Section 138 of the Negotiable Instruments Act, 1881 penalizes the drawer of a cheque for the dishonour of a cheque issued by him for either insufficient funds or that the cheque exceeds the amount arranged to be paid from such account. The said provision was added so that the people who are issuing cheques as a mode of payment honour the said cheques and there are no defaults in making the payment.
It is a well settled law that a decree passed without jurisdiction is a nullity. As such, a Respondent / Opposite Party is supposed to take the ground of maintainability of the case / suit / complaint in the first instance. However, it usually happens that the Respondent / Opposite Party fails to take the objection of maintainability in the original proceedings and thereafter in the appellate stage after suffering a decree / order against itself, the party appealing usually takes a ground that the Suit / Complaint / Petition was not instituted properly before the appropriate court. Such objections in the Appellate stages are usually on the issue of the subject matter of the case, the territorial jurisdiction or the pecuniary jurisdiction. Is such an objection maintainable in law for the first time in the Appellate stage?
Section 21 of the Code of Civil Procedure, 1908, provides for as to when can an objection to the jurisdiction of a court can be taken. Section 21 CPC is as follows:
21. Objections to jurisdiction. —
(1) No objection as to the place of suing shall be allowed by any Appellate or Revisional Court unless such objection was taken in the Court of first instance at the earliest possible opportunity and in all cases where issues are settled at or before such settlement, and unless there has been a consequent failure of justice.
(2) No objection as to the competence of a Court with reference to the pecuniary limits of its jurisdiction shall be allowed by any Appellate or Revisional Court unless such objection was taken in the Court of first instance at the earliest possible opportunity, and, in all cases where issues are settled, at or before such settlement, and unless there has been a consequent failure of justice.
(3) No objection as to the competence of the executing Court with reference to the local limits of its jurisdiction shall be allowed by any Appellate or Revisional Court unless such objection was taken in the executing Court at the earliest possible opportunity, and unless there has been a consequent failure of justice.
On a bare perusal of Section 21 CPC, it is apparent that an objection to either the territorial jurisdiction or the pecuniary jurisdiction for the first time before an Appellate / Revisional Court cannot be accepted and is not a valid argument. It is only when the Appellate Court / Revisional Court feels that there is a failure of justice that can such an objection to the jurisdiction be allowed to be taken.
However, it is well known, the provisions of the Civil Procedure Code are not strictly applicable to the Consumer Protection Act and the Consumer Commissions. As such, in such a scenario, what is the law that is prevailing with respect to the objection taken by a party for the first time in the Appellate Stage with respect to the territorial / pecuniary jurisdiction of the Consumer Commission. Will such an objection / issue / ground be allowed to be raised?
The National Consumer Disputes Redressal Commission has in the case of Treaty Constructions & Anr. v. Ruby Tower Co-op Hsg. Society Ltd. & Ors., FA/109/2015 : 2018 SCC OnLine NCDRC 779 has dealt with the instant issue. The NCDRC has held that an objection to the pecuniary jurisdiction of a Consumer Commission for the first time in the Appellate Stage would not be maintainable and has relied upon the Judgment of the Supreme Court in the case of Harshad Chiman Lal Modi v. DLF Universal, (2005) 7 SCC 791. The National Commission has observed as follows:
“14. As regard the objection of the appellants regarding pecuniary jurisdiction of the State Commission, it appears that this objection has not been taken before the State Commission specifically. As the matter has now been decided by the State Commission on merits, the technical objection of pecuniary jurisdiction cannot be raised at this stage. This view gets support from the decision of the Hon’ble Supreme Court in Harshad Chiman Lal Modi v. DLF Universal, (2005) 7 SCC 791 : AIR 2005 SC 4446, wherein the Hon’ble Apex Court has held as follows:—
“So far as territorial and pecuniary jurisdictions are concerned, objection to such jurisdiction has to be taken at the earliest possible opportunity and in any case at or before settlement of issues. The law is well settled on the point that if such objection is not taken at the earliest, it cannot be allowed to be taken at a subsequent stage”.” (Emphasis and underline supplied)
The abovementioned Judgment of the NCDRC was assailed before the Supreme Court of India in the case titled Treaty Construction and Another v. Ruby Tower Cooperative Housing Society Limited, Civil Appeal No. 5699 of 2019 : (2019) 8 SCC 157 wherein the Supreme Court has upheld the abovementioned observations of the NCDRC. The relevant portion of the instant judgment is reproduced as under:
6. The contention on the part of the appellants as regards pecuniary jurisdiction has only been noted to be rejected. The National Commission has observed, and rightly so, that such a plea was not specifically raised before the State Commission at the earliest opportunity; and the State Commission having already decided the matter on merits, such a technical objection as regards pecuniary jurisdiction could not have been countenanced before the National Commission. We find no error in the National Commission rejecting this plea as being wholly untenable at the given stage.” (Emphasis and underline supplied)
Hence, it is apparent that the Opposite Party / Respondent cannot take the objection / ground to the territorial / pecuniary jurisdiction for the first time in the Appellate Stage. If at all such an objection / ground is taken for the first time before the Appellate forum in the First Appeal, such ground / technical objection shall be rejected by the Appellate Court in view of the abovementioned judgments of the National Commission, which was upheld by the Supreme Court.
It is certain that the National Commission as well as the Supreme Court have applied the principle of law as provided under Section 21 of the CPC and as such it is apparent that Section 21 is applicable to the proceedings under the Consumer Protection Act.
The Consumer Commissions must keep in mind while deciding the Consumer Complaints and / or First Appeals or Revision Petitions under the Consumer Protection Act that such proceedings are time bound and that the proceedings are to be conducted in a summary manner. It has been provided under the Consumer Protection Act that each Complaint must be disposed of as expeditiously as possible, and endeavour shall be made to decide the complaint within a period of 3 months from the date of receipt of the notice by the Opposite Party.
The Consumer Protection Act being a benevolent legislation enacted particularly to safeguard the interests of the Consumers, has to be kept in mind while deciding the Consumer complaints. If the Opposite Party has not taken an objection with respect to the jurisdiction at the first instance / stage, i.e., at the stage of the adjudication of the Consumer Complaint, such an objection cannot be allowed to be taken at the Appellate stage, since it would completely defeat the purpose of the strict timelines and guidelines as are provided under the Consumer Protection Act.
If at all a Consumer Commission in the Appellate stage for the first time allows such a technical objection to be taken, then the order in the Consumer Complaint would have to be set aside and the Complainant / Consumer may have to approach the Consumer Commission once again for redressal of its grievances. Such an eventuality would defeat the entire purpose of the Act as it would only lead to harassment of the Consumer.
Question: Can a Magistrate direct a Police Officer to register a Zero FIR and to investigate a matter outside its territorial jurisdiction under Section 156(3)?
Section 156(3) of the Cr.P.C. empowers a Magistrate to direct a Police Officer to investigate into a matter disclosing a cognizable offence.
Whenever any person gives an information of the commission of a cognizable offence to an Officer in Charge of a Police Station, under Section 154 of the Criminal Procedure Code, 1973, an FIR (First Information Report) is registered. However, in case the officer in charge of the police station refuses to lodge the FIR, such Complainant / Informant can write to the Superintendent of Police (or Deputy Commission of Police in a Commissionerate system) under Section 154(3) of the Cr.P.C.
In a recent judgment in the case of Saurav Das vs. Union of India & Ors. [Writ Petition (Civil) No. 1126 of 2022], the Hon’ble Supreme Court on 20.01.2023, rejected a Writ Petition wherein the main relief was that all states in the country, be directed to put on their website the copies of all chargesheets / final reports filed under Section 173 of the Cr.P.C., to enable free public access of the same. The Petitioners placed reliance on a judgement of the Hon’ble Supreme Court in the case of Youth Bar Association of India vs. Union of India (2016) 9 SCC 473, wherein the Apex Court had directed copies of FIRs to be published within 24 hours of their registration on the police websites / websites of State Governments. It was submitted by Mr. Prashant Bhushan on behalf of the Petitioners, that, the direction of putting up FIRs on State / Police websites have induced transparency in the working of the criminal justice system, and that, the logic of disclosures applies more strongly to chargesheets. It was submitted that while FIRs are based on unsubstantiated allegations, chargesheets are documents filed after due investigation.
The Delhi High Court comprising a bench of Hon’ble Mr. Justice Anup Jairam Bhambhani in the matter titled Man Mohan Patnaik v. CISCO Systems Capital India Pvt. Ltd. & Ors., Crl. MC 6461 of 2022 & Crl. MA 25177 of 2022 has held that a retired officer of a Company who had signed a cheque during his employment / tenure is not guilty for the offence of Cheque Bounce.
Article 145 of the Constitution of India empowers the Supreme Court to make rules for regulating generally the practice and procedure of the courts. Such rules regarding the practice and procedure have to be approved by the President of India. Accordingly, the Supreme Court has in its history of 72 years, enacted the Supreme Court Rules thrice, viz.
The Supreme Court Rules lay down the practice and procedure of the Supreme Court. These Rules have been amended from time to time. There are also various circulars that are issued by the Supreme Court Registry which have to be adhered to by the advocates / advocates on record at the time of appearing / filing of matters before the Supreme Court. Some of such circulars also amend the Supreme Court Rules.
Authors – Sanjay Jain & Nishant Sasidharan.
India had always operated a personal law system with different family laws for Muslims, Hindus and others. Indian Constitution, which was brought into force on 26th January 1950, adopted Article 44, “The State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India.”
The Consumer Protection Acts of 1986 and 2019 are benevolent legislations which are enacted by the Parliament for the benefit of Consumers in order to safeguard their interests. The word Consumer has been defined under the Consumer Protection Act, 1986 under Section 2(1)(d) and under Section 2(7) of the Consumer Protection Act, 2019. It has been clearly specified that a person would not be a Consumer in case the said Goods / Services are obtained for resale or for any commercial purpose.
A couple of days ago, while doing research on a particular topic, I came across a Supreme Court Judgment with the citation of a journal which I in my limited experience as an Advocate had never dealt with.
The Hindu Succession Act, 1956 governs the way the property of a Hindu person dying intestate will succeed to his / her legal heirs. While the entire act provides for various ways how the property would go from the ancestors to the Legal Heirs, there is a disqualification mentioned under Section 25 of the act.
The Hon’ble High Court of Madras comprising a bench of Hon’ble Mr. Justice V. Parthiban was posed with a question whether the AICTE regulations are mandatory to follow on the Universities / technical institutions which are following the rules framed by the State Government in the case of Dr. S. Kothandaraman v. Pro Chancellor, Puducherry Technological University & Ors., WP Nos. 17918 and 17929 of 2021. The Madras High Court has held that the AICTE regulations are mandatory on the universities / institutions and they will have to follow the regulations in letter and spirit and accordingly will have to increase the retirement / superannuation age to 65.
The Hon’ble High Court of Delhi comprising a bench of Hon’ble Mr. Justice C. Hari Shankar was posed a question in the matter of Lucina Land Development Ltd. v. Union of India & Ors., Civil Misc. (Main) Petition No. 664 of 2018 whether the order of the National Consumer Disputes Redressal Commission (National Commission) can be challenged by a person before the High Court invoking its extra-ordinary supervisory jurisdiction in view of the fact that there is an alternate remedy available of a Civil Appeal under Section 23 of the Consumer Protection Act, 1986 to the Hon’ble Supreme Court.
As a student in a law school, back in 2013 (when I was in the second year of the five-year law course), my father was encouraging me to inculcate the habit of writing and so he gave me the topic of “recording and live streaming of the Court proceedings” to write an article on. I did a little bit of research and gave it up for the “usual things” that any ordinary law student would do in his second year. Being a visionary and futuristic, as he always was, he had suggested this article to me in the year 2013, when even YouTube was not a “big thing” and naturally there was no live streaming happening on YouTube.
Section 498A of IPC envisages legal recourse to a married woman against her Husband or relative of her husband for subjecting her to cruelty. It states as follows:
The Supreme Court of India recently decided a case titled Bangalore Development Authority v. State of Karnataka, M.A. No. 1614-1616 of 2019 in M.A. 1346-1348 of 2019 in Civil Appeal Nos. 7661-7663 of 2018 whereby the applicability of the Land Acquisition Act, 1894 (1894 Act) for the purposes of the acquisition by the Bangalore Development Authority (BDA) under Section 36 of the Bangalore Development Authority Act (BDA Act) in the light of the new Act for land acquisition titled Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (2013 Act) was under challenge.
The Supreme Court comprising a bench of Hon’ble Dr. Justice D. Y. Chandrachud and Hon’ble Mr. Justice A. S. Bopanna in the matter of The Employees’ State Insurance Corporation v. Union of India & Ors., Civil Appeal No. 152 of 2022 has recently decided whether the Dynamic Assured Career Progression Scheme (hereinafter referred to as the DACP Scheme) will be applicable to the Employees of the Employees’ State Insurance Corporation, which is a statutory body set up under the Employees State Insurance Act, 1948. The Supreme Court further answered the question whether the particulars of an advertisement for vacancies will have primacy over the service regulations / rules framed by the Department.
In the captioned matter, certain persons (Respondents before Supreme Court) had joined the Employees’ State Insurance Corporation (ESIC) as Assistant Professors at the ESIC Model Hospital, Rajajinagar, Bengaluru between 2012 to 2014. At the time of joining into service, the DACP Scheme issued by the Central Government in 2008 was applicable. According to the DACP Scheme, the Assistant Professor was to be promoted to the post of an Associate Professor upon completion of two years of service. However, subsequently the Employees’ State Insurance Corporation (Medical Teaching Faculty Posts) Recruitment Regulations, 2015 came into effect on 05.07.2015.
As per the ESIC Recruitment Regulations, 2015, a minimum of five years of qualifying service as Assistant Professors were required for promotion to the post of Associate Professors. Hence, the Respondents / Assistant Professors filed an OA before the Central Administrative Tribunal, Bengaluru. The CAT deciding in favour of the Assistant Professors held that the ESIC Recruitment Regulations were not relevant for the adjudication of the matter and direct the ESIC to consider the promotion of the Assistant Professors under the DACP Scheme.
Subsequently, the ESIC preferred a Writ Petition before the High Court of Karnataka which also dismissed the Appeal which held that since the Assistant Professors were recruited before the enactment / enforcement of the ESIC Recruitment Regulations, 2015, they would get the benefit of the DACP and also that the DACP has statutory effect under the Employees State Insurance Act and the said ESIC Recruitment Rules have been enacted without the approval of the Central Government. Further, the decision was rendered in favour of the Assistant Professors as the Advocate for the ESIC had conceded that the ESIC would implement the DACP and that the ESIC Recruitment Regulations, 2015 do not apply.
Hence, in an Appeal before the Supreme Court filed by the Employees State Insurance Corporation, the following were the main points to be decided by the Hon’ble Supreme Court:
The abovementioned main points are decided and adjudicated by the Supreme Court as follows:
The main contention of the Appellant (ESIC) was that the ESIC Recruitment Regulations, 2015 were enacted under Section 17(2) of the ESI Act which empowers the the ESIC to depart from the conditions of service that are applicable to employees of the Central Government, subject to the prior approval from the Central Government. Further, Section 97(3) of Act confers power to the ESIC to frame its own regulations which are deemed to have the same effect as statutory provisions. The Appellant contended that the Office Memorandum dated 29.10.2008 that implemented the DACP Scheme is applicable to the employees of the Central Government but not to the Appellant corporation which is a statutory body. The ESIC further submitted that the High Court erred in holding that the DACP will be applicable to the Assistant Professors / Respondents because the ESIC Recruitment Rules, 2008 were gazetted on 02.05.2009 which stipulated four years of qualifying service for promotion to the post of Associate Professor instead of the 2 years as was specified by the DACP.
The Assistant Professors contended that the ESIC Recruitment Rules, 2008 were issued without approval of the Central Government and that the Office Memorandum for the DACP Scheme extended the said Scheme to various sub-cadres of the Central Health Service, including the teaching cadre. Hence, under Section 17(2)(a) of the Employees State Insurance Act, the DACP will be binding.
The Hon’ble Supreme Court held that the ESI Recruitment Rules, 2015 will be applicable to the ESIC as the ESIC Recruitment Rules of 2015 had superseded the Rules of 2008 and it is a settled law that the regulations that are framed by statutory authorities have the force of an enacted law. For this, reliance was placed on the case of Sukhdev Singh v. Bhagatram Sardar Singh Raghuvanshi, (1975) 1 SCC 421 and Pepsu Road Transport Corporation, Patiala v. Mangal Singh and Ors., (2011) 11 SCC 702. In both of the abovementioned cases, the Supreme Court had earlier held that it is a well settled law that Regulations made under the staturoy powers are binding and effective as the enactment of the competent legislature.
Further, the Hon’ble Supreme Court while deciding whether the Office Memorandum of the Central Government of the DACP Scheme will have primacy over the ESIC Recruitment Regulations held that, “In the event of a conflict between an executive instruction, an office memorandum in this case, and statutory regulations – the latter will prevail.” The Supreme Court placed reliance on the judgment of the Constitution Bench in the case of Sant Ram Sharma v. State of Rajasthan, AIR 1967 SC 1910 whereby the Hon’ble Supreme Court observed:
“7. We proceed to consider the next contention of Mr N.C. Chatterjee that in the absence of any statutory rules governing promotions to selection grade posts the Government cannot issue administrative instructions and such administrative instructions cannot impose any restrictions not found in the Rules already framed. We are unable to accept this argument as correct. It is true that there is no specific provision in the Rules laying down the principle of promotion of junior or senior grade officers to selection grade posts. But that does not mean that till statutory rules are framed in this behalf the Government cannot issue administrative instructions regarding the principle to be followed in promotions of the officers concerned to selection grade posts. It is true that Government cannot amend or supersede statutory rules by administrative instructions, but if the rules are silent on any particular point Government can fill up the gaps and supplement the rules and issue instructions not inconsistent with the rules already framed.” (emphasis supplied)
The Supreme Court also placed reliance on a division bench judgment of the Supreme Court in the case of Union of India v. Ashok Kumar Agarwal, (2013) 16 SCC 147 whereby the Hon’ble Supreme Court observed that,
“59. The law laid down above has consistently been followed and it is a settled proposition of law that an authority cannot issue orders/office memorandum/executive instructions in contravention of the statutory rules. However, instructions can be issued only to supplement the statutory rules but not to supplant it. Such instructions should be subservient to the statutory provisions. (Vide Union of Indiav. Majji Jangamayya [(1977) 1 SCC 606 : 1977 SCC (L&S) 191] , P.D. Aggarwal v. State of U.P. [(1987) 3 SCC 622 : 1987 SCC (L&S) 310 : (1987) 4 ATC 272] , Paluru Ramkrishnaiah v. Union of India [(1989) 2 SCC 541 : 1989 SCC (L&S) 375 : (1989) 10 ATC 378 : AIR 1990 SC 166] , C. Rangaswamaiah v. Karnataka Lokayukta [(1998) 6 SCC 66 : 1998 SCC (L&S) 1448] and Joint Action Committee of Air Line Pilots’ Assn. of India v. DG of Civil Aviation [(2011) 5 SCC 435 : AIR 2011 SC 2220] .)”
The Assistant Professors further claimed that certain letters were written by the Appellant ESIC for implementation of the DACP scheme, however, the Supreme Court held that these letters would be similar to the Office Memorandum for DACP Scheme and it would not have the force of the law until they were enforced through an amendment to the recruitment regulations and placed reliance on a three judge bench of the Supreme Court in the case of Union of India v. Majji Jangamayya, (1977) 1 SCC 606.
Hence, on the basis of the abovementioned observations / discussions, the Hon’ble Supreme Court held that the DACP Scheme will not be applicable to the Assistant Professors for promotion as the ESIC Recruitment Rules, 2008 and ESIC Recruitment Rules, 2015 both having statutory effect overrides the Office Memorandum dated 29.10.2008 that had implemented the DACP Scheme.
The Assistant Professors were claiming that since the advertisements referred to the applicability of the DACP scheme, they had left their earlier jobs and joined here to get the benefit of the said scheme and as such they should be given the benefit of the DACP Scheme.
However, the Supreme Court held that, “However, it is a settled principle of service jurisprudence that in the event of a conflict between a statement in an advertisement and service regulations, the latter shall prevail. In Malik Mazhar Sultan v. U. P. Public Service Commission, (2006) 9 SCC 507, a two judge bench of this Court clarified that an erroneous advertisement would not create a right in favour of applicants who act on such representation.”
The Supreme Court further referred to the case of Ashish Kumar v. State of Uttar Pradesh, (2018) 3 SCC 55 wherein the Supreme Court declined to give precedence to the erroneous qualifications prescribed in the advertisement against the relevant recruitment rules and also placed reliance on the case of Rajasthan Public Service Commission v. Chanan Ram, (1998) 4 SCC 202 wherein the Supreme Court held that an earlier advertisement becomes infructuous after amendment to the service rules.
The Hon’ble Supreme Court held that there will be no estoppel if the advocate had conceded a point and observed that,
“While this Court expresses its disapproval at the lack of proper instructions being tendered to the Counsel of the appellant, there can be no estoppel against a statute or regulations having a statutory effect. In Nedunuri Kameswaramma v. Sampati Subba Rao, AIR 1963 SC 884 a three-judge Bench of this Court decided a central point of the dispute in favour of a party, irrespective of the concession of its Counsel since it was on a point of law. Justice M Hidayatullah (as the learned Chief Justice then was), speaking on behalf of the Court observed:
“20. From the above analysis of the documents, it is quite clear that the documents on the side of the appellant established that this was a Karnikam service inam, and the action of the Zamindar in resuming it as such, which again has a presumption of correctness attaching to it, clearly established the appellant’s case. Much cannot be made of a concession by counsel that this was a Dharmilainam, in the trial court, because it was a concession on a point of law, and it was withdrawn. Indeed, the central point in the dispute was this, and the concession appears to us to be due to some mistake or possibly ignorance not binding on the client. We are thus of opinion that the decision of the two courts below which had concurrently held this to be jeroyti land after resumption of the Karnikam service inam, was correct in the circumstances of the case, and the High Court was not justified in reversing it.” (emphasis supplied)
The Supreme Court further relied upon the decision of a three judge bench in the case of Himalayan Coop. Group Housing Society v. Balwan Singh, (2015) 7 SCC 373, whereby the Supreme Court held that while generally admissions of fact by counsel are binding, neither the client nor the court is bound by the admissions as to matters of law or legal conclusions and also placed reliance on the case of Director of Elementary Education, Odisha v. Pramod Kumar Sahoo, (2019) 10 SCC 674 whereby the Supreme Court observed that a concession on a question of law concerning service rules would not bind the state for the reason that there cannot be any estoppel against law.
Accordingly, the Hon’ble Supreme Court, while deciding the instant case, observed and held as follows:
“26. The CAT and the High Court failed to notice the applicability of the ESIC Recruitment Regulations 2015 to the promotions of the Teaching Cadre in the appellant corporation. The ESIC Recruitment Regulations 2015 have precedence over the Office Memorandum dated 29 October 2008 which implemented the DACP Scheme in respect of officers of the Central Health Service under the Union Ministry of Health and Family Welfare. The concession by the Counsel of the appellant before the CAT does not stand in the way of the appellant supporting the correct position of law before this Court.
27. The contesting respondents did not challenge the ESIC Recruitment Regulations 2008 or the ESIC Recruitment Regulations 2015 before the CAT or the High Court. The argument on lack of prior approval as per Section 17(2) of the ESI Act is obviated by the preamble to the ESIC Recruitment Regulations 2015. The contesting respondents have only supported the applicability of the DACP Scheme to claim promotion as Associate Professor after two years of service. The advertisements for recruitment mentioning the DACP Scheme would have no effect since they were in contravention of the applicable recruitment regulations. Therefore, for the above reasons, we are of the view that the appeal should be allowed.
28. The appeal is accordingly allowed and the impugned judgement and order of the Division Bench of the Karnataka High Court dated 5 September 2019 is set aside. As a consequence, the revised seniority list of the Teaching Cadre at the appellant corporation should reflect the promotions of the contesting respondents in accordance with the ESIC Recruitment Regulations 2015 and not the DACP Scheme.”
Click here to read the judgment of the instant case titled The Employees’ State Insurance Corporation v. Union of India & Ors., Civil Appeal No. 152 of 2022 – https://main.sci.gov.in/supremecourt/2020/16825/16825_2020_34_1503_32837_Judgement_20-Jan-2022.pdf
[The said article is written by the author on the basis of media reports whereby the COVID – 19 cases in Delhi on 01.01.2022 was 2716 with a positivity rate of 3.64 percent and the views expressed are personal]
With the advent of the COVID – 19 in India and the lockdown being imposed by the Central Government in whole of India, the Hon’ble Supreme Court had suo moto (i.e. on its own accord) taken cognizance of the lockdown and extended the limitation period indefinitely until further orders.
The Hon’ble Supreme Court in Suo Moto Writ Petition (Civil) No. 3 of 2020 titled as “IN RE COGNIZANCE FOR EXTENSION OF LIMITATION” for perhaps first time in the history of Indian Jurisprudence (atleast as per the limited knowledge of the author) ordered that the period of limitation in all proceedings before the Courts / Tribunals across the Country (including the Supreme Court), irrespective of the limitation prescribed under the general law or Special laws, whether condonable or not shall stand extended w.e.f. from 15th March till further orders passed by the Supreme Court. The Hon’ble Supreme Court passed the said order dated 23.03.2020 in exercise of extra-ordinary power under Article 142 of the Constitution of India and also made the said order under Article 141 binding over all Courts / Tribunals and Authorities in India.
Various other orders were passed in the abovementioned matter as to how would limitation apply in certain types of cases like Cheque bouncing, Arbitration, etc. Fast forwarding to 08.03.2021, when the COVID cases in the Country had reduced substantially and it was presumed that the COVID period was almost over with the situation being under control, the Hon’ble Supreme Court in the captioned matter, while disposing of the Suo Moto Writ Petition (Civil), the Hon’ble Supreme Court held that the limitation in all matters would normally function as it was earlier from 15.03.2021 and if any remaining period of limitation was left, the said remaining period of limitation would run normally from 15.03.2021 (after excluding the period from 15.03.2020 to 14.03.2021). In certain types of matters where the limitation period had expired between the period of 15.03.2020 to 14.03.2021, a grace period over 90 days was given in all matters, notwithstanding the actual balance of limitation remaining.
However, subsequently, something unfortunate happened, which was not at all predicted by anyone. There was suddenly a huge blast of COVID – 19 cases in the month of April 2021 which was called as the Second wave of COVID in India. Resultantly, a Miscellaneous Application was filed before the Hon’ble Supreme Court in the abovementioned matter bearing No. 665 of 2021. Accordingly, the Supreme Court Advocates-on-Record Association (SCAORA) approached the Supreme Court for restoring the first order dated 23.03.2020. The Supreme Court vide order dated 27.04.2021 was pleased to allow the Misc. Application and looking into the sudden surge of COVID cases in the Country observed that the order 23.03.2020 would be extended till further orders. It was also clarified that the period from 14.03.2021 was to be excluded for computing the limitation period.
Thereafter, a couple of months after the Second wave was over and number of COVID cases had reduced substantially, the Hon’ble Supreme Court on 23.09.2021 while disposing of the Misc. Application ordered that the limitation period would be in force w.e.f. 03.10.2021, however a grace period of 90 days was given.
Resultantly, the 90 days period from 03.10.2021 expired on 01.01.2022. 01.01.2022 and 02.01.2022 being a Saturday and Sunday respectively, as per the Limitation Act, the limitation getting over on a holiday of the Court, the limitation would expire on the next day after the Court reopens, i.e. on 03.01.2022.
A lot has changed in the past 3 months. A new virus Omicron was detected first time on 24.11.2021. Since then it has spread almost all over the world. Suddenly, the graph of COVID – 19 infections in India has also taken a steep upward curve. Suddenly in the past 10 days, there has been a 3000% jump (30 times) in the COVID cases of Delhi. The doubling it happening at a very fast pace. All media reports are suggesting that this is the beginning of the third wave. We should not forget the trauma and the massive number of casualties in the second wave. There was desperation all over for medicines, for injections, for beds, for ICU beds, for oxygen, for plasma, for what not!! (The author lost his beloved father, the founder – editor of Tilakmarg.com and the author along with his mother were both in the ICU for 2 months and 1.5 months respectively, with the author still being on oxygen support, for almost the past 7-8 months now).
Oh lord! The deadly Corona Virus is back. Some say it is more dangerous, some say that it may not be as lethal. No one knows what is going on in the world.
The timing of the third wave (or the advent of the third wave) of COVID – 19 virus, is disastrous for Advocates, their clerks and the judiciary. The limitation period including the 90 days grace period is expiring on 03.01.2022. The author himself in his office has got almost a dozen filings to be done till tomorrow. Despite most of the Courts have shifted to the virtual hearing mode, it is going to be very difficult for the Advocates and the litigants to cope up with the deadline. Once again almost all the offices have switched to work from home. Those who are still functioning physically are the ones who are having very small teams or may soon switch to work from home once the cases further shoot up. Already the Delhi Government has allowed offices to work with only 50% strength.
But amongst all this, here we are ready for filing dozens of matters tomorrow. For filing a matter, that too physically, there are huge amounts of risks involved. The print outs are taken by the clerks, Affidavit of the client is attested and notarized by a Notary public physically in the presence of the Clerk and / or the Advocate and also of the client / litigant. Then the master set that is prepared is sent to the photocopier for preparing multiple sets for filing. Thereafter the clerk (sometimes the Advocate) visits the registry of the concerned court where the case is to be filed and then thereafter after standing in a (usually) long queue at the filing counter, is able to file the matter.
The story does not end here, usually there are also some or the other defects in the filing (depending on the court where the filing is done). The clerk and / or the advocate then goes to the registry of the court for curing the defects and its only then that the matter is marked and checked finally before getting listed. Obviously, the above is not the hard and fast process for filing a matter before a court and there can be some minor variations depending on where the case is being filed. But, in the entire process, the file has the fingerprints of almost a dozen different persons coming from different corners of the city, some of whom may or may not be maintaining social distancing and may be a vulnerable person to be attacked by the virus.
Certainly, the above is only possible if the Advocate has managed to get inputs / documents / affidavit, etc. from the clients. In various cases, a lot of the litigants / clients are infected with the COVID – 19. Thus, they cannot send any documents / inputs and neither can come physically for getting the affidavit notarized. It is noteworthy, that even otherwise, if the litigant is in a serious condition, then obviously there is no question of any filing.
In some cases, the advocates are getting infected. In such a situation, the litigant / client will suffer as the advocate will neither be able to go himself, nor will be in a position to depute someone to file the matter before the Court. Hence, it is going to be very difficult for the Judiciary, Advocates (officers of the Court) and the para-legal staff both of the Court and of the law offices to effectively adhere to the limitation period.
The author is afraid that it should not be that in order to adhere to the limitation period and get all pending matters filed till tomorrow i.e. 03.01.2022, the Advocates, clerks and court staff are not the first ones to get infected. The author himself was most probably infected during the last week of March, 2021 while visiting the Courts and / or some personal commitments.
Therefore, in light of the above, the Hon’ble Supreme Court may in its all wisdom extend the limitation period for the forthcoming period and some relaxation may be given in the said limitation period. It is noteworthy that the situation of COVID – 19 cases is not the same as it is today and no harm would be caused even if the limitation period is extended for the next 4 weeks, just as a precautionary measure to observe where does the COVID virus and its situation take us.
Needless to mention herein that the judiciary, the court staff and the Advocates will nonetheless be rushing to Courts tomorrow (despite most courts being virtual) for filing and will perform their solemn duty as ‘OFFICERS OF THE COURT”.
Click here to read the order dated 23.03.2020 of the Hon’ble Supreme Court whereby the limitation was first extended until further orders.
Click here to read the order dated 08.03.2021 of the Hon’ble Supreme Court whereby the operation of the order dated 23.03.2020 was stayed and the limitation was to normally apply from 15.03.2021, with a grace period of 90 days.
Click here to read the order dated 27.04.2021 of the Hon’ble Supreme Court whereby the limitation period was extended until further orders as per order dated 23.03.2020.
Click here to read the order dated 23.09.2021 of the Hon’ble Supreme Court whereby the operation of order dated 27.04.2021 was stayed and the limitation period was to normally run from 03.10.2021 with a grace period of 90 days.
While the debate for reducing the vacations in courts and increasing the working hours coupled with filing up all the vacancies for faster dispute resolution and speedier adjudication, the Madhya Pradesh High Court has once again spearheaded and been a leader whereby the MP HC has increased its working hours by half an hour for everyday.
Earlier, the timings for the regular functioning of the MP High Court were from 10:30 AM to 4:30 PM. The lunch timings were from 1:30 PM to 2:30 PM. Now the timings have been changed from 10:15 PM to 4:30 PM and also the timings for the lunch have been reduced from one hour to 45 minutes that is from 1:30 PM to 2:15 PM.
Doing this every day extra half an hour would be dedicated by the Hon’ble Madhya Pradesh High Court Which would enable the High Court to dispose of larger number of cases and would give it greater time for hearing the cases. An appropriate amendment has been made in the Madhya Pradesh High Court Rules, 2008 and has also been published in the Madhya Pradesh Gazette on 31.12.2021 and as such the revised timings of the Court would be in effect from 03.01.2022.
It may be pertinent to mention herein that recently the Madhya Pradesh High Court Bar Association had passed a resolution to increasing the working timings by 30 minutes.
We should keep in mind that it was the MP High Court which had spearheaded in the e-filing process under the leadership of the then Chief Justice of MP HC Hon’ble Mr. Justice A.M. Khanwilkar.
Click here to read the gazette notification for the amendment of the High Court Rules.
