APPLICATION FOR DIVORCE—A FURTHER

NOTE ON 1967 K.L.T. 115

(B. M. Thulasidas, Advocate, Palghat)

The decision of Madhavan Nair j reported in 1967 KLT. 115 has evoked comments from two senior advocates, one of whom (Mr. V R.Krishna Iyer) emphasised the necessity to follow a binding precedent when there is one to avoid confusion and conflict of decisions. Nobody will dare dispute this proposition, but then, to find fault with the Court to have not followed a precedent, one must be sure if the precedent was brought to the notice of the Court at all. If the circumstances afford an opportunity to distinguish the precedent to meet the ends of justice the Court is certainly entitled to do so. It is not cleat from this reported decision that the earlier decision on the point reported in 1957 KLT. was at all brought to the notice of the Court. If that were so, the duty of the Court in such circumstances was clear enough: that is, it should feel constrained to follow it if that decision is on all fours with the case in hand or distinguish it if it is possible or necessary.

But Mr. Velayudhan Nair, I think, is on less surer grounds. Apart from his reference to 1957 KLT 977 to which Mr. Krishna Iyer has already adverted to, there is little that is quite convincing in his submissions. For one thing, in accepting the correctness of Justice Madhavan Nair's judgment would not certainly lead to the anomolous results that Mr. Velayudhan Nair forsees. Unfortunately he has missed the vital point in that decision. What His Lordship considered was the point whether after the coming into force of the Hindu Marriage Act the matrimonial jurisdiction of the Munsif’s Court under the Travancore Nayar Act, the Marumakkathayam Act and other similar special enactments has been taken away and he quite correctly answered it in the affirmative. I am not here considering the instant decision in the light of the pronouncement of the Full Bench reported in 1957 K. L. T. which is another matter and which has already been adverted to by Mr. Krishna Iyer. I am here considering the inherent justifiability of the decision, or in other words, as Mr. Krishna Iyer put it, the functional aspect of of justice. S. 4 of the Hindu Marriage Act repeals laws which are inconsistent with the provisions of that Act and S. 29(2) does not permit the Act "to affect any right recognised by custom or conferred by any special enactment to obtain the dissolution of Hindu Marriage..." The Act, therefore, in essence preserves the substantive relief of dissolution conferred on parties under the different special enactments, but introduces a uniformity in respect of the forum for the prosecution of the relief. Since the forum under the Hindu Marriage Act is the District Court which includes a Sub Court as well a matrimonial petition under the Marumakkathayam Act or other similar special Act is entertain able only by the District Court. This works no hardship or anomoly as visualised by Mr. Velayudhan Nair. Rather its contrary does, Because the grounds which are available for a petition under the Marumakkathayam Act or even a bare petition specifying no grounds for dissolution are certainly entertain able in a petition before the District Court. What is saved is the substantive right and what is prohibited is the mode or the procedure in enforcement thereof. As His Lordship correctly said, "a right to obtain relief is different from a provision of a procedural law for enforcement thereof and S. 4 of the Hindu Marriage Act repeals by implication the provision in the Marumakkathayam Act regarding procedure as being inconsistent with it.

Mr. Velayudhan Nair seems to think that the District Court can entertain petition for dissolution only in cases where one of the several conditions prescribed under S. 13 of the Hindu Marriage Act is alleged. In my humble view he is not correct and has misunderstood the far reaching implications of S. 4 and S. 29(2) of the Hindu Marriage Act. In view of the practical difficulties which His Lordship pertinently observed as being the result in allowing the two jurisdictions' to continue even after the enactment of the Hindu Marriage Act and in view of the fact that there is the barrier of an earlier Full Bench decision, more or less on the same point, it is but proper that the whole matter is considered afresh by a fuller bench of the High Court constituted for considering this question anew.

Cops In Courts

(M. Marcus, Advocate, Kottayam)

In a court of Criminal Justice the conflict between liberty and restraint of the citizen is the subject of analysis by the judge. The solemnity and seriousness of proceedings In a Sessions trial deserve due recognition and no wonder that Stuwart C. J. said that "a court of law is not a place of amusement" in Ganapath v. Koshalendra 93. I. C. 962.

S. 352 of the Criminal Procedure Code in India declares that a place in which a Criminal Court is held shall be open to the public. This is the very cornerstone of the superstructure of democratic Justice. The same section in its proviso empowers the Judge to exclude either the public generally or any particular person from the place of trial if he deems it fit. This provision. is designed to eliminate persons who may mediately or immediately interfere with the proceedings in the Court.

Commentators apprehend that the presence of investigating Police Officers in the Court during trial may cause fear in the mind of the accused. But with regard to the witnesses under such circumstances critical pronouncements are woefully lacking.

As servants of the law the armed constabulary guards the prisoner at the dock whereas the investigating Police Officers make their appearance with the avowed object of assisting the Public Prosecutor in the Court. We are concerned with the ambit and gambits of the latter class of police officers The law jealously guards the rights of the accused; that is why it declares a confession made to a Police Officer except in the immediate presence of the Magistrate as inadmissible in evidence against an accused. But unfortunately the object of this prohibition is circumvented by the investigating Police Officers in the Court through their behavior towards witness. For one thing they get seated among the Advocates before they are actually called for examination and sitting there they strain much by gestures to confuse, induce and intimidate the witness who is under examination. This is highly repugnant to the notions of justice since it may cause the witness to suppress or distort the truth. The busy judge who is watchful of the demeanour of the witness "whiles under examination" may not perceive the mute message of threat of the Policeman bent upon proving the prosecution. In such circumstances the constraint put upon a witness has terrible impact on him It is a known fact that Police Officers are not infrequently sent out of Court during trial at the request of the defenses Counsel for reasons well known to all. It is also an index as to the nature of the right of the Policeman to be present in the Court room during trial but for his examination. It will be worthy to note that the Public Prosecutor is well versed in law and furnished with all relevant documents to wage his battle and the presence of a Police Officer at his elbow cannot be a source of additional fair knowledge or legal erudition.

Sarkar in his Code of Criminal Procedure commenting on this Section says that the power to exclude any person from the Court makes no exception in the case of the investigating Police Officer and cites Nathu's case (A I R. 1925 N. 296). It may be better that Police Officers may be given a seat in the Court preferably not facing the witness under examination lest their gestures affect the witness or they may be kept out of Court till they are examined and also after examination.

To conclude, the presence of the Police Officers among Advocates in the Court is like "bats among birds" who ever fly by twilight flinging fear and suspicion at the witnesses in the Court,

Who Missed the Bus?

(By Amicus)

This has reference to the article of Mr. N. Dharmadan B.Sc., M.L. appearing at P. 89 of the current KLT. (Journal) under the caption "Amicus missed the bus", criticising the 'Legal Comment' by 'Amicus' on the rulings given by Khalid J. in the case of Manuel v. Thomas reported in 1980 KLT. 283. A few words in reply seem to be called for lest the unwary and the not-so-well-informed should be misled by the confusion of thought and ideas, let alone the abuse of the English language, in which Dharmadan revels.

Mr. Dharmadan accuses’Amicus with "haphazzard and incomplete" 'performance', that he did not 'attempt' "an exhaustive study on the subject", and that he therefore "does not deserve" the "glowing tributes that "invariably the court gives" to every 'amicus curie'. Amicus' is quite contented without those tributes and to remain just 'Amicus' or 'Amicus Omine'. But he can't help being amused to learn that his article appeared to Mr. Dharmadan as it were a product of 'mere chance', that it had a definite span to be "completed" and that he should have "attempted" an "exhaustive study on the subject"— which that 'subject' is does not appear. Amicus would not even dream of such attempts, conscious as he is of the ever expanding vastness of knowledge and the shortness and travails of human life. He is one of those who believe with Sir Arther Quiller Couch that the 'art of reading' consists in intelligent, discriminative selection.

Now coming to Mr. Dharmadan's exposition of the law involved in Mr. Justice Khalid's ruling his very foundation is laid in sand, nay, quicksand. 'The facts of the case' (he says; 'in which Amicus appeared (he did'nt) are simple' and proceeds: "In an appeal to be disposed of by a Division Bench, pending before the High Court the respondent took objection regarding the court fee paid by the appellant and that matter came up before the single bench in the ordinary course and the court passed order finding that the court fee already paid by the defendant is not correct granting sufficient time for payment of proper court fee. This is a case squarely coming within S. 149 read with Cl. (2) of S. 107 and Ord. 7 Rule 11 CPC, and the judge has ample power to pass such orders" (stress added). Now, Mr. Dharmadan seems to be unaware that there are essential differences between the procedure to be followed in original suits and original courts, and in appeals and revisions etc. in subordinate courts, and in the High Court, and in the High Court itself material differences exist in the procedure of various kinds of actions and proceedings. And, as Maxwell says (Interpretation of Statutes) "Enactments regulating procedure in courts seem usually to be imperative and not merely directory". (9th Edn P. 377) and the instances (cases) given would show, how strictly they are applied and how fatal noncompliance can be to the jurisdiction of the court to deal with a proceeding Mr. Dharmadan says the appeal "came up before the single judge in the ordinary course". How did a Division Bench appeal come up before a single judge? and what is that ordinary course'? Does any rule of the procedure established by law provide for such course? Mr. Dharmadan does not seem to have felt the need for even looking for any in his 'exhaustive study'. Indeed he does n't seem to have seen anything, either the law governing the procedure to be followed in determining a disputed question of valuation and court fee payable on a Memorandum of Appeal in the High Court as contradistinguished from one in subordinate courts, or the principle governing their application, nor noticed the authorities thereon including the Supreme Court. One expects anyone criticising a 'comment' to deal with the arguments and authorities relied on in that article. Of course they were inconvenient and obviously unanswerable for Mr. Dharmadan—so it was easier to play bravely the ostrich, and with much gusto drag in provisions, arguments and authorities found cited in certain KLT. decisions though in very different contexts, unaware of even Supreme Court decisions to the contrary, and without realising that they have only as much relevancy and analogy to the case on hand as goose has to gooseberry. Mr. Dharmad'an is absolutely certain that "this is a case squarely coming within "S. 149 and Order VII R.1, CPC." But even a tyro in law can see that S. 149, which says that -

'Where the whole or any part of any fee prescribed for any document has not been paid the court may at any stage allow the person to pay"

is only an enabling provision empowering the court to allow a suitor to "pay any deficit court fee which he admits and is offering to pay. That this does not vest any power in the court to adjudicate on any dispute as to valuation or court fee is patent: likewise, it is patent that Ord.VII R.1, applies only to 'original' suits in subordinate courts while the procedure regarding appeals & proceedings in the High Court are specially and separately provided for in Ord.41 CPC. and S. 11, Court Fees Act. And it is an elementary maxim of law that the special overrides the general (specialia generalibus derogant) and that 'the express mention of one thing excludes the other' (expressio unius est exclusio alterus). Thus S. 11 of the C. F. Act is a 'special' provision regarding the procedure for deciding disputed questions "as to proper court fee in the High Court". But Mr. Dharmadan says it does not apply to a 'pending appeal'. Who ever said it does? The learned writer fails to perceive that the argument is that the C.F. question, if disputed, should have been decided in accordance with S. 11 of the Act, before the appeal was admitted, and that after it has been duly admitted no law authorised a judge to rake it up before the final hearing of the appeal by the Division Bench, The writer's understanding of 'interlocutory' also is, to say the least, fantastic. What Amicus did was to simply and clearly show that the views and order of Khalid J. simply ignored these express special provisions of law and he acted without any law, hence without any jurisdiction or legal authority, and such act can only be absolute nullity or non est; for only valid positive law can confer jurisdiction upon any person to act in any matter to the prejudice of a citizen.

No different is the quality of Mr. Dharmadan's appreciation of the distinctions between want of jurisdiction and the erroneous exercise of jursidc-tion-void and voidable, Indeed, numerous varities and shades of differences appearing in the two categories of which many border-land cases and complex situations have given rise to many conflicting judgments & differences of opinion among Judges and jurists. Rubinstein's classic treatise "Jurisdiction and Illegality" (to which Mr. Dharmadan has also referred) should be enlightening, inter alia, on this question, for any intelligent and discerming reader the learned author discusses this question at P. 4 et seq. He says, after formulating a number of questions bearing on the matter,

'all these questions revert to the one basic issue: has the act concerned ever had an existence or is it merely a nullity...an illegal act which exists...is usually termed a voidable act. Nullity on the other hand, is the result of a purported exercise of authority which has no legal effect whatsoever, an act which is void ab initio" And "when an act is not merely voidable but void, it is a nullity and can be disregarded and impeached in any proceedings before any court or tribunal and whenever it is relied upon".

This is precisely what our Supreme Court also has said in several cases including those referred to by Amicus in his comment in question, which of course, Mr. Dharmadan would not notice See further Kiran Singh v. Chaman Paswan (AIR. 1954 SC 340) and Union of India v. Tarachand Gupta ('AIR 1971 S C. 1558 and in particular the quotes in para 21, from Lord Reid & Lord Pierce.) In Abad Cotton Mg Co, v. Union of India (AIR 1977 Guj 113) a special bench of 5 judges relied, inter alia, on Abdullamiyan Abdulrehman v. The Government of Bombay (44 Bom. L. R 577 at 590 (FB.) which held

"that it was an established principle that where an authority which purports to pass an order is acting without jurisdiction, the purported order is a mere-nullity, as " Sir Lawrence Jenkins puts it, it is mere waste paper, and it is not necessary for anybody who objects to that order to apply to set it aside." And Chagla C. J. also referring to the 44Bom. L. R. Full Bench case, observed in Husein Miya Dosumiya v. Chandubhai Jethabhai (AIR. 1954 Bom. 239 at 241) "if the order is a nullity the party is entitled to ignore it, to treat it as waste paper and.........no actions should be taken against the party under that order which would prejudice his rights".

And Rubinstein says at P. 39 that—

"If it is shown that the disobeyed order was made without jurisdiction and that therefore, it is a mere nullit the court has no jurisdiction to proceed to enforce such order. Any action to the contrary, may in turn be considered as want of jurisdiction and is itself liable to be impeached collaterally. This statement of the law is substantiated by a plethora of cases."

and at P. 58 discussing the 'Marshalsea rule'of Coke C.J. of liability in tort for judicial acts done without jurisdiction, says:

"The basis of the decision is an extension of the consequences of want of jurisdiction; not only is the resulting decision a nullity but the court itself is deemed non judice; a judge who gives judgment outside his jurisdictional sphere is thus regarded as losing the cloak of authority which the law grants him.........where there is no jurisdiction there is no judge"—Perkin v. Proctor (1780)2 Wills K. B. 382, at 384; see also Tessy v. Hurlington (1668) Hard 480 at 483. When the commissioners of excise exceed their jurisdiction they... act as private persons; Palmer v. Crone (1921) K. B 804 at 808. If a judicial officer acts outside his jurisdiction he is not acting as a judicial officer at all, and he is in no better position than any one else".

But Mr. Dharmadan who refers to Rubinstein had no eyes to see all these, but only to see the author's reference to the effects of the acts of de facto judges and officers which sometimes had to be upheld as effective for reasons of expediency as the Lord Chancellor said in Seadding v. Lorant:

"Your Lordships will see at once the importance of that objection when you consider how many public officers and persons there are who are charged with very important duties and whose title to office on the part of the public cannot be ascertained at the time. You will at once see to what it would lead it the validity of their acts, when in such office, depended upon the propriety of their election". (P. 207)

Any novice in law can see the irrelevancy of this reference by Mr. Dharmadan to the question on hand, which is the effect of a particular act unauthorised by law, not what effect should be given to a legally authorised act done by a person improperly elected to a public office. And with such odious analogies Mr. Dharmadan proceeds to declare that any decision or order made by a Judge, however unauthorised by law, will be binding and effective until set aside by a superior authority. He does not seem to De aware that a single Judge of the Kerala High Court, governed by the Kerala High Court Act, (unlike a single judge of a chartered High Court governed by its Letters Patent) is not invested with the "general powers' of the High Court, but only with certain limited powers specified in S. 3 of the High Court Act, and only the Division Court is invested with all the 'general powers' of the High Court as a 'superior court of-Record'. Thus, although a single judge is given jurisdiction to decide criminal appeals he is denied the jurisdiction to deal with a case of sentence of death or imprisonment for life (S. 3(8) proviso H.C. Act). Now, suppose, when a bail application in an appeal from a sentence of life imprisonment comes before a single judge, he calls up the appeal itself (as the single judge appears to have actually done when a stay petition was moved before him in the instant case of the Division Bench appeal) and pronounced a judgment that, in enhancement of sentence on the State plea, the prisoner shall be hanged. According to Mr. Dharmadan if no one got the judgment set aside, the judgment will stand valid and the prisoner must be hanged. Amicus would like to know who will have the jurisdiction and power to enforce or execute that judgment. Likewise, suppose a single judge calls up a pending Habeus Corpus petition and makes an order granting it and directing a person in lawful custody to be released forthwith, though under the High Court Act (S.3 (10) (iii), only a Division Bench has jurisdiction to deal with a Habeus Corpus petition. If nobody got it set aside will the single judge's order remain valid and binding under law, and should be complied with? It is unnecessary to multiply instances. The hollowness of the argument is self evident.

No less amazing is the argument of Mr. Dharmadan that the single judge has 'ample' 'inherent' powers to make any order for doing 'justice', (to whom?) namely, here, to impose an additional tax or levy on the appellant. Amicus bad thought that any student of law knew, firstly, that the inherent power saved under S. 151 CPC. Relates only to procedure', and does not confer any power for legislating on the rights and liabilities of citizens; secondly, that where any matter is covered by specific law, the exercise of any inherent power in respect of it is excluded. If it were not so the rule of law would be meaningless and the individual notions of 'justice' and the arbitrary will, whims and fancies of each occupant of the judgment seat would rule the fate and fortunes of the citizens.

But apart from legislating, even in interpreting laws relating to taxes and levies, it is well established that like penal laws, they should receive the strictest interpretation in favour of the citizen. No man is liable if he is not strictly within the letter of the law, without any regard to supposed intention of the legislature (AIR. 1960 SC 1016 para 8-13) or any presumptions, implication or equitable considerations (AIR. 1961 SC. 1047 at 1051) nor any modifications of the letter of the law is allowed (AIR. 1960 SC. 1182 at 1185)and in the words of the eminent jurist Rankin C. J., "even evasion of any tax by legal means and ways" (not frauds) "is quite permissible and justified". For, the power to tax a person is no natural law or natural right of anybody. "It is a well settled rule of law" says Maxwell, "that all charges upon a subject must be imposed by clear and unambiguous language" (9th edn. p. 291). And "In a case of reasonable doubt the construction most beneficial to the subject is to be adopted" (ibid. p. 292). In this context and in the light of the above statements of the law by our highest court and eminent authorities, it may also be noticed incidentally, with all respect, that a more recent decision appearing at page 367 of the 1980 KLT. on a court fee question again, does not also seem to be sound and needs reconsideration in the interests of the general public.

Well, if Amicus were to wade through and expose all the incoherent legal scraps of Mr. Dharmadan's sally, it should, perhaps, cover a whole issue of this magazine, which of course, will not be feasible Amicus, however, cannot help observing that if this is the quality and standard of the 'exhaustive study' and the 'completeness' of 'performance' that "deserves" the "glowing tribute" of the court, Amicus shall never be jealous of Mr. Dharmadan bagging it. Amicus, however, believes that a sense of relevancy and logic and a capacity to perceive distinctions and differences are basic to legal thinking, and that Amicus has shown enough for the readers to judge whose 'performance' was "haphazard" and who "missed the bus", whether 'Amicus' or Mr. N. Dharmadan, B. Sc., M.L.

A Note on Kannan and Others v. Narayani & Others

Reported in 1980 KLT. 9 : AIR. 1980 Kerala 76 (FB.)

V. Rama Shenai Advocate (Supreme Court), Ernakulam

This decision has settled for the courts in Kerala the well-known proposition of law that a decree whether affirmed, varied or reversed by an appellate court can be amended only by the appellate court and that the court of first instance has no jurisdiction to amend it. This was the position before the amendment of the Code of Civil Procedure in 1976 by the incorporation of S. 153A in it. Concerning the limited situation covered by this amendment namely dismissal of an appeal under Order 41 Rule 11 there was a divergence of judicial opinion and that matter has been set at rest by this amendment. After the full bench decisions of High Courts of Madras, [1] Travancore [2] and Cochin [3] one would have thought that the question of law settled by the recent full bench decision of the High Court of Kerala was not open to argument. The point in question was decided for the first time in Sulaiman Khan v. Mohamed Yar Khan [4] nearly 90 years ago by a full bench of the Allahabad High Court where the relevant provisions of the Code of Civil Procedure were noticed and the anomalies that may arise from the acceptance of the contrary view were elaborately considered. Chief Justice Sir John Edge, one of the judges constituting the full bench observed as follows:-

"In my opinion the only decree that can be amended is the decree to be executed, and the decree to be executed is the decree of the appellate court, and not the decree of the court below. To take a case which might arise if we were to hold otherwise; assume that a decree of a court of first instance is not in conformity with the judgment of that court, but such decree has, on appeal, been affirmed in general terms or by specifically complying with the provisions of S. 579. If in such case the court of first instance were to alter its decree which had been already affirmed on appeal by bringing it into accordance with its judgment, the result would be that the decree so amended would not be the decree which had been affirmed on appeal, and might be a decree absolutely at variance with the decree which the appellate court had made and had decided was the decree which the successful party on appeal was entitled to. If a decree in a case like this can be amended, it must, in my opinion be for the appellate court, which can say what was the decree which it intended to make, by affirmance or otherwise, and not for the subordinate court, to amend the decree of the appellate court. It would, as it appears to me, be useless to amend the decree of the court below, which was superseded by the decree in appeal."

This is the leading case on the subject. The High Courts of Madrasand Cochin followed this decision. The Bombay [5] and Calcutta [6] High Courts had also taken the same view. It is significant to mention that two of the learned judges constituting the full bench of the Madras High Court were those who had taken a contrary view in the earlier decision of that High Court reported in ILR. 9 Madras 354 which necessitated the reference to the full bench.

However, without reference to the full bench decision, the Allahabad [7] High Court had taken a contrary view in 1934 which was ultimately dissented from in 1965 restoring the view held in the full bench case. It may be pointed that the 1934 decision of Allahabad High Court was dissented from by the full bench of the Cochin Court 35 years ago.

In Republican India a subordinate judge in Kerala held that he had jurisdiction to amend his decree which had been confirmed in second appeal by the High Court and amended it. The aggrieved party challenged in revision the order of the subordinate judge. Vaidialingom, J. [8] in a brief but emphatic judgment, without reference to the previous decisions, set aside the order of the subordinate judge relying upon the decision of the Supreme Court in Collector of Customs v. East India Commercial Co. Ltd. & others, [9] based on the principle that when an order of the lower authority is taken up in appeal or revision and when the appellate or revisional authority disposes of that matter, the operative order in the case is the order of the appellate or revisional authority into which the order of the original authority merges whether the final order is one which affirms, or varies or reverses the original order. With respect, it is submitted that Mr. Justice Vaidyalingom's judgment, which is unexceptionable, should have given a quietus to further litigation on the point decided by him. But this could not be. When the same point was mooted again, V. R. Krishna Iyer, J. intrigued by some observations in a later judgment of the Supreme Court [10] referred the matter to a division bench. It has to be stated even at this stage, that all that can be said about this latter decision of the Supreme Court is an implication involved in the jurisdiction conceded to the trial court "to amend its own records within its power" although the matter had been taken up in appeal. To concede this limited jurisdiction to the trial court, the Supreme Court relied upon the following observations of Bowen L. J. in In re Swire : Mellor v. Swire [11]:

"Every Court has inherent power over its own records so long as those records are within its power and it can set right any mistake in them. It seems to me that it would be perfectly shocking if the court could not rectify an error which is really the error of its own minister. An order, as it seems to me, even when passed and entered, may be amended by the court so as to carry out its intention and express the meaning of the court at the time when the order was made."

But none of the pre-republican Indian decisions or the previous decision of the Supreme Court relied upon by Mr. Justice Vaidialingom was cited or considered by the Supreme Court, with the result that this latter decision of the Supreme Court cannot have a decisive effect on the point decided by Mr. Justice Vaidialingom. The point debated before Vaidialingom J. was not argued before the Supreme Court. When the matter came up before the division bench of the Kerala High Court [12] consisting of T. C. Raghavan and E. K. Moidu JJ., the learned judges held 'that when a decree is confirmed, varied or reversed by the appellate court, the decree of the trial court merges in that of the appellate court, and that the appellate court may amend the decree. In view of sections 151 and 152 of the Civil Procedure Code the trial court does not lose its inherent powers to correct clerical or arithmetical mistakes in judgments, decrees or orders or errors arising therein from accidental slips or omissions and the original court had jurisdiction to amend a decree in variance with its judgment confirmed by the appellate court". What happened in this case was, that the decree of the trial court not in conformity with the judgment of that court had been confirmed in second appeal and the question debated was whether the trial court had jurisdiction to amend the decree. This is exactly the situation contemplated by the Chief Justice Sir John Edge of the Allahabad High Court, in denying jurisdiction to the court of first instance power to amend a decree which had merged into the appellate decree. Noneof the pre-republican decisions was referred to by the division beach. The result of the division bench ruling is to give concurrent powers of amendment to both the appellate and trial courts. This position is not supportable either on principle or on authority. The learned judges appear to have thought that Mr. Justice Vaidialingom overstepped the limits by accepting the corollary to the earlier Supreme Court judgment as the basis of his decision. It is submitted, with the utmost respect to both the Supreme Court and the division bench of the Kerala High Court, that the observations of Bowen L. J. in In re Swire: Mellor v. Swire were not correctly applied by both the courts. Bowen L. J. contemplated correction by a court only "of its own record which are within its powers". Can it be reasonably claimed that the appellate decree into which the trial court's decree has merged is the trial court's "own record within its power"? The answer can only be in the negative The appellate decree forms part of the records of the appellate court alone and within its exclusive power. The division bench ruling should have caused surprise to the learned judge at whose instance the case was referred to a larger bench.

The full bench of the Kerala High Court, if I may say so with respect, has rightly overruled the said division bench ruling and upheld Mr. Justice Vaidialingom's view. In doing so Mr. Justice" Subramanion Poti delivering the judgment of the full bench has relied upon the basic full bench decision of the Allahabad High Court already referred to and other decisions tadng the same view as that expressed in that decision including the decision of the Privy Council in Brij Narain's case [13] rendered in the year 1910. However, the full bench decisions of the Madras, Travancore and Cochin High Courts already referred to are not seen to have been brought to the notice of the court, while the divergence in judicial opinion in the Allahabad High Court was highlighted and rejected. As a matter of practice one would have expected reference to these three full bench decisions when the question was reagitated in the Kerala High Court which is in the nature of an amalgam of the High Courts of Madras, Travancore and Cochin. However, in Republican India, tradition and practice appear to be at a discount and the. popular demand seems to be for brand new ideas and approaches, however ill-founded and half-baked they may be. One is reminded of the moribund state of the principles of natural justice in England during the period 1930 to 1963 owing to inadvertence to old decisions on the subject, very elaborately highlighted and animadverted in the judgment of Lord Reid in Ridge v. Baldwin [14]. Inattention to authoritative old decisions on the point arising for decision is likely to lead to wrong decisions as is evident from what has been discussed above. In this connection it may not be out of place to refer to the noble example of Lord Denning M R. a very progressive-minded judge of recent times. While the learned judge urges every one to proceed like an iconoclast, he comes to a decision on any point susceptible of different views, only after thoroughly examining the relevant case-law and statutory provisions from the earliest times. In the present writer's opinion, this method is a model for every, judge and lawyer to emulate, despite the anglophobia of a few judges and lawyers of eminence. As pointed out by Lord Diplock, the practice, in the English Courts including the House of Lords during the last quarter of a century, has been to seek light from every source including the decisions of the courts in the United States of America and the Commonwealth countries including India and the articles contributed by academic writers.

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Food Note:-

1 Pichuvayyankar v. Seshaypankar (1895) ILR. 18 Madras 214 (FB.)

2 Meenakshi Iyer Krishna Iyer v. Padmanabhan Subramonifm 30 TLR. 239 (FB.)

3 Joseph v. Parukutty Naithyaramma (1120)36Cochin Law Reports 819 (FB.)

4 (1889) ILR. 11 Allahabad 267 (FB.)

5 Shivalat Calidas v. Junaklal Netaji (1893) ILR. 18 Bombay 542.

6 Sarat Chandra v. Prakash Chandra (1897) ILR. 24 Calcutta 751.

7 AIR 1934 Allahabad 971.

8 Kesavan v. Gopalan (1964) 1 Kerala Law Reporter 155.

9 AIR. 1963 Supreme Court 1124.

10 AIR. 1967 Supreme Court 1440

11 (1885) 30 Ch. D. 239 at 247

12 Malayalam Plantation Ltd. Vs. Chacko 1969 KLT 710.

13 (1910)ILR. 32 Allahabad 295 (P.C.)

14 L.R. 1964 Appeal Cases 40.

The Fall of Singapore

(T.G. John, Advocate)

Captain Harekrishnan. Vasudev Kamath was a tall, dark, hefty man with rough cut and uncouth features so characteristic of demons in Indian mythology. He was an army officer of distinction belonging to the 23rd Hyderabad Regiment. The captain was in charge of a machine gun section and was on active service during world War II and his regiment was always in readiness to be sent to any of the theatres of War particularly Burma and Malaya Peninsula. Though he was a hard task master, his refined manners and kind behaviour towards his subordinates endeared him greatly towards them.

Captain Kamath was stationed in Delhi living in the military hutments in the Khyber pass area. He was having family quarters and was living with his wife Susheela. Though dark and short, Susheela was beautiful with gleaming eyes, a luxurious abundance of black hair, a narrow waist and full hips. Her delicately curved lips, finely poised small chin gave her a charming expression which made her very popularjn the entire army establishment and social circles. Inspite of all her accomplishments, Susheela was always conscious of her dark skin particularly so in the constant presence of fair skinned and tall Punjabi girls of the locality. Amongst the other members of the captain's household were his Andhra servant cum cook Velu and his Kashmiri Sikh driver Avtar Singh. The army authorities had placed the services of Avtar Singh entirely at the disposal of Captain Kamath as his orderly and driver. Nevertheless Avtar was a regular soldier in the army liable to be called on active service.

Avtar Singh was a Kashmiri Sikh tall exceedingly fair in complexion and remarkably handsome in appearance with chestnut brown hair, moustache and beard. After joining the army, he had discarded his turban.

When evenings came, Susheela did not know what to do with time. Usually Kamath will be in his office even upto 9 P.M. She would sometimes go for evening walks, taking the dogs with her. But she found it inconvenient to take the Alsatian because of its quarrelsome temperament. Then she thought of going on long drives in evenings in her Hillman minx Saloon and there was Avtar Singh ready to oblige her During such outings, Avtar used to regale her with witty anecdotes though in broken English. Very soon Susheela too, picked up enough Hindustani and sometimes found Avtar in his elements telling about his escapades, his memoirs about Kashmir etc. The attraction between them made a steady gallop and at the end of about three months, it was very often observed that during the long evening drives that Susheela was sitting by the side Avtar Singh! The utter monotomy of her life made her crave for love and affection which she was not getting because of the continued neglect of her husband.

World War II was in full swing. In the eastern theatre, the Japanese had invaded the Malaya Peninsula from Siam and Singapore had fallen. Captain Kamath and Avtar Singh made sudden departure to the Burma front. Susheela was left alone in the Army Headquarters and passed very anxious times. She daiiy scanned the casuality list and was shocked beyond measure when one day she found the name of Havildar Avtar Singh among those seriously wounded. She was however happy because Avtar had been brought to the Military hospital at Delhi cantonment. Susheela visited him daily at the hospital and by her loving care and concern and the efficient medical aid from the hospital Avtar Singh recovered completely in a month's time Her attachment to Avtar Singh was complete, romance blossomed  into more progressive escapades.

War on the Burmese front continued for over a year. One fine morning in August 1944. Captain Kamath returned to Delhi. He was shocked when he found that his quarters were locked and deserted. Neighbours told him that Susheela was in the house till the end of July, when one night she, disappeared, thereafter to be never seen and that after a few days the servant Velu also went away leaving the key with a neighbour. Captain Kamath entered the house and found that most of Susheela's personal belongings had been taken away!

One cold night in mid December on the Mall Road near Khyber Pass Army Quarters an unidentified body of a man was found. Evidently he had been killed by gunshots. A kirpan was lying near the dead body When the police arrived on the scene, they found tyre impressions of a car very near the dead body. The post mortem report revealed that the three bullets clustered together in single file and the ballistic expert opined that the clustering could only be achieved by firing with a machine gun at short range. The investigation proceeded and the Police finally identified the dead body as that of Havildar Avtar Singh of 23rd Hyderabad Machine gun battalion. Further enquiries by police revealed the romantic association of Captain Kamath's wife Susheela with Avtar.

The Police connected this possible clue to Captain Kamath being a possible assasin with the permission of the Army authorities, Captain Kamath was arrested on suspicion. He was charged with the murder of Avtar Singh and committed to the Sessions. When the Police went to the house of Avtar Singh at Riasi, they found Susheela living as the wife of deceased. She refused to talk and when the police again went there with a warrant for her arrest, she had already committed suicide by setting fire to her clothes and the wooden house in which she was living had been reduced to ashes!

In the dock, Captain Kamath made a clean breast of the entire matter. That he had authentic reports of the unholy relationship between Avtar and Susheela. Kamath said that he knew Avtar Singh was seriously wounded in the Burma Front but he had no knowledge that he had survived. Before his return many had seen Susheela in the company of Avtar Singh. On enquiry he learned that Susheela had eloped with the Kashmiri Avtar. One evening by sheer chance he saw Avtar Singh buying sarees in a shop at Chandini Chowk. He followed him in his jeep. At the khyber Pass Bus stop Avtar stopped. Kamath also stopped his jeep. On seeing Kamath, Avtar drew his kirpan and attacked Kamath but Kamath drew out his automatic from its holster and at point blank range touched the trigger. Three rounds burst out and Avtar lay crumpled dead.

Kamath's story was corroborated by a number of witnesses The Sessions Judge considering all the evidence found him not guilty of the charge of murder and acquitted him.