Compendium of Co Operative Law - 2008
By R. Muralidharan (Deputy Registrar (Planning & Legal), Co-operative Department, Puducherry
02/03/2009
COMPENDIUM OF CO-OPERATIVE LAW – 2008
(By R. Muralidharan, Deputy Registrar, Planning & Legal,
Co-operative Department, Puducherry)
The High Court of Kerala continues its onward march to contribute to the case law section on co-operative law in general and to co-operative law of Kerala in particular. As many as thirty nine decisions were reported in Kerala Law Times, more decisions would have been rendered by the Court, during 2008. What is more intriguing is in the interpretation and elucidation of law the High Court of Kerala continues to occupy its prime position. The decisions have far reaching impact and ramification. This article is a compendium of decisions of Kerala High Court co-operative law, reported in Kerala Law Times, during the year 2008, set out chapter-wise. Much of the decisions were on election and employees of co-operatives, twelve and fifteen respectively, to be specific. The connotation of Act and Rules denote the Kerala Co-operative Societies Act and Rules made thereunder.
On Membership
The law laid down in Thevan Ayyappan v. Kottapady East Service Co-operative Bank (2008 (3) KLT 42) is that a reading of Ss.16, 18 and 19 would show that membership depends upon the decision of a committee to admit a person as a member of the society. Such membership does not depend upon payments to the society in respect of membership. The use of words ‘applicant’ and ‘persons’ in S.16 contrasted with the use of the word ‘member’ in S.19 easily leads to this conclusion. R.20 prescribes the payments to acquire the rights of a member and S.19 inhibits exercise of rights of a member unless he has made such payments in respect of membership, as may be prescribed by the rules or the bye laws.
On Management
The question came up for consideration in Moideen v. Registrar of Co-operative Societies (2008 (2) KLT 184) is “what is the quorum for a meeting of a committee of a co-operative society in which Government has nominees ?” The only restriction on the nominated member is abstinence from participation in the discussion of any no-confidence motion and voting thereon and subject to such restriction, Government nominee are members of the committee. The quorum for a meeting of a committee in which S.31 applies, shall be such number of persons just above 50% of the total number of members, consisting of elected members in terms of S.28(1) and nominated members in terms of S.31(1). This is how the quorum rule contained in S.28(5) would apply to a meeting of an apex or a central society under the Act.
In terms of Explanation to S.33(1) “a tender of resignation” by a member of the committee shall have the effect of terminating his membership from the committee and hence provision in R.38(4) that resignation shall have effect only from date of its acceptance by committee is contrary to provisions of Act and their resignation had taken place the moment it was tendered by them to the President. The Court in Nataraja Gownder v. Registrar (2008 (2) KLT 335) held that R.38(4) to the extent it provides that resignation shall have effect only from date of its acceptance by committee is ultra vires of S.33(1) read with Explanation thereto and is void, as regards elected members. An elected member ceases to be in office by tendering his resignation to the President of the society.
What is the meaning of ‘month’ ‘six months’ and ‘consecutively’ appearing in S.33(1) came up for decision in Radhakrishnan v. Joint Registrar (2008 (2) KLT 385). The term “month” and “six months” in S.33(1) mean “month” or “six months” as per British calendar and “consecutively” is different from term “continuously”. Therefore, a regular period of a month understood as defined in General Clauses Act has to consecutively occur for six times to attain the status “consecutively for six months” enjoined by S.33(1). If a meeting is held in a month reckoned according to British calendar, meeting for next consecutive month can be held on any day in the next month and so calculating, if a meeting has been held In a particular month, vice of S.33 (1) would be attracted only on failure to hold a meeting on any of the days of the sixth consecutive month. Hence a meeting having been held on 7.4.2007, i.e. April, 2007, S.33(1) can be invoked only if no meeting was held till the end of October 2007, i.e. 31.10.2007.
As per bye laws of the second respondent society, board of directors shall consist of 14 members of whom 11 are elected members and two nominees of Rubber Board. Election notification was issued for electing 13 members including one member each from among members belonging to SC and ST communities and one woman representative. Same is challenged as contrary to bye laws. In Azeeskutty v. Returning Officer (2008 (4) KLT 165) it was held that dictate in S.28A overrules prescription in S.28(1A) regarding maximum number of members of committee. Hence in giving effect to reservation in terms of S.28A, in bench mark of 15 members preserved by R.28(1A) is exceeded, same will stand to be one within the permissible limits because the legislative intention and direction is to obtain representative of women and members of SC, ST and that goal has to be achieved notwithstanding anything else contained in the Act itself. No illegality was found with the provisions of the bye laws.
On Election
Question raised in Babu Andrews v. Thalassery Taluk Rubber & Agricultural Marketing Co-operative Society Ltd. (2008 (1) KLT 268) is whether returning officer appointed under R.35(3)(b) to conduct election is within authority to reschedule date publishing the final list of voters. Notification issued fixing the date of publication of final list of voters. Later returning officer, adjourned the date of publication of final list of voters to some other later date which is challenged. Court held that there is no legal impediment for returning officer, to publish final list of voters to any time, after considering of objections, if any, to draft list and it is within his power to adjourn date of publication of final list of eligible voters to any date later than the one stated in the notification declaring schedule of date in connection with election, but such publication shall be before 10 clear days of date fixed for poll.
The lis before the Division Bench in Subodhan v. State of Kerala (2008 (2) KLT 198) is when does an elected delegate of the primary society cease to be a member of a board of directors of an apex society on the basis of ‘default’ committed by the affiliated primary society is the question raised in the Writ Appeal. Court held that the moment a primary society is in default, the delegate from that society will cease to be a member of the apex society and that there is no requirement of issuing notice demanding payment of defaulting amount and allowing one month’s time. A provision similar to proviso to R. 44(2) is absent in R.46 and there is an automatic ceasure from membership of the committee for the delegate of that primary society. Reliance placed by the appellant on the decisions of this Court in Thommen Ittichenyanthu v. State of Kerala (1978 KLT 887), Rasheed v. State of Kerala (1988 (1) KLT 190) and Gangadharan v. Joint Registrar (1990 (2) KLT SN 13 (C.No.18) where in it was held that date of issuance of notice is an important criteria to decide disqualification would not apply to this case as these decisions relate to disqualification and membership of a committee under R.44.
The main challenge before the Division Bench in Philip v. State of Kerala (2008 (2) KLT 555) is to the exclusion of other types of co-operative societies other than primary agricultural credit societies and urban co-operative banks from voting rights or participating in the administration of District Co-operative Bank. Such exclusion of societies belonging to categories other than the two, was claimed to be arbitrary and discriminatory and violative of Art.14 relying on Alappuzha District Co-operative Bank v. State of Kerala (2003 (1) KLT 297). Held, there is a clear intelligible differentia between the societies retained as members of the DCB and those excluded. The view that the said classification has rational nexus with the orderly development of co-operative movement, which is the object of the Act cannot be said to irrational. The decision reported in 2003 (1) KLT 297 (supra) stands overruled.
The question in Ajeer v. Returning Officer (2008 (2) KLT 600) was whether administrators appointed under S.33 were within authority to allot additional shares to members, after declaration of election to the society since the bye laws provides that holding of not less than Rs.10,000 share capital in the society as a qualification for being elected to its board from among ordinary share holders. According to the petitioners, such allotment of shares would be contrary to R.26, if such transfer is made within sixty days prior to date of election. Additional shares were allotted before date fixed for filing nominations. Court held that acquisition of qualification of the immediate bench mark in the matter of holding share capital for being nominated can be satisfied at any time before submission of nomination paper and that prohibition in R.26 does not extent to transfer of shares among the members.
Returning officer handing over notification under R.35(3)(a) to President for dispatch and it was dispatched only on the date of nomination. When such an act was impugned in Thomas v. Thiruvananthapuram Jilla Unemployees’ Welfare Co-operative Society (2008 (2) KLT 743), Court held that it is not proper as R.35 does not include any authority for returning officer to authorize President or Secretary to dispatch the notifications which are issued by the returning officer.
Rr.27(2) & 44(1) - Dual membership is not a ground of disqualification from contesting in the election or to become a member of the committee and there is no provision which disqualifies a person on the ground of dual membership from being a candidate for election to the committee of one of those societies unless he is a member of the committee of another society of same type. This decision was reported in Ambatt Asokan v. Oochira Service Co-operative Bank Ltd (2008 (3) KLT 645).
The concept of the period of “at least 60 days” in R.35A(1) cannot be put in any straight formula. It has to be understood and applied in the context in which its application is called for, on the facts and in the circumstances of a given case, vide Abu v. State Co-operative Election Commission (2008 (3) KLT SN 56 (C.No.68). There is no specific power conferred on the State Co-operative Election Commission or any other authority on whose permission or orders would depend the date of conduct of the election. 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.
A member challenged the scheduling of election to that society on the ground that it violated R.35(3)(a)(iii) in Bhaskaran Pillai v. Nediyavila Milk Producers Co-operative Society Ltd. (2008 (4) KLT 271). It was contended that sufficient time for filing objections to draft voters list as contemplated in that rule and individual notice to him to do so were not granted. Cardinal questions before the Court were:
(i) Whether individual notice to members of a society inviting objections to draft voters list is necessary?
(ii) Whether period of submission of nominations under R.35(3)(a)(iii) can be taken as the period during which objections to draft voters list are to be filed?
(c) Whether “within three days of publication” occurring in R.35(3)(b) would take in ‘three clear days” as the time for filing objections to draft voters list?
(d) Interpretation of “not less than 15 days prior to” and “within three days of occurring in R.35(3)(b).
Court answered the three questions above in negative. Regarding the fourth question, it was declared that “not less than 15 days prior to” and “within three days of occurring in R.35(3)(b) do not have the same meaning as different words, phrases and expressions in the same sentence are not intended to convey the same meaning.
In cases of societies where there is no delimitation of area of operation into wards or regions on geographical basis, Col.1(f) in Form No.36 is superfluous and illusory and will be of no consequence because there is no particular region or ward which could be represented. Any failure to fill it will be of no consequence. This decision is reported in Francis Dominic v. State Co-operative Election Commission (2008 (4) KLT 701).
Nominee of a society will be disqualified for election to the society in which he is a delegate, if at the time of submission of his nomination his society is in default to the society in which he is a delegate under R.46(e). The G.O exempts all primary agricultural credit societies from the provisions of R.46(e) for a period of one year from the date of that notification is not discriminatory and is valid as held in Purushothaman Nair v. State of Kerala (2008 (4) KLT 879).
Petitioner challenges rejection of his nomination in Soman v. Electoral Officer (2008 (4) KLT 984). He did not make the declaration to be made by the candidate, though he states that he has made a declaration to be made by a candidate who is contesting to the seat reserved for SC/ST and contends that such declaration is sufficient and would be one in lieu of declaration of candidate as required by Form 36 issued in terms of R.35A (6)(a). Held, that declaration that he is qualified to contest for election is seat reserved for SC/ST candidate is insufficient to be read as a declaration that he has not incurred any disqualification from being a candidate. Principle of substantial compliance cannot be imported to sustain a nomination with no such declaration.
Petitioner’s nomination for election to the committee of the co-operative bank was rejected on the ground that he was in default to the bank as on the date of submission of nomination. Same is challenged in Rajasekharan Nair v. Returning Officer (2008 (4) KLT 994) on the ground that no notice was given to the petitioner calling upon him to pay any amount due or payable to the bank. Held, each of the clauses under sub-r.(2) is followed by a proviso and therefore it has to be held that the proviso at the foot of R.44(2)(c) applies only to that clause and cannot be imported into R.44(1)(c)(i) which prescribed ineligibility for being elected. Proviso at the foot of R.44(2)(c) is wholly irrelevant and inapplicable to the eligibility criteria fixed in R.44(1)(c)(i) for a member of a society to be eligible for being elected or appointed as a member of the committee of that society.
On Disputes
A dispute arose between the employee and the co-operative society on account of his dismissal from service. Bank raised a preliminary objection that dismissal is not a matter that would fall under S.69(1) and no question of reinstatement in service can be considered by Arbitrator. Order turning down the plea is challenged in Edava Service Co-operative Bank Ltd. v. Co-operative Arbitration Court (2008 (3) KLT 780). It was contended that specific inclusion of the words “touching their promotion and inter se seniority” in S.69(2)(d) include only dispute in connection with employment excluding appointment, dismissal etc. Held that inclusion of words “including their promotion and inter se seniority” as the last limb of S.69(2)(d) only clarifies that notwithstanding any vagueness that may be pointed out in that regard in S.69(1)(c), such disputes also fall within purview of that provision.
When there is a dispute regarding the credibility of documentary evidence tendered by one party, it being challenged as fabricated, the adjudicator has to decide whether the aid of an expert is required to reach at the conclusion which is just and in accordance with law. In deciding a dispute under S.69, the arbitrator appointed under S.70 has the power to entertain an application to bring in expert evidence, including by sending documents to obtain opinion of experts. Also, the evidentiary value of such opinion, if obtained, is also a matter to be evaluated by the arbitrator, who has to decide on the issue by himself, may be, with the aid of the expert opinion. While deciding so in Njanamuthan v. Thiruvananthapuram District Co-operative Bank Ltd. (2008 (3) KLT 1018), profitable reference was made to the judgments of the Court in Ebrahim Ismail Kunju v. Phasila Beevi (1991 (1) KLT 861), Thankam R. Pillai v. Arbitrator (1996 (1) KLT 225) and Paul v. Asst. Registrar (1998 (2) KLT 449).
On Appeal, Revision and Review
In Karumbi v. Thalayolaparambu Farmers Co-operative Bank (2008 (1) KLT SN 20 (C.No.24), it was held that under S.84, Secretary of Co-operative Tribunal cannot refuse to receive a revision petition on the ground that it is time barred. This is not a matter on which the Secretary of the Tribunal has to decide, because even if the case is to be dismissed as time barred, it is within the exclusive domain of the functions of the Tribunal. Hence, on production of copy of the judgment, the revision petition will be placed before the Tribunal for orders and the petitioner, through counsel, will be extended an opportunity of being heard before a final decision is taken in the matter by the Tribunal.
An arbitration award was challenged before Co-operative Tribunal. Tribunal set aside the award holding that it was not one touching the business of the society but granted 30 days time to plaintiff to approach Civil Court by filing a suit. Same is challenged in Lakshmanan v. Kanhirode Weavers Co-operative (P & S) Society Ltd. (2008 (2) KLT 234). Court held that the period of limitation for suits are prescribed in Limitation Act. Such time limit cannot be extended or curbed by Tribunal. It is not within the domain of the Tribunal to authorize the institution of a civil suit within any period.
Whether S.5 of the Limitation Act can be invoked for condoning delay in filing appeal under S.83(1) and absence of an order condoning delay will vitiate the proceedings came up for consideration in Calicut City Service Co-operative Bank Ltd. v. State of Kerala (2008 (3) KLT 1011). Held, there is no provision in S.83(1) to condone delay and Government not being a Court, S.5 of the Limitation Act does not apply. There has to be a formal order on the files condoning the delay, if it has power to do so.
On Employees of Co-operatives
Doubting the correctness of the decision in Public Service Commission v. Ramesan (2005 (4) KLT 466), the case was referred to Full Bench in Sathydevan v. Public Service Commission (2008 (1) KLT 289 (F.B.)). The petitioners who are employees of primary co-operative societies applied for the post of clerk/cashier in various district co-operative banks in the in-service quota. The qualification prescribed is graduation with Diploma in Co-operation. Contention is that the qualification is contrary to Rules and the only qualification required is S.S.L.C. with J.D.C. with three years experience for the posts.
S.80 authorizes Government, in consultation with the State Co-operative Union, to make rules regulating the qualification, either prospectiveiy or retrospectively and other conditions etc., but such rules can be framed only in consultation with the State Co-operative Union. Admittedly no such consultation was done. Apart from the above, power to make rule under S.80 is only with the Government and not with the Registrar or General Manager of Societies. Rules made under S.80 are subservient to those provided for in R.186. Registrar cannot make model rules or co-operative societies cannot make rules on advice of the Registrar which are inconsistent with the statutory rules. Registrar or district co-operative societies cannot pass rules against the provisions of the Act and Rules.
It is well settled law that a delegated power can be conferred by the delegate upon another. Applicable maxim is “Delegata potestas non potest delegari”, means a delegated power cannot be delegated. Therefore, model rule suggested by the Registrar and allegedly adopted by societies is not a valid rule made under S.80, which can be famed only by Government. Hence, considering R.186, the Full Bench is of the opinion that petitioners who had qualification of S.S.L.C, with J.D.C. and three years continuous experience are entitled to write the test under the 50% quota reserve for in-service candidates if they are otherwise eligible and rejection of their candidature for lack of qualification cannot be sustained. The Full Bench explained and distinguished the decision made in Ramesan’s (supra) case.
The Full Bench quoted with advantage the following decisions:
(a) In Valsala Devi v. Leela Bhai (2002 (3) KLT SN 18 (C.No.26), a Division Bench held that the qualification at the time of recruitment has to be considered.
(b) Rule made under S.80 is subservient to those provided for in R.186, as held in Ali v. State of Kerala (2006 (1) KLT 205).
(c) In Abdul Rasheed v. Kerala Public Service Commission (2002 (3) KLT 405) and Public Service Commission v. Abdul Rasheed (2007 (3) KLT 881), it was held that Public Service Commission has no power to go beyond qualification prescribed by the rule.
The creation of posts is a matter to be done in public interest, after job assessment, volume of work etc., and not to regularize the illegal appointments already made. If appointment is illegal, the same cannot be validated by the process of regularization or confirmation or creating posts. Ratification or regularization is possible only if one has acted within his authority, an illegal act cannot be ratified is the dictum of the Division Bench in Kerala State Wharehousing Corporation v. Devadasan (2008 (1) KLT SN 17 (C.No.21)).
As per G.O. (P) 44/1995 dated 14.3.1995, retiring pension shall be granted to an employee of a co-operative society who retired voluntarily after completing minimum of 20 years of qualifying service. Thereafter on 7.3.2001, earlier Government Order was amended to include a further condition that they should have attained the age of 50 years also. Amendment cannot apply to those who were granted voluntary retirement before 7.3.2001, as held in Krishna Kumar v. Kerala State Co-operative Employees’ Pension Board (2008 (2) KLT 230).
Petitioner was placed under suspension. The enquiry was not contemplated for a long time and hence seeks that suspension be revoked. The power to keep an employee under suspension in terms of R.198(6) has to be understood in such a manner that it stands controlled by the need and necessity that may be, on the facts, situation and circumstances of each case. Otherwise, the exercise of that power, merely by reference to the Rule, would erode justice as held in Leelamma v. Kerala State Co-operative Rubber Marketing Federation (2008 (2) KLT 608).
The Government exempted the Bank from the provisions of item (ii) of R.186(1) for the limited purpose of enabling the bank to appoint the second respondent as Junior Clerk subject to the condition that he shall successfully complete the J.D.C. course within two years from date of joining duty. However, he did not complete the J.D.C. course within the prescribed time. The Joint Registrar enlarged the time fixed to acquire the qualification. Same is challenged in Dilip v. Varapuzha Service Co-operative Bank (2008 (2) KLT 643). Court held that the power to grant exemption from rules is with the Government and power to enlarge the prescribed time can be exercised only by Government and not by Registrar.
R.188(A) stands with an explanation that for the purpose of that rule, “dependent” means “any member of the family of a deceased employee of the society; has no independent means of livelihood and who was dependent on the earnings of the deceased employee at the time of his/her death for his/her maintenance” and “family” means and includes the relative of the deceased employee in the order of priority indicated in that explanation. The daughter-in-law is not a relative going by the list of relatives included in terms of family going by that explanation is the decision reported in Aided Primary Teachers Co-operative Society Ltd. v Joint Registrar (2008 (3) KLT 755).
S.80(4) - Reservation for candidates belonging to SC/ST has to be on the basis of number of posts and not vacancies, vide Anandavally v. Alleppey District Co-operative Bank (2008 (3) KLT 1020).
Whether the benefit of reservation of 50% quota for employees of co-operative societies is confined to employees of primary agricultural credit societies and urban co-operative banks which are members of apex/central society and employees of nominal and associate banks are excluded. Held, nominal and associate members are also members for the purpose of the Act and Rules and notwithstanding Ordinance 62/07, benefit of reservation in terms of R.187 is available to employees of all member societies, including nominal and associate members. To reach the above decision in Vinod Kumar v. State of Kerala (2008 (4) KLT 49) the Court relied on a decision of the Division Bench in Surendran v. Kerala Public Service Commission (2002 (1) KLT 673).
Selection of junior clerks took place, rank list expired. Complaints arose that the selection overlooked communal reservation. It was contended that already there is 10% staff in the bank who belong to SC/ST community. Held in Beena Kumari v. Joint Registrar of Co-operative Societies (2008 (4) KLT 110), (i) Expiry of rank list is not a bar for a claim of reservation as appointments made violating reservation policy is illegal; (ii) Reservation policy has to be followed afresh for each recruitment; (iii) Availability of staff from SC/ST community is no reason to deny reservation for fresh recruitment.
In Thiruvalla East Co-operative Bank Ltd. v. Deputy Registrar (2008 (4) KLT 220), it was held that Act and Rules do not provide for invalidation of list made by Board, merely on the ground that committee of a society had not conducted the interview within the time limit fixed in R.182(4)(v) and that exceptional situations could be a ground on which conduct of interview beyond period of two months could be justified.
In Deepthy Vijayakumar v. Joint Registrar (2008 (4) KLT 321) the issue before the Division Bench relates to appointment of junior clerks in a co-operative bank. It was tainted with procedural irregularities and favouritism granted to certain candidates by granting higher marks in the interview and lowest marks to the written test rank holders and appointing more candidates than that is notified. Setting aside the entire selection, it was held that if in a public appointment the selection is fraudulent and deceitful, entire selection has to be set aside, individual innocence has no place in it. Vacancies that arise after a notification for a public appointment cannot be filled up without a fresh notification or without making necessary amendments. It violates the equality principle enshrined in Arts.14 and 16(1) of the Constitution.
An employee of a co-operative bank was convicted of a criminal offence. Later he was suspended by the President of the society in anticipation of disciplinary proceedings. It was challenged on the ground that in R.138(6) it is only the committee of the society who has the power to suspend such an employee. The bye-laws empowers the President to have a general control over the affairs of the bank. Such power of the President includes the power to make an order suspending an employee from the society in anticipation of ratification by the competent authority, namely the committee, of which the President is essentially a member, so held in Prasanth Maroli v. Kannur Primary Co-operative Agricultural & Rural Development Bank Ltd. (2008 (4) KLT 451).
In Josekutty v. Public Service Commission (2008 (4) KLT 546) it was held that B.Com. degree holder with co-operation as a subsidiary subject is not qualified to be appointed as Junior Clerk. R.7(1)(a) does not govern field of direct recruitment but only to other modes of recruitment.
State Co-operative Employees Pension Board was delaying payment of family-pension to member on the ground that contribution from employer co-operative society has not been received up-to-date towards pension fund. Held in Thulasi Devi v. Kerala State Co-operative Employees Pension Board (2008 (4) KLT 647), inability to pay is no answer in a matter relating to pension and non-payment of contribution by an employer is not a ground on which Pension Board can delay payment of pension.
The power to fix or re-fix a pay which carried with it, the power to rectify an anomaly that has crept into the fixation or re-fixation of pay, primarily rests with employer society. Such power may be available with an authority exercising powers of Registrar or superior authority in Government. It does not trickle down to officers of Pension Fund by virtue of Cl.27(3). This dictum is found in Kunju v. Kottayam Co-operative Agricultural & Rural Development Bank Ltd. (2008 (4) KLT 682).
On Miscellaneous
The issue raised in Ernad Primary Co-operative Agricultural & Rural Development Bank Ltd. v. State of Kerala (2008 (1) KLT 132) is as to whether the sale certificates issued under the Kerala Cooperative (Agricultural and Rural Development Banks) Act, 1984, for short “the CARD Act” are exempted from levy of stamp duty under the provisions of the Kerala Stamp Act. When exemption from stamp duty is claimed on the basis of awards or orders of the Registrar or Arbitrators, such decisions which fall under the clause of the notification are only those which are issued under the provisions of the Co-operative Societies Act and not under CARD Act.
A plain reading of sub-ss.(1) and (2) of S.37 would show that what is contemplated in an agreement between the creditor and the debtor, whereby the debtor agrees to the creditor requesting for deduction from salary in case of default in repayment of loan. Once such an agreement is executed between the creditor and the debtor, S.37(2) obliges the employer of the debtor to act in terms of any request made by the creditor, provided the request falls on the basis of the agreement under S.37(1), Once that is done, the responsibility to make deduction in terms of S.37(2) does not depend upon the violation of the employer, it is a statutory obligation, so held in Vilappil Service Co-operative Bank v. Commissioner of Police (2008 (2) KLT SN 32 (C.No.39)).
National Trust Act, 1999 - A legislation for the Mentally Retarded
By C.S. Ramachandran, Advocate, Thrissur
23/02/2009
NATIONAL TRUST ACT, 1999 – A LEGISLATION FOR THE
MENTALLY RETARDED
(By C.S. Ramachandran, Advocate, Trichur)
A direction is seen given by the Hon’ble High Court to the Sate Government and the Union of India, in its Judgment, Narayanankutty Menon v. State of Kerala (2009 (1) KLT 183), for providing adjudicatory mechanisms, to comprehend the mentally retarded persons also, within the provisions of the Mental Health Act, 1987. It appears that the Hon’ble Court had expressed such desire, either because of not bringing to its notice “Act 44 of 1999” statute, or because of the insufficiency of quasi-judicial adjudicatory procedures prescribed under the said Act.
“The National Trust for Welfare of Persons with Autism, Cerebral Palsy, Mental Retardation, Multiple Disabilities Act, 1999 (Act 44 of 1999)”, was enacted by the Parliament and the same was implemented on 30/12/1999. Accordingly, a statutory body under the Ministry of Social Justice and Empowerment, Government of India was set up, namely “The National Trust” and the basic objects of the said body are : (a) to enable and empower persons with disability to live as independently and as fully as possible within and as close to the community to which they belong, (b) to strengthen facilities to provide support to persons with disability to live within their own families, (c) to extend support to registered organizations to provide need based services during period of crisis in the family of persons with disability, (d) to deal with problems of persons with disability who do not have family support, (e) to promote measures for the care and protection of persons with disability in the event of death of their parent or guardian, (f) to evolve procedures for the appointment of guardians and trustees for persons with such disability requiring such protection, (g) to facilitate the realization of equal opportunities, protection of rights and full participation of persons with disability; and, (h) to do any other act which is incidental to the aforesaid objects.
With regard to the appointment of guardians for the persons with disabilities under the Act, Local Level Committees (LLC) are constituted at District level, under S.13 of the above mentioned Act. The said LLC, constituted for a period of 3 years, consists of (i) a Civil Servant, not below the rank of a District Magistrate, (ii) a representative of a registered organization and (iii) a person with disability as defined in S.2 Cl. (t) of the Persons with Disabilities Act, 1995. As per subsequent standing order issued by the National Trust on October 16, 2007, three more persons, namely, the District Social Welfare/District Disabled Welfare Officer, a Civil Surgeon and a Senior Lawyer, also were to be included as non-statutory co-opted members, for the effective functioning of the LLC. Necessary provisions are made in the said Act and the Rules made thereunder, for appointing guardians, their duties, procedure for application, removal of guardians, etc.
In view of a separate and independent statute for the class of disabled persons as stated in the National Trust Act, it will not be necessary to amend the Mental Health Act, 1987. There was an alternative remedy in the case cited above, for appointing a guardian under a specific statute, and hence there was no need for the parties to rush to the Hon’ble High Court, by invoking the Writ jurisdiction under Art.226 of the Constitution. The awareness of this special statute is very low amongst the public. But it is now improving due to the fact that several Guardian applications for persons with mental retardation, have been dismissed by certain mofussil Courts. Apparently it appears that the statute under reference was not considered by the Court, since the same was not brought to the notice of the Hon’ble High Court, by the Government Pleader.
2008 (4) KLT 16 -- Jain Babu v. Joseph -- Wale or Wane?
By P. Rajan, Advocate, Thalasserry
09/02/2009
2008 (4) KLT 16 -- Jain Babu v. Joseph -- Wale or Wane?
(By P.Rajan, Advocate, Thalassery)
The recent judgment of the Kerala High Court (reported in 2008 (4) KLT 16 - Jain Babu v. Joseph) rendered regarding appearance of the accused person in cases under S.138 of the Negotiable Instruments Act, right from the preliminary stage, seems to be extending absolute immunity to the accused till judgment is pronounced, unless court directs for appearance by exercising discretionary power, at the first instance or mid-way of the trial. Absence all along seems to be the rule - appearance is an exemption. The judgment became the axiom to be followed and adhered to, by all the Magistrate Courts, as the High Court also considered scope of S.205 Cr.P.C. in favour of the accused.
The two sections - Ss.205 and 317 Cr.P.C. are beneficial to the accused persons, meant to dispense with personal attendance of the accused, by allowing to appear and represent by the pleader. To invoke these provisions court must see satisfactory reasons, thus the relief is discretionary and cannot be extended on a mere request, generally, as the wordings show. Scope and ambit of such power bestowed with the court is considered by our High Court sometime back in not a verbose but in the ruling, with imitable brevity reported in 1986 KLT 128 (Mathew v. State of Kerala). In this judgment court has taken exception to judicial sadism regarding directions for appearance of accused persons when presence of the accused is not necessary for the progress of trial, when insistence for attendance is purposeless.
In Jain Babu’s case (supra) his Lordship has given directions to give exemption all along, unless the Trial Court feels otherwise, due to the reason that offence under S.138 of the N.I. Act is a technical offence and such offence doesn’t even invite the vice of involvement of moral turpitude. The change to century and more old Negotiable Instruments Act, 1881, as its Preamble to the 1988 amendment says, is to enhance the acceptability of cheques in settlement of liabilities and also to check indiscriminate issuance of cheques knowing well by the drawer, on presentment the instrument will meet the fate of return; causing hardship even to banking business. In many matters under the new sections, technique of the accused is writ large-putting different signature, giving someone’s cheque, closure of account etc. which are due to deliberate designs coupled with requisite intention, anticipating legal action. But the law as such is favouring the payee and holders; use and abuse for personal gain, is a proven fact, after the advent of the amendments. The enactment is dogged by different rulings on vital points, of the High Courts even after its infancy, but the paramount issue of jurisdiction to launch prosecution; final verdict is yet to be declared by the Apex Court as the judgments are varying (1999 (3) KLT 440 (SC) - Bhaskaran v. Balan -- 2008 (3) KLT 461 - Santhosh Kumar v. Mohanan). The present judgment permits accused from not appearing even on the judgment date, thus the duty of the trial court lawyer becomes onerous and directs for presence, sentence is presumable. Framing of charge, questioning of the accused, on conclusion of trial, are procedures meant for the trial courts and are not replicate, as the practice before the higher courts. Trial in absence, thus being the rule, despite proper conduct of the matter, errant if the party is, gives chance to challenge the steps of the Trial Court, even during intermediary stage.
In another ruling also this point was considered, while giving certain directions to the criminal courts, by the High Court (2003 (1) KLT 339 - Alice George v. Deputy Superintendent of Police). Rare phraseology and salutary nature of that verdict made welcome change to the procedures in criminal cases thereafter, but greater attention is needed in certain vital aspects also. Daily list system in Magistrate courts, attending to matters if several are the accused to avoid lawyers jostling with accused in court halls; prior intimation to official witnesses atleast, if the presiding officer is on long leave, informing time of sitting to the bar by the court, if not possible to commence work at the usual time as per the rules, in forenoon and afternoon, providing certified copies of documents and depositions without much delay, so also pronouncing judgments of cases on the date of posting itself if the matter has attracted public attention, besides media and police presence, if permitted. Let the practice be, bite what one can chew, to avoid public reproach and infamy to the system of justice delivery. The observation made in 2008 (4) KLT SN 65 (C.No. 61) is worth repeating as the bar has legitimate interest in the sublimity and the claims for the sublimity of the judicial process. It is here that the corrective dimension of advocacy assumes importance.
Procedure or provision may be vintage like and simplification in summary way is the answer; quick culmination of litigation being the goal, absolute privilege to a specified class generally, appears to be undeserving judicial protection.
Many provisions of law and related procedures deserve overhauling but as no man is above law, and not under it also, total immunity to the maximum level, to categorized few is detrimental to the interests of the complainants also. State owned Financial institutions also approach courts with complaints u/S.138; regular Adalat considers those complaints for mediation and settlement. How far a lawyer can assure the presence of his client when needed, is a matter of inference, as many accused do the act of cheating also by handing over cheques, with false representation, for personal gain. Gender difference, distant abode or age of the accused seem as genuine grounds for exemption, but when everybody can avail the advantage of non-appearance unless Magistrate directs, will lead to delay in disposal of cases or can stall the proceeding by resorting to remedies before higher forums, basing on this ruling, besides continuous absence, if no bond of any nature is executed.
EXECUTION SALE PENDING APPEAL FROM DECREE -- NEED FOR AMENDMENT OF THE CODE OF CIVIL PROCEDURE -- SOME THOUGHTS
By K.T. Sankaran, Judge, High Court of Kerala
26/01/2009
EXECUTION SALE PENDING APPEAL FROM DECREE --
NEED FOR AMENDMENT OF THE CODE OF CIVIL PROCEDURE -- SOME THOUGHTS
(By Hon'ble Mr. Justice K.T.Sankaran, Judge, High Court of Kerala)
A vexed question often arises before executing courts; the question is what is to be done if, after the execution sale, the decree on the basis of which the sale took place is reversed or set aside ? Would the judgment debtor get back his property by restitution or otherwise ? Or should the auction purchaser be protected ? If the sale was not confirmed when the decree was set aside or reversed, should the sale be confirmed?
2. The difficulty arises when the execution sale takes place pending appeal from the decree or an application for setting aside the ex parte decree. The appellate court may reverse the decree under which the sale took place. Sometimes, the appellate court may set aside the decree and remand the case to the trial court for fresh disposal. In some other cases, the decree may be modified. If the decree was passed ex parte, it may be set aside on the application of the defendant. When the very substratum on which the sale took place vanishes, what would happen to the execution sale ? Would it make any difference if the auction purchaser is not a stranger but the decree holder himself ?
3. Different views were expressed by various High Courts. The Supreme Court has rendered several judgments touching upon the point. Still there are grey areas.
4. In this context, it is relevant to advert to the relevant provisions in the Code of Civil Procedure 1908 and in the erstwhile Codes.
5. Under the 1859 Code, no sale of immovable property would become absolute until confirmation of the sale by the Court. S.316 of the Code of 1877 was amended in 1879. The proviso to S.316 as amended was to the effect that the purchaser would get title to the property from the date of confirmation of sale only if the decree under which the sale took place was subsisting on that date. S.316 with the proviso was re-enacted in the Code of 1882. In the Code of 1908, S.316 was split up into S.65 and O.XXI R.94 but the proviso was not included either in S.65 or in R.94 of O.XXI.
6. S.65 of the Code of 1908 provides that where immovable property is sold in execution of a decree and such sale has become absolute, the property shall be deemed to have vested in the purchaser from the time when the property is sold and not from the time when the sale becomes absolute. R.92 (1) of O.XXI states that where no application is made under R.89, R.90 or R.91, or where such application is made and disallowed, the court shall make an order confirming the sale, and thereupon the sale shall become absolute. The proviso therein provides that where any property is sold in execution of a decree pending the final disposal of any claim to, or any objection to the attachment of, such property, the court shall not confirm such sale until the final disposal of such claim or objection. Where sale of immovable property has become absolute, the Court shall grant a certificate to the purchaser, under R.94 of O.XXI, which is usually called the ‘sale certificate’. There is no provision in the Code of 1908 which makes any provision for safeguarding the interests of the judgment debtor in case the decree under which the sale took place is varied, set aside or reversed. A provision similar to the proviso to S.316 of the Code of 1877 as amended in 1879 is absent in the 1908 Code.
7. In Sorimuthu v. Muthukrishna (AIR 1933 Mad. 598), Justice Madhavan Nair made a comparative study of the relevant provisions in the Code of 1859 and the subsequent Codes upto 1908. The Supreme Court in Janak Raj v. Gurdial Singh (1967 KLT SN 5 (C.No.10) SC = AIR 1967 SC 608) referred with approval the decision of Justice Madhavan Nair.
8. In Binayak Swain v. Ramesh Chandra Panigrahi and Anr. (AIR 1966 SC 948), a money suit was decreed ex parte by the appellate court. In Second Appeal, the High Court set aside the decree and remanded the case to the trial court. After remand, though the trial court dismissed the suit, the appellate court decreed the suit and it was confirmed in Second Appeal. Before remand of the suit, the properties of the judgment debtor were sold in Court auction and purchased by the decree holder. The judgment debtor filed an application for restitution. It was resisted on all grounds including the ground that after remand, the suit was decreed. The matter went up to the Supreme Court. The Supreme Court held that the judgment debtor was entitled to restitution. It was held:
“We are of the opinion that the appellant is entitled to restitution notwithstanding anything which happened subsequently as the right to claim restitution is based upon the existence or otherwise of a decree in favour of the plaintiff at the time when the application for restitution was made. The principle of the doctrine of restitution is that on the reversal of a decree, the law imposes an obligation on the party to the suit who received the benefit of the erroneous decree to make restitution to the other party for what he has lost. This obligation arises automatically on the reversal or modification of the decree and necessarily carries with it the right to restitution of all that has been done under the erroneous decree; and the Court in making restitution is bound to restore the parties, so far as they can be restored, to the same position they were in at the time when the Court by its erroneous action had displaced them from. It should be noticed, in the present case, that the properties were purchased by the decree holder himself in execution of the ex parte decree and not by a stranger auction purchaser. After the ex parte decree was set aside in appeal and after a fresh decree was passed on remand, the sale held in execution of the ex parte decree becomes invalid and the decree holder who purchased the properties in execution of the invalid decree is bound to restore to the judgment debtor what he had gained under the decree which was subsequently set aside.”
9. In Janak Raj’s case (1967 KLT SN 5 (C.No.10) SC = AIR 1967 SC 608), an ex parte decree for money was passed. In execution of the decree, immovable property belonging to the judgment debtor was sold in auction and it was purchased by a stranger. Later, the ex parte decree was set aside. The question arose for consideration was whether sale could be confirmed. The Supreme Court held in the affirmative. It was held:
“Ordinarily, if no application for setting aside a sale is made under any of the provisions of Rr. 89 to 91 of O.XXI, or when any application under any of these rules is made and disallowed, the Court has no choice in the matter of confirming the sale and the sale must be made absolute. If it was the intention of the Legislature that the sale was not to be made absolute because the decree had ceased to exist, we should have expected a provision to that effect either in O.XXI or in Part II of the Code of Civil Procedure of 1908 which contains Ss. 36 to 74 (inclusive).”
However, the question whether restitution can be asked for against a stranger auction purchaser at a sale in execution of a decree, invoking S.144 C.P.C., was left open.
10. In Sardar Govindrao Mahadik and Anr. v. Devi Sahai and Or. (AIR 1982 SC 989), the money decree passed by the Trial Court was set aside in Appeal and the suit was dismissed. In Second Appeal, a decree for a lesser amount was passed. Pending first appeal, the property belonging to the judgment debtor was sold in court auction and it was purchased by the decree holder for a paltry amount. The decree holder- auction purchaser later sought to get himself impleaded in an Appeal from a suit for redemption of mortgage filed by the judgment debtor and his assignee. The High Court held that the auction purchaser was entitled to get only the balance decree amount and interest. The Supreme Court, after holding that the High Court was right, only enhanced the amount to be paid to the auction purchaser. It was held (in paragraph 61) thus:
“But what happens if the auction purchaser is the decree holder himself ? In our opinion, the situation would materially alter and this decree holder-auction purchaser should not be entitled to any protection. At any rate, when he proceeds with the execution he is aware of the fact that an appeal against the original decree is pending. He is aware of the fact the resultant situation may emerge where the appeal may be allowed and the decree which he seeks to execute may be set aside. He cannot force the pace by executing the decree taking advantage of the economic disability of a judgment debtor in a money decree and make the situation irreversible to the utter disadvantage of the judgment debtor who wins the battle and loses the war”.
11. In Chinnammal v. P. Arumugham and Anr. (AIR 1990 SC 1828), a suit on promissory note was decreed. Pending appeal by the defendant, the decree was put in execution and large extent of property belonging to the judgment debtor was sold. The properties were purchased for a low price by a stranger, but who is a “sambandhi” of the decree holder. The appellate court set aside the judgment and decree and dismissed the suit. The judgment debtor moved the executing court for setting aside the sale contending that the sale was vitiated by material irregularity, fraud and collusion. He also contended that the sale should be nullified and restitution should be ordered. The Supreme Court allowed the prayer. It was held:
“10. There is thus a distinction maintained between the decree holder who purchased the property in execution of his own decree which is afterwards modified or reversed, and an auction purchaser who is not party to the decree. Where the purchaser is the decree holder, he is bound to restore the property to the judgment debtor by way of restitution but not a stranger auction purchaser. The latter remains unaffected and does not lose title to the property by subsequent reversal or modification of the decree. The Courts have held that he could retain the property since he is a bona fide purchaser. This principle is also based on the premise that he is not bound to enquire into correctness of the judgment or decree sought to be executed. He is thus distinguished from an eo nomine party to the litigation.
11. There cannot be any dispute on this proposition and it is indeed based on a fair and proper classification. The innocent purchaser whether in voluntary transfer or judicial sale by or in execution of a decree or order would not be penalised. The property bona fide purchased ignorant of the litigation should be protected. The judicial sales in particular would not be robbed of all their sanctity. It is a sound rule based on legal and equitable considerations. But it is difficult to appreciate why such protection should be extended to a purchaser who knows about the pending litigation relating to the decree. If a person ventures to purchase the property being fully aware of the controversy between the decree holder and judgment debtor, it is difficult to regard him as a bona fide purchaser. The true question in each case, therefore, is whether the stranger auction purchaser had knowledge of the pending litigation about the decree under execution. If the evidence indicates that he had no such knowledge he would be entitled to retain the property purchased being a bona fide purchaser and his title to the property remains unaffected by subsequent reversal of the decree. The court by all means should protect his purchase. But if it is shown by evidence that he was aware of the pending appeal against the decree when he purchased the property, it would be inappropriate to term him as a bona fide purchaser. In such a case the Court also cannot assume that he was a bona fide or innocent purchaser for giving him protection against restitution. No assumption could be made contrary to the facts and circumstances of the case and any such assumption would be wrong and uncalled for.”
12. In Chinnammal’s case, the Supreme Court referred to Janak Raj’s case and Sardar Govindrao Mahadik’s case. It was also held in Chinnammal’s case that the knowledge of the auction purchaser about the pending litigation would make all the difference. If he is a speculative purchaser, he is in no better position than the decree holder. Such a person need not be protected against restitution.
13. In Kumar Sudhendu Narain Deb v. Renuka Biswas and Ors. (AIR 1992 SC 385), pending appeal from the preliminary decree in a mortgage suit, final decree was passed, as no stay was granted by the appellate court. The final decree was put in execution. The mortgaged properties were sold. Strangers purchased the properties in auction. In the appeal against the preliminary decree, a compromise was arrived at between the parties. The auction purchaser was not a party to the appeal. The appellate court passed a substituted preliminary decree. The judgment debtor filed an application under S.47 C.P.C. and another application under R.90 of O.XXI. The executing court rejected the contentions of the judgment debtors and the order was confirmed in Appeal. The Supreme Court allowed the Appeal and set aside the sale. It was held that the auction sale and the confirmation of sale became non est on the passing of the substituted preliminary decree.
14. In Sudhendu Narain’s case, the Supreme Court referred to Janak Raj’s case and Sardar Govindrao Mahadik’s case. Janak Raj’s case was distinguished holding thus: “In that case the relief in the suit was unconnected with the property sold in execution of the decree. Here the relief in the suit is inextricably connected with the property sold.” It is interesting to note that Chinnammal’s case was not cited before the Supreme Court in Sudhendu Narain’s case.
15. In Padanathil Rugmini Amma v. P.K.Abdulla (AIR 1996 SC 1204), the question which arose for consideration was whether an assignee from a lessee, who got lease from the auction purchaser decree holder, could claim protection from restitution in the event of ex parte decree being set aside. The Kerala High Court held that an assignee from the decree holder- auction purchaser would be protected. The decision of the Kerala High Court (1986 KLT 769) was reversed by the Supreme Court. It was held:
“15. The distinction between a stranger who purchases at an auction sale and an assignee from a decree-holder purchaser at an auction sale is quite clear. Persons who purchase at a Court auction who are strangers to the decree are afforded protection by the Court because they are not in any way connected with the decree. Unless they are assured of title, the Court auction would not fetch a good price and would be detrimental to the decree-holder. The policy, therefore, is to protect such purchasers. This policy cannot extend to those outsiders who do not purchase at a Court auction. When outsiders purchase from a decree-holder who is an auction purchaser clearly their title is dependent upon the title of the decree holder auction purchaser. It is a defeasible title liable to be defeated if the decree is set aside. A person who takes an assignment of the property from such a purchaser is expected to be aware of the defeasibility of the title of his assignor. He has not purchased the property through the Court at all. There is, therefore, no question of the Court extending any protection to him. The doctrine of a bona fide purchaser for value also cannot extend to such an outsider who derives this title through a decree holder auction purchaser. He is aware or is expected to be aware of the nature of the title derived by his seller who is a decree holder auction purchaser.”
16. It is interesting to note that the four Judge Bench decision in Binayak Swain was not referred to in any of the aforesaid decisions except in Rugmini Amma’s case. In Rugmini Amma’s case, reliance was placed on Binayak Swain’s case, but the other decisions referred to above were not cited.
17. On a careful analysis of the decisions of the Supreme Court referred to above, to my mind, still there are several questions which arise for consideration. They are the following:
(a) In so far as the judgment debtor is concerned, what is the distinction between a money decree and a mortgage decree, in the matter of protection of his property ?
Is not the case of the judgment debtor to get back his property by restitution, stronger and justifiable in the case of a simple money decree when compared to cases in which the property is involved ?
(b) What is the nature of the enquiry to be made by the executing court to arrive at a finding that the stranger auction purchaser is a bona fide purchaser or a person set up by the decree holder ?
(c) Does not the enquiry on the question of bona fide nature of the purchase really prolong the litigation ?
(d) On whom the burden of proof lies on the question whether the auction purchaser is a bona fide purchaser and not one set up by the decree holder ?
(e) What are the safeguards a stranger auction purchaser expected to take?
(f) Is it not better if the stranger auction purchaser is told by law that his rights under the auction purchase are defeasible in case the appeal against the decree is allowed or the ex parte decree is set aside ?
(g) What difference it would make if the appeal against the decree is allowed before confirmation of sale or after confirmation of sale ?
I think it is necessary to consider whether appropriate amendment to the Code of Civil Procedure, 1908 is necessary, to deal with a century long confusion, which existed even before the enactment of the 1908 Code.
Speedy Tria - Fair Trial
By R.D. Shenoy, Sr, Advocate, HC
26/01/2009
SPEEDY TRIAL -- FAIR TRIAL
(By R.D. Shenoy, Sr.Advocate, High Court of Kerala)
Without a rigmarole, it is thought proper to straightaway enter the subject namely, how much expeditiously a Trial Judge can try a suit and deliver the judgment as the law of procedure now stands. For the first time when a plaint comes up before a Trial Court for consideration, the learned judge, unless there is reason to reject the plaint under O.VII R.11 of Code of Civil Procedure (CPC for short) orders summons to be issued to the defendant and posts the case for return of summons after taking care to fix the date so as to give sufficient time to the defendant to appear in court either directly or through counsel. (O. V C.P.C. operates). Once the summons is served, the rule of ninety days under O.VIII R. 1 is reckoned from the date of service of summons to file the written statement. The rule of ninety days was introduced in 2002. Many a Judge in the Trial Court, without taking into consideration the ground reality of reluctance of the members of the bar to change the mind-set, dispose of suits by invoking the provisions of O.VIII R.10 of C.P.C. for the sole reason that written statement is not filed. This course of action often hits the concept of fair trial. As the law now stands, grant of time to file written statement, beyond ninety days is an exception. Will it not be a desirable situation if a Trial Judge, grants one long adjournment and two short adjournments within the stipulated period of ninety days so as to comply with the rule of ninety days to complete pleadings? Sometimes it so happens that, the defendant does not file the written statement within the time when the Trial Judge sets him at ex parte the legality of which course of action one has to consider in the light of the proposition that a case can be defended even without filing a written statement. So much so instead of setting the defendant at ex parte it will be open to the Trial Judge to post the suit for evidence giving a short time to enable the plaintiff to adduce evidence either by affidavit or other wise in which case the defendant can avail of an opportunity to cross examine the plaintiff. In this scenario, the suit is likely to be disposed of within, say, four months from the date of service of summons.
It may so happen that the defendant will be alerted to file his written statement during the period beyond ninety days and the date on which the plaintiff is supposed to give evidence, in which event, guided by the concept that the delivery of justice, though must be speedy, should be fair, the learned Trial Judge should think of accepting the written statement without insisting on filing a petition to receive the written statement on file and proceed to the next stage without losing time.
It is not unusual that the written statement contains a counter claim. If the written statement contains counter claim, the trial court invariably does not fail to grant time to the plaintiff to file his defence to the counter claim. It is desirable that the Trial Judge grants sufficient but reasonable time to enable the plaintiff to file his defence to the counter claim. Trial courts are expected to be vigilant enough to probe whether in suits like partition or recovery of possession on the strength of title, defence of impartibility or dispute as regards shares or as regards title is set up on the basis of a Will, gift, tenancy etc. Though it will be an ideal situation if the defence counsel brings to the notice of the court that such a defence is taken in the written statement, the Trial Judge, of his own, may advert to the nature of the defence immediately after the written statement is filed lest at the time when the suit is listed for trial, an application for reference to Land Tribunal or an application to receive a replication by way of answer to the defence based on Will, Gift etc. set up in the written statement may arrest the progress of the trial thereby disturbing the time frame. In cases where the written statement contains a cross claim or a defence based on Will, Gift or tenancy the trial court may alert and permit the plaintiff to file replication (subsequent pleading under O.VIII R. 9) and to make this opportunity effective post the case for the said purpose bearing in mind that O.VIII R. 9 provides for an optimum time of 30 days therefor.
Occasions, though rare, arise where the trial Court is called upon to invoke Third party procedure under O.VIII-A of CPC. Invocation of the powers under O.VIII-A of CPC arises when the defendant claims to be entitled to contribution or indemnity against any person not already a party to the suit. One instance where Third party procedure is invoked is where a suit is filed by the endorsee of a promissory note against the endorser alone. In that suit the defendant (the endorser) can apply to bring the maker of the promissory note on record as defendant by invoking third party procedure.
Though rarely, a situation arises, when written statement filed by one of the defendants contain a claim of contribution from or indemnify against any other defendant in the suit. In this event also provisions of O.VIII-A (Third party procedure) will come into play.
Once the operation of O.V to O.VIII-A of C.P.C. is completed, the suit is pushed forward to the next stage, generally, to the stage of raising issues, skipping the operation of O.X to XIII of C.P.C. By this tame, the trial court must have spent, on a fair estimation, a period of 6 to 7 months reckoned from the date of service of summons on the defendant. In this context, it has to be stated that a trial Judge, if is theoretically familiar and accustomed to the type of suits and general defences thereto as contained in Appendix A to C.P.C., will find it easy to comprehend the possible issues in the type of suit before the trial court. With that understanding, the issues can be raised with the help of the counsel on both sides and bearing in mind the relevant matters stipulated in O.XIV of C.P.C. based on which issues are to be raised. It is desirable that the issues are settled in open court in the presence of the counsel on both sides. If this is done, the Trial Court as also the counsel on both sides will be alerted of the necessity of issuance of a commission for the purposes mentioned in O.XXVI of C.P.C. particularly in property disputes where identity of the property may be in dispute. As far as possible, adjournment of suit for the purpose of raising issues may be avoided. At the time of settling the issues, the Trial Court may enquire whether the requirements of procedure regarding production of documents is complied with by the parties to the suit as envisaged by O.VII R. 14, O.VII R. 17, O.VIII R. 1A and O.XIII R. 1. If there is any lapse in this regard either on the part of the plaintiff or the defendant, an opportunity to bridge the lapse may be given by posting the case for pre-trial steps specifically mentioning in the proceedings sheet “For pre-trial steps. Cure lapses regarding production of documents on time and file list of witnesses”. Time given need not exceed two weeks (vide O.XVI R. 1 C.P.C.). In case the plaintiff and/or the defendant fail to bridge the lapse and/or fail to file list of witnesses, the trial court may grant further time not exceeding ten days if prayed for. (O.XVII of C.P.C. operates). The important thing to note is that there has to be an interaction between the Trial Judge on the one hand and the counsel on both sides on the other hand at the time of raising issues. Thus the trial court makes the suit to enter into the portals of O.XVIII of C.P.C. within a period of eight months reckoned from the date of service of summons on the defendant. It may be possible for the trial court to take suits which do not involve counter claim, defences warranting filing of replication by the plaintiff and/or third party procedure, to the portals of O.XVIII of C.P.C. even before the expiry of eight months aforesaid.
In the wake of the special list system, as prevalent now, the suits, after entering the portals of O.XVIII C.P.C., have to wait till they are included in the special list for examination of witnesses and hearing of the suit. One has to think aloud whether the progress of the suit should be allowed to be arrested because of the special list system as prevalent at present. One is prone to think that utility of O.XVIII R. 4 and O.XXVI R. 4-A C.P.C. dealing with the recording of the evidence in the suit as substituted by amendment with effect from 1.7.2002 is not properly tapped by trial courts. This aspect, it is thought, requires to be dilated.
O.XVIII R. 4 C.P.C., states that examination in chief of a witness shall be on affidavit and that cross examination and re-examination of the said witness shall be taken either by the court or by the commissioner appointed by it. O.XVIII R. 6 states that the High Court or the District Judge, as the case may be, shall prepare a panel of commissioners to record the evidence under O.XVIII R.4 of C.P.C. O.XVIII R. 19 states that notwithstanding any thing contained in the rules in O.XVIII C.P.C, the court may, instead of examining witnesses in open court, direct their statements to be recorded on commission under R. 4A of O.XXVI C.P.C. O.XXVI R. 4A states that notwithstanding any thing contained in the rules, any court may in the interest of justice or for expeditious disposal of the case issue commission in any suit for examination of any person resident within the local limits of jurisdiction and the evidence so recorded shall be read in evidence. The cumulative effect of the aforesaid provisions is that recording of the evidence of witnesses by Advocate Commissioner is quite legal. However, doubts arose whether evidence in cases in which an appeal is allowed can be recorded by the commissioner appointed by court by recourse to O.XVIII R. 4 of C.P.C. The basis of this doubt is because of O.XVIII R. 5 which provides that in cases in which appeal is allowed evidence of witnesses shall be taken down by or in the presence of the Judge. The said doubt stands cleared by the Apex Court in Salem Advocate Bar Association (2005 (4) KLT SN 32 (C.No.43) SC = AIR 2005 SC 3353). The Apex Court held that O.XVIII R. 19 and O.XXVI R. 4A would override O.XVIIII R. 5(a) and (b) C.P.C.
Law being thus settled, the Trial Court, after taking the case to the portals of O.XVIII, is empowered to appoint advocate commissioner from the panel of commissioners prepared in terms of O.XVIII R. 6 to record evidence of witnesses, irrespective of the fact whether an appeal is allowed or not in the case before it. It is provided in O.XVIII R. 5 that the commissioner shall submit the report within sixty days from the date of issue of commission. No doubt care must be taken in preparing panel of commissioners so that advocates having enough experience are included in the panel. Depending upon the nature and volume of evidence likely to be adduced, the trial court will have no difficulty in fixing the time frame for submission of the report by the commissioner, in almost all cases, within sixty days. The court may direct the commissioner to submit biweekly interim report disclosing the progress in recording the evidence.
Taking into consideration the time frame provided in O.VIII R.1 and R. 9, O.XVI R. 1, O.XVIII R. 4(5) and also the time that can be granted for filing written statement in answer to counter claim or replication or to complete third party procedure, the trial court will be able to take the case to the stage of hearing the arguments within an estimated period of eleven months from the date of service of summons on the defendant.
On receipt of the report of the commissioner after recording the evidence, trial court may fix a date for hearing the arguments. As far as possible the court should make an endeavour to complete the arguments within thirty from the receipt of the report from the commissioner.
Thus judgment in the case can be pronounced within a period of thirteen/fourteen months reckoned from the date of service of summons on the defendant or even earlier depending upon the nature of the suit.
By virtue of the amended provisions in the C.P.C., progress of cases before courts is expected to be managed by the Trial Judge. Formerly it was, to a large extent, in the hands of legal practitioners or litigants. Power of the High Court was used to be invoked by challenging interlocutory orders passed by trial courts. Obtaining of an interim order of stay of further proceedings, often, arrested the progress of the case. S.115 C.P.C. was amended to achieve the goal of divesting a litigant or a legal practitioner of controlling the progress of the suit in the trial court. No doubt O.XLIII R. 1 provides for appeal from orders. As far as the trial court is concerned, a reading of O.XLIII reveals that appeal is provided against such orders, wherein there is no scope for passing an interlocutory order affecting the progress of a suit. So much so a party to the suit can invoke the visitorial jurisdiction under Art.227 of the Constitution of India challenging interlocutory orders passed by the Trial Court, which challenge will not be sustainable under S.115 C.P.C. Depending upon the nature of interlocutory orders passed by High Courts in such proceedings, at times, the progress of the suit may be arrested.
As far as Kerala is concerned, Kerala Court Fees and Suits Valuation Act contemplates twenty seven types of suit (See Ss.22 to 48 of Court Fees Act). S.50 of the Act is residuary. Of these type of suits, by and large, some of them will be of simple nature eg. Suits for money instituted by Banks having valuation less than rupees ten lakhs, suits based on promissory notes and the like. There will be suits which are complicated. There may be suits which cannot be stated to be very much complicated but at the same time are not simple. It will be desirable for a Trial Judge to categorise the total number of suits on his file into three categories namely, (a) simple, (b) not very complicated and (c) complicated. If the Judge of the High Court who is in charge of the District permits the Trial Judge to ear mark four days a month to deal with and dispose of simple suits, the cases in the (a) category need not wait in the queue to take chance after disposal of older complicated cases in (b) or (c) category. While dealing with suits arising out of partnership or commercial contracts, it will be apposite to insist on production of the partnership deed or the agreement, at the threshold, to find out whether there is arbitration agreement incorporated therein. This will enable the court to alert the defendant to invoke S.8 of the Arbitration and Conciliation Act 1996. In that event the court can dispose of the suit invoking its powers under S.8 of the Act.
Dealing with S.89 of C,P.C. which provides for settlement outside the court to reduce the burden of courts by resort to ADR Forums is left out, for the reason that the purpose of this article is confined to expeditious disposal of cases in courts under the provisions contained in O.V to O.XX of C.P.C.
No case law except Salem Advocates Bar Association is cited nor have I quoted from thought provoking literature on the subject. This is for the reason that I desired to provoke the thought of Trial Judges in the lower courts by adverting to the provisions of Civil Procedure Code with which they are familiar. To facilitate delivery of justice — which must be speedy but should be fair—what can be done immediately in the circumstances existing and without waiting for desired better facilities and/or tools necessary for better case management or court management, made me to confine to the provisions of C.P.C. I am conscious that I did it in a cursory way and many errors might have, therefore, entered my thought process reflected in this article. I am sure that this in turn will provide a ground for others to point out them and in that process the purpose of this article will be achieved. However, I assure that I will only be glad if I am criticised.