DEMAND OF DEMAND IN WRITS

Any student of law, if asks me where to start into reading something interesting on legal issues, my immediate response could be the almost weekly articles, appearing in MADRAS LAW JOURNAL by its Deputy Editor Mr.V.Lakshminarayanan. On receiving my copy every week, the first thing I do is to check the title of his article and try to guess the content, but they never fails to surprise me with anecdotes and quotes from all the corners of the world but relevant to contemporary subjects he chooses. I am looking forward to the day, when MLJ publishes the compilation of these articles, which in the line of the books of Lord Denning will make the life and profession of any Advocate enterprising and entertaining.

My sincere advice to the Juniors, who aspire to be noted and watched by the Judges in the podium, litigants in gallery and the Seniors with envy, to follow such articles and pepper your submissions with what one read and enjoy. After all, we do not live by legal provisions and precedents alone…

Last week, there was an interesting article ‘Demand and Denial Vs Mandamus, A Cat and the Zen Master’. It is about the history behind our Registry and of course Judges insisting for a ‘demand to the Authorities’ before entertaining a Writ of Mandamus. This article will be soothing balm to many of us, suffering at the hands of the Registry, whose demand of demand, sometime is bordering absurdity. What else word is more appropriate, when my Client, whose name was left out to be sponsored by Employment Exchange to the written exam/ personal interview slated to be held in another two days was asked by the Registry to send a representation first and then to move the Court for a writ to direct the Authorities to sponsor his name.

Well, Section 80 of Civil Procedure Code expects a Plaintiff to notice the Government before filing a suit. I hardly remember any instance, when the Government has taken pain to reply. Never there is a notice, which has propelled the Government into take action to discharge the demand. I always wonder why then this unnecessary procedure and whether there was any statistics to support the continuance of this requirement in the statute book.

The Supreme Court in Salem Advocates Bar Association Vs Union of India reported in AIR 2005 SC 3353 (02/08/05) took note of this provision and found that ‘the underlying object is to curtail the litigation’ and batted for its continuance but with a direction to the Government to nominate an Officer in all departments, responsible for sending replies to the pre-litigation statutory notices. What is important is that the further direction that ‘if the Court finds that either the notice has not been replied or reply is evasive and vague and has been sent without proper application of mind, the Court shall ordinarily award heavy cost against the Government and direct it to take appropriate action against the concerned Officer including recovery of costs from him’

Whether this direction is considered in any of the civil suits against the Government, decided in the past 10 years is not in knowledge but why the it be tested in any of the Writ Petitions in which the High Court requires a ‘pre-writ demand’ as a condition precedent to entertain the Petition...

Madurai
02/0314

WHAT IF, ALL ORDERS ARE MADE REVISABLE?

Section 104 and Order XLIII of the CPC permit filing of appeals against the certain orders. The rest of the orders can be challenged by way of revision under Section 115. However to maintain a revision, there must be an ‘error of jurisdiction’ or ‘material irregularity’ in the passing of such order. The amendment in 2002 sought to restrict the power of revision by adding a proviso but the object is defeated by Advocates by resorting to superintending power of High Court under Article 227 of the Constitution of India. Hence the status quo continues that certain orders are appealable and the rest revisable.

The High Court Advocates, Registry and even the Court are spending considerable time whenever a doubt arises as to whether an order is appealable or revisable under Section 115 or revisable under Art.227.

I have not come across a situation when any Advocate or Court is going into the nuances of ‘error of jurisdiction’ in filing or entertaining a revision. Neither have I found any difference in the hearing of a CMA or CRP.

In the said circumstance, what will happen if Section 104 and Order XLIII are deleted from CPC and Section 115 is amended to the effect that all Orders of the Subordinate Courts are revisable without any qualification or proviso?

This may save considerable time of the Subordinate Courts by dispensing with their power of Appeal against Interlocutory Orders. The recurring confusion in High Court can be avoided. Even appeals can be dismissed without notice to the Respondent under Order 41 Rule 11 (1). Hence the right of appeal is subject to admission as in the case of revision.

Madurai
28/12/13