Is Your Opponent Even Alive?
A path-breaking judgement of the Bombay High Court can help all litigants on unending cases where they do not know if the opposite party is dead or alive
Prof Kelwadi is an advocate. He teaches law. A good friend, he was the advocate mentioned in an earlier article on judicial delays; the one titled, “Delays: Advocates, Judiciary or the Public To Blame?” The great news is that he has succeeded.
For those who did not read that piece: a recap. A man got an ex parte order of ownership of a plot of land. He had produced a power of attorney (PoA) of a person whom no one had seen. The question was whether that person really existed. Prof Kelwadi came into the picture when a wada-pav stall had already been put up on the plot. He asked for ‘proof of life-in-being’. Simply put, “Where is the man?”
We had asked readers to solve that problem; a conundrum, we called it. The problems that advocates often face are that judges prefer to err on the side of caution. Whether it is a bail application, or a title dispute, no one wants to rock the boat. Little wonder that Lord Denning referred to them as “…those timorous souls.” To quote another of my favourite judges, Justice Cardozo of the USA, “…there are two qualities that a judge should have; honesty and courage.”
Prof Kelwadi asked for relief. He applied with these words, “…the Plaintiff’s surviving power-holder and advocate are both guilty of perjury, of misleading the Honourable Court, of malicious prosecution, of obstruction of justice, of delaying resolution of litigation with ulterior motives and of causing the Defendants untold harm and misery; amongst other misdemeanours, civil and criminal. It is now incumbent on the Honourable Court to extract a sworn affidavit from the power-holder and advocate that the Plaintiff is still alive. Also necessary is an explanation of why this mischief has been perpetrated on the Honourable Court and truthfully, as to when the Plaintiff died. Any proceedings held in this Honourable Court since the death of the Plaintiff are invalid, and non-est.”
The court granted his prayer verbatim.
Fortunately, we do have judges who go beyond the call of duty and take bold decisions. Prof Kelwadi was lucky to appear before one of them. So, what does this mean? Since it is the duty of the advocate to inform the court of the death of a litigant, this order puts the onus squarely on the lawyer’s shoulders. It means that he will have to file an affidavit regarding the state of his client; just as the power-holder must. It also means that hundreds of cases that have been going on for years after the death of the litigants will soon cease to exist. The word is ‘non est’. Finito, does not exist.
People in the know will ask why the legal heirs cannot now be taken on record. The answer is simple. The heirs did not inform the court of the death, which must be done within three months. They hid it from the courts. Remember the ‘Doctrine of Dirty Hands’? One cannot play around with the judicial system, no matter what the advice. The heirs too would be guilty of perjury. Hiding the truth, purposefully, is tantamount to lying. The Truth, THE WHOLE TRUTH, and nothing but the Truth. So help me God!
The order is a milestone in legal jurisprudence. It is path-breaking. And we are sure no court in the world will overturn it. How can it? The courts exist, primarily, not to give orders or judgements, but to determine the truth. This order wants the truth.
Those who have spent years in courts must ask themselves, “When was the last time I saw the other party?” If it has been more than a year, ask us for a copy of the order that Prof Kelwadi has obtained. AND USE IT. For all you know, you, too, may be fighting a ghost! When you succeed, thank the advocate and the system. Not many do.
(Bapoo Malcolm is a practising lawyer in Mumbai. Please email your comments to [email protected]
Alok Tholiya
8 years ago
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