Alqaab (Titles) of Imam Ali bin Abi Taleb (as)

Among various titles, the most famous were:

Al-Murtaza (Murtadha) - The Chosen one of Allah
Amir al-Muminin (Ameerul Momineen) - The Commander of the Faithful
Imamul Muttaqeen - The Guide of the Pious and God fearing people
Mozhar al-Ajaaib (Mazharul Ajaib) - The Manifest of wonders
Madeenatul Ilm - The Gateway of the City of Knowledge
Saiyyidul Ausiya - The Chief of deputies of the Holy Prophet
Imamul Auliya - The Guide of the Saints
Asadullahul Ghaleb - The Ever Triumphant Lion of Allah
Lisaanullah - The Tongue of Allah
Yadullah - The Hand of Allah
Wajhullah - The Face of Allah
Nafse Rasulullah - The Soul of the Holy Prophet
Valiullah - The Friend of Allah
Siddeequl Akbar - The Greatest Truthful
Farooqul Aazam - The Greatest Distinguisher (between the truth and the falsehood)
Abu Turab - The Father of the Soil/Earth
Faateh-e-Khaiber - The Conqueror of Khaiber
Abul Aimmah - The Father of the Holy Imams
Akhu Rasulullah - The Brother of the Holy Prophet
Abul Eetam - The Father of orphans and the helpless
Haidar-e-Karrar - The Charging Lion
Safdar - Piercing lines, fighter


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Haider Ajaz
(Advocate)

On the Occasion of International Mother's Day---Sayings of Syeda Fatima Zahra(s.a.) the MOTHER of Imam Husain (as), Imam Hasan (as) and Two Daughters

1. Praise and Eulogy is for Allah for the blessing and bounties which He has bestowed. And thanks to HIM upon what He revelated (to His servants) And Praise is for HIM upon the common boons and blessings which He bestowed upon His servants without their request And upon the comprehensive and complete blessings which He granted to all and sundry and gave it to us, consequetively. Those graces and favours which are uncountable.

And are irredeemable and uncompensatable due to their plentifulness of number. And the imagination of their end is out of the reach of human mind.
He invited the servant to thankfulness for the sake of the consecutive and continuous enhanecment of blessings. And opened the door of euloqy and Praise (of Allah) upon them so that He may make his favours and beneficences great and plentiful for them.

2. I testify that there is no Diety (Lord) except the sole and matchless Allah. And the testification of the singleness of Allah is a word that Allah has declared sincerity (as) it's reality, and made the hearts the centre of it's contact and union. And has made the specifications and research of the oneness of Allah's station obvious and evident in the light of meditation. The Allah Who can not be seen by the eyes and tongues are unable and baffled to describe His virtues and attributes. And the intelligence and apprehension of man is helpless and destitute from the imagination of his howness.

3. Allah made all the beings without previous matter and sample and shape and pattern. And made them wear the dress of life by His main and mights and created them according to His Devine will and Intention short of it that He might have needed their creatlon or have wished any benefit for Himself from their shaping and sketching except this that he wanted to give a proof of HIS wisdom and make the people (creations) aware about His obedience and submission and invited them to his servitude and worship and make His Invitation grand and ostentatious.

4. Allah fixed the reward for His obedience and torment for His insubordination and disobedience so that He may restraln His servants from His wrath and fury and lead them to His paradise.

5. And I testify that my father Mohammad (pbuh&hf) is the apostle and the servant of Allah. And Allah selected and chose him before appointing him at the post of Prophethood. And He named him before choosing and selecting him. And chose him before envoying and delegating him. Then all the creations were hidden and covered in the covers of unseen and were hidden amid the screen and curtain of fear and fright and stayed near the last and final border of non entity (nothingness) for Allah was aware of and knew the end of matters and because of His encompassing the incidents of times and ages and His knowledge of the predestinates.
Allah appointed him (as apostle) so that he may complete and finalise His matter and Implement His order and materialise His decreeds and predestinates.

6. Allah saw nations and groups had various different sects in their religion and scattered and staying on the verge of the fires of differences, busy with the their idol worshipping. They denied God with all the signs and symbols of HIM. (IRFAN) So Allah illuminated the darknesses through my father Mohammad (pbuh&hf) and removed the darknesses from their hearts, removed (cured) the blindness of the eyes.

7. My father (Mohammad (pbuh&hf) ) stood up with (his) guidance among the people. And saved them from perversion and aberration, and turned their blindness into enlightenment and guided them towards the firm religion. And called (invited) them to the straight way.

8. You the servants of Allah, are the ones to maintain His injunctions and prohibitions, and the carriers of His religion, and His relevation, and the trustees of Allah upon your souls, and the propagators of His religion among the other nations.

9. Oh the servants of Allah! (beware) the real leader from Allah, is present among you and the commitment has previously been made to you and the remaining and left over of the prophet hood has been appointed for your guidance.
That is the speaking book of Allah the truthful Quran, and a beaming and gleaming light, in which all the secrets and facts about the completion of man and his prosperity have been exhibited and illuminated. It guides from darkness towards light of guidance. It s followers are the subject of envoy of others.

10. The book of Allah is the guide of it's followers towards the pleasure of Allah. Listening (carefully) to it leads to the salvation. The enlightened and conspicuous evidences and proofs of Allah can be obtained through it. And (also the knowledge) of His interpreted intentions and fear invoking constraining prohibitions. His sufficing testimonies and conspicuous arguments, and desired virtues and allowed endowments and gifts and obligatory divine laws. (can be obtained from it)

11. Allah made the faith for you as a purity from polytheism (and infidelity).

12. And (made) service the cause of your getting distant (purification) from pride (egoism).

13. And rendered alms for the purity of your soul and flourishment and expansion of your sustenance.

14. And rendered fasting for the maintenance and firmness of your sincerity.

15. And Allah set Hajj for the consolidation and reinforcement of the religion.

16. Allah executed and rendered justice for the sake of putting together and harmonization of the hearts.

17. And (Allah set) the subordination and obedience of us (the household of the Prophet (SAW)) for the security of society's system and our Immamate as a safety from segregation and disunity).

18. And (Allah made) Jihad (holy war), the honour and glory for Islam and abjectness and humbleness for the infidels and the hypocrites.

19. And (Allah rendered) patience as a help for getting reward.

20. And (Allah caused) commanding goodness and forbidding to do evil for the amendment and correction of society and the common folks (public).

21. And (Allah made) the kindness to parents as a protection (shield) to His wrath and displeasure.

22. And Allah made joining and connecting with the kinship and cognition, the cause of lengthening of life.

23.And Allah made law of retaliation (revenge for homicide) as the security of blood (from being shed).

24. And Allah executed the vow performing as a medium for forgiveness.

25. And (Allah rendered) the correct use of weights measure (units) a medium for stopping from selling less (than actual).

26. And (Allah rendered) prohibition from drinking wine the cause of taking distance from contaminations (evils).

27. And Allah made the prohibition to accuse someone of adultery a protection (shield) for avoiding (His) curse.

28. And (Allah made) refraining from theft for the sake of positiveness and affirmation for modesty.

29. And Allah prohibited polytheism for the sake of (bringing about) sincerity in (His) adoration and worship.

30. Certainly, an apostle has come to you from among yourselves; grievous to him is your falling into distress, excessively solicitous respecting you; to the believers (he is) compassionate, merciful. So if you assay and recognise him you will find he is my father not the father of your women and the brother of my cousin, Ali (a.s.) not that of your men. And how nice a relation I have to him. So he propagated his prophetic (mission). He always used to turn his face from the polytheists. And fought against them till he beat them up. He would invite people towards Allah by wisdom, and beautiful admonition. He broke the idols and scattered the aggregation of polytheists in a way that they ran away (from the battle fields), so that finally the hidden secret of oneness of Allah became manifested by him. And he made the logic of religion reach the ears ((of the people) and settled down the foam of the camels of satan and turned the salogan yelling of those devils silent. And downed the agents of hypocrisy and mutual commitments of the infidels got dissolved till such time that, you (people) spoke to a group of enlightened and modest men with the words of oneness of Allah and sincerity.

31. You were on the edge of a fire ditch, and were a cup of drink and the morsel of a greedy one and a firebrand of every hasty one and were being trampled on (by other nations) and drank from the contaminated waters gathered over in ditches and your energy (food) was (secured by) the leaves of trees and desert grass. And for your abjectness and abasement you were always afraid that those around you might abduct you in the winking of an eye. So, Allah liberated you (of these misfortunes) through my father Mohammed (pbuh&hf). Inspite of it that he (pbuh&hf) was involved and at war against the intrepid and the hungry wolves of Arab and the stubborn refractoriness of the people of the books (Jews and Christians). Whenever his opponents would lit the fire of war, Allah extinguished it to your benefit.

32. Imam Hassan (A.S) said, 'on the Friday night I saw my mother (Fatima (a.s.)) standing in her arch of prayer. She was continuously kneeling and performing prostration till the dawn broke. I would hear her pray for the faithful men and women, but she did not at all pray for herself. I said, 'Oh mother why did you not pray for yourself like you prayed for others?' so she replied, 'Oh my son, first thy neighbour and there after your own house.'

33. The Holy Prophet (pbuh&hf) said to Fatima (a.s.) what is the thing which is a blessing for woman?' She said that, 'she must not see a man (stranger and not intimate) and a man must not see her.'

34. One day a lady came to Fatima (a.s.) said 'I have a weak old mother who does not know a few problems about her service (prayers). She has sent me towards you to question you (about them). Thus Fatima(a.s.) answered her (questions). And the number of her queries reached to ten and Fatima (a.s.) replied to all her questions. Then she (the woman got a shamed because of the high number of her questions. And said, 'Oh daughter of the Prophet (pbuh&hf), 'I do not put you to more inconvenience than this.' Fatima (a.s.) said, 'Ask me what you do not know. Have you ever seen a person who is one day hired to carry a heavy thing to the roof top from ground for an amount (equal to) a thousand dinnars (nearly a hundred thousand miskal (unit of weight) of gold) and he may feel himself tired.'
She said 'No'. Fatima (a.s.) said, 'I have been hired by Allah to get a wages which if the space between the earth and sky is filled up with pearls still (That wages) would he more than it for each of the questions I may answer you. Therefore, I deserve it that I must not feel tired exhausted.

35. Oh Allah! belittle me in my eyes and glorify and magnify Your station to me. And inspire me (about) Your obedience and the practice which may cause Your pleasure and the shunning and evading from things (matters) which are the cause of Your wrath, oh the most merciful of all! 36.

36. Oh Allah! content me with the sustenance you have granted me. And till such time that you keep me alive, hide me and make me sound and prosperous. And forgive me and take pity upon me when I die. (During death process). Oh Allah! do not help me in something that you have not predestined for me. And facilitate the achievement of that thing which you have predestined for me.

37. Oh Allah! bestow upon my parents and all those persons who have rights of their blessings and beneficiences upon me, the best of Your rewards. Oh my Allah, spare me the leisure and respite for the object for which You have created me. And do not let me be busy and involved (absolutely) in my commitments. And do not torment me when I ask forgiveness. And do not deprive me of what I yearn and question you for.

38. Underlying are the rhymes which Hazrat Zahra(s.a.) recited upon the mourning of Prophet's (pbuh&hf) demise. The person who smells the sweet fragrance of the grave of the Holy Prophet (pbuh&hf) so what if he does not smell any other fragnance for long times to come?
Agonies and anguishes and grief's poured upon me in such a way that had they poured upon days those would have turned into nights. (bleak, dark and bewildering).

39. The dust of sorrow covered the space of sky and the sun has faded and the bright day turned bleak. The earth has become dark and gloomy after the death of the Prophet (pbuh&hf) Woe! Alas! what the earth will have much of Jolting upon being separated and parted from him (pbuh&hf).
It is meritorious and befitting that the east and west of the world may weep upon the parting of Prophet (pbuh&hf) and the persons of Muzzir tribe and all of they rest of the Yemen tribes shed tears. And the great magnificent mountain of the existence and the hidden and covered Kabaah (House of ALLAH) and its pillars should shed tears. Oh the terminator and finaliser of the (series of) prophets! the light of whom is the source of blessing for the worlds inhabitants, Be the salutation and blessings of Allah the desender of Holy Quran upon you.

40. Following you (Prophet (pbuh&hf)) inequities (intrigues and revolts) took shape and variant voices were raised so that if you were present and supervising (things) all these differences and deviations would not have taken place. You set off (on the journey of eternity) from among us and now our condition is like the earth which becomes devoid of the beneficial rains. And your nation upset the order and discipline of matters. So be a witness and do not let their matter get out of your sight.

PROCEDURE TO BE ADOPTED BY COURTS IN A PARTITION SUIT WHEN A PLAINTIFF WANTS TO WITHDRAW THE SUIT

Smt. Gowramma vs Nanjappa And Ors. AIR 2002 Kant 76 The procedure to be adopted by Courts in a partition suit, when a plaintiff wants to withdraw the suit, or when plaintiff wants the suit to be dismissed as settled out of Court with some defendants, can be summarised thus :
(i) When a plaintiff wants a partition suit to be dismissed or withdrawn as settled out of Court, the Court should require notice of such application or memo to all other parties (not only all defendants, but co-plaintiffs if any) and hear the parties.
(ii) If all parties are agreeable for the dismissal or withdrawal, the Court may grant the request.
(iii) If any defendant has already sought partition and separate possession by paying Court Fee and opposes the dismissal/ withdrawal, it shall permit such defendant to transpose himself/herself as plaintiff and continue the suit, irrespective of whether he makes an application for transposition or not.
(iv) Even if no defendant has sought the relief of partition and separate possession, till then, the Court may in appropriate cases permit any defendant who files an application in that behalf, to get himself transposed as plaintiff and claim partition and separate possession by paying necessary Court Fee and continue the suit. Refusal to grant such permission should be for valid reasons to be assigned by the Court.

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Special Thanks to:
Mr Sridhara Babu

---
Haider Ajaz (Advocate)

Supreme Court on its ‘power to review’ in Union of India vs. Sandur Manganese & Iron Ores Ltd. & Ors

In “Union of India vs. Sandur Manganese & Iron Ores Ltd. & Ors”, Review Petition (C) No. 739 of 2012, in Civil Appeal No. 7944 of 2010, (decided on 23.04.2013) the Hon’ble Supreme Court delved upon its power or review under Article 137 of Constitution of India, Part VIII Order XL of the Supreme Court Rules, 1966, and Order XLVII, Rule 1(1) of the Code of Civil Procedure, 1908.

The Hon’ble court after going through the aforesaid provisions, observed as under:

“The following grounds of review are maintainable as stipulated by the statute:

(i) Discovery of new and important matter or evidence which, after the exercise of due diligence, was not within knowledge of the petitioner or could not be produced by him;

(ii)  Mistake or error apparent on the face of the record;

(iii) Any other sufficient reason” [Para 12]

The words “any other sufficient reason” has been interpreted in Chhajju Ram vs. Neki, AIR 1922 PC 112 and approved by this Court in Moran Mar Basselios Catholicos vs. Most Rev. Mar Poulose Athanasius Ors., (1955) 1 SCR 520, to mean “a reason sufficient on grounds at least analogous to those specified in the rule”. [Para 13]

The Court further observed that:

(i) In review jurisdiction, mere disagreement with the view of the judgment cannot be the ground for invoking the same. As long as the point is already dealt with and answered, the parties are not entitled to challenge the impugned judgment in the guise that an alternative view is possible under the review jurisdiction. Hence, in review jurisdiction, the court shall interfere only when there is a glaring omission or patent mistake or when a grave error has crept in the impugned judgment. [Para 24]

(ii) Review proceedings are not by way of an appeal and have to be strictly confined to the scope and ambit of Order 47 Rule 1 of CPC. [Para 23]

(iii) The power of review jurisdiction can be exercised for the correction of a mistake and not to substitute a view. [Para 22]

The Court also quoted following case law:

Parsion Devi & Ors. vs. Sumitri Devi & Ors., (1997) 8 SCC 715, which held as under:

“9. Under Order 47 Rule 1 CPC a judgment may be open to review inter alia if there is a mistake or an error apparent on the face of the record. An error which is not self-evident and has to be detected by a process of reasoning, can hardly be said to be an error apparent on the face of the record justifying the court to exercise its power of review under Order 47 Rule I CPC. In exercise of the jurisdiction under Order 47 Rule 1CPC it is not permissible for an erroneous decision to be "reheard and corrected". A review petition, it must be remembered has a limited purpose and cannot be allowed to be "an appeal in disguise".

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Supplement from: 

lawbeed.com

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Haider Ajaz

(Advocate)

Use of Stamp Part even after six months

Thiruvengada Pillai vs. Navaneethammal and Anr., 
the stamp papers do not have any expiry period. Relevant extract from SC judgement is reproduced herein below:

The Indian Stamp Act, 1899, nowhere prescribes any expiry date for use of a stamp paper. Section 54 merely provides that a person possessing a stamp paper for which he has no immediate use (which is not spoiled or rendered unfit or useless), can seek refund of the value thereof by surrendering such stamp paper to the Collector provided it was purchased within the period of six months next preceding the date on which it was so surrendered. The stipulation of the period of six months prescribed in Section 54 is only for the purpose of seeking refund of the value of the unused stamp paper, and not for use of the stamp paper. Section 54 does not require the person who has purchased a stamp paper, to use it within six months. Therefore, there is no impediment for a stamp paper purchased more than six months prior to the proposed date of execution, being used for a document.


SUPREME COURT OF INDIA
Thiruvengada Pillai Vs. Navaneethammal & Anr. [2008] 19 February 2008

ORDER R. V. Raveendran & P.Sathasivam R. V. Raveendran, J.

This appeal by special leave is by the plaintiff in a suit for specific performance – OS No.290/1980 on the file of District Munsiff, Tindivanam. Pleadings

2. In the plaint, the plaintiff (appellant) alleged that the first defendant (Adilakshmi) agreed to sell the suit schedule property to him under an agreement of sale dated 5.1.1980 for a consideration of Rs.3,000/-, and received Rs.2,000/- as advance. She agreed to execute a sale deed by receiving the balance consideration of Rs.1,000/- within three months.

Possession of the suit property was delivered to him, under the said agreement. He issued a notice dated 14.2.1980 calling upon the first defendant to receive the balance price and execute the sale deed. The first defendant sent a reply denying the agreement. To avoid performing the agreement of sale, the first defendant executed a nominal sale deed in regard to the suit property in favour of the second defendant (first respondent herein), who was her close relative. The said sale was neither valid nor binding on him. On the said averments, he sought specific performance of the agreement of sale, against the defendant, alleging that he was ready and willing to perform his part of the contract.

3. The defendants denied the allegation that the first defendant had executed an agreement of sale dated 5.1.1980 in favour of the plaintiff or that she had delivered possession of the suit property to him. They contended that plaintiff had concocted and forged the document with the help of his henchmen to defraud the defendants. They claimed that the first defendant had executed a valid sale deed dated 11.2.1980 in favour of the second defendant and had delivered possession of the suit property to her; and that the second defendant had put up a hut in the schedule property and was actually residing therein. The second defendant raised an additional contention that she was a bona fide purchaser for value and therefore, the sale in her favour was valid.

4. During the pendency of the suit first defendant died, and the third defendant (second respondent herein) was impleaded as her legal representative, who adopted the written statement of the second defendant.

Issues and the Judgment

5. On the said pleadings, three issues were framed by the trial court :

(i) whether the agreement put forth by the plaintiff was true or concocted ?

(ii) whether the second defendant had purchased the suit property for valid consideration ? and

(iii) whether the plaintiff was entitled to the relief of specific performance ?

The plaintiff examined himself as PW-1 and the scribe of the agreement (Ramaswami Pillai) as PW-2 and an attesting witness to the sale agreement (Venkatesha Pillai) as PW-3. The agreement of sale was exhibited as Ex. A-1. The notice and reply were marked as Ex. A2 and A4. The second defendant, (purchaser of the site), gave evidence as DW-1 and the third defendant, who was also a witness to the sale deed dated 11.2.1980, was examined as DW-2. The sale deed dated 11.2.1980 executed by first defendant in favour of second defendant was marked as Ex.B2 and previous title deed was exhibited as Ex. B4. The plaintiff and his witnesses gave evidence that the sale agreement was duly executed by first defendant in favour of plaintiff. The defendants gave evidence about the sale in favour of second defendant and denied execution of any agreement of sale in favour of plaintiff.

6. The trial court after appreciating the evidence, dismissed the suit by judgment and decree dated 28.2.1984. It held that the agreement of sale put forth by plaintiff was false and must have been created after the sale on 11.2.1980 in favour of second defendant, by using some old stamp papers in his possession. The said finding was based on the following facts and circumstances :

(a) The sale agreement (A-1) was not executed on currently purchased stamp paper, but was written on two stamp papers, one purchased on 25.8.1973 in the name of Thiruvengadam and another purchased on 7.8.1978 in the name of Thiruvengadam Pillai.

(b) The two attestors to the agreement were close relatives of plaintiff. One of them was Kannan, brother of the plaintiff and he was not examined. The other was Venkatesa Pillai, uncle of plaintiff examined as PW3. The scribe (PW-2) was a caste-man of plaintiff. Their evidence was not trustworthy.

(c) Though the agreement of sale recited that the possession of the suit property was delivered to plaintiff, no such possession was delivered. On the other hand, the second defendant was put in possession on execution of the sale deed and she put up a thatched hut in the schedule property and was in actual physical possession. This falsified the agreement.

(d) If really there was an agreement of sale, in the normal course, the plaintiff would have obtained the title deeds from the first defendant. But the earlier title deeds were not delivered to him. On the other hand, they were delivered to the second defendant who produced them as Ex.B3 and Ex.B4.

(e) In spite of defendants denying the agreement (Ex.A1), the plaintiff failed to discharge his onus to prove that execution of the agreement as he did not seek reference to a fingerprint expert to establish that the thumb impression on the agreement was that of the first defendant.

The first & second appeals

6. Feeling aggrieved, the plaintiff filed an appeal before the Sub-Court, Tindivanam. The first appellate court allowed the plaintiff’s appeal by judgment dated 12.1.1987, held that the agreement of sale was proved and decreed the suit granting specific performance. The following reasons were given by the first appellant court in support of its finding :

(a) The evidence of PW1 (plaintiff), the scribe (PW2) and the attestor (PW3) proved the due execution of the agreement by the first defendant. As the scribe (PW2) was not related to plaintiff and as PW3 was not a close relative of plaintiff, their evidence could not have been rejected.

(b) The burden of proving that the agreement of sale was concocted and forged was on the defendants and they ought to have taken steps to have the document examined by a Finger Print expert, to establish that the disputed thumb mark in the agreement of sale (Ex.A1), was different from the admitted thumb mark of the first defendant in the sale deed (Ex.B2). They failed to do so.

(c) There appeared to be no marked difference between the finger impression in the agreement of sale (Ex.A1) and the finger impression in the sale deed in favour of the second defendant (Ex.B2), on a perusal of the said two documents. Therefore, it could be inferred that first defendant had executed the agreement.

(d) Execution of the agreement of sale on two stamp papers purchased on different dates, did not invalidate the agreement.

8. Being aggrieved, the second defendant filed a second appeal. The High Court allowed the second appeal and dismissed the suit, by judgment dated 17.2.1999. The High Court while restoring the decision of the trial court held that the agreement of sale was not genuine for the following reasons:

(i) The first appellate court had placed the onus wrongly on the defendants to prove the negative. As the first defendant denied execution of the agreement, the burden of establishing the execution of document, was on the plaintiff. The plaintiff had failed to establish by acceptable evidence that Ex. A-1 was a true and valid agreement of sale. The evidence, examined as a whole, threw considerable doubt as to whether it was truly and validly executed.

(ii) A perusal of the agreement (Ex.A1) showed that the thumb impression was very pale and not clear. The first appellate court could not, by a casual comparison of the disputed thumb impression in the agreement with the admitted thumb impression in the sale deed, record a finding that there were no marked differences in the thumb impressions in the two documents (Ex.A1 and Ex.B2). In the absence of an expert’s opinion that the thumb impression on the agreement of the sale was that of the first defendant, the first appellate court ought not to have concluded that the agreement of sale was executed by the first defendant.

(iii) In the normal course, an agreement would be executed on stamp papers purchased immediately prior to the execution of the agreement. The fact that the agreement was written on two stamp papers bearing the dates 25.8.1973 and 7.8.1978 purchased in two different names showed that it was not genuine, but was anti-dated and forged.

(iv) The attesting witnesses to the agreement of sale were close relatives of plaintiff. Their evidence was not trustworthy.

Points for consideration

8. The said judgment of the High Court is challenged in this appeal by special leave. The appellant contended that having regard to the provisions of Evidence Act, 1872, there was nothing improper in the first appellate court comparing the disputed thumb impression in Ex. A-1 with the admitted thumb impression of first defendant in Ex. B-2; and the finding of the first appellate court on such comparison, that there were no marked differences between the two thumb impressions, being a finding of fact, was not open to interference in second appeal. It was next contended that the execution of the agreement of sale was duly proved by the evidence of plaintiff (PW1), the scribe (PW-2) and one of the attesting witnesses (PW3). It was pointed out there was no evidence to rebut the evidence of PW1, PW2 and PW3 regarding due execution as first defendant died without giving evidence, and as the defendants did not seek reference to a finger print expert to prove that the thumb impression on the agreement of sale was not that of first defendant. It was submitted that an agreement cannot be doubted or invalidated merely on account of the fact that the two stamp papers used for the agreement were purchased on different dates. The Appellant therefore submitted that the sale agreement was duly proved.

9. On the contentions urged, the following questions arise for consideration:

(i) Whether the agreement of sale executed on two stamp papers purchased on different dates and more than six months prior to date of execution is not valid?

(ii) Whether the first appellate court was justified in comparing the disputed thumb impression with the admitted thumb impression and recording a finding about the authenticity of the thumb impression, without the benefit of any opinion of an expert?

(iii) Whether the High Court erred in reversing the judgment of the first appellate court in second appeal? Re : Question (i)

11. The Trial Court and the High Court have doubted the genuineness of the agreement dated 5.1.1980 because it was written on two stamp papers purchased on 25.8.1973 and 7.8.1978. The learned counsel for first respondent submitted that apart from raising a doubt about the authenticity of the document, the use of such old stamp papers invalidated the agreement itself for two reasons. Firstly, it was illegal to use stamp papers purchased on different dates for execution of a document. Secondly, as the stamp papers used in the agreement of sale were more than six months old, they were not valid stamp papers and consequently, the agreement prepared on such ‘expired’ papers was also not valid. We will deal with the second contention first. The Indian Stamp Act, 1899 nowhere prescribes any expiry date for use of a stamp paper. Section 54 merely provides that a person possessing a stamp paper for which he has no immediate use (which is not spoiled or rendered unfit or useless), can seek refund of the value thereof by surrendering such stamp paper to the Collector provided it was purchased within the period of six months next preceding the date on which it was so surrendered. The stipulation of the period of six months prescribed in section 54 is only for the purpose of seeking refund of the value of the unused stamp paper, and not for use of the stamp paper. Section 54 does not require the person who has purchased a stamp paper, to use it within six months.

Therefore, there is no impediment for a stamp paper purchased more than six months prior to the proposed date of execution, being used for a document.

12. The Stamp Rules in many States provide that when a person wants to purchase stamp papers of a specified value and a single stamp paper of such value is not available, the stamp vendor can supply appropriate number of stamp papers required to make up the specified value; and that when more than one stamp paper is issued in regard to a single transaction, the stamp vendor is required to give consecutive numbers. In some States, the rules further require an endorsement by the stamp vendor on the stamp paper certifying that a single sheet of required value was not available and therefore more than one sheet (specifying the number of sheets) have been issued to make up the requisite stamp value. But the Indian Stamp Rules, 1925 applicable to Tamil Nadu, do not contain any provision that the stamp papers of required value should be purchased together from the same vendor with consecutive serial numbers. The Rules merely provide that where two or more sheets of paper on which stamps are engraved or embossed are used to make up the amount of duty chargeable in respect of any instrument, a portion of such instrument shall be written on each sheet so used. No other Rule was brought to our notice which required use of consecutively numbered stamp papers in the State of Tamil Nadu. The Stamp Act is a fiscal enactment intended to secure revenue for the State. In the absence of any Rule requiring consecutively numbered stamp papers purchased on the same day, being used for an instrument which is not intended to be registered, a document cannot be termed as invalid merely because it is written on two stamp papers purchased by the same person on different dates. Even assuming that use of such stamp papers is an irregularity, the court can only deem the document to be not properly stamped, but cannot, only on that ground, hold the document to be invalid. Even if an agreement is not executed on requisite stamp paper, it is admissible in evidence on payment of duty and penalty under section 35 or 37 of the Indian Stamp Act, 1899. If an agreement executed on a plain paper could be admitted in evidence by paying duty and penalty, there is no reason why an agreement executed on two stamp papers, even assuming that they were defective, cannot be accepted on payment of duty and penalty. But admissibility of a document into evidence and proof of genuineness of such document are different issues.

13. If a person wants to create or a back-dated agreement, the first hurdle he faces is the non-availability of stamp paper of such old date. Therefore tampering of the date of issue and seal affixed by the stamp vendor, as also the entries made by the stamp vendor, are quite common in a forged document. When the agreement is dated 5.1.1980, and the stamp papers used are purchased in the years 1973 and 1978, one of the possible inferences is that the plaintiff not being able to secure an anti-dated stamp paper for creating the agreement (bearing a date prior to the date of sale in favour of second defendant), made use of some old stamp papers that were available with him, to fabricate the document. The fact that very old stamp papers of different dates have been used, may certainly be a circumstance that can be used as a piece of evidence to cast doubt on the authenticity of the agreement. But that cannot be a clinching evidence. There is also a possibility that a lay man unfamiliar with legal provisions relating to stamps, may bona fide think that he could use the old unused stamp papers lying with him for preparation of the document and accordingly use the old stamp papers.

Re : Point No.(ii)

14. Section 45 of the Indian Evidence Act, 1872 relates to ‘opinion of experts’. It provides inter alia that when the court has to form an opinion as to identity of handwriting or finger impressions, the opinion upon that point of persons specially skilled in questions as to identity or handwriting or finger impressions are relevant facts. Section 73 provides that in order to ascertain whether a finger impression is that of the person by whom it purports to have been made, any finger impression admitted to have been made by that person, may be compared with the one which is to be proved.

These provisions have been the subject matter of several decisions of this Court.

14.1) In The State (Delhi Administration) v. Pali Ram [1979 (2) SCC 158] this Court held that a court does not exceed its power under section 73 if it compares the disputed writing with the admitted writing of the party so as to reach its own conclusion. But this Court cautioned:

“Although there is no legal bar to the Judge using his own eyes to compare the disputed writing with the admitted writing, even without the aid of the evidence of any handwriting expert, the Judge should, as a matter of prudence and caution, hesitate to base his finding with regard to the identity of a handwriting which forms the sheet-anchor of the prosecution case against a person accused of an offence, solely on comparison made by himself. It is therefore, not advisable that a Judge should take upon himself the task of comparing the admitted writing with the disputed one to find out whether the two agree with each other; and the prudent course is to obtain the opinion and assistance of an expert.”

The caution was reiterated in O. Bharathan vs. K. Sudhakaran 1996 (2) SCC 704. Again in Ajit Savant Majagvai v. State of Karnataka [1997 (7) SCC 110] referring to section 73 of the Evidence Act, this Court held :

“The section does not specify by whom the comparison shall be made.

However, looking to the other provisions of the Act, it is clear that such comparison may either be made by a handwriting expert under Section 45 or by anyone familiar with the handwriting of the person concerned as provided by Section 47 or by the Court itself.

As a matter of extreme caution and judicial sobriety, the Court should not normally take upon itself the responsibility of comparing the disputed signature with that of the admitted signature or handwriting and in the event of the slightest doubt, leave the matter to the wisdom of experts. But this does not mean that the Court has not the power to compare the dispute signature with the admitted signature as this power is clearly available under Section 73 of the Act.”

14.2) In Murari Lal v. State of Madhya Pradesh – 1980 (1) SCC 704, this Court indicated the circumstances in which the Court may itself compare disputed and admitted writings, thus :

“The argument that the court should not venture to compare writings itself, as it would thereby assume to itself the role of an expert is entirely without force. Section 73 of the Evidence Act expressly enables the court to compare disputed writings with admitted or proved writings to ascertain whether a writing is that of the person by whom it purports to have been written. If it is hazardous to do so, as sometimes said, we are afraid it is one of the hazards to which judge and litigant must expose themselves whenever it becomes necessary. There may be cases where both sides call experts and the voices of science are heard. There may be cases where neither side calls an expert, being ill able to afford him. In all such cases, it becomes the plain duty of the court to compare the writings and come to its own conclusions. The duty cannot be avoided by recourse to the statement that the court is no expert. Where there are expert opinions, they will aid the court. Where there is none, the court will have to seek guidance from some authoritative textbook and the court’s own experience and knowledge. But discharge it must, its plain duty, with or without expert, with or without other evidence.”

The decision in Murari Lal (supra) was followed in Lalit Popli v. Canara Bank & Ors. [2003 (3) SCC 583].

15. While there is no doubt that court can compare the disputed handwriting/signature/finger impression with the admitted handwriting/ signature/finger impression, such comparison by court without the assistance of any expert, has always been considered to be hazardous and risky. When it is said that there is no bar to a court to compare the disputed finger impression with the admitted finger impression, it goes without saying that it can record an opinion or finding on such comparison, only after an analysis of the characteristics of the admitted finger impression and after verifying whether the same characteristics are found in the disputed finger impression.

The comparison of the two thumb impressions cannot be casual or by a mere glance. Further, a finding in the judgment that there appeared to be no marked differences between the admitted thumb impression and disputed thumb impression, without anything more, cannot be accepted as a valid finding that the disputed signature is of the person who has put the admitted thumb impression. Where the Court finds that the disputed finger impression and admitted thumb impression are clear and where the court is in a position to identify the characteristics of finger prints, the court may record a finding on comparison, even in the absence of an expert’s opinion. But where the disputed thumb impression is smudgy, vague or very light, the court should not hazard a guess by a casual perusal. The decision in Muralilal (supra) and Lalit Popli (supra) should not be construed as laying a proposition that the court is bound to compare the disputed and admitted finger impressions and record a finding thereon, irrespective of the condition of the disputed finger impression. When there is a positive denial by the person who is said to have affixed his finger impression and where the finger impression in the disputed document is vague or smudgy or not clear, making it difficult for comparison, the court should hesitate to venture a decision based on its own comparison of the disputed and admitted finger impressions. Further even in cases where the court is constrained to take up such comparison, it should make a thorough study, if necessary with the assistance of counsel, to ascertain the characteristics, similarities and dissimilarities. Necessarily, the judgment should contain the reasons for any conclusion based on comparison of the thumb impression, if it chooses to record a finding thereon. The court should avoid reaching conclusions based on a mere casual or routine glance or perusal.

16. In this case the first defendant had denied having put her finger impression on Ex. A-1. She died during the pendency of the suit before her turn came for giving evidence. The High Court having examined the document has clearly recorded the finding that the thumb mark in Ex. A-1 was pale (that is light) and not clear. The document though dated 1980, was executed on two stamp papers which were purchased in 1973 and 1978.

Contrary to the recital in the agreement that possession had been delivered to the plaintiff, the possession was not in fact delivered to plaintiff, but continued with the first defendant and she delivered the possession to the second defendant. The title deeds were not delivered to plaintiff. The attesting witnesses were close relatives of plaintiff and one of them was not examined. The scribe’s evidence was unsatisfactory. It was also difficult to believe that the first defendant, an illiterate old woman from a village, would enter into an agreement of sale on 5.1.1980 with plaintiff, and even when he is ready to complete the sale, sell the property to someone else hardly a month thereafter, on 11.2.1980. In this background, the finding by the first appellant court, recorded without the benefit of any expert opinion, merely on a casual perusal, that there appeared to be no marked differences between the two thumb impressions, and therefore Ex. A-1 (sale agreement) must have been executed by first defendant, was unsound. The High Court was justified in interfering with the finding of the first appellate court that the Ex.A1 was executed by first defendant.

Re : Point No.(iii)

17. The trial court had analyzed the evidence properly and had dismissed the suit by giving cogent reasons. The first appellate court reversed it by wrongly placing onus on the defendants. Its observation that when the execution of an unregistered document put forth by the plaintiff was denied by the defendants, it was for the defendants to establish that the document was forged or concocted, is not sound proposition. The first appellate court proceeded on the basis that it is for the party who asserts something to prove that thing; and as the defendants alleged that the agreement was forged, it was for them to prove it. But the first appellate court lost sight of the fact that the party who propounds the document will have to prove it. In this case plaintiffs came to court alleging that the first defendant had executed an agreement of sale in favour. The first defendant having denied it, the burden was on the plaintiff to prove that the first defendant had executed the agreement and not on the first defendant to prove the negative. The issues also placed the burden on the plaintiff to prove the document to be true. No doubt, the plaintiff attempted to discharge his burden by examining himself as also scribe and one of the attesting witnesses. But the various circumstances enumerated by the trial court and High Court referred to earlier, when taken together, rightly create a doubt about the genuineness of the agreement and dislodge the effect of the evidence of PW 1 to 3. We are therefore of the view that the decision of the High Court, reversing the decision of the first appellate court, does not call for interference.

18. We, therefore, find no merit in this appeal and the same is accordingly dismissed. Parties to bear their respective costs.


--
Haider Ajaz 
(Advocate)

An order to Maalik al-Ashtar--Governor of Egypt by Hazarat Ali (as)

These are the orders issued by the creature of Allah, Ali, the son Abu Taalib (a) to Maalik, the son of Ashtar when he appointed Maalik as the Governor of Egypt to collect Zakat there, to combat the enemies of Islam and Egypt, to work for the welfare of its people and to look after its prosperity.

I order you, Maalik, always to keep the fear of Allah in your mind, to give priority to His worship and to give preference to obeying His Commands over every other thing in life, to carefully and faithfully follow the commandments and interdictions as are given by the Holy Book and the traditions of the Holy Prophet (s) because the success of a man to attain happiness in this world and in the next depends upon these qualities, and a failure to achieve these attributes brings about total failure in both the worlds.

I order you to use your head, heart, hands and tongue to help the creatures of Allah because the Almighty Allah holds Himself responsible to help those who sincerely try their best to help Him. Allah has further ordered you to keep your desires under control, to keep yourself under restraint when extravagant and inordinate yearnings and cravings try to drive you towards vice and wickedness because usually your 'self' tries to incite and drag you towards infamy and damnation unless the Merciful Lord comes to your help.

Let it be known to you, Maalik, that I am sending you as a governor to a country which has seen many regimes before this. Some of them were benign, sympathetic and good, while others were tyrannical, oppressive and cruel. People will judge your regime as critically as you have studied the activities of other regimes and they will criticize you in the same way as you have censured or approved other rulers.

You must know that a good and virtuous man is known and recognized by the good that is said about him and the praise which Allah has destined him to receive from others. Therefore, make your mind the source and fountain-head of good thoughts, good intentions and good deeds. This can only be attained by keeping a strict control on your desires and yearnings, however much they may try to incite and coerce you. Remember that the best way to do justice to your inner self and to keep it out of harm is to restrain it from vice and from things which the 'self' inordinately and irrationally desires.

Maalik! You must create in your mind kindness, compassion and love for your subjects. Do not behave towards them as if you are a voracious and ravenous beast and as if your success lies in devouring them.

Remember, Maalik, that amongst your subjects there are two kinds of people: those who have the same religion as you have; they are brothers to you, and those who have religions other than that of yours, they are human beings like you. Men of either category suffer from the same weaknesses and disabilities that human beings are inclined to, they commit sins, indulge in vices either intentionally or foolishly and unintentionally without realizing the enormity of their deeds. Let your mercy and compassion come to their rescue and help in the same way and to the same extent that you expect Allah to show mercy and forgiveness to you.

Maalik! You must never forget that if you are a ruler over them than the caliph is the ruler over you and Allah is the Supreme Lord over the caliph. And the reality is that He has appointed you as the governor and tested you through the responsibility of this rulership over them.

Never think of raising yourself to such a false prestige that you can declare war against Allah because you cannot ward off His Wrath and you can never be free from the need of His Mercy and Compassion.

Do not feel ashamed to forgive and forget. Do not hurry over punishments and do not be pleased and do not be proud of your power to punish. Do not get angry and lose your temper quickly over the mistakes and failures of those over whom you rule. On the contrary, be patient and sympathetic with them. Anger and desire of vengeance are not going to be of much help to you in your administration. Never say to yourself, "I am their Lord, their ruler and all in all over them and that I must be obeyed submissively and humbly" because such a thought will unbalance your mind, will make you vain and arrogant, will weaken your faith in religion and will make you seek support of any power other than that of Allah . If you ever feel any pride or vanity on account of your sway and rule over your subjects then think of the supreme sway and rule of the Lord over the Universe, the extent of His creations, the supremacy of His Might and Glory, His Power to do things which you cannot even dream of doing and His control over you which is more dominating than that which you can ever achieve over anything around you. Such thoughts will cure your mental weakness, will keep you away from vanity and rebellion (against Allah), will reduce your arrogance and haughtiness and will take you back to the sanity which you had foolishly deserted.

Take care never to think of bringing yourself at par with Allah, never to think of matching your power with Him and contesting His Glory and ever to pretend that you possess might and power like Him because the Mighty Lord will always humble pitiless tyrants and will degrade all pretenders of His Power and Might. So far as your own affairs or those of your relatives and friends are concerned take care that you do not violate the duties laid down upon you by Allah and do not usurp the rights of mankind, be impartial and do justice to them because if you give up equity and justice then you will certainly be a tyrant and an oppressor. And whoever tyrannizes and oppresses the creatures of Allah, will earn enmity of Allah along with the hatred of those whom he has oppressed; and whoever earns the Wrath of Allah loses all chances of salvation and he has no excuse to offer on the Day of Judgement.

Every tyrant and oppressor is an enemy of Allah unless he repents and gives up oppression. Remember, Maalik! that there is nothing in this world more effective to turn His Blessings into His Wrath quicker than to insist upon oppression over His creatures because the Merciful Allah will always hear the prayers of those who have been oppressed and He will give no chance to oppressors. You must always appreciate and adopt a policy which is neither too severe nor too lenient, a policy which is based upon equity will be largely appreciated. Remember that the displeasure of common men, the have-nots and the depressed persons more overbalances than the approval of important persons, while the displeasure of a few big people will be excused by the Lord if the general public and the masses of your subjects are happy with you.

Remember, Maalik! that usually these big personages are mentally the scum of the human society, they are the people who will be the worst drag upon you during your moments of peace and happiness, and the least useful to you during your hours of need and adversity, they hate justice the most, they will keep on demanding more and more out of the State resources and will seldom be satisfied with what they receive and will never be obliged for the favour shown to them if their demands are justifiable refused, they will never accept any reasonable excuse or any rational argument and when the time changes, you will never find them staunch, faithful and loyal.

While the common men, the poor and apparently the less important section of your subjects are the pillars of Islam, they are the real assemblage of Muslims and the power and defensive force against the enemies of Islam. Keep your mind on their affairs, be more friendly with them and secure their trust and goodwill. But be careful in forming your contacts (whether with the most important persons or the commoners); keep such people away from you and think them to be the enemy of the State who are scandal-mongers and who try to find fault with others and carry on propaganda against them because everywhere people have weaknesses and failings and it is the duty of the government to overlook (minor) shortcomings. You must not try to go in search of those weaknesses which are hidden from you, leave them to Allah, and about those weaknesses which come to your notice, you must try to teach them how to overcome them. Try not to expose the weaknesses of the people and Allah will conceal your own weaknesses which you do not want anybody to know.

Do not give cause to the people to envy each other (man against man, tribe against tribe or one section of the society against the other). Try to alleviate and root out mutual distrust and enmity from amongst your subjects.

Be fair, impartial and just in your dealings with all, individually and collectively and be careful not to make your person, position and favours act as sources of malice. Do not let any such thing or such person come near to you who does not deserve your nearness and your favour. Never lower your dignity and prestige. Remember that backbiters and scandal-mongers belong to a mean and cunning group, though they pretend to be sincere advisers. Do not make haste to believe the news they bring and do not heed to their advice.

Do not accept the advice of misers, they will try their best to keep you away from acts of kindness and from doing good to others. They will make you frightened of poverty.

Similarly do not allow cowards to act as your advisers because they will make you timid in enforcing your orders, will scare you from handling important affairs boldly and will make your enterprises and invasions timid and timorous attempts. At the same time avoid greedy and covetous persons who would aspire to the position of acting as your counsellor because he will teach you how to exploit the community and how to oppress people to get their wealth. Remember that miserliness, cowardice and greed appear to be different wicked qualities but they all arise from the same evil mentality of having no faith and no trust in Allah. Your worst ministers will be the men who had been ministers to the despotic rulers before you and who had been a party o atrocities committed by them. Such persons should not be taken into your confidence and should not be trusted because they have aided sinners and have assisted tyrants and cruel rulers. In their stead you can comfortably find persons who are equally wise and learned but who have not developed sinful and criminal mentalities, who have neither helped the tyrants in their tyrannies nor have they assisted them to carry on their sinful deeds. Such persons will prove the least troublesome to you. They will be the most helpful. They will sincerely sympathise with you. If you take them in your confidence they will sever their connections with your opponents. Keep such people with you as your companions in your informal company as well as in official gatherings in audience. From amongst such honest and humane companions and ministers some would receive your fullest confidence and trust. They are those who can always speak out the bitter truth to you and unreservedly and without fear of your status, can refuse to assist you or associate with you in the deeds which Allah does not like His good creatures to commit. Select honest, truthful and pious people as your companions. Train them not to flatter you and not to seek your favour by false praises because flattery and false praises create vanity and conceit and they make a man lose sight of his real self and ignore his duties.

You should not treat good and bad people alike because in this way you will be discouraging good persons and at the same time emboldening the wicked to carry on their wickedness. Everyone should receive the treatment which his deeds make him deserve.

Try carefully to realize that a ruler can create goodwill in the minds of his subjects and can make them faithful and sincere to him only when he is kind and considerate to them, when he reduces their troubles, when he does not oppress them and when he never asks for things which are beyond their power. These are the principles which you should keep in mind and act upon. Let your attitude be such that they do not lose faith in you because a good faith on their part will reduce many troubles of administration and will relieve you of many worries and anxieties. And so far as your confidence and trust is concerned, let it rest with those people whom you have tested in difficulties and whom you have befriended, but you should always mistrust those people whom you have wronged or who have proved themselves undeserving, inefficient or unfaithful. Do not give up those practices and do not break those rules which good Muslims have evolved or introduced before you, which have created unity and amity among the various sections of the society and which have benefited the masses. Do not break them and do not introduce innovations because if you do away with those good rules and traditions, the reward of having introduced them will go to those who evolved them and the punishment of having despoiled them will be your lot.

You must know, Maalik, that the people over whom you rule are divided into classes and grades and the prosperity and welfare of each class of the society individually and collectively are so interdependent upon the well-being of the other classes that the whole set-up represents a closely woven net and reciprocal aspect. One class cannot exist peacefully, cannot live happily and cannot work without the support and good wishes of the other.

Amongst them there are the soldiers of the army of Allah who defend His cause, the next class is that of the secretaries of the State to whom duties of writing out and issuing special or general orders are assigned, the third group is of the judges and magistrates to administer justice, the fourth is of officers who maintain law and order and guard the peace and prosperity of the country. Then there are common men, the Muslims who pay the taxes levied by the government, and non-Muslims who pay the taxes levied by the government, and non-Muslims who pay tribute to the State (in lieu of taxes). Then comes the class of men who carry on various professions and trades and the last but not the least are the poor and the have-nots who are considered as the lowest class of the society. The Merciful Allah has fixed rights and duties of each one of them. They have been either mentioned in His Book or explained through the instructions of the Holy Prophet (s). A complete code of them is preserved with us. As far as the soldiers are concerned, they are by the commands of Allah a fortress and stronghold to guard and defend the subjects and the State. They are the ornaments of the ruler and the country. They provide power and protection to the religion. They propagate and preserve peace among mankind. In fact, they are the real guardians of peace and through them good internal administration can be maintained. The upkeep and maintenance of an army depends upon the taxes collected by the State out of which Allah has fixed for them a share. With this amount they provide for their requirements, maintain themselves and their arms in sound position to defend the religion and the cause of justice. The army and the common men (common citizens who pay taxes or tributes) are two important classes, but in a Welfare State their well-being cannot be guaranteed without proper functioning and preservation of the other classes, the judges and magistrates, the secretaries of the State and the officers of various departments who collect various revenues, maintain law and order as well as preserve peace and amity among the diverse classes of the society. They also guard the rights and privileges of the citizens and look to the performances of various duties by individuals and classes. And the prosperity of this whole set-up depends upon the traders and industrialists. They act as a medium between the consumers and the suppliers. They collect the requirements of the society. They exert to provide goods. They open up shops, markets and trading centres. Thus providing the consumers with their necessities, they relieve the citizens of the need of running after their requisites of life. Then comes the class of the poor and the disabled persons. It is absolutely necessary that they should be looked after, helped and well-provided for. The Merciful Allah has explained the ways and means of maintaining and providing for each of these classes. And everyone of this class has the right upon the ruler of the State that at least minimum necessities for its well-being and contented living are provided.

Remember, Maalik that Almighty Allah will not absolve any ruler from his obligations unless he sincerely tries his best to discharge his duties, invokes Allah to help him in their performance, remains steadfast and diligent on the path of truth and justice and bears all this whether the performance of these duties is congenial or hateful to him.

So far as the army is concerned its chief and commander should be a person who is most sincere and faithful to Allah, to the Holy Prophet (s) and to your Imam who is most pious, who is famous for his forbearance, clemency and gentleness, who is neither short-tempered nor does he get angry quickly, who sympathetically treats sincere excuses and accepts apologies, who is kind and compassionate with the weak, but severe against the strong and the powerful, who has no vindictiveness which might lead to violence or any inferiority complex or weak-mindedness which makes them helpless and dejected. To find and select such persons you should have contacts with pious and noble families with high ideals and exalted traditions, families well-known for their bravery and courage and generosity and magnanimity. They are the people who may be considered as sources of magnificence and sublimity of character and fountain-heads of piety and good deeds.

When you have found and selected such persons then keep an eye over them and watch them as parents watch their children so that you may find out if there appears any change in their behaviour. Treat them kindly and sympathetically. Do not grudge highest considerations to them (if they rightly deserve) and do not refuse small mercies. This kind of treatment will create reciprocal tendencies in them and they will trust you and will be faithful to you. Under the impression that you have paid enough attention to their major necessities and wants, do not close your eyes to their minor requirements and needs because small favours often bear better fruits though careful attention to major necessities is very important. Among the military officers those should receive your highest respect and consideration who pay most attention to the needs of the soldiers under their command who come forward to help the soldiers with their personal means and property so that the soldiers may lead a happy and contented life and may have full confidence of the future of their families and children.
If the soldiers are thus satisfied and are free from anxieties and care then they will bravely and wholeheartedly face the conflicts. Your constant attention towards the officers and soldiers will make them love you more and more. The thing which should most gladden the heart of a ruler is the fact that his State is being ruled on the principles of equity and justice and that his subjects love him. And your subjects will only love you when they have no grievance against you. Their sincerity and loyalty will be proved if they gather around you to support your government, when they accept your authority without considering it an unbearable burden on their heads and when they do not secretly wish your rule to come to an end. So let them have as many justifiable hopes in you as they can and fulfil as many as you reasonably can. Speak well of those who deserve your praise. Appreciate the good deeds done by them and let these good actions be known publicly.

The correct and timely publicity of noble actions and golden deeds creates more zeal in the minds of the brave and emboldens the cowards and the weaklings. You must know and realize the good deeds done by every single individual so that the credit of noble deeds done by one may not be given to another. Do not underestimate and underpay the good work done. Similarly do not overpay a work simply because it has been done by a very important person and do not let his position and prestige be the cause of overvaluation of the merit of his work and at the same time do not undervalue a great deed if it is done by a very ordinary person or a commoner. Let equity, justice and fairplay be your motto. When you are faced with problems which you cannot solve or with a difficult situation from which you cannot escape or when uncertain and doubtful circumstances confuse and perplex you, then turn to Allah and the Holy Prophet (s) because Allah has thus ordered those whom He wants to guide. 

--

Haider Ajaz 

(Advocate)

Munqabat on Imam Zamana (as)

Bail and Discretion

The judiciary seems convinced that unless it intervenes proactively, even the slender respect for the law that exists now can be lost.

The issue of bail is one of liberty, justice, public safety and burden of the public treasury, all of which insist that a developed jurisprudence of bail is integral to a socially sensitised judicial process.

– Justice V.R. Krishna Iyer in the Gudikanti Narasimhulu case (1977)

Society has a vital interest in grant or refusal of bail because every criminal offence is an offence against the state. The order… must reflect perfect balance between the conflicting interests, namely, sanctity of individual liberty and the interest of the society.

– Justice Dalveer Bhandari in S.S. Mhetre vs State of Maharashtra (2010)

THESE are especially harrowing times for those arraigned before courts for suspected crime. The judiciary has shown itself to be extremely tough, causing a lot of heart burning among those habitually deviant. A vast majority of Indians welcome this, because far too many criminals have been getting away with murder literally, because of either poor police investigation or the capacity of the accused to buy up or intimidate witnesses during a trial.

In a few States, ruling parties have been complicit in such misdeeds. On occasion, lack of integrity among trial court judges has also been a problem. The Supreme Court and High Courts seem more than convinced now that unless they intervened proactively, things could go out of control, and even the slender respect for the law that we see often could totally snap. This is why the higher judiciary has shown itself to be aggressive and has sent a decisive signal down its hierarchy that it will not brook inconsistent rulings or unjustified lenience towards those suspected of or charge sheeted for crime.

The subordinate judiciary has been quick to respond with some unusual rigour in dealing with criminal matters brought before it. Substantial terms of imprisonment by trial courts and their ready endorsement by appellate courts mark a distinct trend that shows the Indian judiciary in good light. A lenient sentence of six months to a molester and a rash and negligent automobile driver who has killed several on the road could be things of the past. This decisive change of stance towards offenders should have a positive fallout by way of deterring potential offenders. Victims of crime should in particular be happy, especially those who have seen aggressors going scot-free right before their eyes.

There is, however, a flip side to the new phenomenon. There is an unexpressed feeling among some that the judiciary is possibly too harsh and insensitive. The enormous adulation that the judiciary has received from the media is cited by them as a distraction that needs a cautious and balanced response while giving rulings in the future. Those who plead for such a corrective are in a woefully small minority. They, however, cannot be ignored if India is to be regarded as a civilised nation, one that is characterised by mercy and poise. Any criticism of the judiciary is not exactly a popular line to plug at a time when the whole nation is in a rage over successive scams and people in high places making unbelievable quantities of money at the cost of the taxpayer. Somebody has to bring to the notice of the judiciary that there is a school of thought in the country that stands for moderation, even if it means undeserved lenience to those guilty or suspected of crime.

Something that is germane to the debate on perceived distortions in judicial approach to the current venality in the country is the amount of discretion enjoyed by the courts while responding to petitions for bail. The press is lapping up recent events with great relish to the point of being cruel to those locked up as a result of stern judicial orders. Not a word of dissent or disapproval of court orders has been heard, something that would have revealed a certain logical evaluation of such orders. This is a disturbing turn of events that needs introspection.

The current law on the subject of bail as incorporated in the Criminal Procedure Court (CrPC) gives courts a wide discretion in respect of those held in judicial custody or who apprehend custody. A chronology of decisions since the beginning of the Republic in 1950 is revealing. The pendulum has swung from the lax and liberal approach to bail requests to the somewhat harsh regimen now. This should send shivers down the spine of many in public life who, until the other day, took the judiciary lightly to the point of being furtively sarcastic and disrespectful. It is an entirely different matter that some members of the judiciary themselves have given quarter to such irreverence towards them. The current Chief Justice of India, S.H. Kapadia, has done enough to drive home the message that he is no respecter of personalities and that he will come down heavily on anyone straying from the path of virtue, even if he or she belongs to the judiciary.

One of the earliest pronouncements on the philosophy that should guide judges while disposing of bail applications was by Justice V.R. Krishna Iyer. His plea for a concern for fundamental rights, especially the right to individual freedom, which needed to be blended with protection of public safety, set the tone for judgments for several decades to come.

It was the accepted proposition that as long as an applicant for bail posed no threat to the lives and property of others, he deserved a lot of consideration. Combined with this was the need for an undertaking that he or she would in no way tinker with the processes of law, such as destruction of vital evidence that may not have come to the notice of the police or prosecution or intimidation of those who were expected to depose before the court during the trial. If this criterion was fulfilled to the satisfaction of the court, it invariably granted bail.

Of course, such an order came with a few restraints on the accused, and a prescription that he or she should appear before the police at prescribed intervals of time. Once the trial began, the accused was required to attend every hearing without fail, unless there were convincing reasons for absence on a particular day. Such a bail application was made invariably after the accused had been arrested or charge-sheeted. The implication was that none could move the court on mere apprehension of arrest. Then came the concept of “anticipatory bail” in the form of Section 438 in the new CrPC of 1973. The objective was to take care of situations in which an individual feared being taken into custody by the police in response to a frivolous complaint by a vengeful adversary. This was a welcome relief to those who had suffered shame and ignominy at the hands of unscrupulous members of society.

Voluminous case law has been built around the theory making anticipatory bail a weighty concept that courts could use with great care to protect innocent individuals. Distressingly, however, some judges began diluting the benefit of Section 438 by making it mandatory for hapless applicants to subject themselves to periodic appearances at police stations or courts. There was also a stipulation by some courts that an anticipatory bail would cease the moment a charge sheet was filed in a case. This possibly curtails the freedom of an individual, which was not contemplated by the lawmakers.

The whole subject came up for a review by the Supreme Court in the Sibbia case (1980) when the court said: “Judges have to decide cases as they come before them, mindful of the need to keep passions and prejudices out of their decisions. And it will be strange if… we cut down the discretion so wisely conferred, by devising a formula which will confine the power to grant anticipatory bail within a straitjacket.”

The Sibbia ruling implied that judges need not feel fettered by narrow concerns and that they should interpret the law liberally so that no innocent person is denied what is due in the form of an anticipatory bail. This was the line of argument by the defence counsel in arguing for anticipatory bail of a Congressman, S.S. Mhetre, who was accused of involvement in a murder in 2009 and whose plea for anticipatory bail was turned down by the Bombay High Court.

In allowing the appeal, the Supreme Court (Justices Dalveer Bhandari and K.P. Radhakrishnan) went largely by the Sibbia ruling and said that any limitation on the validity of an anticipatory bail was not envisaged by the legislature. At the same time, the Mhetre judgment laid down that the discretion vested in the court should be exercised with great care and circumspection.

All recent court rulings on bail generally should be viewed against the backdrop of the Mhetre ruling. The courts have enormous discretion in granting or refusing bail. It is this discretion that possibly explains the varying standards applied in considering bail applications.

The point is whether differing perceptions have a deleterious impact on justice. It is difficult to assess the impact because of the hugely varied circumstances that surround each case. This is why we need a clinical study by legal scholars on how bail applications are disposed of and whether discretion is exercised by courts under pressure from the media and a demanding public.

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Regards to:-

R.K. RAGHAVAN

Thanks,

Haider Ajaz

(Advocate)