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Home Act Judgement Citation Documents Search Law Dictionary Contact UsLaw is for Society This saying is attributed to Hammurabi of Babylon, acclaimed to be the worlds first real law-maker26/11/2014

Law is for Society This saying is attributed to Hammurabi of Babylon, acclaimed to be the worlds first real law-maker or law giver. So, the law will change as and when society changes but changes in society cannot be determined by the law.

In the past century and a half, the socio-economic framework of India has undergone radical changes, but the legal structure has failed to keep pace with the change and the demand of the day. India, being a country with more than one billion population and counting, the problems faced by the multitude are myriad and changing. Ever since India became independent and even before independence, many statutes have been enacted for protecting the people from the problems they face which are varied and innumerable.

Does anyone know how many statutes exist in India? Do we still need all these statutes in the present day? These are two pertinent questions which are difficult to answer. There are many statutes which still exist in our country but have not been used for a long time. These are enactments created for the society of the day in consonance with the needs of the people at that time, but today due to a lot of technological as well as social changes, the way of life as well as thinking of people has undergone a sea change thus rendering many of these statutes redundant.

The good old laws

Around 170 statutes have been passed before 1900 when India was under the British rule. During this period many laws inter alia, the Indian Penal Code (IPC) 1860, The Indian Evidence Act 1872, The Indian Contract Act 1872 and The Land Acquisition Act 1894 have been formulated. Many other laws which were framed in the British rule are 100 years old and we are still using them. They are of little use to the present day scenario. Acts such as the Indian Telegraph Act, 1885, Indian Trust Act, 1882, and Negotiable Instruments Act, 1881, have been amended and needs to be amended further in such a way that they can be relevant in the present context. It is quite evident that these archaic laws are not serving the purpose of their enactment.

Too many laws on one subject

Over the years there have many legislations on a single subject which is also one of the reasons for the ongoing complexity and which in turn is leading to chaos. For instance, the Beedi Workers Welfare Cess Act, 1976, Beedi Workers Welfare Fund Act, 1976, Beedi and Cigar Workers (Conditions of Employment) Act, 1966 These Acts were passed within a period of 20 years and the subject of enactment is the same. It would be less complex and convenient to have a single legislation which would cater to all the needs of the Beedi workers (in this case). Too many laws can only make things worse and complicated instead of making it simple to use them. There has been a lot of confusion for having an old and a new law on the same subject which needs to be repealed. In such a scenario, proclamation should be made through media about the same, to avoid confusion and chaos.

Time frame for laws?

There is also the opinion advanced by experts that while enacting a statute itself, it should come with a time frame or limit; which means that if a particular statute is not used or put to use for a certain period of time, then that statute would become redundant and put on a list of statutes to be repealed for consideration of the Government. The Government should be vigilant and check if a statute or Act when not put to use, or a situation for such use of the Act has not arisen for a specified number of years, then it can either be revoked or updated as per current needs and requirements.

Do we need to repeal ancient laws?

This is something that has to be seriously pondered upon. As there are many laws which are redundant but are still in force because they have not been formally repealed it is time these unnecessary laws are done away with or amended to suit the needs of the day. The ancient laws were framed based on the social, economic and political conditions prevalent then and it would be foolish to have those laws govern us today.

For instance, The Christian divorce laws which were outdated were updated after the recommendations by the community council. There is however, still room for updating The Christian Marriage Act 1872, although, it will be a daunting challenge when it comes to the questions of how to recognize, choose and prioritize and restructure such laws.

Should the statutes for repealing be taken up chronologically?

Should we first take up economic laws or communal laws or every regulation in a chronological order or, on the basis of long standing evidence of non-use? Some basic questions still loom large. The reality of regulations enacted in the context of socialization of riches and finances, mostly in the seventies, is due for reconsideration in todays age of globalization and liberalization. The better approach lies in interlinking of various laws than to ignore and publish ad hoc supplementation of new laws.

A few statutes still exist even though they are not implemented as they are outdated. Under the Indian Serais Act, 1887, it is a punishable offence for inn-keepers not to offer free drinking water to passers-by. Recently, a Delhi five-star hotel was taken to court by the municipal corporation on the grounds that the hotel was not doing so. The real reason might have been something totally different. It would be a thoughtless idea to make such an Act find a place in the legal system.

The Indian Telegraph Act was passed by the Legislature in 1885 and it came into force on 1st October, 1885. The word Telegraph by the definition would include a phone and FAX also. A video and Television both fall within the definition of telegraph. A telegraph wireless receiving position is a telegraph as characterized in the Act. Most of the provisions in the Act are similar to that of the Telecom Regulatory Act 1994. Revoking this Act would not do any harm to the Indian society as it is far from implementation considering the modern era. Some amendments to the Telecom Regulatory Act 1994 to include certain relevant provisions from the Telegraph Act 1885 should serve the purpose.

Why do laws become obsolete?

There are some causes for laws becoming obsolete. It could be due to natural reasons inter alia, time, change of position, over-exploitation of loopholes.

The Police Act, 1861, still needs a policeman to take off his cap or helmet before a member of royalty; Section 108 of the Customs Act, Section 40 of FERA and Part 171A of the Sea Culture Act are identical. Proposing a wide alternative to both initiate happy enforcement people and lawbreakers looking for a loophole to slip through.

As per the Industrial Arguments Act 1947, an employer cant effect any change in working situation, salaries, compensatory allowances, work hours, rest gaps, new disciplinary directions, even raise or reduce the number of employees, except casual, without consent from the befitting authority. The confusing industrial law regime encompasses over 50 notable legislations and an identical number of state laws, which include the Workmens Reimbursement Act 1923, Trade Unions Act 1926, Minimum Wages Act 1936, Factories Act 1948 and Industrial Disputes Act 1947. Sections of this last Act make it tough for employers to recast sick units through modernization and technological advancement as it constrains their right to make any change in service situation while conciliation proceedings are on, therefore boosting trade unions to stall introduction of new technology.

Strides towards revoking obsolete laws:

The special commission appointed by NDA government in 1998 and headed by PC Jain, identified at least 1,382 laws for repeal, but only 415 have been repealed to date; 17 are in various stages of repeal and nine are still being examined. Till date, the Parliament has enacted more than 3,500 laws and almost 25,000 state legislations. The Law Commission of India during its search for repealing of the old laws and replacing them with new ones has found that only 40% of the Laws in India are regularly used. The members of law commission are planning to include those laws which are not properly used into a single codified system. The law commission is keen to discard the obsolete laws and replace them with new laws. The Law Commission is handicapped as their role is limited to advising the Union Government in framing new laws.

The government of India had not lent an ear to the suggestions made by the law commission for the enacting of laws which would be apt to the present day situation. The law commission prepared 170 reports for the future generations including suggesting scrapping of the obsolete laws but the Government had not bothered to look into them.

Procedure for repealing Statutes

The necessity of repealing an entire statute lies when an entire subject matter dealt by a given statute is entirely taken by a subsequent statute. Repealing and amending of Acts have no legislative effect but are intended to excise dead matter from the statute book to reduce its volume. There can be either repeal of a given provision which is inconsistent with the statute or repealing the statute itself. As per Lord Westburry, in the 148th Report by Law Commission of India, there are four objectives which can be achieved by statute law revision and repealing of defunct statutes, which are, to have renovation, order and symmetry, easy access to legislation and bringing harmony amongst different subject matter.

As per 150th Report of Law Commission of India, there are four categories of statutes. Statutes which do not need any change, acts which require to be repealed, acts which require to be amalgamated and re enacted as a single enactment and the acts which have to make changed or amended; that are still under consideration. The mode of repealing statutes can be either express or by implication. Express repeal of a statute is made by stating that the earlier statute or a particular provision is repealed. This is usually mentioned as a schedule attached to the repealing statute.

The right of repeal is inherent power of the legislature just as they have the right to make the law. It is the power of the Parliament to repeal the law. When a statute is repealed, then order, rules, notification or circular is issued in this regard to notify the expiry of the statute or some of its provisions. Under Article 252 of the Constitution of India, if any Central Act is repealed or amended by an Act of Parliamen,t then such similar act in the State may be amended or repealed by legislature of the State. Thus the repeal of the old statutes will reduce the number of redundant or defunct laws which are not suitable for the present scenario.

Concluding remarks;

With the present Government making the right noises in its endeavour in repealing obsolete laws, and the intent seeming genuine, one can only hope that it results in clearing the system of statutes which are obsolete due to efflux of time or their non-relevance or over use. The panacea for the problem of confusion caused due to a plethora of legislations would be to have periodical updates to the laws by way of amendments and not enacting more legislation where there are already statutes in place. Keeping the laws current and relevant should be the mantra.

source:livelaw.in

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Bottom of FormUser Queriesorder 9 rule 13ex parte decree set asideleave to defendservice of summonsorder 37 rule 4order 9 rule 13 doctypes:supremecourtsummons for judgmentorder 37order 37 doctypes:supremecourtorder 9, rule 9order 9, rule 13 doctypes:judgmentsorder 9 rule 13ex parte decreeservice of summons doctypes: supremecourt,laws"service of summons"order 37 doctypes:judgmentsex parte decree set aside doctypes:supremecourtleave to defend doctypes:supremecourtorder 9, rule 9ex parte decree set aside doctypes: judgmentsSupreme Court of IndiaRajni Kumar vs Suresh Kumar Malhotra And Anr. on 28 March, 2003Equivalent citations: AIR 2003 SC 1322, 2003 (4) ALD 82 SC, 2003 (2) AWC 1597 SC, 2003 (2) CTC 59, 2003 (4) JCR 213 SC, JT 2003 (3) SC 307, (2003) 134 PLR 249, RLW 2003 (2) SC 301, 2003 (3) SCALE 434, (2003) 5 SCC 315, 2003 3 SCR 66, 2003 (2) UJ 810 SCAuthor: S S QuadriBench: S Quadri, A BhanJUDGMENT Syed Shah Mohammed Quadri, J.1. Leave is granted.2. In this appeal, from the Judgment and Order of the High Court of Delhi in C.R. No. 138 of 2001 dated October 15, 2001, the short point that arises for consideration is: whether the High Court committed jurisdictional error in declining to set aside the ex parte decree on the application of the appellant under Rule 4 of Order 37, on the ground that he failed to disclose facts sufficient to entitle him to defend the suit.3. The facts relevant for the disposal of this appeal may be noted here.4. The appellant-tenant had taken on rent residential flat No. C-470, Sarita Vihar, Ground Floor, New Delhi - 110 004, from the respondent-landlord for a period of nine months under an agreement of lease reduced to writing on November 26, 1993. After the expiry of the term of tenancy she continued to occupy the said premises as tenant till January 11, 1997. Alleging that the appellant did not pay the electricity and water consumption charges for the period starting from November 26, 1993 to January 11, 1997, the respondent filed suit No. 597 of 1997 in the Court of Senior Civil Judge, Delhi, under Order 37 of Code of Civil Procedure (C.P.C.), for recovery of Rs. 33,661. On the ground that on April 21, 1999 summons for judgment was sent by registered post A.D. to the appellant pursuant to the order of the Court dated April 16, 1999 the Court drew inference of deemed service on him, proceeded with the case and decreed the suit ex parte on August 12, 1999. The appellant, however, filed application under Rule 4 of Order 37 C.P.C. in the trial court to set aside the ex parte decree. On January 6, 2001, the application was dismissed as no special circumstances were stated in the petition both in regard to there being illegality in deeming service of summons for judgment on the appellant as well facts sufficient to entitle him to defend the suit. Aggrieved by the order of the trial court, the appellant filed revision C.R. No. 138 of 2001 in the High Court, which was also dismissed on October 15, 2001. That order of the High Court is assailed in appeal before us.5. Mr. A. Sharan, learned senior counsel appearing for the appellant, strenuously contended that there was no proof or record to show that any notice by registered post with acknowledgment due was issued to the appellant by the respondent who had taken the notice from the court but did not file any proof of issuing the notice to the appellant, therefore, there was special reason for the appellant not to appear in response to the summons for judgment. He argued that sufficient amount was deposited with the respondent as advance and that Order 37 C.P.C. was not applicable to the facts of the case, therefore, the appellant had good defence to the suit. The trial court as well as the High court, submitted Mr. Sharan, erred in dismissing the application under Rule 4 of Order 37 C.P.C.6. The respondent appeared in-person and argued his case with precision and perfection. He submitted that summons for judgment was issued on April 21, 1999 and that the court had rightly drawn presumption of service on the appellant; that nowhere in her application had the appellant stated anything about her defence to the suit and therefore the order under challenge was rightly passed by the courts below.7. To appreciate the contentions of the parties it would be useful to refer to Rule 4 of Order 37 C.P.C. which is in the following terms."Order XXXVII-Summary Procedure (1) to (3) xxx xxx xxx (4) Power to set aside decree - After decree the Court may, under special circumstances, set aside the decree, and if necessary stay or set aside execution, and may give leave to the defendant to appear to the summons and to defend the suit, if it seems reasonable to the Court so to do, and on such terms as the Court thinks fit."8. A careful reading of Rule 4 shows that it empowers, under special circumstances, the court which passed an ex parte decree under Order 37 to set aside the decree and grant one or both of the following reliefs, if it seems reasonable to the court so to do and on such terms as the court thinks fit:(i) to stay or set aside execution and(ii) to give leave to the defendant (a) to appear to the summons and (b) to defend the suit.9. The expression 'special circumstances' is not defined in the C.P.C. nor is it capable of any precise definition by the court because problems of human beings are so varied and complex. In its ordinary dictionary meaning it connotes something exceptional in character, extra-ordinary, significant, uncommon. It is an antonym of common, ordinary and general. It is neither practicable nor advisable to enumerate such circumstances. Non-service of summons will undoubtedly by a special circumstances. In an application under Order 37, Rule 4, the court has to determine the question, on the facts of each case, as to whether circumstances pleaded are so unusual or extra ordinary as to justify putting the clock back by setting aside the decree; to grant further relief in regard to post-decree matters namely, staying or setting aside the execution and also in regard to pre decree matters viz., to give leave to the defendant to appear to the summons and to defend the suit.10. In considering an application to set aside ex parte decree, it is necessary to bear in mind the distinction between suits instituted in the ordinary manner and suits filed under Order 37 C.P.C. Rule 7 of Order 37 says that except as provided thereunder the procedure in suits under Order 37 shall be the same as the procedure in suits instituted in the ordinary manner. Rule 4 of Order 37 specifically provides for setting aside decree, therefore, provisions of Rule 13 of Order 9 will not apply to a suit filed under Order 37. In a suit filed in the ordinary manner a defendant has the right to contest the suit as a matter of course. Nonetheless, he may be declared ex parte if he does not appear in response to summons, or after entering appearance before framing issues; or during or after trial. Though addressing arguments is part of trial, one can loosely say that a defendant who remains absent at the stage of argument, is declared ex parte after the trial. In an application under Order 9 Rule 11, if a defendant is set ex parte and that order is set aside, he would be entitled to participate in the proceedings from the stage he was set ex parte. But an application under Order 9 Rule 13 could be filed on any of the grounds mentioned thereunder only after a decree is passed ex parte against defendant. If the court is satisfied that (1) summons was not duly served, or (2) he was prevented by sufficient cause from appearing when the suit was called for hearing, it has to make an order setting aside the decree against him on such terms as to cost or payment into court or otherwise as it thinks fit and thereafter on the day fixed for hearing by court, the suit would proceed as if no ex parte decree had been passed. But in a suit under Order 37 the procedure for appearance of defendant is governed by provisions of Rule 3 thereof. A defendant is not entitled to defend the suit unless he enters appearance within ten days of service of summons either in person or by a pleader and files in court an address for service of notices on him. In default of his entering an appearance, the plaintiff becomes entitled to a decree for any sum not exceeding the sum mentioned in the summons together with interest at the rate specified, if any, upto the date of the decree together with costs. The plaintiff will also be entitled to judgment in terms of Sub-rule (6) of Rule 3. If the defendant enters an appearance, the plaintiff is required to serve on the defendant a summons for judgment in the prescribed form. Within ten days from the service of such summons for judgment, the defendant may seek leave of the court to defend the suit, which will be granted on disclosing such facts as may be deemed sufficient to entitle him to defend and such leave may be granted to him either unconditionally or on such terms as the court may deem fit. Normally the court will not refuse leave unless the court is satisfied that facts disclosed by the defendant do not indicate substantial defence or that defence intended to be put up is frivolous or vexatious. Where a part of the amount claimed by the plaintiff is admitted by the defendant to be due from him, no leave to defend the suit can be granted unless the admitted amount is deposited by him in Court. Inasmuch as Order 37 does not speak of the procedure when leave to defend the suit is granted, the procedure applicable to suits instituted in the ordinary manner, will apply.11. It is important to note here that the power under Rule 4 of Order 37 is not confined to setting aside the ex parte decree, it extends to staying or setting aside the execution and giving leave to appear to the summons and to defend the suit. We may point out that as the very purpose of Order 37 is to ensure an expeditious hearing and disposal of the suit filed thereunder, Rule 4 empowers the court to grant leave to the defendant to appear to summons and defend the suit if the Court considers it reasonable so to do, on such terms as court thinks fit in addition to setting aside the decree. Where on an application, more than one among the specified reliefs may be granted by the Court all such reliefs must be claimed in one application. It is not permissible to claim such reliefs in successive petitions as it would be contrary to the letter and spirit of the provision. That is why where an application under Rule 4 of Order 37 is filed to set aside a decree either because the defendant did not appear in response to summons and limitation expired, or having appeared, did not apply for leave to defend the suit in the prescribed period, the court is empowered to grant leave to defendant to appear to the summons and to defend the suit in the same application. It is, therefore, not enough for the defendant to show special circumstances which prevented him from appearing or applying for leave to defend, he has also to show by affidavit or otherwise, facts which would entitle him leave to defend the suit. In this respect, Rule 4 of Order 37 is different from Rule 13 of Order 9.12. Now adverting to the facts of this case, though appellant has shown sufficient cause for his absence on the date of passing ex parte decree, he failed to disclose facts which would entitle him to defend the case. The respondent was right in his submission that in the application under Rule 4 of Order 37, the appellant did not say a word about any amount being in deposit with the respondent or that the suit was not maintainable under Order 37. From a perusal of the order under challenge, it appears to us that the High Court, was right in accepting existing of special circumstances justifying his not seeking leave of the court to defend, but in declining to grant relief since he had mentioned no circumstances justifying any defence.13. In this view of the matter, we do not find any illegality much less jurisdictional error in the order under challenge to warrant interference of this Court. Inasmuch as having regard to the provisions of Section 34 of the C.P.C. and the facts of the case that the liability does not arise out of a commercial transaction, we are of the view that the grievance of the appellant with regard to rate of interest is justified. We, therefore, reduce the rate of interest from 18 per cent to 6 per cent per annum.14. We directed the appellant to deposit the decree amount to serve as security for the suit amount in the event of this Court granting him leave to defend the suit. Since that relief is not granted to him, it will be open to him to withdraw the said amount or have it adjusted in satisfaction of the decree.15. Subject to above modification of the order of the trial court as confirmed by the High Court the appeal is dismissed. No costs.

Legal Blog: The Concept of 'Finality of Judgment' : Supreme Court Explains

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Bottom of FormFriday, July 22, 2011The Concept of 'Finality of Judgment' : Supreme Court Explains

Justice Dalveer BhandariSupreme Court of India

Justice Dalveer Bhandari and Justice H.L. Dattu of the Supreme Court of India, inIndian Council for Enviro-Legal Action v. Union of India & Ors., have examined the concept of finality of judgment and how the adversarial system in India is being abused by litigants, and its adverse impact of the administration of justice. While examining various authorities on the subject, the Hon'ble court has also examined the law prevalent in other countries such as England, Canada, Fiji and Australia. The relevant extracts from the judgment are reproduced hereinbelow;

FINALITY OF JUDGMENT

114. The maxim `interest Republicae ut sit finis litium' says that it is for the public good that there be an end of litigation after a long hierarchy of appeals. At some stage, it is necessary to put a quietus. It is rare that in an adversarial system, despite the judges of the highest court doing their best, one or more parties may remain unsatisfied with the most correct decision. Opening door for a further appeal could be opening a flood gate which will cause more wrongs in the society at large at the cost of rights.

115. It should be presumed that every proceeding has gone through infiltration several times before the decision of the Apex Court. In the instant case, even after final judgment of this court, the review petition was also dismissed. Thereafter, even the curative petition has also been dismissed in this case. The controversy between the parties must come to an end at some stage and the judgment of this court must be permitted to acquire finality. It would hardly be proper to permit the parties to file application after application endlessly. In a country governed by the rule of law, finality of the judgment is absolutely imperative and great sanctity is attached to the finality of the judgment. Permitting the parties to reopen the concluded judgments of this court by filing repeated interlocutory applications is clearly an abuse of the process of law and would have far reaching adverse impact on the administration of justice.

116. InManganese Ore (India) Ltd. v. The Regional Assistant Commissioner of Sales Tax, Jabalpur(1976) 4 SCC 124 this court held that the doctrine of stare decisis is a very valuable principle of precedent which cannot be departed from unless there are extraordinary or special reasons to do so.

117. InGreen View Tea & Industries v. Collector, Golaghat and Another(2002) 1 SCC 109 this court reiterated the view that finality of the order of the apex court of the country should not lightly be unsettled.

118. A three-Judge Bench of this court inM/s Northern India Caterers (India) Ltd. v. Lt. Governor of Delhi(1980) 2 SCC 167 held that a party is not entitled to seek a review of this court's judgment merely for the purpose of rehearing and for a fresh decision of the case. Departure from the normal principle that the court's judgment is final would be justified only when compelling our substantial circumstances make it necessary to do so. Such circumstances may be that a material statutory provision was not drawn to the court's attention at the original hearing or a manifest wrong has been done.

119. InUnion of India & Another v. Raghubir Singh (Dead) by L.Rs.(1989) 2 SCC 754, this Court held that the plea for reconsideration is not to be entertained merely because the petitioner chooses to reagitate the points concluded by the earlier decision in Sub-committee on Judicial Accountability.

120. InMohd. Aslam v. Union of India & Others(1996) 2 SCC 749, the Court considered the earlier decisions and held that the writ petition under article 32 of the Constitution assailing the correctness of a decision of the Supreme Court on merits or claiming reconsideration is not maintainable.

121. InKhoday Distilleries Ltd. and Another v. Registrar General, Supreme Court of India(1996) 3 SCC 114, the Court held the reconsideration of the final decision of the Supreme Court after review petition is dismissed by way of writ petition under article 32 of the Constitution cannot be sustained.

122. InGurbachan Singh & Another v. Union of India & Another(1996) 3 SCC 117, the Court held that the judgment order of this court passed under Article 136 is not amenable to judicial review under Article 32 of the Constitution.

123. Similar view was taken inBabu Singh Bains and others v. Union of India and Others(1996) 6 SCC 565, a three-Judge bench of this Court held that a writ petition under Article 32 of the Constitution against the order under Article 136 of the Constitution is not maintainable.

124. Another three-Judge bench of this Court inP. Ashokan v. Union of India & Another(1998) 3 SCC 56, relying upon the earlier cases held that the challenge to the correctness of a decision on merits after it has become final cannot be questioned by invoking Article 32 of the Constitution. In the instant case the petitioner wants to reopen the case by filing the interlocutory application.

125. InAjit Kumar Barat v. Secretary, Indian Tea Association & Others(2001) 5 SCC 42, the Court placed reliance on the judgment of a nine-judge Bench inNaresh Shridhar Mirajkar v. State of Maharashtra and anotherAIR 1967 SC 1 and the Court observed as under: It is difficult to see how this decision can be pressed into service by Mr. Setalvad in support of the argument that a judicial order passed by this Court was held to be subject to the writ jurisdiction of this Court itself.... In view of this decision in Mirajkar case it must be taken as concluded that judicial proceedings in this Court are not subject to the writ jurisdiction thereof.

126. The Court in the said case observed that having regards to the facts and circumstances of the case, this is not a fit case to be entertained to exercise jurisdiction under Article 32 of the Constitution.

127. InMr. X v. Hospital Z(2000)9 SCC 439, this Court held thus:

Writ petition under Article 32 of the Constitution against the judgment already passed by this Court cannot be entertained. Learned counsel for the petitioner stated that prayer (a) which seeks overruling or setting aside of the judgment already passed in Mr X v. Hospital Z may be deleted. This prayer shall accordingly be deleted. So also, the other prayers which indirectly concern the correctness of the judgment already passed shall stand deleted. Learned counsel for the petitioner stated that the petition may not be treated as a petition under Article 32 of the Constitution but may be treated as an application for clarification/directions in the case already decided by this Court, viz., Mr X v. Hospital Z (CA No. 4641 of 1998).

128. InTriveniben v. State of Gujarat(1989)1 SCC 678 speaking for himself and other three learned Judges of the Constitution Bench through Oza, J., reiterated the same principle. The court observed: (SCC p. 697, para 22) ...It is well settled now that a judgment of court can never be challenged under Articles 14 or 21 and therefore the judgment of the court awarding the sentence of death is not open to challenge as violating Article 14 or Article 21 as has been laid down by this Court inNaresh Shridhar Mirajkar(supra) and also in A.R. Antulay v. R.S. Nayak, the only jurisdiction which could be sought to be exercised by a prisoner for infringement of his rights can be to challenge the subsequent events after the final judicial verdict is pronounced and it is because of this that on the ground of long or inordinate delay a condemned prisoner could approach this Court and that is what has consistently been held by this Court. But it will not be open to this Court in exercise of jurisdiction under Article 32 to go behind or to examine the final verdict reached by a competent court convicting and sentencing the condemned prisoner and even while considering the circumstances in order to reach a conclusion as to whether the inordinate delay coupled with subsequent circumstances could be held to be sufficient for coming to a conclusion that execution of the sentence of death will not be just and proper....

129. InRupa Ashok Hurra(supra), this Court observed thus:

24. ... when reconsideration of a judgment of this Court is sought the finality attached both to the law declared as well as to the decision made in the case, is normally brought under challenge. It is, therefore, relevant to note that so much was the value attached to the precedent of the highest court that inThe London Street Tramways Co. Ltd. v. London County Council(1898 AC 375) the House of Lords laid down that its decision upon a question of law was conclusive and would bind the House in subsequent cases and that an erroneous decision could be set right only by an Act of Parliament. ... ... ...

... ... ...

26. ...This Court will not sit as a court of appeal from its own decisions, nor will it entertain applications to review on the ground only that one of the parties in the case conceives himself to be aggrieved by the decision. It would in our opinion be intolerable and most prejudicial to the public interest if cases once decided by the Court could be reopened and reheard:

There is a salutary maxim which ought to be observed by all courts of last resort -- interest reipublicae ut sit finis litium. (It concerns the State that there be an end of lawsuits. It is in the interest of the State that there should be an end of lawsuits.) Its strict observance may occasionally entail hardship upon individual litigants, but the mischief arising from that source must be small in comparison with the great mischief which would necessarily result from doubt being thrown upon the finality of the decisions of such a tribunal as this.

32. ...When this Court decides questions of law, its decisions are, under Article 141, binding on all courts within the territory of India, and so, it must be the constant endeavour and concern of this Court to introduce and maintain an element of certainty and continuity in the interpretation of law in the country. Frequent exercise by this Court of its power to review its earlier decisions on the ground that the view pressed before it later appears to the Court to be more reasonable, may incidentally tend to make law uncertain and introduce confusion which must be consistently avoided. That is not to say that if on a subsequent occasion, the Court is satisfied that its earlier decision was clearly erroneous, it should hesitate to correct the error; but before a previous decision is pronounced to be plainly erroneous, the Court must be satisfied with a fair amount of unanimity amongst its members that a revision of the said view is fully justified. It is not possible or desirable, and in any case it would be inexpedient to lay down any principles which should govern the approach of the Court in dealing with the question of reviewing and revising its earlier decisions.

33. InMaganlal Chhaganlal(1974) 2 SCC 402 case a Bench of seven learned Judges of this Court considered, inter alia, the question: whether a judgment of the Supreme Court inNorthern India Caterers case(1967) 3 SCR 399 was required to be overruled. Khanna, J. observed: (SCC p. 425, para 22)

At the same time, it has to be borne in mind that certainty and continuity are essential ingredients of rule of law. Certainty in law would be considerably eroded and suffer a serious setback if the highest court of the land readily overrules the view expressed by it in earlier cases, even though that view has held the field for a number of years.

In quite a number of cases which come up before this Court, two views are possible, and simply because the Court considers that the view not taken by the Court in the earlier case was a better view of the matter would not justify the overruling of the view. The law laid down by this Court is binding upon all courts in the country under Article 141 of the Constitution, and numerous cases all over the country are decided in accordance with the view taken by this Court. Many people arrange their affairs and large number of transactions also take place on the faith of the correctness of the view taken by this Court. It would create uncertainty, instability and confusion if the law propounded by this Court on the basis of which numerous cases have been decided and many transactions have taken place is held to be not the correct law.

42. The concern of this Court for rendering justice in a cause is not less important than the principle of finality of its judgment. We are faced with competing principles -- ensuring certainty and finality of a judgment of the Court of last resort and dispensing justice on reconsideration of a judgment on the ground that it is vitiated being in violation of the principles of natural justice or giving scope for apprehension of bias due to a Judge who participated in the decision-making process not disclosing his links with a party to the case, or on account of abuse of the process of the court. Such a judgment, far from ensuring finality, will always remain under the cloud of uncertainty. Almighty alone is the dispenser of absolute justice -- a concept which is not disputed but by a few. We are of the view that though Judges of the highest court do their best, subject of course to the limitation of human fallibility, yet situations may arise, in the rarest of the rare cases, which would require reconsideration of a final judgment to set right miscarriage of justice complained of. In such case it would not only be proper but also obligatory both legally and morally to rectify the error. After giving our anxious consideration to the question, we are persuaded to hold that the duty to do justice in these rarest of rare cases shall have to prevail over the policy of certainty of judgment as though it is essentially in the public interest that a final judgment of the final court in the country should not be open to challenge, yet there may be circumstances, as mentioned above, wherein declining to reconsider the judgment would be oppressive to judicial conscience and would cause perpetuation of irremediable injustice.

130. A four-judge bench of this court inSumer v. State of U.P.(2005) 7 SCC 220 observed as under:

InRupa Ashok Hurra(supra) while providing for the remedy of curative petition, but at the same time to prevent abuse of such remedy and filing in that garb a second review petition as a matter of course, the Constitution Bench said that except when very strong reasons exist, the court should not entertain an application seeking reconsideration of an order of this Court which has become final on dismissal of review petition. In this view, strict conditions including filing of certificate by a Senior Advocate were provided inRupa Ashok Hurra(supra). Despite it, the apprehension of the Constitution Bench that the remedy provided may not open the flood gates for filing a second review petition has come true as is evident from filing of large number of curative petitions. It was expected that the curative petitions will be filed in exceptional and in rarest of rare case but, in practice, it has just been opposite. This Court, observing that neither it is advisable nor possible to enumerate all the grounds on which curative petition may be entertained, said that nevertheless the petitioner is entitled to relief ex debito justitiae if he establishes (1) violation of principles of natural justice in that he was not a party to the lis but the judgment adversely affected his interests or, if he was a party to the lis, he was not served with notice of the proceedings and the matter proceeded as if he had notice, and (2) where in the proceedings a learned Judge failed to disclose his connection with the subject-matter or the parties giving scope for an apprehension of bias and the judgment adversely affects the petitioner. To restrict filing of the curative petitions only in genuine cases, Rupa Ashok Hurra (supra) provided that the curative petition shall contain a certification by a Senior Advocate with regard to the fulfilment of all the requirements provided in the judgment. Unfortunately, in most of the cases, the certification is casual without fulfilling the requirements of the judgment.

131. InSita Ram Bhandar Society, New Delhi v. Lieutenant Governor, Government of NCT, Delhi & Others(2009)10 SCC 501, this Court held thus:

41. We must also observe that the petitioner has been able to frustrate the acquisition and development of the land right from 1980 onwards by taking recourse to one litigation after the other. The record reveals that all the suits/writ petitions, etc. that had been filed had failed. Undoubtedly, every citizen has a right to utilise all legal means which are open to him in a bid to vindicate and protect his rights, but if the court comes to the conclusion that the pleas raised are frivolous and meant to frustrate and delay an acquisition which is in public interest, deterrent action is called for. This is precisely the situation in the present matter.

42. The appeals are, accordingly, dismissed with costs which are determined at rupees two lakhs. The respondents, shall, without further loss of time proceed against the appellant.

132. This court in a recent judgment inM. Nagabhushana v. State of Karnataka and others(2011) 3 SCC 408 observed that principle of finality is passed on high principle of public policy. The court in para 13 of the said judgment observed as under:

That principle of finality of litigation is based on high principle of public policy. In the absence of such a principle great oppression might result under the color and pretence of law inasmuch as there will be no end of litigation and a rich and malicious litigant will succeed in infinitely vexing his opponent by repetitive suits and actions. This may compel the weaker party to relinquish his right. The doctrine of res judicata has been evolved to prevent such an anarchy. That is why it is perceived that the plea of res judicata is not a technical doctrine but a fundamental principle which sustains the rule of law in ensuring finality in litigation. This principle seeks to promote honesty and a fair administration of justice and to prevent abuse in the matter of accessing court for agitating on issues which have become final between the parties.

133. In order to discourage a litigation which reopens the final judgment of this court, while dismissing the petition imposed costs of rupees 10 lakhs.

134. We find full corroboration of this principle from the cases of other countries. We deem it appropriate to mention some of these relevant cases in the succeeding paragraphs.

ENGLAND

135. The England cases have consistently taken the view that the judgments of final court must be considered final and conclusive. There must be certainty in the administration. Uncertainty can lead to injustice. Unless there are very exceptional or compelling reasons the judgment of apex courts should not be reopened.

136. InRegina v. Gough, [1993] 1 A.C. 646, with regards to setting aside judgments due to judicial bias, the House of Lords held that there is only one established special category and that exists where the tribunal has a pecuniary or proprietary interest in the subject matter of the proceedings as inDimes v. Proprietors of Grand Junction Canal, (1852) 3 H.L. Cases 759. The courts should hesitate long before creating any other special category since this will immediately create uncertainty as to what are the parameters of that category and what is the test to be applied in the case of that category. Lord Goff of Chievely stated that I wish to draw attention to the fact that there are certain cases in which it has been considered that the circumstances are such that they must inevitably shake public confidence in the integrity of the administration of justice if the decision is to be allowed to stand. Such cases attract the full force of Lord Hewart C.J.'s requirement that justice must not only be done but must manifestly be seen to be done. These cases arise where a person sitting in a judicial capacity has a pecuniary interest in the outcome of the proceedings. In such a case, as Blackburn J. said in Reg. v. Rand (1866) L.R. 1 Q.B. 230, 232: any direct pecuniary interest, however small, in the subject of inquiry, does disqualify a person from acting as a judge in the matter. The principle is expressed in the maxim that nobody may be judge in his own cause (nemo judex in sua causa)... In such a case, therefore, not only is it irrelevant that there was in fact no bias on the part of the tribunal, but there is no question of investigating, from an objective point of view, whether there was any real likelihood of bias, or any reasonable suspicion of bias, on the facts of the particular case. The nature of the interest is such that public confidence in the administration of justice requires that the decision should not stand (p. 661).

137. InR v. Bow Street Metropolitan Stipendiary Magistrate, ex parte Pinochet Ugarte(No 2) (1999) 2 W.L.R. 272, the House of Lords set aside one of its earlier orders. In this case, the majority at the House of Lords had earlier ruled whether Augusto Pinochet, the former dictator of Chile, could be extradited to Spain in order to stand trial for alleged crimes against humanity and was not entitled to sovereign immunity. Amnesty International had been an intervener in this case in opposition to Pinochet. Lord Hoffman, one of the majority judges, was a director of Amnesty International Charitable Trust, an organization controlled by Amnesty International, and Lady Hoffman had been working at AI's international secretariat since 1977. The respondent was not aware of Lord Hoffman's relationship to AI during the initial trial. In this case, the House of Lords cited with approval the respondents' concession acknowledging the House of Lords' jurisdiction to review its decisions -

In principle it must be that your Lordships, as the ultimate court of appeal, have power to correct any injustice caused by an earlier order of this House. There is no relevant statutory limitation on the jurisdiction of the House in this regard and therefore its inherent jurisdiction remains unfettered.

138. According to the English law, the judgment of the Apex Court can be reviewed in exceptional circumstances particularly when the judge associated with any of the organizations to be a good ground for reviewing the judgment.

139. InPinochet test in Regina (Edwards) v Environment Agency and others[2010] UKSC 57, the Supreme Court of the United Kingdom overruled an earlier order of costs made by the erstwhile apex court, the House of Lords, on the grounds that the House of Lords had made a substantive error in the original adjudication. However, this appeal was lodged under Rule 53 of the The (U.K.) Supreme Court Rules, 2009, 2009 No. 1603 (L. 17). Rule 53 provides as follows:

53. (1) A party who is dissatisfied with the assessment of costs made at an oral hearing may apply for that decision to be reviewed by a single Justice and any application under this rule must be made in the appropriate form and be filed within 14 days of the decision.

(2) The single Justice may (without an oral hearing) affirm the decision made on the assessment or may, where it appears appropriate, refer the matter to a panel of Justices to be decided with or without an oral hearing.

(3) An application may be made under this rule only on a question of principle and not in respect of the amount allowed on any item in the claim for costs.

140. In this case, Lord Hope, citing the Pinochet case stated that:

The Supreme Court is a creature of statute. But it has inherited all the powers that were vested in the House of Lords as the ultimate court of appeal. So it has the same powers as the House had to correct any injustice caused by an earlier order of the House or this Court... In this case it seems that, through no fault of the appellant, an injustice may have been caused by the failure of the House to address itself to the correct test in order to comply with the requirements of [certain EU] directives [at para. 35].

CANADA

141. The Canadian Supreme Court is of the same view that judicial bias would be a ground for reviewing the judgment. InWewaykum Indian Band v. Canada[2003] 2 SCR 259 the court relied on Taylor Ventures Ltd. (Trustee of) v. Taylor 2005 BCCA 350 where principle of judicial bias has been summarized.

142. The principles stated inRobertsregarding judicial bias were neatly summarized inTaylor Ventures Ltd. (Trustee of)(supra), where Donald J.A. stated -

(i) a judge's impartiality is presumed;

(ii) a party arguing for disqualification must establish that the circumstances justify a finding that the judge must be disqualified;

(iii) the criterion of disqualification is the reasonable apprehension of bias;

(iv) the question is what would an informed, reasonable and right-minded person, viewing the matter realistically and practically, and having thought the matter through, conclude; (iv) the test for disqualification is not satisfied unless it is proved that the informed, reasonable and right-minded person would think that it is more likely than not that the judge, whether consciously or unconsciously, would not decide fairly;

(v) the test requires demonstration of serious grounds on which to base the apprehension; (vi) each case must be examined contextually and the inquiry is fact-specific (at para 7).

143. Cases from Australia also support the proposition that a final judgment cannot ordinarily be reopened, and that such steps can be taken only in exceptional circumstances.

144. InState Rail Authority of New South Wales v. Codelfa Constructions Propriety Limited(1982) 150 CLR 29, the High Court of Australia observed:

... it is a power to be exercised with great caution. There may be little difficulty in a case where the orders have not been perfected and some mistake or misprision is disclosed. But in other cases it will be a case of weighing what would otherwise be irremediable injustice against the public interest in maintaining the finality of litigation. The circumstances that will justify a rehearing must be quite exceptional. ...

145. InBailey v. Marinoff(1971) 125 CLR 529, Judge Gibbs of the High Court of Australia observed in a dissenting opinion:

It is a well-settled rule that once an order of a court has been passed and entered or otherwise perfected in a form which correctly expresses the intention with which it was made the court has no jurisdiction to alter it. .. ....The rule tests on the obvious principle that it is desirable that there be an end to litigation and on the view that it would be mischievous if there were jurisdiction to rehear a matter decided after a full hearing. However, the rule is not inflexible and there are a number of exceptions to it in addition to those that depend on statutory provisions such as the slip rule found in most rules of court. Indeed, as the way in which I have already stated the rule implies, the court has the power to vary an order so as to carry out its own meaning or to make plain language which is doubtful, and that power does not depend on rules of court, but is inherent in the court.... And, further:

The authorities to which I have referred leave no doubt that a superior court has an inherent power to vary its own orders in certain cases. The limits of the power remain undefined, although the remarks of Lord Evershed already cited suggest that it is a power that a court may exercise if, in its view, the purposes of justice require that it should do so.

146. InDJL v. Central Authority(2000) 170 ALR 659, the High Court of Australia observed:

...It is now recognized both in Australia and England that orders made by ultimate appellate courts may be reopened by such courts in exceptional circumstances to repair accidents and oversights which would otherwise occasion a serious injustice. In my view, this can be done although the order in question has been perfected. The reopening may be ordered after due account is taken of the reasons that support the principle of finality of litigation. The party seeking reopening bears a heavy burden to demonstrate that the exceptional course is required without fault on his part. ...

147. Lastly, inLexcray Pty. Ltd. v. Northern Territory of Australia2003 NTCA 11, the Court appeals of the Supreme Court of the Northern Territory expressly stated: ...As a final court of appeal the High Court of Australia has inherent jurisdiction to vacate its orders in cases where there would otherwise be an irremediable injustice....

148. American courts also follows a similar pattern. InUnited States of America v. Ohio Power Company353 US 98 (1957), the U.S. Supreme Court vacated its earlier order denying a timely petition for rehearing, on the ground that the interest in finality of litigation must yield where interests of justice would make unfair, strict application of Supreme Court's Rules.

149. InRaymond G. Cahill v. The New York, New Haven and Hartford Railroad Company351 US 183, the Supreme Court observed:

...There are strong arguments for allowing a second petition for rehearing where a rigid application of this rule would cause manifest injustice.

FIJI

150. The Supreme Court of Fiji Islands incorporating Australian and British case law summarized the law applicable to review of its judgments. It has been held that the Supreme Court can review its judgments pronounced or orders made by it. The power of the appellate courts to re- open and review their orders is to be exercised with great caution.

151. The cases establish that the power of appellate courts to re-open and review their orders is to be exercised with great caution. The power, and the occasions for its exercise were considered inIn Re Transferred Civil Servants (Ireland) Compensation (1929) AC 242, 248-52; and State Rail Authority NSW v Codelfa Construction Pty Ltd (1982) HCA 51 : (1982) 150 CLR 29, 38-9, 45-6, where earlier Privy Council cases are referred to. The principles were summarised inSmith v NSW Bar Association(1992) 176 CLR 252, 265 where the High Court of Australia said:

The power is discretionary and, although it exists up until the entry of judgment, it is one that is exercised having regard to the public interest in maintaining the finality of litigation. Thus, if reasons for judgment have been given, the power is only exercised if there is some matter calling for review ... these considerations may tend against the re-opening of a case, but they are not matters which bear on the nature or the review ... once the case is re-opened ... the power to review a judgment ... where the order has not been entered will not ordinarily be exercised to permit a general re- opening ... But ... once a matter has been re- opened, the nature and extent of the review must depend on the error or omission which has led to that step being taken.

152. The principles were further considered inAutodesk Inc v Dyason(No 2) (1993) HCA 6 : (1993) 176 CLR 300, 303 where Mason CJ said:

What must emerge, in order to enliven the exercise of the jurisdiction, is that the Court has apparently proceeded according to some misapprehension of the facts or the relevant law and this ... cannot be attributed solely to the neglect of the party seeking the rehearing. The purpose of the jurisdiction is not to provide a backdoor method by which unsuccessful litigants can seek to reargue their cases.

153. The ratio of these judgments is that a court of final appeal has power in truly exceptional circumstances to recall its order even after they have been entered in order to avoid irremediable injustice.

154. Reviewing of various cases of different jurisdictions lead to irresistible conclusion that though the judgments of the apex court can also be reviewed or recalled but it must be done in extremely exceptional circumstances where there is gross violation of principles of natural justice.

155. In a case where the aggrieved party filing a review or curative petition was not a party to the lis but the judgment adversely affected his interest or he was party to the lis was not served with notice of the proceedings and the matter proceeded as if he had notice. This court inState of M.P. v. Sugar Singh & Otherson 9th March, 2010 passed the following order in a curative petition :

Though there were eight accused persons, only four accused were arrayed as party respondents in the said appeals namely, Sughar, Laxman, Onkar and Ramesh. Other accused, namely,Bhoja, Raghubir, Puran and Balbir were not impleaded as respondents in these Criminal Appeals and consequently notices were not issued to them. This Court, by judgment on 7th November, 2008 in the aforesaid Criminal Appeals, reversed the acquittal of the accused by the High Court and found them guilty of the offences punishable under Section 304 Part-II read with Section 149 of the I.P.C. and sentenced them to undergo imprisonment for a period of six years. The conviction of the accused for the offences punishable under Section 148 as also Section 326 read with the Section 149 of the I.P.C. and the sentence imposed by the Sessions Court in regard to the said offences was upheld by this Court.

We have heard learned counsel for the petitioners. The respondent State, though served with a notice through standing counsel, has not chosen to enter appearance. These Curative Petitions have been filed by accused No.2 (Raghubir) and by accused no.4 and 5 (Sughar Singh and Laxman) on the ground that acquittal of Bhoja, Raghubir, Puran and Balbir have been reversed without affording an opportunity of being heard. We see that there is serious violation of principles of natural justice as the acquittal of all the accused has been set aside even though only four of them were made respondents before this Court and the others were not heard. We are, therefore, constrained to recall the 3 judgment passed by this Court in Criminal Appeal Nos.1362- 1363 of 2004 on 7th November, 2008.

Consequently, the accused Sughar Singh, Laxman, Onkar and Ramesh, if they are in custody, are directed to be released forthwith.

In the result, these Curative Petitions are disposed of and the Criminal Appeal Nos.1362- 124 1363 of 2004 are restored to the file for being heard afresh with a direction that the other four accused (Bhoja, Raghubir, Puran and Balbir) be impleaded as respondents and all accused be served with fresh notices.

156. In the instant case, the applicants had adequate opportunity and were heard by the court at length on number of occasions and only thereafter the writ petition was disposed of. The applicants aggrieved by the said judgment filed a review petition. This review petition was also dismissed. In the instant case even the curative petition has also been dismissed. The applicants now want to reopen this case by filing these interlocutory applications.

157. The applicants certainly cannot be provided an entry by back door method and permit the unsuccessful litigant to re- agitate and reargue their cases. The applicants have filed these applications merely to avoid compliance of the order of the court. The applicants have been successful in their endeavour and have not permitted the judgment delivered on 3.2.1996 to acquire finality till date. It is strange that other respondents did not implement the final order of this court without there being any order or direction of this court. These applications being devoid of any merit deserve to be dismissed with heavy costs.Posted byThe Legal Blogat10:36 PMCategoryLegal Concepts,Practice and Procedure4 comments:1. RCJuly 23, 2011 at 3:36 AMI was recently told that corroboration of the principle from the cases of other countries makes a case stand on shaky ground but this judgement shows courts are aware of other countries laws and willing to hear them in areas which are left grey in our acts.Reply2. SurajAugust 21, 2013 at 8:05 PMthe article is a milestone for the common man of India who very often faces vexatious and frivolous cases.........Thanks a lot for sharing this article.....Thanks a lotReply3. Rajan KarunakaranAugust 24, 2013 at 1:15 PMFinality of Judgment is subject to the fact the it is not based on fraud committed before the Court.In the case reported (2007 )4 Supreme Court cases page No 221(A.V Papayya Shastry and others ...Appellants V/s Government of A.P and others it was held that any order , Judgement obtained by committing fraud on the court is illegal ,null and void and not binding on the court.What about finality of such Judgments, orders? Rajan Karunakaran Advocate , rajanadv52@gmaiml.coReply4. Wedding gardens in IndoreJanuary 9, 2014 at 5:45 PMI enjoyed reading you post. I am sharing it with my other friends as the information is really very useful. Keep sharing your excellent work.ReplyNewer PostOlder PostHomeSubscribe to:Post Comments (Atom)

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