Trial Work Thrills

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

Speech  rendered  on  the  final  day  of  Trial  Advocacy  Competition held  in  the  NUALS,  Kochi)

I am honoured to be called upon to address this august audience comprising of promising youngsters, both men and women, who will adorn one day, I am sure high positions in the Bar and the Bench. I had the privilege of watching the performance of participants in the final of the “Trial Advocacy Competition” and I am happy to say that some of them hold out to be bright stars in the legal profession in future.

Trial work in Courts is always a thrilling experience. A trial lawyer meets the client, meets his adversary and tackles the Judge, which an appellate lawyer can never enjoy. There were great lawyers like Sir Edley Norton of the Madras High Court, who preferred to conduct trials in the High Court and in the Sessions Courts than argue Criminal Appeals before Division Benches. A trial lawyer is expected to command quick wittedness, grasp of events, management of unexpected situations and masterly cross-examination. In cross-examining a witness, the most important thing is when to stop. The cross-examining counsel is not expected to get an adverse answer even if he is not successful in getting a favourable answer from the witness. Cross-examination is an attractive art. It is not mere intimidation of witnesses as some counsel appear to think. I should think that the best method of cross-examining is to ask several questions on the point the counsel wants to make out through the witnesses. It will undoubtedly yield results. A cross-examining counsel should be watchful to note the psychological impact the questions will have in the minds of the witnesses cross-examined.

Pleadings and procedure play very important part in trial work. Pleadings are the fountain-head of a cause in the Trial Court. Without pleadings no evidence will be permitted during the course of the trial. The pleadings have to be consistent with the procedural law. Two major procedural laws in the country are the Code of Civil Procedure and Code of Criminal Procedure. Along with the pleadings the language used by the lawyers has to be dignified, precise and accurate. These days the biggest casualty in courts, both in the Trial Court and the High Court is language. When English continues to be the language of the courts, it behoves all legal practitioners at least to ensure that they are using the correct language. These days we find howlers in court. For instance in a Trial Court a new entrant stood and prayed for filing “abuses” when the expression should have been ‘time for objections’. Command of language is extremely important for legal practitioners, which unfortunately is not properly taken care of these days. On this score students of National Institutions in Law have an added advantage than their compeers in other institutions. Please therefore, make good use of the same and put to use the command of language you possess both in pleadings and in the address to the court.

In all trials, the counsel will have to bestow attention on the evidence to be recorded whether documentary or oral. In fact it is the trial lawyer who moulds the case in the early stage. In appeal, cases turn mostly on questions of law. A firm basis therefore, will have to be established by the trial lawyer on facts which should form the foundation for winning the case. For instance in a trial under Section 138 of the Negotiable Instruments Act, the complainant’s counsel has to prove that a valid cheque was issued, that it was returned dishonoured and that the mandatory requirements stipulated under S.138 of the Negotiable Instruments Act are brought on record. It has to be proved that the notice under the Section has been sent to the accused and served on him. The legal liability also has to be proved. Many a trials have ended fatally for want of care at the trial stage on these basic issues.

In defamation cases, the publication has to be proved mandatorily and that the publication has been made within the jurisdiction of the court which is approached by the complainant.

In cases of promissory notes, a trial lawyer will have to establish that a promissory note has been duly executed; the signature found therein is that of the defendant and that it is supported by consideration. These basic requirements cannot be left to be resolved at the appellate stage. A trial lawyer therefore, will have to be watchful of the law as well as facts and should be vigilant about letting in evidence in support of both.

Unfortunately however, the quality of trial lawyers is deteriorating day by day. There was a time when young entrants in the Bar used to watch masterly cross examination by stalwarts in the Bar. These days the green horns in the Bar do not get any such opportunity at all as the era of stalwarts is fast diminishing. The old concept of learning and getting trained under a Guru is fast disappearing leading to serious erosion in the quality of the Bar and the high standards it used to maintain.

The legal profession is the only one which finds a proud place in the Constitution of India (See Article 22). The right to engage a lawyer has become crystallized as much as a fundamental right. No other profession finds its name recorded in the Constitution of India. This indeed is a rare honour to the members of the legal profession. They are recognized as social engineers with commitment to integrity, honesty and maintenance of high ethical standards in the profession. Recent events in some parts of India however, are a pointer and a sad reflection on errant and deviant behaviour by some members of the Bar.

It lies on the young shoulders of new entrants to the legal profession from prestigious institutions like NUALS to restore back the legal profession to its past glory and esteem. Please remember that three great nation builders -Gandhi, Lincoln and Lenin - had adorned our profession. Let me remind you that it was the members of the legal fraternity in Pakistan that brought the journey back to democracy in that country ensuring the supremacy of the judiciary and restoration of the Judges sacked by a dictatorial regime.

Let these noble thoughts inspire and guide the young entrants to the Bar from this institution.

Thank you for your kind attention.

Leena Gets a Decree : 2010 (2) KLT 836

(By K.V. Sadananda Prabhu, Advocate, High Court of Kerala)

The Sub Court did not draw a decree in Leena’s case. She filed a Writ Petition before the High Court seeking a direction to the civil court to draw a decree, for according to her, her right of Second Appeal is blocked for want of a decree. The High Court in Leena v. State (2010 (2) KLT 836), purportedly following a decision of the Supreme Court in Shyam Sundar Sarma v. Pannalal Jaiswal (2005 (1) KLT 198 (SC)), thought that the Supreme Court has resurrected the ghost of Thampi v. Mathew (1987 (2) KLT 848 (F.B.)) and dutifully followed Shyam Sundar Sarma as a binding precedent.

I do not find fault with anybody confusing with the judgment in Shyam Sundar Sarma. There are enough materials in the said judgment, for a lower judiciary to confuse about. But in reality, does Shyam Sundar Sarma anywhere in the judgment declares that the dismissal of a First Appeal consequent upon the rejection of a petition for condonation of delay, amounts to a decree. No, will be the emphatic answer, for the simple reason that Shyam Sundar Sarma was not concerned with the said point but something else. To put it differently, does Shyam Sundar Sarma say that the proper remedy of a party whose First Appeal is dismissed for want of condonation of delay is to file a Second Appeal ? Again no, will be the emphatic answer..

Shyam Sundar Sarma was concerned with a case coming directly under the Explanation occurring in O IX R. 13 C.P.C. Shyam Sundar Sarma remained ex parte in the suit. He filed a First Appeal against the ex parte decree. It was delayed and naturally it was accompanied by a petition to condone the delay. While the said proceedings were on, he presumably on advice, also filed a petition to set aside the ex parte decree, there again with a petition to condone the delay in filing the same. It appears that on 21.1.00, when the appeal filed by Shyam Sundar Sarma was taken up for consideration, there was no representation and the appellate court further found that no steps were taken in the petition to condone the delay and the same was rejected. Since the application to condone the delay was rejected, his main appeal was also was rejected. Shyam Sundar Sarma did not persue the said matter instead, he came back to the ex- parte court and attempted to prosecute his case of setting aside ex-parte decree, which was still pending in the ex parte court. The plaintiff resisted the same in view of the Explanation occurring in Order IX Rule 13 CPC which reads as follows: 

Explanation: Where there has been an appeal against a decree passed ex parte under this rule and the appeal has been disposed of on any ground other than the ground that the appellant has withdrawn the appeal, no application shall lie under this rule for setting aside the ex parte decree.

The plaintiff contended that the appeal dismissed for default, is a disposal otherwise than on withdrawal of the appeal. Shyam Sundar Sarma, the ex parte defendant seems to have contended that since his First Appeal was dismissed for want of condonation of delay, it must be taken that there is no appeal at all, obviously taking the stand that the dismissal of a petition to condone the delay made his appeal not maintainable. The first question the Supreme Court posed was, whether Shyam Sundar Sarma did file an appeal though with a petition to condone the delay ?. Supreme Court noted that there is no definition of an appeal in the CPC. Court thereupon made a survey of various statutes providing for appeal including Income Tax Act, O.41 R.3A and other Acts and came to the conclusion that an appeal accompanied by an application for condoning the delay in filing the appeal is an appeal in the eye of law. It is in that context, the Supreme Court referred to the Kerala decision in Thampi v. Mathew (1987 (2) KLT 848 (F.B.)) . The Supreme Court after referring the Kerala decision stated in para 10 thus

“......after referring to the relevant decisions on the question it was held that an appeal presented out of time was nevertheless an appeal in the eye of law for all purposes”.  The learned Judge of the Supreme Court should have stopped there. But unnecessarily added to it some more contents of Thampi v. Mathew and said  “....... and an order dismissing the appeal was a decree that could be the subject of a Second Appeal. This was something unwarranted observation which was not necessary for the disposal of Shyam Sundar Sarma’s case. What exercise the learned Judge was really carrying on in Shyam Sundar Sarma, is clear from the conclusion in para 10 itself, when the Supreme Court concluding the point stated that “.....thus the position that emerges on a survey of the authorities is 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. Remember, the context is, whether it is withdrawn or disposed of other wise than on withdrawal. This shows in clear terms, the point actually involved in the Supreme Court case. So also, the reference to Rathansingh v. Vijajasingh (2001 (1) KLT 327 (SC)), was unnecessary to determine the point involved in Shyam Sundar Sarma’s case. Hence the statement occurring in the judgment referring to Rathansingh v. Vijayasingh, that “the view expressed by the two Judges of the bench can not be accepted as laying down the correct law on the question” was not necessary for the disposal of Shyam Sunder Sarma. As stated earlier Rathansingh v. Vijaya Singh was not concerned with a case of explanation occurring in Order IX Rule 13 at all. Hence, the judging of the correctness of Rathansingh v. Vijayasingh  (2001 (1) KLT 327 (SC))) did not arise there for consideration. It is the aforesaid casual observation in para 10 & 12 that perhaps made the learned judge in the Leena’s case in 2010 (2) KLT 836, to think that Thampy v. Mathew (1987 (2) KLT 848 (F.B.)) is approved as good law and that Rathansingh v. Vijayasingh  (2001 (1) KLT 327 (SC)) is over ruled or departed from. The said assumption is wrong. The point that involved in Shyam Sundar Sarma is summarized by the Supreme Court in the concluding para 16 thus “The in the case on hand we find that the Trial Court, the Appellate Court and the High Court have rightly held that the petition u /O. IX R.13 of the Code would not lie in view of the filing of an appeal against the decree by the appellant and the dismissal of the appeal though for default, since a dismissal for default or the ground of it being barred by limitation, cannot be equated with a withdrawal of an appeal."  This was really the point involved in Shyam Sundar Sarma.

The decision in Leena (2010 (2) KLT 836) went wrong in assuming that Thampi v. Mathew (1987 (2) KLT 848 (F.B.)) is resurrected by Shyam Sunder Sarma. Surprisingly, it is after referring to para 10 of Shyam Sundar Sarma’s case, the learned Judge in Leena’s case went on to hold that dismissal of the First Appeal for want of condonation of delay is subject to a Second Appeal (see the conclusion in para 3 in Leena's case in (2010 (2) KLT 836). Obviously the learned Judge failed to distinguish between rice and chaff. Leena’s case is wrongly decided. It requires reconsideration.

Those Which I Had Forgotten to Tell You

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

In my three MISCELLANIES I have told the legal profession, (the Judiciary not excluded), several things, exhorting the members of the profession, (Judges included), what to do and what not to do. I have not enquired into the aspect whether my exhortations have been minded, or chided.

I find I had omitted to mention certain aspects. Let me here mention those which I had forgotten to mention earlier. 

    Between the Judge and the advocate, there is no winner or loser.

    Remember, lawyers do not take to the streets to celebrate their victory in court.

    A Judge is not lawyers’ director.

    Thinking positive, is important for both the Bench and the Bar.

    While lawyers are arguing, Judges should not hit the mute button.

    Avoid filing PIL under pressure of headlines in Television and Newspapers.

    A Judge is an ‘empowered’ lawyer only.

    Remember, powers are not forever.

    A Judge should keep up his privacy, avoiding promiscuity. 

    Lawyers should be patient before a control-obsessed Judge.

    Do not rubbish the legal profession.

    Advocacy seems like neglected tropical disease.

    Always carry an advocacy hand-book, not a ‘Sakumi’ ad-book.

    Judges should not be desperate for a win in a case.

    A Judge is a regulator. 

    The Bar Association is not a ‘royally’ stuffed store.

    Advocacy is not window-glossing.

    “A Division Bench should not be an invisible dwarf friend sitting with the Senior Judge on the Bench” (David Pannick) 

    There is no distant nth in the list of Judges.

    A Judge should write his judgments with his very blood. The decision cannot be left to the ‘psychic Paul’.

    Senior lawyers, do not hide from your age.

    Judges should always remember that there are better men in front of them.

    Begin every case with a human touch. 

    Juniors, shoot and win.

    Just as there is no-go area for lawyers, there is no-entry area for Judges.

    Judges and lawyers should remember that in due course they will find themselves in the scrap-heap.

    Courts are not set up by angels.

    Judges should not discriminate between lawyers.

    Judges should not say, “I am not inclined” without hearing the lawyer on the question involved.

    Judges are bound to hear lawyers. But lawyers are not bound to argue as the Judges wish.

I once heard a Judge say: “I shall teach them (the Government) a lesson”. How, and in what manner, the Government Pleader did not ask the Judge. O God, Give the Government Pleader the Mahatma’s gift of boldness.

    An advocate is not a ‘Court Musician’. 

    Mr.Judge, I come to argue the case, not to please you by blowing ‘Vuvuzela’.

    Do not sell advocacy at a discount.

    A Judge is not the monarch of all he surveys. 

    Lawyers, live a life of dignity.

    A Judge is not a store-house of law; nor is he a generator of law; he only decides a cause to the best of his ability after hearing lawyers; he may be right; he may be wrong.

    Judges are to enforce laws, not their wishes.

    A case is not decided by ‘Jabulani’ shoot-out between the Bench and the Bar.

    Talk to each other, not at each other. This is what is to happen in court. 

    Courts have no general administrative control over the Government.

    What happens in court between brief-rivals should be left in court.

    I am prepared for a role reversal, and show how a Judge should function.

    Like Judges, the Government is also a law-handler.

    A Judge should prove to a lawyer that his is the best court he had argued before.

A Court should not summon personal appearance of parties, especially officers of Government, represented by counsel, except in cases of contempt of court, and that, if only necessary. I have known at least one Judge who would frequently say: Let him be present before court. I dare say, such attitude is wrong.

    A Judge will certainly remain undiminished by being good.

    Learn from the print, not from the web. Read books, not lines.

    Judges should remember that the judiciary is not a body superior to the executive and the legislature.

    A Court’s function is to decide the cause, not anything more.

    Judiciary should remember that lawyers, litigants and Government officials are not its subordinates.

    Keep no ‘justice arrear’. 

    Judges should respect lawyers. They should not insult them.

    Legal profession is not stamp collection.

    Argument is not an offering to the Judge.

    The legal profession should be more kindly to English.

    Advocates Associations are found to celebrate “Queen’s Baton”, not Law Day.

    Judges are to listen and learn.

    It is not ‘show time’ in court. 

    Revere Judges; fear them not. 

    Respect lawyers; discount them not.

I stand for a brave new legal profession. I can only enjoy the joy of confidence. I have witnessed the legal profession from 1953 onwards. What a fall, my learned friends !

Sharia Marriage (Nikah)

(By S.A. Karim, Advocate, Vanchiyoor, Thiruvananthapuram)

Muslim marriage is defined to be a contract which has for its object the procreation and the legalizing of children. Another definition is that marriage among the Muslims is a solemn pact between a man and woman, soliciting each other’s companionship which in law takes the form of a contract.

One Roshan was married with Irshad eleven years back and had two children. Irshad went missing for five years. Meanwhile, Roshan married another man Gaffar. The community Panchayat of Mirnapur town, Muzaffernagar, pronounced her second marriage illegal and directed Roshan to return to her first husband Irshad. This is a news reported in the New Indian Express daily of 2nd June, 2010.

Mulla’s Principles of Mohammedan Law, and Dr.Tahir Mohammed’s Muslim Law of India, are two authorities on Muslim personal law, Sharia. In our country, there are only civil and criminal courts. The respective court decides whether one action is legal or illegal. Community Panchayat is unknown to our legal system. No one can blame, if a section believes Muslim marriage and the community Panchayat are outside the authoritative texts and the judicial system.

Neither these authorities nor any community Panchayat speak about a re-married woman returning to her first husband.

Apology to Mother Nature

(By K.G. Balasubramanian, Advocate, High Court of Kerala)

Giver of life

To me, to everyone,

To this earth, this universe,

Sustain me, that I may sustain you.

To be in you, 

To be with you, 

To be in me, To be in everything 

That is dear!

Oh, your gifts in abundance, 

Showered on us 

Since the beginning of time, 

To last till the end of time

I thrive in your kindness, 

I live in your mercy, 

I dream of your past, 

I dread about your future!

You, who made us, 

You, who mould us, 

You, who protect us, 

You alone, the giver of life! 

Salutes to you, Pranams to you! 

Forever thankful to you for 

This day and yesterday 

And tomorrow!

But, am I true?

Am I faithful?

To the promise I owe you,

The day I was born?

A promise humanity owes you,

Without remorse, without self?

No, mother!

We have been mean, 

We have been selfish, 

We have been soulless, 

To hurt you, to plunder you! 

Long I, for the valleys 

You gave us forever 

Now lost forever, 

Greed be cursed for 

That is the cause of 

My repentance!

I see green around me,

I see different shades of green

No, I say, I had seen green,

A green, the lush of which I miss now,

For my own folly,

For my own greed,

Accursed be, those moments

And those centuries of greed,

Rupturing your entrails and soul

To satisfy my greed!

Oh mother! I am sorry,

That I have been mean

For my greed, for my perfidy-

That I abused you, that I stole from you!

Mother, the donor of life!

Come back to me, 

Mother Nature! 

I hunger for your chill, 

I thirst for your warmth! 

I lust for your valleys, 

I long for the comfort of 

Your valleys and lakes!

You took back

What you gave

Leaving me in wilderness,

Huddled in anguish that

I was unfaithful,

Hoping, like never before,

For one more chance,

To bring back the lillys and Roses, 

The fragrance of life !

I long for the past, I dread the future,

For, there is no future without you,

For, you are not now!

Mother, Mother, Oh mother of all life!

Pray, come back to me!

Come back to me!!

Let me come back to you,

With agony, with pleasure,

Without greed, without envy!

I dream,

Of the green around me,