long and hard about the Kerala High Court Bar; and what flummoxed me is the realisation that the Bar is not unwilling to wear the logo of another. We thus see a fractured portrait of our profession. Many lawyers seem to have forgotten the standards of professional conduct, especially the great principle that an advocate shall, at all times, comport himself in a manner befitting his status as an officer of court and a gentleman. The cardinal rule of the Bar Council of India is:

"An advocate shall, during the presentation of his case and while otherwise acting before a court, conduct himself with dignity and self-respect. He shall not be servile and whenever there is proper ground for serious complaint against a judicial officer, it shall be his right and duty to submit his grievance to proper authorities."

If this rule is remembered and followed by every member of our Association, we could retrieve our status and dignity. I would exhort my learned friends, especially the cub lawyers, to resist any affront to their status and dignity.

If anybody chooses to badmouth a lawyer or his profession, he should resist it with all his might. I venture the following indelible advice. Resist any inquisitorial hectoring by anybody. Do not allow anybody to wag his finger at you. Rule your territory that is the legal profession. Do not allow anybody to use his illegitimate power against you. Be a respectable lawyer and little else besides. Do not expect any grace mark or moderation mark for advocacy. You should always make a bold assertion of professional status and rejoice at the accretion of muscle to the profession.

Let it be virtuous to be obstinate about the above.