DECISION IN 1969 K.L.T. 498

(N. K. Sreedharan, Advocate, Ernakulam)

The above decision appears to have created great confusion in the minds of judges, landlords and tenants. Normally a landlord claims market rate for paddy and other commodities when the tenant is not inclined to pay in kind and opts to pay in cash. Now according to the decision reported in 1969 KLT. On page 498 a tenant who has not got fair rent fixed by Land Tribunal for his holding is bound to pay the price notified under the Maximum Prices Order.

His Lordship V. R. Krishna Iyer J. has considered the impact of the Maximum Prices Order on the right of a landlord to demand the price of paddy and held that the tenant is not bound to pay the black-market rate, but is liable to pay the price fixed under the Maximum Prices Order.

Now the position is that a tenant while paying fair rent need pay only the price published by the District Collector under S. 43 of the Land Reforms Act whereas another tenant paying contract rent should pay a price not exceeding that fixed under the Maximum Prices Order. The price published by the District Collector may be the same as the maximum price fixed under the Maximum Prices Order. There may not be any difference at all between the two prices at a particular time. But sometimes there may be difference also.

Under S. 43 of the Land Reforms Act the District Collector causes to be published every quarter prices prevailing in each taluk of paddy, cocoanut, are canut, pepper, groundnut, tapioca, cashew nut, and any other notified crop. Price of paddy or any other commodity may not be the same throughout the State. There may be variation from place to place inside the State itself. The District Collector's publication will indicate such variations in the District. Differences in prices prevailing between Taluk and Taluk will be reflected in the publication. Further the publication will contain the prices of commodities other than paddy also. Moreover the prices will be reviewed quarterly. Whether publication of changes in the prices of commodities in this manner is advantageous to the landlord or tenant, what S. 36 (2) says, is that money value of commodities shall be computed with reference to the rates published in the Gazette under section 43. Of course Section 36 (2) restricts this facility to cases where fair rent has been determined under S. 31 or 33. But in the Miscellaneous Chapter IV it is expressly provided by S. 113 that for the purposes of the Act the price of any commodity referred to in S. 43 to be commuted into money at the market rate for any date shall be commuted at the price of that commodity published by the District Collector under S. 43 for the relevant quarter. In other words the prices published under S. 43 should be deemed to be market rates. Payment of rent cannot be said to be outside the purposes of the Land Reforms Act. Thus reading Ss. 36 and 113 together it can be seen that all tenants, whether fair rent has been fixed or not for their holdings, should pay the prices published by the District Collector under S. 43 from time to time in their respective Taluks and not any other price.

It would appear from a reading of the Order in question that His Lordship proceeded on the assumption that, when clause 2 of S. 36 is not attracted, there is no other provision in the Act specifying the money value of the rent payable in kind. There is no reference to S. 113 in the Order. Probably S. 113 was not brought to His Lordship's notice. The counsel might not have bothered to bring the Section to the notice of the Court since according to the tenant's counsel there was really no difference between the price relied upon by the learned Munsiff and the price notified as the "controlled price".

Even though the price published by the Collector and the price notified under the Maximum Prices Order may be the same I respectfully submit that a reference to the Maximum Prices Order was unnecessary in the case. Ss, 36, 43 and 113 covered all cases of money value of rent payable by tenants. When there was exhaustive and clear provision on the point it was not necessary to have relied upon the price fixed under a different Order.

Again resort to the Maximum Prices Order also will not solve the question. The aforesaid Order did not fix the price of paddy. It only prohibited sale of paddy for a higher price than that fixed therein. Paddy itself was divided into fine, medium and coarse varieties and different maximum prices fixed. The price of fine variety also varied according to the particular species of paddy. In all cases landlords may not be satisfied with the price for coarse variety, nor will the tenants be prepared to pay the maximum price for fine varieties. Therefore it becomes a matter for evidence. And each case will have to be decided on the evidence adduced therein with the anomalous result that one and the same court may be decreeing different rates for paddy for the same period according to the evidence available in each case.

The Kerala Paddy (Minimum and Maximum Prices) Order 1964 prevailed till 3 -- 9 -- 1965 until the Kerala Paddy (Maximum Prices) Order 1965 was publi­shed. Now since 1 – 4 -- 1968 the Kerala Paddy (Maximum Price) Order 1968 has fixed a uniform maximum price for all varieties of paddy of fair average quality of Kerala origin at Rs. 56.25/- per quintal. Evidently fine, medium and coarse varieties’ cannot fetch the same price in the market. But the same maximum price can be fixed for all these varieties because the Order does not fix the price at which paddy should be sold but only fixes the ceiling price and prohibits sale above that ceiling price. The 1965 Order remained in force for about 2 1/2 year. The Order did not take into consideration the local and seasonal changes which were to be taken into account in a publication of the prices by the District Collectors. Again the Kerala Paddy (Maximum Price) Order fixes the maximum price for paddy alone so that the tenant for whose holding fair rent has not been fixed will have to pay the market rate for other notified commodities until maxi­mum prices are fixed for those commodities too. A reference to Collector's publication under Section 43 will save the court and parties from an enquiry into the market value of such commodities. Section 113 provides for, warrants and directs such a reference.

The object of fixing the maximum price under the Maximum Prices Order is quite different from that of publishing the taluk price of commodities every quarter under Section 43 of the Land Reforms Act. Maximum Price Orders are made in exercise of the powers conferred under the Essential Commodities Act 1955", the provisions of which are meant to meet altogether a different situation.

The equitable consideration that the landlord will have to pay that price (that fixed under the Maximum Prices Orders) if he wants to buy rice or paddy is not every material in determining the price payable by a tenant in the face of express provisions in that behalf in the Land Reforms Act itself.

Under these circumstances it is respectfully submitted that the principle laid down in the above decision requires reconsideration. Or else the subordinate judiciary will be decreeing the maximum price fixed for paddy under the Kerala Paddy (Maximum Price) Order and will be enquiring into the market price of commodities like groundnut, cotton and sugarcane despite the clear provision in Section 113 of the Land Reforms Act.

The Kerala Land Reforms (Amendment)

Act 35 of 1969

Divesting of Jurisdiction of Civil Courts

(M. Velayudhan Nair, Advocate, Alatur—Palghat)

 The emasculation of the landholders which was begun by the Legislature about 40 years ago has been completed by the Kerala Land Reforms (Amendment) Act 35 of 1969 It is a revolutionary measure, containing drastic provisions which deprive land-owners of their rights of ownership and enjoyment and will throw them out of gear by upsetting their domestic economy. The new Amendment Act has abolished, overnight, the rights of ownership of all the landlords and intermediaries in the holdings outstanding in the possession of the cultivating tenants by vesting those rights in the Government with effect from 1st January 1970 and providing for assigning those rights to the cultivating tenants for a nominal price-payable in sixteen easy annual installments. The compensation provided “to be paid to the ultimate land-holders and intermediaries is most inadequate and illusory. On account of the vesting of the rights of ownership of the lands in the Government with effect from 1-1-1970, the landholders and the intermediaries are prevented from collecting the future rents of the properties accruing since that fateful day-1 st January 1970. This disability imposed by the Statute coupled with the absence of a provision for immediate payment of ad­equate compensation as the just equivalent of the rights of ownership and the provisions deferring the payment of compensation to a future date in sixteen annual installments will immediately create a problem for the landholders and the intermediaries they will be literally thrown into the streets. It is really a problem of existence of the large number of landholders in the State whose mainstay is the income that they have been getting from their lands. It is well to remember that there are only very few hereditary jenmies in the State. The fact is, but it is conveniently forgotten by the politicians who vie with one another ,n the matter of passing tenancy legislation, that the large majority of the landholders in the State belong to the middle class who have purchased properties with their hard earned savings and they either leased those properties to tenants or purchased the properties outstanding in the possession of tenants at a time when leases were permitted by the law and when granting leases was considered as a normal mode of enjoyment of properties. On the face of it therefore it was extremely cruel to tell these landholders and intermediaries one fine morning that from tomorrow onwards they will cease to be the owners of their properties and their rights of ownership stand transferred to the Government  and those rights are proposed to be assigned to the tenants on easy terms, whether they want it or not It is well known that the annual income from one acre of double crop land would now be about 250 paras of paddy, but "the fair rent" calculated according to the provisions of the new legislation would not come to more than 45 paras of paddy Per acre. The tenant has to deposit only the price of 45 paras of paddy for one acre of double crop land annually for 16 years towards the purchase mice and he can only enjoy the remaining income. In the meanwhile, the ultimate jenmi and the intermediary will not get any rent from the tenants and they are faced with the prospect of starvation. This, in short, is the desperate predicament to which the landlords and intermediaries .are reduced by the provisions of the Amendment Act. It is no wonder that the new Act has become a nightmare to all the landholders in the State.

2. One general observation falls to be made at this stage. And that is that all that the cultivating tenants really wanted was fixity of tenure besides a small reduction in the contract rent. These reliefs have been secured to them by the provisions of the parent Act I of 1964. There was therefore no need to thrust the jenm right on the cultivating tenants and to make provisions compelling them to purchase the jenm right from the Government-- whether they want it or not. It is a matter of common knowledge and it is significant that, although the parent Act I of 1964 contained provisions for enabling tenants to purchase the landlords' right through the Land Tribunals, very few tenants filed applications in that behalf.

3. For obvious reasons it is not possible to deal with all the drastic provisions of the new Act in this article. For the present, I am confining myself in this article to a criticism of the provisions in the new Act which seek to stultify the powers of the Civil Court in certain important matters and to transfer its jurisdiction to the Tahsildars and Land Tribunals.

4. In the guise of introducing measures of agrarian reform several provisions have been enacted in the new Act which have absolutely no relation to land reforms and which are calculated to open the door wide for trespassers and to enable unscrupulous persons to trespass on other people's lands and' to cultivate them and enjoy the rents and profits thereof without any obstruction being caused thereto by injunction orders granted and receiver appointments made by the civil courts. The so-called Amendment Act of 1969 seeks to effectually stultify the powers of the civil courts by depriving them of their jurisdiction to try and decide important questions regarding the existence of the relationship of landlord and tenant between the parties-- questions which are essentially matters to be tried and decided by the civil courts -- and investing the Tahsildars, the Revenue Divisional Officers and Land Tribunals with that jurisdiction. I am referring to new Ss 26, 29-B and 125 and to the amended S. 32 of the Act.

5. New S. 26 takes away the jurisdiction of the civil courts to entertain any claim for arrears of rent and invests the Land Tribunals with that jurisdiction. Be it noted that the Officers to be constituted Land Tribunals under the Act are judicial Officers of the rank of a Munsif or au Officer not below the rank of a Tahsildar. Even Subordinate Judge's courts, whose pecuniary jurisdiction is unlimited, cannot entertain suits for arrears of rent or michavarom after 1st January 1970. It is a matter of common knowledge that difficult questions of fact and law usually arise in suits for arrears of rent and michavarom. New Section 29-B enacts that any person claiming to be a cultivating tenant of any land is entitled to apply to the Tahsildar for an order that he is entitled to cultivate the land, complaining that he is prevented or obstructed from cultivating that land and the Tahsildar shall after making such enquiry as he deems necessary, decide whether the applicant is entitled to that land and the Tahsildar is entitled to pass an order restoring the applicant to possession of that land and allowing him to cultivate it. Sub-section 3 of new S. 29-B provides that if any suit is instituted by the opposite party relating to the said property after the date of the application to the Tahsildar, the Court shall not grant an injunction restraining the applicant from cultivating the land till the final decision in such suit. S. 32 has been amended by substituting the word "land" for the word "holding". These new-provisions are calculated to give a license to mischievous persons-- rather they amount to an invitation to them -- to take the law into their hands and to trespass on other people's properties and wrongfully enjoy the rents and profits thereof during the pendency of the proceedings before the Tahsildars and the Land Tribunals without any fear of their activities being interfered with by any injunctions granted or Receiver appointments being made by the civil courts.

6. New S. 125 which replaces old S. 125 is in the following terms:—

125. Bar of Jurisdiction of civil Courts.

(1) No civil court shall have jurisdiction to settle, decide or deal with any question or to determine any matter which is by or under this Act required to be settled, decided or dealt with or to be determined by the Land Board or Government or an Officer of the Government:

Provided that nothing contained in the sub-section shall apply to proceedings in any Court at the commencement of the Kerala Land Reforms (Amendment) Act, 1969.

(2) No order of the Land Tribunal or the appellate authority or the Land Board or the Government or an Officer of the Government made under this Act shall be questioned in any civil court, except as provided in this Act.

(3) If in any suit or other proceeding any question regarding rights of a tenant or of a kudikidappukaran (including a question as to whether a person is a tenant or a kudikidappukaran) arises, the civil court shall stay the suit or other proceeding and refer such question to the Land Tribunal having jurisdiction over the area in which the land or part thereof is situate together with the relevant records for the decision of that question only.

(4) The Land Tribunal shall decide the question referred to it under sub section (3) and return the records together with its decision to the civil court.

(5) The Civil Court shall then proceed to decide the suit or other proceeding accepting the decision of the Land Tribunal on the question referred to it.

(6) The decision of the Land Tribunal on the question referred to it shall, for the purposes of appeal, be deemed to be part of the finding of the Civil Court.

(7) No civil court shall have power to grant injunction in any suit or other proceeding referred to in sub-section (3) restraining any person from entering into or occupying or cultivating any land or kudikidappu or to appoint a receiver for any property in respect of which a question referred to in that sub-section has arisen, till such question is decided by the Land Tribunal and any such injunction granted or appointment made before the commencement of the Kerala Land Reforms (Amendment) Act, 1969 or before such question has arisen, shall stand cancelled."

7. This is one of the most mischievous and dangerous sections introduced by the Amendment Act. The effect of sub-sections 3 to 7 is that if in a suit for injunction or recovery of possession on the strength of plaintiff's title as against a trespasser, the defendant-trespasser simply puts forward a false and dishonest plea that he is a tenant of the properties, the civil court is bound to stay the suit and refer the question regarding the existence of the alleged tenancy to the Land Tribunal for decision and the civil court is bound to await the decision of the Land Tribunal and to give its imprimatur to the decision of the Land Tribunal on the question referred to it and to pass a decree accepting the decision of the Land Tribunal-- although the civil court is satisfied that the decision of the Tribunal is prima facie wrong and perverse or contrary to law. And till the Land Tribunal decides the question regarding the existence of the alleged tenancy referred to it under sub-section 3, the civil court is prohibited from exercising its jurisdiction togrant an injunction or appoint a receiver to protect the plaintiff's possession and to secure the rents and profits of the properties in the interval (Vide the first part of sub-section 7). If a person in possession' is wrongfully ousted from possession by a trespasser or if his peaceful possession is illegally threatened by another or if a person commits or threatens to commit waste on his property by cutting trees or demolishing buildings or otherwise, the person in possession should certainly be entitled under the general law to protect his possession by suing in ejectment or for an injunction on the strength of his possessory title. Such a person can always say that his possession cannot be disturbed and he is entitled to invoke the jurisdiction of the civil court to issue an interim injunction or to appoint a receiver to help him to maintain his possession or to secure the rents and profits of the properties pending suit. This is a fundamental right of the person who is in possession on the strength of his possessory title.

8. S. 125 is a dangerous provision which will lead to disastrous consequences, opening as it does, a wide door for persons to take the law into their hands and molest and disturb persons in peaceful possession of their properties. What is the remedy of the person who was in possession of the property, if the person who trespassed on his property claiming tenancy right is ultimately found to be an imposter, having absolutely no tenancy right or possession or right to possession of the property? He is obliged to submit to the trespass and to look on helplessly with folded hands when the trespasser harvests and takes away the crops raised by him and commits waste and cultivates his land and enjoys the rents and profits thereof, until such time as the Land Tribunal decides the question of the existence of the tenancy against the trespasser. And then it will be too late to grant the preventive relief of injunction, as by that time the trespass will have been completed and the plaintiff would be put to heavy and irreparable loss and difficulties.

9. Now, a dispute as to the existence of the relationship of landlord and tenant is an important matter and often raises difficult questions of fact and law. The question whether the defendant in a suit for injunction or for possession on the strength of plaintiff's title is a trespasser or is in lawful possession on tenancy right, is as his Lordship Chief Justice Mr. P. T. Raman Nayar points out in a recent case Kunchan Kumaran v. V. Ramachandra Iyer - 1969 K. L. T. 822 essentially a question for the civil court to decide. Besides rank trespas­sers, persons claiming to be in possession under leases granted in contravention of Section 74 of the Act and persons who may have obtained leases from the Urallers of a Devaswom to which the properties do not belong - just as in the case in Narayanan Nambiar v. Raman Chettiar (1969 K.L.T. 499)-- and persons claiming to be "deemed tenant" under Sections 4 to 11 of the Act may claim tenancy rights. These are difficult questions which can be satisfactorily decided only by the civil courts. What is the reason or justification for depriving the civil courts of their jurisdiction to decide questions involving such disputes and investing the Land Tribunals with that jurisdiction? Is it to be supposed that the Officers who are to be constituted Land Tribunals under the Act are more learned or more efficient and competent than the judges who preside over the civil courts?

10. Curiously enough, the jurisdiction of the civil court to entertain suits for injunction or possession on the strength of title as against a trespasser is not taken away by the Act. It is retained; but its jurisdiction to try and decide the question of the existence of the tenancy claimed by the defendant is taken away by the new Act and that jurisdiction is given to the Land Tribunal and the civil court is commanded to accept the decision of the Land Tribunal on the questions referred to it and to pass a decree accepting the decision of the Tribunal although the civil court-- it may happen to be a District Court or a Subordinate Judges' Court -- may justly feel that the decision of the Land Tribunal on the question referred to it is wrong and perverse and contrary to law. Paradoxically enough, the ultimate decree in the cause (which is based on the decision of the Land Trib­unal) will have the appearance and effect of a decree and judgment of the civil court, although the civil court has not applied its mind to the matter in dispute and is not in any way responsible for the decree and judgment! Nothing can be more absurd and ridiculous than such a situation. In ray opinion, the provisions of new S. 125 constitute an insult to the judiciary.

11. Sub-section 7 of new S. 125 enacts a contradiction in terms. The first part of sub-section 7 prohibits the granting injunction or appointment of receiver by the civil court only till the Land Tribunal decides the question of the "existence of tenancy etc., referred to it under sub-S. 3. It is obvious that the words "any such injunction or appointment" occurring in the second part of sub-S. 7 can relate only to the injunction granted or receiver appointment made by the civil court under the first part of this sub-section, viz., injunction granted or receiver appointments made by the civil court in any suit or other proceeding coming within the purview of sub-S. 3. And if, as I shall show presently, sub-section 3 applies only to suits and other proceedings initiated after the coming into force of the Amendment Act 35 of 1969, and suits and other proceedings pending at the commencement of the Act of 1969 will not fall within the purview of sub-section 3, injunctions granted and receiver appointments m3de by the Civil Court in suits and proceedings pending at the commencement of the new Act cannot be affected and cannot be treated as cancelled. The second part of sub-section 7 is inconsistent with the first part and is also in irreconcilable able conflict with the proviso to sub-section 1 which is a saving clause, saving proceedings pending in any civil court from the operation of sub-section 1 which is the provision that bars the jurisdiction of the civil Court to decide any question or matter which is required to be decided by the Land Tribunal. It is obvious that the question as to the existence of the alleged tenancy mentioned in sub-section 3 is a question which is "required to be decided" by the Land Tribunal within the meaning of sub-section 1.

12. Apart from the proviso to sub-section 1 of S. 125, the language used in sub-section 3 also shows that only suits and other proceedings which are instituted after the coming into force of the Amendment Act 1969 come within the purview of sub-section 3. Note that the expression used in sub-section 3 is "arises". Where therefore a dispute or question as to the existence of tenancy has already arisen between the parties in a suit or proceeding pending at the commencement of the new Act, in other words, where a civil court is seized of the question or dispute in a suit or proceeding instituted before the commencement of the Act, the civil court will not lose its jurisdiction to adjudicate upon that question and therefore is not bound to stay the suit and refer the question to the Land Tribunal for decision and the civil court is competent to grant injunctions and appoint receivers in such suits and proceedings. Such suits will not come within the purview of sub-section 3. In other words, the provisions in sub-sections 3 and 7 commanding stay of the suit and reference of the question mentioned in sub-section 3 to the Land Tribunal and prohibiting the granting of injunction and appointment of receiver have no retrospective operation and are inapplicable to suits and proceedings instituted before the coming into force of the Amendment Act. This principle is illustrated by the recent Full Bench decision in AIR. 1970 Andra Pradesh 1. The decision in this Full Bench case turned upon the correct interpretation of S. 56 (1) of the Andhra Pradesh Abolition and Conversion Act 26 of 1948 which provided interdict that when, after an estate is notified, a dispute arises as to (c) who is the lawful riot in any holding, the dispute shall be decided by the Settlement Officer''. The question before the Full Bench was whether S. 56 (1) applies to a case where the dispute contemplated by the section arose before the notification under sub-section 4 of S. 1 was published on 27-1- 1964 and as and from that   date the estate in suit stood transferred to the Government. The suit had been filed on 25-4-1959 and had been decided in plaintiff's favour on 24-1-1962. The appeal was filed in the High Court on 1-3-1962. The notification under sub-section 4 of S. 1 transferring the estate to the Government was published only during the pendency of the appeal on 27-8-64. The Full Bench held that the provisions of S. 56 (1) are not retrospective in operation, in divesting the jurisdiction of the civil court in matters arising before the date when the section came into operation. According to the learned Judges, a dispute will arise only when such a dispute has to be determined by some authority competent to determine it. "Where, however, a dispute in fact arises for adjudication before any of these authorities competent to determine it prior to the estate being notified, it cannot be said that the dispute arises again subsequently at any time". "The language of S. 56 (1) does not lend itself to the interpretation, whether express or implied, that the authorities already seized of a dispute in respect of matters referred to in that sub-section are prohibited from adjudicating thereon". Again Their Lordships say "It is a well established principle that a jurisdiction once vested cannot be divested unless the legislature has expressly or by necessary intendment directed otherwise". The principle had been laid down earlier in another Bench decision of the Madras High Court by Govinda Menon and Chandra Reddy JJL in an unreported case (which is referred to in the Full Bench decision) where their Lordships held that S. 56 of the Abolition Act 26 of 1948 does not affect pending proceedings nor does it take away the rights incidental to the filing of the suit.

JUDICIAL TAXATION WHETHER JUSTIFIABLE.

(S.Sasthankutty Pillai B- A., B. L., Advocate, Nagercoi)

1. Taxation byway of Court fee is being levied from parties throughout the world. But it is a matter to be seriously considered whether such taxation is justifiable and whether it should be continued.

2. Indian Union is considered to be one of the progressive States in the world. But in no part of the world such high fees are being levied as in India and in the Madras State the highest fee is being levied than in any other part of India Though the principle is that all fiscal statutes should be strictly construed and in cases of doubts and ambiguities interpretation should be in favour of the subject, in actual practice we find the other way Some courts assume the role of a taxing officer and try to exact as much as possible from the party. To set aside an adverse order on court fee by taking it in revision it will cost the party a very large sum, which in certain cases will be more than the amount that he may have to pay as ordered by the court.

3 The idea of taxing the litigant public to deal justice is against all notions of justice and that in a democrats; State It is the primary and the foremost of the duties of a State to administer justice to the parties and that without any remuneration. Generally the aggrieved party comes to court with a complaint, that he is wronged, that injustice has been done to him and that he should get redress through court. But the State makes a bargain and says, "pay our dues, then we will hear you." The party is in difficulties and he must undergo further trouble in raising the necessary funds for payment to the State. The aggrieved party is not always in affluent circumstances. Demanding Court fee from him is nothing but exploitation of his difficulties or to put it mildly it is doing business in litigation. The State should not be doing business in the administration of justice. Dealing out justice is a sacred duty imposed on the State. Otherwise there is no "difference between the State and the trader who sells commodities to his customers for ready cash payment. The trader hands over some concrete material to his customer in exchange for the price paid. But what do the litigants get in Courts of justice? It can be said that they get declarations and decrees. By the mere payment of institution fee the party does not get justice. The entire burden of proof and the conduct of the litigation is on him. The presentation of plaint in accordance with law, production of records, examination of witnesses, engaging a pleader for the conduct of the case, to argue it and place the matter before court are all his work. He has to incur further expenses for getting copies of Court records, for battas for the issue of commissions and several other innumerable payments. If no evidence is produced or if the evidence produced is inadmissibe the party looses his case, though his claim may be true in fact. For getting a decision that the party has not proved his case or that he has not conducted the case efficiently so as to bring conviction to the court he has to pay the stipulated dues and meet all other expenses. In our courts we get only legal justice; justice according to law and legal evidence. Courts of law have no responsibility in the decision of cases according to truth. Courts of law have their own limitations, the law of Limitation, the Evidence Act and the Procedure Codes and other enactments, control the courts. With these limitations they can give only such justice. Decision in accordance with truth in many cases is a mere chance. Very often the intelligent and powerful win and the weak and the poor loose. Dr. Rajendra Prasad in his article in "Young India" has observed as follows: "litigation has come to be regarded and rightly so as a sort of gambling; however true your cause, however true your case, you cannot be sure of winning it", See Extract of the article in Justice P. N. Rama-swamy's Magisterial and Police Guide, Volume I, page 201.

4. The levy of Court fee and other charges from the litigant public is of recent origin, after the British rule began in India. Under the Hindu Kings, a suitor was not required to bring his action in a court of justice by the precious payment of a duty in the shape of stamps as court fee just as one has to do at the present day, nor was any procees fee levied from him. The King entertained all complaints and enquired them. The King's attendant performed the duties of the peon and the process server. The Hindu Sovereigns regarded it his paramount duty to administer justice without any idea of remuneration. From the texts of the ancient Hindu Law-Givers such as Manu, Naradha, Yejnvalkva and Vishnu we find that no court fee was levied, but the defeated party had to pay a sum by way of fine to the successful party and out of that a portion was paid to the sovereign. During the Mohamedan rule prior to and subsequent to the Mughal period the administration of justice by the State was free. The local authorities and the Kazies of the provinces were entrusted with the administration of justice. Appeals were provided to the Chief Kazy. The parties can also get justice direct from the Emperor in person for which the Emperor had fixed certain days in a week. But aggrieved parties were never charged with any tax for giving them justice. History tells us that during Moghal period there were other taxes illegal and improper according to modern ideas such as the poll tax. But administration of justice was free and considered to be one of the primary duties of a sovereign.

5. In the early period of the British supremacy in India there was no tax on litigation. But subsequently on the pretext that frivolous and vexatious litigation should be controlled, the British Government began enacting laws imposing tax on the litigant. In Madras, court fee was first levied as per Regulation III of 1782, in Bengal court fee was first levied as per Regulation XXXVIII of 1795; in Bombay it was introduced in 1802; in the Native State of Travancore it was first introduced as per Regulation I of 1010 M. E. Before that, the State was defraying all the expenses of the judicial establishment in consonance with the accepted idea that it is the duty of the State to administer justice to the subjects free of cost.

6 .Levy of court fee is sought to be justified on the ground that the expenses incurred for the establishment of law courts, its maintenance and up-keep should be realised from the litigants who seek its help. That the object of the court fee Act is to levy fees for the services rendered by courts and public officers is expressed in some of the decisions of our High Courts. See I. L.R. 32 Madras 305 at page 311. But levy of Court fee by the State in exchange for justice is strongly condemned by jurists like Bentham. According to Bentham it is the primary duty of the State which is responsible for all the litigations to decide it without taxing the party. There are contrary views also. Another ground urged for its justification is that this is one of the sources of income to the general finance of the State. The observation of justice Manu k in 49 Indian Cases 442 at page 449 is to this effect. But this view is uniformly condemned as unjust. When the Court Fee Bill was first introduced in the Indian Legislative Council, the eminent jurist Maine strongly condemned the policy of taxing litigants for the benefit of the general finance of the State. Chief Justice Leach, of the Madras High Court in his farewell address to the Madras Bar, on the eve of his retirement has observed, that making of profit by administering justice cannot be justified on any ground

7. Every State is incurring a good deal of expenditure on the judicial establishment. But that is no justification for imposing any tax on the unfortunate litigant public. Litigants who come to courts are generally in difficulties and to tax such people is cruel. For meeting the expenses of the State in connection with the administration of justice, the State must look to the general finance and not to the litigant. There are innumerable sources of income to the State and new sources are being tapped day by day Innumerable taxes unknown to ancient society are being collected today. These taxes hit each and every individual in the State including the litigant. But from whatever source the revenue is taken, the State as the sovereign body is bound to dispense justice and refrain from taxing the unfortunate section of the public who happen to be litigants.

6. There are a few provisions in the Civil Procedure Code which exempt poor parties from payment of institution fees. Order XXXTII C. P. C exempts pauper plaintiffs from payment of court fee on plaint; and Order XLIV exempts pauper appellants from payment of court fees on appeals: but pauper plaintiffs and appellants have to meet all other expenses. Order 33 and 44 C. P. C. are only a postponement of the payment of fees; it will be realised by the State from the patties.

9. It is high tine for the public to agitate and the authorities to consider the removal of all tax so litigations, by repealing the Court Fees Act, as early as possible

HER HOARY MAJESTY-- THE LAW

(T. G. John, Advocate, Trichur)

Law it is said, is a very proud and jealous mistress. While she sweeps aside with a jerk and a caution those romping, roving and rapacious Don Juans and Casanovas who oggle ravenously at her, she is bountiful and nurtures with due alacrity those who approach her in the right royal way. Here is a domain not for bally ragging rapscallions but for the gentle and the bashful who woo her ardently with a song in their hearts. She is never pugnacious but always pulsates with cherubic enthusiasm scintillating an' aura of peace and goodwill wherever she goes. Her creed -- to set right wrongs done to others. And today while she ruminates over the past chiliads of years, she can only smile with some reticence even at King Solomon in all his glory attempting to solve a complicated question of disputed parentage by a 'simple and sure' child-cutting farce, as only a faddish fantasy of yesterday.

There is however one solitary instance which looms large before us where Her Majesty played a double game with one of her most passionate and illustrious suitors. Himself a bad and despicable character, his very name gives a jolt to the whole of humanity even today. In a mad endeavour to save the Majesty of Law, he had to 'wash his hands' without water. The man is Pontius Pilate, Pontius Pilate was a great jurist. He was a bad character but he knew the law of the land. "Lord Shaw of Dunfermline, in a remarkable study of the Trial of Jesus Christ, has sketched how the Sanhedrin flouted the Jewish traditions of a fair trial, since embodied in the Talmud. Under that law-as in ours-an accused person could not be condemned out of his own mouth. But this salutory safeguard was ignored and Jesus was questioned by his accusers and on his answers they pronounced him guilty-when he was no. However the Sanhe­drin could not pass sentence of death and they remitted the case to Pilate, the Roman Governor. Pilate had a bad record but he knew his law. He saw that the trial was riddled with irregularities illegal arrest, trial by night and inadmissible evidence. All that was obnoxious to the Hebrew Law and jurisprudence-of Rome. A defiant mob was at his gates, clamouring for the blood of Jesus, but Pilate had no hesitations whatsoever. He quashed the proceedings. At that moment he upheld the Majesty of Law and vindicated the right of the subject to its protection" (Naga Rajan -- Norton Endowment Lecture).

The rest of the story is briefly told. Jesus Christ on the crucifix pleaded for a general amnesty for all those who were involved in his trial and crucifixion because, they 'knew not what they were doing'. In quashing the proceedings and at the same time "washing his hands" and leaving Jesus to an infuriated mob it could never be said that Pilate did not know the full implication of what he was doing. That is why pious Christians even today believe that Pilate was never a beneficiary of the general amnesty pleaded for by Jesus on the Cross. The great sequel is that Pontius Pilate lost heaven because he was a great jurist.

THRENODE ON THE INDIAN WITNESS

(T. G. John, Advocate, Trichur)

"The other evidence in this case is hardly deserving of notice -- It consists of that sort of testimony with which, in these Indian Cases, we are unfortunately too familiar -- of witnesses who swear positively to matters of which they can have no knowledge; of witnesses who swear that they have heard the alleged Testator, after the date of his Will, declare that he had never made one; that they had heard the persons who had been parties to the instrument gratuitously declare to them that it was a forgery; of witnesses who declare that they had been solicited by the party in the cause or his agents, to attest instruments, which they were told at the same time were fabricated. Witnesses of this description may be had unhappily for India, in any number in that country".

Lord Kingsdown (1862)

IX Moore's Indian Appeals 99.

"However much the want of trustworthiness in the evidence of rases from

India is to be regretted, ........ himself".

Sir John Romilly (1864)

X Moore's Indian Appeals 151.

When Lord Kingsdown and Sir John Romilly made the above observations in the two judicial pronouncements of the Privy Council, there was some murmur behind the arras Sceptics scented a tinge of nationalism in them; while our patriotic ancestors found solace in thinking that it could only be ‘the colonial shop-keeper' in their Lordships that spurted them to sing this threnodic canzonet about the Indian witness. About a century has rolled by -- a democratic republic has been formed -- India has framed its own Constitution but the Indian witness is still on the cross-roads -- a huge challenge to truth and justice. The lascivious tradesman still waddles into courts of law with his tax-evading 'junk' of account books as primary evidence; neighbours oblige neighbours by indulging in venal perjury; in short, there is a never-ending train of these scoffers of truth getting in and out of the witness-box every day, every moment in our courts of law. The millionaire who utters three truths and one falsehood to complete his case; the pauper who negotiates three falsehoods adding a grain of truth to shape his case -- all of them file out of the witness-box and join the motley crowd to syncope a symphonic epilogue to the saga of sempiternal moral depredation.

It may be that the average Englishman of today is thinking of nothing but rock'n'roll and jazz bands, but that is no reason why his Indian brother 'steeped and soaked' as he is in a rich cultural heritage of his own, shall try to boost perjury from an art to a fine art. The modern perjurer has stolen a march over his counterpart as described in the Mitakshara -- no 'visible feature of unea­siness about him or a feeling that he is in fear of some persons who have been sent to watch his evidence. He is stoic, calm and deliberate and he does his job 'heroically'. Either these multitudes have never been taught to know Truth or if once they were taught they have never been retaught or re-warned. The witness who perjures for prestige to brow-beat a cross-examining advocate -- he 'wage-earner' who is under orders to speak to cases -- the suborner who bribes people and creates evidence by putting them 'on the spot' -- they are all seams of c he same garment.

It is time a regular cannonade is made against these fiendish poops. Let our courts of law be more vigilant in launching prosecutions and awarding deterrent sentences against perjurers and fabircators of false evidence. And as for our part, let us never be passive suborners by 'making suggestions' while interviewing witnesses (which we sometimes have to) and stand by these scalawags. For, ours is a nobler mission and in the resonant words of Justice Crampton in The Queen v. O' Connel, an advocate shall ever bear in mind 'that if he be the advocate of an individual and retained and remunerated for his valuable services, yet he has a prior and perpetual retainer on behalf of truth and justice; and there is no crown or other licence which in any case or for any party or purpose can discharge him from that primary and perpetual retainer'. And according to Lord MacMillan, nobody has expressed it in more eloquent words.