CTCLibrary.com-Justice V Parthiban Aghast At Abuse of Mandamus Jurisdiction — Narasimhan Vijayaraghavan–He was a gentleman judge in the 1990s.

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Justice V Parthiban Aghast At Abuse of Mandamus Jurisdiction
— Narasimhan Vijayaraghavan

Civil

Posted on 11 Sep 2020

He was a gentleman judge in the 1990s. He was ever courteous and never raised his voice. He was always unruffled and always trusted the representations of advocates. When he was sitting in the Writ Admission Court, the legal fraternity had a good time. A few sentences into the submissions, he would grant you one relief or another. As a friend said, He was one judge who would tweak the order to hand over some remedy and never let you go empty handed. Worst cum worst he may give you at least a chocolate or a biscuit. He was that nice. I am not taking names here, lest anyone misunderstand the context or the substance.

The result was that writ petition orders came out tumbling in an assembly line. Mostly of the mandamus kind. One direction or another to an authority to pass orders on the representations made within a time line. The advocates were genuinely pleased to move such writ petitions by the dozens, as none would be dismissed and each one allowed, as it were. The learned Judge never grudged such orders, as it kept the Bar happy. But, the Bar is always known to be spoilt by too much of a good thing. Trust them to seek more and further indulgences. That is the name of the game called Abuse.

One of those days, there was a shock when the mild mannered judge, got furious with an advocate, not a junior by any standards. I would capture the occurrence in the words of the judge himself. “I am truly surprised that you advocates can misuse the implicit confidence I have in the Bar. The least I expect of you is to make an honest and truthful representation, for I rarely ever, even though the need to open and read the bundle. I took it for granted that the representations were truthful. Yesterday, you represented for a cause seeking issue of a mandamus to dispose of a representation. The assumption was that it was the representation of your client. But it turns out that you wanted disposal of representation of a third person, without making him a party. After you had gone, a senior advocate brought this to my notice that the WP was filed by you to seek disposal of representation of his client and it was nothing but clear misrepresentation and abuse. You never submitted that it was not your clients representation. I mechanically ordered the mandamus. I have learnt my lesson. To not trust every representation made, even in such simple matters. It is utterly shameful on your part, a fairly experienced counsel to misrepresent and avail a simple relief, even if innocuous. But it could be prejudicial to the third person, if he was not made a party and orders came about behind his back”.

I was reminded of this anecdote when I read the orders dt. 4th Sept,2020 in S. Jayaraman v. M. Shivaji Ganesan, of Justice V Parthiban, deprecating the practice of such assembly line writ petitions seeking issue of mandamus. “Unless there was a legal right, such orders cannot be granted for the asking. It must be an enforceable right. You cannot give a representation and ask the court to issue a direction to oblige your whim and fancy or to provide meat and spine to your practice. We must put an end to this practice of writ petitions being entertained and ordered at the time of admission itself, directing authorities to pass orders on representations de hors the jurisdictional right of the petitioners” said the late, lamented Justice M Srinivasan.

Now read what Justice Parthiban was constrained to say, in deservingly acerbic tones :

“3. The case of the petitioner is that the 1st respondent has borrowed a sum of Rs.6 lakhs in cash from him, for his personal needs and executed a demand promissory note. The 1st respondent is an employee of the 2nd respondent bank.

4. According to the petitioner, the 1st respondent did not return the loan as promised and legal notice was also issued in that regard. The petitioner on learning about the retirement of the 1st respondent from the 2nd respondent shortly, has chosen to file the writ petition seeking direction to the 2nd respondent bank to withhold the petitioner’s retirement benefits, which are due and payable to him.

5. This Court is aghast as to how such writ petition was conceived in the first place and filed before this Court. The petitioner has chosen a contrived legal route as short cut to approach this Court, seeking for issuance of a writ of mandamus, for realisation of the loan amount from the borrower when the proper course of remedy for the petitioner is to approach the civil Court, by filing a suit for recovery.

6. It is very unfortunate off late that the writ jurisdiction of this Court has been quite often abused and particularly, in seeking to issue the writ of mandamus, for all kinds of reliefs across the spectrum.

7. A writ of mandamus is a prerogative writ, originally envisaged as a constitutional relief, to be granted by the writ Court to the citizens, against the State authorities who failed to perform their statutory obligation cast upon them. But, over a period of time, the writ in the nature of mandamus, is being sought by all and sundry and for all casual requirements and for achieving personal and hidden agenda of the litigants, diluting the command of the constitutional Court and reducing the writ jurisdiction of this Court to a mere Court of disposal with stereo typed directions.

8. Moreover, this Court also finds that the trend of many litigants approaching this Court for issuance of writ of mandamus, when the proper and effective remedies are available elsewhere, but, they choose to approach the writ Court, as they probably find that the effort to get such direction from this Court is rather simple, easy and obtainable. The practice of approaching this Court for issuance of writ of mandamus for every kind of supposed grievance, is to be discouraged to save this institution from being deluged with substandard litigations. Only if the Constitutional Courts are rid of substandard litigations consuming its precious time, the Court would be able to spare its quality time on engaging itself in important and serious issues.

9. As far as this case on hand is concerned, a bizarre attempt has been made to convert the Constitutional Court as a Court to protect the interest of a private creditor, the petitioner herein, in a private loan transaction with the 1st respondent. What crafty way of bringing a private grievance of petitioner within the writfold? The petitioner is probably emboldened to seek this remedy before this Court, to be in tune with the times.”

Justice V Parthiban was not finished yet. Though he expressed dismay, disappointment, and disillusionment, he held his nerve not to impose exemplary costs, taking pity,curiously not on the litigant, but on one of our robed brethren. It may have been easy for Justice V Parthiban to deliver on his anguish with imposition of costs. It would have been justified, considering the rampant nature of such abuse. Instead, he wrote, rather chivalrously, In the above circumstances, this Court was initially inclined to dismiss the writ petition with exemplary costs, but, it refrained from doing so on the plea of the learned Advocate that only on his advice, the writ petition came to be filed. Considering the uncertainty of times, the professional advice tendered by the Advocate, though misplaced, yet understandable.

Learned Judge is perfectly right in expressing his strong feelings and one feels that there is a lesson in it, not only for the practising lawyers. The subtle nuances in messaging from the erudite judge, from the constitutional pulpit, ought not to be lost on all stakeholders. Keeping the Bar in good humour is not the look out of the Bench,by tweaking the orders. The orders ought to stay as they ought to be, and the Bar must be aware, more of it, than even the Bench, for the Bench may come and go, the Bar goes on forever, mused Justice V R Krishna Iyer.

It would be singularly unfortunate that if the orders in S Jayaraman dt. 4th Sept, 2020, of Justice V Parthiban, turns out to be a stray instance or a cry in the wilderness, as the burgeoning pendency in writ portfolio deserves the surgeons scalpel, if not a woodcutters sledgehammer, to lend the jurisdiction the muscle, it is meant to have. Justice V Parthiban deserves our kudos for making bold to say what needed to be said in sharp language.

(Author is practising advocate in the Madras High Court)http://www.ctclibrary.com/blogpage/?id=MTI1MDY5
[9/11, 13:26] Sekarreporter 1: Blog Posts
Justice V Parthiban Aghast At Abuse of Mandamus Jurisdiction
— Narasimhan Vijayaraghavan

Civil

Posted on 11 Sep 2020

He was a gentleman judge in the 1990s. He was ever courteous and never raised his voice. He was always unruffled and always trusted the representations of advocates. When he was sitting in the Writ Admission Court, the legal fraternity had a good time. A few sentences into the submissions, he would grant you one relief or another. As a friend said, He was one judge who would tweak the order to hand over some remedy and never let you go empty handed. Worst cum worst he may give you at least a chocolate or a biscuit. He was that nice. I am not taking names here, lest anyone misunderstand the context or the substance.

The result was that writ petition orders came out tumbling in an assembly line. Mostly of the mandamus kind. One direction or another to an authority to pass orders on the representations made within a time line. The advocates were genuinely pleased to move such writ petitions by the dozens, as none would be dismissed and each one allowed, as it were. The learned Judge never grudged such orders, as it kept the Bar happy. But, the Bar is always known to be spoilt by too much of a good thing. Trust them to seek more and further indulgences. That is the name of the game called Abuse.

One of those days, there was a shock when the mild mannered judge, got furious with an advocate, not a junior by any standards. I would capture the occurrence in the words of the judge himself. “I am truly surprised that you advocates can misuse the implicit confidence I have in the Bar. The least I expect of you is to make an honest and truthful representation, for I rarely ever, even though the need to open and read the bundle. I took it for granted that the representations were truthful. Yesterday, you represented for a cause seeking issue of a mandamus to dispose of a representation. The assumption was that it was the representation of your client. But it turns out that you wanted disposal of representation of a third person, without making him a party. After you had gone, a senior advocate brought this to my notice that the WP was filed by you to seek disposal of representation of his client and it was nothing but clear misrepresentation and abuse. You never submitted that it was not your clients representation. I mechanically ordered the mandamus. I have learnt my lesson. To not trust every representation made, even in such simple matters. It is utterly shameful on your part, a fairly experienced counsel to misrepresent and avail a simple relief, even if innocuous. But it could be prejudicial to the third person, if he was not made a party and orders came about behind his back”.

I was reminded of this anecdote when I read the orders dt. 4th Sept,2020 in S. Jayaraman v. M. Shivaji Ganesan, of Justice V Parthiban, deprecating the practice of such assembly line writ petitions seeking issue of mandamus. “Unless there was a legal right, such orders cannot be granted for the asking. It must be an enforceable right. You cannot give a representation and ask the court to issue a direction to oblige your whim and fancy or to provide meat and spine to your practice. We must put an end to this practice of writ petitions being entertained and ordered at the time of admission itself, directing authorities to pass orders on representations de hors the jurisdictional right of the petitioners” said the late, lamented Justice M Srinivasan.

Now read what Justice Parthiban was constrained to say, in deservingly acerbic tones :

“3. The case of the petitioner is that the 1st respondent has borrowed a sum of Rs.6 lakhs in cash from him, for his personal needs and executed a demand promissory note. The 1st respondent is an employee of the 2nd respondent bank.

4. According to the petitioner, the 1st respondent did not return the loan as promised and legal notice was also issued in that regard. The petitioner on learning about the retirement of the 1st respondent from the 2nd respondent shortly, has chosen to file the writ petition seeking direction to the 2nd respondent bank to withhold the petitioner’s retirement benefits, which are due and payable to him.

5. This Court is aghast as to how such writ petition was conceived in the first place and filed before this Court. The petitioner has chosen a contrived legal route as short cut to approach this Court, seeking for issuance of a writ of mandamus, for realisation of the loan amount from the borrower when the proper course of remedy for the petitioner is to approach the civil Court, by filing a suit for recovery.

6. It is very unfortunate off late that the writ jurisdiction of this Court has been quite often abused and particularly, in seeking to issue the writ of mandamus, for all kinds of reliefs across the spectrum.

7. A writ of mandamus is a prerogative writ, originally envisaged as a constitutional relief, to be granted by the writ Court to the citizens, against the State authorities who failed to perform their statutory obligation cast upon them. But, over a period of time, the writ in the nature of mandamus, is being sought by all and sundry and for all casual requirements and for achieving personal and hidden agenda of the litigants, diluting the command of the constitutional Court and reducing the writ jurisdiction of this Court to a mere Court of disposal with stereo typed directions.

8. Moreover, this Court also finds that the trend of many litigants approaching this Court for issuance of writ of mandamus, when the proper and effective remedies are available elsewhere, but, they choose to approach the writ Court, as they probably find that the effort to get such direction from this Court is rather simple, easy and obtainable. The practice of approaching this Court for issuance of writ of mandamus for every kind of supposed grievance, is to be discouraged to save this institution from being deluged with substandard litigations. Only if the Constitutional Courts are rid of substandard litigations consuming its precious time, the Court would be able to spare its quality time on engaging itself in important and serious issues.

9. As far as this case on hand is concerned, a bizarre attempt has been made to convert the Constitutional Court as a Court to protect the interest of a private creditor, the petitioner herein, in a private loan transaction with the 1st respondent. What crafty way of bringing a private grievance of petitioner within the writfold? The petitioner is probably emboldened to seek this remedy before this Court, to be in tune with the times.”

Justice V Parthiban was not finished yet. Though he expressed dismay, disappointment, and disillusionment, he held his nerve not to impose exemplary costs, taking pity,curiously not on the litigant, but on one of our robed brethren. It may have been easy for Justice V Parthiban to deliver on his anguish with imposition of costs. It would have been justified, considering the rampant nature of such abuse. Instead, he wrote, rather chivalrously, In the above circumstances, this Court was initially inclined to dismiss the writ petition with exemplary costs, but, it refrained from doing so on the plea of the learned Advocate that only on his advice, the writ petition came to be filed. Considering the uncertainty of times, the professional advice tendered by the Advocate, though misplaced, yet understandable.

Learned Judge is perfectly right in expressing his strong feelings and one feels that there is a lesson in it, not only for the practising lawyers. The subtle nuances in messaging from the erudite judge, from the constitutional pulpit, ought not to be lost on all stakeholders. Keeping the Bar in good humour is not the look out of the Bench,by tweaking the orders. The orders ought to stay as they ought to be, and the Bar must be aware, more of it, than even the Bench, for the Bench may come and go, the Bar goes on forever, mused Justice V R Krishna Iyer.

It would be singularly unfortunate that if the orders in S Jayaraman dt. 4th Sept, 2020, of Justice V Parthiban, turns out to be a stray instance or a cry in the wilderness, as the burgeoning pendency in writ portfolio deserves the surgeons scalpel, if not a woodcutters sledgehammer, to lend the jurisdiction the muscle, it is meant to have. Justice V Parthiban deserves our kudos for making bold to say what needed to be said in sharp language.

(Author is practising advocate in the Madras High Court)