Op EdsOP. ED.

Life has come full circle for me.  When I wrote my book “How Gourango Lost His O”, published by EBC, I had made public my spat with my dear friend Sumeet Malik for refusing to publish an article I had penned on how the Supreme Court was unravelling the edifice of labour laws.  Who would have thought that a day would come when I would be invited to write a piece for the SCC Blog and that too on the auspicious occasion of India’s 75th Anniversary.  So here, I write 75 random thoughts about the Bar and the Bench to commemorate the 75 years that India has enjoyed her freedom.

 

  1. Out-dated Modes of Address: ‘Lordship’ is as colonial as it gets. Justice Muralidhar and Justice Bhat made a request to abjure from such forms of address, so did the Bar Council of India.  Nothing happened!
  2. Coats, Gowns and Bands: The legal couture is also so not Indian climate friendly.
  3. Wigs and Maces: Calcutta High Court has both and Madras only has the latter.  Time to pack these up and ship them off to London?
  4. Court Orderlies dressed in Raj Regalia: What’s going on? Do we really need to re-affirm the majesty of law in the post pandemic age by having a fellow in fancy dress costume come and hold back the chair as His Lordship would grace his seat? The VC hearings were such a breath of fresh air.  The Judge would simply switch on his screen and said ‘Good Morning’!
  5. Archaic court language: Even the court staff seemed to have been trained in the colonial lingo.  In a normal office, you would be told that “Boss wants to see you”.  In court, the staff will call you and whisper deferentially “His Lordship has desired your audience” or something to that effect.
  6. The Colour Black: I love the colour and besides ‘Black’ is the best Amitabh film.  It is said that the Inns of Court had resolved to mourn Queen Mary (some say James I) and hence, the lawyers dressed themselves up in black.  Some bloke forgot to rescind the notification.
  7. Bar Exam: Thank God! I missed it, but hey, I had something worse and it was called “Apprenticeship”.  Introduced by the Bar Council in 1996 at Ram Jethmalani’s persistence, we had to dress up like a waiter in black coat and tie for a year and just hang around. We did not even have the right to wear a coat or a band or even seek a pass-over or an adjournment.
  8. Bedevilling: Making juniors work for almost free.  I can’t think of any profession that is so exploitative.
  9. Character certificate for enrolment: For most young lawyers with no father or god-father in the profession, the entry into the Bar itself starts with a lie.  Imagine a small town outsider in a metro like Delhi or Bombay getting so many established lawyers to sign off on her enrolment form certifying that they have known her for years.
  10. CLAT: I certainly will not pass CLAT if I attempted today. Everything is so cut throat in our country. Thank God! I chose law in times when it was also the last resort of the scoundrel.
  11. NLUs: I get it that every State wants an NLU, pretty much like IIMs and IIT but seriously, some quality control should be there? In any case, with its fancy salaries, Jindal seems to be attracting all happening teachers with impressive CVs.
  12. NLU-local law college: Imagine how difficult it is becoming for Non-NLU students to secure placements and jobs. Non-NLU wale must try how we at NLS had handled the “Harvard” Challenge. When a visiting Professor from there said “NLS was the Harvard of the East”, we corrected him saying “Harvard was the NLS of the West”.
  13. No. 1 thing they don’t teach in Law School: How to fib and get adjournments.
  14. Corona related adjournments: “Milord, I am in a weak network area”, “Milord, the counsel is feeling feverish”
  15. No. 2 thing they don’t teach in Law School: How to Pfaff and get clients.
  16. No. 3 thing they don’t teach in Law School: How to make yourself a successful lawyer and perhaps even a future judge by spending most of the time in the Court Canteen.
  17. No. 4 thing they don’t teach in Law School: How to network and self promote.
  18. No. 5 thing they don’t teach in Law School: How to negotiate fees with clients and briefing lawyers.
  19. No. 6 thing they don’t teach in Law School: How to recover such negotiated fees when the case is over.
  20. No. 7 thing they don’t teach in Law School: How to read a client and a judge and to tailor your response accordingly.
  21. Canteen: Bun Samosa. If you are not from the Delhi High Court you will not get the emotion this term signifies.
  22. The Display Board: The most watched façade of the Court.
  23. Destination Bus: If you have not been on this bus then sorry you have not struggled.
  24. The Saket Mall: If you are an occasional visitor to Delhi’s swanky Saket District Court, you cannot miss the Mall next door. I know many, myself included, who would always try and include a Mall visit post court. In contrast if you visit sweet Tis Hazari, Rohini or Karkardooma District Courts, there is no fancy mall by its side to tempt you to linger your stay by even a minute after your job is done!
  25. Court street food: Calcutta High Court beats all others hollow in this department.  The range and taste of the street food on sale around the court complex for lawyers and court staff is mind boggling.
  26. Mad Litigant: Every court has one.  The Calcutta High Court was famous for a lady litigant walking around aimlessly as she had lost her balance just fighting her cases.
  27. Mad Lawyer: The lawyer version of the above.
  28. Law Bookshop: Every court has attached to it one or two.  Something one starts frequenting lesser and lesser as one becomes bigger and bigger in practice.  Law Students and lawyers can be seen frequenting and haggling with the old hands for greater discounts.
  29. Andhra Bhavan: The canteen extension for the Delhi High Court lawyers. The Nobel prize for the fellow who manages the crowd there is long overdue.
  30. Triveni Canteen: The canteen extension for the Supreme Court.  The home cooked feel of the food is unmissable.  The jostle for space and a quick bite to return to the Court by 2 is something many lawyers would understand.
  31. Café Lota: The larger bench of Triveni (run now by the same company). Many lawyers will swear by their Palak Patta Chaat and Bhapa Doi Cheesecake!
  32. Bengali Market: The Chole Bhature, Golgappa and Chaat-only the non-health conscious lawyers.
  33. Khan Market: The favourite haunt of Bhagwan Das Road as well as Sher Shah Road.  With Corporates moving to Gurugram and Noida, this place has been taken over by lawyers.
  34. China Fare: The ratio decidendi of Khan Market. The number of lawyers stuffed into this narrow joint is what fables are made of.
  35. Legal Awards: Have always longed for an award ever since my college medals were forfeited for misbehavior.  “Best 40 lawyers under 40”, “Best Boutique Law Firm”, “Best GC”, the awards are exotic and every year the “juries” which pick these awards get more and more interesting.  Organising legal awards is big business now.  My totally unrelated question is -are clients really that stupid?
  36. Coffee Table Book on Lawyers: The previous thought at Pro Max Level!
  37. Firm Offsites: They are so much fun.  The drinking and merry making with the mandatory pep talk sessions thrown in.  The sites where so many legal affairs happen, some extra-marital, blossom!
  38. Litigation Senior Offsites: What are they?
  39. Internships: Do we really learn anything during a one month internship or is it all about that certificate and addition to the CV?
  40. Virtual Internships: What are they?
  41. Court Vacations: The only saving grace of a litigation practice.  Needs to be zealously safeguarded for all the talk of “Mounting arrears”, “English judges went back to England” and “just like school children”.  The first thing that I do when a new calendar is issued is check out the court holidays and map out the holidays.  The summer, Durga Puja and winter breaks are well known.  The real delight are the sudden long breaks like this years Independence Day week long holiday that the Delhi High Court has given itself!
  42. Local Holidays: Means nothing. Just a term used by the Court to declare an in between working day also a holiday so that they can be clubbed with the actual holidays to make the break longer!
  43. The Band and Gown Shop: Think of those poor people next time you fuss about the uniform. In the Bombay High Court there is a poor lady who sells nice custom made bands and “butter silk” gowns.
  44. Jhabvala, Kunji, Dukki (in CLC) et al: The cheat-sheets which have helped many a lawyer steer through law school. Yet when they become lawyers in their offices the backdrop is adorned by a complete SCC set and the dukkis (the real source of her gyan) fall by the way side.  I assiduously avoided these until International Law in Fourth Year.  That is when I discovered that the notes I had prepared after sifting through ten books in the library were identical to the Jhabvala which had cogged those same books.  What a waste of four years no?
  45. The Court Diary: The digital millennial will not relate to this.  Remember how excited we would be each year getting to fill a new court diary. I always wondered why they carried the retirement dates of judges.  For many lawyers the CPC, IPC , Evidence, Stamp Act and Limitation Act were what the Universal’s diary would extract!
  46. Welfare Stamp: Ask any young lawyer or a court clerk.  They will associate it with spitting. I am yet to come across someone who will affix this will glue instead of human saliva!
  47. The Envelope: How a brief is maintained varies from court to court. Calcutta High Court lawyers simply fold the papers and tie them up.  Delhi High Court has the boring file system.  For the Supreme Court lawyers it is the paperbook.  Chandigarh rocks and beats all.  They have the envelope/packet system where each case has a packet in which all the papers are stored.
  48. The Fresh and Honest Coffee machine: At least one installation in court that can boldly proclaim its freshness and honesty.
  49. The Court loo: Every CJI, however briefly he may occupy the top seat, seeks to leave behind his legacy on the institution.  One did so by renovating the court loos.  The joke has been that this is the only room in the building where “relief” is guaranteed.
  50. The Court Creche: Need more. Sadly, it is yet to gain more demand among women lawyers.
  51. The Parking lot attendant: The most under-appreciated cog in the justice delivery system.  Ace ‘space manager’, can put professionals to shame and imagine the stress of managing the cars of lawyers who would blow their top at the slightest scratch.
  52. Physical Cause List Delivery BoyExtinct.
  53. Justdial: Its irritating that despite me refusing to sign up to Justdial it seems my number was carried.  Many lawyers sign up for this. Can’t blame the poor chaps, with the ban on advertisements by lawyers and all!
  54. VC Hearings: What a beauty. I was a late convert but loved how it made life so easy.  One day I had appeared in the Supreme Court, two High Courts and the Central Administrative Tribunal, all sitting in my Delhi Office.
  55. VC Mishaps: We heard about, the kissies, the red undees, shaving in a vest, the hookah and what not. My personal worst was appearing before a Single Judge while the camera was on before the DB.  I apologized and Justice Hima Kohli, then in the Delhi High Court, was most gracious to forgive me.
  56. Court Staff: During Covid times these were the real rockstars who kept the system going.  The silent gladiators of the God of Justice!
  57. Webinars: The fad went away faster than Covid.
  58. Web-senior conferences: Here to stay forever!
  59. Webex-Cisco: The best link I found during the pandemic. The ones used by the Supreme Court and Orissa High Court were terrible. Specially where we did not have control over either the mic or the screen and all power was wielded by the mysterious “Control Room”.
  60. Live streaming: Finally, Covid ensured that High Courts like Gujarat, Patna and Madhya Pradesh live-streamed court proceedings.  The effect was electrifying.  The non-litigating public finally got to witness first-hand what lawyers and judges have to put up with. Also created social media heroes out of rockstar judges such as Justice Ashutosh Kumar of the Patna High Court.
  61. Live tweeting: Twitter has revolutionized court proceedings. Live tweeting, in cases where live streaming is yet to penetrate has brought court action real time to one and all.  Even High Court judges have followed live tweeting of important proceedings before the Top Court.  The jury is still out on this given that stray comments from the bar and the bench and queries from the bench have led to trending and trolling on social media without understanding that this is a normal process of ‘justicing’.
  62. Online Law Portals: The real heroes of the Digital Age! Judges refer to reports carried real time on such portals such as Live Law, Bar and the Bench and Leaflet.  The SCC has also invited its digital avatar!
  63. Online Case Search: Imagine us fossils from a pre-computer age! However, nothing teaches real legal research skills like the good old fashioned way!
  64. Regular/Leave Granted Matters: There should be a rule that any judge who issues rule will have the hear the case even if the roster is changed.
  65. Time cap on hearing: If the SCOTUS caps at 30 mins a side, why cant we?
  66. Extension of Court hours: No way!  Lawyers and judges actually prepare for the next day when they are not sitting in court.
  67. Bar Elections: I have never truly understood why people want to run for Bar Association offices.  I get the power and recognition angle but imagine the stress of having to be nice to all lawyers all the time.
  68. Bar Campaigning: My survival matter is say:  “Of course you have my vote” to all.
  69. Legal Treatises: When we were young we would save up and pay an arm and a leg for great legal works like the Commonwealth Law Lecture Series, the Constituent Assembly Debates, Shiva Rao, Seervai, et al and that too many of the second hand.  There would be law book sellers who would be visiting the office of seniors and pushing such books even to tempted struggling juniors like us.
  70. Lawyers-Judges Cricket Matches: Fixed? Na Kidding!
  71. Bar Functions: Free food? That’s being mean. However seriously have you seen how many lawyers line up at the snacks counter?  I know I shall get into trouble for this one.
  72. Bar Candidates and their Agenda for young lawyers: None.
  73. Minimum Wages for Lawyers?: Perhaps!
  74. Maximum cap for Senior Advocates?: Never!
  75. The Gourango Feeling! And you thought, I would let you go without promoting HGLHO? Since May, so many young lawyers have read and shared.  They in fact celebrated “Gourango” and many taking the trouble to take the book to distant shores and clicking stunning photographs.  It really overwhelming the kind of love our Gourango has received.  Thank you and Jai Hind!

 


Sanjoy Ghose, Senior Advocate, Delhi High Court

Op EdsOP. ED.

Introduction

After the independence of India from the British colonial rule, it was observed that Parliament by itself cannot legislate on each and every facet of certain matters nor can it directly entrust the power to the executive to enforce the same. To fill in these gaps delegation of authority and power became a necessity.

The six decades after independence have played a major role in the rapid expansion and smooth functioning of administrative activities.

The executive is given authority by the statute to use this discretion and act accordingly. An extensive power is given to the executive to choose a path of operation from numerous possible courses of action and select the best depending upon the situation. Power of discretion ensures that the administrative authority has sufficient independence and liberty in carrying out its activities.

However, to regulate the power and to ensure that this discretion is not misused, the law has established scrutiny to make certain that this discretionary power is exercised according to the guidelines of the statute.

Abuse of discretion

Power of discretion given to the administrative authority ensures that they get adequate independence and liberty in carrying out their activities. However, this discretion is often misused. Abuse of power is one of the classic concepts in administrative law. According to the classical approach, this concept is based on the assumption that the scope of discretion of public administration bodies is defined, besides competence norms, procedural and legal grounds for action, also by the objective for which the discretionary powers were granted.[1]

The abuse of discretion is done in the following manner. The administrative authority may not duly exercise the power and authority entrusted to it (sub-delegation, acting mechanically, imposing fetters on discretion, acting under dictation, non-application of mind, power coupled with duty) or they may exercise the power and authority under the coercion of another body, which may have improper motives (like abuse of power, mala fides, improper purpose, irrelevant considerations, leaving out relevant consideration, colourable exercise of power, judicial discretion, unreasonableness). This leads to biases and incorrect usage  of power delegated to such administrative authority.

The power of discretion given to the administrative authorities is a complex process. A Government may not be able to function properly without the exercise of some discretion by the officials. It is impossible to lay down the rules for every plausible aspect. This has led to conflicts as to whether there should be absolute discretion of administrative authorities or whether it should be subject to reasonable control. Giving discretionary power to the administrative authority is not wrong however, people often misuse it.

Some of the abuses of administrative discretion are as follows:

Mala fides

Mala fide is a broad term and means something done with bad intent, corrupt motive, or not in good faith. An administrative action must  be without mala fides. The burden of proof lies on the person who alleges mala fides. Malice is of two kinds i.e. malice in law and malice in fact. Malice in fact includes personal ill will, corrupt motive, spite, vengeance, and personal benefit to the authority itself.

One such situation was seen in S. Pratap Singh v. State of Punjab.[2] In this case, the appellant was a civil surgeon employed under the State Government. He was initially accorded leave in advance of his retirement but in due course of time it was cancelled, also he was given a suspension order and disciplinary action was initiated against him on the charge that he had agreed to receive a bribe of Rs 16 from some patients before going on leave. It was alleged by the appellant that the disciplinary proceedings against him were started in the wake of the personal vendetta of Pratap Singh who was then the Chief Minister of Punjab as the doctor had declined to surrender to the illicit demands of the Chief Minister and members of his family. The Supreme Court accepted the contention, held that such exercise of power is mala fide, and quashed the order.

In G. Sadanandan v. State of Kerela[3], the petitioner was a businessman dealing in the sale of wholesale kerosene oil. He was detained under Rule 30(1)(b) of the Defence of India Rules, 1962 on the ground that he was operating without a licence and dealing in kerosene illegally. The petitioner challenged the validity of the order of detention by and large on the pretext that it is mala fide. It has been passed as a consequence of malevolent and erroneous reports, devised at the order of the Deputy Superintendent of Police (DSP). The alleged reason of the Deputy Superintendent in securing the preparation of these incorrect reports was to get rid of the petitioner from the domain of wholesale kerosene oil business in Trivandrum, Kerala, so that his family members  could obtain the dealership. The Deputy Superintendent did not even file a counter-affidavit to controvert the allegations made against him by the appellant. Due to these considerations, the Supreme Court declared the order of detention to be clearly and plainly mala fide.

Rowjee  v   State   of   Andhra  Pradesh,   the   Chief   Minister undertook a proposal of the State Government to nationalize certain bus routes. The Supreme Court quashed the Chief Minister’s decision. The court found that the Chief Minister had mala fide because the decision was motivated by the Chief Minister sense of vengeance against his political opponents Rowjee  v   State   of   Andhra  Pradesh,   the   Chief   Minister undertook a proposal of the State Government to nationalize certain bus routes. The Supreme Court quashed the Chief Minister’s decision. The court found that the Chief Minister had mala fide because the decision was motivated by the Chief Minister sense of vengeance against his political opponents Rowjee  v   State   of   Andhra  Pradesh,   the   Chief   Minister undertook a proposal of the State Government to nationalize certain bus routes. The Supreme Court quashed the Chief Minister’s decision. The court found that the Chief Minister had mala fide because the decision was motivated by the Chief Minister sense of vengeance against his political opponents

Similarly, in C.S. Rowjee v. State of A.P.[4], the Chief Minister of Andhra Pradesh took on a proposal of the State Government to nationalise certain bus routes. It was purported that the Chief Minister had acted with mala fide intentions while giving the instructions. The allegation against him was that the specific route way had been chosen for the reason that he sought to take revenge from the private operators on those routes because they were his political opponents. Considering the facts of the case, the Supreme Court held that the Chief Minister had mala fide intention.

Rowjee  v   State   of   Andhra  Pradesh,   the   Chief   Minister undertook a proposal of the State Government to nationalize certain bus routes. The Supreme Court quashed the Chief Minister’s decision. The court found that the Chief Minister had mala fide because the decision was motivated by the Chief Minister sense of vengeance against his political opponents Rowjee  v   State   of   Andhra  Pradesh,   the   Chief   Minister undertook a proposal of the State Government to nationalize certain bus routes. The Supreme Court quashed the Chief Minister’s decision. The court found that the Chief Minister had mala fide because the decision was motivated by the Chief Minister sense of vengeance against his political opponents

Improper purpose

A statute confers discretionary powers upon an administrative authority for one purpose and if it is used for some purpose other than the one that was decided, it will not be regarded as a valid exercise of the powers and the same may be rescinded by declaring it as ultra vires. Hence, we can see that the power of discretion is not unlimited and is constricted to the objective for which the law was enacted.

Therefore, where the power is exercised for a purpose different from that specified in the statute, the court will declare the exercise of the power as ultra vires. Where the land is acquired by the Municipal Corporation ostensibly for a public purpose but in fact to enable another body to acquire it through the medium of corporation for some other purpose, the acquisition order would be quashed by the court. Similarly, where the Municipal Corporation refused to approve the construction of buildings with a view to pressurise the petitioner to provide drainage for the adjoining building, and where the construction scheme of the petitioner does not contravene any rule.

“Improper purpose” is broader than mala fides, for whereas the latter denotes a personal spite or malice, the former may have no such element. The action of an authority may be motivated by some public interest (as distinguished from private interest), but it may be different from what is contemplated by the statute under which the action has been taken. Here it is not so much relevant to assess whether the authority is acting in good faith or bad faith. What is relevant is to assess whether the purpose in view is one sanctioned by the statute which confers power on the authority concerned.[5]

However, with time as the authorities were accorded discretion to increase the scope of their functioning, the cases of exercise of this discretion for improper purposes started increasing tremendously. In order to curb this problem and restrict this unconstrained power, the  courts can check the primal target of the statute in endowing the discretionary power. The rationale behind an administrative action should be in conformation with the legal objective.

In S.R. Venkataraman v. Union of India[6], the appellant, was a Central Government officer. She was compulsorily retired from service in “public interest” [under Fundamental Rule 56(j)(i)] on her attaining the age of 50 years. Her contention was that there was non-application of mind by the Government as they did not take into consideration her service record and that her retirement was based on extraneous circumstances, outside the extent of the Act. This was validated from the fact that there was not a thing in her service record to rationalise premature retirement. The Supreme Court revoked the order of the Government and held that in a case where discretionary power is exercised for an unauthorised purpose, the principles of good faith or bad faith stand irrelevant. An administrative order formulated on the basis of non-existent reasons or facts should be deemed to be contaminated with an abuse of power.

Irrelevant or relevant considerations

Discretionary power allows an authority to choose from alternative actions and select the most appropriate one. However, this discretionary power should always be exercised on relevant grounds and not on extraneous grounds, it should not be influenced by considerations that cannot be lawfully taken into account, in other words, all discretionary work must be in conformance to the considerations mentioned in the parent statute. If no such considerations are laid down in the statute, then power is to be exercised on the basis of the considerations relevant to the purpose for which the statute was conferred. If the authority uses this power for irrelevant cases, then the administrative action would be considered ultra vires and will be quashed.

To determine whether the considerations are relevant or irrelevant, one has to infer from the general terms of the statute.

In Barium Chemicals Ltd. v. Company Law Board[7], the Company Law Board exercising its power under Section 237 of the Companies Act, 1956[8] can order an investigation into the matters of the company if such affairs are carried out with a motive to defraud creditors or if the persons involved in the management are guilty of fraud.

Exercising this power an investigation was ordered into the affairs of Barium Chemicals Ltd. for the reason that the company was suffering continuous losses as a consequence of faulty planning and many eminent persons resigning from the Board of Directors. This order was challenged. The court quashed the order of the Board stating that these grounds were immaterial and irrelevant to the objective enshrined in the law. It did not comply with the direction of Section 236[9].

In Rohtas Industries v. S.D. Agarwal[10],  an investigation was ordered into the affairs of a firm on the grounds of misconduct by one of the leading directors. There were several complaints against him. Also shares of another company held by it, were being sold at an inadequate consideration. About the former, the Court was of the view that it was not an admissible situation. About the other ground, the Court found no evidence of the shares having been sold for insufficient remuneration. The order was revoked as these grounds were held to be insubstantial in order to solicit an inquiry under Section 237 of the Companies Act, 1956.

Leaving out relevant considerations

While exercising its discretionary power if an administrative authority turns a blind eye to relevant considerations, its acts will be considered null and void. An authority should always take heed of the considerations which  law lays down expressly or impliedly. In case the law does not lay down any considerations but grants power in a general way, the court might imply some appropriate considerations for the exercise of the power and rescind a directive since the officials concerned did not take these into account.

In Ranjit Singh v. Union of India[11], the allotted quota for production of guns by a licensed manufacturer was lowered from 30 to 10 guns per month. This order was challenged on the ground that the decree was not based on relevant considerations but on immaterial consideration. It was held by the Court that the order was out of place as the Government had not taken into account material considerations like the quality of guns produced, economic viability of the unit, capacity of the factory, etc. in making the order. It was observed by the Court that any curtailment of quota should be based on reason and relevance. If all the material factors are not considered, the decision is corrupt.

Colourable exercise of power

The courts often use the idiom “colourable exercise of power” to denounce an abuse of discretion. Colourable exercise signify that under the “appearance” of power accorded for one objective, the authority is trying to achieve something else which it is not permitted to do under the statute. Such acts  of the  authority shall be null and unlawful.

In Somawanti v. State of Punjab,[12]  the Supreme Court in relation to acquisition of land under the Land Acquisition Act[13] expressed as follows:

Now whether in a particular case the purpose for which land is needed is a public purpose or not is for the State Government to be satisfied about subject to one exception. The exception is that if there is a colourable exercise of power the declaration will be open to challenge at the instance of the aggrieved party. If it appears that what the Government is satisfied about is not a public but a private purpose or no purpose at all action on the Government would be colourable as not being relatable to the power conferred upon it by the Act and its declaration will be a nullity.

The above extract would show that the term “colourable exercise of power” is used in the sense that the exercise of power is unlawful, but it has been given the illusion of legitimacy.

Unreasonableness

                The law requires the authority to act fairly and rationally. The term “unreasonableness” does not provide a separate ground of judicial control  other than the grounds already mentioned. The term also comprises those cases where either the authority has acted in accordance with law but in the wrong manner or in accordance with law and in the right manner but on the wrong grounds. The courts usually do not exercise such extensive power to interfere in the exercise of administrative discretion. However, the courts do interfere with the order where it has been passed  irrationally.

Proportionality

To keep a lid on the exercise of administrative discretion judicial control has been formulated. This assures that unrestricted power is not given to the authorities to allow erratic decision-making. The rule of proportionality is one such major rule which make sure that there is a connection between the goal that must be achieved, and the method undertaken to enable so.

This tool was applied in Union of India v. Ranjit Thakur[14]. In this case Signalman Ranjit Thakur did not adhere to the lawful order of his senior officer by refusing to eat food offered to him. As a result of this court-martial proceedings were instituted and sentence of rigorous imprisonment of one year was levied on him. Also, he was expelled from service, with the additional disqualification that he would be incompetent for future employment. The said direction was called into question on the ground that the penalty was flagrantly inordinate. The Supreme Court implemented the doctrine of proportionality while revoking the punishment of expulsion from employment and sentence of incarceration awarded by the court martial under the Army Act[15].

Conclusion

With more and more discretion being given to the administrative authorities to take action without intervention from other bodies has led to increased independence of the authorities to choose between the different approaches and select the best alternative. However, to keep a check on this wide freedom, the courts in India have developed various controls over discretionary action which ensures that this power is exercised within the limits prescribed by law, is just and fair, and is based on pertinent grounds and good faith.

From the above cases we see that the abuse of administrative discretion takes place in a number of forms, for example, acting on mala fide basis, disregarding relevant considerations and pursuing irrelevant ones, misapprehending the power granted by the statute, etc.

The authorities must have an established extent of liberty to carry out its activities because excessive liberty accorded to the administration will always result in violation of the fundamental rights of an individual. The only method to guarantee individual freedom is judicial review of public administration. Hence, it is a matter of controversy as to what degree the public administration is susceptible to judicial review while performing the tasks assigned.

The work of public administration is to ensure proper execution of the administrative policy whereas the function of the  Administrative Tribunals is to assess whether this execution is exercised correctly under the provisions of law. The separation of these functions limits the scope of judicial review. The scope is limited to the basis of legality and the court’s function to directly rectify the administrative decision is relinquished. This separation of functions does not allow the court to act as a replacement to the administrative bodies.

For the proper exercise of discretion of power,  constructive framework was developed by the courts. The judicial control process of administrative discretion can be done by either establishing control at the stage of delegation of discretion or by establishing control at the stage when the discretion is exercised.

Freedom granted to the administrative authorities to make a decision on certain matters by using their best judgment opposed with the extensive judicial control represents the equilibrium maintained in Indian jurisprudence. On one side of this equilibrium lies unconstrained power and on the other,  judicial supremacy. Mid way is possibly the finest place to be.


*Second year student, BBA LLB, Vivekananda Institute of Professional Studies, New Delhi. Author can be reached at <barkhatandon09@gmail.com.

[1]Jerzy Parchomiuk, Abuse of Discretionary Powers in Administrative Law. Evolution of the Judicial Review Models: from “Administrative Morality” to the Principle of Proportionality, Vol. 3, MUNI Journals, 2018.

[2]AIR 1964 SC 72.

[3]1966 SCC OnLine SC 2.

AIR 1964 SC 962.

[5]Laksheyender Kumar, Abuse of Administrative Discretion, legalservicesindia.com, 21-6-2021, <http://www.legalservicesindia.com/article/756/Abuse-of-Administrative-Discretion.html>.

[6](1979) 2SCC 491.

[7]AIR 1967 SC 295.

[8]Companies Act, 1956, S. 237.

[9]Companies Act, 1956, S. 236.

[10](1969) 1 SCC 325.

[11](1980) 4 SCC 311.

[12]AIR 1963 SC 151, para 36.

[13]Land Acquisition Act, 1894.

[14] (1987) 4 SCC 611

[15]Army Act, 1950.

Op EdsOP. ED.

The first courtroom scene in the recent Amazon prime series — “Guilty Minds” — shows a Supreme Court setting —  a briefing counsel looks over her shoulder nervously to wait for the arguing counsel to turn up, a young supremely confident arguing counsel shows up and opposes vociferously, and the Judges pass an order even as he tries his level best to protest. The scene mirrors reality, as close as possible, of a usual Supreme Court miscellaneous day hearing. It was a refreshing change from the otherwise Hindi movie courtroom scenes I have seen growing up, such as, a villain gets hanged in courtroom (Shahenshah), or the hero opening an exhibit bottle and drinking it to prove that it is not poison (Meri Jung) or the most famous of all — tareek par tareek (Damini). The first courtroom scene, thus, got me interested as a lawyer.

At certain levels, the series reflects realities of the courtrooms and litigation practice; a courtroom facing power outage, Supreme Court precincts, immaculately trimmed lawyers of a big law firm, allegations against sitting Judge, parties trying everything possible to get a verdict, an experienced lawyer browbeating a witness, a young Harvard educated third generation lawyer being made a partner even as an associate having worked for year looks on in dismay among others and so on.

However, the reason for this write up is the depiction of the trials and preparation by the lawyers, which are far from reality.

In almost all the episodes, the lawyers are taken by surprise by the facts, which emerge once the court proceedings begin. In the process, once the so-called trial has started, the lawyers challenge themselves in gathering evidence and further information. Much talented and hardworking, as the lawyers shown in the series may be, all of them are scuttering around looking for answers after the trial begins. A client or a young lawyer can easily assume that it is normal to keep on looking for answers even after your case is before the court.

This, to my mind, is the biggest shortcoming of the series. To any layman or a fresh lawyer, such an approach is misleading and better ignored. A good litigator is supposed to gather and be aware of all the facts relating to the case. It is usual that the clients do not provide full information in the first instance whether intentionally or inadvertently. However, it is the job of a good lawyer to extract all the information that would be relevant for a case. Unlike what is shown in the series, a lawyer is not expected to go around looking for evidence once the case is before the court and the trial has already started. Even before filing a case or appearing in the court, a lawyer needs to be aware of the weak points of the case and a response to the same — either legal or factual – needs to worked out well in advance. I wish the series had reinforced the notion of prior hard work and assessment of factual and legal points before a case is filed. Unfortunately, it fails to do so.

The second issue is the mode and manner of trials. It seems funny that the witnesses are called out in random order, they are partly examined and then re-examined, and arguments are made even during the cross-examination. The series lawyers are not averse to calling the opposite side as their witnesses. As and when the lawyers discover new facts, the witnesses are recalled at pleasure. The procedure shown is alien to both civil and criminal law.  In reality, the list of witnesses has to be provided in advance. The examination of the witnesses is not expected to be in phases, nor can they be recalled at will.  I have never seen an opposing counsel calling the other side to appear as a witness. It is entirely the discretion of a party whether to stand in the witness box or not. If it does not, an adverse inference would be drawn. The cross-examination has to be precise and pinpointed. A smart lawyer would never put open-ended questions in the cross-examination to allow the other sides’ witness to blurt out whatever they may desire.

The writers of the series do show creativity in the kind of issues raised in each episode. However, the creativity ought not to have crossed over in depiction of the courtroom scenes. A series that starts on a promising note disappoints in not coming close to reality and ends up being misleading for the general public and young lawyers. Alas, we still have to wait for our very own “My Cousin Vinny” or “A Few Good Men”.


†BCL (Oxford), LLM (Columbia). Counsel at Supreme Court of India and Delhi High Court. Admitted to Practice at New York State Bar. Author can be reached at <aguptalaw@gmail.com>.

Op EdsOP. ED.

On 18-4-2022, Parliament enacted the Criminal Procedure (Identification) Act, 2022[1] (the 2022 Act) with the aim to authorise the taking and preserving of the records of measurements of convicts and other persons for the purposes of identification and investigation in criminal matters. This Act seeks to repeal the Identification of Prisoners Act[2], 1920 (the 1920 Act) which is a colonial law that at present authorises the taking of measurements and photographs of convicts and others.

Through this 2022 Act, the scope of the measurements that can be taken has been redefined and broadened. At present, the 1920 Act only allows measurements of finger and footprint impressions and photographs. The 2022 Act now defines measurements as finger impressions, palm print impressions, footprint impressions, photographs, iris and retina scan, physical, biological samples and their analysis, behavioural attributes including signatures, handwriting or any other examination referred to under Sections 53[3] and 53-A[4] of the Code of Criminal Procedure, 1973.

The 2022 Act further allows measurements to be taken of all convicts, arrested persons, as well as persons detained under any preventive detention law irrespective of any quantum of punishment awarded. Despite having a focus on technological advancements in the investigation of crime, the 2022 Act suffers from four major fundamental concerns that are strong grounds to challenge its validity.

Firstly, the 2022 Act does not define the process and definite framework as to how the measurements taken would be used for analysis and further utilised in a criminal investigation. The word “analysis” used in the context of measurement is vague and undefined which is an issue of concern because there is no certainty in regard to how much these measurements collected can be analysed and further what all data can be generated through the analysis of such measurements. The scope of the 2022 Act is limited to the collection of measurements for identification and investigation purposes and thus, the analysis of these measurements is a black hole that travels beyond the permissible scope of the law.

The second issue concerns the structural capacity to collect and maintain the record of measurements making it an issue of feasibility. The 2022 Act states that National Crime Records Bureau (NCRB) shall be responsible for the collection and administration of records of measurements in consonance with the State Government or Union Territory Administration or any other law enforcement agencies. It is to be understood that NCRB was set up to function as a repository of information on crime and criminals[5] and does not have any wing which can collect the measurements including biological samples. To collect such records, the Central and State Forensic Science Laboratories which are very limited in number would be required to play a substantial role.

Moreover, seeing the enlarged scope of persons covered under the 2022 Act, there is an operational difficulty in collecting such measurements followed by its analysis and preservation of records for 75 years in form of data where we do not have any legal framework for data protection in India. The Bombay High Court in Jitendra v. State of Maharashtra[6] has observed that it is necessary for the laboratories to ensure proper quality control and quality assurance when dealing with the collection of biological samples and their analysis and the same should be of the highest standard. Thus, the question arises as to who would in actuality be responsible for collecting such measurements which are sensitive in nature, deals with body fluids and is at higher risk of quality being dented due to lack of care and caution.

The third area of concern is the nature of these measurements taken which may complicate the investigation and identification. In K.S. Puttaswamy v. Union of India[7], it was observed that biometrics technology does not guarantee 100% accuracy and is only 99.76% accurate. The Court held that even though the percentage of error is very less but when such a failure rate is seen from the viewpoint of the total population, such failure rate itself would be a phenomenal figure. Moreover, the Court also took notice of the changing nature of biological patterns like failing of iris test due to blindness of person or changing of formation of fingerprints due to an individual getting old. However, when these measurements including biological samples are kept after analysis for such a long time, there is a probability that the measurements might change in some cases causing unnecessary victimisation of an innocent person. Therefore, the manner of collection of these measurements can lead to a disadvantage for criminal investigation.

Fourthly, the 2022 Act has permitted intrusion in the physical autonomy of the person by making refusal or resistance to give measurements as a criminal offence. There are suitable declarations regarding the non-interference in physical autonomy of a person over his own body to which India is also a signatory. Although the 1920 Act also criminalises resistance or refusal, the current 2022 Act aggravates the problem by including all types of prisoners within its scope. Further, the same is in direct violation of the Supreme Court’s decision as given in Selvi v. State of Karnataka[8] where the Supreme Court held that Article 20(3)[9] of the Constitution aims to prevent the forcible “conveyance of personal knowledge that is relevant to the facts in issue”.  Through this 2022 Act, a suspect who has been arrested for an offence of petty thief or for pickpocketing can be forced to give any measurements that he may be directed to. Thus, such intrusion conflicts with physical autonomy and further violates the right to privacy of an individual which is a fundamental right under Article 21[10] as laid down in K.S. Puttaswamy v. Union of India[11].

Per se, the intent of the 2022 Act is in line with the modernisation of criminal investigation. A strong case backed up by solid evidence is necessary to secure criminal convictions. However, the moot point is whether India can permit to be governed by such a law when there are not adequate safeguards present to tackle the potential abuse of this law. The road to modernisation is a soaring exercise that one should undertake but with a caveat that it should not travel beyond State administration so as to make it functional in a complete sense. At present, the 2022 Act fails to inspire the confidence of people and requires overhauling to make it implementable.


Vice-Chancellor of Rajiv Gandhi National University of Law, Punjab.  

†† Sahajveer Baweja, BA LLB  student of Rajiv Gandhi National University of Law, Punjab.

[1] Criminal Procedure (Identification)  Act, 2022.

[2] Identification of Prisoners  Act, 1920.

[3] Criminal Procedure Code, 1973, S. 53.

[4] Criminal Procedure Code, 1973, S. 53-A.

[5] Origin of NCRB and its functions, available at <https://ncrb.gov.in/en/origin-ncrb>.

[6] 2017 SCC OnLine Bom 8600.

[7] (2018) 1 SCC 809.

[8]  (2010) 7 SCC 263.

[9] Constitution of India, Art. 20.

[10] Constitution of India, Art. 21.

[11] (2017) 10 SCC 1.

Op EdsOP. ED.

1. Commercial Courts, Commercial Division and Commercial Appellate Division of High Courts Act, 2015, as amended (in short ‘CCA’) has been enacted with the object to have a streamlined procedure which is to be adopted for the conduct of cases in the Commercial Courts and in the Commercial Divisions by amending the Code of Civil Procedure, 1908, so as to improve the efficiency and reduce delays in disposal of commercial cases. The proposed case management system and provisions for summary judgment will enable disposal of commercial disputes in a time bound manner.

2. As per Section 16 of CCA, certain provisions of CPC stand amended in the manner specified in the Schedule to the Act, with respect to their application to any suit in respect of a commercial dispute of a specified value, and the same shall be followed by the Commercial Division and Commercial Court in the trial of a suit in respect of a commercial dispute of a specified value.

Order XIII–A has been incorporated in CPC only for purposes of adjudication of commercial suit under the said Act in terms of the Schedule referable to Section 16. The said Order reads as under:

1. Scope of and classes of suits to which this Order applies.– (1) This Order sets out the procedure by which Courts may decide a claim pertaining to any commercial dispute without recording oral evidence.

(2) For the purposes of this Order, the word “claim” shall include-

(a) part of a claim;

(b) any particular question on which the claim (whether in whole or in part) depends; or

(c) a counterclaim, as the case may be.

(3) Notwithstanding anything to the contrary, an application for summary judgment under this Order shall not be made in a suit in respect of any commercial dispute that is originally filed as a summary suit under Order XXXVII.

2. Stage for application for summary judgment.- An applicant may apply for summary judgment at any time after summons has been served on the defendant:

Provided that, no application for summary judgment may be made by such applicant after the Court has framed the issues in respect of the suit.

3. Grounds for summary judgment.– The Court may give a summary judgment against a plaintiff or defendant on a claim if it considers that–

  • the plaintiff has no real prospect of succeeding on the claim or the defendant has no real prospect of successfully defending the claim, as the case may be; and
  • there is no other compelling reason why the claim should not be disposed of before recording of oral evidence.

4. Procedure.- (1) An application for summary judgment to a Court shall, in addition to any other matters the applicant may deem relevant, include the matters set forth in sub-clauses (a) to (f) mentioned hereunder:

(a) the application must contain a statement that it is an application for summary judgment made under this Order;

(b) the application must precisely disclose all material facts and identify the point of law, if any;

  • in the event the applicant seeks to rely upon any documentary evidence, the applicant must, –

(i) include such documentary evidence in its application, and

(ii) identify the relevant content of such documentary evidence on which the applicant relies;

(d) the application must state the reason why there are no real prospects of succeeding on the claim or defending the claim, as the case may be;

(e) the application must state what relief the applicant is seeking and briefly state the grounds for seeking such relief.

(2) Where a hearing for summary judgment is fixed, the respondent must be given at least thirty days’notice of:

(a) the date fixed for the hearing; and

(b) the claim that is proposed to be decided by the Court at such hearing.

(3) The respondent may, within thirty days of the receipt of notice of application of summary judgment or notice of hearing (whichever is earlier), file a reply addressing the matters set forth in clauses (a) to (f) mentioned hereunder in addition to any other matters that the respondent may deem relevant:

(a) the reply must precisely––

(i) disclose all material facts;

(ii) identify the point of law, if any; and

(iii) state the reasons why the relief sought by the applicant should not be granted;

(b) in the event the respondent seeks to rely upon any documentary evidence in its reply, the respondent must—

(i) include such documentary evidence in its reply; and

(ii) identify the relevant content of such documentary evidence on which the respondent relies;

(c) the reply must state the reason why there are real prospects of succeeding on the claim or defending the claim, as the case may be;

(d) the reply must concisely state the issues that should be framed for trial;

(e) the reply must identify what further evidence shall be brought on record at trial that could not be brought on record at the stage of summary judgment; and

(f) the reply must state why, in light of the evidence or material on record if any, the Court should not proceed to summary judgment.

5.Evidence for hearing of summary judgment.–(1) Notwithstanding anything in this Order, if the respondent in an application for summary judgment wishes to rely on additional documentary evidence during the hearing, the respondent must:

(a) file such documentary evidence; and

(b) serve copies of such documentary evidence on every other party to the application at least fifteen days prior to the date of the hearing.

(2) Notwithstanding anything in this Order, if the applicant for summary judgment wishes to rely on documentary evidence in reply to the defendant’s documentary evidence, the applicant must:

(a) file such documentary evidence in reply; and

(b) serve a copy of such documentary evidence on the respondent at least five days prior to the date of the hearing.

(3) Notwithstanding anything to the contrary, sub-rules (1) and (2) shall not require documentary evidence to be:

(a) filed if such documentary evidence has already been filed; or

(b) served on a party on whom it has already been served.

6. Orders that may be made by Court. – (1) On an application made under this Order, the Court may make such orders that it may deem fit in its discretion including the following:

(a) judgment on the claim;

(b)conditional order in accordance with Rule 7 mentioned hereunder;

(c) dismissing the application;

(d) dismissing part of the claim and a judgment on part of the claim that is not dismissed;

(e) striking out the pleadings (whether in whole or in part); or

(f) further directions to proceed for case management under Order XV-A.

(2) Where the Court makes any of the orders as set forth in sub-rule (1)(a) to (f), the Court shall record its reasons for making such order.

7. Conditional order.(1) Where it appears to the Court that it is possible that a claim or defence may succeed but it is improbable that it shall do so, the Court may make a conditional order as set forth in Rule 6(1)(b).

(2) Where the Court makes a conditional order, it may:

(a) make it subject to all or any of the following conditions:

(i) require a party to deposit a sum of money in the Court;

(ii) require a party to take a specified step in relation to the claim or defence, as the case may be;

(iii) require a party, as the case may be, to give such security or provide such surety for restitution of costs as the Court deems fit and proper;

(iv) impose such other conditions, including providing security for restitution of losses that any party is likely to suffer during the pendency of the suit, as the Court may deem fit in its discretion; and

(b) specify the consequences of the failure to comply with the conditional order, including passing a judgment against the party that have not complied with the conditional order.

8. Power to impose costs. – The Court may make an order for payment of costs in an application for summary judgment in accordance with the provisions of Sections 35 and 35-A of the Code.’

7. Insertion of Order XV-A – 7. After Order XV of the Code, the following Order shall be inserted, namely:

                                    *                *                  *

6. Powers of the Court in a Case Management Hearing. – (1) In any Case Management Hearing held under this Order, the Court shall have the power to-

(a) prior to the framing of issues, hear and decide any pending application filed by the parties under Order XIII-A;

*                 *              *”

3. It may be noted here itself that the provisions of Order XIII – A CPC are para materia to Rule 24.2 of the Civil Procedure Rules in England.

4. Emphasising the scope of Order XIII – A CPC, the Delhi High Court in the judgment of Bright Enterprises Private Limited  MJ Bizcraft LLP[1],  held as under:

“21…Rule 3 of Order XIII-A CPC empowers the Court to give a summary judgment against a plaintiff or defendant on a claim if it considers that – (a) the plaintiff has no real prospect of succeeding on the claim or the defendant has no real prospect of successfully defending the claim, as the case may be; and (b) there is no other compelling reason why the claim should not be disposed of before recording of oral evidence…”

5. In the judgment of Rockwool International A/S v. Thermocare Rockwool (India) Pvt. Ltd.[2], the Delhi High Court observed the following requisites for passing a summary judgment:

  • There is no real prospect of a party succeeding in a claim;
  • No oral evidence would be required to adjudicate the matter;
  • There is a compelling reason for allowing or disallowing the claim without oral evidence.

6. The scope of Summary Judgment has also been explained by the Delhi High Court in the judgment of R. Impex v. Punj Lloyd Ltd.[3], as under:

“18….but vide the said Act, Order XIII-A titled “Summary Judgment” has been incorporated in  CPC insofar as applicable to commercial suits and Rule 2 whereof, while prescribing the stage for making application for summary judgment, provides that the same be filed at any time after the summons have been served on the defendant but not after the court has framed the issues in respect of the suit. Rule 3 of Order XIII-A, while prescribing the grounds for summary judgment, empowers the Court to give summary judgment against a plaintiff or defendant on a claim, if it considers inter alia that the plaintiff has no real prospect of succeeding on the claim or the defendant has no real prospect of successfully defending the claim, as the case may be and there is no other compelling reason why the claim should not be disposed before recording of oral evidence. Rule 4 prescribes the procedure for making summary judgment.

                    *                         *                             *

 27. The purpose of the proviso to Rule 2 of Order XIII-A is to discourage filing of applications for summary judgment after issues have been framed, thereby delaying trial and to empower the Court to, if finding the same to be dilatory, dismiss the same in limine.

 28. The objective of the Commercial Courts Act even otherwise is to expedite the disposal of the commercial suits and none of the provisions thereof can be interpreted as counterproductive to the said objective of the Commercial Courts Act and it would delay rather than expedite the disposal of commercial suits, if inspite of finding a suit to be befitting of summary judgment, the Court considers itself constrained merely on account of issues having been framed.”

7. The scope of Summary Judgment as also the object of CCA was re-emphasised by the  Delhi High Court in Mallcom (India) Limited  Rakesh Kumar[4].

 8. The above principle has been reiterated in the matter of Jindal Saw Limited Aperam Stainless Services and Solutions Precision SAS[5], wherein the Delhi High Court have explained the scope of Order XIII-A  CPC. The relevant text of the judgment is reproduced below:

“22. Order XIII-A CPC, as made applicable to commercial suits within the meaning of the Commercial Courts Act, is titled “Summary Judgment”. Rule 2 thereof provides, that an application for summary judgment may be made at any time after summons have been served on the defendant, till the framing of issues. Rule 3 is as under:

3. Grounds for summary judgment.–…………….

(a) the plaintiff has no real prospect of succeeding on the claim or the defendant has no real prospect of successfully defending the claim, as the case may be; and

(b) there is no other compelling reason why the claim should not be disposed of before recording of oral evidence.”

  1. Rule 4 thereof providing the procedure for applying for a summary judgment inter alia requires the applicant to state the reason why there are no real prospects of succeeding on the claim or defending the claim and requires notice of the said application to be given to the opposite party of 30 days, and the reply to such application to precisely identify the points of law if any and the reasons why the relief of summary judgment should not be granted and why there are real prospects of succeeding on the claim or defending the claim and to state the issues to be framed for trial and what evidence is to be lead thereon and permits additional documentary evidence to be filed with such reply.”

 

9. Reference in this regard may also be made to Oxbridge Associates Limited v. Atul Kumra[6] and Universal Contractors & Engineers (P) Ltd. v. National Projects Constructions Corporation Ltd.[7]

10. Comparing the scope of Order XII Rule 6 CPC and Order XIII–A CPC, the Delhi High Court in its judgment Venezia Mobili (India) Pvt. Ltd. v. Ramprastha Promoters and Developers Pvt. Ltd.[8], observed as under:

 “36…broadly speaking, the basis for seeking summary judgment as well as judgment on admission is the same i.e. that there is no triable issue which arises for consideration, there are reasons for allowing the claim without oral evidence and the defence raised by the defendants is a moonshine and a sham.”

 11. Re-emphasising the legislative intent in incorporating Order XIII–A CPC, the Delhi High Court in  Su-Kam Power Systems Ltd. v. Kunwer Sachdev[9], observed as:

49. Consequently, this Court is of the view that when a summary judgment application allows the Court to find the necessary facts and resolve the dispute, proceeding to trial would generally not be proportionate, timely or cost effective. It bears reiteration that the standard for fairness is not whether the procedure is as exhaustive as a trial, but whether it gives the Court the confidence that it can find the necessary facts and apply the relevant legal principles so as to resolve the dispute as held in Robert Hryniak (supra).

50. In fact, the legislative intent behind introducing summary judgment under Order XIII-A CPC is to provide a remedy independent, separate and distinct from judgment on admissions and summary judgment under Order XXXVII CPC.

 51. This Court clarifies that in its earlier judgment in Venezia Mobili (India) Pvt. Ltd. v. Ramprastha Promoters & Developers Pvt. Ltd.[10], while deciding two applications, both filed by the plaintiff in the said case (one under Order XII Rule 6 and other under Order XIII-A) it had applied the lowest common denominator test under both the provisions of the Code of Civil Procedure and held that the suit could be decreed by way of a summary judgment.

52. Consequently, this Court is of the opinion that there will be ‘no real prospect of successfully defending the claim’ when the Court is able to reach a fair and just determination on the merits of the application for summary judgment. This will be the case when the process allows the court to make the necessary finding of fact, apply the law to the facts, and the same is a proportionate, more expeditious and less expensive means to achieve a fair and just result…”

 It is thus clear that Order XIII–A CPC confers much wider powers upon the Commercial Courts for a speedy and expeditious disposal of Commercial Suits than under Order XII Rule 6 CPC which, as held above, is a test of lowest denominator for the purposes of Order XIII–A CPC.

12. In exercise of powers conferred by Section 129 CPC, the Delhi High Court has framed the Delhi High Court (Original Side) Rules, 2018. Chapter X-A of the said Rules under the heading Case Management, and more particularly relating to Summary Judgment provides as under:

 1. Summary Judgment.- At the time of Case Management hearing, a Court, may of its own, decide a claim pertaining to any dispute, by a summary judgment, without recording oral evidence.”

(emphasis supplied)

13. It is trite law that in case of conflict between the provisions of CPC and Original Side Rules, the latter would prevail and override the former. [Refer HTIL Corporation B.V. v. Ajay Kohli[11]; Iridium India Telecom Ltd. v. Motorola Inc.[12] and Print Pak Machinery Ltd. v. Jay Kay Papers Converters[13].]

14. Though Order XIII–A CPC, as applicable to CCA, provides for presentation of a formal application as also the outer time-limit for moving such an application, however, not only in view of the Original Side Rules of the Delhi High Court to the contrary but also interpreting the provisions of Order XIII–A CPC by the Delhi High Court on the touchstone of Doctrine of Purposive Legislation, while interpreting the same, held that an application is not essential to seek summary judgment and the Court, on its own or on the asking of either party, at any point of time, even after settlement of issues, is entitled to see/adjudicate as to whether a case for summary judgment is made out. [See R. Impex[14] (supra), Mallcom (India) Limited[15] (supra) and Jindal Saw Limited[16] (supra]).


*Advocate and a qualified Chartered Accountant. Author is currently a Senior Associate in the Dispute Resolution Practice at L&L Partners Law Offices, New Delhi. Author’s views are personal only.

[1] (2017) 1 HCC (Del) 100 : 2017 SCC OnLine Del 6394 at p. 110

[2]2018 SCC OnLine Del 11911 

[3] 2019 SCC OnLine Del 6667

[4] 2019 SCC OnLine Del 7646

[5] 2019 SCC OnLine Del 9163

[6]2019 SCC OnLine Del 10641

[7] 2019 SCC OnLine Del 11436

[8] 2019 SCC OnLine Del 7761

[9] 2019 SCC OnLine Del 10764

[10] 2019 SCC OnLine Del 7761

[11] 2006 SCC OnLine Del 657

[12] (2005) 2 SCC 145

[13] 1979 SCC OnLine Del 123

[14] 2019 SCC OnLine Del 6667

[15] 2019 SCC OnLine Del 7646

[16] 2019 SCC OnLine Del 9163