Comparative Advertisement and its Crossing Lines

Legal Framework in India

(By Keerthi S.Nair, Advocate, High Court of Kerala)¹

“Comparative advertising can be a formidable weapon in the hands of a trained marksman. But if you don’t involve the reader in your claims of superiority, you may be shooting yourself in the foot.”                                               –Herschell Gordon Lewis ²

It is the recent commercial for the popular brand, ‘Domex’ which contrasts it with its rival, ‘Harpic,’ is what triggered a larger controversy in the business world. This practice was seriously condemned by Delhi High Court in its recent judgment. The relevant question that arises here is why business companies are resorting to ‘unprincipled’ practises in the disguise of promotional activities. As we all know, advertising is a critical marketing tool capable of determining a product’s success or failure. ‘Comparative advertisement’ is a strategy often used by companies as part of their promotional tactics, where one product of a trader is compared with the product of a competitor. Either explicitly or impliedly is possible.However, ‘comparative advertisement’ is not defined under any Indian statute.

When we look back to history of comparative advertisement, the 1960s and 1970s are especially important, as U.S. advertisers began naming competitors and comparative advertising. The 1960s to 1970s are also important because they include the industry’s much vaunted “Creative Revolution.” Prior research also shows that problems with comparative advertising began attracting the attention of advertisers, media executives and managers, and federal regulators during the 1930s. On August 13, 1979, the FTC published a definitive restatement of its comparative advertising policy, declaring beyond question that trade association codes, media clearance policies, and advertising self-regulatory rules restricting comparative advertising would not be tolerated. This event likely contributed substantially to what appears to be the more widespread use of explicit comparative advertising among mainstream advertisers since then³.

It is pertinent to note that, the very purpose of this tool is to explain to its customers why they should choose this product over one from a rival. This is not the first time; this has been adopted by companies.Leading companies like Samsung, Apple, Dove, BMW and others have done this in the past to advertise their products. Previously, when ‘Mac’ tried to picturize itself with other PCs as two humans in its advertisement, it depicted ‘PCs’ as a person who blows his nose, sneezes, and eventually passes out after a virus attack, whereas ‘Mac’ remains healthy and immune to virus attack. So, here comes another significant question, whether highlighting a competitor’s flaws in comparison to one’s own goods constitutes “disparaging” or “puffery” in such commercials?

Indian Judicial Approach

Under Indian law, at present, there is no specific provision or a statute defines ‘comparative advertisement’ and its boundaries. The short question here is whether it qualifies as a ‘trade practice.’ A trade practice means any practice relating to the carrying on of any trade. It also includes the following:

1)   Anything done by any person which controls or affects the price charged by, or the method of trading of, any trader or any class of traders;

2)   A single or isolated action of any person in relation to any trade ⁴.

As per S.2(1) of the Consumer Protection Act, 2019, defines “advertisement” as

“a means any audio or visual publicity, representation, endorsement or pronouncement made by means of light, sound, smoke, gas, print, electronic media, internet or website and includes any notice, circular, label, wrapper, invoice or such other documents.”

If ‘Comparative Advertisement’ can be treated as a trade practice, then it can very well be booked under S.2(47)(j) of the Consumer Protection Act, 2019, if it is used to the extent of disparaging or defaming competitor’s product,.

“Section 2(47) “unfair trade practice” means a trade practice which, for the purpose of promoting the sale, use or supply of any goods or for the provision of any service, adopts any unfair method or unfair or deceptive practice including any of the following practices, namely: —

...

(j) gives false or misleading facts disparaging the goods, services or trade of another person.”

In the recent decision, Delhi High Court openly criticized the advertisement of the brand ‘Domex’ which disparaged its competitor ⁵. In that decision, the following observations of the Court found to be rife with the concept of ‘ethical advertisement’ and the idea that advertiser cannot disparage or defame the competitor’s goods while he undertakes comparative advertisement;

“24. In a comparative advertisement, it is open for an advertiser to embellish the qualities of its products and its claims but it is not open for him to claim that the goods of his competitors are bad, undesirable or inferior. As an illustration, in a comparative advertisement, it is open for an advertiser to say his goods are of a good quality but it is not open for an advertiser to send a message that the quality of the goods of his competitor is bad………it is open for a person to claim that he is the best seller in the world or a best seller in the street but it is not open for him to denigrate the services of another. Thus, it is not open for an advertiser to say “my goods are better than X’s, because X’s are absolutely rubbish”. Puffery and Hyperbole to some extent have an element of untruthfulness.”

Under the Trade Marks Act, 1999, Section 29 deals with infringement of registered trademarks. This provision also deals with the infringement of trademark by means of spoken use of words in the registered trademark and its visual representation. Such infringement can be through any advertisement, as stipulated under sub-section (8) of S.29. Similarly, S.30(1) of the Trademarks Act, 1999 also prevents dishonest practices in industrial and commercial matters and, those activities which gives unfair advantage or detrimental to the distinctive character or reputation of a trademark.

As held by the Delhi High Court in Havells India Ltd. & Anr. v. Amritanshu Khaitan & Ors.⁶ the primary objective of Sections 29(8) and 30(1) of the Act, 1999, is to allow comparative advertising as long as the use of a competitor’s mark is honest. The test of ‘honest use’ is an objective test which depends on whether the use is considered honest by members of a reasonable audience.

In short, those advertising practices which disrepute competitor or infringes its trademark, in the garb of comparative advertisement cannot be encouraged. Moreover, the Code of Self-Regulation issued by Advertising Standards Council of India (ASCI), advertisements must be truthful. Advertisers and advertising agencies are required to produce such substantiation as and when called upon to do so by The Advertising Standards Council of India and any reference to such person, firm or institution which confers an unjustified advantage on the product advertised or tends to bring the person, firm or institution into ridicule or disrepute. The Chapter IV also lays down that advertisements containing comparisons with other manufacturers or suppliers or with other products including those where a competitor is named, are permissible in the interest of vigorous competition and public enlightenment provided:

(a) It is clear what aspects of the advertiser’s product are being compared with what aspects of the competitor’s product.

(b) The subject matter of comparison is not chosen in such a way as to confer an artificial advantage upon the advertiser or so as to suggest that a better bargain is offered than is truly the case.

(c) The comparison are factual, accurate and capable of substantiation.

(d) There is no likelihood of the consumer being misled as a result of the comparison, whether about the product advertised or that with which is compared.

(e) The advertisement does not unfairly denigrate, attack or discredit other products, advertisers or advertisements directly or by implication.”

Article 2(2a) of the Advertising Directive of EEC defines comparative advertising as “any advertising which explicitly or by implication identifies a competitor or goods or services offered by a competitor.”

The goal of the Code for Self-Regulation, is to manage the content of advertisements, not to hamper the sale of products which may be found offensive, for whatever reason, by some people. Therefore, as per the terms of this Code,if certain advertisements for such products are not themselves offensive, there will normally be no ground for objection to them. Further specifies that the Code’s rules serve as the foundation for adjudication, whenever there may be conflicting views about the acceptability of an advertisement, whether it is challenged from within or from outside the advertising business. The general public and an advertiser’s rivals have an equal right to expect the content of advertisements to be presented fairly, intelligibly and responsibly. The said Code applies to advertisers, advertising agencies and media.⁷

Further in Reckitt Benckiser India Private Limited v. Hindustan Unilever Limited ⁸; the High Court highlighted that one cannot glorify its own product by defaming its rival. The court observations are as follows;

“21. ……………If advertisement extends beyond the grey areas and becomes false, misleading, unfair, or deceptive advertisement, it would not be entitled the benefit of any protection. In comparative advertising, the comparing of one’s goods with that of the other and establishing the superiority of one’s goods over the other is permissible. However, one cannot make a statement that a good is bad, inferior, or undesirable as that would lead to denigrating or defaming the goods of the other.”

In its another landmark judgment, the Apex Court in Pepsi Co., Inc. v. Hindustan Coca Cola Ltd.⁹., made following noteworthy observations with respect to disparagement and factors to be considered by the Courts while deciding a question on it;

“11.What is disparagement. The New International Websters’ Comprehensive Dictionary defines disparage/disparagement to mean, “to speak of slightingly, undervalue, to bring discredit or dishonour upon, the act of depreciating, derogation, a condition of low estimation or valuation, a reproach, disgrace, an unjust classing or comparison with that which is of less worth, and degradation.” The Concise Oxford Dictionary defines disparage as under, to bring dis-credit on, slightingly of and depreciate.”

“12.In the electronic media the disparaging message is conveyed to the viewer by repeatedly showing the commercial everyday thereby ensuring that the viewers get clear message as the said commercial leaves an indelible impression in their mind. To decide the question of disparagement we have to keep the following factors in mind namely; (1) Intent of commercial (ii) Manner of the commercial (iii) Story line of the commercial and the message sought to be conveyed by the commercial. Out of the above, “manner of the commercial”, is very important. If the manner is ridiculing or the condemning product of the competitor then it amounts to disparaging but if the manner is only to show one’s product better or best without derogating other’s product then that is not actionable.”

Likewise, in Reckitt & Colman of India Ltd. v. M.P.Ramchandran¹⁰, the Supreme Court
has laid down the following permissible limits, a tradesman can go for promoting his products through advertisement.

“11.From the law discussed above it appears to me that the law on subject is as follows:

I)    A tradesman is entitled to declare his goods to be best in the world, even though the declaration is untrue.

II)   He can also say that his goods are better than his competitors’, even though such statement is untrue.

III)  For the purpose of saying that his goods are the best in the world or his goods are better than his competitors, he can even compare the advantages of his goods over the goods of others.

IV)He however, cannot, while saying that his goods are better than his competitors’, say that his competitors’ goods are bad. If he says so, he really slanders the goods of his competitors. In other words, he defames his competitors and their goods, which is not permissible.

V)  If there is no defamation to the goods or to the manufacturer of such goods no action lies, but if there is such defamation an action lies and if an action lies for recovery of damages for defamation, then the Court is also competent to grant an order of injunction restraining repetition of such defamation.”

InDabur India Ltd. v. Emami Ltd.¹¹ ; the Delhi High Court has laid down the conditions to be satisfied by the advertisers while resorting to ‘Comparative Advertisement’.

36. The Court also has to recognize that the framework of the advertisements is designed with the objective to sway the consumers and coax them to buying a particular product or service…………………..Some leeway has always to be given to the advertiser, but at the same time right to free speech cannot be stretched to allow them to become defamatory, disparaging or denigrating. One cannot ignore the fundamental characteristic of comparative advertisements is appraisal by contrasting the products. There will often be an element of negative or adversarial comparison. The intent behind the comparative advertisements will invariably be to persuade the consumers to give preference to one of the competing products. Such advertisements either expressly or subtly make a claim that the product of the advertiser is a better choice. This is permissible in law………………..The comparative advertising campaign should thus be ‘comparison positive’. Advertisements often contain valuable information for the consumers and can promote healthy competition in the market. If this is the message conveyed, the courts would be resilient and allow the negative derivatives of comparison.”

In countries like UK, Comparative Advertising Directive, (EU directive), Business Protections from Misleading Marketing Regulations 2008 (BPRs) and UCP Directive (Unfair Commercial Practices Directive) are the major regulations and directives that governs comparative advertising. Truly, these regulatory frameworks not only protect traders, but also the consumers from misleading advertisement and unfair trade practices.

Conclusion

It is possible to conclude that there is absolutely no harm in comparing one’s product with another. It genuinely aids in raising customer awareness of numerous market goods. Given the increased risks involved in comparative advertisement, its high time to incorporate a specific legal provision in the existing and concerned legal statutes of India in this regard,in the light of remarkable observations of Courts in India. Hopefully, it would restrain the advertisers from using nefarious statements or comments couched as ‘comparison’ against the competitor’s product¹² . Such illegal comparative advertisements frequently led to numerous Intellectual Property (IP) issues between the rival corporations as well. In India, there are no specific regulations administering comparative advertisement, unlike UK. But we have laws like the Competition Act, 2002, the Trade Marks Act, 1999, Code of Self-Regulation issued by the Advertising Standards Council of India and Consumer Protection Act, 2019, which can generally regulate unhealthy comparisons. In fact, the advertisers need to draw a line between ‘healthy comparison’ and ‘unhealthy comparison.’ Without a doubt, unhealthy comparisons among products would lead to unethical marketing practices or immoral advertisement. It is also to be noted that mere puffing of goods is not actionable. Tradesman can say his goods are best or better. But by comparison the tradesman cannot slander nor defame the goods of the competitor nor can call it bad or inferior.¹³

Foot Notes:

1.^.      Adv. Keerthi S.Nair, BBA; LL.B (Hons.), LLM, Research Assistant, High Court of Kerala, can be reached at keerthisnair123@gmail.com.

2.   Ruth Corin, Rebecca N. Bleibaum, Tom Jirgal, David Mallen, Christine A.Van Dongen, “Practical guide to Comparative Advertising, Dare to Compare; Elevier Academic Press, London, United Kingdom, 2019, p.27.

3.   Fred K.Beard, “A history of Comparative Advertising in United States”; Journalism & Communication Monographs, 15(3) 114–216, 2013.

4.   P.K.Majumdar, ‘Law of Consumer Protection in India’, Orient Publishing Co., New Delhi, 5th edition, 2008, p.548.

5.   Reckitt Benckiser (India) v. Hindustan Unilever Ltd. (2022 (5) KLT OnLine 1095 (Del.).

6.   2015 (1) KLT OnLine 1151 (Del.).

7.   See, https://ascionline.in/images/pdf/code_book.pdf.; visited on 20.11.2022.

8.   2021 (6) KLT OnLine 1250 (Del.).

9.   2003 (3) KLT OnLine 1294 (Del.)

10.  1998 (2) KLT OnLine 1276 (Cal.).

11.   2019(3) KLT OnLine 3230 (Del.).

12.   Havells India Ltd. & Anr. v. Amritanshu Khaitan & Ors. (2015 (1) KLT OnLine 1151 (Del.).

13.  2003 (3) KLT OnLine 1294 (Del.).

Unconstitutional Stipulation of the one-year Separation Period for Filing Petition for Mutual Consent Divorce : Kerala High Court Opens A Pandora’s Box –  Anup Disalva v. UOI –(2022 (6) KLT 902)

(By Ashok Kini, Advocate, High Court of Kerala)

Section 10A of Divorce Act, 1869₁ (applicable to Christians) stipulated two years separation period to present a petition for mutual consent divorce. The same was read down to ‘one year’ by the Kerala High Court in Saumya Ann Thomas v. Union of India₂. According to the High Court, the stipulation of the period of “two years” therein violates the fundamental rights to equality and the right to life under Articles 14 and 21 of the Constitution. It was to save the provision and to avoid the vice of unconstitutionality, the High Court reduced the period of “two years” to a period of “one year”.

The High Court in Tomy Joseph v. Smitha Tomy₃ noted that the provisions contained in Section 10A DA, are in substance, a verbatim reproduction of the provisions contained in Section 13B of the Hindu Marriage Act, 1955₄ and Section 28 of the Special Marriage Act, 1954. The only substantial difference is that, instead of the period of one year mentioned in Section 13B(1) HMA and Section 28(1) SMA, a period of two years of separate residence is provided under Section 10A(1) DA.

Recently, in Anup Disalva v. Union of India₅ a, the High Court moved a step further and held that the stipulation of the one-year period or more for the purpose of filing a divorce petition by mutual consent under Section10A is violative of fundamental right and thus unconstitutional. This judgment is on the premise that “Section 29 of the Special Marriage Act and Section 14 of the Hindu Marriage Act, enabled the Courts to entertain the petition to be presented before one year had lapsed from the date of marriage and there is no corresponding provision in the Divorce Act for the Court to permit the dissolution of marriage by mutual consent until the mandatory period of one year has lapsed from the date of separation.”

The issue framed in Para 8 of the judgment is ‘whetherin the absence of any provisions allowing the parties to a marriage to move the Court before the lapse of one year from the date of marriage or the date of separation,can the provision stand the test of constitutional scrutiny? According to the High Court, the mandate of Section 10A(1) will become oppressive if the parties arenot given the option to highlight hardships and exceptional hardships they may experience during the waiting period. The legislature in other statutes, having felt the need for relaxation, to redress exceptional circumstances through judicial remedy, cannot remain in oblivion when concerning the Christian community, the High Court observed.

There seems to be no direct judgment of the Kerala High Court on the point whether the proviso to Section 14 HMA can be invoked to waive one year stipulation under Section 13B(1) HMA.

The Supreme Court in Amardeep Singh v. Harveen Kaur₆, issued important guidelines for waiving off six months cooling off period (this is in the context of Section 13B Hindu Marriage Act). Though this question was not directly considered by the Apex Court, it held that, one of the conditions to waive the cooling off period under Section 13B(2) HMA, is this: The statutory period of six months specified in Section 13-B(2), in addition to the statutory period of one year Section 13-B(1) of separation of parties is already over before the first motion itself. This, in a way, means that the Apex Court treated the one year separation period in Section 13B(1) HMA as mandatory.

In Sankalp Singh v.Prarthana Chandra₇, the couple filed a petition under Section 13B(1) along with an application under Section 14 praying for waiver of the period of one year of separation for filing the petition. The Family Court dismissed the petition and thus they approached the Delhi High Court. Allowing the appeal, the High Court observed: A more liberal construction can envisage the application of the proviso to Section 14(1) of the said Act without compromising on the essential ingredients of Section 13B(1) of the said Act. This is possible by ensuring that none of the three essential ingredients are compromised. Thus, parties should have been living separately for one (1) year or more, that they have not been able to live together and have mutually agreed that the marriage should be dissolved. However, the dissolution of marriage has to take effect only after the hiatus period of six (6) to eighteen (18) months, on the second motion being filed. Thus, before such a decree of divorce is passed post second motion the period of one (1) year of separation ought to have elapsed but in order to present the first motion, the requirement of one (1) year separation would not apply provided it meets the parameters of proviso to Section 14(1) of the said Act. This view would not compromise on the essential ingredients of any part of Section 13B of the said Act and simultaneously respect the wisdom of the legislature which enacted Section 13B of the said Act and incorporated it by insertion with sub-section (1) beginning with “Subject to the provisions of this Act” which would include Section 14. Not only that Section 14 of the said Act itself begins with a “Notwithstanding” clause. This would, thus, be the harmonious construction of the provisions of the said Act which would enable to give meaning to all the relevant provisions of the said Act without compromising the ingredients of any. Such a course of action is possible especially because there will not be a waiver of minimum six (6) months hiatus period between the grant of first motion and the second motion being presented with the additional condition under Section 13B (1) of the said Act that even if the first motion is presented within the first year of marriage as per the satisfaction of proviso to Section 14(1) of the said Act, the decree of divorce would only be granted once the period of one (1) year has elapsed from the separation.”

Though Sankalp Singh (supra) was a judgment delivered before the decision of the Apex Court in Amardeep Singh (supra), this view is seen reiterated by the Delhi High Court recently in Rishu Aggarwal v. Mohit Goyal₈. The Punjab and Haryana High Court in Mandeep Kaur Bajwa v. Charanjeet Singh Randhawa, 2015 (40) RCR (Civil) 198, agreed with the above view of Delhi High Court in Sankalp Singh.  A recent judgment of the Punjab and Haryana High Court has followed this view.

The Division Bench of the High Court of Allahabad in Arpit Garg v. Ayushi Jaiswal₉, however, disagreed with the decision in Sankalp Singh (supra). It observed thus: The time period stipulated by the legislature as provided under Section 13B has been so fixed that during this time, the parties get time for introspection. The period prescribed underSection 13-B(1) of the Act is mandatory and cannot be waived. The language of the statute is clear and plain, admitting no ambiguity, and therefore assigned the plain meaning which naturally flows from the reading thereof and leads to a singular construction. The language of the Section 13-B(1) is clear and do not speak of any discretion to be used by the courts for curtailing the limit. The proviso to Section 14 of the Act is intended to mollify the effect of one year limitation when the divorce is sought under “Section 13” of the Act.

According to Madhya Pradesh High Court, the condition of living separately for one year is not directory but mandatory and the requirement of law stated under Section 13B(1) should be satisfied before the Court gives any relief. “The mandate envisaged under Section 13B(1) of the Act providing a period of one year separation before the presentation of the petition to seek divorce by way of mutual consent cannot be waived under proviso of Section 14 of the Act either on the application of the parties or suo motu by the Court, as separation of one year is prerequisite for invoking Section 13B(1) of the Act.”, the court noted in Vishal Kushwaha v.Raghini Kushwaha₁₀.

It is true that in none of the above decisions, the validity of one year separation period stipulated under Section 13B(1) HMA was considered. Broadly categorizing these decisions, some High Courts hold that Section 14(1) proviso HMA can be invoked to relax the one year separation period stipulation in Section 13B(1) HMA and some other High courts hold that it cannot be invoked and the stipulation is mandatory.

The question which now arises after the Kerala High Court judgment in Anup Disalvais significant. If the stipulation of one year period of separation under Section 10A is unconstitutional, what about similar stipulations in Section 13B HMA and Section 28 SMA? If Section 14 HMA/Section 29 SMA cannot be applied to mutual consent divorce under Section 13B HMA/ Section 28 HMA, will those stipulations also be unconstitutional? If a couple invokes Section 13B HMA and files a petition without satisfying one year period stipulation therein, the Court can decide the maintainability of the said petition by referring to precedents. Even if it takes a view that Section 14(1) Proviso HMA can be invoked, it has to consider whether it is a case of exceptional hardship to the petitioner or of exceptional depravity on the part of the respondent. But if a couple invokes Section 10A IDA and cites the judgment of Anup Disalva, will a Family Court in Kerala be bound to entertain this petition seeking mutual divorce even if it is filed before one year separation period ?

To conclude, it is only apt to quote the observation made in Anup Disalva itself :

“In matrimonial disputes, the law must aid parties to resolve the differences with the assistance of the Court. If a solution is not possible, the law must allow the Court to decide what is best for the parties.”

Foot Note:

1.   DA.

2.   2010 (1) KLT 869.

3.   2018 (4) KLT 770.

4.   HMA.

5.   2022 (6) KLT 902 : Anup Disalva.

6.  2017 (4) KLT 367 (SC)

7.  2013 (135) DRJ 487 (D.B.)

8.  2022 (2) KLT OnLine 1207 (Del.)

9.   2019 (2) KLT OnLine 3197 (All.)

10. 2022 (2) KLT OnLine 1208 (M.P.).

Kesar Bai v. Genda Lal(2022 (5) KLT OnLine 1041 (SC) –

Is Something Remains Untold?

Settled Possession v. Rights of True Owner

(By Saji Koduvath, Advocate, Kottayam)

Introduction

Divergent views exist as to passing injunction in a case filed by a trespasser, against the ‘true owner’ of a property.

    ●    One view is that a trespasser in settled possession is entitled for injunction (even against the true owner), for, he cannot be evicted otherwise than on “due process of law” (by the true owner).

    ●    See: Rame Gowda v. M.Varadappa Naidu (2004 (1) KLT OnLine 1239 (SC) = (Three
Judge Bench decision).

    ●    The other view is that no injunction can be passed (against the true owner) in a suit filed by the person in unlawful possession.

    ●    See: Kesar Bai v. Genda Lal, (2022 (5) KLT OnLine 1041 (SC); Chenaji v. Maniben Jagmalbhai (2022 (2) KLT OnLine 1109 (SC) (Two Judge Bench decisions).

Settled Possession v. Rights of True Owner

When the relief of injunction or possession sought for in a suit is negated, and the title of the defendant as the owner is upheld, can the defendant recover the property without instituting a (second) suit, i.e., otherwise than on “due process of law“?

    ●    Earlier consistent view (See: Aarti v. Aruna Gautham ((2015) 1 RCR Civil 160) was that the true owner was not legally entitled to eject the trespasser by force (otherwise than on due process of law), especially when the trespasser is in settled possession.

    ●    Present view: In Prahladji Chenaji v. Maniben Jagmalbhai (2022 (2) KLT OnLine 1109 (SC) (Followed in: Kesar Bai v. Genda Lal (2022 (5) KLT OnLine 1041 (SC)
it is held that the ‘due process’ or ‘due course’ condition was satisfied the
moment the rights of the parties were adjudicated upon (in the first round), and therefore the possession of the plaintiff is not lawful or ‘rightful‘.

It is held in Prahladji Chenaji as under:

    ●    “Where once a suit is held not maintainable, no relief of injunction can be granted.
Injunction may be granted even against the true owner of the property, only when the person seeking the relief is in lawful possession.“

    ●    Note: Kesar Bai v. Genda Lal (2022 (5) KLT OnLine 1041 (SC) (M.R.Shah, Sudhanshu
Dhulia, JJ.) calls for reading along with Prahladji Chenaji v. Maniben Jagmalbhai(2022 (2) KLT OnLine 1109 (SC)  (M.R. Shah, B.V. Nagarathna, JJ.).

View Prevailed in India – Courts Protect Settled Possession

    ●    Possession by itself is a substantive right recognised by law.

    ●    Nair Service Society Ltd. v. K.C. Alexander (1968 KLT 182 (SC).

●  Kuttan Narayanan v. Thomman Mathayi (1966 KLT 1).

    ●    Phirayalal Kapur v. Jia Rani (1972 KLT OnLine 1191 (Del.)

    ●    Nallammal v. Ayisha Beevi (2017-5 Mad. LT 864).

It is trite law that courts protect settled possession.

    ●    Poona Ram v. Moti Ram (2019 (1) KLT OnLine 3026 (SC).

    ●    Aarti v. Aruna Gautham (2015 1 RCR (Civil) 160).

    ●    Rame Gowda v. M. Varadappa Naidu (2004 (1) KLT OnLine 1239 (SC).

    ●    Krishna Ram Mahale v. Shobha Venkat Rao (1989 (2) KLT OnLine 1020 (SC).

    ●    Ram Rattan v. State of Uttar Pradesh ((1977) 1 SCC 188).

    ●    Puran Singh v. The State of Punjab (1975 KLT SN 31 (C.No.75) (SC).

    ●    Munshi Ram v. Delhi Administration (1967 KLT OnLine 1268 (SC).

Even Rightful Owner to Take Recourse to law; He cannot take the law in his own hands

InRame Gowda v. M. Varadappa Naidu (2004 (1) KLT OnLine 1239 (SC) our Apex Court (R.C. Lahoti, B.N. Srikrishna, G.P. Mathur, JJ.) observed that the law will come to the aid of a person in peaceful and settled possession by injuncting even a rightful owner. It is held as under:-

    ●    “8. It is thus clear that so far as the Indian law is concerned the person in peaceful
possession is entitled to retain his possession and in order to protect such
possession he may even use reasonable force to keep out a trespasser.

    ●    A rightful owner who has been wrongfully dispossessed of land may retake
possession if he can do so peacefully and without the use of unreasonable force.

    ●    If the trespasser is in settled possession of the property belonging to the rightful owner, the rightful owner shall have to take recourse to law; he cannot take the law in his own hands and evict the trespasser or interfere with his possession.

    ●    The law will come to the aid of a person in peaceful and settled possession by injuncting even a rightful owner from using force or taking law in his own hands, and also by restoring him in possession even from the rightful owner (of course subject to the law of limitation), if the latter has dispossessed the prior possessor by use of force.

          ●          In the absence of proof of better title, possession or prior peaceful settled possession is itself evidence of title. Law presumes the possession to go with the title
unless rebutted. The owner of any property may prevent even by using reasonable force a trespasser from an attempted trespass, when it is in the process of being committed, or is of a flimsy character, or recurring, intermittent, stray or casual in nature, or has just been committed, while therightful owner did not have enough time to have recourse to law. In the last of the cases, the possession of the trespasser, just entered into would not be called as one acquiesced to by the true owner.” (quoted in: Subramanya Swamy Temple, Ratnagiri v. V. Kanna Gounder ((2009) 3 SCC 306); Poona Ram v. Moti Ram (2019 (1) KLT OnLine 3026 (SC).

What is the settled possession or effective possession of a person without title which would entitle him to protect his possession even as against the true owner was made clear in Rame Gowda v. M.Varadappa Naidu (2004 (1) KLT OnLine 1239 (SC). It reads as under:

● “9. …The “settled possession” must be (i) effective, (ii) undisturbed, and (iii) to the knowledge of the owner or without any attempt at concealment by the trespasser. The phrase “settled possession” does not carry any special charm or magic in it; nor is it a ritualistic formula which can be confined in a straitjacket. An occupation of the property by a person as an agent or a servant acting at the instance of the owner will not amount to actual physical possession.” (quoted in Samarpan Varishtha Jan Parisar v. Rajendra Prasad Agarwal (2022 (3) KLT OnLine 1140).

Even the Rightful Owner cannot Eject a Trespasser with Force

In Karthiyayani Amma v. Govindan (AIR 1980 Ker.224), the Kerala High Court
consideredthe question whether the rightful owner can eject a trespasser in possession with force; and whether a person in illegal possession could sustain a suit for injunction against the true owner, from forcibly dispossessing him from the property. It was held as under:

    ●    The ultimate position, therefore, reduces itself to this:

    ●    Can a person in possession without title sustain a suit for injunction against the rightful owner if he proves possession? Yes.

    ●    In this case, plaintiff is found to in be possession. On the finding, he should be granted the injunction prayed for. A person in possession can be evicted only in due process of law. Even the rightful owner cannot eject him with force. If he cannot be evicted with force, he continues to be in possession and he can resist invasion of his possession by everyone including the rightful owner. If the rightful owner threatens his peaceful possession, he can approach Courts of Law and pray for the equitable relief of injunction to protect his possession”. (Followed in: Aiysumma v. Mariyamma (1994 (1) KLT 570).

It is pointed out in Suresh v. Ashok Girdharilal Chandak (2016 1 MHLJ 171) that ‘bearing
in mind the basic principle of law in civil jurisprudence that even a trespasser cannot be evicted without following due process of law and no one can be allowed to take law into his own hands to recover possession of the property without following due process of law and without proving title to the immovable property in possession of a person holding actual physical possession thereof’.

Divergent Views

It is observed by our Apex Court, in Prataprai N. Kothari v. John Braganza (AIR 1999 SC 1666), as under:

    ●    “It is quite obvious that the learned single Judge had not taken note of the
 principle of possessory title or the principle of law that a person who has been in long continuous possession can protect the same by seeking an injunction against any person in the world other than the true owner. It is also well
settled that even the owner of the property can get back his possession only by
resorting to due process of law.

Divergent Views are set out in Sopan Sukhdeo Sable v. Assistant Charity
Commissioner(2004 (1) KLT OnLine 1257 (SC) also. They are the following:

    ●    first, a person in settled possession cannot be disposed by the owner except by recourse of law.

    ●    second, a trespasser in possession cannotnot seek injunction against the true owner.

In this case, a forceful postulation is posed-

A trespasser ousted can seek restoration of possession under Section 6 of the
Specific Relief Act, 1963, even, against the true owner. If so, can’t the trespasser seek injunction as to possession, against the true owner?

In Sopan Sukhdeo Sable v. Assistant Charity Commissioner (2004 (1) KLT OnLine 1257 (SC) the appellants were the plaintiffs whose suit was rejected in terms of Order VII, Rule 11 of the Code of Civil Procedure. It is held in this decision as under:

    ●    “24. There aretwo different sets of principles which have to be borne in mind regarding course to be adopted in case of forcible dispossession. Taking up the first aspect, it is true that where a person is insettled possession of property, even on the assumption that he has no right to remain in property, hecannot be disposed by the owner except by recourse of law. This principle is laid down in Section 6 of the Specific Relief Act, 1963. That Section says that if any person is dispossessed without his consent from immovable property otherwise than in due course of law, he or any person claiming through him may, by suit, recover possession thereof, notwithstanding any other title that may be set up in such suit. That a person without title but in “settled” possession – as against mere fugitive possession – can get back possession if forcibly dispossessed or rather, if dispossessed otherwise than by due process of law, has been laid down in several cases. It was so held by this Court in

    ●    Yashwant Singh v. Jagdish Singh (1968 KLT OnLine 1133 (SC).

    ●    Krishna Ram Mohate v. Mrs.Shobha Venkata Rao (1989 (2) KLT OnLine 1020 (SC).

    ●    Ram Rattan v. State of U.P.((1977) 1 SCC 188), and

    ●    State of U.P. v. Maharaja Dharmender Prasad Singh (1989 (1) KLT OnLine 1040 (SC).

The leading decision quoted in these rulings is the decision of the Bombay High Court in

    ●    K.K.Verma v. Union of India (AIR 1954 Bom.358).

    ●    25. Now the other aspect of the matter needs to be noted. Assuming a trespasser ousted can seek restoration of possession under Section 6 of the Specific Relief Act, 1963 can the trespasser seek injunction against the true owner?

          ●          This question does not entirely depend upon Section 6 of the Specific Relief Act,
but mainly depends upon certain general principles applicable to the law of
injunctions and as to the scope of the exercise of discretion while granting
injunction.

●  In Mahadeo Savlaram Sheike v. Pune Municipal Corporation (1995 (1) KLT
OnLine 952 (SC), it was held, after referring to Woodrofe on “Law relating to
injunction: L.C.Goyal Law of injunctions:

    ●    David Bean Injunction Jayce on Injunctions and other leading Articles on the
subject that the appellant who was a trespasser in possession could not seek injunction against the true owner.

    ●    In that context this Court quoted Shiv Kumar Chadha v. MCD (1993 (1) KLT
OnLine 1074 (SC) wherein it was observed that injunction is discretionary and that:

    ●    “Judicial proceedings cannot be used to protect or to perpetuate a wrong
committed by a person who approaches the Court.”

    ●    26. Reference was also made to Dalpat Kumar v. Prahlad Singh (1992 (1) KLT OnLine 934 (SC) in regard to the meaning of the words prima facie case and
balance of convenience and observed inMahadeo’s case (supra) that:

    ●    “It is settled law that no injunction could be granted against the owner at the
instance of a person in unlawful possession.”

    ●    27. The question of forcible possession as claimed is also a matter which can be pressed into service by the parties before the trial Court and if raised the Court shall deal with it considering its relevance to the suit and accept it or otherwise reject the plea in accordance with law. We do not think it necessary to express any opinion in that regard.

    ●    28. …. Looking into the nature of dispute it would be appropriate if the trial Court makes an effort to complete the trial within six months from the date of the
judgment. The parties are directed to co-operate for disposal of the suit early within the stipulated time. The appeal is allowed to the extent indicated without any order as to costs.”

No Injunction in favour of a Trespasser, against the ‘True Owner’

Following decisions also say – no injunction can be passed, in favour of a trespasser, against the ‘true owner’ of a property

    ●    Tamil Nadu Housing Board v. A.Viswam (1996 (1) KLT OnLine 948 (SC).                Premji Ratansey Shah v. Union of India ((1994) 5 SCC 547).

    ●    Shiv Kumar Chadha v. Municipal Corporation of Delhi (1993 (1) KLT OnLine 1074 (SC).

RECENT VIEW OF THE APEX COURT

    ●    Plaintiff who Failed to get Declaration on Title is Not in “Lawful Possession”; he is not entitled for injunction against the true owner.

    ●    Once the defendant is found to be the Rightful Owner, the argument that he Can Resume Possession only by Adhering “Due Process of Law” is to be “Rejected Outright“.

In Prahladji Chenaji v. Maniben Jagmalbhai (2022 (2) KLT OnLine 1109 (SC) our Apex Court made clear the scope of the issues arose for consideration as under:

● “7. Therefore, the short question, which is posed for the consideration of this Court is, whether, in a case where theplaintiff has lost so far as the title is concerned and the defendant against whom the permanent injunction is sought is the true owner of the land, whether the plaintiff is entitled to a relief of permanent injunction against the true owner, more particularly, when the plaintiff has lost so far as the title is concerned and can thereafter the plaintiff be permitted to contend that despite the fact that the plaintiff has lost so far as the title is concerned, her possession be protected by way of injunction and that the true owner has to file a substantive suit claiming the possession.”

In this case the Court observed to the following effect: 

    ●    The plaintiff isnot entitled to any injunction and/or protect his possession against
the rightful owner, more particularly, when he fails to get the declaratory relief with respect to the title.

    ●    In a suit for permanent injunction to restrain the defendant from interfering
with the plaintiff’s possession, the only thing the plaintiff will have to establish
is that as on the date of the suit, he was in lawful possession of the suit
property and the defendant has tried to interfere or disturb his possession
(Anathula Sudhakar v. Buchi Reddy(2008 (3) KLT SN 26 (C.No.30) SC  relied on).

    ●    The plaintiff, who has failed to get any declaratory relief on title cannot be said to be in “lawful possession”. Only when the person seeking the relief is in
lawful possession and enjoyment of the property, he is legally entitled to be in
possession, and not to disposes him, except in due process of law.

    ●    The contention of the plaintiff that even if the plaintiff failed to get the declaratory relief and the suit is dismissed, once the plaintiff is found to be in possession, her possession cannot be disturbed except in due process of law and the only
remedy available to the defendant would be ‘to file a substantive suit to get back the possession is noticed only to be rejected outright’.

    ●    In Maria Margarida Sequeira Fernandes v. Erasmo Jack de Sequeira (2012 (2) KLT SN 46 (C.No. 47) (SC) it was held that the ‘due process’ or ‘due course’ condition was satisfied the moment the rights of the parties were adjudicated upon by a court of competent jurisdiction, and that it did not matter who brought the action to court.

    ●    InMaria Margarida Sequeira Fernandes v. Erasmo Jack de Sequeira (2012 (2) KLT SN 46 (C.No.43) (SC), the Court has approved the following findings of the High Court of Delhi in Thomas Cook (India) Ltd. v. Hotel Imperial (2006 (1) KLT OnLine 1151 (Del.).

    ●    ‘In this context, when a party approaches a court seeking a protective remedy such as an injunction and it fails in setting up a good case, can it then say that the other party must now institute an action in a court of law for enforcing his rights i.e., for taking back something from the first party who holds it unlawfully, and, till such time, the court hearing the injunction action must grant an injunction
anyway? I would think not.’

●  Once therights of the parties are adjudicated and the defendant is held to be
the true owner, it can be said that due process of law has been followed and
thereafter theplaintiff is not entitled to any permanent injunction against the true owner.

Kesar Bai v. Genda Lal – H.C. and S.C. Approached in Different Perspectives

Kesar Bai v. Genda Lal(2022 (5) KLT OnLine 1041 (SC)  arose from a suit seeking declaration of ownership and permanent injunction. The findings of the High Court were the following:

    ●    the plea of ownership claimed by the plaintiff based on a sale deed and the plea of adverse possession were contrary to each other;

    ●    the plaintiffs could not have been permitted to take both the pleas at the same time;

    ●    but, in view of the fact that the plaintiff was in possession of the suit land since the execution of the said sale deed, the plaintiff was entitled for injunction on the basis of his possession.

Setting aside the High Court judgment the Apex Court held as under:

    ●    “The possession/alleged possession of the plaintiffs could not have been
protected by passing a decree of permanent injunction in favour of the plaintiffs”.

Logical Consequence of Prahladji Chenaji and Kesar Bai is Displeasing

In both Prahladji Chenaji v. Maniben Jagmalbhai (2022 (2) KLT OnLine 1109 (SC) =  and Kesar Bai v. Genda Lal (2022 (5) KLT OnLine 1041 (SC) it is not specifically stated that-

    ●    (i) the true owner can resume possession using force, and

    ●    (ii) the suit for recovery by the true owner is barred.

In both these decisions, it was not required to pronounce – when the (settled) possession of the land could not be peacefully re-taken by its true owner, how he could repossess it. It appears that he has to seek legal remedies by filing a civil suit itself, for, there is no summary-remedy known to law for recovery of possession (such as ‘revival of decree’ by a summary procedure; or executing such a decree, by the defendant).

Still, it may be correct to state that the consequent natural outcome of these decisions is the following:

● The defendant (rightful owner) need not go for a further suit, for recovery, under ‘due process’ doctrine.

Relevant  Considerations as  to  Granting  Injunction  Against  the  True  Owner

In Shiv Kumar Chadha v. Municipal Corporation of Delhi (1993 (1) KLT OnLine 1074 (SC) = (1993) 3 SCC 161), with regard to ordering temporary injunction, a Three Judge Bench of our Apex Court, held as under:

● “A party is not entitled to an order of injunction as a matter of course. Grant of injunction is within the discretion of the court and such discretion is to be exercised in

favour of the plaintiff only if it is proved to the satisfaction of the court that unless the defendant is restrained by an order of injunction, an irreparable loss or damage will be caused to the plaintiff during the pendency of the suit. The purpose of temporary injunction is, thus, to maintain the status quo.”

Observing that it is a settled law that injunction would not be issued against the true owner, it is held in Premji Ratansey Shah v. Union of India ((1994) 5 SCC 547), as under:

● “The said sale is a void sale and the petitioners, therefore, cannot derive any interest under the agreement of sale to resist the possession of the lawful owner nor could the declaration sought for be given. The question, therefore, is whether an injunction can be issued against the true owner. Issuance of an order of injunction is absolutely a discretionary and equitable relief. In a given set of facts, injunction may be given to protect the possession of the owner or person in lawful possession. It is not mandatory that for mere asking such relief should be given. Injunction is a personal right under Section 41(j) of the Specific Relief Act, 1963; the plaintiff must have personal interest in the matter. The interest of right not shown to be in existence, cannot be protected by injunction.”

Relevant considerations as to granting an injunction in favour a trespasser, against the true owner, are the following (as adumbrated in Sopan Sukhdeo Sable v. Assistant Charity Commissioner (2004 (1) KLT OnLine 1257 (SC)).

    ●    (i) general principles applicable to the law of injunctions,

    ●    (ii) discretion exercised by the court while granting injunction,

    ●    (iii) Principles analogous to Section 6 of the Specific Relief Act which expressly lays-down that a trespasser, ousted otherwise than on due process of law, can seek (even) restoration of possession, even against true owner.

Conclusion

It is beyond doubt –

    ●    A person in settled possession (even if he is a trespasser) cannot be ejected
by force, otherwise than on due process of law, by the rightful owner.

    ●    After a Court finding, that the possession of the plaintiff is not lawful or
rightful, it is not proper to grant an injunction in his favour, disregarding the
‘finding’.

There remains something unexplained in between the above two propositions. That is, when no injunction can be granted in favour of a person in settled possession (on the finding that he is a rank trespasser), the resultant situation would indirectly permit the true owner to take the law in his hands and to use force to eject the trespasser. It goes without saying that the law cannot endorse the view that the rightful owner is legally entitled to eject the trespasser, otherwise than on due process of law; when the trespasser is in settled possession.

Therefore, cogent legal principles have to be evolved and an authoritative
pronouncement has to be penned-down, taking note of conflicting views on this subject and reconciling the apparent divergent views.

From  Robot  Judges  to  Transcribers  of  Court  Hearings  in  Real Time :
Artificial Intelligence as a Tool to Aid the Delivery of Justice

(By Dr. Raju Narayana Swamy, IAS)

Introduction

With the advent of big data analytics, machine learning and artificial intelligence (AI), the fundamental questions of law enforcement and justice are being reconsidered across the globe. Law is based on two important aspects – predictability and precedence and many are of the opinion that AI can greatly help align these processes. While disagreements are galore as to whether these technologies represent a panacea or whether they will further exacerbate social divisions and endanger fundamental liberties, the two camps agree that the new technologies usher in important consequences. Infact, there are three main ways in which technology is already reshaping the judicial system. First and at the most basic level, technology is assisting to inform, support and advise people involved in the justice system (supportive technology). Second, technology can replace functions and activities that were previously carried out by humans (replacement technology) – the concept of online courts being a classic example. Finally, at a third level, technology can change the way that judges work and provide for very different forms of justice (disruptive technology), particularly where processes change significantly and predictive analytics may reshape the adjudicative role. It is at these second and third levels that issues emerge in terms of the impact of technology on the role and function of a judge. Questions raised in this context include

a)   Can AI enabled programmes extract the accurate position of law from a mass of precedents?

b)   Can robots decide questions of law?

c)   Who should be accountable for semi- automated decisions?

d)   How should responsibility be allocated within the chain of actors when the final decision is facilitated by the use of AI?

e)   Is the “due process of law” denied to the accused when AI systems are used at some stage of the criminal procedure?

f)   Can judgements be replaced by data?

These questions are all the more relevant now that AI has made a lot of inroads within justice systems – in Estonia for adjudicating small claims (robot judges), in China, Russia and Mexico for giving legal advice/approving pensions, in Malaysia towards supporting sentencing decisions, in Austria for sophisticated document management, in Colombia and Argentina for identifying urgent cases within minutes, in Abu Dhabi for predicting probability of settlement and in Singapore for transcribing court hearings in real time -- to name a few.

Artificial Intelligence : The Concept

Among the several definitions of AI, one of the most relevant in the context of justice systems is the one given by the Commissioner for Human Rights:

“An AI system is a machine-based system that makes recommendations, predictions or decisions for a given set of objectives. It does so by

i)     utilizing machine and /or human-based inputs to perceive real and/or virtual environments

ii)    abstracting such perceptions into models manually or automatically and

(iii)  deriving outcomes from these models, whether by human or automated means, in the form of recommendations, predictions or decisions.”

Put in simple terms, AI is a type of computer technology which is concerned with making machines that carry out work in an intelligent way, similar to the way a human would. The technology has evolved from obeying pre-designed and pre-configured codes into a more sophisticated end product, imbued with human-like cognition. AI in order to work needs “big data”. Luc Julia, one of the creators of the digital assistant Siri evokes this image, “if a machine is to be able to recognise a cat with 95% certainty, we need about 1,00,000 pictures of cats.”¹It needs to be mentioned here that AI comes in many different forms such as speech recognition and image recognition. There are two main strands to current AI technology – one being the rules-based approach and the other based on data analysis. The former underlies many of the document creation products that are used both by lawyers and the lay public, including products such as Legal Zoom. This technology more generally underlies what are called “expert systems” and faces inherent limitations. The latter looks for patterns in large bodies of data and finds relationships and correlations from which it can draw conclusions. This is the kind of AI that underlies products such as translation software and autonomous vehicles.

It needs to be mentioned in this context that the “strong” AIs of science-fiction literature do not exist. This type of AI which would be equipped not only with intelligence but also with conscience remains purely fictional. The machine learning systems currently being developed are described as “weak” AIs and are capable of extracting complex patterns and learning from large volumes of data efficiently and often with high levels of predictive accuracy.

     Experiences in other jurisdictions

a) Estonia

Estonia has announced a plan to delegate some lower value claims to an online court powered exclusively by AI.²The approach includes possible use of ade novo appeal to a human judge.³While providing potentially enforceable opinions, this amounts more to a form of AI powered mediation with the litigants free to pursue their legal claims if they are unhappy with the AI generated result. But this may differ from traditional mediation in that simply walking away may not be an option if the AI decree is enforceable – the disappointed litigant will need to invest in and commit to a human-driven judicial process in order to escape the decree.

b) China

China limits AI to specific kinds of easy cases where the decision parameters are simple and clear.⁴In Zhejiang province, for example, several thousand dangerous drivingand theft cases have been initially decided by AI software subject to review by a human judge. The large sample of similar cases and well –defined determinants of outcome have made this possible. Overtime, the level of human review could conceivably be dialled down should experience show that these cases are really as easy as believed. The Chinese experience however points out that even for suggesting outcomes, not all cases are suitable for AI. In order to get to statistically significant results, there must be a large pool of cases with a limited number of factors that can affect outcomes. To put it differently, even in a country as committed to capturing data in its judicial system as China, not all kinds of cases are amenable. In fact, China’s ambitious AI system that sought to model intentional murder failed as too few such cases existed to provide an adequate sample and as intentional murder presents in a multiplicity of ways making recognition and characterization more difficult.

China is also a pioneer in using AI to make sure that the resolution of a dispute by a particular court is in line with the results reached by other courts on similar facts and legal issues. Though China is nominally a civil law country, this process has the effect of bringing something like “stare decisis” to Chinese jurisprudence.   In some areas of China, AI robots greet visitors to the court house and help guide them to the appropriate location. There is no reason why this guidance cannot become more sophisticated and helpful over time thereby helping litigants to produce legal forms that are in accord with the requirements of the court and guide them with regard to the court process. Practical examples in this regard include a robot called Xiao Fa which was put in to operation at the law suit center at Beijing No.1 Intermediate People’s Court which can answer questions verbally or take queries on its screen with a key board and the AI enabled robot chatbot Fa Xiaotao using which Wusong Technology is working on digitizing the way courts function.

Mention also needs to be made here of the “smart court navigation system” and “intelligent push system” launched by the Supreme People’s Court in 2018, Beijing’s “rui judge” intelligent research system, Shanghai’s “206” criminal case intelligent auxiliary case system and Hebei’s “smart trial 1.0” trial support system. The smart court SOS in particular is a system powered by machine learning which is being used at various courts that connects to the desk of every functioning judge across the country. It automatically screens out cases for the purpose of reference, recommends relevant laws and regulations, drafts legal documents and alters perceived human errors if any in a court’s judgement. Moreover through facial recognition techniques, Chinese officials have evolved systems to figure out suspects from an ocean of individuals inside an arena which without man-made intelligence innovation would have been impossible.China is also experimenting automation in prisons. A jail that houses some of China’s most high profile criminals is reportedly installing an AI network that will be able to recognize and track every prisoner round the clock and alert guards if anything seems out of place.

c) USA

Judiciary in the US has already started using an AI programme called Public Safety Assessment (PSA) before deciding whether or not an accused should be released on bail.⁵This software calculates the risk of recidivism and flight ( ie) risk of defendant again committing the crime and risk of his escape from the clutches of law. The AI software calculates the risk score by taking into account several factors such as

i)     whether the current offence is violent

ii)    whether the person had a pending charge at the time of the current  offence

iii)   whether the person has a prior misdemeanour/felony conviction

iv)   person’s age at the time of arrest

v)    how many times the person failed to appear at a pre-trial hearing in the last two years

Other factors which can assist judges in arriving at bail, parole and probation decisions can also be incorporated into the algorithm.

Mention must also be made of the SSL (Strategic Subject List) introduced in Chicago to predict those individuals who are likely to be involved in gun violence. US also makes use of “e Discovery” – an automated investigation of electronic information before the start of a court procedure.  e Discovery relies on machine learning. A more controversial tool COMPAS (Correctional Offender Management Profiling for Alternative Sanctions) has been used to assess recidivism risk. COMPAS takes in 137 items of information and comes up with a risk score from 1 to 10. However, it has been criticized as biased against black defendants. In fact, the NGO Pro Publica analysed COMPAS assessments and published an investigative report arguing that the algorithm was racially biased.

No discussion on COMPAS will be complete without a reference to the judgement in Loomis v. Wisconsin (2016). The algorithm identified Loomis as an individual who presented a high risk to society and the first instance Court decided to refuse his request to be released on parole. In the appeal, the Supreme Court of Wisconsin decided that the recommendation from the COMPAS algorithm was not the sole ground for refusing his request to be released on parole and hence the decision of the Court did not violate Loomi’s due process right. The Court was infact neglecting the strength of the automation bias. By claiming that the lower Court had the possibility to depart from the proposed algorithmic risk assessment, the Court ignored the social psychology and human-computer interaction research on the biases involved in all algorithmic decision making systems which shows that once a hi-tech tool offers a recommendation, it becomes extremely burdensome for a human decision maker to refute such a recommendation.

d) UK

A tool called HART (Harm Assessment Risk Tool) has been used by the UK to forecast which criminals are most likely to reoffend and suggest what kind of supervision a defendant should receive in prison.⁶The tool uses random forest forecasting which is a machine learning technique. HART was developed in collaboration with academicians at Cambridge and is built on five years’ worth of data on people. It makes predictions on the basis of 33 different metrics, 29 of which relate to past criminal history and the remainder to demographic data such as the individual’s age, gender and postcode7The usage of postcodes  as a metric of analysis has garnered repeated criticism of this tool as critics argue that such a situation amplifies existing patterns of offending.8The application has also shown clear difference in opinion between human and algorithmic forecasts. In fact, comparison in the use of the algorithm found that the model and officers agree only 56.2% of the time.

e) Brazil

Brazil uses an AI tool called VICTOR to conduct preliminary case analysis to reduce the burden on the Court.⁹The tool supports the Brazilian Supreme Court by providing analysis of cases that reach the Court using document analysis and natural language processing tools. The goal of this tool is to accurately and quickly track resources that deal with issues of “general repercussions.” This concept is intended to ensure that only questions that are truly relevant to the wider society are heard by the Court. To put it a bit differently, appeals that reflect only the unsuccessful party’s unwillingness to accept defeat are excluded.

VICTOR has been highly beneficial for courts in Brazil. Earlier, the exercise was conducted by civil servants based on binding precedents and would take about 40 minutes for each law suit. VICTOR can do this exercise in five minutes.

However, a criticism in the pipeline is that appellants are not informed when VICTOR is used as its pilot version randomly picks up appeals to evaluate. This is in possible violation of the Brazilian Data Protection Law which demands that decision making should be fair, transparent and informed.

f)  A few other countries

In the Middle East, in collaboration with the private sector, Abu Dhabi Judicial Department as a part of their “Justice Intelligence” Project has been using technology to predict the possibility of settlement of cases.¹⁰The tools that are being used can predict the probability of settlement by upto 94% of the time. In Argentina and Columbia, a tool called Prometea has been used by the Public Prosecutor’s Office of Buenos Aires and the Constitutional Court of Columbia respectively to identify urgent cases in just two minutes which would normally take a human being 96 days.¹¹In Singapore, a speech translation system has been deployed by Courts. The tool utilizes neural networks trained with language models and domain- specific terms to transcribe court hearings in real time, thus allowing judges and parties to review oral testimonies in Court instantaneously.¹²
In countries like Russia and Mexico, robots are providing services like legal advice to citizens and aiding judges to identify if pensions should be granted. In Austria, AI is being used for sophisticated document management and as a digitization assistant of existing analogue files. In Malaysia, AI is being used to support sentencing decisions.¹³

The Indian Saga

AI in the Indian judiciary is still in its nascent stages of development. The advent of AI within Indian Courts was initiated on 26^th November 2019 with the launch of a neutral translation tool called SUVAAS (Supreme Court Vidhik Anuvaad Software) which has been trained using machine learning processes. It has the capability of translating English judgements and daily orders into nine vernacular scripts. The Supreme Court’s AI Committee is also working on a composite new tool named SUPACE (Supreme Court Portal for Assistance in Court Efficiency) which will target different processes like data mining, legal research, projecting case progress etc.

The AI-powered work flow of SUPACE has four parts:

a) File Preview

The case files, typically available as PDFs, can also be converted into text. There is also a search tool to browse through all files

b) Chatbot

The text and voice enabled chatbot helps to give a quick overview of the case in a matter of minutes by answering simple questions such as “ What is the matter about?” or “Which fundamental rights of the petitioner are violated?”. Chatbot can switch between documents to fetch the right answer while allowing the user to check the source of the answer. This bot suggest further questions to be asked for better understanding and the entire question summary can be printed by the user.

c) Logic Gate

This fact extraction system of the chatbot is divided into four parts : Synopsis, FAQs, Evidence and Case Law. These give information about the case such as overview, chronology, judgement and so on. With enough training and refinement of the algorithm, there will come a time when any and every question, factual or contextual, will be answered by the chatbot.

d) Notebook

This is the integrated word processor which truly makes the tool an end –to- end system. A brief summary of the case can be prepared by collating all information auto-extracted from the database using the AI .In addition, voice dictation can be used to prepare notes on this comprehensive drafting tool. Therefore without typing a word, a summary document is ready as a soft or hard copy.

On the research front, IIT Kharagpur has released an AI- based method to automate reading of legal case judgements. It is based on deep neural models to understand the rhetorical role of sentences. It also needs to be mentioned here that the pandemic has led to a surge in discussion around increasing digitization through the e Courts Project, creation of virtual courts and the potential of Online Dispute Resolution (ODR) and that within this conversation, AI has become an increasing talking point. However, a word of caution is needed here – while pilots are promising, there is a need to identify steps for scaling these technologies and their adoption.

Is AI a Panacea?

The question revolves around a fundamental issue: Will we as a society ever be willing to delegate fundamental rule - making powers and assign assertion of the legitimacy of the state to non-human entities ? Only by matching the real potential of AI with the full range of judicial functions can we give a non-hyperbolic assessment. The reality is that the current capability of AI is limited to specialised tasks and the roles of judges are so generalised that there is no near-term possibility of AI wholly and satisfactorily displacing judges in high stake cases. The function of AI with the best evidence so far of success is structuring

large amounts of information which could make administration of justice more efficient. In other words, AI can be used partially – where human discretion may not be needed. An evolutionary step forward can be advancement in predictive big data policing instruments. There can be a two pronged strategy behind this. First, advancements in AI promise to make sense of enormous amounts of data and to extract meaning from scattered data sets. Second, they can be aimed at regulation of society at large and not just the fight against the crime. A classic example is ‘function-creep’ , Singapore’s total information awareness system programme.

AI tools can be used to penetrate deeply into the preparatory phase of the crime which is yet to be committed as well as to scrutinize already committed crimes. A distinction is however to be made between tools focusing on risky individuals (heat lists) and tools focusing on risky places (hot spots). A leaf can perhaps be drawn out of the experience of the Dutch children’s rights organization Terre des Hommes which was the first NGO to combat webcam child sex tourism by using a virtual character called Sweetie.

AI is not a kind of magic; it is technology with the capabilities and limitations inherent therein. The intelligence of AI is limited by the design and input of human programs. An excessive reliance on such systems may result in legal issues being decided by computer programs.The fact is that “algorithmic partiality” is entrenched in the method AI algorithms work.¹⁴For example in 2015, Google’s photograph application inaccurately labelled a photo of two dark individuals as gorillas since its calculation had not been prepared with suitable pictures of people of dark skin. In another matter, the AI judged beauty contest for the most part picked white members as victors since its training was done on pictures of white individuals.¹⁵These tools have the capacity to become prescriptive, potentially over shadowing case specific reasoning and reduce judicial decisions to purely statistical and algorithmic outcomes. In fact, there are two significant issues with a pervasive integration of AI within the justice system – value lock-ins which can stagnate legal and jurisprudential evolution and the alteration of the judiciary’s constitutional role under the doctrine of separation of powers. The impact of AI systems may have distorting effects on the fundamental cornerstones and architecture of liberal democracies including the limitation of political power by the rule of law. Human rights may also be impacted through the use of automated processing techniques and algorithms. To be more specific, in an AI–centric judiciary while fostering the rule of stare decisis, it is a plausible fall out that precedents become stagnant. Moreover as Yutaka Matsuo, a Japanese scholar pointed out, civil litigation especially divorce or property inheritance disputes may be better handled by people because it involves a lot of emotional factors.

The Road Ahead

The role of a judge is a complex one. It can incorporate activism, interactions with people, dispute settlement, case management, public and specific education activities, social commentary as well as adjudicatory functions that may be conducted with other judges or less commonly in some jurisdiction with lay people. Given this variation, it is difficult to determine how developments in AI may reshape the judicial role. Human judges are temperature-saavy and as participants in social life, they have the same ability to empathize with the general public and are committed to achieving empathetic justice. To put it a bit differently, against the backdrop of AI’s full penetration into the judiciary, the concern is not that “machines are starting to think like humans, but that humans are beginning to lose their unique ability to think and become vassals of machines.” Everyone and every case is unique. Each requires human judgement and the vital and very natural ability to empathy that AI systems cannot provide. Although AI will play a key role in the trial process in the years to come, it will be in a subordinate position – only assisting the judge to handle the case – the judge continuing to be the key and core of the trial work. Thus
co-bots rather that robots will play a role when we intend to apply AI to the field of law. The road ahead is perhaps one of utilizing AI in addition to people – as airplane pilots use autopilot.

Technological advances in the form of AI based programs will benefit the judges with increase in memory, enhancement in the ability to manage and process information as well as reduction in occurrence of fatigue. In international arbitration, the use of AI has been predicted for a variety of tasks, including appointment of arbitrators, legal research, drafting and proof-reading of written submissions, translation of documents, case management and document organization, cost estimations, hearing arrangements (such as transcripts or simultaneous foreign language interpretation) and drafting of standard sections of awards. There are several processes in the administration of law that are repetitive and mechanical (such as scheduling of hearings and e-filing) and the use of machine learning in these mechanisms can greatly enhance efficiency and improve case flow management. Decision making in areas like rate of taxation can be covered by AI and thus technology can play a significant role in tribunals like ITAT (Income Tax Appellate Tribunal). AI models like computer vision and natural language processing can be used to generate statements and evidence documents.  Leveraging such technology will help to reduce human dependency and errors in information input. To put it a bit differently, the initial focus of use of AI when it comes to improve the work of judges must be on document/case management and research.

In fact, the main categories where AI can be used at present are:-

a)   Advanced case – law  search engines

b)   Online Dispute Resolution

c)   Assistance in drafting deeds

d)   Analysis (predictive, scales)

e)   Categorization of contracts according to different criteria and detection of divergent or incompatible contractual clauses.

f)   Chatbots to inform litigants or support them in their legal proceedings.

The following tabulation speaks volumes for itself.

Application and Examples of AI in Legal Sector¹⁶

Over a period of time, these uses can lead to more sophisticated ones that require considerable methodological precautions as well as uses to be considered following additional in depth scientific studies. A day may also come when AI can be put to use successfully in areas considered today with most extreme reservations -- use of unbiased algorithms in criminal matters in order to profile individuals being a classic example.

At one level, AI is an alien form of intelligence and will be – even if it achieves generalized capabilities – no more like humans than reptilian visitors from another galaxy would be. To have such an intelligence create and extend laws, despite being so far removed from being a member of the body politic, comes up against the legitimacy of the judicial system. Whether our societies are ready to accept that involves issues far beyond technological capability. This is especially true in today’s milieu wherein the neutrality of AI remains constrained and where justice is like the top of a mast, swinging violently at the slightest movement of the hull.

References

1.   Zichun Xu (2022) Human Judges in the Era of Artificial Intelligence: Challenges and Opportunities,  Applied Artificial Intelligence, 36:1,2013652.

2.   Christopher Rigano (2019) Using Artificial Intelligence to Address Criminal Justice Needs, NIJ Journal 280.

3.   Mvea U (2018), Japan Considers Crime Prediction System using big data and AI, Japan Times, 24 June 2018 (Online).

4.   Zavrsnik A (2019), Algorithmic justice: algorithms and big data in criminal justice settings, Ekr.J.Criminol.

5.   Dewan S (2015) Judges Replacing Conjecture with Formula For Bail, The New York Times

6.   Ferguson AG (2017), The Rise of Big Data Policing : Surveillance, Race and the Future of Law Enforcement, NYU Press, New York.

7.   Freeman K (2016), Algorithmic Injustice : How the Wisconsin Supreme Court failed to protect due process rights in State Vs Loomis, NCJ.Law Technol 18(5)

8.   Tania Sourdin and Archie Zariski (eds)(2018), The Responsive Judge : International Perspectives, Springer Nature.

9.   Aryan A (2019), Law firms take baby steps in AI at increase efficiency and cut costs http://www.nishithdesai.com

10.  Branting K (2003), An Agenda for Empirical Research in AI and Law in evaluation of Legal Reasoning and Problem Solving Systems.

11.  Hali AC (2018), How law firms can benefit from Artificial Intelligence, https://www.lawtechnologytoday.org/2018/11/how-law-firms-can-benefit-from-artificial-intelligence/

12.  Hubert Dreyfus (1992) What Computers Still Can’t Do : A Critique of Artificial Reason, Cambridge, The MIT Press.

References

1    L.Julia,L’intelligence artificielle n’existe pas, First Edition, Paris 2019.

2    Erie Niiler, “Can AI be a Fair Judge in Court ? Estonia Thinks So “, WIRED (March 25, 2019,7.00 AM,https://www.wired.com/story/can-ai-be-fair-judge-court-estonia-thinks-so).

3    Tara Vasdani, From Estonian AI Judges to Robot Mediators in Canada,  UK, The Lawyer’s Daily, https://www.lexisnexis.ca/en-ca/ihc/2019/06/from-estonian-ai-judges-to-robot-mediators-in-canada-uk.page.

4    Jinting Deng,”Should the Common Law System welcome Artificial Intelligence : A Case Study of China’s Same – type Case Reference System” 3 GEO.L.TECH REV 223 (2019).

5    Arnold Foundation Launches Expansion of Public Safety Assessment Tool https://the crimereport.org/2018/04/25/arnold-foundation-launches-expansion-of-public-safety-assessment-tool/

6    Marion Oswald and others “Algorithmic risk assessment policing models: lessons from the Durham HART model and Experimental proportionality” (2018)2 Information & Communication Technology Law

7    Patricia Nilsson, “UK police test if computer can predict criminal behaviour”, Financial Times 6^th February 2019.

8    Alexander Babuta, Marion Oswald and Christine Rinik, “Machine Learning Algorithms and Police Decision-Making: Legal, Ethical and Regulatory Challenges” (Royal United Services Institute for Defence and Security Studies 2018.

9    Daniel Becker and Isabela Ferrari, “ VICTOR: the Brazilian Supreme Court’s Artificial Intelligence: a beauty or a beast? “ https:// sifocc.org/app/uploads/2020/06/ Victor- Beauty- or-the- Beast.pdf

10   ADJD leverages judicial insights to transform the justice delivery process (SAS Institute)www.sas.com/en-ae/customers/adjd-judicial.html

11   Juan Corvalan and Enzo Cervini, Prometea experience: Using AI to optimize public institutions (Cendap, 1^st May 2020) and Irma Isabel Rivers, the implementation of new technologies under Columbian law and incorporation of artificial intelligence in judicial proceedings ( International Bar Association, 5 November 2020).

12   Michelle Chiang “State Courts and A STAR’s Institute for Infocomm Research Collaborate to Develop Real-time Speech Transcription System for Use in Courts”(State Courts, Singapore, 14 December 2017)

13   Olivia Miwil, “Malaysian judiciary makes history, uses AI in sentencing”, New Straits Times, 19 February 2020.

14   Dickson, B (2018)”What is algorithmic bias?” Available at https://bdtechtalks.com/2010102126/racist-ai-deep-learning-algorithms/

15   Artificial Intelligence beauty contest does not like black people, The Guardian, 8 September 2016.

16   Geethanjali Chandra, Ruchika Gupta and Nidhi Agarwal (2020), Role of Artificial Intelligence in Transforming the Justice Delivery System in COVID-19 Pandemic, International Journal on Emerging Technologies,11(3).

Production of Documents in Court:

Order XI, Rule 14 C.P.C. is Not Independent from Rule 12

(By Saji Koduvath, Advocate, Kottayam)

A puzzling question: Is ‘discovery’, under Rule 12 of Order XI, C.P.C., an inevitable ‘pre-step’ to order ‘production’ under Rule 14 of Order XI?

Answer: Yes.

The probe is surfaced for it is not specifically stated either in Rule 12 or in Rule 14 that the ‘discovery’ under Rule 12 is a ‘condition precedent’ for ordering ‘production’ under Rule 14; though obviously there is a nexus between ‘discovery’ and ‘production’. The sequence in which these provisions are arrayed also gives us cue to answer this problem.

Order XI Rules 12 & 14: And the apparent anomalies that seek explanations

Resolutions and Propositions

Analysis of Rule 12 and 14 impeccably establishes complementarity between these provisions, and unerringly settles that ‘Discovery’ of documents under Rule 12 of Order XI is an inevitable condition precedent for ‘Production’ of documents under Rule 14, as shown under:

1.  Rule 12 (for discovery) expressly allows a party to the suit to apply the Court for an order directing any other party to make ‘discovery on oath’.

2.  The party against whom discovery (on oath) is applied for is required, to file affidavit (under Rule 13). Rule 13 further requires him to place his ‘objections to produce’.

3.  Rule 12 directs that the documents sought for must relate to matters in question; that on the hearing of such application the Court may either refuse or adjourn the same; and that if the court is satisfied that such discovery is not necessary, make such order, as the court thinks fit.

* Though ‘production’ under Rule 14 is the serious matter when compared to ‘discovery’ under Rule 12, there is no provision in Rule 14 (as in Rule 12) for –

*  (i)  applying for production;

*  (ii)  placing objections or filing affidavit;

*  (iii)  directing hearing by court, and passing an order as the court thinks fit.

4. Failure to produce affidavit under Rule 12 invites stringent actions under Rule 21 (suit dismissed, defence struck out, etc.).

*  (i) Effect of non-production of documents under Rule 14 is not specified in Rule 21;

*  (ii) court can, in such an eventuality, take adverse presumption only, (under Section 114, Illus.- g.of the Evidence Act).

We see significant and severe actions as regards ‘discovery of documents’ under Rule 12 (that is, filing affidavit and objection, hearing, dismissal of suit, striking out defence, etc.). And, no such significant actions are attached to Rule 14. Why?

* The only answer is that the legislature took Rule 12 and 14 as concomitant provisions. That is, ‘production’ of a document under Rule 14 comes into consideration only if it is ‘discovered’ under Rule 14.

Legislative Intention – Concordance Between ‘Discovery’ and ‘Production’

The intention of the legislature is definite from the nexus between Rule 12 and 14; that is, Rule 14 (ordering production of documents) is depended upon the discovery under Rule 12.

The indisputable reciprocity between ‘discovery’ and ‘production’, and the sequence in which the they are arrayed in Rule 12 and 14, ensure that compliance of Rule 12 is a necessary pre-condition for ordering ‘production’ under Rule 14. Therefore, it is definite that discovery under Rule 12 partakes its ‘production’ (as the next step, under Rule 14).

The afore-stated propositions are fortified by the following:

1. Ordering production, under Rule 14, is purely a discretionary matter with court.

*   Rule 14 reads – “It shall be lawful for the Court … to order the production … of such of the documents in his possession or power … ”.

*    Import of these words is obvious in itself. That is, wide-open discretion is given to the court for ordering production under Rule 14.

*    It is unquestionable that a party to the suit has no vested right to seek ‘production’ of any document under Rule 14 even after ‘discovery’ of the same under Rule 12.

2.  Similarly, the party to the suit has no vested right to seek production of ‘all documents’ discovered under Rule 12.

Documents Admitted in Pleadings – Can Production be Ordered under Rule 14?

Now, a question may reasonably and logically arise – Assume, it is admitted in pleadings or affidavit by a party that certain relevant documents are in his custody; can’t the court order production of those documents (directly) under Rule 14, on application of the other party?

*   The answer is No – for, the specific provisions of the CPC as to inspection (and to take copies) of documents referred to in pleadings or affidavits in Order XI Rule 15.*

*   * Note: The rule is that general provisions should yield to specific provisions
(J.K. Cotton Spinning & Weaving Mills Co. Ltd. v. State of U.P. (1961 KLT OnLine 1231 (SC) = (1961) 3 SCR 185; U.P. SEB v. Hari Shankar Jain(1979 KLT OnLine 1012 (SC) = (1978) 4 SCC 16; Commercial Tax Officer, Rajasthan v. M/S Binani Cement Ltd.(2014 (2) KLT Suppl.34 (SC) = (2014) 3 SCR 1).

** Rule 15 Order XI C.P.C. reads as under:

* “15. Inspection of Documents Referred to in Pleadings or Affidavits. Every party to a suit shall be entitled at any time to give notice to any other party, in whose pleadings or affidavits reference is made to any document or who has entered any document in any list annexed to his pleadings or produce such document for the inspection of the party giving such notice, or of his pleader, and to permit him or them to take copies thereof; and any party not complying with such notice shall not afterwards be at liberty to put any such document in evidence on his behalf in such suit unless he shall satisfy the Court that such document relates only to his own title, he being a defendant to the suit, or that he had some other cause or excuse with the Court shall deem sufficient for not complying with such notice, in which case the Court may allow the same to be put in evidence on such terms as to costs an otherwise as the Court shall think fit.”

Do the words “at any time” in Rule 14 indicate – it is independent from Rule 12?

*No.

Rule 14 reads as under:

*“It shall be lawful for the Court, at any time during the pendency of any suit, to order the production by any party thereto ….. “

It is definite – the words “at any time during the pendency of any suit,” only emphasise-

*  that a party to the suit has no vested right to seek ‘production’ under Rule 14, soon after a document is discovered under Rule 12; and

*   that wide-open discretion is given to the court for ordering production under Rule 14, at any time.

Can a Party Seek Discovery and Production in One Petition?

Technically it may not be illegal, altogether. But, it will be improper if the court passes orders on both prayers simultaneously.

The ‘Scheme’ of C.P.C.

The ‘scheme’ of the C.P.C. is also germane.

*   We can compare the provisions in the C.P.C. as to production of documents with calling for the opposite party as a witness.

*   There is no specific provision in the C.P.C. that allows a party to the suit to summon the opposite party as a witness – though court has discretion (Order XVI Rule 14 C.P.C.), to ‘examine any person, including a party to the suit’ after 1976 Amendment of the C.P.C..

*   (See: Kishori Lal v. Chunni Lal, ILR 31 All.116, NarayanaPillai v. Kalyani Ammal, 1963 KLT 537,  MuhammedKunji v. Shahabudeen (1969 KLT 170).

It is clear, the scheme of the C.P.C. is-

8   (i) not to initiate coercive steps, against a party who does not examine himself as a witness, or withholds a document;

*    (ii) but to take adverse presumption under Section 114 Evidence Act.

Notice and Summons to Produce Documents in other Provisions of the C.P.C.

Besides the powers of the court under Section 165 of Evidence Act, no doubt, the provisions of Order XVI Rule 14 (summons to witness to produce documents) and
Order XI Rule 15 and Order XII Rule 8 (notice to the other party to produce documents) are independent from O. XI R.12 and O. XI R.14.

Order XVI R. 14

*    “Court may of its own accord summon as witnesses strangers to suit:
Subject to the provisions of this Code as to attendance and appearance and to any law for the time being in force, where the Court at any time thinks it necessary [to examine any person, including a party to the suit], and not called as a witness by a party to the suit, the Court may, of its own motion, cause such person to be summoned as a witness to give evidence, or to produce any document in his possession on a day to be appointed, and may examine him as a witness or require him to produce such document.”

*     But, the words “of its own accord“, “subject to the provisions of this Code … and to any law” and “the Court may” make it clear that this provision is not intended to use openhandedly.

*     Order XI Rule 15 and Order XII Rule 8 are the provisions in the C.P.C. to give notice to the other party to produce documents (for ‘inspection’ and ‘show court’, respectively).

Discovery is Made to Aid the Production of Documents

The proposition, ‘production of a document under Rule 14 comes into consideration only if it is ‘discovered’ under Rule 14′ can be fully supported by the decision of the Bombay High Court, in Manager, Ramkrishna Ramnath Bidi v. First Civil J.First Class, Nagpur (AIR 1959 Bom.181 (J. Mudholkar and S.Kotwal, J.J.).

Referring O. XI of the C.P.C., it is held in this decision as under:

*   “In its first eleven rules, Order XI deals with the delivery of interrogatories …. Then it makes provision for the discovery of documents in Rules 12 and 13. After
discovery is provided for, it deals with the subject of production of documents in Rule 14. Then provision is made for the inspection of the documents produced in Rules 15, 17 and 18 of the Order.

*   Reading the Order as a whole, it seems to us clear that the provisions made in the Order for discovery and inspection are only provisions made in order to aid the production of documents before the Court, particularly the provisions regarding ‘discovery’.”

View of the Apex Court

It is true, our Apex Court, did not give effect to the proposition that compliance (discovery) of Rule 12 is a condition precedent to order production under Rule 14 in
Basanagouda v. S.B.Amarkhed (1992 (2) KLT OnLine 1012 (SC) = AIR 1992 SC 1163), whenit proceeded as under:

“The Court, therefore, is clearly empowered and it shall be lawful for it to order the production, by any party to the suit, such documents in his possession or power relate to any matter in question in the suit provided the Court shall think right that the production of the documents are necessary to decide the matter in question.” 

*      Note: Whether ‘discovery under Rule 12 is a condition precedent for ordering production of documents under Rule 14’ was not considered in this case.