Loyalty oath as proof of innocence.

Loyalty oath for tax exemption:

Innocence: Negative burden of proof by loyalty oath.

The State of California allowed an exemption of property tax for veterans of World War II. Anyone desiring to claim the exemption was required to complete a standard form of application and submit the form with the local tax assessor. In 1954, the form was revised to add a loyalty oath which the applicant must sign which stated

“I do not advocate the overthrow of the Government of the United States or of the State of California by force or violence or other unlawful means, nor advocate the support of a foreign government against the United States in event of hostilities.”

The appellants refused to sign the oath contending the condition of requiring the oath in order to obtain a tax exemption was unconstitutional.

The Supreme Court of America ruled as under:

“…when the constitutional right to speak is sought to be deterred by a State’s general taxing program due process demands that the speech be unencumbered until the State comes forward with sufficient proof to justify its inhibition. The State clearly has no such compelling interest at stake as to justify a short-cut procedure which must inevitably result in suppressing protected speech. Accordingly, though the validity of § 19 of Art. XX of the State Constitution be conceded arguendo, its enforcement through procedures which place the burdens of proof and persuasion on the taxpayer is a violation of due process. It follows from this that appellants could not be required to execute the declaration as a condition for obtaining a tax exemption or as a condition for the assessor proceeding further in determining whether they were entitled to such an exemption. Since the entire statutory procedure, by placing the burden of proof on the claimants, violated the requirements of due process, appellants were not obliged to take the first step in such a procedure.”

[Source: Speiser v. Randall, 357 U.S. 513 ]
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Defamation of Godman!

Godman Nirmal Baba required protection of the Court

Introduction of Godman Nirmal Baba

Nirmal Baba, former name Nirmaljit Singh Nirula, was born in 1952 in Samana, India, near Patiala Punjab, to a Namdhari Sikh family and is the youngest of two brothers and three sisters. He grew up in Palamau, Jharkhand after his parents shifted there in the fifties. He is married to Sushma Narula and has a daughter and a son.
Nirmaljit Singh began his brick kiln business in 1981. However, he suffered losses and following this, he started a cloth shop but again failed in his venture. He was then involved in mining of Kyanite from Jyoti Hill, Jharkhand in 1998–1999. He claims to have attained nirvana in a Jharkhand jungle in the 1980s. He then cut his Sikh hair, shaved off his beard and adopted the name Nirmal Baba. (source: Wikipedia) It may be noted that renunciation is alien to Sikhism.

Godman or Sikh Monk?

India, the land of Godmen and Sadhus:

Our country was perceived as the land of the sadhus and saints since time immemorial where karma and spirituality took precedence over economic development. Though we have come a long way, as the world anointed us as the next economic superpower, the mystical sadhus and the Godmen have not left the picture, the difference may be that some of the sadhus travel by a private jet and have a turnover worth crores making even the business tycoons feel jittery. The superstitions and  beliefs of people are manifested in various forms like astrology, witchcraft, different therapies and the like. The God Market that has come about in India has struck a chord abroad and the Babas and saints, innumerable and diverse have a tutelage they boast of including a nobody to a celebrity. Whether India or abroad, people all over are afflicted with problems, different in magnitude and type but for each of them, their individual problem or misery, is the biggest crisis of their lives and anyone who can claim to heal or provide a shortcut to alleviate their pain and suffering occupies the stature of God in their lives . The people who are followers of various saints and Godmen believe in their miraculous healing powers through which bodily afflictions or mental agony or pain gets cured. This is opposed to the earlier view where the saint shared a relation of a guru and a disciple and the guru was the master and teacher of various scriptures but now some of them claim to have mystical powers and claim to know the inner worlds and minds of their followers. It is the stories of their miraculous healing that make them what they are and the media augments their cause further. These Godmen resort to various methods and each of them claim to be unique and have an individual connection with the Almighty. Let this not be understood to mean that there is dearth of saints who enjoy real spiritual powers and are alleviated souls. Such saints often live a life in oblivion. To quote an example Swami Dayanand Saraswati who was a great spiritual leader and a social reformer found his Spiritual Guru in a blind man, named, Swami Virjanand, who lived in a hut, and after having received lessons at the feet of his spiritual Guru, he asked him as to what he could offer him as Guru-Dakshina- the Guru replied “Spread my message to the world and that will be my Guru Dakshina”. Such were the saints that this country have produced and known.
This court cannot help but sound a word of caution that this sudden resurgence of the babas who claims to have mystical powers and give all kind of illogical solutions to overcome the miseries of people has amplified and glorified superstition and has turned the clock back of development in our country.

Magical remedies of Godman:

In the present case on perusing through the content of the website of the defendants placed on record, it appears that the defendants have a series of articles against the plaintiff calling him names like “thug baba”, “Chor”, “fraud nirmal darbar”, darbar as “thug darbar”. Not commenting on the veracity of the allegations levelled against the plaintiff, the defendants have in the opinion of this court gone a step ahead of its rights of freedom of press. It also cannot be forgotten that the reach of the internet as a medium is vast and far reaching than print and electronic and the click of a mouse can disseminate in a split second the views of anyone. Having said this, the plaintiff who claims himself to be a Baba and Spiritual Guide and through his Samagams and telecast of his discourses through various T.V. Channels, like other public figures is under constant public and media gaze, should not be sensitive to and rather should be open to criticism and scrutiny.
The plaintiff advising his disciples in the Samagams and through media, millions of people watching television to open black purses at the time of showering of his blessings then the same will result in inflow of money to them and likewise to tell people to eat Rabri, Masala Dosa or Paani Poori to overcome their miseries, are the kind of solutions which are highly irrational, weird and unacceptable to commonsensical notions, bound to result in backlash by the media and other such agencies. This is exactly what has happened that the plaintiff Nirmal Baba because of his totally illogical and unacceptable solutions, he is being termed as fraudster, Thag, Natwar Lal and so on and so forth by the defendants. The plaintiff cannot expect the media to be a silent spectator and to allow such a  person to exploit the sentiments of the people who in their innocence would easily believe in whatever such kind of Babas tell their disciples to do.

Conditional injunction against defamation.

It is a fit case for the grant of a conditional injunction. The defendants are accordingly restrained from licensing, writing, publishing, hosting or advertising any defamatory material against the plaintiff on their website or through any other print/electronic media to defame the reputation of the plaintiff subject to the condition that the plaintiff also restrains himself in future from giving any kind of absurd or illogical solutions to his disciples and others, and, confines his discourses to all such kind of teachings through which the life of common man can improve and improve in the right direction.

Nirmaljit Singh Narula vs Sh. Yashwant Singh (Delhi High Court)

Scope of Review of judgement by Civil Court

Review of an order or judgement by Civil Court:

What is Review:

The dictionary meaning of the word “review” is “the act of looking; offer something again with a view to correction or improvement. It cannot be denied that the review is the creation of a statute.

The power of review is not an inherent power. It must be conferred by law either specifically or by necessary implication. The review is also not an appeal in disguise. If cannot be denied that justice is a virtue which transcends all barriers and the rules or procedures or technicalities of law cannot stand in the way of administration of Justice. Law has to bend before Justice. If the Court finds that the error pointed out in the review petition was under a mistake and the earlier judgment would not have been passed but for erroneous assumption which in fact did not exist and its perpetration shall result in miscarriage of justice nothing would preclude the Court from rectifying the error.

[Source: Lily Thomas v. Union of India. (Supreme Court of India)]

 

Review literally and even judicially means re-examination or reconsideration. Basic philosophy inherent in it is the universal acceptance of human fallibility. Yet in the realm of law the courts and even the statutes lean strongly in favour of finality of decision legally and properly made. Exceptions both statutorily and judicially have been carved out to correct accidental mistakes or miscarriage of justice. Even when there was no statutory provision and no rules were framed by the highest court indicating the circumstances in which it could rectify its order the courts culled out such power to avoid abuse of process or miscarriage of justice.

[Source: S. Nagaraj v. State of Karnataka, 1993 Supp.(4) SCC 595. (Supreme Court of India)]

 

Power of review in writ jurisdiction:

All proceedings in a civil Court terminate in a decision being given by the Judge and that decision constitutes the order of the Court. It is an order within the meaning of Section 2(14) which defines “order” as the formal expression of any decision of a civil Court which is not a decree. This is not a decree because it is not the formal expression of an adjudication in a suit. If it be the formal expression of the adjudication by the Court in a civil proceeding, the formal expression must take the shape of an order, and, therefore, it is clear beyond doubt that the decision of this Court on the writ application was an order within the meaning of the Civil Procedure Code. If that is so, let us turn to Section 114 to see what the effect of this view is with regard to the power of the High Court to review an order made on a writ application.

A review lies under Section 114 from a decree or order from which an appeal is allowed by the Court, but from which no appeal has been preferred. When we turn to Section 109, an appeal is allowed against an order if the High Court certifies the order to be a fit one for appeal, and although an appeal is allowed no appeal admittedly has been preferred from this order and therefore if the other conditions laid down by Order XLVII are satisfied, then it is difficult to understand why the High Court has no power to review an order passed on a writ application. Such an order is one which clearly falls under Section 114(a).

[Source: Appa Ramgonda Patil v. Dattatraya Vinayak Tengshe, (1958) 60 Bom LR 1312]

Scope of Review and distinction with correction of mistake:

Relevant Code: Civil  Procedure Code, 1908, Section 114, 151, 152,153 read with Order 47 Rule 1.

[R]eview of a judgment or decree lies inter alia where a mistake or an error apparent on the face of the record can be shown or where some new and important evidence has been uncovered. From a bare reading of the aforesaid provisions, it is clear that a review would lie where a party is able to show that the court has failed to consider a plea made by it or record a finding on the same or where the court has omitted to consider a relevant piece of evidence or new evidence has arisen subsequently which was not before the court at the time of hearing, inspite of due diligence on the part of such a party. It is evident that the court’s power of review envisages an enquiry into the merits of the case, which the court has omitted to take notice of in the first instance. The said power of review is quite distinct from the inherent powers of the court under Section 152 and 153 read with Section 151 to correct an accidental arithmetic or clerical mistake or error. It is relevant to note that both the powers are mutually exclusive, and cannot tread into each other’s realm. Any other interpretation would amount to overstepping the parameters laid down in the provisions. It is settled law that in the garb of correction of mistakes arising out of accidental slips or typographical errors, the judgment itself cannot be altered or modified by a Court in exercise of its inherent power.

[Source: MAJOR GENERAL KAPIL MEHRA v. UNION OF INDIA (Delhi)]

 

The Federal Court which preceded the Supreme Court of India, prior to independence, had no express power of review. Federal Court however, observed that even though no rules had been framed permitting the highest Court to review its order yet it was available on the limited and narrow ground developed by the Privy Council and the House of Lords.

[Source: Raja Prithwi Chand Lal Choudhury v. Sukhraj Rai (AIR 1941 FC 1,2 : 1940 FCR 78 : (1941) 1 MLJ Supp 45)]

 

An order made by the Court was final and could not be altered …neverthless, if by misprision in embodying the judgments, by errors have been introduced, these Courts possess, by Common Law, the same power which the Courts of record and statute have of rectifying the mistakes which have crept in….The House of Lords exercises a similar power of rectifying mistakes made in drawing up its own judgments, and this Court must possess the same authority. The Lords have however gone a step further, and have corrected mistakes introduced through inadvertence in the details of judgments; or have supplied manifest defects in order to enable the decrees to be enforced, or have added explanatory matter, or have reconciled inconsistencies.

[Source: Rajunder Narain Rae v. Bijai Govind Singh (1836) 1 Moo PC 117]

It is impossible to doubt that the indulgence extended in such cases is mainly owing to the natural desire prevailing to prevent irremediable injustice being done by a Court of last resort, where by some accident, without any blame, the party has not been heard and an order has been inadvertently made as if the party had been heard.

[Source: R v Bow Street Metropolitan Stipendiary Magistrate and others, ex parte Pinochet Ugarte (No.2)’s case, 1999 (1) All ER 5770]

The role of judiciary merely to interpret and declare the law was the concept of bygone age. It is no more open to debate as it is fairly settled that the courts can so mould and lay down the law formulating principles and guidelines as to adapt and adjust to the changing conditions of the society, the ultimate objective being to dispense justice. In the recent years there is a discernable shift in the approach of the final courts in favour of rendering justice on the facts presented before them, without abrogating but by-passing the principle of finality of the judgment.

Almighty alone is the dispenser of absolute justice – a concept which is not disputed but by a few. We are of the view that though Judges of the highest Court do their best, subject of course to the limitation of human fallibility, yet situations may arise, in the rarest of the rare cases, which would require reconsideration of a final judgment to set right miscarriage of justice complained of. In such case it would not only be proper but also obligatory both legally and morally to rectify the error. After giving our anxious consideration to the question we are persuaded to hold that the duty to do justice in these rarest of rare cases shall have to prevail over the policy of certainty of judgment as though it is essentially in public interest that a final judgment of the final court in the country should not be open to challenge yet there may be circumstances, as mentioned above, wherein declining to reconsider the judgment would be oppressive to judicial conscience and cause perpetuation of irremediable injustice.

[Source: Rupa Ashok Hurra vs Ashok Hurra]
Thus rectification or review of an order thus stems from the fundamental principle that justice is above all. It is exercised to remove the error and not for disturbing finality.

India: Law of Cheating needs amendment.

Law against cheating in India

Burden of proof in trial of cheating:

Indian Penal Code, 1860, Section 415 & 420.

It is well known that Legislature enacts laws, to arrest unsocial or undesirable activities, which cause harm to the society at large, and prescribes deterrent punishments to prevent such activities taking place. Judicial notice can be taken of the fact that there is a sea change in the human values and that human values etc. of 21st century are different from those prevailing in the 19th century. History tells us the people in this country, generally, were honest and law abiding during 1860 i.e. 19th century when IPC came into force on 6.10.1860, when with one rupee a person could purchase more than one bag of rice and some gold also. Now a bag of rice costs more than Rs.1,000/-Salaries of many government servants and officers at that time were in two figures. Now even a class four employee earns four figure salary. Obviously keeping in view the said fact recent enactment like Narcotic Drugs and Psychotropic Substances Act,1985 and Information Technology Act,2000 prescribe fine in lakhs of rupees for the offences committed under those enactments. But the fine prescribed in IPC way back in 1860, which at that time could be a deterrent, remained unchanged even till now i.e. more than 140 years after IPC was enacted.

Burden of proof in cheating cases should be shifted to the accused and the amount of fine must be suitably increased:

In the present day situation the meager fine prescribed in several Sections of I.P.C. can, by no stretch of imagination, be said to be a deterrent to prevent such offences. Since Greed to become rich over night, by any means, has become the order of the day, and taking notice of the fact that several individuals and bogus institutions, by promising rich returns, are luring innocent people into investing their hard earned money with them and are vanishing overnight, Legislature, in an attempt to prevent such operations, made some laws, obviously because such acts may not fall under ‘cheating’ as defined in Section 415 I.P.C. ‘Cheating’ as understood by a common man is different from ‘cheating’ as defined by Section 415 IPC, because for ‘cheating’ to be an offence under IPC, intention to cheat even at the time of entering into the transaction has to be established. In the present day situation when honesty became a very rare commodity, and since nobody would make apparent his intention to cheat even at the time of inception, and since persons resort to cheating only after creating confidence about his being honest in the mind of the man he intends to cheat, in my considered opinion it may be in the fitness of things, and to suit the present day need, to cast the burden to establish that he had no intention to cheat on the accused, by making suitable amendment to Section 415 IPC. It is for the concerned authorities to take a decision.

per JUSTICE C.Y.SOMAYAJULU  in Vishal Paper Tech India Ltd. v. State of Andhra Pradesh , (AP)

Judgement must contain reasons

Why judgment must contain reasons:

It is duty of the Judge to uphold his own integrity and let the losing party know why he lost the case.

Reason is the heartbeat of every conclusion, and without the same it becomes lifeless.

The absence or reasons has deprived the Supreme Court from knowing the circumstances which weighed with the High Court to dismiss the matter in limine. It was an unsatisfactory method of disposal. The necessity to provide reasons, howsoever brief, in support of the High Courts’ conclusions is too obvious to be reiterated. Obligation to give reasons introduces clarity and excludes or at any rate minimises the chances of arbitrariness and the higher forum can test the correctness of those reasons. It becomes difficult for this Court in all such cases to remit the matters to the High Court inasmuch as by the time cases reach this Court, several years would have passed. In an article ‘On Writing Judgments’, Justice Michael Kirby of Australia [(1990) (Vol.64. Australian Law Journal p.691)] has approached the problem from the point of view of the litigant, the legal profession, the subordinate Courts/tribunals, the brother Judges and the judges’ own conscience. To the litigant, the duty of the Judge is to uphold his own integrity and let the losing party know why he lost the case. The legal profession is entitled to have it demonstrated that the Judge had the correct principles in mind, had properly applied them and is entitled to examine the body of the Judgment for the learning and precedent that they provide and for the reassurance of the quality of the Judiciary which is still the centre-piece of our administration of justice. It does not take long for the profession to come to know, including through the written pages of published judgments, the lazy Judge, the Judge prone to errors of fact etc. The reputational considerations are important for the exercise of appellate rights, for the Judges’ own self-discipline, for attempts at improvement and the maintenance of the integrity and quality of our judiciary. From the point of view of other Judges, the benefit that accrues to the lower heirachy of Judges and tribunals is of utmost importance. Justice Asprey of Australia had even said in Pettit vs. Dankley [(1971 (1) NSWLR 376 (CA)] that the failure of a Court to give reasons is an encroachment upon the right of appeal given to a litigant. In our view, the satisfaction which a reasoned Judgment gives to the losing party or his lawyer is the test of a good Judgment. Disposal of cases is no doubt important but quality of the judgment is equally, if not more, important. There is no point in shifting the burden to the higher Court either to support the judgment by reasons or to consider the evidence or law for the first time to see if the judgment needs a reversal.

[Source: Hindustan Times Limited vs Union of India (Supreme Court of India) See also  Fauja Singh vs. Jaspal Kaur (1996 (4) SCC 461)]

 

Providing of reasons in orders is of essence in judicial proceedings:

Every litigant who approaches the Court with a prayer is entitled to know the reasons for acceptance or rejection of such request. Either of the parties to the lis has a right of appeal and, therefore, it is essential for them to know the considered opinion of the Court to make the remedy of appeal meaningful. It is the reasoning which ultimately culminates into final decision which may be subject to examination of the appellate or other higher Courts. It is not only desirable but, in view of the consistent position of law, mandatory for the Court to pass orders while recording reasons in support thereof, however, brief they may be. Brevity in reasoning cannot be understood in legal parlance as absence of reasons. While no reasoning in support of judicial orders is impermissible, the brief reasoning would suffice to meet the ends of justice at least at the interlocutory stages and would render the remedy of appeal purposeful and meaningful. It is a settled canon of legal jurisprudence that the Courts are vested with discretionary powers but such powers are to be exercised judiciously, equitably and in consonance with the settled principles of law. Whether or not, such judicial discretion has been exercised in accordance with the accepted norms, can only be reflected by the reasons recorded in the order impugned before the higher Court. Often it is said that absence of reasoning may ipso facto indicate whimsical exercise of judicial discretion.

[Source: State of Rajasthan v. Rajendra Prasad Jain(Supreme Court of India)]
[See also  Shroff v. Mistry (Gujarat High Court) which contains extracts from virtually all similar decisions of Supreme court of India on the subject.]

Over-reaching the process of court

Restoring equity in case of over reach:

Over-reaching to manipulate witness:

A party cannot be permitted to over reach the process of the Court to communicate directly with the witness when it itself had summoned him in terms of Order XVI of the Code of Civil Procedure, 1908. In any event, it was the duty of the petitioner to be fair to this Tribunal by bringing it to its notice that it had addressed such a letter to BECIL in relation whereto attention of witness was drawn. The cross-examination of expert witness is a different matter but an expert representing an independent agency is not expected to meet either of the parties to the lis or their counsel. If an expert witness has appeared before a Court of law having received the summons, he can only attend the Court and express his opinion on the subject on which he has been asked to depose. It is not a case where this Tribunal can condone a lapse on a part of a party to the lis. For all intent and purport, the action on the part of the petitioner amounts to over-reaching the process of law. It must be deprecated in strongest terms.

[Source: Ortel Communications Ltd v. Zee Turner Ltd. (Telecom Tribunal)]

Over-reaching the process of court:

Where it appears that the orders if passed by court, will be rendered ineffectual, court may pass orders in mandatory form to restore equity.

if a party knowing that his opponent has either approached the Court or is taking steps to approach it for a certain specific relief, does anything to make the grant of the relief by way of prevention in effective, the Court has always jurisdiction to pass Orders even in ordinary cases in a mandatory form and to direct restoration of the status quo ante in a manner and to the extent possible.  It will be a fortiori case when the relief claimed is for a grant of any of the Writs and of direction contemplated by Article 226 of Constitution of India.”
[Sources: OUSEPH V/S G. P. TAHSILDAR, Minister for Food,AIR 1951 Travancore 226 (DB) followed in Joseph v. Asst. Excise Commissioner and others, A.I.R. [1953] Travancore ‑ 145. and also in THIYAGARAJAH v.SHAHUL HAMEED 1984 SLR (1) 98 (Sri Lanka)]

Evidence in trial under Official Secrets Act.

Right of defendant in trial under Official Secrets Act of India:

In camera trial:

Section 14 Official Secrets Act does not take away the right of the accused to get copies of either the statements recorded by the police or the documents gathered by it during investigation.

As long as the prosecution is relying upon the documents forwarded by it to the trial Court along with the chargesheet it will not be open to the prosecution to deprive the accused the copies of those documents.

1. That Section 14 apart from providing that proceedings of the Court may be held’ in camera under the circumstances mentioned in the section, does not in any way affect or override the provisions of the Criminal Procedure Code relating to enquiries or trials held there under.
2. That Section 14 does not in any way deprive the valuable rights of the accused to get copies of the statement recorded by the Magistrate or statements of witnesses recorded by the police or the documents obtained by the Police during the investigation as envisaged by Criminal Rules 308 and 310 framed under the CrPC by various High Courts nor does Section 14 in any way affect the right of the accused to get copies under Section 548 of the CrPC
3. That the opening words of Section 14 do not amount to a non obstante clause but are merely in the nature of an enabling provision reserving the inherent powers of the Court to exclude the public from the proceedings if the Court is of the opinion that it is just and expedient to do so.

[Source: Superintendent & Remembrancer v. Satyen Bhowmick, 1981 AIR 917, 1981 SCR (2) 661.
followed in Ujjal Dasgupta vs State (Del.)]

Summary suit for post paid mobile phone bill.

Summary suit filed on the basis of phone bill:

Itemized phone bill or printout:

The itemized computer generated hard copy is nothing but a human/readable averment of electronic document or data. The validity of computer record has to be decided from various angels and processing at every stage. The human interference or manual feeding or input of data just cannot be overlooked. The computer is nothing but a creation of human intellectual. The computer programme that generates the record/document without further manual or human interference like mathematical calculations, like processing itemized bill. Unless specifically challenged and disputed, the documents so generated just cannot be overlooked, and need to be treated as correct and genuine and unless proved contrary by bringing material on record. “The computer” of the Plaintiff cannot be stated to be a “Personal Computer”, as, the use of mobile services, national or international, have been recorded automatically at various stages. The printouts are nothing but hard copy from the Manstream computer, based upon the data. There is no challenge to the Plaintiff’s computer system. It is well recognized and convenient mode of recording data and the material for further mathematical calculation based upon the agreed terms and tariff plan. There is no further material or evidence and/or even averments to challenge such permissible recording mode of service based upon the actual use by the Defendant. The vague challenge is only of tariff rate. In the present case, in view of the binding agreement and the conditions, the defence of no knowledge of rate is apparently afterthought, sham, bogus and unacceptable.

Itemized bills/ printouts are authenticated documents and reliable to accept the case of the Plaintiff with regard to the usage of Mobile services by the Plaintiff and the mathematical calculation of the charges so derived at, based upon the agreed tariff plan, as per the binding contract. This falls within the concept of the acknowledgment or receipt of liability and data. The Summary Suit as filed, therefore, maintainable and so also the Summons for Judgment.

Possibility of computer fraud:

The computer is invention of human being. The risk and danger of such system cannot be denied. The possibility of defaults in softwares and hardwares is always there. So also because of in carrying out resources apart from manual possible interference in the computer system and data like other system the computer is also suffers because of internal as well as outer problems and vireses. I am inclined to observe that the computer evidence is not infallible. If the case is made out of manipulation, interpolation and corruption in reproduction and if the party able to show the computer defaults or failures in any part of technical or organizational characters and of related aspect of any stage from the manual feeding upto the production of physical record or document and even the defaults and mistakes in mathematical and calculation, then it needs to be decided taking into consideration its cumulative effect on ultimate printouts/ documents from such computer.

When there is no challenge to the Plaintiff’s computer equipment, program, government policies, procedure for use of the equipment, data based and reproduction of its hard copy through printout bills.

Vague assertions:

The aspect of TRAI rules and regulations on such service provider and the governing law also a relevant factor to accept the case of the Plaintiff. There is nothing on record to challenge that the Plaintiff has used unstandard equipment and entries or the input though to some extent and/or some stage human related, was not in the regular course of business. There is nothing to show that such printout or procedure is impermissible as wrong method or mechanism have been used to generate printouts or itemized bills. Mere allegations of challenge to the authenticity and the calculation for want of knowledge about the direct plan is not sufficient to treat untrustworthy and unreliable. There is no challenge to the authenticity, integrity and reliability of the modes, stature, control and proceedings of the form of transmission of the data. 26 There is no serious dispute with regard to the itemized bill and the way and the procedure by which it is generated, as it is within the purview and ambit and as per the provisions of law and directions of TRAI. As per the agreement, the Defendant is bound to pay for services rendered by the Plaintiff on billing statement as raised. The Suit so filed therefore, is based upon the contract between the parties. Itemized bill therefore, in my view need to be considered as acceptance of liability and/or acknowledgment of the amount due and payable as elaborated in the Full Bench Judgment of this Court Jyotsna K. Valia Vs. T.S. Parekh & Co., 2007(4) Mh.L.J. 517.

Compliance of section 65-B of Evidence Act not required?:

In view of the above undisputed position on record, with regard to the computerised bills and as the plaintiff has not filed supporting affidavit as required under Section 65-B of the Evidence Act, still I am inclined to rely upon those computerised printouts which are admissible and as permissible to treat as supporting documents to pass and/or grant summons for judgment as prayed.

[Source: Vodafone Essar Ltd vs Raju Sud, (Bom). (per Anoop V.Mohta, J.)]

Thus a post paid mobile phone bill is a contract and summery suit on the basis of mobile phone bill is maintainable.

Note: The above decision appears to be a result of rather desperate reasoning. It simply ignores the principle of burden of proof. Not only the principle but also waives the procedure of proof of computer generated printouts which is laid down in section 65-B of Evidence Act.

Witness in court through attorney

Is power of attorney holder, a competent witness to depose on behalf of the principal?

Attorney is a mere legal representative or an agent. Without anything more s/he can not have personal knowledge of the acts done by the principal, directly. Can such an attorney be competent witness?

Agent/ attorney under Civil Procedure code 1908, Order 3 Rule 1 & 2.

There was a divergence of opinion in different High Courts on the above question which was settled by Supreme Court as under:

The question whether the appellants have any independent source of income and have contributed towards the purchase of the property from their own independent income can be only answered by the appellants themselves and not by a mere holder of power of attorney from them. The power of attorney holder does not have the personal knowledge of the matter of the appellants and therefore he can neither depose on his personal knowledge nor can he be cross-examined on those facts which are to the personal knowledge of the principal. Order III, Rules 1 and 2 CPC, empowers the holder of power of attorney to “act” on behalf of the principal. In our view the word “acts” employed in Order III, Rules 1 and 2 CPC, confines only in respect of “acts” done by the power of attorney holder in exercise of power granted by the instrument. The term “acts” would not include deposing in place and instead of the principal. In other words, if the power of attorney holder has rendered some “acts” in pursuance to power of attorney, he may depose for the principal in respect of such acts, but he cannot depose for the principal for the acts done by the principal and not by him. Similarly, he cannot depose for the principal in respect of the matter which only the principal can have a personal knowledge and in respect of which the principal is entitled to be cross-examined.
[Source: Janki Vashdeo Bhojwani v. Indusind Bank Ltd., (2005) 2 SCC 217.]