Justice P.T. Raman Nayar, The Sole I.C.S. Judge in Kerala 'Steel Frame and Soft Touch'

(By V. Bhaskaran Nambiar, Former Advocate General and Judge, High Court)

Justice P.T. Raman Nayar, the sole I.C.S. Judge on the Bench of the Kerala High Court, a judicial stalwart, a colossus of a Judge is no more with us. He did not die to be forgotten; but lived to be remembered even after death. His death is only an 'inevitable adventure', not a forgotten epitaph; but an eternal revival of his greatness. Lord Byron said, 'Tom, no more - so no more of Tom'. But Byron did not live to see P.T.R.N.

It is not the purpose of this article to refer to the memorable decisions he rendered on the constitutional, criminal, civil and company jurisdictions, including the famous Mariyakutty murder case, the Pala Central Bank case and the E.M.S. Nambudiripad contempt case, but to show the sidelights of his character as a Judge and as a man, as I saw and knew him.

Once Chief Justice M.S. Menon remarked from the Bench, 'Mr. Justice Raman Nayar writes not with a pen; but with a pin'. It could point to his handwriting or even to the sharp edge of his brain or even to pin pint his analysis of any problem.

Chief Justice M.S. Menon was known for his 'mastery of the written and spoken word' and for thoughts condensed in crisp and concise language. Justice Raman Nayar described Justice M.S. Menon on the eve of his retirement thus

"Master of the chiseled phrase, your judgments are models of precision, of clarity, of thought and action, and above all of judicial discipline and restraint, parsimonious to a degree, never saying more than is necessary and always jealously guarding against going wrong. Except to the discerning mind, the easy almost beguiling flow of language, conceals the amount of thought, care and labour that goes into every judgment of yours, as much, more perhaps, as to what to keep out, as to what to put in. You touched nothing which you did not adorn and there is no face of the law you could not have adorned".

Justice Raman Nayar's name sticks to my mind when I recall some incidents inside and outside his court.

Caustic comments - constant stand

Mr. Justice Raman Nayar was one of the most respected Judges of our High Court and this respect continued even after his retirement. The noble Judge did not make any distinction between senior or junior lawyers and he knew only about good and bad cases. His intellectual superiority, which was universally recognised, never affected his extraordinary patience and respect for the bar. Once he asked me in court "Nambiar, we are used to make some comments, sometimes sarcastic, from the Bench. Why don't you react? Some others do". I submitted, "My Lord, I have two submissions (1) I am not paid to offend a Judge and (2) Swami Chinmayanandaji had said at a public meeting, that if somebody calls you, a son of a dog, you are angry because, you identify the dog with yourself, the dog with your father, the dog with your father's father, the dog with your father's father's father". Justice Raman Nayar said, "I understand, you may proceed".

Powerless and Powerful

In one case, arguing for the petitioner, I begin by saying "this is an unfortunate case where the petitioner is sought to be reverted from the post of Headmaster of his school, by one of his own students in the same school, presently appointed as Headmaster". Justice Raman Nayar remarked "Nambiar, do you know, that when I was a District Judge, somebody who was very much junior and who was only a Munsiff earlier had been appointed as Judge of a High Court. I did not object". (His Lordship was referring to the appointment of Shri K.V. Gopalakrishnan Nair as Judge of the Jammu and Kashmir High Court even when, he, a very senior District Judge was continuing as District Judge in the Madras State. I shot back "My Lord, then, your Lordship did not have the power to correct the mistake; today your Lordship has the power". That seemed to click and after some arguments, stay was ordered. Another Judge allowed the Writ Petition later.

Beware of Rahukalam - The Inauspicious Hour

Rahukalam was not in my professional vocabulary, till Ismail came to my office in 1961. Ismail owned a lorry plying for hire. He had a driver and a cleaner. The lorry was loaded and the cleaner sat on the load. When the vehicle was in motion, he stood up on the load. His head hit against a pole, was severed and he died instantaneously. He was young and left a widow and one child.

The widow and child claimed compensation from the owner under the Workmen's Compensation Act. They were granted compensation of Rs.6000 to be paid by the lorry owner. The owner Ismail had no worries, because his lorry was insured with the State Insurance Officer and the State was bound to pay the compensation ordered.

The Insurance Officer did not pay; revenue recovery proceedings by attaching the owner's household furniture commenced. An urgent stay was required and I 'guaranteed' him stay. In those days Justice Vaidialingam was sitting in Writ Court and almost all the Writ Petitions raising some constitutional question were practically admitted, notice to the respondents ordered and stay granted. But I did not note that it was in Rahukalam, the inauspicious period that the Writ Petition was prepared and filed. In my case, Rahukalam worked. Justice Vaidialingam fell sick and he did not attend court the next day. So my case came before Raman Nayar, J. My client not knowing English, confident of stay was sitting behind me in his silk shirt and dhoti. Justice Raman Nayar asked, "How does a writ lie". I said, "This is a writ for mandamus for directing the enforcement of a public duty by the Insurance Officer of the State." The Judge observed-, it is not a public duty, only a commercial duty for which mandamus cannot issue. He added that the amount can be paid now; and a suit instituted for recovery of the amount from the Insurance Officer." I submitted on the question whether this was commercial duty or public duty, there was no reported decision and therefore notice may be ordered. I also added that if a suit had to be filed, it would take years before the amount could be realised in execution of the decree in the suit. The Judge maintained his stand and was about to dismiss the Writ Petition, and he was about to proceed with the judgment. My repeated requests were of no avail. I sat, murmuring "that if this is the law, nobody hereafter can take his car out of his garage unless he has six thousand rupees in his pocket". At that time, I did not have a car; the Judge had one. He asked me, what I was saying. I stated, "if this be the law, nobody can take his car out the garage unless he has six thousand rupees in his pocket". After a few minutes of repetition of the same points, the Writ Petition was admitted and stay was granted. The Writ Petition never came up for final hearing because the Insurance officer, on getting notice from the High Court, paid the amount and the Writ Petition became infructuous.

Ootacamund Law

Justice Raman Nayar had a house in Ooty. I believe his sisters also owned neighbouring houses. He used to spend his vacation in Ooty. Once I went with my family to Ooty during vacation. We met at the Horticulture gardens. I was comparatively young and dared not go anywhere near any Judge, even if it was vacation. He called me and then asked me whether I go always to Ooty during vacation? I said that depends. 'If you sit in the vacation court, I go to my house and spend my vacation with my mother. Otherwise, I go to Ooty to spend a part of the vacation!

Ammalukutty, Judge's wife did not understand what I was talking. The Judge explained to his wife - "So you know, what Nambiar is stating. There are some Judges who grant stay freely; some who do not. I belong to the latter category. When I sit during vacation, he will not get stay and therefore he does not attend the vacation court and when the Judge freely granting stay sits during vacation, Nambiar makes money and then spends a portion; so he comes to Ooty"!

Easement and vacation

He was mentioning about an advocate who was just elevated to the Bench. He said that the advocate was very hardworking. In fact, in an easement case argued by the advocate, the Judge told him about the book to be referred, and the subtle distinctions between easements, license etc.

He took a week's adjournment and then argued ably and won the case. (The advocate was Bhaskaran who became Chief Justice of Kerala and Andhra Pradesh later). During the entire conversation, I did not utter one word.

Next day, my wife and I went to his house, in one of the posh areas in Ooty, to pay our respects. He then said, "Nambiar, I know, you do not know much about the law of easement, you did not utter one word yesterday when I was explaining about the law of easements. He continued; anyway I shall ask you. There is a pathway belonging to us in front of my house and leading to the other houses also. The doubt is how the right to use the pathway has to be dealt with in the sale deed in case one of the houses was to be transferred. I told him that when he was talking on easements in the horticultural garden at Ooty, I guessed that he wanted some doubts to be cleared on the subject! I did not want to discuss law during vacation and that too in Ooty! I therefore pretended ignorance. He approved of my reaction and of course, I attempted to clear his doubts. Whether he followed that or not, I do not know, I am sure the parthway continued!

It was a very broad minded gesture, when he wrote to me when I was appointed Advocate General and later as a Judge thus.

"My dear Bhaskaran Nambiar,

Congratulations and best wishes from both of us on your appointment as Advocate General. The recognition has been slow in coming. Yet, when it comes it was churlish to dwell on its tardiness. (Rather, you should take comfort in that, this is because, it is apolitical in origin). I'm sure you will take it with grace and dignity and live up to the best traditions of your high office, traditions, transcending local or temporal moves".

On my appointment as Judge of the High Court, he wrote:-

"So, at long last - about a decade delayed! But, not by any means too late, for six years should be long enough for a man of your mettle to make his mark on the Bench. And I trust the interval has enabled to see you through your years in office and retirement – continuance of A.G. must have been professionally rewarding experience. Chief Justice Potti has done quite a few good things- this is one of them".

The last line was a dig at Chief Justice Potti as both of them did not see eye to eye on several issues and aspects.

I have mentioned some of these and other aspects in the book titled 'Life's Likes and Dislikes' to be published shortly.

Knowledge is Strength

(By K. Ramakumar, Advocate, High Court)

I am privileged to be called upon to talk to you. I assure you I will not misuse that and bore you too long. I said I am privileged because I am no different from you, excepting that I was born a few years earlier than most of you and have wasted several ten years in the Bar. I therefore have no right to sermonize to you or make a speech as insincere, as a Reference speech. I can, however share with you certain thoughts, which if you think will be useful to you, I shall be beholden.

Most of you may be here, because you couldn't be elsewhere, I mean no disrespect to you. Many of you are from prestigious law schools, making up your mind to choose practise of law as a career. In either case, you have to reach the top of the profession to which you proudly belong. How do you do it? One method is to secure quick success through short cuts, such as currying favour with and cultivating people in power, cringe for petty positions, crawl even if you are asked only to bend, mix with the mighty in parties and functions, putting up a servile face, etc. etc. For this you don't have to know any law at all, but only need to know who are the right persons to fix. The other, obviously arduous, is to work hard day and night, increase your equipment and skill, strengthen your knowledge, enhance your character and reputation and reach the room at the top? The choice is clearly yours.

Learning law, is like learning driving. Even if, you sit by the driver for years, you won't be able to drive. Can you ever imagine learning driving without a driving master? Likewise, do you think you can learn law without a Guru? I think not. Those who come in a Maruti car for enrolment, knocks at the doors of several seniors, finds none, starts off on his own and gets a junior in the next enrolment. Is this your idea, how a reputed lawyer, known for his learning trusted by his clients, respected by Judges is groomed? I am afraid you are entirely wrong if you think it is.

A lawyer of this category was requested, on a day to make a representation on behalf of another lawyer, by a clerk, seeking time for filing “Bt£]w” (Akshepam) The new entrant sprightly stood up and said. "I want time for filing abuses your Honour". Do you want this to happen to you? If you do not, take to learning law seriously. There is nothing under the Sun, that a lawyer shall not know. Knowledge is the biggest strength and asset of a lawyer. A lawyer who knows his subject, will not be cowered down, even by an over bearing Judge. He will not be afraid of Judges, who are in the habit of putting repeated questions at a time. He can stand up to any Judge with confidence and sure of himself, because he is adequately equipped in law and familiar with facts.

Lawyers are forbidden from advertising. But you are your own best advertising agent. People watch out lawyers arguing. That is the advantage of an open trial system, which we Speech delivered in the function of 'Lawyer to Lawyer' organised by the Kerala High Court Advocates' Association in June, 2003.have inherited from the British, and the only thing Indian Judges have not been able to tinker with till now. That ensures transparency. It calls the bluff of the sartorial senior, not the senior by quality, who receives only derision and not respect from the watchful litigant. The brilliant and the best among the lawyers glitter in the open, not basking in the sun-shine of favour-dispensers.

Now tell me to which category do you want to belong? To wait in the long and laggard queue of the lawyer who depends on him alone, his equipment, knowledge, character etc to reach the room at the top, or the instant successes, through favour seeking, lobbying, manipulation etc?

I have to necessarily warn you that the profession is losing its past glory. Lawyers are also suspected to be associated with the twenty per cent, a former Chief Justice regretfully said to exist among the Judges. I have to say with sorrow, that resolutions tabled by lawyers' associations are passed on to Judges, instantaneously by those in that category. Why blame others, when we are ourselves also at fault? Expediency is fast overtaking excellence. In the High Court, we strive for excellence, at all levels. We are sadly lacking that. A Full Bench, mind you, was about to be dissolved, as none of the lawyers was ready even with bare facts, not to speak of law. With what grace can we, criticise the Judges who are impatient with lawyers who do not prepare themselves? That, thorough lawyer, who studies his briefs well, up to date with all decisions, show respect and not fear to the court, dignified in behaviour, commands and not demands respect, trusted by his clients - That species is fast diminishing and vanishing. It is we and we alone who are responsible for this abysmal fall.

In the hands of the young lawyer, lie the future of the glorious profession to which, Gandhi, Jawaharlal, Sardar Patel, Rajendra Prasad, Bulabai Desai, Ashutosh Mukerji, Setal wad, Palkhivala, and a host of eminent other Indians belonged. No Judge can stop you from becoming equipped, up to date, and really learned. Therefore, I repeat again- Knowledge is the biggest strength of a lawyer - And his success too.

Thank you all.

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Speech delivered in the function of ‘Lawyer to Lawyer’ organized by the Kerala High Court Advocates’ Association in June, 2003.

Make Love to Books

(By K. Ramakumar, Advocate, High Court)

Years back, when I was devilling for my late lamented Senior, he once beckoned me and required me to go to the High Court Library, find out and read 'Smith's leading cases'. Ever heard of such a book? Not likely. Nor did I then. Smith's leading cases, is a beautiful collection of cases like Rylands v. Fletcher, Donnough v. Stevenson, Ashby v. White, etc. etc. which should introduce every new entrant to the Bar to the nuances of English jurisprudence. When I haltingly and hesitantly went to the High Court Librarian for the book, he was eyeing me with curiosity and politely told me that the book was with one of the judges who later adorned the Bench of the Supreme Court and brought pride to the State as an eminent jurist of the country. To him, books provided far more sumptuous feasts, than food itself. You have guessed his name correctly. It was the late Mr. Justice K.K. Mathew. To my good luck, the venerable judge somehow had come to know that I had asked for the book which he may have read several times.

Since then I certainly enjoyed a distinct advantage appearing in his court. He was such a considerate and compassionate Judge particularly to the junior section of the Bar. All that he insisted was that one should study his cases well. The story of his success? Reading, reading and more reading.

So was another great Keralite Judge who fortunately is still living. Amidst his lucrative and large practice he found time to read everything that came by him, from Link to Life. The English language is to him like clay in a potter's hand. His mastery of that alien language is astounding and unparalleled. I had the good fortune of appearing along with him, against him and before him, both in the. High Court and in the Supreme Court. A great Judge with varied interests and vast capacities in different fields, there is hardly anyone to match his reading habit. He reads almost all books touching on different topics. From Allen Tofler to Aurthur Haily, I don't have to tell you whom I mean. The secret of his success? Again, reading, reading and reading.

(I know it is considered indecent to make such personal reference, but it is unavoidable to drive home the point.)

To those who have chosen the legal profession as a career, hard work is unavoidable. From time immemorial the profession of law is considered noble not because people who come to the top in it, make lots of money but, for their profound knowledge of law, integrity, character, hardwork and honesty. Not a single notable lawyer of repute in the whole country has tasted success without hard and sustained work. That trust and confidence belong to the Lawyer who builds up a practice on the edifice of his own equipment and hardwork. Seniority should be commanded and not demanded. True, some judges are prone to discourage deep and laborious learning, especially these days. Also true, there is a vast difference between old time Judges, and the newer ones with an eye on statistics than on sound legal principles. But then, lawyers also have changed likewise. This shouldn't dishearten a young entrant to the Bar, whose toils and travails will not but be rewarded one day.

The legal profession is fast becoming a trade or business and the tricks associated with them, played by some in it as a short-cut to instant success erode its image identify them, expose them and ostracise them. At least, do not emulate them at all. The room at the top belongs to you and if you reach there, try restore back the glory of a profession to which great nation builders belonged. Make Love to Books, Read, Read and succeed.

Bifurcation of the Supreme Court of India

(By Justice K.T. Thomas, Former Judge of the Supreme Court)

There is news that a Parliamentary Standing Committee on Home Affairs of members of the Parliament criticized the Supreme Court for rejecting the demand to set up regional Benches of the Supreme Court of India. The Standing Committee decided to request the Chief Justice of India (CJI) to reconsider its earlier decision. It is heartening to note that the Standing Committee was apprised of the fact that a full Court of all Judges of the Supreme Court, after due deliberations, unanimously reiterated its earlier stand that such benches would impair the unity and integrity of the country and found no justification in deviating from the earlier stand.

I was one of the Judges of the Supreme Court when all the Judges on two different occasions considered the matter. On both occasions, the Judges, after detailed discussion, unanimously decided against bifurcating the Supreme Court of India. On both such occasions, I could not support the plea that a Bench of the Supreme Court should not be set up in South India despite my own home is in the southern most State of India and the present seat of the Supreme Court is in one of the northern most part of India. On both occasions other Judges hailing from southern States also did not favour setting up of benches of Supreme Court at other places. We were told that this subject was considered on earlier occasions also by the judges of the Supreme Court and on all such occasions, they resolved unanimously that bifurcating Supreme Court of India would be detrimental to the nation.

The Committee of Members of Parliament headed by Pranab Mukherji is reported to have disapproved the reasoning of the judges that setting up of the regional benches would impair the unity and integrity of the court. The only reason advanced in favour of such benches is that it would provide "people of the far-flung areas to get accesses to the apex court." No statesman shall decide on such a vital issue as bifurcation of the nation's apex judicial institution merely on the ground of a solitary advantage. There is hardly an issue for which there could at least be one advantage. Statesmanship requires that all the pros and cons, all the merits and demerits, particularly of a' vital issue should be weighed in the balance before a decision is taken to act when the demerits of the issue outweighs the merit. A statesman should not lean in favour of the larger demerits just for achieving the lesser merits.

Art.130 of the Constitution of India declared that the seat of the Supreme Court shall be Delhi, and by way of empowering the President to have its seats elsewhere in the country the alternative is also provided in the Article. It reads: "The Supreme Court shall sit in Delhi or in such other place or places, as the CJI may, with the approval of the President, from time to time appoint". Thus it is not necessary that the seat of the Supreme Court shall be at Delhi. It could be at Hyderabad or Kolkotta or Mumbai or Chennai or Bangalore or even Cochin or any other place. In the absence of such a provision, the Supreme Court could have become dysfunctional in an emergency situation when it could not operate at Delhi due to the foreseen or unforeseen eventualities. I need not describe such situations as anyone can guess it. During our discussion, I said that I did not mind the Supreme Court being set up at any place in the South or any centrally placed location, but I am unable to conceive a Supreme Court of India scattered in different parts of the country.

The Constitution provides singular office for a number of vital functions of the nation. Art.52 stipulates that there shall be one President of India, Art.63 allows only one Vice President of India, and Art.74 envisages only one Prime Minister for the whole Nation. Art.124 declares that there shall be only one CJI. Art.148 contemplates only one Comptroller and Auditor General of India. Art.76 enjoins that there shall be only one Attorney General for India. (There was a proposal to appoint Additional Attorney Generals, but the Central Government accepted the legal opinion tendered by M.C. Setalwad, India's first Attorney General and a great jurist, that the said constitutional post cannot be and shall not be multiplied.).

Art.141 mandates that the law declared by the Supreme Court shall be binding on all courts within the territory of India. As 142 conferred special power on the Supreme Court to make such order as is necessary for doing complete justice in any cause pending before it. Art.141 directs that all civil and judicial authorities shall act in aid of the Supreme Court.

The above survey portrays how the Constitution makers conceived of the singular edifice of the institution of the Supreme Court of India. The Bar of the Supreme Court grew and developed and has now been crystallized into one homogenous unit. There is only one Supreme Court Advocates' Association and only one Supreme Court Advocates' on-Record Association. Thus in the same manner as the Indian Parliament, the Supreme Court of India has acquired the majesty retaining the homogeneity of the Apex Court reflecting the uniqueness of the unity of India. All the Judges of the Supreme Court meet together every morning, they exchange their views together (except matters pending judicial decisions) and thus they endeavour to maintain the special uniqueness of the institution.

What might happen if the Supreme Court has other benches, at least in all the four zones of India should be a matter of serious concern for the people of India. Even looking into the recent past, different benches of the Supreme Court of Pakistan resulted in utter confusion and chaos, particularly on an issue concerning a former Prime Minister, Navas Sheriff, one bench at one place overruling the orders of another bench at another place and competing with each other in an ugly zeal to overshow which bench is mightier than the other. History should be the lesson for us also.

The Supreme Court of India was first established soon after the integration of different States into the Union of India followed by the great event of making the Constitution of India. That was a time when different States could have claimed that benches of the Supreme Court should be established at least at zonal levels. That was a time when reaching Delhi was an uphill task for a citizen from far-flung zones. Communication facilities were miserably far less. Fifty years elapsed during which Supreme Court of India functioned very efficiently while retaining its seat at th'3 national capital itself. During those fifty years accessibility to Delhi became far quicker and more efficacious. Means of communication with the Supreme Court lawyers became much easier and cheaper. Information technology helped in fostering closer contacts between Supreme Court lawyers and their counter parts at far-flung areas much more frequently. Larger number of lawyers from different States became Supreme Court lawyers. Why at such an improved situation the politicians apply pressure to fracture India's majestic acme judicial institution.

The concept of High Court was that it is the highest court of the land. Constitution has conferred widest powers on the High Courts, even greater powers than the Supreme Court itself, in the matter of entertaining the grievances of the litigants. Art.226 was incorporated with that objective. Art.136 requires the Supreme Court to grant special leave if a case was found fit enough to be entertained by the Supreme Court. It is a known fact that out of hundred special leave petitions filed in the Supreme Court, leave would be granted only in a very small percentage of cases. Thus the High Courts were envisaged and shaped by the Constitution makers to hear and deal with and finally decide all the grievances of the citizens. Supreme Court was shaped mainly for uniforming the law laid down by different High Courts at different times. The fathers of the Constitution did not intend to make the Supreme Court a court of appeal and that was why a filter of special leave was fitted at the gate providing many tiny gauzes in the judicial sieve. It was with all the above reasoning that the full court of all the judges of the Supreme Court, time and again disfavoured to bifurcate the Supreme Court. The later decisions were taken by the Supreme Court equipped with the advantage of the views of Judges drawn from all the zones of India. They had the added advantage of not being influenced by the thought of appeasing the voters.

In my opinion, the decision which the politicians made for requesting the Supreme Court to reconsider the repeatedly reiterated stand that the Apex Court shall not be fractured needs reconsideration.

Sivasakthi Co-operative Housing Society Ltd. v. Swaraj Developers - 2003 (2) KLT 503 - Casus Omissus?

(By K.G. Balasubramanian, Advocate, Ernakulam)

Their lordships have referred to three contentions raised by counsel (para 4). To me, it appears that their lordships have bestowed their attention only on the first two contentions and really not on the 3rd one. Their lordships do not appear to have referred to or decided the scope/meaning of the phrase "other proceeding(s)".

CPC does not define proceedings. It refer"? to procedure. It also refers to "proceedings" at a number of places. For example, S.11 Explanation VII, Ss. 13(c), 24,25,35A, 89(2)(a), 94,99, 99 A, 141,144,146,148A, 153,0.24 R.4,0.26 Rr.10(3) and 18(A), 0.32A R.1,0.54 etc.

Civil Rules of Practice does define "proceeding". It also refers to "form of proceedings", "interlocutory proceedings", "incidental proceedings", "proceedings in execution" etc. We regularly hear of "proceedings of Court and "proceedings of the house".

What are "proceeding" and "other proceeding"? "Other proceeding" contemplated by S.115 takes in, according to me, something more than "proceeding". Like "interlocutory proceedings", "incidental proceedings", "proceedings in execution" etc. We know that grant of an order of interim injunction/attachment or appointment of a commissioner does not decide a case finally (?) May be, fate of clients and litigation do depend a great lot on such orders. May be, there are some areas where law cannot help a litigant.

In 2002 (3) KLT 493, his Lordship Basant, J. has considered the question. His Lordship declined to read the word 'interlocutory' into S.115(1). After observing that "all available indications compellingly point to that conclusion - that only final orders stricto sensu will be revisable" (Para 12), his Lordship proceeded to observe that "Instances are legion - and it is not necessary for me to enumerate them here, where this Court will have to invoke the revisional powers subject to the mandate of the amending proviso" (Para 18). But according to me, his Lordship did not advert to the phrase 'other proceedings' in the perspective of the total need to set right jurisdictional errors committed by subordinate courts - whether it be in excess or failure. Of course, there are final orders and interlocutory orders. But in the context of the necessity to render immediate justice - final or otherwise - a narrow interpretation of term "proceeding" or "other proceeding" is not in the interest of litigants and system of administration of justice.

We come across appealable "orders". Right of appeal being a substantive one, the Legislature has provided for S.104 and O.XLIII CPC not for the sake of record, but because it thought it fit to restrict the right of appeal only in the case of "orders" which seriously and finally affect the rights of litigants. 22 types of orders are made specifically subject to appeal. They are all final orders. Can appellate orders in all these cases be challenged under S.115, going by his Lordship's dictum? Most of them Yes, and some of them No.

I hasten to remind myself of the authoritative observation of the Apex Court that a litigant may seek other remedy if available under statute. I feel it may have an opposite effect. Given the present norms of court fee and amended filing procedure, that, according to me, will deter a good number of genuine litigants. It would also lead to a situation where the Hon'ble High Courts will be flooded with writ petitions under Art.227. Can the Hon'ble High Court declare a dividing line between final and interlocutory orders in such proceedings? Will not the Hon'ble High Court be justified in ruling that such orders can be challenged in regular appeals from the decree in the suit/proceedings?

Justice delayed is justice denied. Is a litigant to be compelled to prosecute a long drawn appeal relying on S.105 CPC and the mercy of an Appellate Judge to appreciate "any error, defect or irregularity in any order, affecting the decision of the case"? And an appeal against a remand order? And a second trial? Considering the life of appeals in Indian Courts, such a course would lead to very unjustifiable and bitter consequences. An end has to be put to some cases, as neither clients nor courts are happy about keeping a case open for generations. The system of administration is meant for rendering justice, for social stability and equilibrium. Does any single client want his case to become a pan of history, for coming generations to admire or abhor? Does any litigant desire to nominate a successor to his litigation? All this at a time when presiding officers are judged by points earned by them for disposing cases - Suit or petition or whatever.

The Hon'ble High Court has been benevolent and justice oriented in exercising revisional jurisdiction all these decades. May be, on a few occasions that was based more on compassion, equity, good conscience and fairness than on jurisdictional errors/omissions.

I would recall, at this juncture, the words of a senior Judge of the Hon'ble High Court who was pleased to observe in a tricky situation, in a pleasant, but firm, manner: "We are here to do justice". Can it be done now? Is it possible now?

So, friends, let us do something about it.