Shyam Sundar Sarma -- A Precedential Virus

(By K.V. Sohan, Advocate)

A three Judge Bench of the Supreme Court in Shyam Sundar Sharma v. Panalal, 2005 (1) KLT 198 (SC) = (2005) 1SCC 436 held that:

"an appeal filed along with an application for condoning the delay in filing that appeal when dismissed on the refusal to condone the delay is nevertheless a decision in the appeal".

The Hon'ble Supreme Court held above in the context of an argument that the bar in Explanation to Order 9 Rule 13 will not cover an appeal not entertained for the reason of not condoning the delay in filing it. Repelling this contention Supreme Court held that dismissal of the application for condonation of delay and consequent dismissal of the appeal is also dismissal of an appeal and there is a resultant merger of the decree appealed in the decree of the appellate Court.

It is submitted that the judgment of the Supreme Court requires reconsideration in view of the conflicting precedents and the omission to take note of the binding larger bench decision.

Hon'ble Justice P.K. Balasubramanyan on behalf of the Bench observed that:

"The Learned counsel placed reliance on the decision in Ratansingh v. Vijayasingh & Ors., 2001 (1) KLT 327 (SC) = (2001) 1 SCC 469 rendered by two learned Judges of this Court and pointed out that it was held therein that dismissal of an application for condonation of delay would not amount to a decree and, therefore, dismissal of an appeal as time-barred was also not a decree. That decision was rendered in the context of Article 136 of the Limitation Act, 1963 and in the light of the departure made from the previous position obtaining under Article 182 of the Limitation Act, 1908. But we must point out with respect that the decisions of this Court in Mela Ram and Sons (AIR 1956 SC 367) and Sheodan Singh (AIR 1966 SC 1332) were not brought to the notice of Their Lordships. The principle laid down by a three-Judge Bench of this Court in Mela Ram and Sons and that stated in Sheodan Singh was, thus, not noticed and the view expressed by the two-Judge Bench, cannot be accepted as laying down the correct law on the question."

With great respect it is submitted that Shyam Sundar Sharma's case conflicts with a co-equal bench decision and is also per incurium of a larger bench decision. It also failed to consider the consequences of the ratio laid. Another three Judge Bench of the Supreme Court in Chandi Prasad and others v. Jagdish Prasad & Ors., 2004 (3) KLT 654 (SC) = (2004) 8 SCC 724 held referring the decision in Ratansingh that:

"when an appeal is dismissed on the ground that delay in filing the same is not condoned, the doctrine of merger shall not apply".

His Lordship Justice S.B. Sinha on behalf of the bench relied on Raja Mechanical Company (Pvt. Ltd.) v. Commissioner of Central Excise, ILR 2002 (1) Delhi 33.

Shyam Sundar directly conflicts with the co-equal bench decision in Chandi Prasad. While his Lordship Justice S.B. Sinha in Chandi Prasad relied on the Delhi decision rendered by himself, His Lordship Justice Balasubramanyan in Shyam Sundar inter alia relied on, 1987 (2) KLT 848, the Full Bench decision of the Kerala High Court, which his Lordship had argued as a counsel. This apart both the bench omitted to take note of the five Judge bench decision of the Supreme Court in Union of India v. Hansoli Devi & Ors. reported in (2002) 7 SCC 273 which had answered the question, whether a dismissal of an application seeking reference under S. 18 on the ground of delay amounts to not filing an application within the meaning of S.28-A of the Land Acquisition Act 1894. The larger Bench held that:

"the dismissal of an application seeking reference under S.18 on the ground of delay would tantamount to non filing an application within the meaning of S.28-A of the Land Acquisition Act, 1894."

Apart from the above submission the reliance on Mela Ram & Sons and Sheodan Singh is unfounded. Mela Ram & Sons was a case which arose under S.31 of the Income Tax Act and the ratio of the case is only that S.31 of the Income Tax Act is the only provision relating to the hearing and disposal of the appeals and if an order dismissing an appeal as bared by limitation is one passed in appeal it must fall within S.31. And as S.33 confers a right of appeal against all orders passed under S.31 it must also be appealable. The Court ultimately held that: (AIR 1956 SC 367 at Page 374)

"in this view, the orders of the Appellate Assistant Commissioner holding that there were no sufficient reasons for excusing the delay and rejecting the appeals as time barred would be orders passed under S.31 and would be open to appeal, and it would make no difference in the position on whether the order of dismissal is made before or after the appeal is admitted."

So the ratio of the Mela Ram case is to be confined in its application to the provisions of Sections 31 and 33 of the Income Tax Act only and not to the general law. As regards Sheodan Singh v. Daryao Kunwar, AIR 1966 SC 1332 the question arose was under S.11 of C.P.C. The Court held that:

"Where the trial Court has decided two suits having common issues on the merits and there are two appeals therefrom and one of them is dismissed on some preliminary ground, like limitation or default in printing, with the result that the trial Court's decision stands confirmed, the decision of the appeal court will be res judicata and the appeal court must be deemed to have heard and finally decided the matter. In such a case the result of the decision of the appeal court is to confirm the decision of the Trial Court given on merits, and if that is so the decision of the appeal court will be res judicata whatever may be the reason for the dismissal. It would be a different matter, however, where the decision of the appeal court does not result in the confirmation of the decision of the trial Court given on the merits, as for example, when the appeal court holds that the trial Court had no jurisdiction and dismisses the appeal, eventhough the trial Court might have dismissed the suit on the merits."

The position in Sheodan Singh has no application to the case and the principle on which the Court holds above is to be doubted and in fact doubted in AIR 2004 SC 2546 and AIR 1995 SC 316. The principle on which Sheodan Singh holds that the appellate Court decree will be res judicata is evidently erroneous. When there are two appeals from one suit and one of them is dismissed on the ground of delay or on some other technical reasons like default in submitting notice batta etc., the trial Court decree which had attained finality alone will be res judicata for the appellate Court to consider in connected case and not the appellate Court decree which has not decided any issues will be res judicata.

On the simple logic and common sense also the principle cannot be supported because when an appeal is filed with an application for condonation of delay the reasons stated in the application for condonation of delay has nothing to do with the judgment appealed. Reason for condonation of delay may be the delay on the part of the Advocate clerk, illness of the party and such other common grounds which has nothing to do with the issues adjudicated. So when a Court consider the correctness of such reasons which are always post judgment for condoning delay and holds that there is no sufficient reasons to condone the delay that cannot merge with any issues decided in the judgment. The history of the legislation makes the position clear. In the XlVth Law Commission report it is stated that:

"In cases where a memorandum of appeal is accompanied by a petition seeking condonation of delay under S.5 of the Limitation Act, the High Courts, at one time, used to admit the appeal subject to objections as to its maintainability being raised at the time of hearing. Sometimes no such reservation is made so that the point of limitation survives and is debated upon at the hearing of the appeal. This practice was disapproved by the Privy Council in two cases. In the first case, Sir Lawrence Jenkins delivering the judgment of the Judicial Committee sought "to impress on the Courts in India the urgent expediency of adopting a procedure which will secure at the stage of admission, the final determination (after due notice to all parties) of any question of limitation affecting the competence of the-appeal". Following this advice, the High Courts of Andhra Pradesh, Bombay and Madras have made appropriate amendments to the rules. We recommend that similar amendments be made in their rules by the other High Courts, so as to provide that, if the appellate Court thinks fit to condone the delay under S.5 of the Limitation Act, it should, before admitting the appeal, give notice to the respondent and hear his objections, if any, to the condonation of the delay in filing the appeal."

ILR 41 Madras 412 and ILR 43 Bombay 376 had clearly stated that the delay condonation should be considered prior to the appeal being considered and recommended legislation being brought. The wisdom Privy Council tried to infuse in the law prior to 87 years though accepted by the legislature in 1977 by inserting Order 41 Rule 3A is sought to be undone by the decision of the Supreme Court in Shyam Sundar.

On the practical point of view also the decision cannot be supported. It casts unnecessary burden on a litigant. If Shyam Sundar is followed, against the dismissal of an application for condonation of delay and consequent dismissal of appeal only a second appeal will lie. The court fee will have to be paid at the same rate payable in the suit. (In Kerala it is at an exorbitant rate of 10% of the claim). After paying full Court fee the second appellate Court cannot examine the merit of the case as the first appellate Court had not examined. There cannot have any substantial question of law except whether the lower appellate Court is correct in not allowing the delay condonation petition on the particular facts alleged. If at all it is a substantial question the only way is to set aside the decree and remand to the first appellate Court after allowing the appeal. If the second appellate Court dismisses the appeal the decree to be worked out for execution is only the trial Court decree as the appellate Court is not considering the merit of the issues involved. So a litigant has to spend Rs.30,000/- by way of Court fee in three courts to recover an amount of Rs.1 lakh apart from the miscellaneous expenses he had to incur by way of advocate fee and clerical expenses. Procedural law ought to be interpreted without creating more hurdles in the way of obtaining the relief.

The Shyam Sundar virus requires to be quarantined at the earliest possible opportunity.

MODERN ONAM*

(By T.P. Kelu Nambiar)

In absentia though, it is only appropriate that I start by extending hearty and warm wishes to the Hon'ble Chief Justice Sri Rajiv Gupta for a happy "Kanni”/primary Onam, in Kerala.

On the eve of the happy Onam, let us look beyond the past end forward to the future.

Maharaja Mahabali, son of Virochana, grandson of Prahlada and great-grand-son of Hiranya, whom we have never met, but feel we know, was the demon King who ruled narans, not Rakshasas as Ravana did; who disappeared leaving his fame and name behind for all time to come. Malayalis were happy and prosperous from Friday to Friday, under the rule of Mahabali, unlike the Lankans. During Mahabali's rule, everybody was happy and safe; it is said, no lion was in distress, no tiger was in trouble; and everybody enjoyed the right to become old. Everybody climbed without being lifted from above. There was no Tsunami, no earthquake, no Katrina, no whirlpool, no whirlwind, because Devendra, Varuna and Vayu, had been subjugated by Raja Mahabali. There was no collective madness, an there is now-a-days. Nobody had occasion to seek anticipatory bail. If only Mahabali had heeded to, and accepted, the advice of his mentor, and enlivener, Sri Sukracharya, Malayalis would never have lost their great King for over, except a day a year. Voltaire's declaration that history is nothing more than a picture of crimes and misfortunes, is proved wrong by Mahabali's rule.

Onam started as an annual rural festival, celebrated with perfect harmony and traditional favour; an annual feature started from time immemorial and persisted, since; an event of imagination, not memory. But, now-a-days, it has assumed the character of urban commercial competition. Even 'Onasadya' is purchased, not made. Onam has become a season of rebates, discounts, margin-free offers, concessions, bumper/mega reductions, etc. in every branch of activity. The only institution which does not make these 'reduction offers' is the legal profession, the judiciary included.

It is doubtful whether there was any community other than the Hindu in the days of Mahabali. But Onam is celebrated without any difference in caste and religion. Let it be virtuous to be so. If we make a combined and comparative study of the Vedas, the holy Koran and the Bible, we will find several similarities.

By its very conception, Onam is now an occasion for Malayalis to greet one another.

I should never speak wide at a function like this, as, ought I know, all your eyes and mind are fixated on the ‘Palada’.

So, let us celebrate and enjoy Onam, with the glitter of Kashikodokoro, if I may give employment to an unemployed word.

___________________________________________________________________

*Felicitation Address delivered on 8.9.2005, at the Bar Council Hall, Ernakulam, on the occasion of "Onam Celebrations - 2005" by the Kerala High Court Advocates Association.

HIRE PURCHASE ACT, 1972 -- R.I.P.

(By V.K. Babu Prakash, Judicial Magistrate of I Class, Kollam)

In one of my articles published in 2003 (3) KLT page 17 (Journal) captioned ‘Hire Purchase Act, 1972 - An Act suffered death after birth’, in which I lamented that though Parliament had enacted Hire Purchase Act, 1972, a self contained and self sufficient enactment to meet the menace perpetrated by Hire Purchase Agreements and allied activities, it never has come into operation as the Ministry of Justice and Law from time to time extended its period of operation. Thus the Act was just like an Act put into suspended animation as to neither dead or alive. At last now, the victim Act is saved from the tentacles of its ill fate. Parliament passed the latest Hire Purchase Act (Repeal) 2005 (Act 31 of 2005) which got the assent of the Indian President on 23.6.2005 thereby the Hire Purchase Act, 1972 is repealed for ever. Thus the pristine Hire Purchase Act, 1972 shall R.I.P. with no more hopes for resurrection. 

Some Thoughts on Hindu Succession Act

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

1. Everyone takes pride in being legitimate. But, does law confer legitimacy on all? The sad plight of a Hindu who was labelled "illegitimate" and hence not entitled to succeed to his father's estate attracted my attention.

2. Vide Section 3(1)(f) Hindu Succession Act (HSA), heir means any person, male or female. who is entitled to succeed to the property of an intestate under the Act. One has to look to other provisions of the Act to ascertain who is so entitled. We find such entitlement as per Sections 8, 15 and 17. Section 8 speaks of "— heirs, being the relatives - ", which takes us to Section 3(1)(j), where we find that related means related by legitimate kinship, provided that illegitimate children shall be deemed to be related to their mother... accordingly. Considering the definition of agnate, cognate, full blood etc., the definition of 'heir' appears clumsy, or, to say the least, slipshod.

3. Let us take the following case: A marries B and has, say children, C₁, C₂. During the subsistence of that marriage, A marries C in whom he sirs 2 children - C₃ & C₄. By virtue of Section 16 Hindu Marriage Act (HMA) read with Section 3(1)(e) HSA, the two become halfblooded relatives. Only because C was fortunate to be a wife and not a mistress. But for the void marriage between A and C, C₃ & C₄ would have been illegitimate. A void marriage is no marriage in the eye of law. Section 16 HMA confers a right on the illegitimate, but not on his unfortunate mother. The second wife's status is only that of a mistress or concubine. Is it not odd that children born in a void marriage can succeed to the property of their father, but not children born in an extramarital union? Legally, is there any difference between them? More piquant, when we consider the case of an unfortunate illegitimate whose father acknowledged his/her paternity during his lifetime.

4. We may gainfully refer to explanation to Section 2(1) Hindu Adoptions & Maintenance Act, Section 2(1) Hindu Minority & Guardianship Act, Section 2(1) HSA and Section 2(1) HMA. Hindu Adoption & Maintenance Act entitles illegitimates to maintenance from his/her parents and their estate. These provisions categorically establish that illegitimacy is accepted by the Parliament. Interpretation clauses in these enactments open with the words 'In this Act, unless the context otherwise requires'. Section 26 Special Marriages Act (SMA) is similar to Section 16 HMA. Curious, that one hand of law recognises illegitimacy, while the other does not. Does law create two classes of illegitimate Hindu children? One who can claim legitimacy because of Section 16 HMA or Section 26 SMA and the other who cannot?

5. Rule 2(k) Kerala Motor Vehicles Rules, 1989 defines legal representative to mean a person, who in law, is entitled to inherit the estate of the deceased if he had left any estate at the time of his death and also includes "any" legal heir of the deceased. The first part of the definition contemplates personal law of the deceased. Can that be said about the "any" legal heir? When HSA attempts to distinguish "legitimate” from "illegitimate” by incorporating Section 3(1)(j), the motor vehicle man does not accept that. Otherwise, why did he stray from personal, law and include "any"? Rule 2(k) cannot be said to be contrary to Section 4 HSA for various reasons.

6. Sections 24 to 27 HSA deal with disqualification to inherit. Section 28 HSA provides that "No person shall be disqualified on the ground of any disease, defect or deformity or save as provided in this Act, on any other ground whatsoever. Illegitimacy does not bar succession to the estate of a Hindu female, because of the proviso to Section 3(1)(j) read with Section 15 HSA. HSA does not expressly exclude illegitimate children from succession to the estate of a Hindu male, except may be by Section 3(1)(j). Illegitimacy cannot be "any other ground" within the meaning of Section 28 HSA. Section 3(1)(j) cannot be used as an aid to include the word “illegitimacy” in Section 28. If Parliament had felt that illegitimacy should be a disqualification, that would have definitely found a specific place in HSA. The Parliament did not think it necessary to amend HSA while amending Section 16 HMA. The omission appears to be deliberate. Section 16 HMA (as amended) trespasses upon Sections 3(1)(e) & (j) HSA and nullifies its effect/intend.

7. So, why cannot an illegitimate Hindu child be entitled to the estate of his father? The lack of clarity in HSA in the matter will continue to hound many an illegitimate person. Section 3(1)(j) is contradictory to Section 28 HSA and Section 16 HMA. Right of succession to father's estate is indeed conferred on illegitimate children. But for the indiscreet union of a man and woman, illegitimacy will not arise. The illegitimate has no say in the matter. Illegitimacy should be frowned upon not because of illegitimacy, but because of the need for moral purity of society. Both parents should be liable for their indiscretion. Not the mother alone (Of course, after her death). Looking from another angle, does not the exception made in the case of a male have the effect of whetting his libido with wild abandon? If illegitimacy was to be a bar to succession to father's estate, the relevant provisions should have been more precise. To be tolerant, has not Section 3(1)(j) become obsolete and superseded? Does not modern medical science provides safeguards against false claims?

8. I understand that Sections 6 and 30 HSA are about to be amended and Section 23 is about to be omitted, vide Hindu Succession (Amendment) Bill, 2004 with the object of conferring equality on females. Hindu law recognised coparceners because they were obliged and entitled to offer pinda. This was the male's prerogative and not of the female. Will the Parliament make that obligatory to females? In Kerala, the position was drastically altered in 1976. Hence, the proposed amendment to HSA may not have any real impact.

9. Section 24 excludes certain widows who have remarried and their heirs from succession. A widower does not appear to be so deprived. Take this instance: W, a woman marries Man I. She marries Man II in violation of Section 5(i) HMA. On her death, Man I and Man II are alive. As between them, who can claim her estate u/S.15 HSA? Both? Can you rope in Section 3(1)(j) here and say that Man II is not entitled? Is not the situation incompatible with Section 10 Rule 1 HSA, which provides for 1 share to all widows together? When a man marries in contravention of Section 5(1) HMA, the second wife (?) cannot succeed to his estate on his death. Definitely this is discriminatory, as it violates equality of gender, though of a deceased. Do not Sections 3(1)(j) and 24 HSA violate Article 14? (Quaere). The proposed amendment to Sections 6 and 30 might be in the direction of Article 44, but not in its spirit.

10. Could the Parliament think of doing this to all of "WE, THE PEOPLE OF INDIA"?

I mean, like waking up Article 44, to make it vibrant, having been a Rip Wan Winkle all these decades! May be, it is a beginning. Or, is it a political charade?

Tailpiece:Overkill is by Section 29 HSA. Suppose a Hindu male dies without leaving behind any legal heir as per Section 8, but only illegitimate issues and a wife in a void marriage. Can they be deprived of his estate by applying Sections 3(1)(j) and 29?

Ideas Cannot be Chained

(By K. Ramakumar, Sr. Advocate, High Court of Kerala)

Close on the heels of Shreya Singhal (2015(2) KLT 1 (SC)) the High Court of Kerala has rendered a bold judgment (Shyam Balakrishnan v. State of Kerala - 2015 (2) KLT 927)  in sync with the psyche of lovers of liberty by declaring that merely subscribing to what is generally known as Maoist doctrine is not objectionable and cannot warrant curbing of freedom by the State executive. The State was also ordered to pay compensation to the victim who was harassed solely for entertaining what the police call Maoist ideas.

The Hon’ble Mr. Justice Muhamed Mustaque who made the judgment had indeed sent a signal that freedom of expression, freedom of thought, freedom of belief, freedom to have a conscience, etc are part of the natural and integral right of an Indian citizen and are not negotiable. Just as an Indian citizen can canvass for a capitalist society where the rich exploits the poor, other citizens are free to impress upon the people that there is exploitation all round by the rich and powerful of the less fortunate Indians, particularly the Adivasis of Andhra Pradesh, Bastar, Chhattisgarh, Jharkhand and Odyssa. What is the sin they have committed ?

To exhort the exploited Adivasis to voice their protest against multi-nationals like Vedanta, Posco etc robbing Adivasis of their land and rich mineral resources in that area ? Can you call it a sin even if it is often combative ? Is it a sacrilege to sound sceptical that the affluent and influential enjoy undue advantages in all institutions of power including those where they should not count ? It is not only not a sin but only amounts to raising the voice of the under privileged, the oppressed and the suppressed. Look at our own Adivasis in Attapadi and Wayanad. Monies earmarked for their welfare are drained out and siphoned off by unscrupulous officials, unmindful of the miseries of the people for whom those benevolent programmes are evolved. Though they have started raising their torpid voice, it is silenced and stifled. Any wonder why selfless people who are not interested even in contesting a Municipal election for self aggrandizement by corruption unlimited come forward to help them sacrificing their entire life throwing themselves in the cauldron of torment, torture and trauma. Remember they include highly qualified IT Personnel, brilliant Engineers, Doctors and technocrats. Noted journalists and writers like Ms Arundathi Roy also lend their voices which are listened to by the people of the country. Are they not preferable and far more patriotic than those who hanker after power by forming cliques, coteries, caucuses and the like around centers of power survive by shameless sycophancy even in noble professions and corner unethical and unmerited favours subverting systems from within.

Is it a sin in this country to side oneself with a hapless section of the society who even after the independence has not attained any opportunity to live as dignified Indians ? Doctors like Venketesh Rao who used to supply free medicines to them were shot down, their hands tied behind. Dr. Mehmood Nayyar Azam who chose to share his life with the unfortunate Adivasis in Chhattisgarh, was harassed and humiliated and had to approach the Apex Court, which allowed him a compensation of `5 lakhs from the Chhattisgarh Government(See Mehmood Nayyar Azam v. State of Chhattisgarh (2012 (3) KLT Suppl. 41 (SC) =(2012) 8 SCC 1)).

How then helping the poor, the downtrodden and the marginalized section of the society becomes objectionable, culpable or illegal ? Not in a country where an ordinary washer-man had the right to criticize the Rajapatni and it was the Rajapatni who had to subject herself to the Agnipariksha. Not in a country in which the Upanishads and the Geetha proclaim the right to freedom of expression, right to criticize and the right to be heard.

No doubt one cannot agree with the protagonists of violence or exterminating the “enemies” or what in their terminology is called ‘action’. Violence is no answer to injustice, particularly in the country of the Buddha, the Ashoka, the Mahaveer and the Gandhi.

The propagation of ideas of equal rights to the Adivasis, stopping the unscrupulous exploitation indulged in by those in power, the fight against multi nationals fleecing the rich resources of the forest with an eye on huge profits, the clamour for protecting the culture of those who live in the lap of nature cannot any longer be even imagined as objectionable as much as Prime Ministers proclaiming the identity of Naga culture and the need to preserve and protect it, do no wrong, which anti-nationals and traitorous elements fully exploit.

The High Court of Kerala therefore, deserves a hearty accolade and respectful commendation.