To My Beloved Brother Mr. Justice B.N. Srikrishna, Judge, Supreme Court

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Hon”ble Mr Justice T.M. Hassan Pillai

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                                                                   JUSTICE A. LEKSHMIKUTTY

Act 46 of 1999 and Act 22 of 2002 (C.P.C. Amendment)

New Orders in Disorder

(By K.R. Giri Iyer, Advocate, Ottapalam)

O. XVIIIR. 4(1) of the New Code reads in every case, the examination-in-chief of a witness shall be on affidavit and copies thereof shall be supplied to the opposite party by the party who calls him for evidence:

O. XVIII, R. 5 of the Code reads in cases in which an appeal is allowed, the evidence of each witness shall be,-

(a) taken down in the language of the court,-

(i) in writing by, or in the presence and under the personal direction and superintendence of the Judge, or

(ii) from the dictation of the Judge directly on a type writer; or

(b) if the Judge, for reasons to be recorded, so directs, recorded mechanically in the language of the court in the presence of the Judge.

The dilemma arises:-

1) Whether in appealable cases chief examination can be on affidavit?!

2) If so whether is it in conflict with O. XVIII, R. 5?

3) Whether the amendment in O.XVIIL R. 5 includes all the witnesses and party?

4) What was the actual intention of the Legislature?

Now at the outset on literal interpretation both provisions are in conflict.

It is so because O. XVIIIR. 4 mandates affidavit in all cases of chief examination whereas in O. XVIII, R. 5 the mention of appealable cases stands. So in order to avoid repugnancy it can be stated that in cases in which appeal is allowed the evidence has to be taken as mentioned in O. XVIII, R. 5. There is no special mention in the objects and reasons with regard to this provision when the Bill was introduced and passed. But in general the intention was to have a speedy disposal of cases. The Evidence Act, S. 3 defines evidence as "Evidence" means and includes-

"(1) all statements which the court permits or requires to be made before it by witnesses in relation to matters of fact under enquiry; such statements are called oral evidence;".

And S. 138 reads witnesses shall be first examined in chief, then (if the adverse party so desires) cross examined, then (if the party calling him so desires) re-examined.

The examination and cross-examination must relate to the relevant facts but the cross-examination need not confined to the facts to which the witness testified on his examination-in-chief.

So there is no corresponding amendment in the Evidence Act and if affidavit is filed instead of chief examination whether it will come under the evidence as contemplated under the Evidence Act because it will not come under S. 3. Affidavit cannot be considered to be made before it and it does not come under documentary evidence also. And more over in S. 142 it is stated that leading question shall not be asked in an examination in chief where there is no amendment.

Initially the affidavit was considered as dependable for the purpose of making summary adjudications and for making interim orders like in O. XXXIX R. 1 and O. XXXVIIIR. 5 of the Code. So the value of the affidavit as per the Evidence Act and the Code as mentioned in O.XIX itself will show that it was not treated as proper evidence or a ultimate say in highly disputed issues.

While giving harmonious construction repugnancy to be avoided and construction most agreeable to justice and reason has to be taken. And even in case the principle of Repeal by implication to be adopted that should also agreeable to justice and reason. The Latin Maxim "Ut Res Magis Valeat Quam Pereat" A thing may have effect rather than be destroyed. If two interpretations are open that alternative has to be chosen which will be consistent that the smooth working of the system which it purports to be regulating and alternative has to be chosen which will introduce uncertainty, fiction or confusion, i.e. Rule of harmonious construction is to reconcile conflict. An Act shall not be rendered otiose or ineffective or nugatory. Even that may be the position as stated earlier it shall not cause injustice. In my humble view it will cause injustice in the following points or occasions if affidavit is insisted even in the case of O. XVIII, R. 5.

1) When the person who is summoned to depose before a court of Law on summons issued directly to him when comes to court has to depend someone to prepare an affidavit which is most inconvenient and moreover they will not be able to say why they were summoned before a person who prepares the affidavit and then naturally they have to contact the concerned Counsel's office which will in turn effect the trust worthiness of the witness or he will be forced to concede to the words of the party summoning him whereas if he is put directly to the box he will be having free mind to depose before the court without any compulsion, coercion cajoling or like things.

2) In the case of illiterate or semi literate person if the affidavit is prepared and given by the persons who dupes him he may not know what all things are stated in the affidavit probably that aspects may be left without cross examination and will be later taken as evidence and if it is cross examined he may say that it was included on the request of the party and he has no direct knowledge for which he may even face prosecution.

3) In the case of cross examination of Commissioners also how can a chief examination affidavit be prepared and possible.

4) Moreover it will further cause delay because when the witness who is summoned comes to the court then only he knows about the affidavit and all and he may have to come again on the next day or wait till the affidavit is prepared which will take away the valuable time of witnesses like doctors etc.

5) Another important aspect is that who will bear the expenses for preparing an affidavit who will attest or witness the solemn affirmation of the affidavit if the witness has no persons to identify or no lawyer to attest known to him or knows him especially when comes from a long distance.

6) Marking of documents through chief examination in the case of affidavit as stated in O. XVIIIR. 4 sub-r. (2) also causes threat to both sides because the opposite side cannot object the marking during the chief examination, which is relegated to the argument, or as stated in the provision subject to the orders of the court, which will cause serious impediment in adducing evidence and even effect the natural justice. For example if the document is insufficiently stamped and if it is marked without objection it cannot be later questioned according to various decisions and even suppose if such opportunity is allowed during the argument the difficulty is that if the document is found inadmissible one will know it in the judgment only so that he will not further get an opportunity to adduce evidence regarding the original cause of action independently without the document which will shut out the evidence and in turn dismissal of his case will be the result and in appellate court also no justice will be given to him. As stated in AIR 1961SC1655 unstamped document marked as exhibit in the case and has been used by parties in examination and cross examination of witness-order admitting document in evidence is not liable to be reviewed or revised at any subsequent stage and not even in appeal. It is note worthy that in the case of admissibility of documents especially under Stamp Act relating to insufficiently stamped promotes or Bill of exchange even various High Courts and the Lordships of the Apex Court are having divergent view so that poor lay man shall not suffer and moreover if it is found that they are insufficiently stamped it cannot be impounded.

So in my humble view the above limited circumstances will be sufficient to say that the amendment of O. XVIII, R. 4 if given effect to even in appealable cases with the present wordings will be denial of justice and harmonious construction shall not be given and I beg to say that justice hurried is justice buried and reasonable change is a must. Even perusing to the general intention of the Legislature in the present amendment it can be seen that the intention was to speed up and save time which will be defeated by the wordings of this provision and multiplicity of litigation will be the result in order to give effect to the amendment the concerned O. XVIII, R.4 should be given with sufficient explanation in order to avoid the above difficulties and O. XVIII, R. 5 also should be properly amended.

One other anomaly is regarding new O. XLI R. 9 i.e. Registry of memorandum of appeal. It reads as

(1) The court from whose decree an appeal lies shall entertain the memorandum of appeal and shall endorse thereon the date of presentation and shall register the appeal in a book of appeal kept for that purpose.

(2) Such book shall be called the register of appeal.

I may be forgiven to say that this is a provision without head or tail. The section does not say after presentation of the memorandum before the court which decided the suit which is to be registered there and there after what is to be done with the memorandum whether returned to the person presents or transmitted to the appellate court or to be retained and even regarding the production before it there is no direction. Moreover whether the original memorandum if given to the court decided the suit how can one file an appeal before the appellate court and if interpreted in another way it is as if filing an appeal before the court in which the suit is decreed or dismissed and not in a appellate court. Moreover, the earlier provision 0. XLIR. 13 is now omitted which was intended to give notice to the lower court. But at the same time the appendix H Form 15 to the Code still retains the original form of register of appeal which includes details to be filled like the date of presentation, day for appearance of parties and number of appeal etc. which can only be received after presenting it before the appellate court like wise the chapter head of O. XLI R. 9 still reads as Procedure on admission of appeal and moreover it will cause serious inconvenience because a person who has to prefer a appeal before the Honourable High Court from Cannannore court has to first take the bundle to the lawyer at Ernakulam then prepare the Memorandum take it back to the home court and then present it before the court which decided the suit and take back and again rush to the appellate court which will only increase the delay expense and inconvenience which is never intended by the Legislature. Now my humble view on the point is that O. XLI R. 9 may be further amended so as to avoid this confusion and it will be better to draft the provision so as to file the appeal before the appellate court and after admitting it the appellant may be directed to file a copy of the memorandum of appeal before the court which decided the suit along with day for appearance, appeal number etc. and file an affidavit before the appellate court to that effect and on such receipt the lower court can register the appeal and send the suit records to the appellate court which will expedite the proceedings and will meet the intention of speedy procedure for the purpose of calling the lower court records.

Justice at the Click of the Mouse

(By Advocate P.B. Sahasranaman)

We are potentially on the road to an electronic courtroom (e-courts). In settling the issues none of the participants need be in the same place and which could result in the demise of the courtroom as we know it. The recent proposal to have e-courts in India will change the entire judicial system. Rapid adoption of courtroom technology is changing the nature of both litigation and adjudication all over the world.

We know that most of the pleadings are created using computers. One electronic information measures are implemented, the paper on which the same is normally filed can be avoided. Digital signatures can be accepted. In its most basic form, electronic filing, now being experimented in various countries, it either permits or requires that pleadings be sent electronically to the court. Simultaneous it also provide for the dispatch of copies to all other necessary parties by electronic mail. Although electronic mail easily permits the simple communication of information it is entirely inadequate. From the court's perspective, efficiency requires that name of parties, pleaders, and other data be supplied to the court in an identifiable manner that permits the court to capture that specific information for case management purposes.

The same technology is used to make the Court record. Videotaped depositions have to be used in lieu of in-court testimony or for impeachment of a witness. Combining digital audio and video with a computer- assisted transcript produces a synchronized, multimedia transcript. When such a deposition is played in Court, ordinarily from a CD-ROM disk, counsel can present the audio, video and scrolling electronic text transcript. This virtual "deposition attendance" is an important marker on the road to the digital courtroom. As trial commences, the participants blink into existence on the computer monitors that supply the only commonality applicable to them. Judges. Advocate, parties, and witnesses appear in virtual form on each person's computer monitor. Necessary evidentiary foundations are laid by witnesses with distant counsel's questions; documentary evidence is not seen by the Judges until received by the Court. The public can see the proceedings on the Internet. The superior court can directly monitor the proceedings and issue appropriate orders, if necessary.

The collateral consequences of electronic case management, filing, and related systems are of great potential importance. Scheduling a posting is another important factor. The Judge's calendar will be critical, but if the Judge isn't assigned permanently to a given courtroom, a courthouse calendar will be required as well. At the same time, efficient scheduling should involve access to all other hearings involving the same counsel. The practice of irrelevant adjournments can be avoided. When electronic filing is implemented as well, calendaring information is augmented by the actual pleading and associated legal documents, all in electronic format. Once this information is available and electronically accessible there is little or no reason to limit it to court personnel. Trials are open to the public, and the status of filed cases, including scheduled dates for hearing are available to the public.

Legal research is a critical component for any lawyer Access to electronic legal materials has changed the nature of law practice. It has created virtual law libraries and, through on-line access, has hastened the advent of the virtual law office, one which exists wherever the lawyer may happen to be. Within the high technology courtroom, counsel and Judge have immediate electronic access to nearly all legal authorities. Further, and critically, when the courtroom is properly equipped, counsel and Judge may display their authorities to each other as an important adjunct to legal argument.

The advent of electronic legal briefs carries at least three significant implications. The first is that appellate practice may be changing. These briefs are far more comprehensive than their traditional equivalents, and, if used in an appropriately wired courtroom, they permit extraordinary electronic visual interchange of legal authority among Judges and counsel. The second implication stems from economics. Electronic appellate briefs are in part compilations of materials generated at or presented during trial. To ensure the most inexpensive preparation possible, those underlying trial matters, including transcript and evidence, should originate at trial as digital information so that the "data" can be reproduced quickly and cheaply in the brief. Lastly, these briefs can be filed, exchanged, and presented electronically, laying the ground work for a virtual appellate courtroom.

In Los Angeles and Indianapolis, motorists can pay their traffic fines by dialing in to interest sites and providing credit card information. Some California offenders can go to traffic school on-line. There are even law firms which provide services through internet. The advent of high technology courtrooms in Australia has started the "virtual trials". "Virtual trial" is a trial in which all the participants and all "information", (i.e., evidence, opening statements, closing arguments, and, in jury trials, instructions) are conveyed in electronic format to all parties. US Supreme Court has heard a case in Courtroom, with two of its five Judges appearing by separate video-conferencing systems.

In India, at the instance of Patna High Court Chief Justice Ravi S. Dhawan in video­conferencing was started. In the six months since its introduction, it has delivered swift justice, becoming one of the few success stories in the State. About 200 undertrials have been released-130 from Beur Jail, 30 from Vaishali, 25 from Muzzafarpur and 30 from Bhagalpur. All were accused of petty offences or were in jail even after completing their sentences. "In a number of cases, the Courts remain unaware that the undertrials have not been produced before Court. Through video-conferencing, on awareness is created about a particular prisoner", says the Registrar of Patna High Court. The televisions have been arranged locally while the two digital video cameras, connected through Integrated Services Digital Network (ISDN), are from Patna. The Court in Sasaram, like most courts in the State, gets a huge number of cases. Every month, around 400 cases are left pending. By the third day of video­conferencing, 55 inmates of the jail want to confess to their crimes, whether they are guilty or not. The Chief Justice has now asked for funds to set up video-conferencing facilities in all the five central jails and 27 district jails in the State. The proposal is pending with the State Government. Meanwhile, the two digital cameras will continue to do the rounds of different jails, delivering instant justice. The litigants will be informed of the defects in their petitions, if any, without the peed to access individual courts, and asked to rectify. Thereafter, cases will be registered and allocated to Judges/Magistrates according to the work distribution schedule already fed into the computer and dates for appearance of the parties will be set. A chronological record of the trial of each case will be maintained on the network and the final order made available on the network. Copies of the orders can be obtained on payment from the facilitation counters.

E-courts can eliminate or at the very least greatly reduce case backlogs. With the help of network links between High Courts and other Courts, the performance of Judges can be evaluated faster without waiting for the actual performance reports. The legal profession has also benefited from these technological innovations. Legal research that once took hours or days in now available in seconds through computer and Internet databases. Clients can reach their attorneys anywhere in the world through the use of cellular and video innovations. The list goes on an on. The beginning of Web-based interactive instruction makes it clear that a e-courts based upon exchange of text is now possible.

What "improves" the administration of justice is clearly a question of judgment. Initially, decreasing the time and cost necessary to resolve a dispute would appear to be in the interests of judgment. So too should be improvement in fact finder comprehension which should lead to improved accuracy in result. If barriers to delay are lightened it may be that more cases will be disposed of. This, of course, is not necessarily bad "Justice delayed is justice denied". Crime lakes a moment but justice an eternity. The value of time has to be realised. We need change from Civil Procedure Code to Electronic Procedure Code. Instead of demanding benches and sitting at local places, time will come that we will be able to conduct cases silting in front of the Computer. We are now moving from snails court to the mouse court, where justice can be delivered on the click of a mouse.

Web Sites Useful for Lawyers

(Compilation of P.B. Sahasranaman, Advocate, Kerala High Court)

AH India Reporter -http://www.allindiareporter.com/start.htm. This site contains the full text of the judgments which are reported in the famous old law journal All India Reporter. The judgments reported on All India Weekly Reporter are available.

Butterworths-http://www.butterworths.com/ - Butterworth's online services offer authoritative legal and taxation information services to fit every need. LEXIS-NEXIS Professional provides access to full-text online legal, news and business information services.

Enviro Legal Kerala-http://personal.vsnl.com/sahasram/. This site contains the necessary law for protecting the environment of our country. Several notifications and case laws are available. Site maintained by RB. Sahasranaman, Advocate.

Cause List & Orders of Courts in India -http://indiancourts.nic.in/maintcause.htm This site contains the cause list of the courts in India, like Delhi, Bombay, Calcutta, Kerala, J & K, Andhra Pradesh. It also gives the daily interim orders and judgments of the Supreme Court of India and Delhi High Court. This Site maintained by National Informatics Centre.

Cause List of Kerala High Court -http://164.100.9.209/kerala/indexl.html Cause list of Kerala High Court can also be searched through the site of the NIC as stated above. But you can reach same directly, without any side windows in this page.

Environmental Law -http://www.elaw.org/ The Environmental Law Alliance Worldwide (E-LAW) gives public interest lawyers and scientists around the world the skills and resources they need to protect the environment through law. E-LAW advocates serve low-income communities around the world, helping citizens strengthen and enforce laws to protect themselves and their communities from toxic pollution and environmental degradation. E-LAW advocates are building a sustainable future by helping citizens participate in policy decisions about the environment. By giving grassroots advocates access to critical legal and scientific resources, E-Law strengthens these advocates to challenge environmental abuses and pursue environmental justice.

Find Iaw.com -This is US site is one of the most famous web sites on law. It also gives links to US Supreme Court, various job opportunities, etc. Law news are arranged in different heads. It also provides you e-mail facility.

Government of Kerala -A State Government web site. You can even sent e-mails to Chief Minister through this site. Format of applications to be made to Motor Vehicle Departments, Kerala State Electricity Board, Revenue Department, Municipal Corporations, Rationing Office and the current policies of the State Government is available on the web site.

Indian Courts -http://courtnic.nic.in/ This site connects you to the Delhi High Court and Supreme Court. You ascertain through this site the position of the case as on date. You can search by giving the name of Advocate, by giving the case number at Supreme Court or at the concerned High Court or by giving the petitioner/respondents' name.

Indian Property Laws.com-http://www.indianpropertylaws.com/ The most comprehensive web site on property laws. The sub heading provides information for registration of documents, important case laws and a bundle of specimen agreements like agreement for sale, gift deed, trust, power of attorney, partnership, etc. Besides this it also contains the Maharashtra Rent Control Act, Co-operative Societies Act, Relevant provisions of Income Tax Act, etc. Site maintained by Remani Legal Services Pvt. Ltd. Mumbai.

Indlaw.com.http://www.indlaw.com/ The largest electronics resource base on Indian legal, tax and regulatory issues. A good site for the lawyers. It has Indian law news, the frequently asked questions on certain legal matters, the essential law for business, and a large number of links to various sites on commercial laws, practice, international laws, Human rights and resources.

India info Law-http://www.indianinfo.com. This site contains useful information for the lawyers as well as for the public on Police, Tax, Labour, laws. This site is maintained by a group of students of National School of Law, Bangalore.

India Info Line -http:/www.indiainfoline.com/legal/ This site on law mainly concentrates on corporate laws. For Tax payers and share brokers this site will be more useful.

Judgment information system-http://caselaw.delhi.nic.in/caselaw/ Judis is a comprehensive On-line Case Law Library containing judgments of Supreme Court of India reported from 1950 onwards Good searching facility is also provided. Entry to the site is through membership and fees are at subsidized rates. There are two sections: Judis is a comprehensive and searchable online case law library containing all reportable Supreme Court judgments since 1950, and the India Code Text base a repository of all Central Acts of Parliament since 1834. Maintained by National Informatics Centre, New Delhi.

Judgments of Kerala High Court:http://www.geocities.com/sahasram 2000/This site hoisted by P.B. Sahasranaman, Advocte of Kerala High Court contains an index of the judgments of the Kerala High Court, a digest of Environmental and Public Interest Cases, and Laws relating to Telephones, etc. It also contains a lot of other details which are very useful to the lawyers and the persons who wanted to know about the law.

Kerala High Court - Official site -http://highcourtofkerala.nic.in/welcome.html. This is the official site of Kerala High Court, which contains the bio data of Judges, calendar, cause list and a lot more.

Kerala High Court -http://www.keralahighcourt.com. This site contains a lot regarding the Kerala High Court including judgments, details of pending cases and information about the lawyers in Kerala, Advocate General Office, Bar Council of Kerala, etc.

Kera Lawyer-http://www.keralawyer.com/.is a vertical portal that aims to provide free access to the latest judgments of the High Court of Kerala in Ernakulam. The portal is hosted and managed by Murti and Murti, Advocates.

Law schools and colleges in the world - A2 to Z colleges. comhttp://www.a2z.colleges.com/. This site gives a complete list of Law Colleges in the World in alphabetical order.- (Not Indian colleges).

Laws 4 India.Com -http://www.laws4india.com/ This site on Indian Laws is mainly related to corporate laws. This site is useful to those who practice taxation laws. Several formats of various documents are also available on this site. Circulars issued by the Reserve Bank of India, and Income Tax Departments are also available.

Law com Dictionary -http://dictionary.law.com/ As the name suggests it is good dictionary for the words for which we require definition. Search for any words relating to law or legal matters. Different types of search facility is also provided in this site.

Lawyers initiative-http://www.lawyersinitiative.net/Website providing legal advice. Court Fee Calculator, and links to various other sites useful to lawyers - maintained by group of lawyers from Kozhikode.

Legal Spider.com-http://www.legalspider.com Providing legal research services to the legal community. Certain services are free and certain are paid services. Formats of various documents, pleadings, etc. are available. Most of the central statutes are available on line.

Lex Site.com- http://www. lexsite.com/This site contains daily news on law. It provides information on direct taxes, indirect taxes, foreign exchange, corporate laws and provides links to a lot of other law related sites. A good compilation of bare acts is one of the good feature of this site.

Laws in India.com -http://www.lawsinindia.com/ A well maintained site for Indian site. The site contains a lot of information on civil, criminal, constitutional, environmental, company, labour, property, foreign trade, taxation laws. It also gives information on upcoming legislations.

Maha Library - http://www.mahalibrarv.com/ An on line collection of Indian Laws. It also provides search facility. Free registration.

National Informatics Centre : http://www.nic.in/. This site provides all the Government of India and some State sites maintained by the NIC. It has got links to all Government Departments, Ministries, Banking and Financial Institutions, Educational Institutions, Indian Missions, etc.

Peoples Council for Social Justice - http://councilforjustice.org/ People's Council For Social Justice (PCSJ) is a non Government, non-profit, welfare, service organisation founded on the initiative of Shri Justice V.R. Krishna Iyer, former Judge of the Supreme Court of India in 1985. Provides legal assistance.

Railway - http://www.indianrail.gov.in/index.html- Site maintained by the Indian Railways. Provides a lot of information, like train timings, including the reservation availability.

Supreme Court on line - http://www.supremecourtonline.com/index.htm This site contains the more recent judgments of the Supreme Court of India. A private web site owned by M/s. Chawla Publications.

Supreme Court of India - http://www.supremecourtofindia.com/. This an unofficial site containing a lot of information who do not know anything about the institution. So far as lawyers it is less useful. This site is a dedication to the cause of propagating & spreading awareness about the various facets of the Hon'ble Supreme Court of India and its, invaluable contribution to the fabric and growth of India through the medium of Internet. Besides a good photograph of the court, it provides a lot of information on the court.

Supreme Court case laws : http://www.supremecourtcaselaw.com/. This site provides you judgments of the Supreme Court of India, online, whether reportable or non-reportable. The accessibility to see and download the full text of the judgments is restricted to only the members of this site. However, non-members/visitors can search and see the subject index of the judgments on the site.

Telecom Directory-Through this site one can find out the telephone number of any person in the Kerala State. Site maintained by the Telecom Department.

Taxman - http://www.taxmann.com A site containing details of the Taxation laws. Recent issue of Taxman and SEBI and Corporate Law Reporter is available. Recent circulars issued by Finance Ministry and Income Tax Department are also available in the site.

Vakil No. l.Com. - http://www.vakilnol.com/ It provides online legal consultation. The site gives examples of agreements, legal forms, legal news, legal links, cause of lists of all Indian Courts, Court calendars, lawyers jokes, law riddles, law, vakil chat, legal bulletin board, judgments, etc.

Waqualat.com.- http://www.waqualt.com Containing a lot of information for lawyers.

Zee Next - http://www.zeenext.com/legal/index.asp - This site maintained by the Zee Television group is one of the best sites which provides information on a Indian Laws. It has inportant judgments, law lexicon, humor, and a lot of bare Acts.