Lawyer not liable for 'professional misconduct' unless 'gross negligence': Supreme Court

Holding that 'human errors' are possible even by lawyers, the Supreme Court in a recent decision has declared that a lawyer cannot be hauled up for professional misconduct only on account of negligence unless it is shown that the error was a 'gross negligence' in his actions. While acknowleding that "nobility, sanctity and ethicality of the profession has to be kept uppermost in the mind of an Advocate", the Supreme Court declared the legal position on the yard-stick to be followed for adjudging the actions of a lawyer and whether they were beyond the permissible boundaries. 

In its decision entitled T.A. Kathiru Kunju v. Jacob Mathai - Civil Appeal No. 3860 of 2007, decision dated 16.02.2017 the Supreme Court was dealing with the correctness of the action taken by the Bar Council (the regulatory body of lawyers in India) in holding a lawyer"guilty of gross negligence in discharge of his professional service to the client and accordingly imposed the punishment of reprimand" and a fine. The facts leading to this punishment were that the lawyer did not proceed with the suggested course of action required by the client in prosecuting a debtor for default. Apparently the lawyer also lost a crucial piece of evidence given to his custody by his client. The lawyer challenged the guilty verdict of the Bar Council before the Supreme Court which accepted the challenge. 

The Supreme Court gave the following reasons in support of its ruling;

"10. On a plain reading of the aforesaid provision, it is clear as crystal what punishment is to be imposed in case of misconduct. In the case at hand, as we find, that a conclusion has been arrived at by the Disciplinary Authority that it is a case of gross negligence at the hands of the appellant. As urged by Mr. Parikh, it is only required to be seen whether it is a mere negligence or gross negligence.  

11. The Constitution Bench, in the matter of Mr. 'P' an Advocate, (supra) has ruled that mere negligence or error of judgment on the part of an advocate would not amount to professional misconduct. It has been further held therein that error of judgment cannot be completely eliminated in all human affairs and mere negligence may not necessarily show that the advocate who is guilty of it can be charged with misconduct. The Constitution Bench, as is demonstrable, has drawn a distinction between 'negligence' and the 'gross negligence'. We think it appropriate to reproduce the said passage. It is as follows:- 

“But different considerations arise where the negligence of the Advocate is gross. It may be that before condemning an Advocate for misconduct, courts are inclined to examine the question as to whether such gross negligence involves moral turpitude or delinquency. In dealing with this aspect of the matter, however, it is of utmost importance to remember that the expression "moral turpitude or delinquency" is not to receive a narrow construction. Wherever conduct proved against an Advocate is contrary to honesty, or opposed to good morals, or is unethical, it may be safely held that it involves moral turpitude. A willful and callous disregard for the interests of the client may, in a proper case, be characterised as conduct unbefitting an Advocate. In dealing with matters of professional propriety, we cannot ignore the fact that the profession of law is an honourable profession and it occupies a place of pride in the liberal professions of the country. Any conduct which makes a person unworthy to belong to the noble fraternity of lawyers or makes an Advocate unfit to be entrusted with the responsible task of looking after the interests of the litigant, must be regarded as conduct involving moral turpitude. The Advocates-on-record like the other members of the Bar Advocates are Officers of the Court and the purity of the administration of justice depends as much on the integrity of the Judges as on the honesty of the Bar. That is why in dealing with the question as to whether an Advocate has rendered himself unfit to belong to the brotherhood at the Bar, the expression "moral turpitude or delinquency" is not to be construed in an unduly narrow and restricted sense.”  

12. On a careful reading of the aforesaid passage, it is quite clear that concept of “gross negligence” cannot be construed in a narrow or a restricted sense. It is because honesty of an Advocate is extremely significant. The conduct of an Advocate has to be worthy so that he can be called as a member of the noble fraternity of lawyers. It is his obligation to look after the interest of the litigant when is entrusted with the responsible task in trust. An Advocate has to bear in mind that the profession of law is a noble one. In this regard, we may fruitfully refer to what has been stated in Sanjiv Datta Dy. Secy. Ministry of Information & Broadcasting, In re.:- 

“The legal profession is a solemn and serious occupation. It is a noble calling and all those who belong to it are its honourable members. Although the entry to the profession can be had by acquiring merely the qualification of technical competence, the honour as a professional has to be maintained by its members by their exemplary conduct both in and outside the court. The legal profession is different from other professions in that what the lawyers do, affects not only an individual but the administration of justice which is the foundation of the civilised society. Both as a leading member of the intelligentsia of the society and as a responsible citizen, the lawyer has to conduct himself as a model for others both in his professional and in his private and public life. The society has a right to expect of him such ideal behaviour. It must not be forgotten that the legal profession has always been held in high esteem and its members have played an enviable role in public life. The regard for the legal and judicial systems in this country is in no small measure due to the tireless role played by the stalwarts in the profession to strengthen them. They took their profession seriously and practised it with dignity, deference and devotion. If the profession is to survive, the judicial system has to be vitalised. No service will be too small in making the system efficient, effective and credible.” 

13. Slightly recently in Dhanraj Singh Choudhary v. National Vishwakarma, it has been observed:- 

“The legal profession is a noble profession. It is not a business or a trade. A person practising law has to practise in the spirit of honesty and not in the spirit of mischief-making or money-getting. An advocate’s attitude towards and dealings with his client have to be scrupulously honest and fair.” 

14. There can be no doubt that nobility, sanctity and ethicality of the profession has to be kept uppermost in the mind of an Advocate. Keeping that primary principle in view, his conduct has to be weighed. There the approach of appreciating the evidence brought on record and the yardstick to be applied, become quite relevant. A three-Judge Bench in P.D Khandekar (supra) while dealing with the scope of an appeal preferred under Section 38 of the Act, ruled that in an appeal under Section 38, this Court in a general rule, cannot interfere with the concurrent finding of fact by the Disciplinary Committee of the Bar Council of India and the State Bar Council unless the finding is based on no evidence or it proceeds on mere conjectures and surmises. The Court has further laid down that finding in such disciplinary proceedings must be sustained by a higher degree of proof than that required in civil suits, yet falling short of the proof required to sustain a conviction in a criminal prosecution; and there should be convincing preponderance of evidence. We must immediately note with profit that the said principle is absolutely significant. The Court has stressed upon the rule to be applied for acceptance or treating the finding defensible by the Disciplinary Committee of Bar Council. In this regard it is fruitful to reproduce the following passage from the said authority:- 

“There is a world of difference between the giving of improper legal advice and the giving of wrong legal advice. Mere negligence unaccompanied by any moral delinquency on the part of a legal practitioner in the exercise of his profession does not amount to professional misconduct. In re A Vakil, Coutts Trotter, C.J. followed the decision in re G. Mayor Cooke and said that: 

"Negligence by itself is not professional misconduct; into that offence there must enter the element of moral delinquency. Of that there is no suggestion here, and we are therefore able to say that there is no case to investigate, and that no reflection adverse to his professional honour rests upon Mr. M.', The decision was followed by the Calcutta High Court in re An Advocate, and by the Allahabad High Court in the matter of An Advocate of Agra and by this court in the matter of P. An Advocate. 

The decision was followed by the Calcutta High Court In re An Advocate [AIR 1955 CAL 484], and by the Allahabad High Court In the matter of An Advocate of Agra [AIR 1940 All 289] and by this Court In the matter of P. An Advocate [AIR 1934 Rang 33]” 

... 

17. On a studied scrutiny of the evidence in this context, the factual score, the act of the present appellant cannot be treated to be in the realm of gross negligence. It would be only one of negligence. The tenor of the impugned order, as we notice, puts the blame on the appellant on the foundation that he had not received the acknowledgment. He has offered an explanation that he had given the cheque to the police. There has been no delineation in that regard. That apart, there is no clear cut analysis on deliberation on gross negligence by the advocate. The Disciplinary Committee found the appellant guilty of gross-negligence as he had failed to get the acknowledgment from the complainant-respondent. The examples given by the Constitution Bench are of different nature. In the obtaining factual matrix, therefore, we are unable to accept the conclusion arrived at by the Disciplinary Authority of the Bar Council of India that the negligence is gross. Hence we are impelled not to accept the submission advanced by learned counsel for the respondent. 

18. Thus analysed, we are disposed to allow the appeal and accordingly, we so direct and the order passed by the Disciplinary Committee of the Bar Council of India is set aside. ..." 

Literal rule of statutory interpretation: The law revisited

In a recent decision [B. Premanand v. Mohan Koikal] the Supreme Court has explained the literal rule of interpretation of statutes. Governing the interpretation of statutes, the literal rule is the often invoked rule pressed into action to ascertain the legislative intention behind the framing of the enactment. The rule governs and regulates the meaning of the law in as much as the rule provides that the meaning has to be ascertained from the text of the law itself.

The Court explained the concept in the following terms;

In our opinion, Rule 27(c) of the Rules is plain and clear. Hence, the literal rule of interpretation will apply to it. No doubt, equity may be in favour of the respondents because they were selected earlier, but as observed earlier, if there is a conflict between equity and the law, it is the law which must prevail. The law, which is contained in Rule 27(c), is clearly in favour of the appellants.

Hence, we cannot accept the submission of the learned senior counsel for the private respondents. The language of Rule 27(c) of the Rules is clear and hence we have to follow that language. 

In M/s. Hiralal Ratanlal vs. STO, AIR 1973 SC 1034, this Court observed:

"In construing a statutory provision the first and foremost rule of construction is the literaly construction. All that the Court has to see at the very outset is what does the provision say. If the provision is unambiguous and if from the provision the legislative intent is clear, the Court need not call into aid the other rules of construction of statutes. The other rules of construction are called into aid only when the legislative intent is not clear." 

It may be mentioned in this connection that the first and foremost principle of interpretation of a statute in every system of interpretation is the literal rule of interpretation. The other rules of interpretation e.g. the mischief rule, purposive interpretation etc. can only be resorted to when the plain words of a statute are ambiguous or lead to no intelligible results or if read literally would nullify the very object of the statute. Where the words of a statute are absolutely clear and unambiguous, recourse cannot be had to the principles of interpretation other than the literal rule, vide Swedish Match AB vs. Securities and Exchange Board, India, AIR 2004 SC 4219. As held in Prakash Nath Khanna vs. C.I.T. 2004 (9) SCC 686, the language employed in a statute is the determinative factor of the legislative intent. The legislature is presumed to have made no mistake. The presumption is that it intended to say what it has said. Assuming there is a defect or an omission in the words used by the legislature, the Court cannot correct or make up the deficiency, vide Delhi Financial Corporation vs. Rajiv Anand 2004 (11) SCC 625. Where the legislative intent is clear from the language, the Court should give effect to it, vide Government of Andhra Pradesh vs. Road Rollers Owners Welfare Association 2004(6) SCC 210, and the Court should not seek to amend the law in the garb of interpretation.

As stated by Justice Frankfurter of the U.S. Supreme Court (see 'Of Law & Men : Papers and Addresses of Felix Frankfurter') :

"Even within their area of choice the courts are not at large. They are confined by the nature and scope of the judicial function in its particular exercise in the field of interpretation. They are under the constraints imposed by the judicial function in our democratic society. As a matter of verbal recognition certainly, no one will gainsay that the function in construing a statute is to ascertain the meaning of words used by the legislature. To go beyond it is to usurp a power which our democracy has lodged in its elected legislature. The great judges have constantly admonished their brethren of the need for discipline in observing the limitations. A judge must not rewrite a statute, neither to enlarge nor to contract it. Whatever temptations the statesmanship of policy-making might wisely suggest, construction must eschew interpolation and evisceration. He must not read in by way of creation. He must not read out except to avoid patent nonsense or internal contradiction." 

As observed by Lord Granworth in Grundy v. Pinniger, (1852) 1 LJ Ch 405:

" 'To adhere as closely as possible to the literal meaning of the words used, is a cardinal rule from which if we depart we launch into a sea of difficulties which it is not easy to fathom."

In other words, once we depart from the literal rule, then any number of interpretations can be put to a statutory provision, each Judge having a free play to put his own interpretation as he likes. This would be destructive of judicial discipline, and also the basic principle in a democracy that it is not for the Judge to legislate as that is the task of the elected representatives of the people. Even if the literal interpretation results in hardship or inconvenience, it has to be followed (see G.P. Singh's Principles of Statutory Interpretations, 9th Edn. pp 45-49). Hence departure from the literal rule should only be done in very rare cases, and ordinarily there should be judicial restraint in this connection. 

As the Privy Council observed (per Viscount Simonds, L.C.):

"Again and again, this Board has insisted that in construing enacted words we are not concerned with the policy involved or with the results, injurious or otherwise, which may follow from giving effect to the language used."(see Emperor v. Benoarilal Sarma, AIR 1945 PC 48, pg. 53).

As observed by this Court in CIT vs. Keshab Chandra Mandal, AIR 1950 SC 265:

"Hardship or inconvenience cannot alter the meaning of the language employed by the Legislature if such meaning is clear on the face of the statute".

Where the words are unequivocal, there is no scope for importing any rule of interpretation vide Pandian Chemicals Ltd. vs. C.I.T. 2003(5) SCC 590. It is only where the provisions of a statute are ambiguous that the Court can depart from a literal or strict construction vide Narsiruddin vs. Sita Ram Agarwal AIR 2003 SC 1543. Where the words of a statute are plain and unambiguous effect must be given to them vide Bhaiji vs. Sub-Divisional Officer, Thandla 2003(1) SCC 692.  No doubt in some exceptional cases departure can be made from the literal rule of the interpretation, e.g. by adopting a purposive construction, Heydon's mischief rule, etc. but that should only be done in very exceptional cases. Ordinarily, it is not proper for the Court to depart from the literal rule as that would really be amending the law in the garb of interpretation, which is not permissible vide J.P. Bansal vs. State of Rajasthan & Anr. AIR 2003 SC 1405, State of Jharkhand & Anr. vs. Govind Singh JT 2004(10) SC 349 etc.. It is for the legislature to amend the law and not the Court vide State of Jharkhand & Anr. vs. Govind Singh JT 2004(10) SC 349.

In Jinia Keotin vs. K.S. Manjhi, 2003 (1) SCC 730, this Court observed :

" The Court cannot legislate.....under the garb of interpretation.......".

Hence, there should be judicial restraint in this connection, and the temptation to do judicial legislation should be eschewed by the Courts. In fact, judicial legislation is an oxymoron.

In Shiv Shakti Co-operative Housing Society vs. Swaraj Developers AIR 2003 SC 2434, this Court observed: 

"It is a well settled principle in law that the Court cannot read anything into a statutory provision which is plain and unambiguous. A statute is an edict of the legislature. The language employed in a statute is the determinative factor of legislative intent."

Where the language is clear, the intention of the legislature has to be gathered from the language used vide Grasim Industries Limited vs. Collector of Customs 2002 (4) SCC 297 and Union of India vs. Hamsoli Devi 2002 (7) SCC 273.

In Union of India and another vs. Hansoli Devi and others 2002(7)SCC (vide para 9), this Court observed : 

"It is a cardinal principle of construction of a statute that when the language of the statute is plain and unambiguous, then the court must give effect to the words used in the statute and it would not be open to the courts to adopt a hypothetical construction on the grounds that such construction is more consistent with the alleged object and policy of the Act." 

The function of the Court is only to expound the law and not to legislate vide District Mining Officer vs. Tata Iron and Steel Company 2002 (7) SCC 358. If we accept the interpretation canvassed by the learned counsel for the private respondents, we will really be legislating because in the guise of interpretation we will be really amending Rule 27(c) of the Rules.

In Gurudevdatta VKSSS Maryadit vs. State of Maharashtra AIR 2001 SC 1980, this Court observed : 

"It is a cardinal principle of interpretation of statute that the words of a statute must be understood in their natural, ordinary or popular sense and construed according to their grammatical meaning, unless such construction leads to some absurdity or unless there is something in the context or in the object of the statute to suggest to the contrary. The golden rule is that the words of a statute must prima facie be given their ordinary meaning. It is yet another rule of construction that when the words of the statute are clear, plain and unambiguous, then the Courts are bound to give effect to that meaning, irrespective of the consequences. It is said that the words themselves best declare the intention of the law-giver. The Courts are adhered to the principle that efforts should be made to give meaning to each and every word used by the legislature and it is not a sound principle of construction to brush aside words in a statute as being inapposite surpluses, if they can have a proper application in circumstances conceivable within the contemplation of the statute".

The same view has been taken by this Court in S. Mehta vs. State of Maharashtra 2001 (8) SCC 257 (vide para 34) and Patangrao Kaddam vs. Prithviraj Sajirao Yadav Deshmugh AIR 2001 SC 1121.

The literal rule of interpretation really means that there should be no interpretation. In other words, we should read the statute as it is, without distorting or twisting its language.

We may mention here that the literal rule of interpretation is not only followed by Judges and lawyers, but it is also followed by the lay man in his ordinary life. To give an illustration, if a person says "this is a pencil", then he means that it is a pencil; and it is not that when he says that the object is a pencil, he means that it is a horse, donkey or an elephant. In other words, the literal rule of interpretation simply means that we mean what we say and we say what we mean. If we do not follow the literal rule of interpretation, social life will become impossible, and we will not understand each other. If we say that a certain object is a book, then we mean it is a book. If we say it is a book, but we mean it is a horse, table or an elephant, then we will not be able to communicate with each other. Life will become impossible. Hence, the meaning of the literal rule of interpretation is simply that we mean what we say and we say what we mean. In this connection, we may also refer to the Mimansa Rules of Interpretation which were our traditional principles of interpretation used for thousand of years by our jurists. It is deeply regrettable that in our law courts today these principles are not cited. Today, our so called educated people are largely ignorant about the great intellectual achievements of our ancestors, and the intellectual treasury which they have bequeathed to us.

The Mimansa Rules of Interpretation are one of these great achievements, but regrettably they are hardly ever used in our law courts. It may be mentioned that it is not stated anywhere in the Constitution of India that only Maxwell's Principles of Interpretation can be utilised. We can utilise any system of interpretation which can help to resolve a difficulty. Principles of interpretation are not principles of law but are only a methodology for explaining the meaning of words used in a text. There is no reason why we should not use Mimansa Principles of Interpretation in appropriate occasions. 

In Mimansa, the literal rule of interpretation is known as the 'Shruti' or Abhida' Principle. This is illustrated by the Garhapatya nyaya (In Mimansa Maxims are known as nyayas). There is the vedic verse: “Aindrya garhapatyam upatishthate”, which means “By the Mantra addressed to Indra establish the household fire.” This verse can possibly have several meanings viz. (1) worship Indra (2) worship Garhapatya (the household fire) (3) worship both, or (4) worship either.

However, since the word 'Garhapatyam' is in the objective case, the verse has only one meaning, that is, 'worship Garhapatya'. The word 'Aindrya' means 'by Indra', and hence the verse means that by verses dedicated to Indra one should worship Garhapatya. The word 'Aindrya' in this verse is a Linga, (in Mimansa Linga means the suggestive power of a word), while the words 'Garhapatyam Upatishthate' are the Shruti. According to the Mimansa principles, the Shruti (literal meaning) will prevail over the Linga (suggestive power).

It is not necessary to go into details, but reference can be made to the Book 'Mimansa Rules of Interpretation' by K.L.Sarkar which is a collection of Tagore Law Lectures delivered by him in 1909. According to the Mimansa Principles, the Sruti Principle or literal rule of interpretation will prevail over all other principles, e.g., Linga, Vakya, Prakarana, Sthana, Samakhya etc.

Have a look at the decision.

Evidence of child witness: The law revisited

Witnesses form the backbone of a legal system. They are the assurances of the trust of the citizens in the justice dispensation system. However the quality of witness is also essential to be maintained, on the parallel lines, or else the correctness of decisions cannot be warranted. In this context we bring to you the law relating to child witnesses. In a recent decision [State of M.P. v. Ramesh] the Supreme Court took note of its earlier decisions to explain the law relating to evidentiary value of the statements of child witnesses.

The Court inter alia explained the law in the following terms;

6. In Rameshwar S/o Kalyan Singh v. The State of Rajasthan, AIR 1952 SC 54, this Court examined the provisions of Section 5 of Indian Oaths Act, 1873 and Section 118 of Evidence Act, 1872 and held that every witness is competent to depose unless the court considers that he is prevented from understanding the question put to him, or from giving rational answers by reason of tender age, extreme old age, disease whether of body or mind or any other cause of the same kind. There is always competency in fact unless the Court considers otherwise. The Court further held as under:

“…..It is desirable that Judges and magistrates should always record their opinion that the child understands the duty of speaking the truth and state why they think that, otherwise the credibility of the witness may be seriously affected, so much so, that in some cases it may be necessary to reject the evidence altogether. But whether the Magistrate or Judge really was of that opinion can, I think, be gathered from the circumstances when there is no formal certificate….”

7. In Mangoo & Anr. v. State of Madhya Pradesh, AIR 1995 SC 959, this Court while dealing with the evidence of a child witness observed that there was always scope to tutor the child, however, it cannot alone be a ground to come to the conclusion that the child witness must have been tutored. The Court must determine as to whether the child has been tutored or not. It can be ascertained by examining the evidence and from the contents thereof as to whether there are any traces of tutoring. 

8. In Panchhi & Ors. v. State of U.P., AIR 1998 SC 2726, this Court while placing reliance upon a large number of its earlier judgments observed that the testimony of a child witness must find adequate corroboration before it is relied on. However, it is more a rule of practical wisdom than of law. It cannot be held that “the evidence of a child witness would always stand irretrievably stigmatized. It is not the law that if a witness is a child, his evidence shall be rejected, even if it is found reliable. The law is that evidence of a child witness must be evaluated more carefully and with greater circumspection because a child is susceptible to be swayed by what others tell him and thus a child witness is an easy prey to tutoring.” 

9. In Nivrutti Pandurang Kokate & Ors. v. State of Maharashtra, AIR 2008 SC 1460, this Court dealing with the child witness has observed as under:

“The decision on the question whether the child witness has sufficient intelligence primarily rests with the trial Judge who notices his manners, his apparent possession or lack of intelligence, and the said Judge may resort to any examination which will tend to disclose his capacity and intelligence as well as his understanding of the obligation of an oath. The decision of the trial court may, however, be disturbed by the higher court if from what is preserved in the records, it is clear that his conclusion was erroneous. This precaution is necessary because child witnesses are amenable to tutoring and often live in a world of make-believe. Though it is an established principle that child witnesses are dangerous witnesses as they are pliable and liable to be influenced easily, shaped and moulded, but it is also an accepted norm that if after careful scrutiny of their evidence the court comes to the conclusion that there is an impress of truth in it, there is no obstacle in the way of accepting the evidence of a  child witness.”

10. The evidence of a child must reveal that he was able to discern between right and wrong and the court may find out from the crossexamination whether the defence lawyer could bring anything to indicate that the child could not differentiate between right and wrong. The court may ascertain his suitability as a witness by putting questions to him and even if no such questions had been put, it may be gathered from his evidence as to whether he fully understood the implications of what he was saying and whether he stood discredited in facing a stiff cross-examination. A child witness must be able to understand the sanctity of giving evidence on a oath and the import of the questions that were being put to him. (Vide: Himmat Sukhadeo Wahurwagh & Ors. v. State of Maharashtra, AIR 2009 SC 2292).

11. In State of U.P. v. Krishna Master & Ors., AIR 2010 SC 3071, this Court held that there is no principle of law that it is inconceivable that a child of tender age would not be able to recapitulate the facts in his memory. A child is always receptive to abnormal events which take place in his life and would never forget those events for the rest of his life. The child may be able to recapitulate carefully and exactly when asked about the same in the future. In case the child explains the relevant events of the crime without improvements or embellishments, and the same inspire confidence of the Court, his deposition does not require any corroboration whatsoever. The child at a tender age is incapable of having any malice or ill will against any person. Therefore, there must be something on record to satisfy the Court that something had gone wrong between the date of incident and recording evidence of the child witness due to which the witness wanted to implicate the accused falsely in a case of a serious nature.

12. Part of the statement of a child witness, even if tutored, can be  relied upon, if the tutored part can be separated from untutored part, in case such remaining untutored part inspires confidence. In such an eventuality the untutored part can be believed or at least taken into consideration for the purpose of corroboration as in the case of a hostile witness. (Vide: Gagan Kanojia & Anr. v. State of Punjab, (2006) 13 SCC 516).

13. In view of the above, the law on the issue can be summarized to the effect that the deposition of a child witness may require corroboration, but in case his deposition inspires the confidence of the court and there is no embellishment or improvement therein, the court may rely upon his evidence. The evidence of a child witness must be evaluated more carefully with greater circumspection because he is susceptible to tutoring. Only in case there is evidence on record to show that a child has been tutored, the Court can reject his statement partly or fully. However, an inference as to whether child has been tutored or not, can be drawn from the contents of his deposition.

Have a look at the decision.

Tests for determining conversion of religion: Supreme Court delineates

The Supreme Court in a recently reported decision [M. Chandra v. M. Thangamuthu, AIR 2011 SC 146] called upon to decide the validity of the claim that the Appellant had converted as Hindu, delineated the test for conversion of religion. The Court also reflected, taking cue from its earlier decision, upon the status of Hinduism as a religion and the role of conversion. The Court was examining the correctness of the decision of High Court of Madras which had allowed an election petition holding that the Appellant had not successfully converted to Hinduism and thus could not claim to be elected on the seat which was reserved for Scheduled Castes.

The Court inter alia observed as under;

21) It is not in dispute that Hindu Pallan Community is notified under the Presidential Order as Scheduled Caste. The appellant claims that though her father was a Christian, her mother continued to profess the customs of Hindu Pallan Community. It is her further case that her father deserted her mother when she was still a child and her mother brought her up as Hindu and her community accepted her and her mother as Hindu. Now the question is whether the appellant is professing and practicing Hinduism. The appellant claims that though her father is a Christian, her mother continues to profess Hindu religion and it is her further case that she was born and brought up as a Hindu by her mother and she continues to profess Hindu faith and in order to reaffirm her faith in Hinduism, she has undergone rituals in Arya Samaj Madurai, and in proof of it she has produced the duplicate copy of the certificate. At the time of hearing of this appeal a lot of debate was generated by both the sides pwith regard to certificate of conversion issued by the Arya Samaj. The appellant in support her view in her evidence has stated the various rituals she followed in the Arya Samaj to reaffirm her faith in Hindu faith, the reason why she is not in a position to produce the original certificate issued and the necessity for production of duplicate certificate. Since this forms the fulcrum of the case, the learned counsel for the respondents pointed out so called various discrepancies in the certificate and to say the least, the length, breadth, borders, dates, signature in the certificate. We will refer to these, when we discuss the veracity of the certificate produced by the appellant to reaffirm her faith in Hindu religion which she claims has professed right from her childhood. Before we do that, it is desirable to notice certain observation made by this court in the case of Perumal Nadar v. Ponnuswami, [1970 (1) SCC 605. This court observed : 

“6. A person may be a Hindu by birth or by conversion. A mere theoretical allegiance to the Hindu faith by a person born in another faith does not convert him into a Hindu, nor is a bare declaration that he is a Hindu sufficient to convert him to Hinduism. But a bona fide intention to be converted to the Hindu faith, accompanied by conduct unequivocally expressing that intention may be sufficient evidence of conversion. No formal ceremony of purification or expiation is necessary to effectuate conversion. 

8. In Goona Durgaprasada Rao v. Goona Sudarasanaswami Mockett, J., observed that no gesture or declaration may change a man’s religion, but when on the facts it appears that a man did change his religion and was accepted by his coreligionists as having changed his religion and lived and died in that religion, absence of some formality cannot negative what is an actual fact. Krishnaswami Ayyangar, J., observed that a Hindu who had converted himself to the Christian faith returned to Hinduism and contracted a second marriage during the life-time of his first wife and remained and died a Hindu having been accepted as such by the community and co-religionists without demur. Absence of evidence of rituals relating to conversion cannot justify the Court in treating him as having remained a Christian.”

22) In the case of Ganpat v. Returning Officer, (1975) 1 SCC 589, it was observed:

“11. In this connection it is necessary to remember that Hinduism is a very broad based religion. In fact some people take the view that it is not a religion at all on the ground that there is no one founder and no one sacred book for the Hindus. This, of course, is a very narrow view merely based on the comparison between Hinduism on the one side and Islam and Christianity on the other. But one knows that Hinduism through the ages has absorbed or accommodated many different practices, religious as well as secular, and also different faiths. One of the witnesses has described that he considered Buddha as the eleventh Avtar…… Hinduism  is so tolerant and Hindu religious practices so varied and eclectic that one would find it difficult to say whether one is practising or professing Hindu religion or not.”

23) In Kothapalli Narasayya vs. Jammana Jogi AIR 1976 SC 937, it is stated:-

“These cases show that the consistent view taken in this country from the time Administrator-General of Madras v. Anandachari was decided, that is, since 1886, has been that on reconversion to Hinduism, a person can once again become a member of the caste in which he was born and to which he belonged before conversion to another religion, if the members of the caste accept him as a member. There is no reason either on principle or on authority which should compel us to disregard this view which has prevailed for almost a century and lay down a different rule on the subject. If a person who has embraced another religion can be reconverted to Hinduism, there is no rational principle why he should not be able to come back to his caste, if the other members of the caste are prepared to readmit him as a member. It stands to reason that he should be able to come back to the fold to which he once belonged, provided of course the community is willing to take him within the fold.... A Mahar or a Koli or a Mala would not be recognised as anything but a Mahar or a Koli or a Mala after reconversion to Hinduism and he would suffer from the same social and economic disabilities from which he suffered before he was converted to another religion. It is, therefore, obvious that the object and purpose of the Constitution (Scheduled Castes) Order, 1950 would be advanced rather than retarded by taking the view that on reconversion to Hinduism, a person can once again become a member of the Scheduled Caste to which he belonged prior to his conversion. We accordingly agree with the view taken by the High Court that on reconversion to Hinduism, the first respondent could once again revert to his original Adi Dravida caste if he was accepted as such by the other members of the caste.”

24) In S. Anbalagan vs. B. Devarajan and others (1984) 2 SCC 112, it is observed:-

“These precedents, particularly those from South India, clearly establish that no particular ceremony is prescribed for reconversion to Hinduism of a person who had earlier embraced another religion. Unless the practice of the caste makes it necessary, no expiatory rites need be performed and, ordinarily, he regains his caste unless the community does not accept him. In fact, it may not be accurate to say that he regains his caste; it may be more accurate to say that he never lost his caste in the first instance when he embraced another religion. The practice of caste however irrational it may appear to our reason and however repugnant it may appear to our moral and social sense, is so deep-rooted in the Indian people that its mark does not seem to disappear on conversion to a different religion. If it disappears, it disappears only to reappear on reconversion. The mark of caste does not seem to really disappear even after some generations after conversion.” 

25) In Kailash Sonkar vs. Smt. Maya Devi [(1984) 2 SCC 91], this court speaking through FAZAL ALI, J. made the following observation.

“In our opinion, there is one aspect which does not appear to have been dealt with by any of the cases discussed by us. Suppose, A, a member of the scheduled caste, is converted to Christianity and marries a Christian girl and a daughter is born to him who, according to the tenets of Christian religion, is baptised and educated. After she has attained the age of discretion she decides of her own volition to re-embrace Hinduism, should in such a case revival of the caste depend on the views of the members of the community of the caste concerned or would it automatically revive on her reconversion if the same is genuine and followed by the necessary rites and ceremonies? In other words, is it not open for B (the daughter) to say that because she was born of Christian parents their religion cannot be thrust on her when after attaining the age of discretion and gaining some knowledge of the world affairs, she decides to revert to her old religion. It was not her fault that she was born of Christian parents and baptised at a time when she was still a minor and knew nothing about the religion. Therefore, should the revival of the caste depend on the whim or will of the members of the community of her original caste or she would lose her caste for ever merely because fortunately or unfortunately she was born in a Christian family? With due respect, our confirmed opinion is that although the views of the members of the community would be an important factor, their views should not be allowed to (sic) a complete loss of the caste to which B belonged. Indeed, if too much stress is laid on the views of the members of the community the same may lead to dangerous exploitation. 

But from that it does not necessarily follow as an invariable rule that whenever a person renounces Hinduism and embraces another religious faith, he automatically ceases to be a member of the caste in which he was born and to which he belonged prior to his conversion…. If the structure of the caste is such that its members must necessarily  belong to Hindu religion, a member, who ceases to be a Hindu, would go out of the caste, because no non-Hindu can be in the caste according to its rules and regulations. Where, on the other hand, having regard to its structure, as it has evolved over the years, a caste may consist not only of persons professing Hindu religion but also persons professing some other religion as well, conversion from Hinduism to that other religion may not involve loss of caste, because even persons professing such other religion can be members of the caste.... This is indeed not an infrequent phenomenon in South India where, in some of the castes, even after conversion to Christianity, a person is regarded as continuing to belong to the caste.”

26) In C.M. Arumugam vs. S. Rajgopal and Others (1976) 1 SCC 863; the following observation is made by this Court. 

“These cases show that the consistent view taken in this country from the time Administrator-General of Madras v. Anandachari was decided, that is, since 1886, has been that on reconversion to Hinduism, a person can once again, become a member of the caste in which he was born and to which he belonged before conversion to another religion, if the members of the caste accept him as a member. There is no reason either on principle or on authority which should compel us to disregard this view which has prevailed for almost a century and lay down a different rule on the subject. If a person who has embraced another religion can be reconverted to Hinduism, there is no rational principle why he should not be able to come back to his caste, if the other members of the caste are prepared to readmit him as a member. It stands to reason that he should be able to come back to the fold to which he once belonged, provided of course the community is willing to take him within the fold. It is the orthodox Hindu society still dominated to a large extent, particularly in rural areas, by medievalistic outlook and status-oriented approach which attaches social and economic disabilities to a person belonging to a scheduled caste and that is why certain favoured treatment is given to him by the Constitution. Once such a person ceases to be a Hindu and becomes a Christian, the social and economic disabilities arising because of Hindu religion cease and hence it is no longer necessary to give him protection and for this reason he is deemed not to belong to a scheduled caste. But when he is reconverted to Hinduism, the social and economic disabilities once again revive and become attached to him because these are disabilities inflicted by Hinduism.”

27) We must remember, as observed by this Court in Ganpat’s case, Hinduism is not a religion with one God or one Holy Scripture. The practices of Hindus vary from region to region, place to place. The Gods worshipped, the customs, Traditions, Practice, rituals etc, they all differ, yet all these people are Hindus. The determination of the religious acceptance of a person must be not be made on his name or his birth. When a person intends to profess Hinduism, and he does all that is required by the practices of Hinduism in the region or by the caste to which he belongs, and he is accepted as a Hindu by all persons around him.

28) Hinduism appears to be very complex religion. It is like a centre of gravity doll which always regain its upright position however much it may be upset. Hinduism does not have a single founder, a single book, a singe church or even a single way of life. Hinduism is not the caste system and its hierarchies, though the system is a part of its social arrangement, based on the division of labour. Hinduism does not preach or uphold untouchability, though the Hindu Society has practiced it, firstly due to reasons of public health and later, due to prejudices. (copied in tits and bits from the book facets of Hinduism by Sri Swami Harshananda).

29) It is a settled principle of law that to prove a conversion from one religion to another, two elements need to be satisfied. First, there has to be a conversion and second acceptance into the community to which the person converted. It is obvious that the need of a conversion cannot be altogether done away with. 

Have a look at the decision.

Voluntary Retirement: The concept understood

In an earlier post we had written about the concept of compulsory retirement, as it applies to Government institutional in the Indian policy. On a similar line in this post we are covering a recent decision of the Supreme Court which examine the concept of 'voluntary retirement'. Called upon to examine the propriety of the action of the CMD of the Indian Overseas Bank, the Supreme Court recently in Chairman and M.D. Indian Overseas Bank & Ors. v. Tribhuwan Nath Srivastava explained the meaning and rationale of the concept of voluntary retirement.

The Bench examined the position of law in the following terms;

12. The decision relied upon by Mr. Singh evidently supports his contention but the observations made by this Court as quoted above need to be understood in the context of the case. In the case of T.S.N. Raju, the Chairman of the Port Trust made a review on the implementation of the scheme for voluntary retirement and keeping in view the concern expressed by the Secretary, Department of Shipping, Ministry of Surface Transport, Government of India, took the decision that the request for voluntary retirement under the scheme should be considered only in case of employees who were below the age of 58 years. The application of T.S.N. Raju (and another respondent in that case) came up for consideration after they had crossed the age of 58 years and were accordingly rejected on the basis of the decision of the Chairman. They challenged the action of the Port Trust in rejecting their request for voluntary retirement, taking the plea before the court that the Port Trust had no discretion to reject their request to take retirement under the voluntary retirement scheme except in cases of the exigencies of service or the compelling necessities or the indispensability of the employees concerned. It was to rebut such sweeping assertion of right that this Court made the observation that under the scheme, the Chairman of the Port Trust had the absolute right to accept or not accept the request for voluntary retirement under the scheme. 

13. The observations made in T.S.N. Raju do not mean that this Court endorsed or approved the discretion vested in the employer (be it the Port Trust or the bank) as absolute in the manner of an unruly horse prancing beyond the control of anyone or anything. In the 62nd year of the Republic, it is rather late in the day for the State or any of the State’s agencies or instrumentalities to claim absolute discretion, like the discretion of a despot or a discretion completely divorced from reasonableness.

14. But at the same time, it must also be realized that reasonableness is not something in the abstract. The reasonableness of a decision or an action can only be judged in the totality of the facts and circumstances and having regard to the object and purpose sought to be achieved. For example, if the object is to select someone for public employment or for promotion to a higher post, the only reasonable thing to do would be to select the most suitable and meritorious among the candidates. The selection of a person of inferior merit or someone who is not even eligible would be wholly unreasonable if the object is to choose the best as it should be in case of selection for public employment or promotion to a higher post. But in case an organisation undertakes manpower planning with a view to downsize the personnel and cut down the overhead costs, very different considerations would apply and in that case the application of the yard stick for selection for public employment or for promotion to a higher post would lead to results opposed to the very object of the exercise.

15. We feel that the High Court committed the fundamental mistake in completely misconstruing the object and purpose of the voluntary retirement scheme. As wrongly assumed by the High Court, the object of the scheme was not to reward the good officers or to punish the bad ones. Even though depending upon personal circumstances, voluntary retirement under the scheme might have appeared to some individual officers as personally beneficial, it was not envisaged by the bank as a means to give personal rewards or to punish individual employees by granting or refusing to grant voluntary retirement to them. The objective of the scheme as stated in the circular issued by the bank was “to adopt measures to have optimum human resources at various levels in keeping with the business strategies, skill profile to achieve balanced age and requirement of the bank”. 

16. In Bank of India and Anr. v. K. Mohandas and Ors., (2009) 5 SCC 313, one of us (Lodha, J.) had the occasion to examine the genesis and raison d'être of the voluntary scheme framed by the banks; in that judgment it was observed, in paragraphs 3, 4, 5 and 36, as follows: 

“3. In the month of May, 2000, Government of India, Ministry of Finance (Banking Division), advised the nationalized banks to carry out detailed manpower planning as these banks were found to have 25% of their manpower as surplus. A Human Resource Management Committee was constituted to examine the said issue and to suggest suitable remedial measures. 

4. The Committee so constituted observed that high establishment cost and low productivity in public sector banks affect their profitability and it was necessary for these banks to convert their human resources into assets compatible with business strategies. Inter alia, the Committee placed the draft voluntary retirement scheme with the Central Government that would assist the banks in their efforts to optimize their human resources and achieve a balanced age and skills profile in keeping with their business strategies.

5. With the approval of the Central Government, Indian Banks’ Association (IBA) circulated salient features of the draft scheme to the nationalized banks for consideration and adoption by their respective boards vide its letter dated 31-8- 2000. The Board of Directors of each of the nationalized banks, keeping in view the objectives, considered the draft scheme and adopted it separately. 

36. Any interpretation of the terms of VRS 2000, although contractual in nature, must meet the test of fairness. It has to be construed in a manner that avoids arbitrariness and unreasonableness on the part of the public sector banks who brought out VRS 2000 with an objective of rightsizing their manpower. The banks decided to shed surplus manpower. By formulation of the special scheme (VRS 2000), the banks intended to achieve their objective of rationalising their force as they were overstaffed. The special Scheme was, thus, oriented to lure the employees to go in for voluntary retirement. In this background, the consideration that was to pass between the parties assumes significance and a harmonious construction to the Scheme and the Pension Regulations, therefore, has to be given.”

17. Bearing in mind the object and purpose of the scheme as explained in the decision in Bank of India it is not difficult to see how the competent authority in the bank would deal with the applications for voluntary retirement made by individual officers; other things being equal between two applicants he would like to let go the one with the inferior service record and lower potential and consequently he would accept the application of the officer with the lower merit and may not accept the request of the officer with superior merit. This is for the simple reason that in the process of shedding surplus manpower no organisation would like to lose its best people.

18. From a purely subjective point of view the decision of the competent authority may appear to be “unfair” or even a ‘punishment” to the officer with the superior merit nevertheless it would be the proper and reasonable exercise of discretion in view of the basic objective of the scheme. We are not unconscious that the denial of request for voluntary retirement to an officer in practice may result in souring of relationship between the concerned officer and the bank (as it actually happened in this case) and as a consequence the concerned officer in future may not show the same competence and efficiency in the discharge of his duties for which he was sought to be retained in service. But that is a matter of personnel management and the competent authority is expected to factor in such considerations while taking a decision on individual applications. Such considerations would certainly not be a ground for the court to interfere with the decision of the competent authority. The discretion vested in the competent authority as stipulated in paragraph 4 under the heading ‘General Conditions’ (of the scheme) must be understood in this way and not absolute in the sense of being completely uncontrolled, whimsical or capricious. 

19. Seen in this light even the grant of voluntary retirement to an employee who may not be strictly eligible under the scheme may not improve the claim of another applicant who might not only be eligible but with highly superior credentials. An employee facing a disciplinary proceeding and, therefore, ineligible under the scheme may otherwise also be completely useless. The bank may try to get rid of him by dropping the disciplinary proceeding or even by waiving the eligibility clause in his case. At worst the action of the bank may be irregular or even invalid in case of that particular employee. But unlike a selection for appointment or promotion to a superior post, this in itself would not provide a ground to another employee (legible and with superior credentials) to claim retirement as a matter of right.

Have a look at the decision.

Revenue records do not create title in land: High Court

Holding that the law on this aspect was settled that the name of a person appearing on the revenue records pertaining to a land did not confer legal title of the land on the person, a Division Bench of the Calcutta High Court in a recent decision [Pashupati Das v. The Block Land and Land Reforms Officer & Ors.] set aside the decision of the West Bengal Land Reforms and Tenancy Tribunal which held to the contrary. The High Court declared that the entry in revenue records created only a rebuttable presumption and was not a categorical proof of the title, which could be established only in a civil court.

The Bench examined the position of law in the following terms;

We are very much surprised to read the order passed by the learned Tribunal below whereby and whereunder it has been held by the learned Tribunal that irrespective of the order of the Civil Court as the writ petitioner’s name was not recorded in the revisional settlement record of rights and thereafter in the L.R. settlement, his application should be rejected. The entry in the record of rights only has a presumptive value and a rebuttable presumption so far as possession is concerned. It does not vest any title of the property to the recorded person. Since the writ petitioner set up a case of declaration of his title by decree of a Civil Court, the findings of the learned Tribunal below is contrary to the provision of law.

It is a settled law that entry of the record of rights does not vest any title over the property. Reliance is placed to the judgment passed in the case Narasamma and Ors. –Vs.- State of Karnataka and Ors. reported in 2009(2) ICC 669 (SC) wherein earlier judgment of Jattu Ram vs. Hakam Singh and others was relied upon which was reported in 1993(4) SCC 403. It is held that the revenue record cannot create any title. In the case Suraj Bhan vs. Financial Commissioner and others reported in 2007(6) SCC 186, the Court held “it is well settled that an entry in revenue records does not confer title on a person whose name appears in the record of rights. it is settled law that entries in the revenue records or Jamabandi have only ‘fiscal purpose’ i.e. payment of land revenue and no ownership is conferred on the basis of such entries. So far as the title to the properties is concerned, it can only be decided by a competent Civil Court.” Same view has been reiterated by the Apex Court in the case Narain Prasad Agrawal (Dead) by L.Rs –Vs.- State of Madhya Pradesh reported in 2007(4) ICC (SC) 105. Very recently in the case Fagruddin (Dead) L.Rs –Vs.- Tajuddin (Dead) L.Rs reported in 2010 (1) ICC (S.C) 457, the Apex Court reiterated the said proposition of law, relying upon Suraj Bhan (supra) and Narayan Prasad Agarwal (supra).

Have a look at the decision.

Order valid unless set aside in a manner known to law: The law revisited

Since the outcome of judicial process is always a declaration in favour of one party and against another, the judgments are more often then not criticized on various grounds. One of the most prominent grounds for taking up the matter in appeal is that the order has been passed without jurisdiction, is void or is contrary to settled notions of law. However mere assertion to this regard is not sufficient. The nature of judicial process requires the enforcement authorities to execute a decision unless the decision is rendered. On this principle the law is set that the executing court cannot go behind the manner in which the decision was rendered. 

The judicial process, therefore, which has now been firmly established in the country is that any order, whether without jurisdiction; illegal or patently void, is required to be set aside in a manner known to law and only when such event happens can the effect of the order be discontinued. Unless the order is set aside in a legally recognised manner, it continues to have all legal force and sanction and it is not a valid ground to dishonour the decision only on the assertion that it is illegal, void etc.

The Supreme Court in a recent decision [Krishnadevi Malchand Kamathia v. Bombay Environmental Action Group] explained the concept inter alia as under;

17. It is settled legal proposition that even if an order is void, it requires to be so declared by a competent forum and it is not permissible for any person to ignore the same merely because in his opinion the order is void.

18. In State of Kerala v. M.K. Kunhikannan Nambiar Manjeri Manikoth Naduvil (dead) & Ors., AIR 1996 SC 906; Tayabbhai M. Bagasarwalla & Anr. v. Hind Rubber Industries Pvt. Ltd. etc, AIR 1997 SC 1240; M. Meenakshi & Ors. v. Metadin Agarwal (dead) by L.Rs. & Ors. (2006) 7 SCC 470; and Sneh Gupta v. Devi Sarup & Ors., (2009) 6 SCC 194, this Court held that whether an order is valid or void, cannot be determined by the parties. For setting aside such an order, even if void, the party has to approach the appropriate forum.

19. In State of Punjab & Ors. v. Gurdev Singh, Ashok Kumar, AIR 1991 SC 2219, this Court held that a party aggrieved by the invalidity of an order has to approach the court for relief of declaration that the order against him is inoperative and therefore, not binding upon him. While deciding the said case, this Court placed reliance upon the judgment in Smith v. East Ellore Rural District Council, [1956] 1 All ER 855 wherein Lord Radcliffe observed:- 

“An order, even if not made in good faith is still an act capable of legal consequences. It bears no brand of invalidity on its forehead. Unless the necessary proceedings are taken at law to establish the cause of invalidity and to get it quashed or otherwise upset, it will remain as effective for its ostensible purpose as the most impeccable of orders.”

20. In Sultan Sadik v. Sanjay Raj Subba & Ors., AIR 2004 SC 1377, this Court took a similar view observing that once an order is declared non-est by the Court only then the judgment of nullity would operate erga omnes i.e. for and against everyone concerned. Such a declaration is permissible if the court comes to the conclusion that the author of the order lacks inherent jurisdiction/competence and therefore, it comes to the conclusion that the order suffers from patent and latent invalidity.

21. Thus, from the above it emerges that even if the order/notification is void/voidable, the party aggrieved by the same cannot decide that the said order/notification is not binding upon it. It has to approach the court for seeking such declaration. The order may be hypothetically a nullity and even if its invalidity is challenged before the court in a given circumstance, the court may refuse to quash the same on various grounds including the standing of the petitioner or on the ground of delay or on the doctrine of waiver or any other legal reason. The order may be void for one purpose or for one person, it may not be so for another purpose or another person.

Have a look at the decision.

Res Judicata: The concept understood

No person is allowed to undertake a "litigative adventure" is what the Supreme Court has recently explained as a progeny of the doctrine of res judicata, a fundamental doctrine which is deeply embedded in the Indian legal system. Holding that the origin of the doctrine could be traced both in Hindu and Mohammedan jurisprudence, the Supreme Court quoted earlier decisions and took note of the legislative changes in the country concluding thereon that "the attempt to re-argue the case which has been finally decided by the Court of last resort is a clear abuse of process of the Court".

The Supreme Court in its recent decision in M. Nagabhushana v. State of Karnataka & Others , tracing the genesis of the concept in India and the subsequent developments thereon, inter alia explained the doctrine of res judicata in the following terms;

12. We find that disregarding the aforesaid clear finding of this Court, the appellant, on identical issues, further filed a new writ petition out of which the present appeal arises. That writ petition, as noted above, was rejected both by the learned Single Judge and by the Division Bench in clear terms.

13. It is obvious that such a litigative adventure by the present appellant is clearly against the principles of Res Judicata as well as principles of Constructive Res Judicata and principles analogous thereto.

14. The principles of Res Judicata are of universal application as it is based on two age old principles, namely, ‘interest reipublicae ut sit finis litium’ which means that it is in the interest of the State that there should be an end to litigation and the other principle is ‘nemo debet his ve ari, si constet curiae quod sit pro un aet eademn cause’ meaning thereby that no one ought to be vexed twice in a litigation if it appears to the Court that it is for one and the same cause. This doctrine of Res Judicata is common to all civilized system of jurisprudence to the extent that a judgment after a proper trial by a Court of competent jurisdiction should be regarded as final and conclusive determination of the questions litigated and should for ever set the controversy at rest. 

15. 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 colour and pretence of law in as much 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.

16. Justice Tek Chand delivering the unanimous Full Bench decision in the case of Mussammat Lachhmi Vs. Mussammat Bhulli (ILR Lahore Vol.VIII 384) traced the history of this doctrine both in Hindu and Mohammedan jurisprudence as follows:-

“In the Mitakshra (Book II, Chap. I, Section V, verse 5) one of the four kinds of effective answers to a suit is “a plea by former judgment” and in verse 10, Katyayana is quoted as laying down that “one against whom a judgment had formerly been given, if he bring forward the matter again, must be answered by a plea of Purva Nyaya or former judgment” (Macnaughten and Colebrooke’s translation, page 22). The doctrine, however, seems to have been recognized much earlier in Hindu Jurisprudence, judging from the fact that both the Smriti Chandrika (Mysore Edition, pages 97-98) and the Virmitrodaya (Vidya-Sagar Edition, page 77) base the defence of Prang Nyaya (=former decision) on the following text of the ancient lawgiver Harita, who is believed by some Orientalists to have flourished in the 9th Century B.C. and whose Smriti is now extant only in fragments:-

“The plaintiff should be nonsuited if the defendant avers: ‘in this very affair, there was litigation between him and myself previously,’ and it is found that the plaintiff had lost his case”.

There are texts of Prasara (Bengal Asiatic Society Edition, page 56) and of the Mayukha (Kane’s Edition, page 15) to the same effect.

Among Muhammadan law-givers similar effect was given to the plea of “Niza-i-munfasla” or “Amar Mania taqrir mukhalif.” Under Roman Law, as administered by the Proetors’ Courts, a defendant could repel the plaintiff’s claim by means of ‘exceptio rei judicatoe” or plea of  former judgment. The subject received considerable attention at the hands of Ruman jurists and as stated in Roby’s Roman Private Law (Vol.II, page 338) the general principle recognised was that “one suit and one decision was enough for any single dispute” and that “a matter once brought to trial should not be tried except, of course, by way of appeal”. (Page 391-392 of the report) 

17. The learned Judge also noted that in British India the rule of Res Judicata was first introduced by Section 16 of the Bengal Regulation, III of 1973 which prohibited the Zilla and City Courts from entertaining any cause which, from the production of a former decree or the record of the Court, appears to have been heard and determined by any Judge or any Superintendent of a Court having competent jurisdiction. The learned Judge found that the earliest legislative attempt at codification of the law on the subject was made in 1859, when the first Civil Procedure Code was enacted, whereunder Section 2 of the Code barred every Court from taking cognizance of suits which, on the same cause of action, have been heard and determined by a Court of competent jurisdiction. The learned Judge opined, and in our view rightly, that this was partial recognition of the English rule in so far as it embodied the principles relating to Estoppel by judgment or Estopel by record. 

18. Thereafter, when the Code was again revised in 1877, the operation of the rule was extended in Section 13 and the bar was no longer confined to the retrial of a dispute relating to the same cause of action but the prohibition was extended against reagitating an issue, which had been heard and finally decided between the same parties in a former suit by a competent court. The learned Judge also noted that before the principle assumed its present form in Section 11 of the Code of 1908, the Section was expanded twice. However, the learned Judge noted that Section 11 is not exhaustive of the law on the subject. 

19. It is nobody’s case that the appellant did not know the contents of FWA. From this it follows that it was open to the appellant to question, in the previous proceeding filed by it, that his land which was acquired was not included in the FWA. No reasonable explanation was offered by the appellant to indicate why he had not raised this issue. Therefore, in our judgment, such an issue cannot be raised in this proceeding in view of the doctrine of Constructive Res Judicata. 

20. It may be noted in this context that while applying the principles of Res Judicata the Court should not be hampered by any technical rules of interpretation. It has been very categorically opined by Sir Lawrence Jenkins that “the application of the rule by Courts in India should be influenced by no technical considerations of form but by matter of substance within the limits allowed by law”. [See Sheoparsan Singh Vs. Rammanandan Prasad Singh, (1916) 1 I.L.R. 43 Cal. 694 at page 706 (P.C.)].

21. Therefore, any proceeding which has been initiated in breach of the principle of Res Judicata is prima-facie a proceeding which has been initiated in abuse of the process of Court.

22. A Constitution Bench of this Court in Devilal Modi Vs. Sales Tax Officer, Ratlam & Ors. – AIR 1965 SC 1150, has explained this principle in very clear terms: 

“But the question as to whether a citizen should be allowed to challenge the validity of the same order by successive petitions under Art. 226, cannot be answered merely in the light of the significance and importance of the citizens' fundamental rights. The general principle underlying the doctrine of res judicata is ultimately based on considerations of public policy. One important consideration of public policy is that the decisions pronounced by courts of competent jurisdiction should be final, unless they are modified or reversed by appellate authorities; and the other principle is that no one should be made to face the same kind of litigation twice over, because such a process would be contrary to considerations of fair play and justice, vide Daryao Vs. State of U.P., 1962-1 SCR 575; (AIR 1961 SC 1457).”

23. This Court in All India Manufacturers Organisation (supra) explained in clear terms that principle behind the doctrine of Res Judicata is to prevent an abuse of the process of Court.

24. In explaining the said principle the Bench in All India Manufacturers Organisation (supra) relied on the following formulation of Lord Justice Somervell in Greenhalgh Vs. Mallard – (1947) 2 All ER 255 (CA):

“I think that on the authorities to which I will refer it would be accurate to say that res judicata for this purpose is not confined to the issues which the court is actually asked to decide, but that it covers issues or facts which are so clearly part of the subject-matter of the litigation and so clearly could have been raised that it would be an abuse of the process of the court to allow a new proceeding to be started in respect of them.”

25. The Bench also noted that the judgment of the Court of Appeal in “Greenhalgh” was approved by this Court in State of U.P. Vs. Nawab Hussain – (1977) 2 SCC 806 at page 809, para 4.

26. Following all these principles a Constitution Bench of this Court in Direct Recruit Class II Engg. Officers’ Assn. Vs. State of Maharashtra – (1990) 2 SCC 715 laid down the following principle: 

“……an adjudication is conclusive and final not only as to the actual matter determined but as to every other matter which the parties might and ought to have litigated and have had decided as incidental to or essentially connected with subject matter of the litigation and every matter coming into the legitimate purview of the original action both in respect of the matters of claim and defence. Thus, the principle of constructive res judicata underlying Explanation IV of Section 11 of the Code of Civil Procedure was applied to writ case. We, accordingly hold that the writ case is fit to be dismissed on the ground of res judicata”

27. In view of such authoritative pronouncement of the Constitution Bench of this Court, there can be no doubt that the principles of Constructive Res Judicata, as explained in explanation IV to Section 11 of the CPC, are also applicable to writ petitions. 

28. Thus, the attempt to re-argue the case which has been finally decided by the Court of last resort is a clear abuse of process of the Court, regardless of the principles of Res Judicata, as has been held by this Court in K.K. Modi Vs. K.N. Modi and Ors. – (1998) 3 SCC 573. In paragraph 44 of the report, this principle has been very lucidly discussed by this Court and the relevant portions whereof are extracted below:

“One of the examples cited as an abuse of the process of the court is relitigation. It is an abuse of the process of the court and contrary to justice and public policy for a party to relitigate the same issue which has already been tried and decided earlier against him. The reagitation may or may not be barred as res judicata...” 

29. In coming to the aforementioned finding, this Court relied on the Supreme Court Practice 1995 published by Sweet & Maxwell. The relevant principles laid down in the aforesaid practice and which have been accepted by this Court are as follows: 

“This term connotes that the process of the court must be used bona fide and properly and must not be abused. The court will prevent improper use of its machinery and will in a proper case, summarily prevent its machinery from being used as a means of vexation and oppression in the process of litigation. ... The categories of conduct rendering a claim frivolous, vexatious or an abuse of process are not closed but depend on all the relevant circumstances. And for this purpose considerations of public policy and the interests of justice may be very material.”

30. In the premises aforesaid, it is clear that the attempt by the appellant to re-agitate the same issues which were considered by this Court and were rejected expressly in the previous judgment in All India Manufacturers Organisation (supra), is a clear instance of an abuse of process of this Court apart from the fact that such issues are barred by principles of Res Judicata or Constructive Res Judicata and principles analogous thereto.

Have a look at the decision.

See Also

1. Constructive Res judicata: The law revisited