[News you can use]

Saheli, an NGO has urged the Supreme Court to reconsider its decision on pre-marital sex and live-in relationships.

By encouraging pre-marital sex and live-in relationships, incidents of abandoned babies are sure to increase and the proof of the same is the children at our centre “We have over 50 such children at Saheli, says Saheli President Kiran and such move could lead to more babies being abandoned on the streets!

“A woman, cheated and abandoned by her boyfriend came to Saheli seeking shelter and protection.  Her baby was delivered at our NGO, but as the mother’s mental condition is not stable and she’s on treatment, we are adopting the infant” says the NGO.

**

Though it is said some people feel such relationship is okay in a ‘fast world’ where work pressure is high.  Its definitely a “Big social evil”.  Its no doubt spoils the entire system of family values, respect and responsibilities to the next generations to come.  In the name of free society our youngsters are hopelessly mislead!

Dear readers, Indian Legislation has not recognized live-in relationships in all aspects while formulating Laws.  Except making modification to Section 125 Cr.P.C. [for Maintenance] and under Protection of Women from Domestic Violence Act.

The personal laws remains the same which does not recognize the live-in relationships.  The difference between “Live-in” “Adultery” “Prostitution” nowhere defined.  Failure of live-in leads to adultery or even induce prostitution in many cases and the term ‘adultery’/prostitution is a criminal offence in India and also defeats many rights like property rights, compensation Claims and death benefits in many cases.

PROSPECTIVE “LIVE-IN” COUPLES KINDLY THINK BEFORE YOU BRINK”

Relevant Links:

http://lifestyle.indianetzone.com/relationship/1/live-in_relationships.htm – tips for live-in relationships

http://timesofindia.indiatimes.com/india/Maintenance-for-live-in-partner/articleshow/3178050.cms – Maintenance and other legal information

http://content.msn.co.in/MSNContribute/Story.aspx?PageID=d84ec6cf-bbac-4d3f-8e54-697822e731cd -  It is wise to adopt the good technologies, sciences, and resources of developing nations, but foolishness to adopt their rotten degraded culture.

TAGS: EVIDENCE AND POWER-OF-ATTORNEY / HOW & WHEN TO FILE POWER-OF- ATTORNEY IN CIVIL/CRIMINAL COURTS/IN FAMILY COURTS/LABOUR COURTS/RENT CONTROL COURTS/CHEQUE DISHONOUR/SEC.138 N.I.ACT CASES-

[courtesy : authors of many books I referred.]

WHEN AND HOW TO FILE POWER OF ATTORNEY IN COURT PROCEEDINGS?

Representation by Power-of Attorney Holder in Civil Cases:

A party to the Court Proceedings may be represented by a Power-of Attorney holder duly authorized by the Party/Principal.

Under Order 3 Rule 1 & 2 of Civil Procedure Code any appearance application or act in or to any Court except otherwise provided by any law made or done by the party in person or by his recognized agent or by a pleader on his behalf.

Order 3 Rule 2 of C.P.C. specifies the Power-of-Attorney holder as recognized agents for the Party.

Therefore the power-of-Attorney holder who is authorized to appear on behalf of the party can appear, file application engage advocates and act on behalf of parties.

The process to be served to the Party shall be served to the power agent[Order 3 Rule 3 C.P.C.]

Besides the recognized agents, any person residing within the jurisdiction of the Court may be appointed as agent to accept service of process [Order 3 Rule 6 C.P.C.]

The appointment may be special or general and shall be made by an instrument in writing signed by the principal and such instrument or, if the appointment is general, a certified copy thereof shall be filed in Court.

The Court may, at any stage of the suit, order any party to the suit not having a recognized agent residing within, the jurisdiction of the Court, or a pleader who has been duly appointed to act in the Court on his behalf, to appoint, within a specified time, an agent residing within the jurisdiction of the Court to accept service of the process on his behalf.

Rule 16 and 17 of the Civil Rules of Practice [T.N.] enumerates the procedure to file power of attorney by the agent and recognizing the same by the Court as follows:

Rule 16: PARTY APPEARING BY AGENT:

1. When a party appears by an agent other than a pleader or advocate the agent shall before making or doing any appearance, application, or act in or to the Court file in Court the power of attorney or written authority thereunto authorizing him, or a properly authenticated copy thereof/ or in the case of an agent carrying on a trade or business on behalf o9f a party without a written authority an affidavit stating the residence of his principal, the trade or business carried on by the agent on the behalf and the connection of the same with the subject matter of the suit and that no other agent is expressly authorized to make or do such appearance, application or act.

1. The judge may thereupon record in writing that the agent is permitted to appear and act on behalf of the party and unless and until the said permission is granted no appearance, application or act of the agent shall be recognized by the Court.

Rule 17: SIGNING OR VERIFICATION BY AGENT:

If any proceeding which under any provision of law or these rules is required to be signed or verified by a party is signed or verified by any person on his behalf a written authority in this behalf signed by the party shall be filed, in Court. Together with an affidavit verifying the signature of the party and stating the reason of his inability to sign or verify the proceedings and proving the means of knowledge of the facts set out in the proceeding of the person signing or verifying the same.

Relevant Rules from the Madras High Court Original Side Rules with regard to filing of proceedings before High Court by the power of attorney:

Rule 7 Order II: Affidavit of recognized agent as defined in Order III, Rule 2, Civil Procedure Code to be filed:

Except as provided for by the Code if a plaint is subscribed and verified by a person other than the party on whose behalf it is presented it shall not be admitted or filed unless it is made to appear, upon affidavit that such person is a recognized agent of the party as defined by Order III Rule 2 of the Code and is duly authorized and competent so to do.

Rule 37 of Order XXV: Registrar may require further proof of execution of Power of Attorney:

Unless a power of attorney constituting such attorney can under section 85 of the Indian Evidence Act, 1872 be presumed to have been executed and authenticated as in the said section mentioned, the Registrar may require further proof of its due execution.

Rule 1 of Order XXIX: Application for execution to be made to the Registrar:

All application for the execution of decrees or orders whether of the High Court or of any o0ther Court (except as otherwise provided by these rules) shall be made by advocates or by parties in person to the Registrar.  The transmission of decrees and the issue of all necessary warrants and notices by him and all amendments thereof shall be deemed quasi-judicial acts.

Procedure in filing power-of-attorney in Civil Court:

When the Power-of-attorney holder appears for a party he has to file:

1. Authenticated copy of the Power-of-Attorney to be filed.  The Original power-of-Attorney may be produced to the officer of the Court for verification and will be taken back after due verification.

1. A petition with supporting affidavit to be filed along with an affidavit under Rule 16(2) of Civil Rules of Practice[T.N.] seeking permission to appear and act on behalf of the principal/Party as a recognized agent.  The Attorney (agent) should also state that the executor is alive at the time of filing the suit and further to aver that the power of attorney is still in force.

1. The attorney should state in the affidavit verifying the signature of his principal and stating the reasons for the principal’s inability to sign or verify the proceedings and proving the means of knowledge of the facts set out in the proceedings by the attorney signing or verifying the same.  The agent also should aver that no other agent is expressly authorized to make any such appearance or application or do such an act.

1. With regard to filing of the cases and taking part in the proceedings by the power of attorney holder, in the proceedings before the Madras High Court (Original Side) the Madras High Court Original Side Rules recognizes the power of attorney executed and authenticated as per section 85 of the Indian Evidence Act only.  In all other kinds of power-of attorney if needed the Registry may require further proof of due execution of the power-of-attorney relied upon.

1. In the true copies of the power-of-attorney a Court fee of Rs.5/- to be affixed as per the Article15, Schedule II of the Tamil Nadu Court Fees and Suits Valuation Act 1955.

Appearance by power agent in Court: In Surender Raj Jaswal Vs. Smt. Vijaya Jaiswal [AIR 2003 AP 317],  the question as to whether the General Power of Attorney holder of the respondent is entitled to appear and prosecute the case considered.  In this case the plaintiff gave power of attorney to her husband who is well acquainted with the facts of the case and who is looking after her affairs.  The Court permitted the plaintiff’s power of attorney holder under Rule 32 and 33 of Civil Rules of Practice (A.P.) to prosecute the case of the plaintiff by tendering evidence.  The Power of Attorney holder cross examined the defendant which was agitated by the defendant.  It was held that when the trial Court permitted the power agent to prosecute the case and to cross examine the witnesses, the said agent was helping the Court by appearing for the plaintiff and there was no remark noticed by the trial Court.  It was held further that it is always open to the Court to withdraw or cancel permission if the power of attorney holder is unworthy or reprehensible.

When can a General Power of Attorney holder give evidence:

When once a person files a suit on behalf of the party, as a G.P.A. holder he enters into the shoes of that party and except to the extent of personal knowledge, he is entitled to depose on other facts.  In the instant case, what was relied upon by the plaintiffs is entirely documentary evidence, which are public documents and no personal knowledge was required to be pressed into service to establish the case of plaintiff [Secretary to Govt. of India Vs. Indira Devi, AIR 2003 A.P. 329 (DB)]

In Shanthi Devi Agarwal Vs. V.H. Lulla [AIR 2004 M.P. 58], the Madhya Pradesh High Court while considering letting of evidence by Power-of-Attorney holder held that a power of attorney holder, who virtually steps into shoes of a party can place materials in terms of the definition of ‘evidence’ as above, on behalf of that p0arty, before a Court under Section 118 of the Evidence Act unless he stands disqualified for the reasons given in that section itself and further, admissibility of his evidence would be subject to rigorous procedure contained in Chapter X thereof.  That apart a bona fide requirement is also with reference to family and it can be proved by any member of the family.  In the instant case old age of the plaintiff is a good ground that her son, the power of attorney holder, should have been allowed to tender evidence on her behalf.

In P.Punnaiah Vs./Jeypore Sugar Co. Ltd.,[AIR 1994 SC 2258], the Supreme Court held that the normal rule is that whatever a person can do himself, he can do it through his agent, except certain functions which may be personal in nature or otherwise do not admit of such delegation.

In Humberto Luis Vs. Floriano Armando Luis [2000 AIHC 1572 (Bom.) = 2000(1) Mah LJ 690] it was held that a person holding a power of attorney can depose in the witness box on behalf of the party.

In Moulasab Vs. Sri Mohammed Hasim deceased by LRs and others [2003 (1) KCCR 239 = ILR 2003 (2) Kar 1041 =2003(2) KLJ 48]. It was held that the recognized agent holding GPA cannot be allowed to plead and argue.  He can only appear and conduct the judicial proceedings and has no right of audience.  Power to plead on behalf of a party to judicial proceedings is vested only with the pleader.  This is vbery clear from the provisions contained in Order 3, Rule 2 and Orde3rs 3 Rule 4 of CPC.

In Jaymal Thakore Vs. Charity Commissioner, Ahmedabad [AIR 2001 Guj. 279], it was held that a chartered accountant holding a power of attorney can file application on behalf of a party in the proceedings but he cannot act as pleader for the party as contemplated by the provisions of the Advocate Act.

When Power of Attorney holder cannot give evidence:

In a latest Supreme Court case Janki Vashdeo Bhojwani Vs. Industrial Bank Ltd., [(2005) 2 SCC 217 =AIR 2005 SC 439 =2005 (3) CTC 128 (SC)], It was held that power of attorney holder cannot depose for principal in respect of matters of which only the principal can have personal knowledge and in respect of which principal is entitled to be cross-examined.  It is further observed that persons claiming share in property should have entered the witness box and discharged burden.  The power of attorney holder cannot enter a witness box and depose instead of persons claiming such share.  Such persons have to show that they have got an independent source of income and they contributed for the purchase of property from such independent income.  It was observed that where a person does not appear in a witness box and state his/her case on oath and does not offer to be cross examined by the other side, the presumption would arise that the case set up by such person is not correct.

In S.Padmavathamma Vs. S.Sudha Rani [AIR 2004 AP 309] the Andhra Pradesh High Court held that the general power of attorney holder can appear as a witness only in his personal capacity.  He cannot appear as witness on behalf of the plaintiff in the capacity of plaintiff as he cannot speak about the facts which are within the personal knowledge of the party.  The Court approved that a power of attorney is not a substitute for his principal, and he cannot speak about the facts which are within the personal knowledge of the party.

In R.Subba Rao Vs. Commissioner of Income Tax, Madras [AIR 1956 SC 604], the Supreme Court held that under rule 6 of the Income Tax Rules a person who seeks relief under the section 26 A of the Income Tax Act, 1922 for Registration of Firm the partner alone is a competent person to sign on the form and the agent has no such power.  It is observed and distinguished in P.Punnaiah Vs.Jeypore Sugar Co.Ltd.,[AIR 1994 SC 2258], as the matter arose under section 26(
A) of the Indian Income Tax Act, 1922 read with Rules 2 and 6 of the rules framed in that behalf.  The Rules provided that an application for renewal of registration of the firm “shall be signed personally by all the partners”.  It is because of the said requirement that it was held that the partners must sign such a application personally.

In Kailashi Devi Vs. Matadeen Agrawal [AIR 2001 Raj 306], it was held that the power of attorney holder is a competent witness and is entitled to appear as such.  His statements in the Court cannot be ignored or it canno9t be said that the statement of such a witness shall not be read in evidence only because of the reason that he had appeared as power of attorney and the parties to suit i.e. plaintiff or defendant do no0t choose to appear as a witness in witness box.  His evidence is to be evaluated as per his deposition before the Court and in case the Court finds that evidence or such power of attorney does not depose confidence, the Court is at liberty to evaluate the same.  There is no jurisdiction with the Court to say that the evidence of such person shall not be read at all and that the plaintiff must appear in the case in her support.

In Smt.Gangavva Vs. Arjunsa [AIR 2001 Kant.231] it was held that the attorney of plaintiff can be examined for and on behalf of the plaintiff as her substitute.  There is no express bar made in the provisions of C.P.C. to debar the power of attorney to be examined as a witness on behalf of the parties to the proceedings.  A party without examining himself can as well establish his case if possible by examining the witnesses who are competent to testify.  However, in cases where there is onus placed on the party to discharge and if the facts required to be deposed  are necessarily to be testified by the party in person, in such a situation, however, such a party runs the risk of facing adverse inference for non-examination .  Otherwise, it also open to the party to give evidence through the power of attorney and such evidence would be a valid substituted evidence of the plaintiff.

Power of Attorney and Advocate:  In Thaamammal Vs. Kuppuswami Naidu (M.Krishnamal Vs. T.Balasubramania) [AIR 1937 Mad.937 (1937) 2 MLJ 552 (FB), the Full Bench of the Madras High Court observed that the power of attorney agent cannot be accorded all the rights and privileges which are enjoyed by members of legal profession and cannot carryon business as a solicitor or attorney  drafting engrossing and filing p0laints, judge’s summons, affidavits and generally issuing legal process and charge fees to the principal.  Hence, the power of attorney is not entitled to appear and conduct the proceeding himself o9r appoint an advocate to appear for him as his power of attorney and authorize him to plead.

In Divaliben Vs. Mavijibhai Vasanjibhai Ahir [AIR 1995 Guj.151], it was held that a power of attorney holder of a party can certainly be examined as a witness in any proceeding.  A power of attorney holder is given power to act on behalf of the person giving such power.  That would possibly include all acts which a party could do.  If the power of attorney holder has no personal knowledge as to certain facts deposed by him at trial, his evidence can be disbelieved or even discarded.  Simply because he is examined as a witness at trial on behalf of a party, it cannot be said that there was a defect in following the procedure provided by the Act.  The Code nowhere prohibits examination of a power of attorney holder as a witness in any proceeding.  Even a third party can be examined as a witness on behalf of a party to the proceeding.

In Mannlal Vs. Bherulal [AIR 1965 Mys.272], it was held that power of attorney executed for doing all acts and things necessary in connection withy suits gives imp0lied authority to attorney to bring suits on behalf of a minor represented by next friend without consent of next friend.

In Sikhar Chand Vs. Santi kumar {2002 AIHC 575(Raj)] it was held that a person holding power of attorney can appear as a witness for the party and not as a plaintiff.  The plaintiff has to discharge the burden of proving a certain fact/issue which the law requires him to do so.

In State Bank of India Vs. Prem Dass [AIR 1998 Del. 49], it was held that in a suit for recovery of loan by the Bank a person notified on the gazette and under bank with regulations is competent to sign and verify the plaint.

In a complaint under section 138 of the negotiable Instruments Act, the original complainant died.  The legal heirs of the deceased complainant appointed agents under power of attorney to proceed with the complaint.  The power of attorney holders filed petition u/s 302 of Cr.P.C. to continue the prosecution.  In this case the Supreme Court held that neither heirs of the complainant who filed petition u/s 302 of the Code to continue the prosecution nor any permission was sought by them from the competent Court that they should be allowed to continue the prosecution through their power of attorney holders, rather the prayer was made by the power of attorney holders, which is not permissible under law.  But the liberty was given to the heirs either to make application themselves before the Court concerned to continue the prosecution or apply to  the Court to grant permission to them to authorize a power of attorney holder to continue the prosecution on their behalf.[Jimmy Jahangir Madan Vs. Bolly Cariyappa Hindley AIR 2005  SC 48 = (2204) 12 SCC 509]

DEFECTIVE POWER OF ATTORNEY AND REPLACEMENT BY SECOND ONE: In Jugraj Singh Vs. Jaswant Singh [AIR 1971 SC 761] the Supreme Court held that6 when the first power of attorney was not complied with the requirements of the law and was ineffective and was not authenticated as required by section 33 of the Indian Registration Act, 1908, a second power of attorney with proper authentication by a Notary of the foreign country is valid.  It was further observed that the second power of attorney being a document ratifying a former inconclusive act related back, to the time when the first document was made3 and cured the illegality in the presentation for registration which had taken place.

Non-filing of power of attorney at the time of initiation of the proceedings whether fatal:

In Ashok Kumar Vs.Gobind Dhandra [AIR 1984 Cal. 337], it was observed and pointed out that during the course of hearing, it was transpired that Mr.P.N. Mukherjee, the learned advocate on record of the appellant had not filed his power of attorney and on such a further point for consideration arose as to whether because of such admitted non-filing of the power at the initiation of proceedings.  The present application and all the orders obtained earlier or passed by the court.  It was held that non-filing of the power of attorney at the initial stage was a mere irregularity, which could be cured.

The power of attorney was not filed at the time of filing of the suit.  But ratification of earlier power of attorney was produced by the principal.  It was held that the agent can not be deemed to have taken authority on behalf of the principal for prosecution of the cases by producing originals hearing altogether different dates [State of Karnataka Vs. M. Muniraju, AIR 2002 Kant. 287].

A plaint in a suit filed on behalf of a Bank was signed and verified by its manager who under the Articles of Association of the Bank was authorized, with the previous sanction of the directors, to take legal proceedings to recover the dues of the Bank.  He did not hold any power of attorney on the date of the suit.  On an objection by the defendant, an amended plaint was filed by the Bank stating that the Bank had, by its resolution, confirmed and ratified the manager’s action.  The Court allowed the amendment of plaint.  On revision against the order held that as the initiative to institute the suit could be properly transferred to the Manager under the Articles of
Association, the subsequent ratification of the act of the agent by the principal could cure the original defect. AIR 1936 Lah 321 and 25 All 635. Relied on AIR 1932 Lah 388 and AIR 1935 Lah 345 distinguished [Kirpal Chand Vs. The Traders Bank Ltd., AIR 1954 J 7 K 45].

A Power of attorney filed at a later stage within limitation period in execution proceedings can be acted upon [Addeison J Vs. Chhajju, AIR 1929 Lah 478].

POWER OF ATTORNEY IN FAMILY COURTS:

Representation of power of attorney holder in Family Court:Papers may be presented in the Family Court by the Power of attorney:In the Family Court the petitioner shall have the right to present the papers through a recognized agent other than legal practitioner, as contemplated U/O 3 R 1 of C.P.C. [Syed Amina Beevi,S.M., Mrs. Vs. Mr.Thaika Sahib alim, 1993-2-L W 604 (Mad.) = I (1994) DMC 557]

A Divorce petition was filed by husband on the ground of cruelty.  After the chief examination, cross examination and re-examination of the petitioner (husband) was over, and when the wife was being examined in chief Family Court passed order allowing the petition filed by husband praying that his presence may be dispensed with as the husband’s father and power of attorney holder informed the Court that the husband has proceeded to Saudi Arabia, the petition filed on behalf of the husband was held to be permissible in such peculiar circumstances [Dr.K.Malathi Vs. Dr. S.Rajasekaran, 2003 – L.W. 870 (Mad.)]

An authorized agent can represent in the Family Court but whenever the presence of party is necessary, the party must be present [Pavithra, represented by power agent S.Rajkumar Vs. Rahul Raj, 2003-2-L.W. 431 (Mad.)].

POWER OF ATTORNEY IN RENT CONTROL COURTS:

Petition for eviction by the power of attorney holder from landlady:  Under the power of attorney, power is given to the attorney to carry out repairs, remodel, renovate, reconstruct or alter all or any of the properties, incur the necessary expenses for the same and engage qualified workman to carry out the said items of work.  The undertaking in the present case is therefore, one coming within the meaning of section 14(2) of the Tamil Nadu Buildings(Lease and Rent Control) Act, 1960, and the principal or landlord cannot escape the penal consequences for the non performance of the undertaking by astute arguments or contentions on the basis that the undertaking was only given by the agent [S.A.M. Jameema Beevi Vs. Easwarlal Patel,1979-2-MLJ 355 (Mad.)].

POWER OF ATTORNEY IN LABOUR COURTS:

A power of attorney holder from an employer held, not liable for Provident Fund contributions for period before and after it was in force.  The petitioner was a power of attorney holder from the employer of a proprietary establishment and he challenged in his petition a direction by the Provident Fund authority to pay large sum of Provident Fund dues.  The High Court held the petitioner was liable only for the period during which the power of attorney was in force and not for period before or after that.  While on this, it was observed that the Powers of Attorney Act of 1882 indeed requires a thorough examination, so as to plug the loopholes, and cover areas, where essentially more legislative attention is necessary. Situations have come before Courts, when it had been felt that a better statement of rights and liabilities of parties and areas where the facility could and should not be resorted to are to be concisely defined [Sajeev T.K. Vs. Provident Fund Commissioner, 2004 – III-LLJ (Ker.)].

POWER OF ATTORNEY IN CRIMINAL COURTS:

Complainant through Power-of-Attorney holder cannot file a Criminal Complaint under section 500 IPC: A Complainant residing in Dubai executed a power-of-Attorney in favor of another person to file complaint for offence under section 500 IPC.  It is observed that Section 199(1) of Code of Criminal Procedure lays down that where a complainant is under the age of eighteen years, or is an idiot or a lunatic, or is from sickness or infirmity unable to make a complaint or is a woman who according to the local customs and manner, ought not be compelled to appear in public some other person may with the leave of the Court make a complaint on his or her behalf.  Complainant residing outside India cannot authorize a person through power-of attorney to file a complaint U/S 55 IPC[Fr.Thomas Maniankerikalam Vs. Thomas J Pudiyath, 2005(3) CTC 567 (SC)].

In T.C.Mathai Vs. District and Sessions judge,Thiruvananthapuram [AIR 1999 SC 1385 = 1999 Cri.L.J. 2092 (SC), the Supreme Court pointed out that the accused cannot appear through a power of attorney holder unless permission for such appearance is sought by the accused himself and the Court expressly granted such permission.

In T.C. Mathai Vs. District and Sessions Judge, Thiruvananthapuram [1999 Cri.L.J. 2092 (SC), the Supreme Court pointed out that a power of attorney holder who is not authorized by Court cannot become a pleader and cannot appear for the accused before the criminal Court like that of an advocate.

POWER-OF-ATTORNEY IN CHEQUE DISHONOUR CASES (COMPLAINT U/S 138 OF NEGOTIABLE INSTRUMENTS ACT,1881)

Power-of-attorney holder of legal heirs of the deceased complainant cannot file petition to continue the prosecution:

U/S 138 of the N.I. Act, the original complainant died.  The legal heirs of the deceased complainant appointed agents under power of attorney to proceed with the complaint.  The power-of-attorney holders filed petition U/S 302 of Cr.P.C. to continue the prosecution.  In this case the Supreme Court held that neither heirs of the complainant filed petition U/S 302 of the Code to continue the prosecution nor any permission was sought by them from the competent Court that they should be allowed to continue the prosecution through their power-of-attorney holders, rather the prayer was made by the power-of-attorney holders, which is not permissible under law.  But the liberty was given to the heirs either to make an application themselves before the Court concerned to continue the prosecution or apply to the Court to grant permission to them to authorize a power-of-attorney holder to continue the prosecution on their behalf [Jimmy Jahangir Madan Vs. Bolly Cariyappa Hindley, AIR 2005 SC 48 = (2004) 12 SCC 509].

Guidelines to file complaint by power of attorney holder:

A complaint can be presented by General power of attorney on behalf of the payee, provided

• 1. the complaint shall be signed by the payee himself,

• 1. there shall be also an affidavit of the complainant in proof of his execution of GPA added to the production of the said power-of-attorney document

• 1. a sworn statement of GPA can be recorded on the date of presentation of the complaint

• 1. a sworn statement of payee (complaint) shall have to be taken at a future date on his appearance in Court, the Magistrate shall thoroughly examine the statements of GPA holder as well as the original complaint and the documents produced before him and exercise his discretion vested under sections 202 and 203 of Cr.P.C.  The above guidelines are not exhaustive and in other circumstances the Magistrate shall exercise his discretion judiciously and in conformity with other provisions of law applicable [Y. Vijayalaskhmi @Rambha Vs. Manickam Narayanan, Proprietor, Seventh Channel Communications, reptd. By its power-of-attorney Agent, Thanigaivelan, 2005(3) CTC 480 (MAD) – Date of judgment 8/6/2005]

A power-of-attorney holder cannot depose for principal in respect of matter of which only the principal can have personal knowledge and in respect of which the principal is entitled to be cross examined [Janki Vashdeo Bhojwani Vs. Industrial Bank Ltd., (2005) 2 SCC 217 = 2005 (3) CTC 128 (SC) – AIR 2005 SC 439].

The power-of-attorney of a payee or a holder in due course of a dishonoured cheques can file a complaint for an offence U/S 138 of N.I.Act after obtaining permission from the Court, either before or after filing of the complaint [Ramachandra Rao K Vs. State of A.P., 2005 (2) CTC 417 (A.P.-FB) = 2005 (2) ALT 607].

Representation by subsequent person:

No Magistrate shall insist that the particular person, whose statement was taken on oath at the first instance, alone can continue to represent the company till the end of the proceedings.  It has been held that there may be occasions when different persons can represent the company.  It has been held that it is open to the dejure complainant company to seek permission of the court for sending any other person to represent the company in the court [M/s M.M.T.C. Ltd., Vs. M/S Medchl Chemicals & Pharma (P) Ltd., 2002 (1) Crimes 156 (SC) = 2002 Cri.L.J. 266 =AIR 2002 SC 182 = (2002) 108 Comp. Cas 48 =(2002) 1 SCC 234].

Notice on behalf of power-of-attorney holder by Advocate:

Power-of-Attorney holder of payee instructing an advocate to send notice.  The said notice is valid [S.G.Pandalai Vs. Jacob C. Alexander & State of Kerala, 2002 (108) Comp. Cas. 841 (Mad)].

Notice by power-of-attorney: Notice on the instruction of power-of-attorney holder is valid [S.G. Pandalai Vs. Jacob C.Alexander, 2000 Cri L.J. 2155 (Ker) =2000 (3) Crimes 232].

Complaint by power-of-attorney holder: A power-of-attorney holder of a payee or holder in due course can make a complaint U/S 142 of the N.I. Act, but still the principal has to bear the ultimate responsibility [Hamsa Vs. Ibrahim, 1994 (1) Crimes 395 (Mad.) See also Manimekalai Vs. Ghopaldas Kalyanji Sanghvi, 1995 Cri>L>J> 1102 (Mad.), Sova Mukherjee Vs. Rajeev Mehra 1997 (2) CCR 313 (Cal.)]

If a power of attorney agent can act instead of an individual payee or a holder in due course, it will equally be competent for a power-of-attorney agent of a company explained U?S 141 of the N.I.Act, meaning any body corporate including a firm or other association of individuals to file a complaint on behalf of the company.  But, it has been observed that a non-filing of authorization while taking cognizance would bar the impugned complaint U/S 142(a) of the N.I.Act [Ruby Leather Exports Vs. K. Venu Reg. Vandana Chemicals etc., 1994 Crimes (1) 820 (Mad.)]

Non-filing of power-of-attorney at the time of filing complaint -
The Manager of the company who has not filed power-of-attorney at the time of filing complaint and not being the payee of the cheques cannot file the complaints [Sudesh Kumar Sharma Vs. K. Selvamani 1994 -1- L.W. (Crl.) 337 (Mad.) = 1995 (1) KLT (SN 14)]

Fresh Power-of-attorney in the place of previous power-of-attorney: The power-of-attorney holder should be permitted to file complaint U/S 138 of the N.I. Act.  There is nothing wrong in substituting a fresh power-of-attorney holder or representative of the company in the place of previous power-of-attorney holder or representative {Benhur T. & I. Pvt. Ltd., Vs. State of Kerala 1995 (2) KLT 985 (Ker.)]

Complaint filed basing on power-of-attorney is valid:

It is well settled that any person can set the criminal law in motion and as such, a complaint regarding an offence, can be filed by any person who knows about the commission of the offence[Dr.Pradeep Mohanbhay Vs. Mr.Minquel Carloes Dias, 2000 (102) (1) Bom LR 908].

Cheque issued by power-of-attorney holder: Principal is liable:

The principal is always bound by the act of  power-of-attorney holder.  A cheques issued by the constituted attorney in partial discharge of debt deemed to be issued by the principal and the principal is liable for prosecution [Smt. Sova Mukherjee Vs. Rajiv Mehra[ 1 (1997 CCR 135 (Ca.l.)]

Without an authorization a complaint cannot be filed:

Without an authorization a Director or any person similarly situated cannot maintain a complaint U/S 142 of the N.I.Act [Swastik Coaters Pvt. Ltd. Vs. Deepak Brothers 1997 Cri.L.J. 1942 (A.P.)]

Subsequent filing of power-of-attorney is valid:

Complaint filed on 24/9/97 authorization to Manager only on 17/11/97, subsequent to filing a complaint.  The authorization held to be valid, subsequent authorization given cannot be thrown out on the ground that there was no authorization at the time of filing complaint [Modern Denim Ltd., Vs. Luca TVS Ltd. 1999 (3) CTC 143 (Mad.)].

A power-of-attorney holder cannot represent for accused:

When the code requires appearance of an accused in a court it is no compliance with it if a power-of-attorney holder appears for him.  T.C.Mathai Vs. Dist. & Sessions judge, Thiruvananthapuram, 1999 Cri. L.J. 2092 (SC)].

Procedure to be followed before initiating prosecution U/S 138 of Negotiable Instruments Act by the Power-of-a-Attorney holder:

Any payee or a holder in due course of a cheques may initiate prosecution if the cheques has been duly presented in time and dishonored for want of funds in the Account of the drawee or on such other grounds stated in the statute, after giving the requisite notice on this behalf.  A complaint U/S 200 Cr.P.C. read with Section 138 Negotiable Instruments Act shall be filed in the competent Magistrate Court or initiating prosecution against the drawer of the Cheque.  But there is an impediment with regard to filing of the complaint by a payee or a holder of the cheques who is unable to personally initiate action due to ill health, old age, frequent absence in the jurisdiction of the Court.

Generally in Magistrate Courts, a private complaint has to be presented by a party-in-person or by his pleader.  Further the proviso in Section 199(1) of Cr.P.C. with regard to prosecution in defamation cases states that a person who is unable to make a complaint by himself may present a complaint, only with the leave of the Court, Recently in Fr.Thomas Maniankerikalam Vs. Thomas J Padiyath 2005(3) CTC 567 the Supreme Court in a complaint initiated in a defamation case by a power-of-attorney holder without the leave of the Court has held that the complaint is not maintainable.

Applying the same analogy, it is clear that unless an app0lication seeking leave to prosecute is filed and orders are obtained, no complaint u/s 138 of the N.I. Act can be filed by a power-of-attorney holder on behalf of his principal.  In K.Ramachandra Rao Vs. State of A.P. 2005(2) CTC (FB) 417 the Full Bench of the Andhra Pradesh Court has held that the power-of-attorney of the payee or the holder in due course of a dishonored cheques can file a complaint for an offence u/s 138 of the N.I Act after obtaining permission from the Court either before or after filing of the complaint.

Rule 111 of the Criminal Rules of Practice as applicable to the State of Tamil Nadu runs as follows:

Rule111:Complaints to be presented in person or by pleader:  All complaints applications etc. shall be presented to the Magistrate by a party in per5son or by his pleader.

The complainant shall present along with the complaint as many copies on plain paper of the complaint as the number of accused persons complained against.

Therefore in order to maintain a complaint U/s 138 of the N.I. Act by a power-of-attorney holder he has to seek the leave of the Court to file a complaint.

For instance if the Managing Director of a Company is at Mumbai and there are various branches throughout India, he cannot sign in all the Complaints filed by the Company in various places.  So the direction given by the Madras High Court in Vijayalakshmi Y @ Rambha Vs. manickam Narayanan 2005(3) CTC 480 requires reconsideration.

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TAGS:PUBLIC INTEREST DISCLOSURES / PERSON WHO EXPOSES WRONG DOING / WHISTLEBLOWER /

[News you can use]

WHISTLEBLOWERS HAVE NO LEGAL PROTECTION IN INDIA!

What is a Whistleblower protection Law?

A whistleblower is defined as someone who exposes wrong doing, fraud, corruption or mismanagement.  In many cases, this could be a person who works for the government who would report misconduct within the government or it could an employee of a private company who reports corrupt practices within the Company.  The law that governments enact to protect such persons who help to expose corruption is called a whistleblower protection law.

Does India have whistleblower protection law?

No, at present India does not have any law to protect whistleblowers, though a Bill to do so is in the pipeline.  The issue of protection for whistleblowers caught the attention of the entire country when National Highways Authority of India  (NHAI) engineer Satyendra Dubey was killed after he wrote a letter to the office of Prime Minister A B Vajpayee detailing corruption in the construction of highways.  In the letter, he had asked specifically that his identity be kept secret.  Instead, the letter was forwarded to various concerned departments without masking Dubeys identity.  Dubeys murder led to a public outcry at the failure to protect him.  As a result, in April 2004, the Supreme Court pressurized the Government intol issuing an office order the Public Interest Disclosures and Protection of Informers Resolution, 2004 designating the CVC as the nodal agency to handle complaints on corruption.  However, over a year later Manjunath Shanmugham, an IIM graduate and a sales manager of the Indian Oil Corporation (IOC), was murdered on November 19, 2005 for exposing the racket of adulteration of petrol and the mafia behind it.

What is the proposed Law?

The Public Interest Disclosure (Protection of Informers) Bill, 2009 was prepared by the Department of Personnel and Training(DoPT).  As per the draft law, any person can make a complaint of corruption of disclosure against any central government employee or central government backed institution to the Central Vigilance Commission (CVC).  The CVC, which would be designated as the competent authority for complaints, would have the powers of a Civil Court,. Including powers to summon any body, order police investigation and provide security to the Whistleblower.  The CVC would not reveal the identity of the complainant but would have the authority to ignore complaints of vexatious or frivolous nature.

Do other countries have similar laws to protect Whistleblowers?

Several countries have already put in place laws to protect Whistleblowers or are in the process of doing so.  However, the level of protection and the way in which the law operates differs from country to country.  For instance, the US was one of the earliest to have the Whistleblowers Protection Act of 1989 while UK has the Public Interest Disclosures Act of 1998 and Norway has a similar law in place since January 2007.

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Useful Links:

http://www.hindu.com/op/2004/02/03/stories/2004020300381500.htm – a must read article.

http://www.whistleblowers.org/http://www.whistleblowing.org/index.html – amazing fight! you need to know

http://www.google.com/hostednews/ap/article/ALeqM5hZfwwUTu5B6IgdPp7G8lkqURujDQD9EQMH6G0 – a thought to reward the whistleblower- its great!

http://www.whistleblowers.org/ -know about upcoming April 21, 2010 Event

source image

TAGS: FOREIGN JUDGMENTS /  judgment is given on merit / Exparte decree of the foreign Court  /  challenged by a stranger / Foreign divorce decree / Grant of Probate by Foreign Court/ Grant of Probate by Foreign Court / custody of child / recovery by a Foreign Court / decree passed in a summary procedure/

EXECUTION OF FOREIGN DECREE/

CONCLUSIVENESS OF FOREIGN JUDGMENTS IN INDIA

[Section 13 Civil Procedure Code]

ACCEPTANCE OF FOREIGN JUDGMENTS:

Acceptance of foreign judgement when not contradictory to principle of law laid down by Indian legislature. If such foreign judgement is contrary to Indian law it will not be acceptable – for detailed information kindly visit refer: AIR 2003 Cal.105 Murari Ganguly and others Vs.Kanailal Garai and others.

CONCLUSIVENESS OF FOREIGN JUDGMENTS:

Exparte decree of the foreign Court cannot be presumed to be on merit by the aid of Section 114(e) of Evidence Act.  Where ex parte judgment passed granting decree for money but nothing indicated whether any documents were looked into or whether merits of the case considered. Such judgements, will not be enforceable in India.

For more details kindly visit:

The Indian Law Search Engine: www.legalcrystal.com- M/s International Woollen Mills Vs.M/s Standard Wool(U.K.) Ltd.  AIR 2001 SC 2134 – 2001(5)SCC 265 – 2001 (3) Rec Civ R 158 – 2002 (1) Mad LW 28 – 2001(2) LR 1765 – 2001(20 Cur CC 148 – 2001 (2) Civil Court C 448 – 2001 (44) All LR 354 – 2001 (3) All Mah LR 554

Where a judgment is given on merit by a foreign Court, taking into consideration, Indian law, covering same ground as covered by the English Law under which the decree was granted, the conclusiveness of the decree, will not b e open to challenge. Mrs.Anoop Beniwal Vs. Dr.Jagbir Singh Beniwal:AIR 1990 Del.305

Where the judgment was not on merit and the judgment was given ex parte only on the basis of pleadings and documents of the plaintiff – Defence filed before Hongkong Court not taken into consideration – Held the judgment being not on merit did not have force of law- For execution of such decree prior permission of Central Govt. was necessary.  AIR 1990 Bom.170 –Algemene Bank Nederland  NV Vs. Satish Dayalal Choksi.

FOREIGN COURT DECREE:

Decree passed by foreign Court cannot be challenged by a stranger to the proceedings unless it is proved that he had any preexisting rights and interest, which affected the decree adversely.  Any subsequent event cannot clothe such a stranger with a right to challenge such a decree.  [Deva Prasad Reddy Vs. Kamini Reddy and another, AIR 2202 Kant. 356 – 2002 (4) Rec. Civ R 758 – 2003 (1) Marri LJ 252 – 2002 (3) ICC 657 – 2002 (2) DMC 482 – 2002 (4) Civ LJ 295]

FOREIGN DIVORCE DECREE:

Foreign divorce decree where husband and wife were Hindus and governed by Hindu Marriage Act. When suit for judicial separation and maintenance was pending in Indian Court, husband obtained decree of divorce from the Court in USA though wife did not submit to the jurisdiction of USA, held, such decree obtained by husband was not enforceable in India [AIR 2003 Del. 175 – Smt.Anubha Vs. Vikas Aggarwal and Others]

GRANT OF PROBATE BY FOREIGN COURT :

Grant of Probate by Foreign Court supplemented by ancillary probate under Section 228 of Indian Succession Act – Decision of the probate Court will be binding without approaching the Civil Court – Such judgment will operate judgment in term and cannot be challenged in the Civil Court [ AIR 1992 Mad. 136 – 1991 (2) LW 487 – Alagammai and others Vs. V. Rakkammal]

Decree of Divorce passed by a Foreign Court-  Grounds mentioned under Section 13 Clauses (a) to (f) not satisfied – Neither was there any proof to bring the case within the ambit of said clauses of Section 13 C.P.C. – Held, the decree passed by the foreign Court will be binding on the parties – The law contained in Sections 13 and 14 C.P.C. which is not merely rules of procedure but rules of substantive law recognizing conclusiveness of a foreign judgment – In such circumstances the foreign decree will be binding on the parties –[AIR 1991 Ori 263 :Dr.Padmini Mishra Vs. Dr. Ramesh Chandra Mishra ] 1990 70 Cut. LT 673.

FOREIGN JUDGMENT – Application for recognition of foreign judgment filed which could be refused if it is found contrary to the public policy of the country where such judgment is sought to be invoked according to law of the said country.  In the field of Private International Law courts refused to apply rule of foreign arbitral award if it is found that the same was contrary to public policy. [AIR 1994 SC 860 Renusagar Power Company Ltd., Vs. General Electric Co.] 1994(1) SCC Supp 644.

CUSTODY OF MINOR CHILD:

Where by judgment of a foreign court, custody of child was given to mother who was foreign national – In the absence of any exceptions under Section 14 and 14, the judgement of foreign court, will be binding on the parties.  In view of the said order of the foreign judgment, the mother will be entitled to custody of the child[AIR 1994 P & H 309 Mrs.Jacquiline Kapoor Vs. Surinder Pal Kapoor] 1994(3) Pun LR 544.

Order of Supreme Court of Ontario (Canada) granting interim custody of the child with the mother – However father removed the child without authorization, in India- Held order of the Ontario Court was fully valid and given effect to – Mere allegation that the mother was living in adultery, will be of no consequence.[AIR P & H 103 Mrs.Kuldeep Sidhu Vs. Chanan Singh and others]

RECOVERY OF DEBTS DUE TO BANK AND FINANCIAL INSTITUTIONS ACT 1993

Where Decree was passed for recovery by a Foreign Court, the Tribunal under the said Act can start execution proceedings related to the said foreign judgment.  In this regard provision of Section 44-A will not prevail over Section 17 of 1993 Act [Bank of India Vs.Harshadrai Odhavji AIR 2002 Bom. 449 : 2002(3) Mah LR 735 : 2002 (3) Bank Cas 182 : 2002 (4) Cur CC 5 : 2002 (5) Bom CR 228.

EXECUTION OF FOREIGN DECREE

Decree of foreign Court – Execution of such decree, will be barred when it is found that decree was not on merit – where the decree was passed ex parte, only on the pleadings of plaintiff without evidence, such decree is not executable.[Gurdas Mann and others Vs. Mohinder Singh Brar. AIR 1993 P & H 92 : 1993(1) Pun LR 518 : 1993 HRR 222]

Where ex parte decree passed in a summary procedure under Rule 14 of Rules of Supreme Court of England – It was found that plaintiff evidence was not considered and defendant had filed no defence – Therefore, such foreign judgment was not executable in India [ Middle East Bank Ltd. Vs. Rajendra Singh Sethia AIR 1991 Cal. 335]

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TAGS: BAN ON LIQUOR / Restriction in respect of location of liquor shops / from hospitals / educational institutions / temples etc.

My below blog post is based on the request from Mr.Sharath M who is one of our regular visitors

Chat Conversation :

Sharath: hi..

me : sorry was away from keyboard

Sharath: wanted to gather some info… see.. there is a law which says tat u cant have a liqour vendor some 500mts from where a school or college is located… now suppose.. there is already a liqour shop and someone wants to open a school.. does the same rule apply? if so.. who has to relocate.. the liqour owner or the school… was wondering if u could get this clarified wit ur mom… me and a friend had this debate while coming back today

me:  hmmm… will forward your query to advocates

i will forward the chat conversation now, she might reply today eve

Sharath: cool.. no prob..

me: good question, guess a blogpost on this wud help

Sharath: definitely… if u can quote specific law article links..it will be great

me: yup

Dear Readers,

I would like to take this opportunity to enlighten many more readers like Mr.Sharath, Hence I have given a few practical and real examples of such situation, quoted excerpts from various judgments of High Court and Supreme Court where such questions are dealt appropriately. Hope it will be of much help for a person to understand the point involved.  I eagerly await your feedback.

WHAT DOES THE CONSTITUTION SAY?

It is relevant here to know Article 47- of Constitution of India-the Duty of the State: [ Based on which rules are framed and interpreted by the legislature and the judiciary to achieve the intention of our constitution]

Article 47.of Constitution of India : Duty of the State to raise the level of nutrition and the standard of living and to improve public health.- The State shall regard the raising of the level of nutrition and the standard of living of its people and the improvement of public health as among its primary duties and, in particular, the State shall endeavor to bring about prohibition of the consumption except for medicinal purposes of intoxicating drinks and of drugs which are injurious to health.

This is before the Hon’ble Judges Rajendra Babu and Somashekara JJ High Court of Karnataka at Bangalore – excerpts from  judgment :

Karnataka Excise Licences (General Conditions) Rules – Rule 5;

5. Restriction in respect of location of shops:-

(1) No licence for sale of liquor shall be granted to a liquor shop or premises selected within a distance of 100 metres from any religious or educational institutions or Hospital or any office of the State Government or Central Government or Local authorities ,or in a residential locality, where the inhabitants are predominantly belonging to Scheduled Castes or Scheduled Tribes or within a distance of 220 Metres from the middle of the State Highways or National Highways.

Excerpts:

It is urged that the restriction of locating a shop or premises where trade in liquor can be carried on within a distance of 100 metres from any religious or educational institution or residential locality inhabited predominantly by Scheduled Castes and Scheduled Tribes, is also an unreasonable restriction; that in many cases, the hospitals or educational institutions or religious institutions or office of the State or Central Government or local authority may come up in an area subsequent to the grant o f licence and thereafter if a person is asked to shift the premises, it will cause grave hardship and therefore the rule is arbitrary; that in some Towns or Cities there are innumerable religious places almost in every nook and corner and it is impossible to locate a liquor shop in compliance with the relevant rule; that in fact in some towns liquor shops are located in violation of the said Rule.

No one can deny that in places where people congregate either for religious purpose or for purpose of education or visit offices, those places must be made safe and near such places there cannot be an activity in relation to sale or purchase of liquor…. In cases where there are liquor shops located already and religious institutions, educational institutions and offices have come up later or whether the Rule cannot be worked out for any City crowded with such institutions, are all matters to be considered by the concerned Authority in individual
cases and due action taken, but these circumstances cannot invalidate the Rule in any manner.[KARHC -2/3/1994] Karnataka Wine Merchants Association vs. State of Karnataka (02.03.1994 – KARHC)

few more interesting excerpts from judgments:

5. The following principles shall be observed in determining the location and the sites for shops/sub-shops:

(a) ‘Shop’ means a retail shop for vend of country liquor, foreign liquor and bhang.

Rule 5 of the U.P. Excise Rules deals with the location of a shop and the principle which has to be observed while issuing license to a shop. From a plain reading of Sub-rule (4) it is clear that no shop or sub-shop for vending of country liquor, foreign liquor and bhang shall be opened in the close proximity to a place of public resort, school, hospital, place of worship or factory, or to the entrance to a bazaar or a residential colony. In case of any violation of the said Rule, if objections are received from affected persons, the same shall receive full consideration. Therefore if any shop is opened in the close proximity to a place of public resort, school, hospital, place of worship or factory, or to the entrance to a bazaar or a residential colony then the residents of that area has a right to protest and the decision has to be taken by the Excise Commissioner,. Unfortunately, the tendency of the State is to ignore the Rules in order to augment the revenue of the State and the State indiscriminately opens shops making the life of the residents of the area miserable. In fact the present public interest petition before the High Court was a result of the failure of the State Machinery to take necessary steps in the matter. If the Excise Commissioner has taken proper care while issuing licenses to the liquor vendors and considered the objections of the residents of the area, perhaps there would not have been any necessity of filing the public interest litigation before the High Court.

7. Be that as it may, it appears that proper care was not taken while opening shops in the close proximity of a place of public resort, school, hospital, place of worship or factory, or to the entrance to a bazaar or a residential colony and that is how Sub-Rule (4) of Rule 5 came up for interpretation before the High Court. The High Court has after taking into consideration the overall view of the matter opined that 100 meters or 300 ft. (approx.) would be a just measure where the shop should not be opened in the close proximity of a place of public resort, school, hospital, place of worship or factory, or to the entrance to a bazaar or a residential colony. We fully agree with the view taken by the High Court and we are also of the view that 100 meters or 300 ft.(approx.) should be the right criteria were the Excise Commissioner shall not Page 1132 give any licence to a shop under the Excise Act. We hope and trust that the Excise Commissioner of the State shall take into consideration Sub-rule (4) of Rule 5 of the U.P. Excise Rules and see that no shops or sub-shops are opened within radius of 100 meters or 300 ft. (approx.) of a place of public resort, school, hospital, place of worship or factory, or to the entrance to a bazaar or a residential colony. The interpretation of the word ‘close proximity’ was vague therefore it was misused by the authorities, But, now the matter has been placed beyond any vagueness. Therefore, with the interpretation of the expression ‘close proximity’ by the High Court, the matter has been put in the right perspective and the doubt has been cleared. Therefore, taking into consideration all the facts and circumstances of the case, we affirm the view taken by the High Court insofar as fixing the distance of 100 meters or 300 ft. (approx.) from a place of public resort, school, hospital, place of worship or factory, or to the entrance to a bazaar or a residential colony where no shop or sub-shop shall be opened under the U.P. Excise Act and Rules framed thereunder.[ State of U.P. and Ors. vs. Manoj Kumar Dwivedi and Ors. (25.02.2008 - SC)Judge : A.K. Mathur and Aftab Alam, JJ.]

Other useful and interesting Links:

http://www.abc.net.au/news/stories/2009/06/16/2599174.htm

http://www.usnews.com/articles/news/national/2008/07/08/easing-up-on-sunday-liquor-

http://encyclopedia.stateuniversity.com/pages/17897/Prohibition.htmlsales.html

*Special thanks to Mr.Sharath M.

Its 10.30 a.m.  ‘OPEN COURT HALL’! Judge arrived, the bench clerk started calling out all the cases listed one by one.

In the first court, cases that were represented got favorable orders in some cases and ideal adjourned dates for the rest.

In the second court, there were some urgent evidence matters to be lead, in which the party had to be present without fail. Even when the case was called for second and third time the party did not turn up for which the Advocate had to face the ‘Jury Fury’.

In the third court,  some compromise had to be reported in Landlord-tenant case.  Petition kept ready , Landlord ready to receive the key from the tenant as per the terms of petition, already the advocate for the tenant had taken 3-4 adjournments,   the tenant who had to be present  did not turn up without any intimation, again the advocate subject to ‘Jury Fury’

In the fourth Court-It was one Motor Accident Claim case where the Advocate had to defend his client (owner of vehicle) who had to pay huge amount of compensation to a House Wife who suffered severe damage to her waist bone in the Accident.  Its not a cake walk to save the client in such a blatant situation, at the same time some justification had to be made. In such cases it is common the advocate will have to face the ‘jury fury’ and beg for some concession.

In the fifth court : The judge was of a very critical bent of mind – The Advocate had to obtain an urgent injunction order to save his client a businessman whose business was at peril without obtaining an order of injunction immediately to run his day to day business.  With great difficulty and prolonged arguments, convincing the Court, the ‘jury-fury’,  the advocate could get an order of injunction to restrain the opposite party.

In the sixth Court, a Labour/Service matter, the candidate was rejected by the selection committee because he had not carried the original certificates to produce before the committee as he had to obtain it from his far off native place.  And by the time he could produce it selections were over and he was rejected on the ground of non production of originals.  In this case the court ‘jury-fury’ did not believe the reasons sworn in the affidavit of the candidate.  It was a Herculean task to convince the Court that the reasons were honest and bonafide.

In the seventh Court, it was about admissibility of the insufficiently stamped document in evidence by the lower court.  The ‘jury-fury’ was in two minds to order the fine amount to be paid to the Collector or to hold the document as inadmissible in evidence. Advocate wanted further time to convince the court, the Advocate was subject to jury-fury and entitled for a day’s time.

In the eighth court, it was about claiming the schedule property exactly but mentioning the wrong boundaries intentionally.  It was a big task to convince the court with all the documentary evidence available and get the second appeal allowed.

In the ninth Court, it was the owner’s appeal in an accident claim case. As Claim was not covered by a valid insurance, the owner wanted some concession in the exorbitant compensation awarded by the lower court. But unfortunately in the lower court he had just filed the vakalath, objection not filed, no evidence lead, nothing! But he produced a copy of the order passed in the connected (with the accident) criminal case acquitting him. The Advocate tried to convince the court about the ignorance and the ill health in not filing the objection and evidence, inspite of it,  ‘jury-fury’ dismissed the appeal.

In the tenth court, it was a writ filed by the poor agriculturist whose land was acquired by the Airport authority who,  not believing that his saguvali chit and that was in possession and cultivating the land since 1960 paid no compensation to him.   As he belonged to a backward community, poor and illiterate, he was made to run pillar to post from Tahsildar to successive A/C D/C/ Courts with no avail. The jury-fury made an order giving direction to the lower authorities to make fresh disposal after considering the document produced by the party and directing the Airport authority to await the order of the authority.

I do agree “ Its All in a Days Work” for the JURY-FURY – Varieties of Advocates, Parties, peculiar Situations/Circumstances that are challenging ,  each minute with the listed cases called for the day.

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The Advocates who read my above article are free to share their court experiences too.  If so, email your court experience to: rekha@legalcrystal.com

There is difference between seizing of a document and impounding a document.  A seizure is made at a particular moment when a person or authority takes into his possession some property which was earlier not in his possession.  Thus seizure is done at a particular moment of time.  However, if after seizing of a property or document the said property or document is retained for some period of time, then such retention amounts to impounding of the property/or document. [Date of Decision 24/01/2008 Suresh Nanda V/s C.B.I. ]2008AIR SCW 898].- to see detailed judgment kindly visit www.legalcrystal.com]

SEX  SELECTION Before conception or thereafter, the Sex Selection  amounts to Violation of Woman’s right to life. It violates Article 39(e) of the Constitution which states the principle of state policy that health and strength of woman is not to be abused.

Sec.2 of Prenatal Diagnostic Techniques Regulation and Prevention of Misuse Act(57 of 1994) which  imposes ban on sex selection do not violate equality clause of the Constitution.  Facts and figures shows decline in number of girls as compared to number of boys! If use of said techniques are not banned it would result in unprecendental imbalance in male to female ratio having disastrous effect on society!

Though sex selection before conception would not amount to female foeticide indirectly same result is achieved.  The whole idea behind sex selection before pre-conception is to go against the nature and secure conception of a child of one’s choice.  It can prevent birth of a female child it is as bad as foeticide.[NOC 244 (Bom) (DB)(D)]

It s Morning, a ver y good morning. Finished all mundane activities and got ready, exactly by 8 a.m. The Advocate is in the Office.  Clients crowd everywhere.  All the files for the day arranged Court Hall number wise [High Court] , and lo wer Cou rt files according to the Building (venue) and the floor(storey) wise and jurisdiction wise.  Attending to clients one by one and advising appropriately.  Some need extra counseling and so me are very smart.  All objections/ I.A.s/ Defense/ and the new filings according to the Court(venue) wise arranged to file the same and all the receipts with C.R. number to collec t the copies applied are kept in the bag in tact.  And all the sewing kits required to comply in the office are kept inside the Court Bag.  All supporting citations Xeroxed and the affidavits to be attested before filing and the process to be paid in the counters, copy the applications to be filed and keep the money ready to obtain D.D’s./ in respect of court fees to be paid or Cost imposed for delay in filing Objection/defence or leading evidence.  Court Dairies in the Bag without fail and a Big list of follow up work , i.e, fill missing hearing dates on the files, look into court files in some cases to know the exact position,  File memo for postings, vakalath, copy applications etc. etc.

Assigning/allotting the work to young colleagues according to their experience and availability and interest to share the burden of ‘court shout’.

After a great ordeal of road traffic the Advocate arrived!

Its 10.30 – In the High Court jumping* from one Court Hall to another according to their listing. Though made a wise choice (list) of Courts to be attended according to the ‘time of reach’  it happens so, it depends on the availability of the other advocates listed earlier to ours or a particular judge arrives late or the advocates seek time or some advocates/judges will have to spend more time for detailed deliberations in some cases or if some judge is on leave, the same is assigned to some other judge and the same will be called after the cases for that particular court is called and heard.  Some cases are listed for 2.30.  Some cases waiting to be attended in the list no.2,3,4,5 so on… sometimes moving fast through the list otherwise at the end adjourned or sometimes ordered randomly!

*jumping with the anxiety of getting an Order of injunction or Order of vacation of injunction/ or ordeal of seeking time to get cogent additional evidence / to get appropriate citations / to make a move for compromise or to get thoroughly prepared or to escape from presenting the case before a particular judge because many a time the decision also depends on the temperament/sensitivity and perception /application of mind of particular judge. Anxiety of getting the case filed dismissed for whatever reason the court finds it appropriate!   Anxiety of protecting the clients interest amidst all loose ends and odds inherent in the case.  Anxiety of keeping all the points intact in all the cases to be represented and being ready for the attacks of the opposite side.  Anxiety of urgent matter which needs final disposal not reaching even at the end!

Amidst all these fight calling junior colleagues over mobile to find out what happened in each of the courts and managing the time to jump from High Court to City Civil Court to Magistrate Court to Mayo Hall to Consumer Forum Cunningham road to Seshardripuram to Cauvery Bhavan and after attending ‘kept by’ evidence matters and arguments, back to High Court.

Its 4.30-5p.m., the Advocate leaves for evening office. Clients overcrowded. Some for new consultation and some for tomorrows hearing.  Attending to the clients and preparing for the next day : all typing work, research work, List of High Court cases etc. etc. Its 9.00p.m. and finally its time to go home and attend to the family needs!

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