Bombay High Court
Sparebanken Sogn Og Fjordane vs M.V. Bos Angler & Ors on 20 March, 2013
Author: Roshan Dalvi
Bench: Roshan Dalvi
jsn 1 NMS No.242_2013
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
NOTICE OF MOTION NO.242 OF 2013
IN
ADMIRALTY SUIT NO.24 OF 2011
Sparebanken Sogn og Fjordane - Applicant
( Orig. Plaintiff)
Sparebanken Sogn og Fjordane - Plaintiff
V/s.
m.v. BOS ANGLER & Ors. - Defendants
Mr. Atul Rajadhyaksha, Sr. Adv. a/w. Mr. Zarir Bharucha, Mr. Archit
Dhir, Adv. i/b. Bimal Rajasekhar for the Plaintiff in ADMs No.24 of
2011 and Applicant.
Mr. V.K. Ramabhadran, Adv. for Defendant No.3.
Mr. Rahul Narichania, Adv. a/w. Amitava Majumdar, a/w. Mr.
Shivkumar Iyer, Adv. a/w. Mr. Sujan Malhotra, a/w. Mr. Nihal
Shaikh, Adv. i/b. Bose & Mitra & Co. for Defendant No.4.
Mr. A.M. Vernekar, Adv. i/b. Narichania & Narichania for Defendant
Nos.5, 6 & 8.
Ms. Sneha Phene, Adv. a/w. Mr. F. Lakdawala, Adv. i/b. Little & Co.
for Intervener.
CORAM : MRS. ROSHAN DALVI, J.
Date of Reserving the Order : 6th March, 2013
Date of Pronouncing the Order : 20th March, 2013.
O R D E R
1. This Notice of Motion is taken out by the Plaintiff for directions in the suit relating to the admissibility of the documents of the Plaintiff, the cross examination of the Plaintiff's witnesses and for expeditious progress of the hearing of the above suit and the suits filed by the defendants herein being Admiralty Suit Nos.32 of 2011, ::: Downloaded on - 09/06/2013 19:45:42 ::: jsn 2 NMS No.242_2013 26 of 2011, 53 of 2011 and 54 of 2011.
2. It may be at once be mentioned that in view of the amendment of the Civil Procedure Code in 1999 and 2002 (CPC) more specially by the amendment to Order 8 Rule 1 and Order 18 Rule 4 of the CPC, all suits are in essence expedited.
3. So soon as writ of summons is served or is even deemed to be served and the defendants are represented in the suit, the Written Statement would have to be filed within 30 days, except when the Court, for specified reasons, allows the defendant to file the suit within a extended period of 90 days under Order 8 Rule 1 of CPC.
4. After the Written Statement is filed it is for the court to frame issues, subject, of course, to the availability of time under Order 14 Rule 1 of the CPC. Once the issues are framed it is for the Plaintiff to prosecute the suit by issuing notice to admit documents and / or facts, offer the Plaintiff's own documents for inspection to the defendants and file the affidavit of evidence as also documents under Order 11 Rules 12 to 17 of the CPC. Once that is done, the Court would consider the admissibility of those documents and refer the parties to a Commissioner for recording the cross examination of the witnesses of the Plaintiff under Order 18 Rule 4 of the CPC. This outsourcing of Court work is the essential division of labour which, upon being necessitated, has been legislated so that the suits of all Plaintiffs can, in essence be expedited and proceed to trial.
5. The objection to such a procedure would be wondrous. No defendant would be heard to state that a Plaintiff cannot prosecute his / her / its suit expeditiously, subject of course, to the suit reaching before Court in view of the Courts grossly heavy dockets.
6. All the defendants have filed their own respective suits which they would need to prosecute to obtain the reliefs sought. They ::: Downloaded on - 09/06/2013 19:45:42 ::: jsn 3 NMS No.242_2013 would also defend the Plaintiff's suit and oppose reliefs prayed for by the Plaintiff in the above suit. The subject matter of all the suits is the same - the suit proceeds of Defendant No.1 ship. All the parties claim a part or entire of the sale proceeds towards their respective, separate individual claims.
7. The defendants in this suit have very vehemently opposed the Plaintiff's application which is in essence of expedition of its suit. The Plaintiff has recounted how the defendants have at every stage contested the Plaintiff's case in the suit to defeat and delay the Plaintiff's case. Be that as it may, it would have to be seen whether
8. the Plaintiff's suit must proceed to trial forthwith considering its stage.
It must be remembered that the above suit is an admiralty suit. Parties having an interest in the subject matter of the suit which is Defendant No.1 ship or its sale proceeds, would be allowed to intervene in the suit on their application for intervention. They would be made party defendants in this suit. Defendant Nos.3 to 9 have intervened and have been brought on record as party defendants after the initial suit was filed against defendant Nos.1 and 2.
9. Further since this is an admiralty suit intervention of such of the other parties who would have any claim upon the sale proceeds of the defendant vessel would be required to be followed, as per the rules of this Court, to intervene and to prove their claim before the Court and obtain a decree thereupon. Proceedings in that regard have been expeditiously taken out by the Plaintiff and despite the contest by the defendants have been allowed by the Court. A notice in that respect has been issued as per the order dated 21 st January, 2013 in this suit.
10. The form of the notice to be issued involving such claims has been tendered by consent of the parties to the suit. The notice is ::: Downloaded on - 09/06/2013 19:45:42 ::: jsn 4 NMS No.242_2013 required to state four specific aspects set out in Rule 951(3) of the High Court Original Side Rules. The notice dated 21 st January, 2013 issued by the Court confirms to the rules.
11. It is, therefore, clear that the intended claimant, if any, would apply for intervention on or before 20 th July, 2013. The claimant would have to intervene in "the above admiralty suit". He / She / it would have to prove his / her / its claim and obtain decree. This application would be under aforesaid Rule 951(3) (d) which runs thus :
that any person having a claim against the property or the proceeds of sale thereof, should apply to the Court for leave to intervene and prove his claim before the Court and obtain a decree before the expiration of that period.
12. A trial begins with the framing of the issues. Issues having been framed. The Plaintiff desires to file its affidavit of evidence and documents and desires the court to consider the admissibility of the its documents.
13. The Plaintiff is the dominus litus.
14. It is contended on behalf of the defendants that if the Plaintiff is allowed to be cross examined and if later the claims are received in the suit, the priority which would have to be determined upon the proof of such claims as per the notice issued by the court, those claimants who would be allowed to intervene in the suit as party defendants to the suit, would be entitled to again cross examine the Plaintiff if they challenged the Plaintiff's claim as such interveners. That would needlessly duplicate the proceedings at the trial. The defendants, therefore, contend that the Plaintiff must await the period of six months granted to the claimants to lodge and prove their claim as interveners in the suit.
::: Downloaded on - 09/06/2013 19:45:42 :::jsn 5 NMS No.242_2013
15. It is contended on behalf of the Plaintiff that the suit can and must proceed only by and between the parties to the suit who are the Plaintiff and nine defendants. It is contended that claimants who would lodge their claim against the proceedings of the defendants ship would not require to cross examine the parties. They must only prove their claim. The proof of their claim would be only for determination of priority. If they showed priority upon proof of their claim, they would be entitled to a part or whole of the proceedings of the sale of the ship. If not, their claim, even if proved, may not be satisfied from the sale proceeds.
16. It is clear that notice to claimants has to be given and has been given. It is also clear that the claimants would have to apply for leave to intervene in the above suit and prove their claim before the Court. It would have to be seen only whether by such intervention they would become party defendants such as to be able to challenge the Plaintiff's claim as other defendants have.
17. It must be remembered that the notice under Rule 951 is the notice for determination of priority of claims and not for challenging the Plaintiff's claim. The title of the rule makes this clear.
It runs thus :
Rule 951. Order for sale of property and determination of priority of claims.
18. Rule 951 comes into play when a party to an admiralty suit obtains a decree or order against the ship. The relevant part of Rule 951 in that behalf runs thus:
(1) Where in a suit in rem the court has ordered the property proceeded against to be sold, any party who has obtained or obtains a decree or order against the said property or the proceeds of the sale thereof may --::: Downloaded on - 09/06/2013 19:45:42 :::
jsn 6 NMS No.242_2013 The Plaintiff has obtained the order of the sale of Defendant No.1 ship. Claims have been invited against the sale proceeds.
19. Sub rule 3(d) of the order cited above speaks of a person having claim against the property or proceeds of the sale and not a person who challenges the Plaintiff's right in the suit. It may at once be mentioned that if a party challenges the claim of the Plaintiff, it is for that party to seek to intervene in the suit. It is not for the Court to invite that party to make such a claim. The invitation by the Court by its own notice got issued is to serve a noble purpose : that all the sale proceeds are distributed to all persons who make claim upon such sale proceeds. It has nothing to do with challenging the claim of another.
The challenge to the claim of another has to be necessarily by action taken personally - between the challenger and the Plaintiff who has already sued. The challenge to the Plaintiff's claim is not even contemplated under the aforesaid rule. Hence such a claimant has only to prove his / her / its own claim.
20. My attention is drawn to Rule 949 of the High Court (Original Side) Rules relating to interveners. The rule runs thus :
Rule 949. Interveners. -
(1) Where property against which a suit in rem is brought is under arrest or money representing the proceeds of sale of that property is in Court, a person who has interest in that property or money but who is not a defendant to the suit may, with the leave of the Judge, intervene in the suit.
(2) An application for the grant of leave under this rule may be made exparte by affidavit showing the interest of the applicant in the property against which the suit is brought or in the money in Court.
(3) A person to whom leave is granted to intervene in a suit shall file an appearance in person or a Vakalatnama therein ::: Downloaded on - 09/06/2013 19:45:42 ::: jsn 7 NMS No.242_2013 within the period specified in the order granting leave. On filing such appearance or Vakaltnama, the intervener shall be treated as if he were a defendant in the suit. (4) The Judge may order that a person to whom he grants leave to intervene in a suit, shall, within such period as may be specified in the order, serve on every other party to the suit such pleading as may be so specified.
21. It is contended on behalf of the defendants that claimants who would intervene in the above suit would be such interveners. They would, therefore, be the defendants in the suit. They would, therefore, have a right to cross examine the Plaintiff in the suit and hence the Plaintiff's cross examination cannot commence until after the expiry of the period of six months given to all such claimants to lodge their claims.
22. It would have to be seen whether the interveners under Rule 949 and the claimants under Rule 951 (3) (d) are alike or whether they represent a different class of persons. The words used in the aforesaid two rules make a distinction. Whereas under Rule 949 a person who would be intervener is a person who has an interest in the property claimed, under Rule 951 (3) (d), the person who would be allowed to intervene is the person who has a claim against the property being the sale proceeds of the ship.
23. The dictionary meaning of the term "interest" in Concise Oxford English Dictionary, Eleventh Edition, Revised at Pg.740 is "a legal concern, title, or right in property". The term is, therefore, synonymous with "right".
24. Black's Law Dictionary, Eighth Edition at Pg.828 defines "interest" as "A legal share in something; all or part of a legal or equitable claim to or right in property <right, title, and interest>. Collectively, the word includes any aggregation of rights, ::: Downloaded on - 09/06/2013 19:45:42 ::: jsn 8 NMS No.242_2013 privileges, powers, and immunities; distributively, it refers to any one right, privilege, power, or immunity".
25. The term "interest" is explained in Advanced Law Lexicon by P. Ramantha Aiyar, 3rd Edition 2007 at Pg.2402 "Legal concern, right, pecuniary stake, the legal concern of a person in the thing or property or in the right to some of the benefits or use from which the property is inseparable; such a right in or to a thing capable of being possessed or enjoyed as property which can be enforced by judicial proceedings. The word is capable of different meanings, according to the context in which it is used or the subject-matter to which it is applied, It may have even the same meaning as the phrase "right title and interest" but it has been said also to mean any right in the nature of property, but less than title. The word is sometimes employed synonymous with estate, or property.
A person interested is one having an interest; i.e., a right of property, or in the nature of property, less than title. The word 'interest' is the broadest term applicable to claims in or upon real estate, in its ordinary signification among men of all classes. It is broad enough to include any right, title, or estate in or lien upon real estate. One who holds a mortgage upon a piece of land for half its value is commonly and truly said to be interested in it.
26. The dictionary meaning of the term "claim" in Concise Oxford English Dictionary, Eleventh Edition, Revised at Pg.262 is stated as thus:
1. assert that something is the case.
2. demand as one's property or earnings.
27. The word "claim" is defined in Black's Law Dictionary, Eighth Edition at Pg.264 as the aggregate of operative facts giving rise to a right enforceable by a court ....
::: Downloaded on - 09/06/2013 19:45:42 :::jsn 9 NMS No.242_2013 .... The assertion of an existing right; any right to payment or to an equitable remedy, even if contingent or provisional ....
A demand for money, property, or a legal remedy to which one asserts a right: ...
28. The term "claim" is explained in Advanced Law Lexicon by P. Ramantha Aiyar, 3rd Edition 2007 at Pg.815 as a claim means the assertion of a cause of action. ...... Administration of Justice (Miscellaneous Provisions) Act, 1933, S.6(1) (b)] The term 'claim' is a word of very extensive signification embracing every species of legal demand. It is one of the largest words of law and includes 'demand' and 'debt'.
29. Hence it can be seen that upon having a right, title or interest in the property which is the subject matter of the suit, a party can by himself apply to intervene in the suit. He would be a defendant in the suit. He would be entitled to defend the suit and for that purpose to challenge the Plaintiff's claim. He, of course, may put up his claim which would be considered alongside the Plaintiff's claim, but having sought to intervene himself he cannot be disallowed from challenging the Plaintiff's claim in the suit. Issues arising between him and the Plaintiff would be framed which would be required to be answered considering his evidence, oral and documentary and challenge to this claim by the Plaintiff. He would, therefore, be entitled to cross examine the Plaintiff and to lead his own evidence and be cross examined by the Plaintiff upon his claim. His claim may be challenged by the other defendants in the suit likewise.
30. The claimant who intervenes upon leave being granted to intervene in the suit would have to simplicitor to prove his claim. There is no provision under which he can challenge the Plaintiff's ::: Downloaded on - 09/06/2013 19:45:42 ::: jsn 10 NMS No.242_2013 claim. He is not given notice to challenge the Plaintiff's claim: he is noticed to lodge and prove his claim. Even if he is allowed to intervene in the suit that would not be as a defendant in the suit. His claim would only be to the extent proved by him for determining the priority of all claims. He is, therefore, not a defendant in the suit who would be entitled to cross examine the Plaintiff.
31. Hence an intervener under Rule 949 and a claimant under Rule 951 (3) (d) belong to different classes.
One who appears of his own accord to be a party defendant;
and the other who appears pursuant to the Court's notice which is for determination of priority of claims.
32. This has to be viewed from yet another angle. Under Rule 951 the order for sale of the property and determination of priority of claims applies where a party has obtained or obtains an order or a decree against the property or the proceeds of sale.
33. They would include a Plaintiff who has already obtained decree. Even after such a Plaintiff obtains a decree in an admiralty suit, the proceeds of the sale of the ship or the ship itself which is the property in the suit would not be entirely disbursed to the Plaintiff alone. Even such a Plaintiff even in the absence of any other contest, would have to issue notice upon parties to make the claim to intervene in the suit and prove their claim under Rule 951 aforesaid.
That notice would be for determination of the priority of the claims if made and not to challenge the Plaintiff's decree already obtained.
34. In fact it may be stated that the defendants in the suit had argued before this Court in earlier application that until the Plaintiff obtains the decree, notice under Rule 951(3) could not be issued to invite claims to consider the priority of the claims and that would be ::: Downloaded on - 09/06/2013 19:45:42 ::: jsn 11 NMS No.242_2013 only after the decree is obtained. If that was so, there is no way in which those claimants would have cross examined the Plaintiff during the trial. That contention has, however, been negatived by the Division Bench of this Court and the claims allowed to be invited even pending the suit as the Plaintiff has already obtained an order against the sale of the property of the ship. The proceeds of the sale have been deposited in the Court. The spirit of that order is also in view of the acceptance of the Plaintiff's right to expedition of his own suit.
35. It is argued that the Plaintiff's application exhibits an indecent haste on the part of the Plaintiff. The aforesaid provisions show otherwise. In fact it is seen that the defendant No.1 ship has been sold. Proceeds are lying in the Court. All the defendants have shown their interest in the property and are accordingly allowed to intervene in the suit. Each of the defendants would be entitled to a part of the proceeds subject, of course, to proof of their interest. Each of the defendants who has challenged the Plaintiff's right to sue would be entitled to have the Plaintiff's claim dismissed in the suit. They would go further then the claimants who would apply pursuant to the notice and only prove their claim; they would also be entitled to disprove the Plaintiff's claim. However, all the defendants seem not be interested as much in expediting the suit as the Plaintiff and in obtaining their due share upon such proof. That itself is wondrous. Each defendant in admiralty suit who is allowed to intervene as to prove his own interest in the property and claim a part of it. He may also disprove the Plaintiff's interest and disallow Plaintiff to claim any of it. In an admiralty suit in which the ship has been sold, the proceeds of the ship is the property kept in the custody of the Court for whoever amongst the Plaintiff and defendants that proves his own title or interest in such property and of course, his own priority.
::: Downloaded on - 09/06/2013 19:45:42 :::jsn 12 NMS No.242_2013 There is, therefore, no reason for the defendants also not to expedite the suit as a whole and to commence leading evidence to prove their right, title or interest in the property which is the subject matter of the suit. Yet at every stage, as has been set out in the Plaintiff's affidavit, the defendants have sought to contest and delay, even if not defeat, the Plaintiff's right. Such delay is certainly to delay their own right as well.
36. It is the argument on behalf of the defendants that the intervener under Rule 949 and intervener under Rule 951 (3) (d) is the same, making each a defendant having the same rights and requiring equal treatment by the Court would have to be considered upon interpretation of the term "to intervene" based upon established principles of statutes.
37. The importance of a heading (title) of a Section in a group of Sections under a general heading as the key to the enactment and consequently the aid to the interpretation of the enactment came to be considered in the case of The Arrow Shipping Company, Ltd Vs. The Tyne Improvement Commissioners - the "Crystal" by the House of Lords in 1984 AC 508. The liability of the owner of a vessel which had been wreaked and abandoned and the Harbour Authority under Section 56 of the Harbours, Docks and Piers Clauses Act, 1847 came up for consideration.
The crystal was the ship of the appellants which sank near the approach to a harbour in the mouth of the River Tyne, the wreckage of which caused obstruction to navigation. There was no evidence of the collision or the negligence which might have caused it. The owner gave notice of abandonment of the ship to the underwriters and the harbour authority. The harbour authority took possession of the wreck, raised part of the cargo and sold it and ::: Downloaded on - 09/06/2013 19:45:42 ::: jsn 13 NMS No.242_2013 dispersed the remainder of wreck by explosives. It deducted the proceeds of the cargo from the expenses of removal of the wreck and sued the owner for the balance.
The Court had to consider whether it was the liability of the owner to remove the wreckage and hence the entitlement of the harbour authority to be reimbursed the balance upon doing what the owner should have done.
The Court also considered as to whether the appellant ship was the owner on the date of the removal of the wreckage in view of the abandonment duly notified and whether the destruction of the wreckage for removal was exceeding the authority of removal, but with which our debate is not concerned.
The liability for removal under the aforesaid section is material. The section run thus :
"The harbour-master may remove any wreck or other obstruction to the harbour, dock, or pier, or the approaches to the same, and also any floating timber which impedes the navigation thereof, and the expense of removing any such wreck, obstruction, or floating timber shall be repaid by the owner of the same, and the harbour-master may detain such wreck of floating timber for securing the expenses, and on non-payment of such expenses on demand may sell such wreck or floating timber, and out of the proceeds of such sale pay such expenses, rendering the overplus, if any, to the owner on demand."
Whereas Lord Herschell L.C. considered the circumstances in which the liability unknown to common law can be imputed upon an individual in the absence of clear statutory provision and accounted for the word inserted in the section, Lord Ashbourne, chose to read it as a whole, Lord Watson offered for the interpretation as per the intendment of the section considering the natural construction for ::: Downloaded on - 09/06/2013 19:45:42 ::: jsn 14 NMS No.242_2013 the words of the statute, Lord Macnaghten went deeper to cull from the title / heading of the section demonstrating the intent of the legislature thus :
The observation that occurs to one is that this section is found in a collection or group of clauses which are headed with the words: "And with respect to the appointment of harbour- masters, dock-masters, and pier-masters and their duties, be it enacted as follows." "An act so penned," says Lord Wensleydale, speaking of the Lands Clauses Consolidation Act, 1845, which is framed in a similar manner, "cannot be read as a continuous enactment would be; various clauses relating to each separate subject are collected under various heads, with an appropriate heading to each class, which must apply to the whole of that class of which it is the heading"; and he adds that the effect is the same as if the heading had been repeated at the head of each section (Eastem Counties, & c., Companies V. Marriage). The section, therefore, must be read in connection with the general heading. So read, it purports to be concerned primarily with the duties of harbour-masters, dock-masters, and pier-masters. That is the scope of the section and its proper province. The general heading supplies the key to the enactment. There is no indication that the enactment was intended to effect a serious alteration in the law to the prejudice and detriment of individuals. It rather seems to be indicated that nothing more was intended than to confer upon the harbour-master, acting in the public interest, power to do on behalf of the owner that which might be done by the owner in his own interest, with less regard perhaps to the interest of the public.
38. Thus was determined the harbour authority's liability for incurring expenses in removal of the wreckage of the ship in public interest, but with which also, except for the principle of interpretation, we are not concerned.
39. This judgment was followed by Justice Sir Chandaverkar in the case of Shiv Lal Padma dated 25th November, 1909 when the ::: Downloaded on - 09/06/2013 19:45:42 ::: jsn 15 NMS No.242_2013 Division Bench of this Court negatived the contention that an appeal lied to the Full Bench of the Small Causes Court, Bombay from the judgment of a Single Judge of that Court in the absence of a statutory provision for such appeal to such court unlike the provisions of appeal in the CPC, CrPC, differently worded. Whilst accepting the general practice of the Court through the years, the heading "New Trials & Appeals" in Chapter VI of the Presidency Small Causes Court Act, 1882 was held would be a key if main provision of the sections were ambiguously worded.
40. We are required to interpret the term "to intervene" in Rules 949 & 951. We are required to inquire whether they mean the same thing.
41. To interpret a given word in a statute or rules in conjunction with other similar words with which it is used or the same word used in different contexts elsewhere, the case of Gill V. Donald Humberstone & Co. Ltd., considered by the House of Lords reported in 1963 1 WLR 929 offers an apt guide.
In that case the words "working place" had to be construed taking into account the expression "working platform" in Regulation 24 of the Building (Safety, Health & Welfare) Regulations, 1948, the relevant part of which enacts :
(1) Subject to paragraphs (3), (4) and (5) of this regulation, every side of a working platform or working place, being a side thereof from which a person is liable to fall a distance of more than 6 feet 6 inches, shall be provided with a suitable guard-rail or guard-rails.
In that case two partners were painting the outer surface of a sloping roof using interlocked ladders joined at the apex of the roof, moving the ladders along as they progressed. In doing so, a fall ::: Downloaded on - 09/06/2013 19:45:42 ::: jsn 16 NMS No.242_2013 resulted in injury. Breach of statutory duty was claimed.
It was observed by Lord Reid :
The difficulty is to find what regulation 24(1) means. It applies where there is a "working platform or working place." There is no definition of "working place" and all that is said about "working platform" by way of definition in regulation 3 is that it "includes a working stage." A number of regulations deal with working platforms and it is not very difficult to get at least a general idea of what the phrase means from regulations 22, 23 and 25. The typical working platform appears to be a comparatively small temporary structure or contrivance on which a man can stand, or I suppose sit or kneel, when working on a building at some distance above the ground. But what is meant by a working place? The appellant says that it means any place at which a man happens to be working, but the respondents say that it has a much more limited meaning than that in this context.
They point to the fact that in other regulations e.g., regulation 5, there is express reference to "every place at which any person has at any time to work," and that in the old regulations of 1926 (SR & O 1926 No.738) the precursor of what is now regulations 24 - regulation 17 - referred only to working platforms. So "working place" was only brought in to supplement "working platform" when the regulations were expanded and redrafted. The respondents further maintain that to give a wide meaning to "working place" in regulation 24 would bring in many cases where it would be impracticable or at least quite unreasonable to apply its requirements.
In interpreting the terms, it was observed:
I find it necessary to make some general observations about the interpretation of regulations of this kind. They are addressed to practical people skilled in the particular trade or industry, and their primary purpose is to prevent accidents by prescribing appropriate precautions. Any failure to take prescribed precautions is a criminal offence. The right of compensation which arises when an accident is caused by a breach is a secondary matter. The regulations supplement ::: Downloaded on - 09/06/2013 19:45:42 ::: jsn 17 NMS No.242_2013 but in no way supersede the ordinary common law obligations of any employer to care for the safety of his men, and they ought not to be expected to cover every possible kind of danger. They have often evolved by stages as in the present case, and as a result they often exhibit minor inconsistencies;
overlapping and gaps. So they ought to be construed in light of practical considerations, rather than by a meticulous comparison of the language of their various provisions such as might be appropriate in construing section of an Act of Parliament. Section 60 of the Factories Act, 1937, empowers the Secretary of State to "make such special regulations as appear to him to be reasonably practicable and to meet the necessity of the case." So the Secretary of State, with the wealth of experience and practical knowledge available in his Department, must have thought the application of each provision to be reasonably practicable. Of course difficulties cannot always be foreseen and it may happen that in a particular case the requirement of a regulation are unreasonable or impracticable. But if the language is capable of more than one interpretation, we ought to discard the more natural meaning if it leads to an unreasonable result, and adopt that interpretation which leads to a reasonably practicable result.
42. In the light of such common sense interpretation we must interpret the words "to intervene" such as to derive a practical result of such intervention. Would it necessitate an intervention in a particular Admiralty Suit so as to prove to Court that the intervener also has a legitimate maritime claim which is entitled to be settled from the sale proceeds of the ship or whether it could have been contemplated by the High Court, the rule making authority to invite all and sundry to tell the Court whether the Plaintiff's claim is tenable at law, an aspect the Court is duty bound to see for itself and to satisfy itself without the aid, advise, or arguments of a stranger on invitation.
What a grotesquely impractical result it would have if the world at large is invited to challenge the Plaintiff's claim? Any one, even a busybody, would be entertained by the Court to be a defendant in the ::: Downloaded on - 09/06/2013 19:45:42 ::: jsn 18 NMS No.242_2013 Plaintiff's cause. The court would throw open its doors to various strangers and have to hear them in support of their contention, not why they should be paid any part of the sale proceeds, but why the Plaintiff should not be paid. That is neither the intendment nor the practicality of determination of such admiralty claims.
43. The title of Chapter XXVI of the Criminal Procedure Code, 1998 with the modifications of the Amendment of 1973 (CrPC) required consideration by the Supreme Court in the case of Sachida Nand Singh Vs. State of Bihar 1998 (2) SCC 493 following the case of Gill (supra). In that case the Supreme Court also considered the consequences and result of an interpretation to be adopted from amongst the two which the provision may be capable of.
The complainant sought to prosecute the charge of forgery and fabrication of documents which were forged long before the complaint was filed in a prosecution to consider possession of the parties under Section 145 of the CrPC. The complaint was forwarded for inquiry under Section 156(3) of the CrPC and a FIR was filed followed by a chargesheet whereupon a process was issued by the learned Magistrate which was sought to be quashed.
It was contended that the Court must itself institute prosecution under Section 195 (b) (ii) of the CrPC since the forged document was brought on the record of the Court. That would require the procedure under Section 340 of the CrPC to have been followed by the learned Magistrate.
It had to be interpreted whether the forged document contemplated under Section 195 (b) (ii) was a document forged whilst in the custody of the Court alone, or whether it would include a document forged long before it reached the Court, for then all forged documents would necessitate a prosecution by the Court if was ever ::: Downloaded on - 09/06/2013 19:45:42 ::: jsn 19 NMS No.242_2013 used in any Court requiring the Court to follow the procedure of such exercise under Section 340 of the CrPC. Consequently, no prosecution on a forged document would be undertaken by a private individual.
The Supreme Court adopted the narrower restricted interpretation of the section in the chapter titled "Provision as to Offences affecting administration of Justice" to hold that all forged documents cannot fall within the perview of affecting administration of justice merely because an offence under the Indian Penal Code was committed. Hence all forged documents, forged long before the production in Court could not fall within the mischief of the chapter necessitating the process of the Court itself. In para 8 of the judgment the court visualised the "unsavoury consequences" of a broad interpretation of taking into the sway of the prosecution by the Court all forged documents, even which were not forged whilst they were custodia legis. The Court held that the mischievous consequences contemplated from such an act must be averted by adopting a narrower interpretation and by adopting an interpretation which would lead to an reasonably practicable result.
The need for such interpretation of "to intervene" is required as would not beget the "unsavoury" result of a claimant cross-examining the Plaintiff.
The defendants would have the court read each word of the Rule and interpret it literally. Hence it is argued that "to intervene" is the intervene as a defendant. The absurd result that would follow such a course need not bear repetition. But the grammar of the Rule as to what all the claimants would require to do need not detain the Court into holding that the claimant should first intervene, then be a defendant, and in doing so not only lead his / her ::: Downloaded on - 09/06/2013 19:45:42 ::: jsn 20 NMS No.242_2013 / its own evidence, but cross examine the Plaintiff and then prove his / her / its claim and obtain a decree.
A statute may be "read down"; it is never known to have ever been "read up". But in reading down a statute violence to grammar has been oft permitted.
44. The rule of statutory interpretation forseeing the result of the interpretation came to be made in the case of Artemiou V. Procopiou by the Court of Appeal in England reported in [1965] 3 WLR 1011 = 1 Q B 878. The expression "Tenancy or Successive tenancies" came up for consideration. After a tenancy is created, the tenant created a sub-tenancy. The question before the Court was whether at the tail end of the period of tenancy a sub-tenancy could be created. The Court considered the "unreasonable result" of such creation. It sought to include in the expression the original tenancy as also the later ones upon the reasoning.
In my opinion, "the interest of the landlord" (the material words) cannot have the meaning which has been suggested on behalf of the tenant, as such a construction would produce plain injustice to a landlord who has held the holding under successive tenancies for a long period of years, An intention to produce an unreasonable result is not to be imputed to a statute if there is some other construction available. In the present subsection the result contended for would be quite irrelevant to the mischief which the statutory provision was intended to meet, namely, the prevention of exploitation of tenants by speculators. The provision cannot have been intended to defeat landlords who have been landlords of the holding for a long period, even if their title, has been renewed within the last five years. There is a perfectly reasonable construction available which avoids such an unfortunate result.
45. Should a reading of the aforesaid principles not drive this ::: Downloaded on - 09/06/2013 19:45:42 ::: jsn 21 NMS No.242_2013 Court to consider the unintended unreasonable result of a person claiming priority, invited to do so, be the one who does only that, without more? Can he be allowed to drive the litigation at his whim into unchartered waters attacking the Plaintiff's original claim itself? It would be like the camel in the fable who drove out the Arab from the tent upon being allowed to put his neck in the tent against the night's bitter cold. Such was never the intention of granting others a finger in the pie of the plaintiff.
46. Rule 951 cannot be read as to include the intervener much like the intervener under Rule 949. He must abide the purpose for which he is invited and noticed. He can and must only prove his claim and his priority. He cannot go any further. That would be unwarranted transgression, unintended by the Rules.
47. The case of Artemiou (supra) has been followed in the case of Harendra Gangadar Doshi V/s. Additional Secretary to Govt. of India. New Delhi, 1985 or LR 293 by the Full Bench of the Delhi High Court. Chief Justice Poti for the bench read down the provisions of the otherwise very strictly interpretable statute of Conservation of Foreign Exchange and Prevention of Smuggling Act, 1974 in construing the satisfaction of the detaining authority to detain a person whether he is thought to smuggle certain goods or whether he was likely to do so. This would be prior to his detention though the statute required satisfaction on the date of detention. It was held that a little violence to the language of the statute, even a statute containing the liberty of a citizen would be in order. Since the section could not be rendered unworkable or to make the result absurd by giving undue importance to grammar - a good guide, but a bad master as observed by Justice Krishna Iyer in Carem & Co. Ltd. Vs. Union of India, AIR 1975 SC 2260 referred to in para 6.
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48. Seeing the situation any which way, and adopting reasonable interpretation to obtain a practicable result of the exercise, the interpretation put by the defendants which would needlessly delay the trial and the rights of all the parties - the plaintiff as much as the defendants - in proving their respective claims must be eschewed.
49. The contention is, therefore, seen to be incorrect not only because the two rules specifying the eligibility of the two interveners is different, but the purpose for which they would intervene is also different. Consequently simply because the persons who lodged their claim are termed "interveners" by the defendants because they would obtain leave to intervene, they are not persons belonging to the same class. They would be given leave to intervene only to prove their claim before Court and not to disprove the Plaintiff's claim by cross examining the Plaintiff whether they seek to intervene before the Plaintiff obtains a decree or after the Plaintiff obtains decree in the suit.
50. Consequently, the trial in the suit must proceed. The Plaintiff diligently claims its own rights. That is not the demerit of the Plaintiff. Every plaintiff is entitled to apply for expedition, subject, of course, to the Court's dockets. The Court is also obliged to allow every Plaintiff to proceed with the trial, subject, of course, to its own docket. Conversely a defendant in the suit cannot prevent the Plaintiff to proceed with his own suit and the court is obliged not to allow the defendant who seeks to do, to do so.
51. It may be mentioned that the amendment in the CPC have been made to expedite the trials and not delay them or keep them pending. The cudgels taken up by the defendants for parties in futuro who have limited right to lodge and prove their claim to determine their priority itself smacks of lack of bonafides and an effort to at least ::: Downloaded on - 09/06/2013 19:45:42 ::: jsn 23 NMS No.242_2013 delay, if not defeat, the Plaintiff's claim. In fact it is seen that that exercise would be counterproductive : it would as much delay, if not defeat, their own claim. That is not an exercise which a court can countenance.
52. In fact it is seen that the Plaintiff need not have taken out this Notice of Motion. The Plaintiff is entitled to file its affidavit of evidence along with affidavit of documents and offer inspection of its documents to the defendants. The admissibility of the documents would then be required to be considered by the Court.
53. The Plaintiff's affidavit of evidence and documents is filed.
The affidavit of examination in chief of the Plaintiff is required to be accepted on record under the provisions of Order 18 Rule 4 of the CPC. The Plaintiff shall serve copies of the affidavits upon all the defendants, if not already done and offer the documents for inspection if not yet offered.
54. The suit is adjourned to 8th April, 2013 for that purpose, for considering the admissibility of the documents of the Plaintiff and passing further case management directions under Order 18 Rule 4 of the CPC.
( ROSHAN DALVI, J. ) ::: Downloaded on - 09/06/2013 19:45:42 :::