GLORIOUS RIGHT TO SILENCE

(By P.R. Balachandran, Retd. District Judge)

"Can a system afford to concede to an indictee the right not to actively assist the adjudicator in the attempt to discover truth", asks R. Basant, J. in Abdul Nazar v. Dileepkumar, 2004 (3) KLT 264 at 267, and provides the answer too but in the form of a few more questions. It is a thought provoking question. All those who had occasion to try criminal cases would have felt at sometime or other the "disappointment about the inadequate tools in the truth discovery process". We must certainly be able to evolve a better system to suit the realities of the situation in India today. What is surprising is that our law makers do not seem to have, even after half a century of becoming a sovereign democratic republic, made a genuine attempt in that direction.

Is it not time for a change? In this context, I think, we can consider borrowing the French system of criminal Justice and adopt with suitable changes. In that system, the procureor (public prosecutor), brings a crime to the notice of the 'enquete', which is a Court of a Magistrate meant for investigating and finding out evidence against the accused in collaboration with the police. All evidence is scrutinized and assessed under some kind of inquisitional system and witnesses are also questioned. The Judge combines the functions of a prosecutor and Magistrate to discover the truth with the aid of the police and other connected agencies. He may call witnesses and ask them to give whatever information they have about the offence in question. The 'enquete' may open mail and tap telephone wires. If there is any divergence between the testimony of two witnesses, the Judge d'instruction as he is called, may call them for a confrontation and after a detailed examination try to arrive at the truth. After the Judge d'instruction is satisfied that there exists a clear case against the accused and the accused is the real offender, he sends the case to the Court. In case he finds otherwise the accused goes free.

In Court, the trial proceeds on the assumption that the accused is guilty till he is found innocent. This may be a little shocking to us but this presumption need not disturb our sense of justice since a thorough trial or investigation has been done by an independent body, unlike the unilateral investigation of the police and mechanical transmission by the Committal Court prevalent now. At the trial, the accused gets enough opportunity to prove his innocence but he cannot afford to keep silent and must necessarily explain his conduct or reveal his version of the incident and other relevant circumstances. S. 106 of the Indian Evidence Act recognizes this responsibility to prove the fact within his knowledge.

The advantage of this system is that it provides a more independent and reliable method of investigation and the Trial Court need not be confined to the evidence adduced before it. The Judge may not have to feel helpless as now, when the witnesses are won over or turn hostile for other reasons. The result, invariably is the acquittal of the accused even in sensational cases. Rarely it is realized by the press or the public that it is not the fault of the Judge.

We have brilliant and experienced lawyers and Judges and if this provokes a meaningful debate on the subject, the purpose of this note is served.

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.

KERALA HIGH COURT ON CO-OPERATIVE LAW --

A DIGEST OF CASES -- 2004

(By R. Muralidharan, Secretary, Pondicherry Public Servants Co-operative Society, Pondicherry)

It is amazing that Kerala continues to contribute, inter alia, in the field of co-operative law and it is evident from not from the mere number of cases decided by the Kerala High Court but more interestingly from the trend it sets. Kerala High Court is, therefore, a trendsetter in every respect. In this article, the judgments rendered by Kerala High Court on co-operative law are discussed chapter-wise. The Kerala Law Times published these judgments during the year 2004. The sections and rules quoted in this article are that of Kerala Co-operative Societies Act and the Rules made thereunder.

Membership and General Body

Whether failure to pay additional share value would result in cessation of membership is decided in negative in Kadakam Service Co-op. Bank v. Narayana Bhat, 2004 (2) KLT 179, by the Division Bench. The Court held that the only effect of the member's failure to pay the additional share value is that until he pays the additional share value, he will not be entitled to exercise any of the rights of a member of the bank. Since the first respondent has not been removed from the membership either under R.16(3) or under R.16(4), the Bank could not have refused to accept the difference in share value, even though it was submitted by him belatedly. At the same time until he pays the additional share value, the first respondent cannot exercise the right of a member. The expression "such payments to the society in respect of membership" found in R.19 includes the extra amount to be paid by a member on account of any subsequent amendment to the bye-laws increasing the share amount.

Holding that the representative general body has power to amend the bye laws and dismissing the Writ Appeal, the Division Bench in Anil Akkara v. Registrar of Co-op. Societies, 2004 (2) KLT 805, has ruled that exercise of any power by the representative general body is subject to such restrictions and conditions as may be specified in the Rules or the bye laws. Even though the power to make or amend the bye laws of a society is ordinarily vested in the general body, where a representative general body has been constituted as per S.27(2), the representative general body is competent to amend the bye-laws of the society except the bye-laws relating to its own constitution or powers and the exercise of such power to amend the bye-laws is only subject to the restrictions and conditions, if any, specified in the Rules or the bye-laws. By impugned amendment, the term of office of the committee was enhanced from three years to five years and the said enhancement was made applicable to the existing committee. There is no merit in the contention that the representative general body of the bank had no power or competence to make the impugned amendment to the bye-laws which were registered by the Joint Registrar.

In the absence of any enabling provision in the bye-laws, only the general body can propose amendment to determine the area/constituency to be reserved is the decision of the Division Bench in Udayakaran v. Ahammedkannu, 2004 (2) KLT 969. The authority competent to make an amendment to the bye-laws is the general body of the society. S.27 of the Act also says that subject to the provisions of the Act, the Rules and the bye laws, the final authority of the society shall vest in the general body of the members. Therefore, in the absence of necessary provisions in the Act specifying the authority and the criteria to determine the ward/ constituency for reservation under S.28A, it is for the general body of a society to make necessary provisions in the bye-laws of the society for reservations contemplated under S.28A. Managing committee is not competent to determine the area/constituency to the reserved unless specified in the bye-laws.

If the committee of the society did not convene the special general meeting, it is open to the petitioner to approach the Registrar under sub-s.(2) of S.30. By merely marking a copy of the representation to the Deputy Director of Dairy Development, the petitioner cannot contend that a representation was submitted to the authority and he has to act upon it. This decision is from Kanjoor Ksheera Ulpadaka Co-op. Society v. Pappachan, 2004 (3) KLT (SN) 94.

Management

R.44(l)(i) prohibits persons associated with running business identical to those run by the society from being elected to the managing committee. The principal executive of a company running a particular business is disqualified to be in the managing committee of a co-operative society running the very same business, vide Pushkaran v. Joint Registrar of Co-op. Societies, 2004(1) KLT (SN) 3.

A member who has committed default cannot take shelter that his loan was a secured one and the society was entitled to set-off the loan against his property. In Surendran Nair v. Stale of Kerala, 2004 (1) KLT 407, before the Division Bench the sum and substance of the contention of the appellant is that the Bank could have recovered the debt by selling the hypothecated properties. The appellant who was in default to the bank is not entitled to contend that the Bank could have realized the amount due to it in accordance with law. It cannot be a defence to a petition filed for disqualifying him under R.44(2)(c). The question is whether the appellant was 'in default' or was a 'defaulter' as defined under the Rules at the relevant time. When the appellant was in default to the bank on the date of election, he is disqualified.

The disqualification is attracted not only when a member of a particular society is in default to that society but also when he is in default to another society of which he is not a member.

The Division Bench in Porinchu v. Joint Registrar, 2004 (1) KLT 281, has observed that an interim Administrator appointed under S.33 has no power to enroll new members. The law was, thus, declared by the Apex Court in T.A. Kultappan's case, while approving the judgment of the Full Bench in Hassan's case, 1998 (2) KLT 746 (FB). The High Court has no power of prospective overruling. Once it is held that the Administrator appointed under S.33 of the Act has no power to enroll new members, no court other than the Hon'ble Supreme Court can hold that the law declared will be applied prospectively.

While interpreting the observations in Cherthala Agricultural Rural Devpt. Bank's case, 2000 (1) KLT 730 (FB), the Division Bench has held that the second Full Bench has moulded the relief on the fact of the cases considered by it and did not lay down any general proposition that in all such cases membership of persons enrolled by the Administrator before Hassan's case cannot be challenged.

In the matter of the competency of the Administrator to appoint new members, couple of decisions rendered by the Court is really path breaking. The Court is of the view that the dictum of the Apex Court and Full Bench cannot be applied mechanically to all cases. In Aomanathan v. Dy. Director, Dairy Devpt. Society, 2004 (2) KLT 887, an Administrative Committee had been appointed so as to revive an ailing society. Only by enrolment of new members, life could have been injected to it. To contend that even though specifically appointed for the said purpose the committee could not have enrolled members would be begging the question. As the situation revolves on a vicious circle, it requires to be clarified that at least in certain cases, we have to recognize the powers of an Administrator for enrolling members. Otherwise, the result would have been that the purpose, for which the Administrative Committee had been appointed, would have got itself defeated.

In Shaji v. State Co-operative Elections, 2004 (2) KLT 1084, the Court has held that in appropriate cases, administrator will have to be conferred with power to admit members, taking note of the contingencies. When the administrator is in office for over two years, it is not conceivable that for years together, every operation has to be kept in hibernation. The receipt of application and grant of membership are regular and routine business transactions and does not amount to any matter of policy. The indication of the Act is quite otherwise. The parameters of membership have been laid down by S.16 and so long as a person satisfies it and satisfies the conditions of the bye-law. The decision is administrative in character. To allege that it may change the character of a committee to be elected in future is pure absurdity, totally irrelevant and cannot be countenanced. One should not miss the woods by only noticing trees.

The effect of amendment made in S.20 of the Act, permitting all the members to participate in the election of the society was brought out by the Division Bench in Rajendran v. State Co-Operative Election Commission, 2004 (1) KLT 1026. The Court found that pursuant to the amendment of S.20, no corresponding amendment was effected either in R.28 or in R.35A(4). Even then as per the proviso to R.28 and 35A(4), only the active members shall be eligible to vote. But the said provisions in the Rules have no legal force, as they are contrary to the provisions contained in S.20 of the Act. Therefore, notwithstanding the apparent conflict in the Act and the provisions in the Rules, every member of a society shall have one vote in the affairs of the society.

Circular issued by the State Co-operative Election Commission directing that in the case of preliminary/final voters list published on or after 4.5.2002, the election shall be conducted only after including all the eligible members of the society in the voters' list is valid. Election proceedings stopped after publishing the preliminary voters' list and before publishing the final voters list due to amendment of S.20 giving voting rights to all members and not active members alone. The society cannot continue the election proceedings from the stage where it was stopped. It is necessary to pass a fresh resolution and a fresh notification.

Supersession of the Committee

It is consistently seen that the Kerala High Court never minces the words when the supersession of the committee is found to be a colourable exercise of power. The following decisions say it all.

The Division Bench in Bhaskaran v. Jose Joseph, 2004 (1) KLT 91, has laid down that having regard to the provisions in the Act and the Rules, it cannot be said that merely because a notice under S.32(l) of the Act has been issued proposing to supersede the Board of Directors, the Board cannot pass a resolution under R.35A(1) of the Rules, fixing the date, time and place for the conduct of election to the new committee. It should be remembered that even if a notice under S.32(l) of the Act has been issued, the Registrar can drop the proposal to supersede the Board after considering the explanation offered by the Board. Therefore, issuance of a notice under S.32(l) of the Act does not disentitle the Board to exercise its rights or powers under the Act and Rules.

What is the real import of consultation with financing bank and circle co-operative union is succinctly brought out by the Division Bench in Sahadevan v. Padmariabhan, 2004 (1) KLT 192. The consultation contemplated under sub-s.(2) of S.32 of the Act can be effective and meaningful only if the show cause notice issued under S.32(l), the explanations/objections given by the committee to such show cause notice and the tentative findings arrived at by the Joint Registrar after considering such explanation/objections are also forwarded to the Financing Bank and the Circle Co-op. Union requesting them to offer their views on the proposal to supersede the committee. When such a consultation process has not taken place, the provisions of sub-s.(2) of S.32 have been violated. A mere forwarding of the show cause notice to the Financing Bank and Circle Co-operative Union is not sufficient. To creep up this conclusion, the decisions reported in AIR 1982 Ker. 12 and 1997 (2) KLT 85 were relied on.

When the order of supersession is declared illegal, subsequent election is to be nullified. This is brought out in Sooryanathan v. State of Kerala, 2004 (1) KLT 383. The Managing Committee was removed from the office by an illegal order. That illegality has been declared by the Government. Therefore, the subsequent election and the assumption of charge by the present committee being dependent proceedings must fall to ground in view of appellate order of the Government.

In the said case when the delay in disposal of appeal was questioned, the Court held that the petitioner who is a stranger couldn't complain of the delay in disposing of an appeal. The delay between hearing and passing final orders is considered as an illegality for violating the principles of natural justice. Violation of the principles of natural justice gives rise to a cause of action only to the parties concerned and not to a stranger to the proceeding like the petitioner.

Where the erstwhile committee has committed serious lapses and the President and majority of the Board Members are re-elected, the new committee can be superseded if the new committee has not rectified the faults and lapses, vide Mohanan v. State of Kerala, 2004 (2) KLT 873.

Dispensing with notice should be only an exception and cannot be converted as a routine. This word of caution is given in Mohanachandran Nair v. Andoorkonam Service Co-op. Bank, 2004 (2) KLT 1062. Under S.32(l) the Registrar has to satisfy himself as to the merits of the case, whereas under S.32(3) he has also to form an opinion as to the impracticability of the procedural formality of giving an opportunity to the committee to state its objections. Notice is not an empty formality to be casually dispensed with. It is a notice to state objections. Therefore, only if in view of a situation of immense or emergency which cannot brook the delay due to notice and situations where it is for feasible or practicable to service notice, the same can be dispensed with. In any case, being an extremely rare situation, the Registrar should record the reasons for the opinion on impracticability. In the instant case committee was superseded on the allegation that directions of the judgments are not implemented. Judgment was taken in Writ Appeal and the appeal was filed in time. In view the above, the Court has set aside the order of supersession and the committee was reinstated.

Arbitration and Execution

In Trivandrum Co-op. Agricultural Rural Development Bank v. State of Kerala, 2004 (2) KLT 68 (SN), it was held that the possession of an award could not have operated to the disadvantage of a creditor. R.52 prescribe the methods by which enforcement could be carried out as specified in S.37. Since the rights are secured by S.37, a defaulting person cannot be permitted to get away out of the liability, especially when he had entered into an agreement fully knowing the consequences that arose from such agreement.

In Umadevi v. Asst. Registrar, 2004 (3) KLT 450, the question before the Division Bench was whether the dispute should be only in respect of a matter touching the business of the society. In this case, the society was letting out room to one of its members and the latter committed default in the payment of rent. It is a dispute for the purposes of S.69(l). Such a claim need not arise from any matter touching the business of the society. According to S.2(i) a "dispute" includes a claim in respect of any sum payable to a society, whether such claim be admitted or not. It is not stated in S.2(i) that such claim should arise from any matter touching the business of the society. In S.62(2)(a) also it is not stated that the claim by the society for any demand due to it from a member should be in respect of a matter touching the business of the society.

Revision and Review

The delay in presenting a Revision Petition can be stated in the Revision Petition itself and for good and sufficient cause the Tribunal can condone the delay. It has been held in Thajuddin Shammer v. Secretary, Coastal Urban Co-op. Bank, 2004 (1) KLT 909, that if a Revision Petition is filed beyond a reasonable time limit, say 90 days, the petitioner should explain in the revision, the reason for the delay. Since there is no limitation prescribed, there need not be any separate petition to condone the delay. The facts, which will explain the reasons for the delay, should be pleaded in the Revision Petition. If the Tribunal is satisfied that the petitioner was prevented by good reasons from approaching it earlier, the revision can be entertained.

And some more

Following the decision of the Apex Court in Regional Provident Fund Commissioner v. Shiv Kumar Joshi, 2001 (1) SCC 98, it was held that the Kerala State Co-op. Employees Pension Board comes within the purview of the Consumer Protection Act, 1986. The Board is providing service and retired employees of co-operative societies who are members of the Scheme are consumers under the Act, vide Kerala State Co-op. Employees Pension Board v. Consumer Disputes Redressal Forum, 2004 (1) KLT 111.

In the matter of obtaining a certified copy, the Division Bench in Abbas v. Joint Registrar of Co-operative Societies, 2004 (1) KLT 182, has held that R.24(l) provides that any person may obtain a certified copy of any public document not being a document privileged under the Indian Evidence Act, filed in the office of the Registrar, on payment of fees prescribed. He shall be entitled to copy only when he satisfies the Registrar that he requires it to seek redress in any matter in which he is aggrieved or for any other lawful purpose. When the impugned report is not a privileged document, R.24 does not in any way bar rendering a certified copy of a public document. More so, it is only a report obtained on the petition submitted by the petitioner himself.

The Act confers powers under S.66 to supervise the functioning of the society. The Registrar has got ample powers to ensure that the society is functioning in accordance with the Act, Rules and its bye-laws. Further R. 176 expressly confers power on the Registrar to rescind any resolution of the society, which is passed in violation of the provisions of the Act, Rules or bye-laws or which is against the best interest of the society. From the sweep of the power, the resolutions concerning the service matters of the employees are not excluded. (Poonjar Service Co-op. Bank v. State of Kerala, 2004 (1) KLT (SN) 40).

R.185 governs the grant of exemption from the prescribed qualification. The Government cannot issue a circular prescribing how the power under R.185 should be exercised. None of the statutory provisions also enable the Government to issue such a direction. The bank is authorized to take the decision and the JR is authorized to grant approval to the said decision. These authorities are entitled to exercise these powers uninfluenced by any direction issued by the Government. Of course, the Government can amend the Rules, providing guidelines for grant of exemption. (Kuttipuram Service Co-op. Bank v. State of Kerala, 2004 (2) KLT 73)

In Shanmukhan v. Jt. Registrar, 2004 (2) KLT 1015, it was held that the petitioner is eligible to get subsistence allowance, as provided in the Kerala Service Rules, in the light of R. 198(6). The said right to get subsistence allowance does not depend upon the gravity of the charges levelled against him. The retrospective compulsory retirement cannot be pressed into service, as a ground for denial of subsistence allowance.

Application under R.176 does not lie to rescind a decision of a sub-committee of the society, Vide Abraham v. Elikulam Service Co-op. Bank, 2004 (3) KLT 25.

IS THERE MUCH VULGARITY...........?

(By Anzil Zachariah, Advocate, Pullad)

An MMS of two school students engaging in oral sex was the topic of day. Hue and cries are now raised that fashion shows and cinematic dances held in colleges and schools is pornographic and problematic. It is decreed as obscene, derogatory of womanhood and patently in bad taste. Our public morality is falling down. A lot of ink has been poured and throats have become sore demanding urgent passage of banning mobiles and internet cafes and to strengthen the present laws and especially cyber laws. The article attempts to find an answer whether such laws are necessary to achieve morality?

The State may impose restrictions on internet cafes. The authorities may put curbs on the use of mobile phones in schools and colleges. A number of questions sprinkle in our mind. Can it restrict the mushrooming of internet cafes in the State? Can it tackle cyber crimes on campuses? Are cafes and campuses only centre for assessing and disseminating pornographic materials? Is there only vulgarity on cafes, campus and television?

In the pornographic debate the law enforcement machinery i.e., the State acts as the super cop of morality. The law embraces still the fog of Victorian morality. In the Victorian era sex was shameful and to be hidden. The main difficulty is to adjudicate on whether a publication, photograph or any literary form is obscene or not. There is very little agreement as to exactly what is obscene. The offence of indecent representation or obscenity was made punishable by the Indian Penal Code. Ss.292,293 and 294 of the Indian Penal Code are laws relating to obscenity in India. A book, pamphlet, paper writing, drawing, painting, representation, figure or any other object is considered obscene if it is lascivious or if it tends to deprave and corrupt persons who are likely to read, see or hear the matter contained in it (S.292ofIPC.).

The Indecent Representation of Women (Prohibition) Act, 1986 was enacted to have a separate legislation to effectively prohibit the indecent representation of women through advertisements, books and pamphlets. 'Indecent representation of women' means 'the depiction in any manner of the figure of a woman, her form or body or any part of it in such a way as to have the effect of being indecent, or derogatory to. or denigrating women, or is likely to deprave, corrupt or injure the public morality or morals".

The legal provisions dealing with obscenity are ineffectual. S.292 of IPC and S.3(7) of the Indecent Representation of Women (Prohibition) Act did not define obscenity. The section leave a lot to the Judges to decide what is obscene. Obscenity definitely being a subjective matter is difficult to explain. The Supreme Court and other Courts in India adopted the test of obscenity laid down by Cockburn, J. in Hickinson case: ".......Whether the tendency of matter charged as obscenity is to deprave and corrupt those minds are open to such immoral influences and.......k is quiet certain that it would suggest the minds of the young......thoughts of most impure and libidinous character". In the case of Virendra v. State of Punjab (AIR 1957 SC 896) the Supreme Court declared that obscene means "offensive to modesty or decency, lewd, filthy and repulsive".

There is no clear-cut definition for obscenity. Radical changes in our social attitudes and community standards alter the concepts of obscenity. What was considered as unethical and illegal in past may not be the same in 21 st century. The change in attitude towards D.H. Lawrence's novel Lady Chatterley's Lover is a classic example. The Supreme Court of India in Ranjit Udeshi v. State of Maharashtra (AIR 1965 SC 881), condemns the said novel as obscene. In England too a case was filed under the Obscene Publication Act, 1959 (R. v. Penguin Books, 1961) . Later an expurgated version appeared in America in 1959 and in Britain in 1960. The novel is now prescribed as a study text for graduate and post graduate literature students.

Another controversial issue raised is who is best qualified to interpret what is vulgarity. Who decides what is moral and good for community? Can the Court be an arbiter of good taste? The Supreme Court in Samaresh Bose v. Amal Mitra provided that in judging the question of obscenity the Judge should place himself in the position of the author, the reader of every age group and there after to apply his judicial mind. The remark made by Justice Stable poses an apt question:— Are we (Judges) to take our literary standards as being the level of something that is suitable for 14 year old girl"? (R. v. Seeker and Warburg (1954))

In the process of applying the test of obscenity the arguments are always based on mere political discourses. The definition of obscenity, freedom of speech and expression and others fill the agenda of discussion. Unfortunately the attention of legal minds are never focused about gender relations, women and children, sexual and reproductive health needs of young people and others. The right of an adult to experience the world, the right of the gays, lesbians and bisexuals to see their own sexuality represented in the movies and literature were always excluded from the framework of discussion.

In reality the nudity and porn literature is problematic and vulgar to adults rather than children. Only a pedophile can find anything of a sexually provocative nature in pictures of naked children. It is an open confession that our responses to images of nudity or semi nudity cannot be trusted and are liable to corruption, which will allow perverted and depraved sexuality to emerge from the sophisticated self. No longer can one boast about the control over sexual desires.

The banning of mobiles and cinematic dances would just create opportunities for more national and international seminars, and pious declarations. How would the law be enforced? Would it penalize the college authorities where the cinematic dance is held? Would it fine parents for sending their children to school with a mobile? How would the poor parents pay the fines? Would it then imprison them? Just one parent or both?

Would the law ever be properly and consistently applied? Who would bear the burden of arbitrary enforcement? The proponents never raise the issues of enforcement. They want to claim to have done something for the argument sake without really doing anything just by passing a law.

One must not forget the distinction between laws and morals. No society has been able to legislate moral behaviour. We are no different. Our experience with other good-intention laws against child labour, dowry and other social ills does confirm this outcome. Those who want to practice these have rarely been deterred. And any positively development in these areas could hardly be attributed to these laws.

Total ban is impossible. The world history of prohibition stands as a guide. A total ban on the movies, magazines, mobiles, cafes is not practical. The legal avatars of anti porn movement succeed in criticizing porn by demonizing, criminalizing and illegalizing it.

Criminalizing porn only drives the business underground. The fruits of illegality will be crime, exploitation, black market. There will be rise of the mafia, street violence to capture markets, corruption of the police, legal system, and the bureaucracy.

In the final analysis, prohibition has done more damage, not just to the treasury, which is of the least consequence, but to families and communities, the alleged beneficiaries of the ban. The law of unintended consequences is far more potent in case of good intention laws.

The case study of heroin is a good illustration. Until the seventies any doctors in England could prescribe heroin for patients. There were fewer than 500 addicts. In 1971 heroin was outlawed. Today the number of heroin addicts in England is beyond belief. The black-market exploded and dealing heroin became a profitable business.

In short, the law looks at technology and media of 21st century with the punitive system of 19th century to create a very suppressive and conservative sexual morality. The police and legal forces wrongly assume its role as a super cop of the morality and their task is to bring culprits to Courts thereby pitting officials against media. A complete transformation is required in our jurisprudential thought where the agenda of the Judiciary, Censor Boards, media representatives should be to strengthen civil society. If not, the argument continues .... and it remains forever as a matter of controversy.

Novel Chief Examination (O.18 R.4 of Amended C.P. Code) -- Implications Examined

(By M.V.Shanker Bhat, Advocate, Mangalore)

Prologue:

1. Ever since the establishment of law courts of British system in India, trial Court lawyers knew examination-in-chief only as mentioned in Ss. 137 and 138 of Indian Evidence Act, which itself is of the year 1872. After 130 years of accustomed practice, suddenly, Parliament enacts the novel method of Chief Examination by affidavit. This change is brought about in the name of avoiding delay in legal proceedings. An attempt made to challenge the vires of the amendment having failed before the Supreme Court in the case of Salem Advocate Bar Association1  until there is another decision reversing it, - as it is not uncommon in our system (!),-- or until there is legislative change either in State level by each High Court by virtue of its rule making power under S. 122 of C.P. Code, or the Parliament itself rectifies, the novel procedure of chief examination has come to stay. Its ramifications are examined in this composition.

2. Already the High Courts of Kerala2,Karnataka3,Bombay4,  Rajasthan5  and Delhi6  have rendered rulings on his subject. High Court of Madras has now contributed its share7

What is the change in law?

3. One of the major changes in the amendment to C.P. Code is found in O.18, R.4, relating to recording of evidence. The Section relating to Repeal and Savings in the Amendment Act does not otherwise provide for it. Being procedural change it, therefore, applies to pending proceedings.

4.O.18, R.4, originally existed thus: "The evidence of the witnesses in attendance shall be taken orally in open Court in the presence and under the personal direction and superintendence of the Judge". Rr. 5 and 13 of 0.18 indicated how the evidence should be taken in appealable and unappealable cases respectively.

5.O.18, R.4 was first amended in 1999 in a particular way. In effect that Amendment laid down that the evidence in chief shall be by affidavit; and the cross-examination shall be on commission.

6. But in the rule enacted during 1999 there was a Proviso to the effect that the Court may, for reasons to be recorded in writing, direct that the evidence of any witness shall be recorded by the Court in the presence and under the personal direction and superintendence of the Judge.

7. After the agitation of advocates, when the Parliament brought about further corrective amendments during 2002, this Proviso was taken away. In this amendment, while retaining the provision of chief examination by affidavit, the cross-examination could be done either in Court or by commission. The amendment provided for the decision by the Court regarding the proof and admissibility of the documentary evidence introduced by affidavit. But the amendment of 2002 omitted the Proviso mentioned above. The sub-r.(3) of R.4 contemplates the Court (or the Commissioner) recording evidence either in writing or by mechanical process, in the presenceof the Judge. (Please note that the rule uses the word 'mechanically' in the presence of the Judge," probably knowing what actually happens in real life! (This is in lighter vein).

8. If the old R.4 contemplated open Court proceedings, the amended rule has, in effect, converted the recording of evidence in chief as office proceedings.

Imagine the situation, as where the affidavit can be attested by Advocate, (eg. in Tamilnad, Kerala) the chief examination will partake the character of a totally private affair! How far, in the light of the provisions contained in the Oath Act of 1969, such affidavit can be treated as evidence, is very doubtful. But that is not relevant now.

Contentions advanced and decided so far:

11. In Salem Advocate Bar Association case it was argued that the witness summoned may not oblige to give affidavit and hence the rule is unworkable. The Supreme Court, after making a distinction between a witness who attends on summons and a witness who may be brought to Court by a party, stated that with regard to summoned witness the principle incorporated in R.4 can be waived.

In effect, the Supreme Court has asked us to read the R.4 by adding the phrase, "except when the witness appears by summons issued under 0.16 R.1", after the phrase "every case", occurring in it.

12. The cases decided by the various High Courts, cited above, will disclose that under different circumstances, by citing existing R.5 of 0.18 of C.R. Code the propriety of R.4 was attacked. It is the contention that R.5 lays down that in cases in which an appeal is allowed, the evidence shall be taken down or written or recorded by mechanical process as directed by and in the presence of the Judge. The amended R.4 requires that in 'every case' the examination in chief of the witness shall be on affidavit. Therefore, there is conflict in the rules.

13. Except the High Court of Rajasthan, all the other High Courts have, broadly speaking, adopted the view of reconciling R.4 with R.5 by applying the rule of harmonious construction. According to the said view, the R.5 will become applicable from the stage after receiving chief examination by affidavit. That is, when the cross-examination takes place the procedure of R.55 will become applicable. Rajasthan High Court has taken the view that R.4 has to be read with R.13 relating to unappealable cases, and not relating to appealable cases. The Rajasthan view has been referred and dissented by other High Courts. The recent decision of the Supreme Court in the case of Ameer Trading Corp. Ltd8  approves the above view of majority of High Courts and disapproves the Rajasthan view.

14. On careful reading of all the rulings one can make out the strain with which the Courts tried to reconcile the rules, all in the name of speedy trial.

15. One aspect, which may be mentioned in support of such view, is that R.4 refers to the manner of leading chief examination and Rr. 5 and 13 relate to the method of recording oral evidence, depending upon the nature of the case. The manner and method of recording evidence is not mentioned in the sections of the C.P. Code.

16. The sub-r.(3) of R.4 as amended indicates the mode of recording oral evidence, either by the Court or by the Commissioner. It is apparent that the old Rr. 5 and 13 were not taken note of while framing the new R.4. The new R.4 is sufficiently comprehensive to cover both manner and method of the chief examination and cross examination and admissibility of the documentary evidence. Actually Rr. 5 and 13 of 0.18 have become otiose. Therefore, the end result achieved by the Courts cannot be found fault with.

The real objection for retaining amended R.4 stated:

17. R.4 violates the scheme of trial in courts as per Evidence Act. Therefore, it is not valid. Chief Examination by affidavit also gives unfair advantage in the manner of trial.

18. It may be noted that the entire Code of Civil Procedure does not deal with the subject of proof of facts in civil cases. Though S.30 of the Code deals with issue of summons to witness and proof of facts by affidavit, it does not contain any other section dealing with the manner and method of giving evidence in suits.

19. 0.18 of C.P. Code really owes its origin to S.135 of the Evidence Act, which was enacted in 1872, much before the Code of 1908. Chapter X of Evidence Act deals with the various provisions relating to the examination of witness. S.135 deals with the order of production and examination of witnesses. It lays down that the law and practice for the time being relating to Civil and Criminal Procedure respectively, shall regulate the order in which witnesses are produced and examined and, in the absence of any such law, by the discretion of the Court. S.136 indicates that the Judge shall decide the admissibility of evidence. Ss. 137 and 138 deal with the question of examination-in-chief, cross-examination and re-examination, and its order. S. 154 deals with treating the witness as hostile and allowing him to be cross-examined by the party calling such witness. Under S.161 the adverse party has got the right to insist on production of any document, which might have been used for refreshing the memory of the witness when he gave evidence, as contemplated by Ss. 159 and 160. In substance it may be stated that the "evidence" which enables the Court to give decision consists of oral evidence as collected in the manner contemplated by the Evidence Act. (We are now not concerned with documentary evidence at this stage of the discussion.)

20. S.l of Evidence Act clearly excludes Affidavits from the purview of the Act When R.4 was amended, this important aspect was totally overlooked.

21. No doubt, in the Civil Procedure Code, as per S.30 and O.19, there always existed provision for proving facts by affidavit. This could be done by specific order of the Court as contemplated by O.19, R. 1 of the Code. But the proviso to R. 1 clarifies that if the witness is required to be cross examined, and such witness can be produced, then the Court shall not allow the affidavit to be given for proof of fact. In other words, where there is no scope to cross-examine a witness, his affidavit may be received by specific order of the Court. This rulefurther strengthens the argument that where the suit is contested, then, facts cannot be proved by affidavit.

22. There were occasions in the past when Courts ordered fresh trial, after finding fault with the trial Court for allowing affidavit in evidence in contested cases. The reason was that the S.l of Evidence Act did not allow proof of facts by affidavit9.

23. The chief-examination by affidavit is wholly unsatisfactory, particularly because there is no guideline as to what it should contain. No doubt, O.19, R.3 of the Code may be cited as containing the guidelines regarding what the affidavit should and should not contain. But, once the affidavit is showed into court there is no way of pruning it. What with computer facility, the chief examination will contain the repetition of the pleadings, including the cliche first sentence of the written statement to the effect that the suit is false and vexatious and what not!

24. The few months of trial given to the operation of R.4, will as any trial Court lawyer/ Judge will confirm, indicate that new procedure under R.4 consumes more time than reducing delay. On one date affidavit will be filed, on another date admissibility of documents will be considered and then another date for cross-examination! The remedy is proving to be worse than the disease!

25. Even from practical point of view, affidavit evidence keeps the trial Judge in dark about what was deposed in examination-in-chief, and consequently he cannot effectively deal with the state of cross examination. Either it is curtailed or allowed to go on and on!

26. As regards the deponent-witness, he would not be familiar with what is recorded in it. It turns out more like the statement given before Police in criminal case! If witness is asked whether he knows what he has stated in his affidavit, normally he will say he does not know! Probably the cross-examination will become easier this way! On the whole, one can say that by introducing amended R.4, the trial is more a mockery than oriented to render justice. Sooner the old R.4 is restored, so much the better. If statistics regarding delay in litigation is gathered one would not be able to say that merely by oral evidence being given in Chief Examination in Court, trial gets delayed. Therefore, there is no justification to retain amended R.4 in the teeth of violation of the Evidence Act.

Epilogue:

27. The procedural change introduced regarding recording of evidence is wholly not satisfactory. Merely allowing Chief Examination to be done at home will not cure. The real culprit of delay is not the procedural law, but may be found elsewhere! If the law is not set right by amendment, at least the Rules of Practice should be framed, laying down the guidelines for preparing, filing and considering the chief examination by affidavit.

Foot Note:

1. 2002 (3) KLT 920 (SC)

2. Palode Ravi v. Mangode Radhakrishnan, 2002 (3) KLT 557

3. Ibrahim F. Karjgi v. Kasimkhan, 2003 (1) KLT 104

4. Madhur Industries Ltd. v. M.V. Orient Commerce, Air 2003 Bom

5. Laxman Das v. Deoji Mal AIR 2003 Raj. 74

6. Kamal Kumar Modi v. Krishnan Saigal AIR 2003 Delhi 349

7. 2003 (3) L.W. 679, 684 & 668.

8. AIR 2004 SC 355

9. Firm S. Rajkumar v. Bharat Oil Mills, AIR 1964 Bom. 38; Parekh Bros v. Karthichandra AIR 1968 Cal.532.