Last month, I hesitated in characterizing why New India Assurance was an uncomfortable decision. Dave, Sen and Ghose, JJ were clear that Kailash, (2005) 4 SCC 480 “ought to have respected the view expressed” in J.J. Merchant, (2002) 6 SCC 635. Kailash has been an important tool in my hands in civil suits. Procedure can be ignored, if it compliments justice. Justice cannot be ignored. I had no reason to doubt Kailash until New India Assurance came along.
There has been a turn of events. Hon’ble Justice R.F. Nariman quotes Kailash (paragraphs 28 and 29) in Jagatjit Industries v. The Intellectual Property Appellate Board, [Civil Appeal No. 430 of 2016] and states, “It is settled law that procedural provisions are to be construed in a manner that advances and does not subvert the cause of justice.” Nariman Sir’s endorsement is enough for me not to doubt anymore.