Law practice of any junior lawyer in High court is mostly confined to adjournments, pass-overs, stay extensions and the like summary proceedings. One just has to memorize some usual phrases like ‘Your Lordship may kindly have the case on some other day’. ‘My lord, the senior is engaged in another court, may kindly pass over the matter’ etc. Opportunities to make full length arguments are hard to come by since the Kerala High Court is more a ‘Court of Interim Orders’ rather than supposed to be ‘Court of Record’. Even if something comes up in a hearing court, a junior lawyer has no chance to represent, unless the case is absolutely absurd and someone is required to bury the garbage. I have done many garbage-processing-full-length-arguments and on many occasions, the judges have buried me along with the garbage.
Anyway, this post is about my first victory in a full-length-argument, which is special and was surprise to all. This time the case was entrusted to me not by my senior but by a family friend, Moiduka, who wanted a junior lawyer to do the garbage processing. Moidukka, when he had sawmill business, did not disclose the actual number of workers he had for payment of ESI Contributions. The ESI Inspector detected it and made a Best Judgment Assessment on omitted wages against him. The case, before it reached me, had already undergone several rounds of litigation and at every forum, it was decided against my client. I got the brief only in its last stage when the ESI Corp despite winning the case in court below, got greedy and filed an Insurance Appeal in High court for granting interest on contribution due to it. Basically the appeal is just for getting the statuary prescribed Interest which, I would say, EI Court forgot to provide in its judgment after upholding the Assessment made against my client. There was hardly any scope to defend the appeal since the aspect was already covered by many decisions of the Supreme Court and the assessment period was long long back viz 1976-1982 (I was born only in 1985). My client who had successfully evaded payment of any contribution even after losing the case in EI court, just wanted me to prolong the litigation little longer, specifically, till he kicks the bucket. He was 82 years old and had already settled all his assets along with the saw mill in favour of his children.
Apprehending disposal of the case in the admission stage itself, I started investigating into old records of the case. I understood that Assessment was tilted in my client’s favour and any further fiddling with it would be like rocking a Pandora’s box. But then luckily I found out from the records that there was a delay of 5 years in completing re-assessment in 1991 by ESI Corporation, after the High court set aside the initial assessment in the first round of litigation. Though no objection was made about it, either by the party with ESI Inspector or before the lower court, it gave me some weird ideas. I took my chances and filed a cross objection under Order 41 Rule 22 of CPC highlighting the delay in re-assessment and prejudice that has caused to my client. (Cross Appeal was not feasible since there would be delay of 3 years).
When the matter came up before Justice M.N. Krishnan for admission, first thing he noticed was why a cross objection and not a cross appeal? Whether a cross objection is maintainable in an Insurance Appeal? Why an attack is fielded against delay in Re-Assessment rather than on merits of the concluded Assessment? He got skeptical and understood that it was just a ‘Modaku petition’ to prevent the 100% merited appeal from disposing off in admission stage itself and to prolong the matter. He got very angry and indigently declared that Cross objection would be dismissed on delay (I had 7 days of delay in filing Cross Objection, courtesy my clerk who had never heard about it) and directed the opposite counsel to file an objection against my delay condonation petition.
Honestly, I got disappointed. Not that the case didn’t deserve it, but the client actually mattered to me. He had been our client from my great grandfather’s age and was very much incidental to Appa’s success and promotion of Appa’s office at Perumbavoor. I felt that if the case is again heard before the same judge, he may allow the appeal and dismiss my cross objection with cost. So I even asked my clerk Sanoj, to talk/cajole the people at section and try to bury the case somewhere deep so that it doesn’t come up before the same judge. But the opposite counsel very promptly filed the objection to my delay condonation petition and moved for early posting of the case.
When the case came after a week as Item 405 in the petition list which is the de-facto hearing list of Court-5B, the judge immediately recognized the case, the wicked cross objection and the delay of 7 days useful to neutralize my wickedness. But this time he was more pleasant and listening and very curiously asked my original intentions. I very honestly explained that it was my personal case and couldn’t afford to lose it, unlike briefs of my senior, where my obligation is limited. May be to encourage a junior lawyer or to see what I’ve come up with (coz I had some big books with me) he very patiently decided to hear the matter on merits before condoning the delay. I argued the case for about 25mins and explained the unresonablity of 5 years delay in re-assessment (caused only because my client changed his address about which I maintained my discretion) and the prejudice it has caused to my client. The judge very skilfully pointed out that such an objection was not taken up in the court below. I painted the lower court lawyer with ignorance of limitation vis-à-vis reasonable period and suggested that court below did not consider the case from the angle ie of reasonable time . I pinned my entire arguments on the principle that when an authority is vested with power, the power has to be exercised within a reasonable time. The judge after hearing my arguments became interested in formulating some guidelines for re-assessment and enquired scope for remanding the matter with the opposite counsel. Shocked at the change in attitude of the Judge, he explained that the Assessment was of 1976-1982, ie 30 years old and any remand would kill the whole process. Thereafter, I embellished the aspect of prejudice that has visited my client and made the judge dictate the judgment before opposite counsel waste any more precious time of the court (he didn’t argue even for 3mins). In result, my cross objection was allowed and the judgment of EI court was set aside for fresh consideration from the perspective of reasonable time for re-assessment. In simple words, nothing would happen for next 5 years. It also opened up new ground to set aside the Assessment itself before EI court.
It was an enormous victory for the reason that even without filing any appeal I got the judgment of lower court set aside. No body including Moiduka or Appa expected the case to last any more than the admission stage, but now entire garbage got recycled and became a good case. After the victory, Moiduka presented me with a big Tiffin Carrier of Thalasherri Mutton Biriyani and some pocket money..:) It was Appa’s advice at night after his celebration drinks that prompted me to write this blog and share my experience. ‘A junior lawyer is given only garbage. Handle the garbage, lie with dogs, when possible get up and fly up with flies. In time you will learn to fly and dominate the sky.’