My Recollections

Dr. Kailash Nath Katju

I started my career of legal profession in Kanpur in the year 1908 and shifted to the High Court Bar at Allahabad in March 1914. At that time there were 7 Judges in the Allahabad High Court, the Chief Justice being Sir Henry Richards. Among them, two were very senior learned Judges-Sir George Knox, I.C.S. and Sir Parmoda Charan Bannerji, P.C.S. They had been appointed in 1890 and 1892 respectively. They were then two of the oldest Judges in the High Courts of India. After their appointment the 60 years Rule had come into force and they were exempted from its operation. The rule is said to have originated from a protest made and a movement started by members of the India Civil Service. Till then there was no age-limit applicable to the Judge of the High Court in India. Speaking generally, one-third of the High Court Judges including the Chief Justice were required to be Barristers-at-law called to the Bar by Inns of Court in England and one-third were required to be members of the Indian Civil Service but there was no restriction of any kind regarding the remaining one-third. They were generally chosen from members of the Provincial Judicial Service or from the members of the Vakil High Court Bar in India. Under the I.C.S. Rules, then in force, a member of the Civil Service might be called upon to retire after 35 years service. That meant that his retirement came any time when he was over 56 years of age but if any member of the Indian Civil Service (Judicial Branch) was elevated to the High Court Bench then he could continue as a Judge of the High Court as long as he pleased. His continuance as a Judge of the High Court for any great length of time blocked the promotion of his colleagues in the Judicial Service, junior to him, to the High Court Bench. They could not stay on till his retirement but had to vacate and retire under the 35 years Rule. It is said that the members of the Indian Civil Service drew attention to this, what they called, unfair and unjust, feature of the current practice so far as the I.C.S. was concerned any they insisted and prayed that Judges of the High court drawn from the I.C.S. should be compelled to retire in accordance with the I.C.S. Rules, so that their juniors in the service may have a fair chance of promotion to the High Court Bench. This representation was considered forceful but the higher authorities considered it improper to make a distinction between the High Judges inter se in the matter of retirement. So it was thought fair and prudent to impose an age limit of 60 on all the High court Judges of India without any distinction between them. This rule came into operation some time in 1895 or so but as I have already said above Sir George Knox and Sir Pramoda Charan Bannerji having been appointed as Judges much earlier were exempted from the Rule. They continued to function as Judges for many years till they were over 82 or so.

Sir George Knox was the Administration Judge also in the Allahabad High Court and continued as the Administration Judge for very many years. He generally used to sit alone all by himself and was considered to be an ordinary but slow Judge not very alert and given almost to an occasional napping on the Bench. He was a kind-hearted Judge and was indeed kind towards all juniors who appeared before him. In my younger days I used to appear before him occasionally. One scene I always remember, it was so amusing. I was arguing a criminal revision before him. The accused applicant had been convicted of house breaking at night. The master of the house had left his home to catch a night train at a railway station some miles away from the village. Unfortunately, he  missed the train and had to return home at about 2 O’clock at night. He found the door open and the accused inside the home. He caught hold of him and took him to the police station on a charge of house-breaking at night. The defence of the accused was that there was no question of any house-breaking at all. One of the female residents of the house who knew him well had called him and he hag gone there on her invitation. This explanation was not believed by the lower courts and he was convicted. In my youthful enthusiasm I dwelt upon it with great warmth and pleaded strenuously in the alternative for the reduction of the sentence. I urged that there was no intention on his part to commit any criminal offence. The accused was only carrying on the love affair and so on. Sir George Knox appeared to me to be listening to me with great attention and I thought that I was making a great impression upon him and that added to the vehemence of my argument. Suddenly Sir George Knox burst forth with the remark, “I have been considering whether it is not a case for enhancement of the sentence. Just imagine a Gadaria breaking into the house of a Brahmin for nefarious activities like this.” I was literally stunned and at once collapsed and sat down. The application was dismissed.

I remember another case in which my honoured friend Sri Shyam Kishan Dar was arguing a second appeal before Sir George Knox with great eloquence and persuasion. I was appearing for the respondent in that appeal. I was sitting close to Sri S.K. Dar. I do not know what happened to me. I suddenly rose and submitted “My Lord, my learned friend is indebted to his imagination for his facts and to his fancy for his arguments” and then deliberately I moved three chairs away from Sri S.K. Dar noticeably apprehending some aggressive movement from his side. Sir George was struck by the comedy of the scene, and he laughed outright. Sri Dar, of course, was furious.

Sir George had become accustomed to sitting singly and everybody thought that he used to take the discharge of his judicial duties on the Bench very lightly. When Sir Grimwood Mears came to Allahabad as a Chief Justice of the High Court we all thought he took notice of the current situation and began to sit with Sir George Knox on a Division bench. Sir George now had to keep awake and apply his mind continuously to the case before him. He could not stand this mental pressure very long and I think in a few months he resigned.

Sir pramoda Charan Bannerji was very wide awake and he was held in the highest respect as the most learned and experience Judge of the High Court. One scene I shall always remember. He was sitting with Sir Henry Richards on a Division bench and hearing a criminal appeal. It soon became apparent that the two learned Judges were taking different views in the case before them. The difference gradually became so acute that they practically ceased to be on speaking terms with each other and they began talking to each other through the counsel before them. One of them would put a question to the counsel and the other Judge would intervene by saying “I suppose your answer would be this.” The arguments were concluded and the Chief Justice being the senior judge dictated his judgement. He dictated it on his own behalf and gave expression to his own views and findings and concluded by saying that “I would, therefore, allow the appeal” and so on. He was then followed by Sir Pramoda Charan Bannerji who in his judgement again in the first person singularly dealt with the arguments advance by the Chief Justice and countered them by his own views. We all thought that the two Judges were differing completely from each other and the case would have to go before a third Judge for final decision. We were also noticing that Sir Henry Richards had become absolutely quiet and was listening to Sir Pramoda Charan Bannerji with his eyes closed. Suddenly, everybody was immensely taken aback when Sir Pramoda Charan Bannerji began saying “but inasmuch as the learned chief Justice had taken a contrary view I am not prepared to differ and I would also, therefore, allow the appeal” and so on. The whole Court was filled with excitement. Sir Henry Richards woke up. His face was glowing and jubilant and he rose in his seat and turning towards Sir Pramoda charan Bannerji solemnly bowed to him, face wreathed in smiles. The Court atmosphere was suddenly changed. It was indeed an extraordinary glorious scene. This is a story, I think of 1915 or 1916.

I had myself a rather curious incident with Sir Pramoda Charan Bannerji. He was sitting with Chief Justice Sir Grimwood Mears and I was appearing for the appellant in and I was appearing for the appellant in an appeal before him. It was a rather difficult case. Some property was in dispute and many creditors-decree-holders of a particular judgement debtor were trying to get hold of that property on the allegation that it belonged to their judgement-debtor and was, therefore, liable to attachment and sale in execution of their decree. Their claim was resisted by another individual who claimed to be the owner of the property in his own right wholly unconnected with the judgement debtor. This question of ownership had previously been raised in a claim launched by a particular judgement-creditor but that suit had been dismissed by a Division Bench of the High Court of which Sir Pramoda Charan Bannerji was also a member. The question was raised again in another suit subsequently instituted by another judgement-creditor. Parties being different no question of res judicata could be raised but naturally the lower courts had felt themselves almost bound by the previous High Court Judgement and they had dismissed the suit. It was an appeal in that case which I was then arguing before this Division Bench consisting of Sir Grimwood Mears and Sir Pramoda charan Bannerji. I opened the case and briefly stated the points in my favour. Both the Judges were greatly impressed and clearly expressed their views in my favour. Sir Pramoda Charan Bannerji then in tones of surprises and curiosity asked as to why the lower courts had decided the case against me. It seemed to him almost incomprehensible. I quietly said, “My Lord, the learned District Judge has been somewhat impressed by a High court judgement.” Sir Pramoda Charan Bannerji asked, “Who were the Judges in that judgment?” and I quietly said, “ Your Lordship was one but the judgement was not delivered by your Lordship. The then Chief Justice had delivered the judgement.” Thereupon, my learned friend appearing for the opposite side enquired, “How does my friend know that?” and I answered, “His Lordship (Justice Bannerji) is always in the habit of using the phrase ‘as pointed out above’ in his judgements but that phrase does not occur in the judgement now under discussion.”

Everybody, of course, smiled at this inference of mine. Sir Pramoda Charan Bannerji then asked for the ruling and after some time began to read it. He had committed himself so deeply with his remarks in my favour during the course of argument that he was obviously embarrassed by the previous judgement. Sir Grimwood Mears was in my favour but he was thoroughly enjoying and relishing the scene. Soon I noticed he directed the Court Reader to send for some papers. The papers came and he looked at them and then suddenly he burst forth, “I now realize what has led to all this mistake. Here is my brother’s note book of the time when this earlier case was heard. There are just four lines of notes recorded by Justice Bannerji about this case. It is obvious that the case was never fully argued before the Bench at that time. Facts were not properly stated nor full circumstances brought out and that led to the delivery of a wrong judgement in that case. How can we be bound by a decision like that ?”sir Pramoda Charan Bannerji was obviously relieved and pleased. The argument continued and ultimately the appeal was allowed.

In my practice in the High Court from 1914 to 1937 I had the privilege and good fortune of appearing before many Judges in the High court. They were all able, competent, learned and extremely anxious to administer complete impartial justice between the parties. Amount them all Sir Henry Richards, the Chief Justice, who retired in 1917, was undoubtedly an outstanding personality. He was extremely quick-witted, intelligent and of a forceful penetrating intellect. He would soon come to the point and would love to dispose of the case as quickly as possible. He was a dominant personality anxious always to encourage deserving young men appearing before him but he would tolerate no misbehaviour of any kind. One incident stand out in my recollection. He was sitting singly and hearing second appeals for admission under order 41, rule II, C.P.C. In one appeal one of the pleas in the memorandum of appeal was that a particular finding of the learned District Judge was not supported by any evidence on the record. Sir Henry Richards read the judgement and said, “In the judgement it was stated that particular findings was based upon the evidence of a particular witness.”

            Counsel-”That is not so. The witness had said nothing on the point.”

            C.J.-”Have you read the statement ?”

            Counsel-”Yes, My Lord.”

            C.J.-”have you got a copy of it? Please read it.”

            Counsel began to fumble with the deposition of the witness.

            C.J.-”Pass it on to me.”

Counsel passed the statement on the bench. The Chief Justice read it. Unfortunately, it appeared that there was a line in that statement dealing with the matter before the District Judge. The Chief Justice became furious. I shall never forget the sight of his face which was red with anger and he burst forthwith, “Appeal dismissed with costs, “and added, “I shall never believe in future a worked of what you say” It was such a passionate denunciation and the remark was uttered with such vehemence that Counsel probably thought his continuance in Allahabd was now an absolutely hopeless proposition and he left Allahabad for good within a week and shifted himself to the Lahore High Court.

I attracted the notice of Sir Henry Richards very early in a rather curious fashion. I was engaged as a junior in a particular appeal for the appellant. There were several senior Advocates like Dr. Sapru, Sir Sunder Lal and Mr. O’Conor already appearing in the case. When the case was called on before the Chief Justice unfortunately all the senior counsel were engaged in other Courts and in as much as my instructions were definite that I was to assist my senior but not to argue the case myself, I stood up and prayed for an adjournment. The Chief Justice looked at the youthful pleader before him and granted my prayer but with a smiling countenance he looked at me and said, “What are you here for? Why don’t you argue the case? Are you here for ornament’s sake?” I was greatly touched and told him that I was only too ready to argue the case myself but my instruction were precisely to the contrary. I, thereafter, made it a rule of my life never to make a motion for adjournment of any case on the ground of the engagement of my seniors elsewhere.

Service Judges were usually drawn from the Indian Civil Service (Judicial Branch) and as in those days 50 years ago the Indian civil Service was mostly manned by British people, our Service Judges were mostly all British people.

In the first ten years of my practice in the Allahabad High court, we had several Service Judges of learning and judicial experience. Some of them I remember vividly-Sir William Tudball, Sir Edward Maynard Des Chamier, Theodore Caro Piggott, Benjamin Lindsay, Sir Louis Stuart, James Allsop and Sir Edward Bennet. Each one was anxious to do justice between the parties but as was to be expected from people who had devoted the whole of their lives to a judicial career, right from the start, all of them had personalities and characteristics of their own and the access to their hearts, minds and brains was to be found in different ways. For instance, Mr. Justice Lindsay was a most careful, painstaking Judge. He was anxious to become acquainted with all the papers on the record and with all the facts and circumstances of the case in detail. He did not like to look into papers at home and endeavoured to master the case before him by studying in court. He like the pleadings, the evidence and the judgement to be laid before him in full so that nothing important might escape his notice. All this meant and involved a slow process but it appealed to many members of the Bar and a hearing before him was greatly longed for, welcomed and appreciated. Mr. Justice Louis Stuart was a perfect opposite of Mr. Justice Lindsay. He endeavoured-and generally was able to read the important papers of the case at home and at the hearing in Court he was brisk and keen to come to the point in a few minutes and to dispose of the case as quickly as possible. In view of these differing temperaments, methods of approach before the two Judges were almost diametrically opposed to each other and it was desirable for every advocate to adjust himself to the mental processes of the two leaned Judges.

Once I had a very curious, rather amusing, experience before these two learned Judges. They were sitting jointing together on a Division Bench and I had to argue a second appeal before them for the appellant in the case. I opened the case and after shortly stating the facts began reading the plaint. As I was doing so Mr. Justice Stuart, who was fully aware of the facts of the case, suddenly put a question to me on the merits. I dropped the plaint and applying myself to Justice Stuart’s question began answering it. I noticed that Justice Lindsay was considerably irritated and he was much annoyed at the interruption caused by Justice Stuart’s question. In a few minutes after completing my answer to Justice Stuart’s question I came back to the plaint and resumed its reading. I had not proceeded very far when Justice Stuart broke in again with another question and again I had veer round and apply myself to answering that question. I noticed that Justice Lindsay’s irritation became still more pronounced and he began scratching his hair with his fingers. Again after finishing my answer to Justice Stuart I came back to the plaint once again. Shortly, afterwards, came another interruption. This time Justice Lindsay could not control himself and, believe it or not, he stretched his left hand (Justice Stuart was sitting on his left) and placing it almost within an inch in front of Justice Stuart’s month tried to choke Justice Stuart off and turning to me observed, “You better continue your argument.” The scene was an extraordinarily facetious one. Every body in court laughed including the two Judges but Justice Lindsay gained his object and Justice Stuart kept quiet all through the hearing and never interrupted again to oppose any other question.

Justice Stuart’s manner was held by many advocates, seniors and juniors alike, to be much too abrupt and indicative of impatience. The Judge was obviously anxious to shorten the hearing of the case as much as possible and to dispose it off in a few minutes.

Sir Edward Bennet was equally impatient and equally non-appreciative of long arguments. He wanted to study the case all by himself and so just as the case was briefly opened before him he would invariably start with a series of questions, “How many witnesses were there, Dr. Katju ?” I would give the number and the names. “Where is the evidence of so and so ?” I would give the page. He would read for himself and then ask about the next witness. The process went on till he concluded his reading of the evidence and the relevant papers all by himself and then asked me for the main points of my arguments. I would put them before him and try to meet the opposite side’s version of the case and then after a short argument from my learned friend on the other side the hearing of the case would come to an end.

I need not say that much depends in court on the temperament of the Advocate also. If he is a laborious, Long-winded gentlemen, anxious to go into details of the case, he finds the atmosphere before Judges like Justice Stuart and Bennet rather uncongenial, but advocates who are themselves not given to elaborate preparations of their briefs and are anxious to put their cases a shortly and precisely as possible, get along exceedingly well with Judges like Justice Stuart and Bennet. Speaking for myself I had that good fortune because in the course of time I had myself developed the habit of concluding my arguments as quickly as possible and only emphasizing the real points in the case. One Experience of mine was very curious and amusing. In a second appeal I was appearing for the respodent opposing my dear friend Pearey Lal Bannerji, who was appearing for the appellant. The case came on the daily list before Justice Stuart one morning and it so happened that owing to pressure of other work-both in Court on the day’s list and outside-I could not look into this particular second appeal of mine. What to say of study, I had not even opened the brief and did not know at all what the case was about and what exactly was the point of law raised therein. That morning on reaching the High Court while I was mounting the stairs I came across my friend P.L.B. and I told him that I had had no time to look into this case and asked him whether there was anything in it. He smiled broadly and waved his hand indicating that there was not much in the appeal. I took the hint and ceased to worry about the case. As the different Courts commenced to work, I began to walk up and down the corridor looking after one or two cases of mine which were proceeding in these courts. In about half an hour came my client, the respondent in the second appeal, running to me and requested me to proceed to Justice Stuart’s Court at once because he said, “The case has been called and Pearey Babu has started his arguments. So, do please come.” I told him “not to be impatient. I will come a little later, “but he was not to be pacified and he said, “Dr. Sahab, Dr. Sahab, do please come straight off, just show your face and come away if you like. “I was rather amused by the way in which he was phrasing his request and I just followed him. When we reached Justice Stuart’s court-room, I lifted the curtain and put one foot inside the room and I noticed that P.L.B was going on with his arguments. Stuart, J. looked at me from the bench and very likely imagining that I had come into his Court for this particular case from some other Court leaving my case there, he, believe it or not, just beckoned to me from the Bench to go away. I took the hint and left the Court. I think P.L.B. sat down afterwards in a few minutes.

That is the way in which Stuart, J. used to polish off many cases a day in his court, day after day. This particular method deserves attention because we are all troubled these days with the heavy arrears in our Court.

There is one particular feature in the law practice in the High Court. High Court Judges remain on the Bench for long periods, at least for ten years and more, and almost a family atmosphere prevails between the Bench and the Bar in the High Court . The Judges and practising lawyers come to know each other very well and cases are argued in an atmosphere of understanding and cordiality and almost light-heartedness and the process of argument before them often becomes a very simple and untiring affair. I sometimes used to make light-hearted, you may say almost impertinent, remarks, but the Judges were kind and they enjoyed the fun themselves.

After a long experience I have come to the conclusion that the best process of conducting an argument and avoiding scenes in Court was to give a ready and precise answer to every question of the Judge. Give your answer first and then add anything afterwards. I remember vividly a scene in the Court of Mr. Justice Tudball. He was hearing a second appeal. Dr. Sapru was the senior counsel in the case. He was elsewhere. He had handed over the brief to me and asked me to sit in Court and listen to the arguments of his colleague. That argument was proceeding but my friend did not appear to be making much ado. He stressed some points on which the learned Judge asked a question. Answer to that question was not to the liking or in favour of my friend, the Advocate. So, instead of giving the answer first and trying to explain it away afterwards, he would just begin by saying “But My Lord”. Tudball, J. repeated the question and then again it came, “But My Lord”. This appended three or four times; whereupon Tudball, J. lost his temper and shouted something very rude. I was myself, though young in age, rather distressed and hurt by his discourteous demeanour and my head began to wave almost involuntarily in indication of my disapproval of the Judge’ behaviour. Tudball, J. noticed it and he suddenly turned round and in a loud voice asked me, “Do you understand him ? “and I answered, “Yes, My Lord”. “what does he mean ?” “what he obviously means is that what your Lordship is saying is correct but he wants to give and explanation of the situation.” “Why does he not say so ?”to which I said, “Ask him.”

Justice Tudball was a Judge of great experience, great learning, great wisdom and he was held by the Bar in great respect and esteem. Once, however, he gave me a baffling example of imperfection of human justice.

Sitting with Mr. Justice Rafique, he was hearing a criminal appeal in which in a conviction for murder only a sentence for life imprisonment had been awarded. Our senior most counsel, the famous barrister, Mr. Alston, was arguing the case for the appellant. The Judges were not only not convinced by the argument, they formed a very strong opinion quite adverse to the appellant and thought he had been guilty of great moral misbehaviour in the course of the whole incident. They became furious in their denunciation of his conduct and they though that the Sessions Judge had been unduly merciful to him and they took the view that in the interest of justice a death sentence should be imposed on the appellant for the offence of murder. So, a notice to show cause why sentence should not be enhanced was ordered to be issued. I was present in Court just as a spectator and was somewhat struck by the very severe attitude of the learned Judges, particularly of Mr. Justice Tudball.

After about three weeks when I was sitting again as spectator in the court of Justice chamier and Justice Piggot, I saw the Government Advocate, Mr Malcomson, rising and saying, when the Reader called on a particular case, that, “My Lord, there has been some mistake about the listing of this case. It was heard the other day in full by another Bench, who ordered an enhancement notice to issue. This case should have been listed before that particular bench for final decision.” Chamier, J.: “Is it not the practice, Mr. Malcomson, that if one Bench issues notice, the case is listed before another Bench for final disposal ?”

Mr. Malcomson: “No, My Lord, there is no such practice. These enhancement notices are always, as a rule, heard and disposed off by the Bench which issues them.”

Chamier, J.: “I think there should be such a rule. Anyway, now that the case has come before us we will hear it and dispose it off.”

The two learned Judges heard the appeal on the merits and within an hour allowed the appeal and acquitted the appellants. Thus, the issue of a notice of enhancement proved to be a great blessing in disguise to the accused persons.

I had once a similar experience myself. My client had been sentence to three years’ imprisonment. I thought I had, on the judgement of the Sessions Judge himself, a strong case, but Mr. Justice Uma Shanker Bajpai, before whom the case was posted for disposal, thought otherwise, took a very serious view of the matter and thought that not only my client was guilty but he deserved a much more severe punishment. So, inspite of my indirect hint that in the circumstances he might as well dismiss the appeal, he issued a notice for enhancement remarking, “Dr. Katju, blood is calling for vengeance.” These enhancement notices in criminal cases are always heard by a Bench of two Judges. My case was posted before a Bench consisting of Sir Arthur Trevor Harries and Mr. Justice Rachpal Singh. In a short time they formed the opinion that the conviction was wrong and expressed a little surprise at the issue of the enhancement notice. After hearing the government Advocate, the appeal was allowed and the accused was acquitted.

In view of such possibilities, I have always held the view that interests of justice demand that in the High Court every case, big or small, civil or criminal, should be heard and disposed off by a bench of two or more Judges. Some-times it becomes very difficult to bring round a single Judge to the correct point of view.

After 1914, in the next 30 years there were many Judges of great eminence. One who made a name for himself for his great legal talent and learning was Sir Shah Mohammad Sulaiman. He attained a fame for learning almost equal to that of Justice Mahmood.

Justice Sulaiman was appointed when he was only 33 years of age but his legal erudition was a great recommendation in his case. He and his brother Judge Justice Young created an all India record by their quick disposal of the famous Meerut Conspiracy case. That case involved 18 accused-three Britishers and 15 other Indian politicians-members of the Communist party, accused of Criminal conspiracy for the overthrow of the Indian Government. The case had taken 15 months in commitment proceedings before a magistrate and took full two years of day-to-day hearing in the Sessions court. The record in its bulk was simply awe-inspiring. The learned Sessions Judge took over six months in preparing his judgement which covered nearly 800 foolscap pages. The Government had engaged a special counsel, Mr. Kemp, a Barrister from Bombay, to conduct the case before the Sessions Judge. He appeared in the High court too, and he thought that the hearing of the appeal in the High court would take at least three months, if not more. I with several colleagues was appearing for the appellants. We concluded our  arguments in five days. Mr. Kemp in reply took 2 days and on the 8th day Justice Sulaiman delivered his Judgement in court, which he dictated for about six hours and thus the hearing of the appeal was finished altogether in 8 days-a marvelous record.

Mr. Justice Suailman was afterwards appointed a Judge of the Federal court at new Delhi. His premature early death deprived India of the services of a Judge of great erudition and merits. Three of the Judges of the Allahabad High Court went to other States as Chief Justices, Mr. Justice Chamiers as Chief Justice of the Bihar High Court at Patna, Mr. Justice young of the Punjab High court at Lahore, and Mr. Justice Harries, who served as Chief Justice in three Courts, the last one being the Calcutta High Court.

The first Indian as the Chief Justice of the Allahabad High Court was Sir Shah Mohammad Sulaiman. After him came several other-Mr. Justice Iqbal Ahmad, Mr. Justice Kamala Kant Verma and Mr. Justice B. Malik.

The work has been increasing and so has the number of Judges. The art of advocacy requires great discrimination on the part of Advocates in the conduct of their arguments and that task becomes difficult, indeed, when you have to deal with a large number of Judges.