In Re: Right of "Preaudience'

(By T.P. Kelu Nambiar, Senior Advocate, High Court of Kerala)

Henry Campbell Black defines 'Preaudience' as: 'The right to being heard before another. A privilege belonging to the English Bar, the member of which are entitled to be heard in their order, according to rank, beginning with the Attorney and Solicitor General, and Queen's Counsel, and ending with barristers at large".

In Attorney-General for the Dominion of Canada v. Attorney General for the Province of Ontario, 1898 A.C. 247 (PC), Lord Watson observed: "The position occupied by a Queen'sCounsel (or King's Counsel).........is in the nature of an office under the Crown.........; and it isalso in the nature of an honour or dignity to this extent, that it is a mark and recognition by the Sovereign of the professional eminence of the counsel upon whom it is conferred".

Senior Advocate in India is akin to Queen's Counsel (QC)/King's Counsel (KC) in Britain.

In India, the status of Senior Advocate is conferred by the Supreme Court or a High Court. S. 16 of the Advocates Act 1961 provides for the division of the Bar into Senior Advocates and other Advocates. This was as recommended by the Law Commission. Sub-s.(l) of S.16 says that there shall be two classes of Advocates, namely Senior Advocates and other Advocates. Under sub-s.(2) of S.16:

"An Advocate may, with his consent, be designated as Senior Advocate if the Supreme Court or a High Court is of opinion that by virtue of his ability, standing at the Bar or special knowledge or experience in law, he is deserving of such distinction".

Under sub-s.(3) of S.16, Senior Advocates shall, in the matter of their practice, be subject to such restrictions as the Bar Council of India may, in the interests of the legal profession, prescribe.

S. 17(2) of the Advocates Act lays down that the roll of Advocates prepared and maintained by a State Bar Council shall consist of two parts, the first part containing the names of Senior Advocates and the second part, the names of other Advocates.

Under R.4, Chapter IV, Part V, of the Bar Council of India Rules, the seniority of a Senior Advocate shall be determined in accordance with the date of his enrolment as Senior Advocate. Part VI, Chapter I, of the Bar Council of India Rules contains rules regarding restrictions on Senior Advocates. The rules provide:

A Senior Advocate shall not file a vakalathnama; a Senior Advocate shall not appear without an Advocate-on-Record in the Supreme Court or without an Advocate in Part II of the State Roll in any Court or Tribunal; a Senior Advocate shall not accept instructions to draft pleading or affidavits, advice on evidence or to do any drafting work of an analogous kind in any Court or Tribunal, except in settling any such matter as afore-said in consultation with the Junior Advocate/Advocate-on-Record; a Senior Advocate shall be free to make concessions or give undertakings in the course of his arguments on instructions from the Junior Advocates; a Senior Advocate shall not accept directly from a client any brief or instruction; a Senior Advocate may in recognition of the services rendered by the Junior Advocate appearing in any matter, pay him a fee which he considers reasonable. (Emphasis supplied, with a suggestion that 'may' may be read as 'shall'.)

The High Court of Kerala has framed Rules under S.16(2) of the Advocates Act, regarding designation as Senior Advocates. The rules provide three methods of designation, namely, suo motu by the High Court; on being sponsored by any two Senior Advocates; and by application made by the Advocate desiring to be designated as such.

S.23 of the Advocates Act contains provisions regarding right of pre-audience. It may be useful to read S.23:

"23. Right of Pre-audience:

(1) The Attorney-General of India shall have pre-audience over all other advocates.

(2) Subject to the provisions of sub-s.(l), the Solicitor General of India shall have pre-audience over all other advocates.

(3) Subject to the provisions of sub-ss.(l) and (2), the Additional Solicitor-General of India shall have pre-audience over all other advocates.

(3A) Subject to the provisions of sub-ss. (1), (2) and (3), the second Additional Solicitor-General of India shall have pre-audience over all other advocates.

(4) Subject to the provisions of sub-ss. (1), (2), (3) and (3A), the Advocate General of any State shall have pre-audience over all other advocates, and the right of pre-audience among Advocates-General inter se shall be determined by their respective seniority.

(5) Subject as aforesaid -

(i) senior advocates shall have pre-audience over other advocates, and

(ii) the right of pre-audience of senior advocates inter se and other advocates inter se shall be determined by their respective seniority".

The above aspects and provisions would show that Senior Advocates are a class by themselves; and have statutory and conventional duties and obligations; and rights and privileges.

I am prompted to come out with this write-up in view of the recent suo motu designation of nineteen advocates as Senior Advocates. I am senior to all of them by over twelve years; and I am entitled to alert them on their duties and rights. Though I lay no claim to being wise, I may not be considered to be a talking toy. I am sure, they will perform their duties, adhering to the statutory mandates and conventional duties and obligations: and remembering, 'old wood burns brightest'.

But, they have also to see that their rights and privileges are not breached.

I have a hunch that the Senior Advocates' right of pre-audience is not uniformly conceded by the Courts. J have had occasion to see a Senior Advocate, the giant redwood of the High Court Bar, waiting for considerable time in some Courts, with diminishing energy, without being taken note of by judicial eye. An advocate is not designated as Senior Advocate only to appear in Courts wearing Senior Advocate's vestments. The criteria for designation cannot be forgotten immediately after the designation. I am constrained to tell the truth; let it not offend anybody.

I remember a situation in which I had to assert my right of pre-audience. A learned Judge after passing over the case in which I was instructed, til! the 'call work' was over, took up the 'passed-over' case of a junior advocate. When I pleaded to take up my case, I was asked to wait, curtly though. I lost no time to assert my right of pre-audience, because I felt I was disdained. The learned Judge yielded, not without displeasure, though: I could see the Judge's huff and puff. Subsequent events, which I respectfully withhold, showed that the learned Judge was not quite aware of the 'right of preaudience' of Senior Advocates.

A Senior Advocate is a strong presence in Court. This has to be realised by both the Bar and the Bench. Causing embarrassment, in any manner, to a Senior Advocate is an affront to the judicial system itself. We have to learn the correct lesson from the British system, which is the basis of the institution of Senior Advocates.

A Queen's Counsel/King's Counsel does not get down on his knees when he makes submissions to Court. He sustains his reputation for credibility, independence, boldness and transparency. Mercifully, Senior Advocates are not in Judiciary's gravitational field. Attention, Senior Advocates and Judges. A Senior Advocate is an unbossed advocate, with confident courage. But he should be possessed of dangerous honesty. He does not discuss weather in a Court room. We want Judges eager to listen; and Senior Advocates eager to argue, without indulging in padding and wasting words, remembering not to blow balloons till they burst; and realising that their advocacy is not on the block; and making the Judge understand that they are not arguing in a lab., but before a Court.

I exhort Senior Advocates to bequeath their name to the next generation of lawyers. When a Senior Advocate speaks on respectability, he should look like his subject. After all, Senior Advocates are not a dime a dozen.

Lording Over: An Anachronism

(By T.P. Kelu Nambiar, Senior Advocate, High Court of Kerala)

The primary meaning of 'Lord' is God. Jesus Christ is also addressed as 'Lord'. Generally, 'Lord' means a master or ruler. In the feudal system prevalent in Western Europe in the Middle Ages, 'the Lord' was someone who was in a superior position, with charge over a number of vassals. In Great Britain, chiefly, Lord is a man who is a member of the aristocracy. World Book Dictionary gives the meaning of 'lord' as an owner, ruler, or master; person or animal that has the power; a titled nobleman or peer of the realm.

Black defines 'Law Lords' as peers in the British Parliament who have held high judicial office, or have been distinguished in the legal profession; i.e. a puisne Judge of the High Court or higher office. 'My Lord' is a conventional way, in England, for lawyers, barristers, etc. to address a Judge in Court: (Chamber's 21 st Century Dictionary)- In the definition of 'Lord', World Book Dictionary has quoted Maclean's statement: "Although clothed in impressive robes and addressed as 'My Lord', the Judge is still a human being".

Encyclopedia Americana says:

“ 'Lord' is an English title of honour or dignity that is used in different senses. In feudal times the lord was the grantor or proprietor of the land, who retained the ultimate ownership of it, the use only being granted to the tenant. Between the superior lord, or lord paramount, and the actual tenant stood the lord of the manor, or mesne lord.

"Lord is also a title of dignity, attached to certain official stations that are sometimes hereditary but sometimes only personal. Examples of the latter include lord Advocate, the Chief Law Officer of the crown in Scotland, and lord Mayor and lord provost, the former applied to the Chief Magistrate of certain English and Irish cities, and the latter to the corresponding officials in several Scottish cities.

"In its mostdefinite sense in English, lord is equivalent to peer, but the term does not express any special rankor degree of nobility. The five orders of English nobility-dukes, marquesses, earls, viscounts, and barons - constitute the lords temporal, in contradistinction to the prelates of the church, or lords spiritual, who are those Archbishops and Bishops of the Church of England who are members of the Legislature and sit in the House of Lords.

"The title is also applied, but only by courtesy, to the sons of dukes and marquesses and to the eldest sons of earls".

Therefore, apart from its primary sense of God and Jesus Christ, we, in India, have no lord, except the land-lord. For my part, I have no other God than the legal profession, for a lawyer moves on advocacy; and the legal profession and advocacy are tightly held by logic. Then, why should we continue addressing the Judges of the Supreme Court and the High Courts as "My Lord". There is no 'lord' in the 'Sovereign Socialist Secular Democratic Republic' constituted by the 'People of India'. In India, nobody is specially born. An Indian Judge only does a public act in the seat of justice. The framers of the Constitution did not impose a 'lord' on the people of India. In fact, the Constitution dethroned 'the Lord'. This, I say with a touch of authority. Nobody should be spoiled by acclamation, or lavish flattery. And, flatterers are said to be the worst kind of enemies.

In the United States of America, Justices are simply referred to as Mr. Justice so-and-so and the appellation of My Lord is not at all used by counsel. This is recorded by Sri. T.R. Andhyarujina, toliis arable "Studying the U.S. Supreme & Court's Working". ((1994) 4 SCC Journal S.1) Sri. T.R. Andhyarujinawas at the relevant time Senior Advocate and Advocate General of Maharashtra. Why are we, the Indian Lawyers, shy of discarding 'my-lording'? Why should we presume that we are being lorded over?

Indian lawyers had raised this question more than thirty years ago. The Supreme Court of India had been alerted on the subject. On the mode of addressing the Court, Acting Chief Justice of India, Sri. J.M. Sholat, had written to all the Chief Justices of the High Courts, on 19.4.1973, as under:

"After receiving replies on the above subject from almost all the Chief Justices of the High Courts, a Meeting of the Full Court of the Judges of this Court was held on March 12, 1973. The meeting decided that the Judges and the Chief Justice of the Supreme Court may be addressed by the members of the Bar as 'Mr. Justice' and 'Mr. Chief Justice' respectively, and when addressing the Court the form of address would be "this Honourable Court". It was also agreed that where in the course of arguments it becomes difficult to address a Judge as 'Mr. Justice' he may be addressed as "Sir".

"In consultation with the Bar Association here it has been decided to introduce the new mode of address on and from May 1,1973.

"I suggest that a uniform mode of address in the Supreme Court and in the High Courts would be proper".

Referring to the letter of the Acting Chief Justice of India, Acting Chief Justice of the High Court of Kerala, Sri. P. Govindan Nair, had addressed letters to the Advocate General and the President of the Kerala High Court Advocates' Association, as under:

"I am enclosing a communication from the Acting Chief Justice of India which is self-explanatory. In this connection, I recall our talk this morning. In the light of that, please note that with effect from the 1st July, 1973, the Judges of the High Court may be addressed by the members of the bar as 'Mr. Justice' and the Chief Justice as 'Mr. Chief Justice'. If it becomes difficult to address a Judge as 'Mr. Justice' in the course of arguments, he may be addressed as 'Sir'. The form of addressing the Court may be 'this Honourable Court'. Please inform the members of the Bar accordingly.

"I am considering your suggestion for introducing similar methods of address in the Subordinate Judiciary".

It was for the lawyers of the Supreme Court and of the High Courts to follow the suggestion. But none followed it. Why? Chronicity, in my book. Augustine of Hippo said: 'Habit, if not resisted, soon becomes necessity'. I invite the readers of this article to come out with their assertive response.

I should think there is an element of fawning in frequent 'my-Lording' while arguing. I am only expressing my views in a language of careful and respectful moderation. Sri. T.R. Andhyarujina has recorded the free and forthright debate between Court and the Counsel in the United States Supreme Court, as opposed to 'the obsequiousness often seen in our Courts'.

As far as 'WE, THE PEOPLE OF INDIA', are concerned, 'Lording over' is, verily, an anachronism. 'Lord' is an institution of inheritance. We have to set a new benchmark for legal interaction between the Bench and the Bar, as the judicial system is divided, though without a wall. Close your eyes and imagine a court-room.

ART OF ADVOCACY*

(By T.P. Kelu Nambiar, Sr. Advocate, High Court of Kerala)

It is not only my duty, but privilege and pleasure, to be here, to address you, in connection with this function, on the topic, "Art of Advocacy", with my 50 year old arguing throat.

I am neither an optimist nor a pessimist. I am a realist. And, a realist does not hesitate 'to reveal ultimate degradation', to borrow a piquant expression from the Punch. I shall try to say much in a few words, remembering the paradox of being a lawyer.

Let me begin by emphasizing the obvious. It is time for introspection over the lawyers' 'infinite book' of advocacy, remembering that advocacy is not a commodity available for purchase, and the Court is not a margin-free market. Neither is 'advocacy' the most beautiful word in English. We have to wait for the moment when we hear the call: 'Advantage Advocacy'. In these days, when we are in the world of high end mobile phones, a study of the situation makes disquieting projections about the future of advocacy. We do not know when advocacy is going to see the proverbial light at the end of the tunnel; and when the legal profession is going to see an advocate who looks like Charles Boyer and speaks like Winston Churchill.

This address is a conglomeration and conglutination of the several speeches delivered by me, at various places, on diverse occasions, and my several writings, published in various Law Journals and Souvenirs, and my own Miscellanies, such as The Importance of Being a Lawyer; The Lawyer in the Making-Problems and Panacea; Art of Advocacy and Professional Management; Legal Ethics and Professional Conduct; The Importance of Building up a Law Library; Quo Vadis Legal Profession; The Bar and the Judiciary in the Emerging Millennium; The Agony and Ecstacy of the Legal Profession; Bar, Bench and the Gap; Law, Language and Library; Advocacy Muffled, Crippled and Stifled; Cry Noble Profession; In Search of Advocacy, etc.

Advocacy is not baby-talk. Advocacy is the armour of a lawyer. The arguing toungue, with a voice of experience, is the life-line of the legal profession.

Advocacy is the dynamic aspect of law practice. A case has to be argued with precision. And, command of language is essential for effective advocacy. Therefore, a lawyer should be comfortable in-the English language. Sir Winston Churchill is reported to have told his son Randolf, about certain poor orators: "Before they got up, they do not know what they are going to say; when they are speaking, they do not know what they are saying; and when they sit down, they do not know what they have said". Substitute 'lawyers' for 'orators'.

It is time to get serious on advocacy. Lawyers should shed the 'look-judge' policy. "I wish your wish" - lawyers do great harm to the profession and the art of advocacy. "As Your Lordship pleases", is the line often of lawyers. Lawyers should remember that the Judge's role is a participatory one. Judges should remember that their role is not isolatory. The amity between the Bench and the Bar does not arise out of any treaty, or out of fear, but out of reciprocal respect. Advocacy should never be treated as one in the dock. A lawyer has to keep his chin up while arguing; and set right his spinal column. A lawyer will have to come to terms with his identity; and should strive for 'advocacy uncovered'. An Advocate has to display analytical skill and prowess; and put complex ideas in simple language; and the brevity of his argument should say it all. Not everyone has to be loud to be heard. An advocate should never function as a 'speed merchant'. One who had seen and heard Barrister M.K.Nambiar, the genius of advocacy and legal profession's original material, arguing cases, would understand the meaning of the above statements. What goes around finally does come around, is the only consolation. Advocacy has to borrow from its own past. I look back to the past with a sense of longing and forward to the future with a sense of unease.

The legal profession is admirable. According to Disraeli, himself a master of argument, an advocate is one who is able to "illustrate the obvious, elaborate the self-evident, expatiate on the commonplace". This calls for perception and clarity, patience and determination in the presentation of the essential details with emphasis, order and significance, using common sense especially. Do not use bad prose. Your arguments should not be long on facts but short on matter. If you fail to measure time when you argue, your argument is apt to be measureless, also, with no result. 'Blogosphere' advocacy will not win. Advocacy is not solemn jugglery. Argue, galloping thoughts, gradually; provide clarity to the confused. Use your brain, not its borderland. Be steadfast, never stubborn, remembering that hard rock gives soft water. You may hiss, but not bite, like the proverbial snake. Be bold, and a man of amazing agility; but remember that you cannot equate contempt with courage or insults with independence. The difference between use and abuse of advocacy should be clearly and carefully discerned. This discernment counts a lot when the assets and liabilities of your law practice are determined. To culture your profession, you should study well, remembering that a Court room is not a touch screen kiosk. Do not pester God with demands for advocacy boon. Try to be dignified; and an uncomplicated lawyer. Do not confuse victory with success. These are days of construction of monuments to the mouse and the monkey.

I have an advice to the young wing of the protection. And, I cannot put it better than making a rehash of what I said, in November, 2004, when speaking on the subject "In Search of Advocacy", on the occasion of the Sixth Annua! Day Celebrations and All India Moot Court Competition, of Samafha Law Society, at Ernakularn: "Junior lawyers seem to require a huge dose of self-brief. Young lawyers should not conduct themselves as 'marketing boys', or infiltrators in the profession. Law libraries are used as "De-stress Zone" only, forgetting that books are the tools of a lawyer. A lawyer studies to live, not lives to study, unlike Francis Bacon, who lived to study, and not studied to live. The importance of the library of books had beer, poken of by Shakespeare, in "The Tempest" and "Titus Andronicus"; Edward Gibbon, in 'Declined and Fall of the Roman Empire'; Milton, in "Paradise Regained"; and by Lord Samuel, Martin Tupper, John Sheffield, William Cowper, Oscar Wilde and Macaulay. Therefore, a lawyer's library should contain not only Lindley, Palmer, Russell, Jarman, Kerr, Fry, Wade and Maxwell, but also Shakespeare, Galsworthy, Mathew Arnold, Hazlitte and Dr.Johnson. This aspect has to be noted especially by cub lawyers. Most of the lawyers of today seem to suffer from 'dyslexia'. The shift from print to screen has a damaging effect on reading habit".

The bane of advocacy, as far as the High Court is concerned, is Mandamus Fest; and, generally, it is 'do-little' Bar and Bench.

Time and again, I have been exhorting, through writings and speeches, that advocacy should be upgraded. For the Kerala Bar, it is time to get serious on advocacy, so that litigants in Kerala need not be lawyer-watchers expecting migratory lawyers from Delhi, Bombay and other centres.

I venture a suggestion. Every senior lawyer should constitute and head a Planning Board, so to say, consisting of his juniors as members, to conceive and decide upon the strategy and method of persecuting each case before Court. This would benefit both seniors and juniors; and, result in the upgradation of the art of advocacy.

A happy life for an advocate does not consist of "inherited wealth, no need to earn, fires that continually burn and fields that give a fair return", to use an expression of the Spanish epigrammist Martial.

Let me say, as Martin Luther King said: "I have a dream". And, that is of 'embedded advocacy' of the Kerala Bar, by reducing advocacy deficit. Let us chase the dream. Mere arguing, is not advocacy, as shaking the leg is no dance. A Memorandum of Understanding (MOU) is needed for harvesting advocacy. Advocacy is not moral instruction aimed at the soul. An advocate is not a hunter-gatherer. Judges should realise the perils of advocacy gag/ muffling. Now-a-days the bar is the victim of advocacy censorship.

I request you to ponder over the great profession on the lines of bringing credit to advocacy and credibility to the legal profession. We should try to revive and re-live the splendour of the profession; and regain its glow and flash. We should never allow the profession of law lose its zing and zest, vitality and virtuousness, excellence and exuberance. And, beyond and above all this, we should be honest with ourselves and the others; and, every lawyer should read, understand, and adhere to, the exhaustive rule book on professional conduct and etiquette. There is no pension for lawyers. But, certain lawyers get death-cum-retirement gratuity, that is 'reputation'.

I dedicate this address to great Hortensius, who of all the advocates of antiguity, said Cicero, had given himself up most exclusively to the legal profession; and, I add, to the art of advocacy.

I am grateful for the opportunity, and thankful to your tolerance. Thank you.

Review of Books

_______________________________________________________________________________________________________________________________________

*. Keynote Address delivered on 8.1.2005, at K.P.S. Menon Hall, Kottayam at the State Conference of the Kerala Bar Federation.

EMPLOYMENT OF THE DISABLED: PROMISES AND REALITIES

(By Kaleeswaram Raj)

Disability means imperfection. It also reminds about imperfections. Every human being is imperfect. Life is, perhaps a continuous process of understanding and honoring imperfections.

Providing employment is not a mere form of reservation. It is a means of honouring the disabled. It is an assertion of ability of the disabled. Therefore, the statutes, statutory rules and other orders governing the field need to be just, reasonable and fair, both in theory and in practice.

The Persons with Disabilities (Equal Opportunities Protection of Rights and Participation) Act, 1995 (in short, PWD Act) was fair in its contents, though not in the implementation. S.32 of the Act says about identification of posts for the purpose of S.33. S.33 contemplates reservation of 3% for the disabled. Government of Kerala, in an apparently irrational move, identified classes III and IV posts alone for the purpose of reservation. The High Court of Kerala in Ratheesh Babu v. U.G.C., 2004 (3) KLT 158, deprecated the said stand and directed the Government to identify the posts in Classes I and II also for the purpose of reservation. The Court said that there is no rationale in limiting reservation to Classes III and IV posts alone. The judgment dated 13.8.2004 is yet to be implemented.

Despite the mandate of Ss. 32 and 33 of the PWD Act various Government Institutions and Government owned companies including Nationalized Banks have not implemented the same with respect to the higher posts. An order issued by Government of India runs as follows:-

"Reservation for the physically handicapped in the posts filled by promotion.

The undersigned is directed to invite reference in this departments OM of even number dated 18.2.97 on the subject mentioned above and to say that the existing sub para (ii) thereof may be replaced as under:

The existing policy of reservation for SCs/STs, including for the physically handicapped in promotion in all Groups is applicable to all Grades and services where the element of direct recruitment does not exceed 75%".

(Please see order No. 36035/7/96-Estt (SCT) dated 16.1.1988 quoted in representation dated 20.3.2003 submitted by the State Banks Staff Union Kerala Circle to the Chief Manager, State Bank of India, Local Head Office, Thiruvananthapuram),

The said representation also quotes further from the Government Order dated 16.1.1998:—

"It is needless to emphasis that extra efforts and if necessary special drive has to be undertaken by PSBs/Fis so as to fulfill the requirement of 3% reservations in officers grade as envisaged in the PWD Act, 1995. For this purpose it has been decided that a review be made through the concerned Board of Directors of the progress made in achieving the target for reservations to the disabled persons......".

At the same time the stand of the Bank is as reflected in the letter dated 24.2.2003 which says that "as the post of Officer in Junior Management Grade Scale I (JMGS 1) in the Bank is at par with Group A services of Government of India, no reservation in promotion from clerical grade to JMGS I may be provided for the physically handicapped persons". (Vide Circular dated 24.2.2003 issued by the Corporate Development Officer, State Bank of India, Mumbai).

The PWD Act does not make any distinction between the Group A and B posts on the one hand, and subordinate posts on the other. It does not make any distinction at all. Therefore the persons in charge of an individual bank cannot make any such distinction. Going by the spirit and content of Ratheesh Babu supra, the authorities have a statutory obligation to implement the mandate of statutes equally, without any discrimination, subject to the methods of identification of the posts. But the identification cannot be with respect to the level/rank of the posts as Class A or Class B. The identification has to be with respect to the nature of work/responsibilities involved vis-a-vis the nature of disability.

Special Employment Exchanges:

S.34 of the PWDAct contemplates reporting of vacancies meant for the disabled to the special Employment Exchange. R.35 of the PWDKerala Rules contemplates notification of vacancies to the local special employment exchange. This part of the Act and the rules are honoured in violation than in compliance.

Government Orders:

There are further instances of discrimination. For example, the benefit of regularization in service was offered to the disabled employees during SAARC year and during the celebration of India's 50years of independence. See for example G.O.No.18/99 dated 13.10.1999 retained those handicapped employees engaged between 1.1.1997 and 14.8.1998. It also contemplates regularization of the service of the physically handicapped provisional employees covered by Government orders dated 28.9.1998 and 17.5.1999. Para 3 of the said G.O. reads as follows:--

"Government have carefully considered the views expressed by the Public Service Commission in the matter. The services of the physically handicapped provisional employees who were in service during the 'International year of the Disabled' i.e., during the SARRC year of the physically handicapped were regularized in the post. It was therefore, felt that it is only appropriate to extent a similar treatment to the physically handicapped provisional employees in connection with the 50th Year of India's independence also. Having examined in the relevant aspects, Government are pleased to issue the following orders overruling the advice of the Public Service Commission.

The logic of limiting the privilege to a particular year would be unjust at least from the point of those who rendered larger service during periods other than what is stated in the G.O. Generosity or compensatory discrimination for that matter is not something to accompany the celebrations. Ironically, even decades before the PWD Act, Kerala has chosen to implement R.9(e)(iii) of Part II of KS & SSR which regularized the service of disabled persons who rendered service for one year or more (including broken service) between 1.1.1968 and 31.12.1979, which takes in more than a whole decade.

These draw backs are to be rectified to ensure the proper implementation of disability rights, viewed from the wider premises of the Beijing Conference (1992).

(Paper presented in the State Level Consultation on Disability held at Ernakulam on 15.4.2005 organized by the Human Rights Law Net Work Kochi Unit in Association with the disability rights group, Kochi).

IS AN ORDER DISMISSING AN APPEAL AS TIME BARRED AN

APPEALABLEDECREE? : A STUDY IN THE LIGHT OF

THE SUPREME COURT DECISION IN SHYAM SUNDER SARMA V.

PANNALAL JAISWAL & OTHERS - 2005 (1) KLT198 (SC)

(By P.Chandrasekhar, Advocate, Ernakulam)

The vexed question as to whether an order dismissing an appeal consequent on the refusal of the Appellate Court to condone the delay in presenting the appeal amounts to a decree against which an Appeal would lie under S.100 of the Code of Civil Procedure, 1908 (CPC) has again propped up with a recent decision of the Supreme Court in Shyam Sunder Sarma v. Pannalal Jaiswal & Ors., 2005 (1) KLT 198 (SC) (Decision dated 4.11.2004 in Appeal (Civil) 5550 of 2004). The case before the Supreme Court was concerned with an order of refusal to entertain an application to set aside an ex parte decree for the reason of dismissal by the Appellate Court of the application to condone delay in presenting appeal against the very same ex parte decree and consequential dismissal of the appeal. The Trial Court took the view that since the appeal against the ex parte decree filed by the first defendant was not withdrawn, the petition under O.IX, R.13 of CPC could not be entertained in view of the explanation to O.IX, R.13 of the Code. A Writ Petition filed under Art.227 of the Constitution of India against the order of the trial Court having been dismissed by the High Court, the matter was taken to the Supreme Court. The trial Court had dismissed the application filed under O.IX R. 13 of CPC in view of the explanation to the said rule that where there was appeal against a decree passed ex parte under the said rule, and the appeal has been disposed of on any ground other than the ground that the appellant had withdrawn the appeal, no application shall lie under the rule for setting aside that ex parte. The only question involved in the case therefore was whether dismissal of an application to condone the delay filed under R.3A of O.XLI of CPC and the consequential rejection of the appeal would amount to disposal of the appeal for the purpose of O.IX, R.13 of CPC. Decision of the Supreme Court in P. Kirankumar v. A.S. Khadhar, (2002) 5 SCC 161, had already settled the law on the point holding categorically that 'the words of the explanation are clear and unambiguous' and that 'they clearly indicate and suggest that if an appeal has been preferred and the same had been dismissed on any ground other than the withdrawal of the appeal, the same would cause a bar to the filing of the application under 0.9, R.13 of CPC. Reference to Kirankumar's case alone would have been sufficient to dispose of Shyam Sunder Sarma's case. The question as to whether such an order disposing the appeal would amount to a decree under S.2(2) of CPC had neither arisen nor was relevant in the case. However, the Supreme Court, in Shyam Sunder Sarma's case, relying on a decision of the Full Bench of the Kerala High Court in Thambi v. Mathew, 1987 (2) KLT 848, held that an appeal presented along with an application for condoning the delay in presenting that appeal when dismissal consequent on the refusal to condone the delay is a decision on the appeal. Explanation to R.13 of O.IX speaks only about disposal of the appeal and the disposal contemplated under the Rule need not be a disposal by way of a decision on the appeal. Disposal in ordinary parlance only means removal of the case from the file of the Court. Disposal of any nature other than withdrawal of the appeal would come within the connotation of disposal of the appeal for the purpose of Explanation to R. 13 of 0.9 of CPC. Therefore, an order dismissing the appeal for the reason of refusal to condone the delay in filing the appeal is also disposal of appeal for the purpose of Explanation to R.13 of O.IX CPC.

The Full Bench decision in Thampi's case, 1987 (2) KLT484, was no more a good law in view of the Supreme Court decision in Ratansingh v. Vijay Singh, 2001(1) KLT 327 (SC). In Ratansingh 's case, the Supreme Court has held that in order a decision of a Court to become a decree under S.2(2) of CPC there must be an adjudication in a suit with regard to the rights of the parties as to matters in controversy in the suit. It was also therefore held in that decision that dismissal of an appeal consequent on the rejection of application to condone delay in presenting the appeal is not a decree within the meaning of S.2(2) of the CPC. The Supreme Court approved the Full Bench decision of the Calcutta High Court in Mamuda Khateen v. Benyan Bibi, AIR 1976 Calcutta 415, which took a view, contrary to the Full Bench decision of Kerala High Court in Thampi's case, that if application under S.5 of the Limitation Act was rejected the resultant order could not be a decree and the order dismissing the appeal is merely an incidental order. The decision of Calcutta High Court in Mamuda Khateen's case was followed by Madhya Pradesh High Court in Bal Krishan v. Tulsa Bai, AIR 1987 Madhya Pradesh 120, and Rajasthan High Court in Chhelaram v. Manak, AIR 1997 Rajasthan 284. These decisions are in accord with the decision of the Supreme Court in R. Rathinavel Chettiar v. V.Sivaraman, (1999) 4 SCC 89, that a 'decree' has to have the following essential elements, namely:

(i) There must have been adjudication in a suit.

(ii) The adjudication must have determined the right of the parties in respect of, or any of the matters in controversy.

(iii) Such determination must be conclusive determination resulting in a formal expression of the adjudication.

None of these attributes are present in an order rejecting a memorandum of appeal consequent on rejection of an application to condone the delay in presenting the appeal. In Ratansingh's case the Supreme Court also held that until the application filed under S.5 of the Limitation Act is allowed the memorandum of appeal is in limbo and that if the application is dismissed the memorandum of appeal becomes otiose. S.5 of the Limitation Act does not provide for a separate application for condoning the delay in presenting the appeal. Application to condone delay in presenting appeal became necessary in view of R.3A of O.XLI of CPC which came into statute book with effect from 1st February 1977. Before the amendment the requirement of filing separate application to condone delay in presenting appeal had not been strictly insisted. R.3A of O.XLI of CPC stipulates that 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. Sub-r. (3) of R.3A refers such an appeal as an appeal proposed to be filed. It is therefore clear that till application to condone the delay in presenting the appeal is allowed by the Court there is no appeal pending before the Court but only an appeal memorandum of an appeal proposed to be filed. The intention of the Parliament is further fortified by the stipulation in sub-r.3 of R.3 A that 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 R.ll, decides to hear the appeal. R.ll empowers the Court to dismiss the appeal, after hearing the Appellant, without serving notice on the respondent or his pleader. The hearing contemplated under R.ll is to decide as to whether or not the appeal should be dismissed without notice to the Respondent. The question of hearing the appellant under R.ll does not arise till the application to condone the delay in presenting the appeal is allowed.

Ratansingh's case was brought to the notice of the Bench which heard Shyam Sunder Sarma's case. The Bench which heard Shyam Sunder Sarma's case, however, did not accept the decision in Ratansingh 's case as laying down the correct law on the question for the reason that the principle laid down by a three Judge Bench of the Supreme Court in Mela Ram and Sons v. The Commissioner of Income Tax, Punjab, 1956 SCR 166, and in Sheodan Singh v. Daryao Kunwar, AIR 1966 SC 1332, was not noticed by the Bench which rendered the decision in Ratansingh's case. There is no specific finding in Shyam Sunder Sarma's case that the decision in Ratansingh's was rendered per incuriam. The latter also does not specifically over rule the former. Mela Ram's case and Sheodan Singh's case were not in anyway concerned with the interpretation of S.2(2) of CPC or R.3 A of O.XLI of CPC. Mela Ram's case arose under Income Tax Act. In Shoedan Singh's case the Supreme Court was concerned with the question of res judicata. That was a case where four suits were tried together culminating in a common judgment, but four decrees. Four appeals were therefore filed. Two appeals were before the District Court and two appeals before the High Court. The Appeals filed before the District Court were subsequently transferred to High Court. Two appeals were subsequently dismissed by the High Court, one as time barred and another for failure to apply for translation and printing of records. The Supreme Court held that dismissal of the two appeals operated as res judicata though the dismissal of appeals was for technical reasons. The Supreme Court also held that the dismissal of the appeals amounted to confirmation of the decision of the Trial Court on merits. The decision was rendered much before R.3A of O.XLI of CPC came into statute book. These decisions of the Supreme Court are not binding precedents for the proposition that when an application filed under R.3A for condoning the delay in presenting the appeal is rejected and consequentially the memorandum of appeal of the proposed appeal is also rejected, the consequential order is a decision on the appeal and hence a decree within the meaning of S.2(2) of CPC. Ratansingh's case is not, therefore, a decision rendered per incuriam. As held by the Supreme Court in Nirmal Jeet Kaur v. State of M.P., 2004 (3) KLT 391 (SC), binding precedent is avoided and ignored only if it is rendered 'in ignoratium of a statute or other binding authority'. Ratansingh's case does not belong to that category. In fact, another binding precedent of the Supreme Court in State of M.P. v. Pradeep Kumar, 2000 (3) KLT 598 (SC) does not appear to have been brought to the notice of the Bench which rendered the decision in Shyam Sunder Sarma's case. Interpretation of R.3A of O.XLI of CPC directly arose in Pradeepkumar's case. In that case the Supreme Court held that the object of enacting R.3A is two fold. First of all, it was to inform the appellant himself who filed a time barred appeal that it would not be entertained unless it is accompanied by an application explaining the delay. Secondly, it seeks to communicate to the respondent a message that it may not be necessary for him to get ready to meet the grounds taken up in the memorandum of appeal because the Court has to deal with application for condoning the delay as a condition precedent to entertain the appeal. In other words, the Appellate Court does not get jurisdiction to entertain the appeal until the application to condone the delay is granted. It is now well settled that a decision is a precedent for what is decides and not what logically follows from it. The Supreme Court in Bhavnagar University v. Palitana Sugar Mill (P) Ltd., (2003) 2 SCC 111, has held that a little difference on facts or additional facts may make a lot of difference in the precedential value of a decision. Mela Ram's case and Sheodan Singh's case are not precedents for the proposition that an order dismissing an appeal consequent on the rejection of application to condone delay under R.3A of O.XLI of CPC is a decree within the meaning S.2(2) of CPC. Lack of reference to these decisions does not therefore make the decision in Ratansingh 's case one rendered per incuriam.

The Full Bench decision of Kerala High Court in Thampi's case had relied on Mela Ram's case and Sheodan Singh's case to come to the conclusion that the decree of the Trial Court gets merged in the Appellate Court's decree even when the appeal is dismissed on a preliminary ground or as time barred. The Supreme Court decisions relied on by the Full Bench of the Kerala High Court do not lay down any such legal proposition. The Full Bench in Thampi s case did not consider the scope and interpretation placed on the word 'Decree' as defined in S.2(2) of CPC by various Courts including the Supreme Court. The majority opinion of the Full Bench in Thampi's case, handed down by His Lordship Justice P.C.Balakrishna Menon (as he then was), held that a decree dismissing an appeal in limine without notice to the respondent could not be said to be binding on him and that it could not be said that such a decree would merge in the decree of the Appellate Court. His Lordship Justice Sukumaran (as he then was) while concurring with the majority opinion in Thampi's case on the main issue involved in the case disagreed with the majority opinion equating a decree dismissing an appeal in limine as a virtual nullity and observed that such a view is inconsistent with the very conclusion reached by the majority. When an application to condone delay in presenting the appeal is rejected there is no notice to the Respondent on the appeal and hence according to the law laid down by the Full Bench in Thampi's case there is no merger of the lower Court judgment in the order of the Appellate Court. How can then the consequential order of the Appellate Court rejecting the memorandum of Appeal consequent on rejection of the application for condoning the delay in presenting the appeal be treated as an appealable decree under S.2(2) of CPC? There is another aspect which militates against the principle laid down by the Full Bench in Thampi's case. An appeal against an appellate decree is maintainable under S. 100 of the CPC only if it involves substantial question of law. An order dismissing an application to condone delay in presenting an appeal based on the factual satisfaction of the Appellate Court hardly gives any room for substantial question of law.

The Full Bench in Thampi s case did consider the impact of R.3A of O.XLI of CPC. The Full Bench held that R.3A did not make any difference in as much as a dismissal of the application for condoning the delay under R.3 A resulted in the dismissal of the appeal which can only be under R.11 of O.XLI of CPC. Sub-r. 3 of R.3 A, according to the Full Bench, did not render an appeal properly presented under sub-r.1 of R.3 A a proposed appeal. However, sub-r.3 of R.3 A admits of no ambiguity. The rule is clear and categorical that memorandum of appeal presented along with an application to condone delay in presenting the appeal is in respect of a proposed appeal. R.11 of O.XLI says that the Appellate Court is empowered to dismiss appeal after fixing a day for hearing the appellant or his pleader and hearing him accordingly if he appears, but without serving notice on the respondent or his pleader. Fixing a date for hearing the appellant can only be after condoning the delay in presenting the appeal. This is clear from sub-r.3 of R.3A of O.XLI, which says that no stay of execution of decree appealed against shall be granted so long as the Court does not, after hearing under R. 11, decide to hear the appeal. Hearing under R.11 arises only when the Court decides to hear on the question as to whether the appeal should be admitted or not. Such a question does not arise till the delay in presenting the appeal is condoned. If the delay is not condoned the natural consequence is to dismiss the appeal under S.3 of the Limitation Act. If the delay is condoned the Appellate Court shall hear the appellant or his pleader on the question of admission of the appeal and if the Court decides to admit the Appeal the Court shall fix a day for hearing the Appeal under R.12 and order notice to the Respondent to appear and answer the appeal. The words 'decide to hear the appeal' after 'R.11' in sub-r.3 of R.3 A obviously refers to the hearing of appeal contemplated under R.12. Which, necessarily, means that stay of execution of decree appealed against shall be granted by the Appellate only if it decides to hear the appeal under R.12 after hearing under R. 11 as to whether or not to admit the appeal. Dismissal of an appeal under S.3 of the Limitation Act, therefore, is obviously a stage prior to the hearing of appeal under R.l 1 of O.XLI of CPC.

The question of merger has been elaborately considered by the Supreme Court in Kunhayammad v. State of Kerala, 2000 (3) KLT 354 (SC). In that decision the Supreme Court has held that the logic underlying the doctrine of merger is that there cannot be more than one decree or operative orders governing the same subject matter. If the Full Bench decision in Thampi's case is held to lay down the correct position in law, when an appeal is dismissed without notice to the Respondent, there will not be merger of the lower Court decree in the decree of the appellate and in the result there will be two decrees. This is contrary to the view expressed by the Supreme Court in Kunhayammad's case. In Kunhayammad's case Supreme Court held that when a petitioner for leave to appeal to the Supreme Court is dismissed by a speaking order no merger results. It has also been held that the application of doctrine of merger depends on the nature of the jurisdiction exercised by the superior forum and the content or subject matter of challenge laid or capable of being laid. The superior jurisdiction should be capable of reversing, modifying or affirming the order put in issue before it. Appellate Court, while exercising the power under R.3A of O.XLI of CPC is empowered to decide as to whether an application to condone delay in presenting an appeal should be allowed or not, and is not empowered to reverse, modify or affirm the order put in issue before it. Doctrine of merger in such circumstances cannot therefore apply.

There are now two decisions of the Supreme Court one approving the Full Bench decision of the Calcutta High Court that when an application to condone the delay in presenting appeal is rejected and consequentially the appeal is dismissed, the order rejecting the Appeal is only an incidental one and not a decree, and another decision approving the decision of the Full Bench of the Kerala High Court that when an application for condoning delay in presenting appeal is rejected the consequential order of the Appellate Court is a decree against which an appeal under S. 100 of the CPC can be maintained. Which of the two decisions is now the law of the land under Art. 141 of the Constitution of India? Which of the decisions is liable to be treated as per incuriam so to enable the Court to ignore its binding nature? Of the two decisions which would prevail as binding precedent? All these questions could have been avoided had the Bench which decided Shyam Sunder Sarma 's case had chosen to consider the legal issues afresh in the light of the earlier decisions of the Supreme Court and arrived at a firm conclusion either affirming or overruling the decision in Ratansingh's case, instead of resting its decision on the decision of the Full Bench in Thampi's case.