Essence  of  Judgments  Involving  Co-operatives  Profounded
By  the  Kerala  High  Court  In  2013

(By R. Muralidharan  (Deputy Registrar  (Planning  &  Legal),

Co-operative  Department,  Puducherry) 

The Kerala High Court continues its onward march to declare judgments of importance, especially in the field of co-operation. During the year 2013 the Kerala Co-operative Societies Act underwent amendments in conformity with the Constitution 97th Amendment Act. The judgments rendered by the Kerala High Court during 2013 are indexed, chapter-wise.

Management

The first proviso to S.28(1) shows that the persons who have signed the applications to register the society are entitled to appoint a committee to conduct the affairs of the society 'for a period of three months from the date of registration or such further period as the Registrar may consider necessary'. It is not an immutable rule that the term of the committee should expire with the three months' period for which the committee has been appointed by the persons who have registered the society. It follows that the term could be extended by the Registrar if necessary. In the present case no order was passed by the Registrar extending the term of the managing committee. The committee continued in office without any complaint from anyone. The decisions to induct new members were also taken during the said period. The stand adopted by the third respondent that there is no justification for refusing to accept the said decision of the managing committee at this length of time cannot be found fault with, as held in Muhammed Basheer v. Pravasi Co-operative Society (2013 (4) KLT 398).

Disqualification  of  members  of  the  committee

In Sukumaran Nair v. Returning Officer (2013 (3) KLT 547) it was ruled that non-payment of advance amount taken by President or not accounting for same is not a disqualification. 

A member of the society unless he is disqualified as mentioned in various other provisions including R.44(c)(i), is eligible to be elected or appointed as a member of the committee. Apparently this is not a loan taken by the petitioner. The amount repayable is not evident from any of the loan documents as well. The material available would show that the amount was disbursed as 'President advance'. Therefore it cannot be disputed that the first part of R.44(c)(i) will not be attracted as far as the petitioner is concerned, since the amount received was treated as an advance by the President of the society. Further there is no decree against him, even there is no material to show that a demand had been made by the society against the petitioner to repay the balance amount which he had taken as advance after fixing a time limit. In the absence of any such situation, merely for the reason that certain amount received by the petitioner as advance was not repaid by him will not make him a person in default or defaulter as defined under R.2(d) or 2(e) of the Rules. To reach this conclusion, the Court relied on a judgment of the Division Bench in Rajagopalan v. Baby Alex (1994 (2) KLT 974).

Election

The issue that arises for consideration in Idukki District Police Co-operative Society Ltd. v. Electoral Officer (2013 (1) KLT 788) was whether the Electoral Officer has the power to remove the names of ineligible persons from the preliminary voters list, while considering the objections to the said list. The Court observed that the duty of the Electoral Officer extends not only to publication of a preliminary voters list, but also to finalizing the said list after considering the objections received by him to the said list. Acceptance of valid objections would necessitate alteration of the preliminary voters list either by adding the names of eligible members who have been left out or by removing the names of ineligible members who have been included. Unless the above powers are conceded to the Electoral Officer, it would not be possible for the said officer to discharge his responsibility to publish a list of members qualified to vote at the election. For the discharge of the said responsibility, it is certainly open to the said officer to take recourse to all reasonable means. The Electoral Officer need not make a roving enquiry. Removal of name of a person from voters list does not entail removal of persons from membership of society. He can be removed from membership only in compliance with the provisions of R.16(3).

The short question to be considered in Mohanachandran Nair v. State Co-operative Election Commission (2013 (3) KLT 506) is whether the State Co-operative Election Commission has the power to adjourn election. A reference to the judgment in Rajendran v. State Co-operative Election Commission (2004 (1) KLT 1026) virtually indicates the absolute power vested with the Election Commission in terms of S.28B. Going by R.35A (9) and the judgment in Rajendran (supra) the power of the Election Commission cannot be disputed. The power to appoint an electoral officer can also be withdrawn if it is found that the election proceedings cannot be conducted in a fair manner. Reference is made by the Election Commission regarding the preparation or manner in which form 6B register is maintained and discrepancies in the identity cards and photographs affixed etc. Under normal circumstances these are all matters to be considered by the electoral officer while preparing the final voters list. But if the discrepancy is such that it goes to the extent of affecting a fair election definitely the Election Commission can interfere in the matter.

The question that arises for consideration in Bijukumar v. Co-operative Election  Commission  (2013 (3) KLT 963) is whether in an election to constitute the managing committee, the polling should be conducted on ward basis. S.28(1) makes it clear that it is the general body of the society that 'shall' constitute a committee, for being entrusted with the management of the affairs of the society. The amendment that has been introduced only provides for an election on ward basis. To introduce a differentiation on the basis of ward would amount to bifurcation of the general body itself, which is not contemplated by either the Act or the Rules. R.35 makes it clear that the election should be conducted from among the members of the general body, voting as a unit. The said provision also shows that only a single voters list is to be prepared. If the voting is to be conducted separately for each ward, preparation of separate voters list on ward basis would also have to be undertaken. Such a procedure is not contemplated by the Rules. There is no justification for the contention of the petitioners that the voting has to be conducted on ward basis.

The wisdom to fix the date for the election is of the committee. It is a democratic process. Unless it is shown to be in violation of any prescription of law, the same has to be recognized. There is no specific power conferred on the State Co-operative Election Commission or any other authority under the Act on whose permission or order would depend the date of conduct of the election. No such power is given under R.35A. The State Co-operative Election Commission is duty bound to appoint an electoral officer to give effect to the decision of the committee fixing the date, time and place for the conduct of election to the new committee. The explanation to Rs.35 specifies that the expression 'Registrar' in the case of primary societies, the jurisdiction of which does not exceed one circle, refers to the Assistant Registrar of the circle concerned. Therefore, the Assistant Registrar of the concerned circle is the authority who has to forward the resolution to the Election Commission as per the amended sub-rule (1) of R.35A. The above being the position, it was unnecessary for the third respondent to have forwarded the resolution to the second respondent, as done in the present case. This ruling may be found in D. Suresh Kumar v. Kerala State Co-operative Election Commission and others (2013 (2) KLT Suppl. 33 (Ker.) = AIR 2013 Ker.132).

Disputes

In Thiruvanathapuram Regiona1 Co-operative Milk Producers Union Ltd. v. Jayakumar (2013 (2) KLT SN 26 (C. No.30)) the plaintiff is not a person who is a member of the society but at the same time he had business transactions with the society. The dispute between the plaintiff and the society arose pertaining to that business transaction. Hence it is to be held that S. 69(1)(f) would certainly be attracted in this case. The society was constituted for collection and supply of milk. Since that was the concern of the society it has to be held that whatever is done pertaining to the collection and supply of milk would normally be its business and so the dispute as to whether the security amount was to be returned or any amount was to be deducted towards the alleged loss sustained on account of the short supply of milk would certainly be a dispute coming within the ambit of S. 2(i) and S. 69(l)(f) of the Act and as such the bar under S. 100 would certainly apply.

The bank cannot file an A.R.C. for recovery of the entire loan amount, unless the repayment of loan has become overdue, as profounded by the Division Bench in Raju M. Thomas v. Urban Co-operative Bank Ltd. (2013 (3) KLT 417). If only the interest was overdue, the bank could have only sought to recover the interest alone by resorting to the appropriate proceedings. Once the bank has decided to terminate the loan agreement and recall the loan that essentially means that the entire loan amount has become overdue. There is no logic in saying that the loan amount has not become overdue as on 31.12.2007 after filing an A.R.C. to recover the entire loan amount on 28.3.2007. Simply because the bank has chosen to give the loan in the form of a cash credit account, the loan does not lose the character of an agricultural loan. The reasoning given by the learned Single Judge that once an award has been passed, the loan loses the character of agricultural loan is not impressive. The award is only for recovery of the loan amount. The award continues to be for recovery of an agricultural loan and the loan remains an agricultural loan throughout notwithstanding the passing of the award. The denial of the benefit of the scheme to the appellant was held unjustified and the Writ Appeal was allowed.

Supersession  of  committee

The Division Bench in State of Kerala v. Urukunnu Service Co-operative Bank Ltd.(2013 (2) KLT 74)  has ruled that for invoking S. 32(1)(a) it is not sufficient to merely hold that the managing committee had committed a default or is negligent in the performance of the duties imposed on it by its Act or the Rules or bye-laws, but such default should be shown to be persistent and must be prejudicial to the interest of the society as well. In addition to the finding that on account of the non-convening of the annual general body meeting and non-passing of the budget for the year, there must be a further finding by the Joint Registrar that the non-convening of the general body meeting was not only persistent but also that such non-convening was with a culpable mind. It is mandatory for the Joint Registrar to state in his order the opinion of the financing bank on the proposal to supersede the first respondent under S.32. Further no valid explanation was forthcoming as to why it was not reasonably practicable to consult the Circle Co-operative Union. For dispensing with the same, there must be very cogent and acceptable reasons. Useful reference was drawn from the decisions in Vallappuzha Service Co-operative Bank Ltd. v. Joint Registrar (2009 (3) KLT 838) and Sahadevan v. Padmanabhan  (2004 (1) KLT 192).

If there is a statutory violation, the court will be justified in interfering with the matter in a Writ Petition despite of an alternative remedy. When a statute prescribes a method of consultation before proceedings under S.32(1), it is all the more necessary that the consultation has to be made despite the fact that the officer is the same and it should be borne out from the impugned order, vide Siddhikul Akbar v. NirmaIa  (2013 (2) KLT SN 123 (C. No.155)).

Time and again, Courts have held that supersession of an elected managing committee/board is an exception and can be resorted to only in very exceptional circumstances and normally an elected body shall be allowed to complete the term, for which it is elected. It is also not a secret that in the co-operative scene in Kerala or even in India, there is excessive politicization, resulting in the political party in power trying to overthrow the political rivals in power in a co-operative society on flimsy reasons by invoking S. 32. Expressing anguish, the Division Bench in Rajeevan v. Sukumaran (2013 (3) KLT 253) held that it is mandatory on the part of the Joint Registrar to consult expert bodies like financing bank and circle co-operative union and for dispensing with the same, there must be very cogent and acceptable reasons and not just a single statement that an alarming situation is present. The consultation has been held to be mandatory and serves a very important and vital purpose in the context of the action to supersede an elected managing committee of a society. Therefore, when the dispensing with the opportunity to the committee to state its objections results in non-consultation with the financing bank and the circle co-operative union, that also is a reason to hold that dispensing with the opportunity to the committee to state its objections cannot be lightly resorted to. The words "it is not reasonably practicable to do so" qualifies the opportunity to the committee to state its objections and nothing else. It is settled law that an exception in a Section of enactment has to be construed strictly.

It is not necessary to complete the exercise under Ss. 63 to 66 to enable the Registrar to take action under S.32. Order of supersession could be passed when the committee members have resigned after issuance of show cause notice. A committee is superseded on the allegation that they are involved in all or any of the acts as stated in clauses (a) to (d) of S.32(l). Can such a proceeding be circumvented by resignation by the committee members or is it that the Joint Registrar could proceed with the enquiry and complete the proceedings? Answering the question, in Gireesh Kumar v. Joint Registrar of Co-operative Societies (2013 (3) KLT SN 101 (C.No.105) it was ruled that the order of supersession under S. 32(1) in addition to removal of the committee and appointing an administrator, has another consequence of disqualification of the committee members from contesting the election in view of S. 32(1). Therefore, though the committee members have a right to resign, if the resignation is after a notice commencement of proceedings under S.32(1), that is after issuing notice of enquiry, the proceedings will have to come to a logical end. Resignation from the committee after initiating the proceedings. The discretion is purely with the Registrar from taking action under S. 33(1), as well, as on account of enbloc resignation by the committee members.

Appeal

Anyone aggrieved by the decision of a court or authority from which an appeal is provided under S.82, to have a rehearing of the entire matters on the materials placed, has to prefer an appeal and challenge the order in such appeal. After the expiry of the time fixed for preferring an appeal if he prefers a revision, and does not choose to move for condonation of delay to prefer an appeal and entertain such appeal, in such revision he cannot canvas challenge which are available to him only in an appeal. This is the ruling in Selvarajan v. Mankara Service Co-operative Bank Ltd. (2013(2) KLT SN 62 (C. No.71)).

Employees  of  Co-operative  Societies

The question before the Division Bench in Thrissur District Co-operative Bank v. Kerala Public Service Commission  (2013 (1) KLT 261) is whether the experience of the 4th respondent as internal auditor is supervisory and sufficient to entitle him to participate in the selection process for Deputy General Manager. Affirming the decision of the single Judge it was held that the supervisory and managerial cadres are combined cadres in co-operative societies and that could be the reason why in the feeder category classification the society in which the 4th respondent served for long years has bracketed branch manager with internal auditor. As a matter of fact and in practice internal auditor does only supervisory work of checking the correctness of work done by the accountants, management and staff of finance department and allocation of funds and it is essentially the internal auditor who bring out irregularities, mistakes etc., in expenditure by the organisation. However the Division Bench felt that the rule needs a review because Deputy General Manager being a senior managerial position, eligibility for direct recruitment should be sufficient experience in higher level managerial cadre and not experience in supervisory cadre.

The short question to be considered in Mani v. Tirur Urban Bank Limited (2013 (2) KLT 609) is whether it is open for the Bank to insist for an equivalence certificate from the petitioner to indicate that the degree certificate which he had obtained through a distance education programme is equivalent to the qualification which is prescribed under R. 186(1) or not. R. 186(1) clearly indicates that the basic qualification for promotion to the post of Branch Manager is graduation from a recognized university. Tamil Nadu Open University is a recognized university and approved by the University Grants Commission. Under law, there is no distinction between the degree certificate obtained by way of distance education programme or by way of regular study. As long as the petitioner or any other person obtains a degree from a recognized university either by attending a regular course or by a distance education programme, it cannot be said that it is not a 'degree' of a recognized university. That being the situation, one cannot proceed on the basis that merely because the distance education programmes have commenced subsequent to the rule coming into force, such degrees are ruled out for being considered for the purpose of considering the qualification of the petitioner.

R.188 does not provide for prior approval in all cases of re-classification of societies. That applies only to cases where a particular society, because of the special circumstances peculiar to the society, wants to change the pattern of staff strength including the scale of pay, from what has been stipulated in appendix III, as held by the Division Bench in Subair v. Anicadu Service Co-operative Bank Ltd. (2013 (2) KLT SN 54 (C. No.64)). 

The proviso to S. 80(5) indicates that in any society having more than 10, but less than 33 employees, reservation shall be made to at least one post. The contention of the respondent that the employer can wait till the 33rd post defeats the very purpose intended by the Legislature. Such a contingency may never arise and the language of the proviso is not to be lightly dealt with so as to absolve employers from their liability to provide reservation to the disabled. To comply with the reservation of 3%, any society who employs more than 10 persons has to make such reservation in the 11th or 12th post, if the said post is an identified post. In any event the 1st and 2nd identified post to which appointment is made in excess of 10 posts, should be reserved for the disabled. The fact whether the 10 posts already existing are identified or not is immaterial. This ruling is found in Jayaprakash v. Joint Registrar of Co-operative Societies (2013 (4) KLT 788).

Miscellaneous

In Federal House Construction Co-operative Society Ltd., v. State of Kerala (2013 (3) KLT 643) it was held that payment of stamp duty is exempted for a sale deed executed by a co-operative society in favour of its member. It is not in dispute that as far as the present document is concerned, it is sale deed executed by the society in favour of a member conveying certain extent of undivided share of land in his favour. Hence the exemption notification squarely applies. The stipulations in the Kerala Stamp Act do not have any relevance to the exemption granted by the Government under the Co-operative Societies Act. When the exemption notification is clear, irrespective of the fact as to who is liable to pay stamp duty, the remission had been given in respect of instruments executed by co-operative societies. Since the sale deed is also considered to be an instrument and it is executed by the co-operative society, exemption notification squarely applies. After repealing the previous enactments, the rules, orders or notifications issued under repealed Act has been saved and it is deemed to have been instituted under the Act. Going by S.110(2)(i) there cannot be any dispute that the notification issued is deemed to have been issued under the Act.

The Division Bench in Paravur S.N.V. Regional Co-operative Bank Ltd. v. Kerala Co-operative Ombudsman (2013 (4) KLT 520) ruled that the rate of interest on deposits as fixed by the Registrar in clause 7(e) of the Co-operative Ombudsman Scheme, 2010 is the rate of interest prevailing at the time when the scheme was proclaimed and a contract was entered into between the appellant and the second respondent regarding the deposit and the rate of interest thereof. Once the contract is concluded, then the deposit has been accepted only at the rate of interest fixed by the Registrar. Thereafter, the appellant cannot unilaterally change the terms of the contract. If the appellant does so, the complaint would squarely come within clause 7(c) of the Scheme. Apart from that, even the question as to whether the rate of interest as fixed by the Registrar has been paid or not itself is a complaint, which can be considered by the Ombudsman. As such, the Ombudsman has the power to consider the complaint of the second respondent under the Kerala Co-operative Ombudsman Scheme, 2010.

Barometer of Law - I

(By Dr. K.B. Mohamedkutty,  Senior Advocate and Former Law Faculty Dean) 

We celebrate birthday of the Indian Republic established on the strong foundation of the Constitution. We observe the birthday of the Constitution as the Law Day. The birthday of Magna Carta (A.D.1215) is commemorated in England as it was instrumental in liberating the British people from the tyranny of kings and feudal nobles. But no one can imagine when law was born as regulator of man’s life on earth. Clearly, the highest law was born before any man-made law.

The history of civilisation and the law we come across covers only a short period of human existence. The past is unknown and shrouded in the darkness of pre-history. The Geographers tell us that eight lakhs years ago the Atlantic sea was a continent and fifty thousand years ago the Himalaya was under the sea. The law began to show its face more and more when numbers of people multiplied and human needs flourished. Compared to the unimaginable past, this is very recent. As those who refuse to be instructed increased and human needs multiplied in relation to scarce resources some kind of social and economic control was needed. Law then stepped into light up the way ahead. Cicero therefore said that “law is the highest reason, implanted in nature, which commands those things which ought to be done and prohibits the reverse. Conflict arises when reason is obliterated”. Law attains dignity, however, only when “social intelligence” is instilled into it to defend the right of the weak and the oppressed. But most of our laws are devoid of this essential quality.

Paradoxically, law gradually became an instrument through which power began to be exercised by a few. The element of power in law sometimes tarnished its human face when it became unbridled and acted as unruly horse and turned life of the people into a kaleidoscope of strange sights and impressions. In dealing with situations, however, law has four different faces. It has a human face for improving the status of the society, a lion’s face when people disobey it, a bull’s face to fight against injustice and an eagle’s power to see things from distance. The ideal proportion of these factors in a legal system is blessing indeed. The people from time to time introduce built-in safeguards to check misuse of power. The Constitution is one such control mechanism of power. However, today evil forces disrepute its value more than ever before particularly at the instance of high echelons of society. Naturally, law becomes static and stunt in a society where people are deaf and dumb without knowing the potency of it for social and economic justice. 

Light  of  the  Law

The law becomes intelligible to the common man not because of the academic excellence but when he really faces it in connection with an issue. One such issue was the Regulation for Supply of Cooking Gas (2013-14) for domestic users. The arbitrary restriction for its availability even for poor sections of the society happened to be a telling example of laws muddle caused by muddle-headed administration. People’s protest led to its suspended animation. For over a century the Indian people have had enough experience about the ways of the law and how it moulded their life. The question now is whether the people of India feel it as a sun with enormous heat and light or as a moon with dim light and coolness. Or is it a combination of both? Whatever be the answer, the people desire to liberate themselves and the society they live in from inequality and other evils in social life. In this respect law must act like a fire in whose devouring flame the evil forces shall be consumed. 

Today law insists control on individual relations, social relations, family relations, business relations, political relations and national and international relations. Every little step from cradle to grave is its concern and it teaches us to live intelligently, honestly and to be just and fair. It can make a person cleverer and more resourceful. It educates him from the misfortune and perilous tragedy of others. It helps him everywhere from the market place to the Parliament House and works as a global symbol for peace. The government may come and government may go, but law as a phenomenon has no death. It is ever-growing. It stretches towards new and widening horizon. But few people think of law. Fewer people think what it was. They are busy with life and life’s problems. They do not realise that law is nearer to them as their collar-bone. 

Thousand  Flowers  Bloom

The law has an inherent tendency to sprout and produce fresh tender leaves and fragmentary flowers, if it is nurtured and watered by the people. Otherwise, it has tendency to remain in a slumbering mood. It assumes vitality when people rally behind it. When people were united and supported law, nations representing such people rose to great heights slowly and gently and law overturned life for the good. When we look closely at it, we find that it is a many-layered thing. There are outer–layers and deeper layers. Very few reach the deepest core. We can visualise it from different angles. Experience tells us that with peoples’ love and care it becomes a rainbow. Naturally, law emerging from different socio-political climate of each country may provide different colours providing a true replica of social and cultural forces of each country. 

When people realise that the law is divorced from justice, it disheartens them. We are told that life is an endless prayer, but law is a continuum and endless inquiry into life, and that the perfect dream of it is yet to take place. The Austinian jurisprudence affirms that no law is unjust and yet ironically people face injustice in day-to-day life. The poor and disadvantaged are insulated from justice. Monstrous opulence unmindful of misery around is a kind of violence unpardonable. There are violence by groups and violence by nations. 

Popularisation   of   Law 

We do not witness in social life the paradise of law. On the other hand, a hell of lawlessness is pervasive. Civic sense and legal awareness is at low ebb. Generally people have been misled to believe that law is not delightful, but rather unintelligible. Even the educated people are persuaded by this false belief. But really law has beauty and charm, attracting everyone who cultivates an affinity towards it and does well for them and the society. We need today, therefore, popularization of the law rather than confining it to the lawyers, judges and law persons. The legal literacy efforts must be widened and quickened which is necessary for developing civic sense from the childhood. Today attempt is being made to impart elementary message of law in schools. In Law Schools and Law Universities the curriculum is only a drop of the vast sea of the law. We do not pursue scientific learning process in such centres or pursue liberal education. The thrust of education is money oriented. Plato (B.C. 428-348) through an Athenian spoke about the need for liberal education. Plato had occasion to learn a lot from his great teacher. When Socrates was put to death, Plato fled Athens and travelled in search of knowledge and wisdom for twelve long years. Speaking on education he said: 

“We call a man educated and another uneducated, although the uneducated man may be sometimes very well educated for the calling of a retail trader or of a captain of a ship and the like. For we are not speaking of education in this narrow sense, but of that other education in virtue from youth upwards which makes a man eagerly pursue the ideal perfection of citizenship and teaches himself how to rule and how to obey. This is the only education, which, upon our view, deserves the name; that other sort of training, which aims at the acquisition of wealth, is mean and illiberal, and is not worthy to be called education at all”.

These words of Plato are appropriate even today though they were addressed to people of Athens before the birth of Jesus Christ. He further said: 

 “The most important part of education is the right training in the nursery. The soul of the child in his play should be guided to the love of that sort of excellence in which when he grows up to manhood he will have to be perfected.” 

But rulers do not encourage people to learn more about law, because sometimes learning the law becomes a dangerous thing for them as it makes people to think and question the rulers themselves. Those who studied the grammar of law will raise baffling questions with a view to keep up the lamp of equality, fraternity, socialism and justice, as there is strife, suffering and sacrifice in the present and on the morrow in store for them.

Appeal  by  Aggrieved  Persons (Section 96 C.P.C.)

(By N. Subramaniam,  Advocate,  High  Court  of  Kerala,  Ernakulam)

1. The right of appeal from every decree passed by any court exercising original jurisdiction is recognized by S.96 of C.P.C. 1908. But S.96 does not say, as to who may file an appeal.

2. There are two types as to who are the people who can be adversely affected.

2A. Generally, it is only a party to suit who is adversely affected, which includes their legal representatives.

2B. There is an exception to the general rule. That is persons, who are not parties to the suit, may file appeal with leave of court, from the decree or order, if he is prejudicely affected by it or aggrieved by it.  State of Punjab v. Amar Singh (AIR 1974 SC 1006). Jatan Kanwar v. Golcha Properties (AIR 1971 SC 371).

3. Who is adversely affected. When the decision of court goes against the relief claimed by party, then party becomes “aggrieved party”. This is the general rule. There are cases where both plaintiff and defendant would be affected by the decree. For example, in the case of promissory note for Rs. 20,000/- court may decree for only Rs. 10,000/-. In such case both can file appeal, one against partial grant and the other against what is granted itself. Another example is this. In a suit for specific performance, court may refuse prayer for specific performance, but gives a decree for return of advance money. The plaintiff can file appeal. The defendant can appeal against the decree for grant of advance money.

4. If a person is not a party to the suit, but if he is adversely affected by the decree, he can also file an appeal, provided he gets leave of court for filing the appeal and of course, he has to convince the Appellate Court, how he is aggrieved, in order to enable the court to grant leave.

5. The only limitation is that the person should not be a total stranger.  S.P.Gupta v. Union of India (AIR 1982 SC 149).

6. If the decision operates as res judicata, then the party can file appeal. In the decision reported in Daryao v. State of U.P. (AIR 1961 SC 1462) this principle has been stated clearly.

“The judgment of a court of concurrent jurisdiction, directly upon the point which acts as plea, a bar or as evidence a conclusive, between the same parties upon the same matter directly in question in another court; secondly the judgment of the court of exclusive jurisdiction, directly on the point is, in like manner conclusive upon the same matter, between the same parties, coming incidently in question in another court, for a different purpose.” 

7. Indian Law on ‘aggrieved persons’. In Adi Pheroz Shah V.H.M. Servai (AIR 1971 SC 398) the Supreme Court has ruled “A person is an aggrieved party when there is an order, which is to his detriment, pecuniary or otherwise or causes him some prejudice in one form or another. A person who is not a party to the litigation has no right to appeal merely because the judgment or order contains some adverse remarks about him.”

But the last part of the statement was qualified by many judgments. In Maharaj Dhiraj of Burdwan v. Subodh Gopal (AIR 1971 SC 376) it is held that, a person who is not a party to the suit may file with leave of court of appeal and such leave should not be refused where the judgment would be binding on him under S.11 Explanation 6. Later in Bar Council of Maharashtra v. M.V. Dabholkar (AIR 1975 SC 2093) the Supreme Court in the Seven Judges decision has laid down. “The meaning of the words ‘aggrieved person’ must vary according to the context and statute. One of the meanings is that a person will be held to be aggrieved by a decision if that decision is materially adverse to him. Normally one is required to establish that one has been denied or deprived of something to which one is legally entitled to order to make one a ‘person aggrieved’. Again a person is aggrieved if a legal burden is placed on him.”

The scope of ‘aggrieved person’ has a special role to play which is more important in normal instances. Two such instances are 

A.  Findings  and  defendants  inter  se.

Generally no appeal will lie against a mere finding in the absence of any challenge to the decree itself. To this general rule the exception is when the finding acts as res judicata.

Arjun Singh v. Taradas Ghosh (AIR 1974 Patna 1), Budh Sen v. Shulchandra (AIR 1978 SC 88) Ganga Bai v. Noorchand (AIR 1974 SC 1126)

If all the defendants have common interest, getting the suit dismissed, it is not necessary to decide the dispute inter se between the defendants and that will not be res judicata between the defendants.  Konda Lakshman Bapuji v. State of A.P. (AIR 1977 A.P. 427)

B. Alternate relief prayed - This aspect is clearly dealt with in the decision reported in AIR 1972 Pat. 341. (Union of India v. Garbu Sao) which says “that the question whether a plaintiff who claims alternative relief and is granted one of them can appeal for getting the other relief is to be decided on the averment in the plaint of the case concerned. If the plaint read as whole discloses that the plaintiff will be satisfied with either of the reliefs claimed by him, he cannot be allowed to appeal, if one of the reliefs is granted. This is because one who gets what he wants cannot be said to be person aggrieved. On the other hand if the plaint read as whole gives an impression that of the alternative reliefs, one is the main relief and other is asked for only if the main relief is not granted, and the main relief is refused, it is open to the plaintiff to appeal for the main relief. Such a person would come with the meaning of the expression ‘ person aggrieved.’ 

8.  English  decision

The favourite decision In Re Side Botham E. P. Side Botham ((1889) (14) Ch.D 458) rendered by James. L.J. in essence is this.

A person aggrieved must be a man against whom a decision has been pronounced which had wrongfully deprived him of something, or wrongfully refused him something or wrongfully affected his title to something.”

In Re Lamb Ex. P. Board of Trade (1894 (2) QB 812) it was held that a person who is heard to submit to its decision.”

This decision spells out the difference between a person who is in the nature of a party as distinguished from a person who is heard in the dispute.

This decision was made further clear in Re Kitson Exp. Sugden and Sons Limited (1911 (2) KB 109). Lord Sel Borne in In Re Rivie Res Traders Mark ((1884) 26 Ch. D. 48) had stated “it must be real grievance , it must not a set pro ratione voluntas; the applicant must not come merely saying ‘I do not like this thing to done if must be shown that it tends to his injury, or to his damage in the legal sense of the word.”

9. The decision cited in the article are some of the basic decisions which are enlarged by many later decisions of Supreme Court and other High Courts.

10. This article, as stated in the top of this article is intended for the young lawyer friends and the writer would be happy, if this article could be of any use at any time.

Cherry  Picking !

(By P. Deepak, Advocate, High Court of Kerala)

Forum shopping and bench hunting is passé, cherry picking is in. 

Let me explain. How many times have we, the lawyer fraternity, been at the receiving end of pious pontifications and sagacious sermons delivered by judges and jurists alike, more particularly retired judges-who have played out their innings and consider themselves the epitome of objectivity and wisdom-that forum shopping is bad and that bench hunting is to be rooted out if the learned profession is to be salvaged from the mire it is slowly but inevitably slipping into. The latest in the series of homilies delivered on this subject is by the new big Chief himself who minced no words in cautioning the bar that it should be forever ‘vigilant’ on the issue of bench-hunting as such nefarious practices cannot be ‘tolerated’.     

Yet, I do not recall ever having encountered any mention of these malignant growths afflicting my chosen career during my stint at the law college. Truth be told, my impressive eyes were so enamoured by the blindfolded Justitia and her even-handed scales that it never did cross my mind that dispensation of justice in this less than perfect temporal world of ours is eventually undertaken by a human agency and consequently fraught with human frailties. 

The wide and unbridgeable chasm that exists between the study of the law and its actual practice was slowly but surely revealed to me even before the creases of my shining new gown had smoothened. Before my enthralled eyes the blindfolded scale-wielding goddess of justice Justitia was pulled down from her pedestal to be replaced with her near antithesis Fortuna, the goddess of chance bestride her wheel of fortune. 

My early days in the mofussil courts were an eye-opener. An odd number assigned to your suit meant that the ruthless Principal Munsiff would be allotted the file and your application for ad interim injunction had as much chance of success as sighting a tippler on the first day of a month in God’s own country. On the other hand, an even number assigned to your suit meant that the benign Additional Munsiff would hear the matter and an ex parte injunction was pretty much on the cards. The competency of an advocate clerk was reflected in the number of times he could procure an even number to the cause thereby ensuring that his boss had a safe passage before the Additional Munsiff. The rules of limitation made this game of roulette even more enterprising and exacting since waiting for the propitious even number could not be stretched endlessly. Was this bench-hunting? I guess the answer, strictly speaking, has to be in the affirmative. 

Moving from the mofussil to the High Court was like taking a trip to Monte Carlo from the cheap sweepstakes held on the village green. The old adage ‘study the judge before you study the case’ was no longer an embarrassing cliché. The avenues open for ‘bench-hunting’ or ‘forum shopping’ stretched out endlessly stirring the not so sporting blood of the enterprising and scheming members of my fraternity. The otherwise unambiguous and clear words of the language were no hurdle to these go-getters to get behind the seemingly immutable rules of the roster. Enterprising counsel spent hours on the ‘subject’ to be inscribed on the docket and paid scant attention to the pleadings within. A liberal sentinel manning the ‘miscellaneous’ court often led to the doctrine of generalia specialibus non derogant being consigned to the flames of misconstruction. Article 227 of the Constitution and Section 482 of the Code of Criminal Procedure Code sometimes provided residuary relief to counsel, specific alternative remedies of appeal or revision notwithstanding, if exercising the latter option meant a sudden death of the case before a merciless Judge holding the reins of the appellate or revisional jurisdiction. The flexible rules of limitation relating to writ petitions often persuaded counsel to advise eager litigants to wait patiently till the next shuffle so that the present intractable judge could be avoided and the marginal case saved from execution at the threshold. Are these instances of forum shopping or bench hunting? Strictly speaking, yes. 

Ingenuity has always been the hallmark of a successful lawyer. Endeavours of the kind enumerated above can probably be seen as mere manifestations of that ingenuity and resourcefulness which has been in vogue since antiquity; from the time lay men began placing reliance on law men to plead their case before courts and tribunals manned by fair men. But there is no escaping from the fact that it is indeed a case of forum shopping or bench hunting. 

Be that as it may, it has to be understood that there is no panacea to the above malaise unless justice dispensation is entrusted with apparatuses akin to coffee-vending machines and ATMs where pushing the right buttons would result in certain inflexible and immutable results. Yet, our High Court has also had its fair share of near automaton Judges, bound by self imposed fetters of inflexible procedure working tirelessly towards an unfathomable goal of their own making. Not surprisingly, these intractable Judges were never the fancy of the bench hunters and the latter raked their collective brains to ‘avoid’ the former.  

 But the above seemingly harmless endeavours at bench hunting pale into insignificance in the face of patently invidious attempts attempted by manipulative counsel to ‘avoid’ certain judges by employing means far from fair. Though no greenhorn myself there have been very many occasions when the craft and ingenuity exhibited by my opposite number has often drawn a grudging whistle of admiration from my lips. For instance, having lost at the original side, a tough or no-nonsense appellate bench is often ‘avoided’ by an innocuous ‘change of vakalath’ in favour of a counsel himself ‘avoided’ by any particular judge of the appellate bench. The case is thereafter posted before another bench and the original counsel resurfaces and argues the case without any qualms. Likewise, tenuous and thoroughly unconvincing public interest litigations and police protection matters are filed before the Division Bench with the pious hope that pending matters facing imminent death before the learned single Judge can be ‘called over’ to be heard by the Division Bench. Another subterfuge employed is to make seemingly innocuous ‘mentions’ for tagging a particular case along with totally unconnected and unrelated matters pending before another bench. Boundless are the imaginative skills of such counsels who thrive not on ‘argument’ but on ‘management’!

Not to be outdone, the learned judges have recently devised their own means to ‘avoid’ and thereby resile from hearing unpleasant matters. ‘Excuse’ masquerades as ‘Recuse’. I wonder if these are not instances of ‘cherry-picking’ whereby uncomfortable and unpleasant cases are ‘avoided’ and straightforward and uncomplicated cases are ‘selected’ under the banner of ‘recusal’ even without assigning any reason. Even when reasons are given by their lordships one only wishes, in hindsight, that they had refrained from doing so for the reasons assigned seldom justify avoiding the matter. In a lighter vein, can one reasonably endorse the decision of a judge to recuse from hearing matters involving the Indian Railways for the reason that his or her spouse has booked a ticket and is included in the Waiting/RAC list. Similar such trivia pass off as valid reasons to justify not hearing a particular case. 

Lord Hewart would have ‘recused’ himself from hearing R v. Sussex Justices, ex parte McCarthy if he had foreseen that his seminal aphorism ‘justice should not only be done, but should manifestly and undoubtedly be seen to be done” would be employed with such amazing rapidity and on such slight pretexts as is being done in our times. 

More dismal is the situation where cases are heard for days at a stretch and judgment reserved only for the learned judge to reopen the matter and ‘avoid’ thereby necessitating a rehearing before another judge. Whatever be the gravity of the supervening event that persuaded the learned judge to ‘avoid’ pronouncing judgment in the cause would it not have been more appropriate on the part of the learned judge to first appraise the concerned counsels and seek their views on the matter. If the counsels on both sides have no objection to his lordship rendering the judgment then I am at pains to understand how the objectivity and integrity of his lordship can be doubted even for an instant regardless of the fate of the case. On the contrary, it would have set in motion a healthy precedent of assigning reasons for the proposed recusal and taking the counsels involved into confidence before passing an order in the matter of ‘avoiding’ or ‘not avoiding’ a matter. Else, it is just ‘cherry picking’, pure and simple!

Tailpiece: 

In Domville v. State (103 So. 3d 184 (Fla. 4th DCA 2012), the Fourth District addressed a Facebook issue with regard to judges “friending” attorneys through social media. That court determined that a judge’s social networking “friendship” with the prosecutor of the underlying criminal case was sufficient to create a well-founded fear of not receiving a fair and impartial trial in a reasonably prudent person. (‘The Law of Friending’ by Eugene Volokh-The Washington Post-30.1.2014).

Not Even A Crowd, A Population

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

The reported decision to increase the strength of the Judges of the High Court of Kerala to Forty Seven is wholly unwarranted. The experience is ‘more the number of Judges more the arrears’. The Kerala High Court has now seven times more of its original strength. Has the assault on arrears yielded results commensurate with the increase in strength over about fifty years? The answer can obviously only be ‘No’. Please see what a Division Bench of the High Court of Kerala has said about Criminal Appeals in which the convicted are long in jails (2014 (1)  KLT 998 - Pradeepan v. State of Kerala).

“We have great concern that we are not able to take up criminal appeals earliest. This obliges appellants to remain in custody for long periods pending disposal of the appeals. But considering the State of pendency in this Court, we cannot attempt anything better. At the average rate of one appeal a day or three appeals in two days, it appears that it will take a long time before the case of the appellant comes up for hearing in the regular course. Only one bench is dealing with criminal appeals. We have our sympathies with the persons waiting in the queue. But we do not think it proper to permit persons to jump the queue or give out of turn postings for hearing and disposal for any appeal. We sympathetically take note of the frustration of appellants who are languishing in prisons pending disposal of their appeals, when they come to know that appeals preferred later are being taken up for disposal.”

(Ref: Jayachandran v. State of Kerala (2012 (1) KLT SN 100 (C.No.108). Not very different is the situation in other High Courts. Please note what the Supreme Court said in V.K. Verma v. Central Bureau of Investigation ((2014) 3 SCC 485).

“One wonders as to how it took ten years for the matter to be registered as Sessions Case and stranger is it to see that the trial also took almost ten years and still stranger is that the matter took ten years in the High Court”.

The Court further said:

“The long delay before the courts in taking a final decision with regard to the guilt or otherwise of the accused is one of the mitigating factors for the superior courts to take into consideration while taking a decision on the quantum of sentence. As we have noted above, the F.I.R. was registered by C.B.I. in 1984. The matter came before the Sessions Court only in 1994. The Sessions Court took almost ten years to conclude the trial and pronounce the judgment. Before the High Court, it took another ten years. Thus, it is a litigation of almost three decades in a simple trap case and that too involving a petty amount.”

Do all these occur only because there are no Judges proportionate to the strength of the population? That very premise is sheer paralogism. The ratio, if at all relevant, should only be to the litigant public. Large segments of our population are below the poverty line comprising of Adivasis, Dalits, Girijans etc., who do not know even about the existence of Law Courts in the country. Please read the sordid and sorrowful story of Soni Sori of Chattisgarh, Lingaram Kodopi v. State of Chattisgarh  (2014) 3 SCC 474). The majority of the litigants are from the corporate sector, the tax payers, the land owners, the bankers and the other affluent classes, who stand to gain by the delay in fiscal litigations. The argument based on population therefore is preposterous. Is it because there are no sufficient number of Judges in the High Courts that the number of under-trial prisoners or under-investigation prisoners are increasing day by day? Large number of innocent citizens are languishing in the Tihar Jail for want of sureties or incapacity to deposit the amounts by way of bond for bail. The jail population according to Justice Sri B.D. Agarwal of the Gauhati High Court “had increased from 3,13,635 in the year 2001 to 3,58,998 in the year 2010”. This is primarily because even bail applications are not taken up with a sense of urgency in many High Courts, unfortunately including the Kerala High Court. And the list of Bail Applications is carried over to many days leading to grave violation of human rights. There was a time when experienced Judges could dispose of bail applications before the lunch time and who found time to go to the final hearing list. Expertise, experience, etc., have become irrelevant these days.

It is therefore as clear as day light that what is important is quality and not quantity and quality can be ensured only by a paradigm shift from heredity, high connections, high flying corporate lawyers, etc. The predominant parameter, merit, quality, character etc., are sidelined, all under the cover of the Collegium. The Times of India, a leading newspaper carried a news item on the 1st of July, 2013 with the caption “Advocate with links to terror outfit almost became High Court Judge”. The Collegium in that case recommended his name and it was only in the Prime-Minister’s Office the impropriety was noticed and the recommendation not accepted. This incident underlines the need for a participatory process in the selection of Judges and not to leave it entirely in the hands of just five among a population of more than 128 crores to man an institution which should be as much democratic as the Legislature or the Executive, the other two pillars of the Constitution of India. Curiously the enormity of the population suddenly becomes irrelevant then.

Is it for want of strength that emergent Interlocutory Applications are listed, heard, argued elaborately, emphasizing the sense of urgency and yet orders are not pronounced even after months lapse? Was Asharudeen declared innocent years after he lost his youth and cricket for want of Judge strength? How come that in the Kerala High Court alone judgments are pending for more than one year after arguments were heard? How could this be improved by increase in the strength of Judges of such or similar disposition and dispensation? The emphasis, therefore, should be on the choice of the right candidate with caliber, independence, integrity and “who would invest the judicial process with significance and meaning for the deprived and exploited section of humanity” and not right connections alone. He/she shall be one who does not forget that it is the litigant who pays for his/her pay, perquisites, powers, pomp and prestige. Unfortunately it is that hapless category which is most forgotten in our courts. His angst, agony, anguish and apprehension are not properly reflected in the dispensation by the Judges who appear to be not only in no hurry but move very leisurely, totally frustrating the litigant and the Lawyers alike.

Forty seven therefore, is not even a pack or a crowd, but a paddling population.