Chapter 4

Miscelleneous

Equity

Reliance on Equity, Justice and Good Conscience only.

When there is a conflict between law and equity, it is the law which is to prevail. Equity can only supplement the law when there is a gap in it but it can not supplant the law.

B. Premanand v. Mohan Koikal, AIR 2011 SC 1925.

Interpretation of Hindu Law texts

The interpretation must advance the society by bringing such texts in harmony with the prevailing conditions.

Law is a social mechanism to be used for the advancement of the society. It should not be allowed to be a dead weight on the society. While interpreting ancient tets, the courts must give them a liberal construction to further the interests of the society. Our great commentators in the past bridged the gulf between law as enunciated in the Hindu law texts and the advancing society by wisely interpreting the original texts in such a way as to bring them in harmony with the prevailing conditions. To an extent, that function has now to be discharged by our superior courts. That task is undoubtedly a delicate one. In discharging that function our courts have shown a great deal of circumspection. Under modern conditions legislative modification of laws is bound to be confined to major changes. Gradual and orderly development of law can only be accomplished by judicial interpretation.

V.D. Dhanwatey v. Commissioner of Income-tax, Madhya Pradesh, Nagpur and Bhandara, AIR 1968 SC 683: 1968 (1) SCJ 868: 1968(2) SCR 62.

Judgement

The terms used in judgment should not be interpreted like terms of a Statute.

In dealing with the effect of the finding recorded by the Judicial Commissioner we cannot lose sight of the fact that we are attempting to find out the effect of the findings made in judicial proceedings. The said findings cannot therefore be divested from the rest for the reasons given in the judgment.

Durgah Committee, Ajmer vs. Syed Hussain Ali, AIR 1961 SC 1402: 1962(1) SCR 383.

Natural Justice

Violation of natural justice— The order affecting fundamental rights of a person— Order passed without affording opportunity of hearing is null and void.

An order which is void may be directly and collaterally challenged in legal proceedings. An order is null and void if the statute clothing the administrative tribunal with power conditions it with the obligation to hear, expressly or by implication. Beyond doubt, an order which infringes a fundamental freedom passed in violation of the audi alteram partem rule is a nullity. When a competent Court holds such official act or order invalid, or sets it aside, it operates from nativity, i.e., the impugned act or order was never valid.

Nawabkhan Abbaskhan v. State of Gujarat, AIR 1974 SC 1471: 1974(2) SCC 121: 1974(3) SCR 427.

An order passed to the prejudice of citizen must comply with the principle of natural justice.

It is one of the fundamental rules of our constitutional set-up that every citizen protected against exercise of arbitrary authority by the State or its officers. If there is power to decide and determine to the prejudice of a person, duty to act judicially is implicit in the exercise of such power and the rule of natural justice operates in areas not covered by any law validly made. What particular rule of natural justice should apply to a given case must depend to an extent on the facts and circumstances of that case, the framework of the law under which the appointed for that purpose. It is only where there is nothing in the statute to actually prohibit the giving of an opportunity to be heard, but on the other hand, the nature of the statutory an obligation to hear before deciding, that the audi alteram partem rule could be imported.

Scheduled Caste and Weaker Section Welfare Association (Regd.) v. State of Karnataka, AIR 1991 SC 1117: 1991(2) SCC 604: 1991(1) SCR 974: 1991(1) Scale 581: 1991(2) JT 184.

Omission to issue citations to persons interested is not a sufficient reason by itself to revoke the probate— The conduct of the person seeking revocation shall also be a relevant factor to be considered by the court.

The omission to issue citiations to persons who should have been apprised of the probate proceedings may well be in a normal case a ground by itself for revocation of the grant. But this is not an absolute right irrespective of other considerations arising from the proved facts of a case. The law has vested a judicial discretion in the Court to revoke a grant where the Court may have prima facie reasons to believe that it was necessary to have the will proved afresh in the presence of interested parties.

"....in the present case we are not satisfied in all the circumstances of the case that just cause within the meaning of Section 263 had been made out. We cannot ignore the facts that about 27 years had elapsed after the grant of probate in 1921, that Girish inspite of the knowledge of the grant at the latest in 1933 did not take any steps in his lifetime to have the grant revoked, that there was no suggestion that the will was a gorgery or was otherwise invalid and that the will was a registered one and had been executed eight years before the testator's unnatural death. Hence the omission of citations to Girish which ordinarily may have been sufficient for a revocation of the grant was not in the special circumstances of this case sufficient to justify the Court to revoke the grant."

The annulment is a matter of substance and not of mere form. The Court may refuse to grant annulment in cases where there is no likelihood of proof being offered that the will admitted to probate was either not genuine or had not been validly executed. But, as rightly pointed out by the lower appellate Court, in the present case where the validity or genuineness of the will has not been challenged, it would serve no useful purpose to revoke the grant and to make the parties go through the mere formality of proving the will over again.

Anil Behari Ghosh v. Latika Bala Dassi, AIR 1955 SC 566: 1955 SCA 1026: 1955 SCJ 578: 1955(2) SCR 270.

Application of natural justice can be implied from the nature of duties attached to an office.

Rules of natural justice are not rules embodied always expressly in a statute or in rules framed thereunder. They may be implied from the nature of the duty to be performed under a statute. What particular rule of natural justice should be implied and what its content should be for a given case must depend to a great extent on the facts and circumstances of that case, the frame work of the law under which the enquiry is held, and the constitution and nature of duties of the Tribunal or the body of persons appointed for that purpose.

State of Gujarat v. Ambalal Haiderbhai, AIR 1976 SC 2002: 1976(3) SCC 495: 1976 Supp SCR 33.

Adherence to past practice—Likely unjust result from non-compliance of principles of natural justice.

With the increase of the power of the administrative bodies it has become necessary to provide guidelines for the just exercise of their power. To prevent the abuse of that power and to see that it does not become a new despotism, Courts are gradually evolving the principles to be observed while exercising such powers. In matters like these public good is not advanced by a rigid adherence to precedents. New problems call for new solutions. It is neither possible nor desirable to fix the limits of a quasi-judicial power.

A.K. Kraipak v. Union of India, AIR 1970 SC 150: 1970 (1) SCR 457: 1969(2) SCC 262.

Obiter dicta

Scope of—General observations made by court—Effect of.

The general observations therein should be confined to the facts of those cases. Any general observation cannot apply in interpreting the provisions of an Act unless this Court has applied its mind to and analysed the provisions of that particular Act.

Raval and Co. vs. K.G. Ramachandran, AIR 1974 SC 818: 1974(1) SCC 424: 1974(2) SCR 629.

A decision which is not express and is not founded on reasons nor it proceeds on consideration of issue cannot be deemed to be a law declared, to have a binding effect as is contemplated by Article 141. Uniformity and consistency are core of judicial discipline. But that which escapes in the judgment without any occasion is not ratio decidendi. Any declaration or conclusion arrived without application of mind or preceded without any reason cannot be deemed to be declaration of law or authority of a general nature binding as a precedent.

S.V. Rajendra Singh v. Lakshmi Recording Co. Pvt. Ltd., 1998 DCR 658.

Otiose statute

Superfluous provision—Duty of Court to avoid such construction.

While, no doubt, it is not permissible to supply a clear and obvious lacuna in a statute and imply a right of appeal, it is incumbent on the court to avoid a construction, if reasonably permissible on the language, which would render a part of the statute devoid of any meaning or application.

Rao Shiv Bahadur Singh v. State of Vindhya Pradesh, 1953 AIR SC 394: 1953 CrLJ 1480: 1953 SCR 1188.

The court cannot re‑enact or re‑write a provision or to render its otiose.

It is a well‑established canon of construction that the Court should read the section as it is and cannot rewrite it to suit its convenience; nor does any canon of construction permit the Court to read the section in such manner as to render it to some extent otiose.

A.R. Antulay v. Ramdas Sriniwas Nayak, 1984 CrLJ 647: 1984 AIR (SC) 718: 1984 SCC (Cr) 277: 86 Bom LR 228: 1984(1) Crimes 547

Pleadings

Inconsistent pleas—Permissibility—A party is entitled to take alternative pleas in support of its case—Where the alternative pleas arose from the admitted position of the defendant, such plea is not impermissible merely because it is inconsistent with other plea—Court may grant relief on the basis of such alternative plea even if the defendant was not granted an opportunity to meet such plea because it was the stand of defendant himself.

It is true that the plaintiff's case as made in the plaint that the sum of Rs. 30,000 was advanced by way of loan to the defts, second party. But it was certainly open to the plaintiff to make an alternative cases to that effect and make an alternative case to that effect and make a prayer in the alternative for a decree for money even if the allegations of the money being paid in pursuance of a contract of sale could not be established by evidence. The fact that such a prayer would have been inconsistent with the other prayer is not really material. A plaintiff may rely upon different rights alternatively and there is nothing in the Civil P.C. to prevent a party from making two or more inconsistent sets of allegations and claiming relief thereunder in the alternative.

The Court cannot grant relief to the plaintiff on a case for which there was no foundation in the pleadings and which the other side was not called upon or had an opportunity to meet. But when the alternative case, which the plaintiff could have made, was not only admitted by the defendant in his written statement but was expressly put forward as an answer to the claim which the plaintiff made in the suit, there would be nothing improper in giving the plaintiff a decree upon the case which the defendant himself makes. A demand of the plaintiff based on the defendant'sown plea cannot possibly be regarded with surprise by the latter and no question of adducing evidence on these facts would arise when they were expressly admitted by the defendant in his pleadings. In such circumstances, when no injustice can possibly result to the defendant, it may not be proper to drive the plaintiff, to a separate suit.

Firm Sriniwas Ram Kumar vs. Mahabir Prasad and others, AIR 1951 SC 177: 1951 ALJ SC 64: 64 MLW 544: 1951 SCJ 261: 1951 SCR 277

Precedent

A decision which is not express and is not founded on reasons nor it proceeds on consideration of issue cannot be deemed to be a law declared, to have a binding effect as is contemplated by Article 141. Uniformity and consistency are core of judicial discipline. But that which escapes in the judgment without any occasion is not ratio decidendi. Any declaration or conclusion arrived without application of mind or preceded without any reason cannot be deemed to be declaration of law or authority of a general nature binding as a precedent.

S.V. Rajendra Singh vs. Lakshmi Recording Co. Pvt. Ltd., 1998 DCR 658.

Determination of ratio decidendi— Conflict between decision of superior court— The ratio of each case with reference to its facts must be understood and applied.

The application of the same law to the differing circumstances and facts of various cases which have come up to this Court could create the impression sometimes that there is some conflict between different decisions of this Court. Even where there appears to be some conflict, it would, we think, vanish when the ratio decidendi of each case is correctly understood. It is the rule deducible from the application of law to the facts and circumstances of a case which constitutes its ratio decidendi and not some conclusion based upon facts which may appear to be similar. One additional or different fact can make a world of difference between conclusions in two cases even when the same principles are applied in each case to similar facts.

Regional Manager and another vs. Pawan Kumar Dubey, AIR 1976 SC 1766: 1976(3) SCC 334: 1976(3) SCR 540

A decision of superior court is binding subject to the ratio it laid down irrespective of the casual observations in the judgement.

A ruling of a superior court is binding law. It is not of scriptural sanctity but is of ratio-wise luminosity within the edifice of facts where the judicial lamp plays the legal flame. Beyond those walls and de hors the milieu we cannot impart eternal vernal value to the decision, exalting the doctrine of precedents into a prison-house of bigotry, regardless of varying circumstances and myraid developments. Realism dictates that a judgment has to be read, subject to the facts directly presented for consideration and not affecting those matters which may lurk in the record.

Mumbai Kamgar Sabha, Bombay vs. M/s. Abdulbhai Faizullabhai and others, AIR 1976 SC 1455: 1976(3) SCC 832 - 1976(3) SCR 591

Non-compliance of—The court must record reasons for not following the decision of superior court.

We do not think that the High Court acted correctly in skirting the views expressed by larger benches of this Court in the manner in which it had done this. The proper course for a High Court, in such a case, is to try to find out and follows the opinions expressed by larger benches of this Court in the manner in which it had done this. The proper course for a High Court, in such a case, is to try to find out and follow the opinions expressed by larger benches of this Court in preference to those expressed by smaller benches of the Court. That is the practice followed by this Court itself. The practice has now crystallized into a rule of law declared by this Court. If, however, the High Court was of opinion that the views expressed by larger benches of this Court were not applicable to the facts of the instant case it should have said so giving reasons supporting its point of view.

Union of India v. K.S. Subramanian, AIR 1976 SC 2433: 1976(3) SCC 677: 1977(1) SCR 87.

Sovereign immunity

Sovereign Government if bound by statute—The Doctrine of King's prerogative which does not bound him by statutory law binding the subject has no application in India after the commencement of Constitution of Republican India.

The common law of England is that the King's prerogative is illustrated by the rule that the Sovereign is not necessarily bound by a statutory law which binds the subject. This is further enforced by the rule that the King is not bound by a statute unless he is expressly named or unless he is bound by necessary implication or unless the Statute, being for the public good, it would be absurd to exclude the King from it, Blackstone.

There are no words in the Constitution which can be cited in support of the proposition that the position has changed after the republican form of Government has been adumbrated by our Constitution. It was argued on behalf of the respondent that the existence and such a prerogative is negatived by the very form of our new set up, that is to say, it was contended that the republican form of Government is wholly inconsistent with the existence of such a prerogative.

The immunity of Government from the operation of certain statutes, and particularly statutes creating offences, is based upon the fundamental concept that the Government or its officers cannot be a party to commiting a crime—analogous to the 'prerogative of perfection' that the KIng can do no wrong. Whatever may have been the historical reason of the rule, it has been adopted in our country on grounds of public policy as a rule of interpretation of statutes.

It is thus clear that far from the Constitution making any change in the legal position, it has clearly indicated that the laws in force continue to have validity, even in the new set up, except in so far as they come in conflict with the express provisions of the Constitution. No such provision has been brought to our notice. That being so, we are definitely of the opinion that the rule of interpretation of statutes that the State is not bound by a statute, unless it is so provided in express terms or by necessary implication, is still good law.

Director of Rationing and Distribution v. Corporation of Calcutta, AIR 1960 SC 1355: 1960 CrLJ 1684: 1961(1) SCR 158: 1961 (1) Mad LJ 88

Severability or splitting of provision

Severability—Application on penal law—The invalid part of Statute is severable in civil law and there is no reason for applying this principle on penal Statute as well.

Jia Lal v. Delhi Administration, 1963(1) CrLJ 1: 1962 AIR (SC) 1781: 1963 (2) SCR 864: 64 Pun LR 1051: 1962 All Cri R 431

Splitting—Permissibility—No part of provision should be omitted—Attempt should be made to reconcile the whole provision.

State of Bihar v. Hira Lal Kejriwal, 1960 AIR SC 47: 1960 CrLJ 150: 1960 (1) SCR 726: 1960 Mad LJ (Cri) 33: 1960 BLJR 1