Specific Performance and Its Equity Principles

(V.K. Babu Prakash, Munsiff, Thrissur)

The age old concept of specific performance is clearly depicted in the following verses of Shakespeare in the Merchant of Venice (IV.1.297-298).

Portia: - A pound of that same merchant's flesh is thine, The Court awards it, and the law doth give it.

Pollock, Maitland tell us "that the oldest action's of the Common Law aim for the more part, not at damages but at what we call Specific Relief. By far the greater number of the judgments that are given in favour of plaintiffs are judgments which award them seisin of land, and these judgments are executed by writs that order the police to deliver seisin. But even when the source of the action is in our eyes a contractual obligation, the law tries its best to give specific relief. Thus if a landlord is bound to acquit a tenant from a claim for suit of Court, the judgment may enjoin him to perform this duty and may bid the police distrain him into performing it from time to time. In Glanvilla's day the defendant in an action on a fine could be compelled to give security that for the future he would observe his pact. The history of convenant seems to show that the judgment for the specific performance (Quod conventio teneatur) is at least as old as an award of damages for breach of contract. We may find a local Court decreeing that a rudder is to be made in accordance with an agreement and even that one man is to serve another. But there came a time when, the older forms having been neglected, an action which traced descent from breve de transgressions, seemed to be almost the only remedy offered by common law”.

An action for damages was novelty, but later it came to be looked upon as the common law panacea. At the same time it was this inability of older courts to give the specific relief that paved the way for the evolution of an equitable jurisdiction in the Chancery. With reference to this equitable remedy Lord Justice Fry wrote, "If a contract be made and one party to it makes default in performance, there appears to result to the other party a right of an election either to insist on the actual performance of the contract or to obtain satisfaction for the non-performance of it. It may be suggested from this that it follows, that it ought to be assumed that every contract is specifically enforceable until the contrary be shown. Be so board a proposition has never, it is believed been asserted by the judges of the courts though if prophecy were the function of a law writer it might be suggested that they will more and more approximate to such a rule". Unfortunately this prophacy has not been wholly realized. But the Courts are now more and more inclined to grant this relief. How to compel the other party to the contract to perform his contractual obligations or to secure an order of specific performance against him is the central point to ponder. Specific performance as is well known is an equitable remedy and no one can claim it as a matter of right.

Ubi jes ibi remedium is a universally recognized legal maxim. Where there is a right there is a remedy. Equity will not suffer a wrong to go without a remedy. In Ashby v. White, where a qualified voter was not allowed to vote and who therefore sued the returning officer, it was held that if the law gives a man a right, he must have a means to vindicate and maintain it and a remedy if he is injured in the exercise of and enjoyment of it. It is indeed a vain thing to imagine a right without a remedy for want of right and want of remedy are reciprocal. It was argued in that case that the candidate for whom the plaintiff wanted to vote was elected and that there was no precedent for such an action and if it was allowed that would lead to multiplicity of proceedings. But the contention was rejected and Lord Holt observed that if a man will multiply injuries action must be multiplied too, for every man that is injured ought to have his recompense.

The Four Equity Principles Underline Specific Performance

1.He who seeks equity must do equity

This doctrine means that the plaintiff who seeks equity must himself be prepared to do equity. In other words he must recognize and submit to the right of his adversary because, you must do unto your neighbour what you wish him to do unto you. As Maitland puts it, 'he who expects a benefit under a deed or will or other instrument must adopt the whole content of that instrument and must conform to all its provisions and renounce all rights that are inconsistent with it'.

2. He who comes to equity must come with clean hands

It is aptly said that 'he that hatch committed an inequity shall not have equity'. It is well known that ex turpi cause non oritur actio which means no cause of action arises from a base cause.

3. Equity treats as done what ought to be done

As between two persons where one of them had incurred an obligation and undertaken upon himself to do something for the other, court of equity looks on it as done and as producing the same result as if the obligation or undertaking had been actually performed. Equity treats a contract to do a thing as if the thing was already done, though only in favour of persons entitled to enforce the contract specifically and not in favour of volunteers.

4. Delay defeats equity or equity adds the vigilant and not the indolent

Delay which is insufficient to prevent a party from obtaining an equitable remedy is technically called latches. The leading case on this subject is Allcard v. Skinner. Miss Allcard wanted to devote her life for charitable works and became a member of the society of sisters for the poor. Within a few days of becoming a member, Miss Allcard made a will bequeathing all her properties to Miss Skinner, Lady Superior of the Sisterhood and in the succeeding years made several gifts to Miss Skinner. Miss Allcard left the sisterhood about 8 years later and immediately revoked her will but waited for a further period of 6 years before commencing the action to recover what was left of the money given by her to Miss Skinner. The trial Court dismissed her action. The Court of Appeal consisting of Lord Cotton, Lyndley and Bowan were of the opinion that at the time of the gifts the relationship between the donor and donee was such that in the absence of independent competent advice from others the gifts could not stand. According to the learned Judges Miss Allcard was not a free agent at the time of making the gifts and she was therefore entitled to set aside the transfers when she left the sisterhood. On the question whether the plaintiff was entitled to recover possession of the gifts there was a different opinion. Two Judges were of the opinion that Miss Allcard's inaction for 6 years after she left the sisterhood indicated her intention to confirm the gift. Latches and acquiescence thus disentitled her from claiming back the property. The maxim delay defeats equity has been well considered and recognized in the said case.

The law of Specific Relief is founded on these principles of equity enunciated by the courts of equity in England. As has been held by the Supreme Court, the Specific Relief Act, 1963 is not exhaustive enough to contain the whole law on the subject. As indicated by the preamble of the Act, it is an act to define and amend the law relating to certain kinds of specific relief. It does not purport to lay down the law relating to specific relief in all its ramification although on a matter it defines it might be exhaustive. The Act being passed on England law, the provisions may be interpreted in the light of the principles recognised by the English Courts unless the provisions in the Act expressly diverge from that law, in which case the provisions of this Act shall prevail. Specific Relief as a form of judicial redress belongs to the law of procedure and in a body of written law arranged according to the natural affinities of the subject matter, would find its space as a distinct part or other division of the Civil Procedure Code. It is called specific because in its procedure the plaintiff gets his relief in specific ie., the very thing which the other party was found to perform or to forbear. As Whitley Stokes observes, "the remedies for the non performance of a duty enforceable by law are either compensatory or specific, but compensatory remedy is by the award of damages. This remedy is often useless or inadequate unless the person is insolvent and inadequate, when for instance the duty is to transfer particular immovable property or movable to which special interest is attached. This specific remedy is enforced by directing the party in default to do or forbear the very thing which he is bound to do or forbear and in case of disobedience by imprisonment or attachment of his property or both". Specific performance is compelling a person to perform his contract or statutory obligations. The word specific requires careful scrutiny. To get the meaning of specific, we should look at the scope of object of the section of the statute as well as the terms of the contract. As laid down by the Supreme Court in Maru Ram v. Union of India in AIR 1980 SC 2147, the word specific is specific enough to avoid being vague and general. What is precise, exact, definite and explicit is specific. Sometimes what is specific may also be special. Yet they are distinct in semantics. In broader sense specific performance includes also compulsive performance of specific statutory duty, eg. restoration of possession to person dispossessed of immovable property otherwise than in due course of law by a suit within six months from dispossession vide S.6 of Specific Relief Act. Then restitution can be had vide S. 144 CPC, which is also a mode of specific performance available by statutes.

Specific performance of contract thus being an equitable remedy, no one can claim it is a matter of right and the grant of relief is in the sole discretion of the Court, though the discretion has to be exercised on well settled principles. The remedy is available to both the parties and either party may file a suit even before the due date of completion. A party also need not wait till the other breaks his promise, for the breach of contract is not an essential part of the cause of action inequity. Further since, it is a remedy in personam, the subject matter of the contract also need not be within the jurisdiction of the Court. However, specific performance does not in any way supplant the ordinary remedy of damages and it is open to a plaintiff to claim either specific performance with or without damages or damages alone. In an appropriate case even if the plaintiff fails in getting an order of specific performance, the Court may award him compensation in lieuof specific performance. If the contract cannot be specifically enforced, it is also open to the plaintiff to pray in the alternative for the cancellation of the contract by recession or delivery up of the contract under S.29 of the Act. The Court in such a case order the plaintiff to restore the benefit that he may have received from the other party or to lay compensation under S.30 of the Act.

In India the relevant provisions relating to specific performance of a contract are contained mainly in Ss.9 to 25 and 28 of the Specific Relief Act, 1963. Ss.l0 to 14 between them deal with eligible or non-eligible contracts. Ss.15 to 19 enumerate the person by and against whom contracts may be specifically enforced. S.9 provides for defences in suits based on contract. S.20 to 24 specify the jurisdiction and the powers of the Court regarding grant of relief. S.25 extents the scope of the relief to certain awards and directions contained in a Will. S.28 provides for post decree reliefs. As to specific performance by statute S.6 of the Specific Relief Act mandates that a person dispossessing the plaintiff from immovable property without his consent and without recourse to law should be compelled to restore the possession to plaintiff, if the suit is instituted within six months from dispossession. The object of this provision is to restore the status quo ante. As held by the Supreme Court in Nagarabalika v, Jagadeesh Singh, AIR 1995 SC 1377, this provision is a reprotection of a provision of the Roman Law under which by an inter dictum devi a person wrongfully dispossessed from properties should recover by proving previous possession without being required to prove his title. Again S. 144 CPC is another instance of specific performance of a statutory obligation. A person who has obtained a benefit under an order of Court or judicial verdict which is subsequently found to be wrong cannot be allowed to retain the benefit. He must restore the benefit to the aggrieved person. The principle is embodied in the dictum restitutioin integrain. Specific performance presupposes an executory, as distinct from an executed agreement, which means something remaining to be done such as the execution of a deed or conveyance, in order to put the parties in the position relative to each other in which by the preliminary agreement they were intended to be placed.

"Is Status of An Appeal Eclipsed by The Application to Condone The Delay"

A Study In The Light of The Interpretation of O.XLI, R.3A.

(By Thampi V.S, Advocate, Kollam)

I have got an occasion to read an explanatory note of a learned senior advocate P.Chandrasekhar, Ernakulam, which is published in KLT 2005 Part-3, under the head note. "Is an order dismissing an appeal as time barred an appealable decree". In this remark the concerned advocate has very clearly noticed the difference occurred in the decisions of Supreme Court in Shyam Sundar Sarma 's case [2005(1) KLT 198 (SC] and Pradeep Kumar's case [2000 (3) KLT .598 (SC].

In Shyam Sundar Sarma's case the S.C. rested on the decision passed by the Full Bench of Kerala H.C. in Thampi's case (1987(2) KLT 848) and held that dismissal of an appeal consequent to the rejection of the application to condone the delay is a decision on the appeal and it amounts to a decree to which an appeal u/s 100 of C.P.C. can be maintainable.

But in Pradeep Kumar's case the S.C. held that the Appellate Court does not get jurisdiction to entertain the appeal until the application to condone the delay is granted. Here the S.C. further held that an appeal filed out of time unaccompanied by an application to condone the delay cannot be dismissed at the threshold. It should be considered as a curable defect by filing an application at a later stage. In fact Pradeep Kumar's case does not appear to have been brought to the notice of the Bench which rendered the decision in Shyam Sundar Sarma's case.

Here I would like to share some of my views regarding the provision of 0.41, R. 3 A of C.P.C. R - 3 A clearly speaks about the application for condonation of delay. This provision is enacted into the statute in 1977 and it has nothing to do with the memorandum of appeal though the provision states that the appeal shall be accompanied by an application to condone the delay. This was affirmed by the S.C. in Pradeep Kumar's case stating that an appeal filed out of time unaccompanied by an application to condone the delay cannot be dismissed at the threshold. It should be considered as a curable defect by filing an application at a later stage. Before entering into the provision of R.3A we should understand the situation prior to 1977. Before that most of the application to condone the delay were filed u/S. 5 of the Limitation Act. S. 5 of the Limitation Act does not provide for a separate application for condoning the delay in presenting the appeal. It is an application filed along with the memorandum of appeal, hence the application filed u/S. 5 of the Limitation Act does not have a separate status. So we should understand the situation which prompted the legislature to enact R.3 A when there is a provision already in existence for condoning the delay under Limitation Act.

The provision of 0.41, R.3A added by the 1977 amendment to the C.P.C. reads as under: -

Application for condonation of delay

(1) When an appeal is presented after the expiry of the period of limitation specified therefore, it shall be accompanied by an application supported by affidavit setting forth the facts on which the appellant relies to satisfy the court that he had sufficient cause for not preferring the appeal within such period.

(2) If the Court sees no reason to reject the application without the issue of a notice to the respondent, notice thereof shall be issued to the respondent and the matter shall be finally decided by the court before it proceeds to deal with the appeal under R. 11 or R. 13, as the case may be.

(3) Where an application has been made under sub-r.(1) the court shall not make an order for the stay of execution of the decree against which the appeal is proposed to be filed so long as the court does not, after hearing under rule 11, decide to hear the appeal.

Interpretation of 0.41, R.3A:-

The insertion of word "shall" in all the three sub rule's clearly reveals the intention of the legislature to consider R.3 A as a mandatory one. This was high lighted by the Karnataka H.C. in Nagappa's case (AIR 1986 Kar. 199) and also affirmed by the S.C. in Pradeep Kumar's case [2000(3) KLT 598 (SC)].

In Nagappa's case it was held that a combined reading of sub r.(1) and (2) of R.3A makes it manifest that the purpose of requiring the filing of an application for condonation of delay under sub-r.(1) along with a time barred appeal is mandatory in the sense that the appellant cannot, without such application being decided insist upon the court to hear his time barred appeal. That was the very purpose sought to be achieved by insertion of sub-r.(1) and (2) of R.3 A becomes clear from the legislative history.

A clear perusal of the above mentioned provision helps us to identify the difference of two words used by the legislature in sub-r.(1), i.e., one is "presented" and another is "preferring". These two words used entirely in two different stages, one is used in the stage of filing the appeal beyond time and another is used in the stage of filing the appeal within time.

Let us analyse the two stages:-

First Stage:- Filing the appeal beyond time

R.3A sub r.(l) starts with "when an appeal is presented after the expiry-----------. Here theword "presented" is used to denote the stage of filing the appeal beyond time. The word "presented" in ordinary sense means "an offer" or "give". This means the appeal presented beyond time along with an application to condone the delay is an offer put forward for the consideration of the court and the court can either accept it or reject the offer, but only after the granting of the application to condone the delay. This means here the memorandum of appeal is in limbo. Hence the memorandum of appeal presented along with the application to condone the delay does not get its status as it is filed within time. In other words until the application to condone the delay is allowed the court has no jurisdiction to consider the appeal memorandum. Moreover when an appeal is filed within time or beyond the court should proceed to R. 11 of 0.41 in order to admit or dismiss the appeal, but when an appeal is filed beyond time the court could not proceed to R. 11, because the way to R. 11 is eclipsed by R.3 A and the court has to wait till the eclipse is removed by granting an application to condone the delay. And once the eclipse is removed the way of the court to proceed to R. 11 is clear and the court can decide the fate of the memorandum of appeal.

Second Stage - Filing the appeal within time

The last portion of sub-r.(1) of R.3 A concludes "-----------------for not preferring the appealwithin such period". Here the word "preferring" in ordinary sense means "submitting". If the memorandum of appeal is filed within time the question of application for condoning the delay does not arise. Hence the memorandum of appeal directly comes to the consideration of the court and it get its status ab initio. Thus when an appeal is filed within time R.3A will not come into operation, but once the appeal is filed beyond time R.3 A will come into operation and it has its own status. So in order to realize that an application field under R.3A has its own status the Legislature has deliberately used the word "presented" in the first stage and "preferring" in the second stage.

Moreover in sub-r.(2) of R.3A the Legislature unequivocally expressed its intention through the words, "that the application shall be determined finally". This means an order passed under R.3A shall have all the ingredients of a decree defined u/S.2(2) of C.P.C. and which is an appealable one. This also shows clearly that the Legislature has intended to provide a separate status to an application filed under R.3A and thereby decide it finally.

Further down in sub-r.(3) the Legislature has used the word "appeal proposed to be filed". This means that an appeal is put forward for the consideration of the court and not filed. Hence the Legislature has indubitably held that the execution of a decree shall not be stayed until the court decides to hear the appeal after admission of appeal under R. 11. Thus it is implied from the above mentioned point that the application filed under R.3A is a separate one having its own status and the court has no jurisdiction to entertain the memorandum of appeal filed beyond time until the eclipse is removed.

The Privy Council in Nagendra Nath Dey v. Suresh Chandra Dey (59 LA. 283) held "there is no definition of appeal in the C.P.C, but their lordships have no doubt that any application by a party to an Appellate Court asking it to set aside or revise a decision of a subordinate court is an appeal within the ordinary acceptation of the term and that it is no less an appeal because it is irregular or incompetent.”

In Mela Ram's case (1956 SCR 166) the S.C. held that an appeal presented out of time is an appeal and an order dismissing it as time barred is one passed in an appeal. This question was again considered by the Full Bench of Kerala H.C. in Thambi v. Mathew's case (1987 (2) KLT 848) and held "that an appeal presented out of time was nevertheless an appeal in the eye of law for all purpose and an order dismissing the appeal was a decree and that could be the subject of a second appeal". Here absolutely one could not agree with the K.H.C's view. It is true that an appeal presented out of time is an appeal, but the court could not entertain the appeal memorandum till the application to condone the delay is allowed. If this is the situation then how the court can pass a decree on an appeal without considering the appeal memorandum and without hearing the appellant under R.11. Under what circumstances the Hon'ble H.C. has held that the dismissal of an appeal consequent to the rejection of an application to condone the delay amounts to a decree. In my view the dismissal of an appeal consequent to the rejection of an application to condone the delay amounts to an order of dismissal for default as it is clearly stated in S.2(2)(b) of C.P.C. that "decree shall not include any order of dismissal for default". Likewise there is no doubt that an appeal preferred within time and an appeal presented beyond time has some difference in the eye of law. This difference is clearly noticed by the Legislature in R.3A, discussed above. In order to clarify this difference the Legislature has stated that an appeal presented beyond time shall be accompanied by an application to condone the delay and the court shall not make an order for the stay of execution of the decree appealed till the court decides to hear the appeal after admitting it u/R.l1. If the Legislature does not really want to make any difference between an appeal filed within time or beyond time then why two different words are used in two different stages of R.3A, sub-r.(l). This clearly shows the intention of the Legislature not to consider the appeal preferred within time and the appeal presented beyond time are same.

The Kerala H.C. again held "that the dismissal of an appeal consequent to the rejection of an application to condone the delay amount to a decree against which a second appeal is maintainable". Here also we couldn't agree with the view of the Kerala H.C, because when an appeal is preferred within time 0.41, R.l 1 will directly come into operation and the court can hear the appeal on admission and if there is no sufficient ground to prefer an appeal the court can dismiss the appeal in the admission stage itself u/R.ll. But if an appeal is presented beyond time the provision of R. 11 will come into operation only after R.3A, hence without complying R.3 A the court cannot exercise its power u/R. 11. So without admitting an appeal u/R.11 how the court could dismiss the appeal ? More over the dismissal of an appeal consequent to the rejection of an application to condone the delay does not have any ingredients of a decree defined u/S. 2(2) of C.P.C, and it will not become a subject of second appeal, because as per S.100 of C.P.C. second appeal lies only when the case involves a substantial question of law.

Hence the decision of Kerala High Court in Thampi's case is some how undigestive and the decision of Supreme Court in Shyam Sundar Sarma 's case which exclusively rested upon the decision of Kerala High Court in Thampi's case needs corrigendum from the judicial fraternity.

In this aspect the following questions needs consideration

1) Is dismissal of an appeal consequent to the rejection of an application to condone the delay amounts to a decree ?

2) Whether dismissal of an appeal consequent to the rejection of an application to condone the delay is a subject matter of second appeal u/S 100 of C.P.C. ?

3) Is dismissal of an appeal consequent to the rejection of an application to condone the delay involves any substantial question of law ?

  NEED FOR THE LINK BETWEEN LAYMEN AND THE ACADEMICIANS

(By P.S. Seema, Lecturer, School of Legal Studies, CUSAT)

The strength of a society and the country lies in the strength of its legal system. India is not at all an exception. Rather, India is a country where we find the rule of law as all pervading. Every activity in India is governed by law, or rules. These laws conform to the Constitutional principles. If the legislature or the Executive go against it, the judiciary will rectify it. Thus every activity is undoubtedly governed by law. However, this Law is to work in the society. Unless the society accept and assimilate law into their hearts, no law will be able to function properly. Examples are numerous. Dowry Prohibition Act is the best example. Since, the sentiments of the people are not yet against dowry, it continues to prevail in the society. In those parts of the country where there is no system of Dowry, it is not because of the presence of the law, but because, the sentiments of the people are against it. While the law is made by the legislature, its implementation is with the executive, and its interpretation and protection during its violation is with the judiciary. Thus the law makers, the executive, the judges, advocates, and the police or the respective enforcement machineries under the specific legislations are directly involved in the process. All these things are done for the common people mainly. In this process, the role of the academicians cannot be overlooked, but to be overemphasized. This is possible only if the academic community is keen and vigilant towards the development of law, the flaws in its implementation, and tries to make suggestions constantly. It is the obligation of the Judges, the law makers and enforcement machineries to listen to these suggestions and to make adequate changes.

But it remains a tickling fact that the academicians especially in the field of law keep themselves away from the common people. This deprives them of the opportunity to see the failures of law when it is applied in the society. Most of the academicians are very much concerned with the jurisprudence, the technicalities, and the theoretical issues in law only. But this will not help in solving any practical problems, or to analyse why a particular legislation cannot be implemented successfully. The irony is that those who keep in constant touch with the common people, and those who know the pulses of the society mostly are not persons trained in Law. But those who are trained in law, and mould the future generation of lawyers, are not much in touch with the ordinary people and their sentiments. So a person who is trained in law, and who keeps in touch with the day to day affairs of the people will definitely be an asset to the society as well as to the legal system. So there is a need for a link between the academicians and the common people. The common people have not many wrong notions about the law. It is the duty of the academicians to convince the people of the correct aspects.

The author is inspired to write this from her own experiences in some of the seminars attended where the audience were mostly common people. One was a seminar on the Human Rights of the Persons Living with HIV/AIDS1, and the other was a seminar on the features and failures of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995.2

In the former, there was a question as to what is the remedy available to a person affected with HIV/AIDS who is refused treatment by a private doctor on the ground of his disease. In fact, no law can compel a practicing doctor to consult or to treat a particular patient. Of course there is a duty on the part of the Doctor to treat a person who comes before him for treatment. The Medical Council may be able to take action against such a doctor for misconduct, under the Medical Councils Act. But it is only based on professional ethics. The Act does not create any offence. The Tort Law, the Consumer Law or the Criminal Law comes into picture only when a patient is treated negligently, not when the doctor refuses treatment. This is the position of the law at present, in the absence of a specific legislation for the protection of persons living with HIV/AIDS. But if a law is made, by making refusal of treatment to HIV/AIDS patients, as an offence, then the Doctor can be held liable. But then the questions of proof that the treatment was refused based on the fact the person is affected with HIV/AIDS will remain as a hurdle in its implementation.

So, any law made for the protection of the persons living with HIV/AIDS will not work properly unless the doctors are ready to treat them. Law cannot compel the doctor. Here, common people strongly believe that a legislation will cure the whole scenario. Thus there lies a gap between the law, and the sentiments of the people. It is a sheer reality that even the doctors behave cruelly to HIV/AIDS patients, stating that they deserve a cruel treatment, since they got this disease because of their own fault. (This is the experience of a person affected with HIV who himself declared the incident of a doctor cutting his finger even without giving local anesthesia, saying that he deserves only that kind of a treatment !)3. If, even the Doctors who are supported to know that the reason for the spread of this disease, is not sexual relationship alone4, are themselves treating the HIV/AIDS patients with such an inhuman treatment, what can the legislation do? What even if there is a full legislation making the doctors liable for not treating the HIV/AIDS patients, of there are guidelines or directions from the High Court or the Supreme Court in this regard? Can it be expected that every doctor who refuses to treat HIV/AIDS patients to be put behind bars? What will happen if all the doctors refuse to treat HIV/AIDS patients? The Law can then only create a chaos. The solution lies in making the doctors aware of the impropriety of their acts, or to make them aware of their duties. The solution also lies in making the people aware of the position of law.

In the second seminar, the author was benefited by the grievance of a mentally ill person who complained that no significant benefit is given to the mentally ill under the Persons with Disabilities Act. (The Persons with Disabilities (Equal Opportunities, Protection of Rights, and Full Participation) Act, 1995, defines disability as blindness, low vision, locomotive disabilities, cured leprosy, hearing impairment, mental illness, and mental retardation, and person with disability as person who has got the above mentioned disabilities in not less than 40%. Though mental illness is also incorporated as a disability, in the case of job reservation, or special education, the mentally ill is not mentioned to have any special consideration. Actually, these are the crucial benefits that could be made available to a disabled person, but the mentally ill are not given those benefits, and there is nobody to listen to them). From the speech of other speakers, who work in the field of persons with disability, many limitations and loopholes of the Act could be identified in the light of first hand information. The experiences of such persons who live the law, was the real indicator of the working of the law. This would not have been possible by just going through the legislation, its rules, or commentaries on the Act, or even by reading Articles dealing with the jurisprudence of the rights enshrined in the Act. But an exposure to the reality, will enable a person to easily identify the defects of the law.

These are extra legal measures, which will alone act as the wheels and fuel of the vehicle of law. Otherwise the law will only remain as a vehicle without wheels, without fuel. But in order to identify the correct spot where the implementation of the law goes wrong, or what all things should be taken into consideration before a law is made, or put into force, a critique of the law should go in the midst of the people which is the laboratory where the experimentation of the law takes place. But unfortunately, most of the Judges, the lawyers, and the academicians do not venture to do it, but instead, try to check the success of law, sitting in the library, or in the chambers, or going through the newspapers, or programmes in the visual media. In the exercise, they may even produce voluminous books, which might not have the heartbeat of the common people, who could be claimed to the beneficiaries.

Among the Judges, lawyers, lawmakers, the enforcement official and the academicians, the role of an umpire can be played most effectively by the academicians. So the academicians' refraining away from the common people can cause the greatest damage to the legal system. Because, they can always function as a reservoir of solutions to the legal fraternity, and the whole legal system of the country, by always keeping a watch on the working of the legal system and the judiciary, without much limitations. So the need of the hour is to encourage the academicians to be in touch with the common people and their problems and to watch the working of law in the society, and to put forward suggestions to the legislature, or the judiciary as the case may be.

_____________________________________________________________________________________________________________________________________

Food Note:

1. Seminar conducted by the Human Rights Law Network on Human Rights of Persons Living with HIV/AIDS held at Ashirbhavan, Kacherippady on 22.10.2004.

2. State Level Seminar conducted by KRIPA (Kerala Rehabilitation Institute for Physically Affected), at Santhwana Institute of Counseling and Psychotheraphy at Kacherippady on 11.12.2004.

3. Experience shared in the seminar conducted by the Human Rights Law Network on Human Rights of Persons Living with HIV/AIDS held at Ashirbhavan on 22.10.2004.

4. This disease is spread through blood transfusion, use of syringe used by a person with HIV/AIDS, lactation by another affected with HIV/AIDS, through unsafe sexual relationship with person affected with HI V/AIDS etc. The predominant mode of transmission of infection in the AIDS patients is through heterosexual contact (85.7%), followed by injecting drug use (2.2%), blood tranfusion and blood product infusion (2.6%), perinatal transmission as 2.7% and others as 6.8%. For details, see http://www.nacoonline.Org/factsoverview./htrn. visited on 10.12.2004 (National Aids Control Organisation (NACO) is the Government organization functioning under the Ministry of Health and Family Welfare, Government of India, for the control of HIV/AIDS.

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FgpXm³ sImÅmhp¶XmWv AUzt¡äv Fw.kn. amXyphnsâ PohnXw. tIcf¯nse \ymbm[n]cpsSbpw A`n`mjIcpsSbpw hmb\bn \n¶v Hgnhm¡m\mhm¯ “tIcf tem ssSwkv”At±l¯nsâ krjvSnbmsW¶Xp am{Xw aXnbtÃm B hyànXzw cN\mtbmKyamhm³.

sNdp{]mb¯n¯s¶ henb henb Imcy§Ä sNbvXp amXyp h¡oÂ. tIcf tem ssSwkv XpS§pt¼mÄ Øm]I ]{Xm[n]À¡v {]mbsa{Xsbt¶m? ap¸Xp hbÊv!Adp]¯ntbgmw hbÊn acn¡pwhsc sI.FÂ.Sn. bpsS ]{Xm[n]Øm\¯v At±lw kPohambncp¶p. A§s\, ap¸s¯«p hÀjw sI.FÂ.Sn. ¡pthIn!

tIm«bw PnÃbnse Imªnc¯m\¯mWv amXyphnsâ P\\w, 1920 Pq¬ 6þ\v. Xncph\´]pcw Kh¬saâv tem tImtfPn \n¶v \nba _ncpZsaSp¯ At±lw, 1944þ tIm«bs¯ AUzt¡äv ]n.Un. sXm½sâ Iogn {]mIvSokv XpS§n. Gäpam\qÀ, ]¯\wXn«, tIm«bw, Xncph\´]pcw, sImÃw F¶nhnS§fnse hnNmcW tImSXnIfn \n¶v, XncpþsIm¨n sslt¡mSXnbpw IS¶v, tIcf sslt¡mSXnhsc \oIp B A`n`mjI PohnXw. sam¯w \mev]¯n\mep hÀjs¯ {]mIvSokv.

\nbacwK¯p am{Xw HXp§nbnà amXyp h¡oÂ. cmjv{Sobw, aXw, [\Imcyw, ]pkvXI{]km[\w þ Cu taJeIfnseÃmw B IÀ½ssNX\yw ]SÀ¶p ]´en¨p. {]Pþtkmjyenkvddv ]mÀ«nbpsS {]Xm]Ime¯v, AXmbXv ]«w XmWp]nÅ apJya{´nbmbncn¡pt¼mÄ B ]mÀ«nbpsS sk{I«dnbmbncp¶p Fw.kn. amXyp. HmÄ tIcf Im¯enIv tIm¬{Kkv {]knUâv, {Kmâv Cut̬ _m¦nsâbpw, s^Ud _m¦nsâbpw UbdIvSÀ, \mjW _p¡vkvämfnsâ ]mÀ«WÀ, eb¬kv ¢ºnsâ (Xr¡m¡c) {]knUâv F¶o \neIfnseÃmw \ndªp\n¶p At±lw.

{]hÀ¯n¨ taJeIfnseÃmw hnPbw IsI¯nsb¦nepw B IÀ½ssNX\y¯nsâ \nXykvamcIsa¶v ]dbmhp¶Xv sI.FÂ.Sn. Xs¶. sI.FÂ.Sn. ImWpt¼mÄ Fw.kn. amXyphns\bpw Fw.kn. amXypsh¶p tIÄ¡pt¼mÄ sI.FÂ.Sn.bpw HmÀ½hcpwhn[w A]qÀÆambsbmcp ]mckv]cyw.

1949þemWv sI.FÂ.Sn. Bcw`n¨Xv. A¶v sFIytIcfw Hcp hnZqckz]v\w am{Xw. F¦nepw Xsâ {]kn²oIcW¯n\v “tIcf tem ssSwkv”F¶pXs¶ amXyp t]cn«p. At±l¯nsâ ZoÀLZÀi\¯n\pw hnimeho£W¯n\pw CXnepw henb sXfnhp thtWm? tIcfobcpsS 1949 apXepÅ \nbaPohnX¯nsâ Ncn{XtcJbmWv Cu {]kn²oIcWw F¶p ]dªm AXnitbmàn DImIpIbnÃ. sI.FÂ.Sn. bpsS Cu hfÀ¨bn hensbmcp ]¦pIv, amXyphnsâ hnimea\Ên\v. e£y{]m]vXnbn XojvWXbpÅ, X³t]mcnabn HXp§m¯ a\Êv. {]KÂ`cpsS amÀ¤\nÀt±i§Ä kzoIcn¡m³ F¶pw Xmev]cyw ImWn¨p h¡oÂ. Atacn¡bntebpw {_n«\ntebpw s{]m^kÀamschsc sI.FÂ.Sn.bpsS ]{Xm[n]kanXnbn At±lw DÄs¸Sp¯n.

FdWmIpfw hyhkmbnI \KcambmWv Adnbs¸Sp¶Xv. F¶m AXv \nbatI{µwIqSnbmWv. PUvPnamÀ, A`n`mjIÀ, KpakvX·mÀ, tImSXn Poh\¡mÀ, \nba{KÙ hnev]\¡mÀ þ C§s\ hensbmcp \nba_Ôpkaqlw ChnsSbpIv. A§s\ Hcp \nbakwkvImcw Cu \Kc¯n\p kz´w. Cu \nbakwkvImcw iàns¸Sp¯p¶Xn sNdnsbmcp ]¦v sI.FÂ.Sn.¡pantÃ?Adnbmtam, ChnsS Cu \Kc¯nÂ, sI.FÂ.Sn. ss_âp sNbvXp am{Xw D]Poh\w tXSp¶hcpIv.

sI.FÂ.Sn. ¡v Hcp hntijWhpw BhiyanÃ. AXnsâ {]Nmc¯n\v Hcp ]ckyhpw thI. FÃm AÀ°¯nepw AXv hfÀ¶p Ignªp. Fw.kn amXyp Im¯pkq£n¨ aqey§Ä C¶pw Cu {]kn²oIcW¯n\v ssItamiw h¶n«nÃ. Fs´¶mÂ, CXnsâ kmcYyw hln¡p¶Xv At±l¯nsâ a¡ÄXs¶bmWv. AUzt¡äv kn_n amXyphpw (]{Xm[n]À) AUzt¡äv Fw. amXyphpw ({]km[I³). AhÀ ]nXmhnsâ PohnXhpw ZÀi\hpw, hgnbpw shfn¨hpambn IcpXp¶hÀ.

tIcf kwØm\w cq]w sImÅp¶Xn\pw apt¶, Hcp ap¸XpImc³ \nba_Ôp¡fpsS Bhiyadnªv Hcp {]kn²oIcWamcw`n¡pI, AXv \nbahmb\bn Hgnhm¡m\mhm¯ H¶mbn¯ocpI, Øm]Isâ Imetijhpw AXv Dbc§fnte¡v IpXn¡pI þ Hcp {Im´ZÀinbpsS P·w k^eamIm³ CXnÂ]cw F´pthWw?.

NOT ONLY ONE

(By K.Gopalakrishnan, Advocate, Mavelikara)

I remember I had read an article on the hurdles of a successful litigant in enjoying the fruit of litigation. Somewhat a long article in the T.L.T. or T.L.J. It happened so that I had to sit for the tests for the selection of the munsiffs in the lower judiciary in 1964 and I had to comment on the very same, title, different. My comment went on consuming much time out of the three hours allotted and I was blessed to be the 64th rank holder, shutting out my entrance to judiciary.

I am now coming to you, the readers of the KLT with a grievance to redress. That is, delay in getting copies of witness depositions, and at least the copies of judgment and decrees from the Court. Mechanization in that score has come to replace manual copying. So much, so good. But the plight of the litigant is still worse, even though it was not a machination from any comer. Priority of application can be overridden by urgent applications on an additional court fee. This caused a flood of urgent applications which, may, I do not definitely say will, give chance to out of the way dealings to a great extent. Poor litigants with some sort of a liking to keep away from such manipulations, lags behind to wait for his copy just like a bird of rain longing for a drop of water to drink.

Along with other procedural hurdles and hardships, this one too adds to pile up cases pending before the lower Courts. May goddess of justice help them with her grace.