Newsletter : Week 4 : Turbulent Times

The last fortnight has seen drama and scandal unfold in the legal world. While the media was called up to do some soul searching in the wake of the Radia-Gate controversy, the judges of the Allahabad High Court picked up a fight with their counterparts sitting in the Apex Court.

The Delhi High Court saw the appointment of 2 new Judges, who were elevated from the Delhi Higher Judicial Services. Justice(s) G.P. Mittal and M.L. Mehta have had distinguished careers as judges in the District Courts in Delhi and have been rewarded by the promotion as Additional Judges of the Delhi High Court. At the same time, Justice V.B. Gupta of the Delhi High Court retired from judicial services upon attaining the age of retirement. The Legal Blog wishes all of them the best.

The last month has been a turbulent time as far as legal education is concerned. With the postponement of the Bar Council exam, the future of fresh graduates was put in doubt. Accusations against the Chairman of the Bar Council of India, Gopal Subramanium surfaced and there was speculation that he might be asked to step down from his post. This and more made the news this fortnight;

Legal News

Allahabad High Court vs. Supreme Court

M.L. Mehta to be Sworn in as Additional Judge of the Delhi High Court

Parliament passes Railway Appropriation Bills

Supreme Court Issues Notice in Tata's Right to Privacy Plea

Right to Privacy : Tata moves Supreme Court

Solicitor General Gopal Subramanium to Quit Bar Council Post?

Right to Information on Judges Appointment : Referred to Constitutional Bench

Maintain Judicial Discipline : Supreme Court to High Courts

Supreme Court : Illicit relationship of married man is cruelty to his wife

Katju Slams Allahabad HC Judges for Nepotism & Corruption

Justice V.B. Gupta Retires

Supreme Court on 2G Scam : 'Why has A. Raja not been questioned'

Judges Appointed : Rajasthan gets new Chief Justice

No Change in Judicial Appointment System : Moily to Rajya Sabha

No Benches of Supreme Court : Moily

Add Section 302 IPC in case of Dowry Death : Supreme Court

Articles

Declaration & Cancellation of Document : The LawCompliance of Order 39 Rule 3 : Mandatory or Directory

Competition Laws : Powers and Functions of the Competition Commission of India : The Law

Precedentiary Value of Judgments : The Law

Jurisdiction of Courts in Passing Off Actions : The LawCBFC Certification Mandatory : Delhi High Court

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Establish Supreme Court Bench in South India

Source : The Hindu

The Forum for Supreme Court Bench in south India on Saturday requested the Chief Justice of India and the President to take positive steps to establish a Bench of the Supreme Court in the South. If the request is not fulfilled, 2.50 lakh laywers practising in the South would be compelled to abstain from courts and go on an indefinite fast before the Supreme Court and Parliament.

A resolution to this effect was adopted at the forum's meeting here. A joint action committee (JAC) was formed and it would convene a meeting of lawyers of the four Southern States and Puducherry in March/April next year.

The resolution said that more than 100 law colleges had come up in the Southern States which had more than 2.50 lakh lawyers.

Percentage of litigation

Litigation in the Supreme Court from this part of the country was 25 per cent. This necessitated establishing a Supreme Court Bench in the South. Poor people were virtually denied the right to approach the apex court due to the time and distance involved. The country's population had increased in the last 60 years which necessitated the establishment of Supreme Court Benches.

The Legal Blog had earlier covered a story where the Union Law Minister, Verrappa Moily,said the government has ‘no proposal to establish Benches of the Supreme Court anywhere in the country.'

Compliance of Order 39 Rule 3 : Mandatory or Directory

Justice Lahoti

The Supreme Court in S.B.L. Ltd. vs Himalaya Drug Co. has examined whether the provision of Order 39 Rule 3 of the Code of Civil Procedure, 1908 are mandatory or directory in nature. The Supreme Court examined the effect of non compliance of the provisions of Rule 3 of Order 39 in the aforesaid judgment. The Supreme Court held as under;

34. Looking to the scheme of Order 39, CPC it is clear that ordinarily an order of injunction may not be granted ex parte. The opposite party must be noticed and heard before an injunction may be granted. Rule 3 carves out an exception in favour of granting an injunction without notice to the opposite party where it appears that the object of granting injunction would be defeated by the delay. Conferment of this privilege on the party seeking an injunction is accompanied by an obligation cast on the court to record reasons for its opinion and an obligation cast on the applicant to comply with the requirements of Clauses (a) and (b) of the proviso. Both the provisions are mandatory. The applicant gets an injunction without notice but subject to the condition of complying with Clauses (a) and (b) above said.

35. We may refer to several observations made by their Lordships of the Supreme Court inShiv Kumar Chadha v. MCD . Though the observations have been, made primarily on the obligation of the Court to record the reasons but in our opinion they equally apply to the obligation cast on the applicant by the proviso. The provisions are mandatory. Their Lordships have observed :

"The imperative nature of the proviso has to be judged in the context of Rule 3 of Order 39 of the Code. Before the proviso aforesaid was introduced, Rule 3 said "the court shall in all cases, except where it appears that the object of granting the injunction would be defeated by the delay, before granting an injunction, direct notice of the application for the same to be given to the opposite party". The proviso was introduced to provide a condition, where court proposes to grant an injunction without giving notice of the application to the opposite party being of the opinion that the subject of granting injunction itself shall be defeated by delay. The condition so introduced is that the court "shall record the reasons" why an ex parte order of injunction was being passed in the facts and circumstances of a particular case. In this background, the requirement for recording the reasons for grant of ex parte injunction cannot be held to be a mere formality. This requirement is consistent with the principle, that a party to a suit, who is being restrained from exercising a right which such party claims to exercise either under a statute or under the common law, must be informed why instead of following the requirement of Rule 3 the procedure prescribed under the proviso has been followed. The party which invokes the jurisdiction of the court for grant of an order of restraint against a party, without affording an opportunity to him of being heard, must satisfy the court about the gravity of the situation and court has to consider briefly these factors in the ex parte order. We are quite conscious of the fact that there are other statutes which contain similar provisions requiring the court or the authorities concerned to record reasons before exercising power vested in them. In respect of some of such non-compliance therewith will not vitiate the order so passed. But same cannot be said in respect of the proviso to Rule 3 of Order 39. The Parliament has prescribed a particular procedure for passing of an order of injunction without notice to the other side under exceptional circumstances. Such ex parte orders have far-reaching effect, as such a condition has been imposed that court must record reasons before passing such order. If it is held that the compliance with the proviso aforesaid is optional and not obligatory, then the proviso by the Parliament shall be a futile exercise and that part of Rule 3 will be a surplusage for all practical purposes. Proviso to Rule 3 of Order 39 of the Code, attracts the principle that if a statute requires a thing to be done in a particular manner it should be done in that manner or not all." (Para 34)

36. We are of the opinion that if the court is satisfied of non-compliance by the applicant with the provisions contained in the proviso then on being so satisfied the court which was persuaded to grant an ex parte ad interim injunction confiding in the applicant that having been shown indulgence by the court he would comply with the requirements of the proviso, it would simply vacate the ex parte order of injunction without expressing any opinion of the merits of the case leaving it open to the parties to have a hearing on the grant or otherwise on the order of injunction but bi-part only. The applicant would be told that by this conduct (mis-conduct to be more appropriate) he has deprived the opponent of an opportunity of having an early or urgent hearing on merits and, therefore, the ex parte order of injunction cannot be allowed to operate any more.

Declaration & Cancellation of Document : The Law

Justice R.V. Raveendran

The Supreme Court in Suhrid Singh @ Sardool Singh Vs. Randhir Singh & Ors. has explained the underlying difference between seeking a declaration as the the invalidity of a document and seeking its cancellation. Although both the said reliefs may sound the same, there is a fundamental difference in the same and also the court fees payable in each case. The Supreme Court in this judgment has explained the concept as under:

"7. Computation of fees payable in certain suits : The amount of fee payable under this Act in the suits next hereinafter mentioned shall be computed as follows : 

(iv) in suits - x x x x (c) for a declaratory decree and consequential relief.- to obtain a declaratory decree or order, where consequential relief is prayed, x x x x x according to the amount at which the relief sought is valued in the plaint or memorandum of appeal. 

In all such suits the plaintiff shall state the amount at which he values the relief sought: 

Provided that minimum court-fee in each shall be thirteen rupees. 

Provided further that in suits coming under sub-clause (c), in cases where the relief sought is with reference to any property such valuation shall not be less than the value of the property calculated in the manner provided for by clause (v) of this section." 

The second proviso to section 7(iv) of the Act will apply in this case and the valuation shall not be less than the value of the property calculated in the manner provided for by clause (v) of the said section. Clause (v) provides that where the relief is in regard to agricultural lands, court fee should be reckoned with reference to the revenue payable under clauses (a) to (d) thereof; and where the relief is in regard to the houses, court fee shall be on the market value of the houses, under clause (e) thereof. 

6. Where the executant of a deed wants it to be annulled, he has to seek cancellation of the deed. But if a non-executant seeks annulment of a deed, he has to seek a declaration that the deed is invalid, or non-est, or illegal or that it is not binding on him. The difference between a prayer for cancellation and declaration in regard to a deed of transfer/conveyance, can be brought out by the following illustration relating to `A' and `B' -- two brothers. `A' executes a sale deed in favour of `C'. Subsequently `A' wants to avoid the sale. `A' has to sue for cancellation of the deed. On the other hand, if `B', who is not the executant of the deed, wants to avoid it, he has to sue for a declaration that the deed executed by `A' is invalid/void and non- est/ illegal and he is not bound by it. In essence both may be suing to have the deed set aside or declared as non-binding. But the form is different and court fee is also different. If `A', the executant of the deed, seeks cancellation of the deed, he has to pay ad-valorem court fee on the consideration stated in the sale deed. If `B', who is a non-executant, is in possession and sues for a declaration that the deed is null or void and does not bind him or his share, he has to merely pay a fixed court fee of Rs. 19.50 under Article 17(iii) of Second Schedule of the Act. But if `B', a non- executant, is not in possession, and he seeks not only a declaration that the sale deed is invalid, but also the consequential relief of possession, he has to pay an ad-valorem court fee as provided under Section 7(iv)(c) of the Act. 

Section 7(iv)(c) provides that in suits for a declaratory decree with consequential relief, the court fee shall be computed according to the amount at which the relief sought is valued in the plaint. The proviso thereto makes it clear that where the suit for declaratory decree with consequential relief is with reference to any property, such valuation shall not be less than the value of the property calculated in the manner provided for by clause (v) of Section 7. 

7. In this case, there is no prayer for cancellation of the sale deeds. The prayer is for a declaration that the deeds do not bind the "co-parcenery" and for joint possession. The plaintiff in the suit was not the executant of the sale deeds. Therefore, the court fee was computable under section 7(iv)(c) of the Act. The trial court and the High Court were therefore not justified in holding that the effect of the prayer was to seek cancellation of the sale deeds or that therefore court fee had to be paid on the sale consideration mentioned in the sale deeds.