Note: The kind of law reporting by few agencies in the recent past has reached the level of sensationalism. Headings are crafted in such a way as to receive sharp reactions on the social network. Few judges are targeted for their judgments. In the guise of Articles by legal experts and retired judges, a particular ideology is being propagated. These agencies are sponsored by groups having direct political nexus. The photos accompanying article are sometimes obnoxious. Recently a politician with criminal conviction and another one with charge sheet in criminal cases are shown along with Supreme Court Judges. Law reporting is reduced to the level of TRP gaining television channels. The Karnataka High Court has recently dealt with the related issue regarding flawed reporting as follows in the above named judgment.
“Flawed method of law-reporting and its inherent dangers: It is high time that some strict norms are laid down for regulating the mode and method of law reporting; there are several agencies in the country which have their own uncertain and varying ways of reporting the judgments of constitutional courts; the pattern of law report does not match with that of the original judgment on record; the paragraphs in the reported judgments at times do not match with the paragraphs in the original; not rarely, even paraphrasing of some parts of original judgments by the law reporting agency, is also noticed when rulings are cited by the lawyers; all this puts both Bar and the Bench to some avoidable difficulty in ascertaining the law laid down and its scope; there is a lurking risk of the editorial notes that are interjected in the body of judgments reported,being inadvertently construed as part of the ratio; this is not a happy thing to happen; much deliberation in this regard is not needed.“
Relevant paragraphs: 1. Petitioner being the plaintiff in a money suit in Com.O.S.No.7213/2012 is at the door steps of the Writ Court for assailing the order dated 10.11.2020 a copy whereof is at Annexure-A whereby the learned LXXXII Addl. City Civil Judge, Bengaluru, having allowed respondent-defendant’s application in I.A.No.IV filed u/o VI Rule 17 r/w Sec. 151 of CPC, 1908 has accorded leave to amend the Written Statement for incorporating a Counterclaim therein; the respondent having entered caveat through it’s counsel, opposes the Writ Petition.
4.A The question whether a Counterclaim can be filed separately after the filing of the Written Statement or can be introduced by way of amendment to the already filed Written Statement, subject to compliance of requisites and save with all just exceptions, is no longer res integra vide Ashok Kumar Kalra vs Wind Cdr Surendra Agnihotri and others (2020) 2 SCC 394.
Questions for determination:
(i) whether leave to incorporate the time- barred Counterclaim by way of amendment to the Written Statement can be granted u/o VI Rule 17 of CPC, 1908 … ? and
(ii) whether Court granting leave to amend the Written Statement for taking up a Counterclaim can relax the period of limitation prescribed for filing the same, by invoking the doctrine of relation back … ?
4F(a) The concept of “bar of limitation” on the one hand and the idea of “delay & latches” on the other by their very nature, are different from each other, although their successful invocation may arguably serve the same purpose in a litigation; the former absolutely bars the recourse to remedy; and the later may deny the remedy in the proceedings in question, the right to remedy being kept open for pursuit in other proceedings; prescription of period of limitation for claiming legal remedies is normally the prerogative of the legislature, whereas, the ground of ‘delay & latches’ is a matter of discretion inhering the Courts; this discretion needs to be exercised in accordance with the rules of reason & justice, is beside the point; the right to remedy ordinarily commits legal suicide if the limitation period prescribed therefor lapses; no court/authority has discretion to entertain the claim for it’s grant; Sec.3(1) of the Limitation Act, 1963 dictates their rejection at the threshold, regardless of the contention from the other side.
4F(a) The delayed making of a Counterclaim by way of amendment of Written Statement is one thing and the making of a time barred Counterclaim by way of such amendments, is another; in treating the former, the court has discretion in the sense that it may grant leave to amend the Written Statement or refuse; in other words, a Written Statement can be amended even belatedly, for introducing a Counterclaim therein with the leave of court, provided that leave to amend is sought for within the statutory period of limitation; for that purpose, a Counterclaim shall be treated to be a suit by fiction of law; however, leave may be denied inter alia on the ground of ‘delay & latches’, even if the period of limitation has not expired; in such event, defendant may bring a separate suit; this is one scenario.
4F(c) The other scenario is: where a time barred Counterclaim is sought to be introduced by amendment to the Written Statement; in such a case, no leave can ever be granted; Court has no discretion to entertain such a claim; in such matters, there is no discretion to disobey the mandate of law, namely, Sec.3(1) r/w 3(2)(b)(ii) of the Limitation Act; a time-barred Counterclaim cannot be made even if there is no ‘delay & latches’ in moving the application for amendment of pleadings; to put it shortly, time-barred claims cannot be the subject matter of pleadings or their amendments; a careful perusal of the Written Statement and the subject amendment application filed by the respondent, leaves no manner of doubt that the Counterclaim in question is hopelessly time-barred and a right not to be Counterclaimed has accrued to the petitioner-plaintiff.
The respondent’s contention that he has already laid the foundation for the filing of Counterclaim in the original Written Statement itself, pales into insignificance since what the law of limitation bars is the remedy and not the grounds on which it is founded; in other words, even if the respondent had taken up all the grounds in his Written Statement as filed originally, a prayer for counter decree cannot be belatedly superadded once the same becomes time-barred.
In the above circumstances, this Writ Petition is entitled to succeed and accordingly it does; a Writ of Certiorari issues quashing the impugned order; the subject application of the respondent seeking leave to amend the Written Statement for introducing the Counterclaim is dismissed.
Factual antecedents. The challenge is to Sections 3, 4 and 10 of the Insolvency and Bankruptcy Code (Amendment) Act 2020. Section 3 of the impugned amendment amends Section 7(1) of the Insolvency and Bankruptcy Code, 2016. Section 4 of the impugned amendment incorporates an additional Explanation in Section 11 of the Code. Section 10 of the impugned amendment inserts Section 32A in the Code.
HELD: The impugned amendments are upheld. However, this is subject to the following directions, issued under Article 142 of the Constitution of India: i. If any of the petitioners move applications in respect of the same default, as alleged in their applications, within a period of two months from today, also compliant with either the first or the second proviso under Section 7(1), as the case may be, then, they will be exempted from the requirement of payment of court fees, in the manner, which we have detailed in the paragraph just herein before. ii. Secondly, we direct that if applications are moved under Section 7 by the petitioners, within a period of two months from today, in compliance with either of the provisos, as the case may be, and the application would be barred under Article 137 of the Limitation Act, on the default alleged in the applications, which were already filed, if the petitioner file applications under Section 5 of the Limitation Act, 1963, the period of time spent before the Adjudicating Authority, the Adjudicating Authority shall allow the applications and the period of delay shall be condoned in regard to the period, during which, the earlier applications filed by them, which is the subject matter of the third proviso, was pending before the Adjudicating Authority. iii. We make it clear that the time limit of two months is fixed only for conferring the benefits of exemption from court fees and for condonation of the delay caused by the applications pending before the Adjudicating Authority. In other words, it is always open to the petitioners to file applications, even after the period of two months and seek them benefit of condonation of delay under Section 5 of the Limitation Act, in regard to the period, during which, the applications were pending before the Adjudicating Authority, which were filed under the unamended Section 7, as also thereafter.
Compiled by Sumana Chamarty, Advocate, Daksha Legal.
Pampapathi vs The State of Karnataka. Criminal Appeal 100346/2016 and connected appeals decided on 22 December 2020. Justice B.A. Patil and Justice M.I. Arun.
Shriram Properties Pvt Ltd vs State of Karnataka and others. Writ Petition 47747/2017 and connected matters decided on 19 January 2021. Justice Aravind Kumar and Justice B.A. Patil.
HELD: We uphold the validity of the Constitutional validity of the Karnataka Land Grabbing Prohibition Act, 2011. The evidence admitted in civil court can be admitted in the Special Court.
Location of Land Grabbing Courts in capital city is onerous. Transferring of cases taking jurisdiction of the Civil Court without any reasons is not correct. Hence we direct the Special Court to re examine the transfer of cases.
Special Court to take note of the observations made in this Judgment and deal with cases individually. Petitioners may apply to the Special Court for dismissal or dropping of the proceedings. Till the adjudication is done, demolition of the building or forcible taking possession is not to be done.
Mandamus issued to constitute additional courts preferably in all districts.
The latest Standard Operating Procedure issued by the Karnataka High Court on 18 January 2021 withdraws the relaxation made to the dress code of the Advocates. The Advocates are expected to follow normal dress code with effect from 1st February 2021.
Relevant paragraphs: 1 and 5. The question which arises for consideration in both the petitions is whether the Karnataka Parliamentary Secretaries Salaries, Allowances and Miscellaneous Provisions Act, 1963 (for short ‘the said Act of 1963) as amended by the Karnataka Parliamentary Secretaries Allowances (Amendment) Act, 1999 is constitutionally valid? The said Act of 1963 empowers the Hon’ble Chief Minister to appoint Parliamentary Secretaries from amongst the members of the Karnataka Legislative Assembly and the Karnataka Legislative Council. The basic challenge is on the ground that the State Legislature lacked the legislative competence to make the said Act. The other challenge is on the ground that for all intents and purposes, the Parliamentary Secretaries are on par with the Ministers and the said Act enables the Hon’ble Chief Minister to cross the ceiling on number of Ministers prescribed under Article 164 (1-A) of the Constitution of India. Therefore, the said Act infringes the aforesaid Constitutional provision. These are broadly the two main grounds on which challenge has been incorporated.
11. It is true that there is no specific provision under the said Act, which specifically lays down that the Parliamentary Secretaries shall be entitled to the status of Hon’ble Ministers or Ministers of State or Deputy Ministers to whom, the Hon’ble Governor administers the oath of office on the advice of the Hon’ble Chief Minister. But, the said Rules show that there is hardly any difference between the role of a Deputy Minister or a Minister of State without independent charge and a Parliamentary Secretary. The most of the duties and functions of Parliamentary Secretaries are akin to the Legislative duties of a Deputy Minister or a Minister of State without independent charge. The drastic amendments made by the amendment Act of 1999 makes the intention of the Legislature very clear. Firstly, as stated earlier, by the amended Act, a provision was made for the first time that the Parliamentary Secretaries shall be entitled to the salaries and allowances equivalent to the salaries and allowances admissible to the Hon’ble Ministers.
Judgment of the Supreme Court in Bimolangshu Roy (dead) through Lrs –vs- Stateof Assam and another (2018) 14 SCC 408) relied on.
19. The Apex Court has held that the State Legislature has no competence to enact a law providing for appointment of Parliamentary Secretaries. Moreover, the said Act does not confer any privileges on the members of both Houses as legislators qua Legislature.
24. There is another aspect of the case based on the provisions of Article-164 (1-A) of the Constitution. We have already held in paragraph-11 above that there is hardly any difference between the role of a Deputy Minister and a Parliamentary Secretary. On a conjoint reading of the various provisions of the said Act and the said Rules, we have already come to the above conclusion, which shows that for all intents and purposes, the office of the Parliamentary Secretaries has trappings of the post of Hon’ble Ministers of State without independent charge or at least Hon’ble Deputy Ministers. The said Act will work as a devise available to the Hon’ble Chief Minister to appoint the members of the Legislative Assembly and Legislative Council of his choice as parliamentary Secretaries, who cannot be made as Ministers due to constraints of Article 164(1-A). This will completely defeat and nullify the upper ceiling limit imposed by Article 164(1-A) of the Constitution of India on number of Ministers. Hence, even otherwise, the said enactment is ultra vires the constitutional mandate in Article 164(1-A).
We hold that the State Legislature of Karnataka had no legislative competence to enact the Karnataka Parliamentary Secretaries Salaries, Allowances and Miscellaneous Provisions Act, 1963 as amended by Act No. 7 of 1999.
The High Court of Karnataka, Chief Justice Abhay Shreeniwas Oka and Justice Sachin Shankar Magadum, ordered notice in a Public Interest Litigation filed by Samaj Parivarthan Samudaya challenging the appointment of Sriyuts – M.P. Renukacharya , Mahadev Prakash, Mohan A. Limbikai , Sunil G.S., Shankargowda Patil, M.B. Marmkal and Laksminarayana as advisors to Chief Minister and conferring Minister status to them. The writ petition questioned the appointments as violative of Article 164(1A) of the Constitution of India. Read the petition.
HELD: 4. The object of supplemental proceedings (applications for arrest or attachment before judgment, grant of temporary injunctions and appointment of receivers) is to prevent the ends of justice being defeated. The object of Order 38 Rule 5 CPC in particular, is to prevent any defendant from defeating the realisation of the decree that may ultimately be passed in favour of the plaintiff, either by attempting to dispose of, or remove from the jurisdiction of the court, his movables. The scheme of Order 38 and the use of the words “to obstruct or delay the execution of any decree that may be passed against him” in Rule 5 make it clear that before exercising the power under the said Rule, the court should be satisfied that there is a reasonable chance of a decree being passed in the suit against the defendant. This would mean that the court should be satisfied that the plaintiff has a prima facie case. If the averments in the plaint and the documents produced in support of it, do not satisfy the court about the existence of a prima facie case, the court will not go to the next stage of examining whether the interest of the plaintiff should be protected by exercising power under Order 38 Rule 5 CPC. It is well settled that merely having a just or valid claim or a prima facie case, will not entitle the plaintiff to an order of attachment before judgment, unless he also establishes that the defendant is attempting to remove or dispose of his assets with the intention of defeating the decree that may be passed. Equally well settled is the position that even where the defendant is removing or disposing his assets, an attachment before judgment will not be issued, if the plaintiff is not able to satisfy that he has a prima facie case.
5. The power under Order 38 Rule 5 CPC is a drastic and extraordinary power. Such power should not be exercised mechanically or merely for the asking. It should be used sparingly and strictly in accordance with the Rule. The purpose of Order 38 Rule 5 is not to convert an unsecured debt into a secured debt. Any attempt by a plaintiff to utilise the provisions of Order 38 Rule 5 as a leverage for coercing the defendant to settle the suit claim should be discouraged. Instances are not wanting where bloated and doubtful claims are realised by unscrupulous plaintiffs by obtaining orders of attachment before judgment and forcing the defendants for out-of-court settlements under threat of attachment.
6. A defendant is not debarred from dealing with his property merely because a suit is filed or about to be filed against him. Shifting of business from one premises to another premises or removal of machinery to another premises by itself is not a ground for granting attachment before judgment. A plaintiff should show, prima facie, that his claim is bona fide and valid and also satisfy the court that the defendant is about to remove or dispose of the whole or part of his property, with the intention of obstructing or delaying the execution of any decree that may be passed against him, before power is exercised under Order 38 Rule 5 CPC. Courts should also keep in view the principles relating to grant of attachment before judgment.
HELD: 23. A Receiver, having regard to the provisions contained in Order 40 Rule 1 of the Code of Civil Procedure, is appointed only when it is found to be just and convenient to do so. Appointment of a Receiver pending suit is a matter which is within the discretionary jurisdiction of the Court. Ordinarily the Court would not appoint a Receiver save and except on a prima facie finding that the plaintiff has an excellent chance of success in the suit.
24. It is also for the plaintiff not only to show a case of adverse and conflict claims of property but also emergency, danger or loss demanding immediate action. Element of danger is an important consideration. Ordinarily, a Receiver would not be appointed unless a case has been made out which may deprive the defendant of a de facto possession. For the said purpose, conduct of the parties would also be relevant.
