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Thursday, July 7, 2011

Justice, Courts and Delay : Remedial Measures : Supreme Court Guidelines

Justice D. Bhandari
Supreme Court of India
Justice Dalveer Bhandari and Justice Deepak Varma, in Ramrameshwari Devi & Ors. v. Nirmala Devi & Ors. have carefully considered the causes for substantial delay in our judicial system and its consequent effect on the administration of justice. Dr. Arun Mohan, Sr. Advocate was appointed as an Amicus Curiae to suggest ways and means to help reduce such delays. Considering the valuable suggestions of the learned Amicus Curiae, the Supreme Court has culled out guidelines to be followed by subordinate courts in civil cases. The relevant extracts of the judgment are reproduced hereinbelow;

32. Dr. Arun Mohan, learned amicus curiae, has written an extremely useful, informative and unusual book; Justice, Courts and Delays. This book also deals with the main causes of delay in the administration of justice. He has also suggested some effective remedial measures. We would briefly deal with the aspect of delay in disposal of civil cases and some remedial measures and suggestions to improve the situation. According to our considered view, if these suggestions are implemented in proper perspective, then the present justice delivery system of civil litigation would certainly improve to a great extent.

33. According to the learned author, 90% of our court time and resources are consumed in attending to uncalled for litigation, which is created only because our current procedures and practices hold out an incentive for the wrong- doer. Those involved receive less than full justice and there are many more in the country, in fact, a greater number than those involved who suffer injustice because they have little access to justice, in fact, lack of awareness and confidence in the justice system.

34. According to Dr. Mohan, in our legal system, uncalled for litigation gets encouragement because our courts do not impose realistic costs. The parties raise unwarranted claims and defences and also adopt obstructionist and delaying tactics because the courts do not impose actual or realistic costs. Ordinarily, the successful party usually remains uncompensated in our courts and that operates as the main motivating factor for unscrupulous litigants. Unless the courts, by appropriate orders or directions remove the cause for motivation or the incentives, uncalled for litigation will continue to accrue, and there will be expansion and obstruction of the litigation. Court time and resources will be consumed and justice will be both delayed and denied.

35. According to the learned author lesser the court's attention towards full restitution and realistic costs, which translates as profit for the wrongdoer, the greater would be the generation of uncalled for litigation and exercise of skills for achieving delays by impurity in presentation and deployment of obstructive tactics.

36. According to him the cost (risk) - benefit ratio is directly dependent on what costs and penalties will the court impose on him; and the benefit will come in as: the other `succumbing' en route and or leaving a profit for him, or even if it is a fight to the end, the court still leaving a profit with him as unrestituted gains or unassessed short levied costs. Litigation perception of the probability of the other party getting tired and succumbing to the delays and settling with him and the court ultimately awarding what kind of restitution, costs and fines against him - paltry or realistic. This perception ought to be the real risk evaluation.

37. According to the learned Amicus Curiae if the appellants had the apprehension of imposition of realistic costs or restitution, then this litigation perhaps would not have been filed. According to him, ideally, having lost up to the highest court (16.03.2001), the appellants (defendants in the suit) ought to have vacated the premises and moved out on their own, but the appellants seem to have acted as most parties do-calculate the cost (risk)-benefit ratio between surrendering on their own and continuing to contest before the court. Procrastinating litigation is common place because, in practice, the courts are reluctant to order restitution and actual cost incurred by the other side.

Profits for the wrongdoer

38. According to the learned Amicus Curiae, every lease on its expiry, or a license on its revocation cannot be converted itself into litigation. Unfortunately, our courts are flooded with these cases because there is an inherent profit for the wrong- doers in our system. It is a matter of common knowledge that domestic servants, gardeners, watchmen, caretakers or security men employed in a premises, whose status is that of a licensee indiscriminately file suits for injunction not to be dispossessed by making all kinds of averments and may be even filing a forged document, and then demands a chunk of money for withdrawing the suit. It is happening because it is the general impression that even if ultimately unauthorized person is thrown out of the premises the court would not ordinarily punish the unauthorized person by awarding realistic and actual mesne profits, imposing costs or ordering prosecution.

39. It is a matter of common knowledge that lakhs of flats and houses are kept locked for years, particularly in big cities and metropolitan cities, because owners are not certain that even after expiry of lease or licence period, the house, flat or the apartment would be vacated or not. It takes decades for final determination of the controversy and wrongdoers are never adequately punished. Pragmatic approach of the courts would partly solve the housing problem of this country.

40. The courts have to be extremely careful in granting ad-interim ex-parte injunction. If injunction has been granted on the basis of false pleadings or forged documents, then the concerned court must impose costs, grant realistic or actual mesne profits and/or order prosecution. This must be done to discourage the dishonest and unscrupulous litigants from abusing the judicial system. In substance, we have to remove the incentive or profit for the wrongdoer.

41. While granting ad interim ex-parte injunction or stay order the court must record undertaking from the plaintiff or the petitioner that he will have to pay mesne profits at the market rate and costs in the event of dismissal of interim application and the suit.

42. According to the learned Amicus Curiae the court should have first examined the pleadings and then not only granted leave to amend but directed amendment of the pleadings so that the parties were confined to those pleas which still survived the High Court's decision. Secondly, it should have directed discovery and production of documents and their admission/denial. Thirdly, if the civil judge on 6.10.2004, which was three and a half years after the dismissal of the Special Leave Petition on 16.3.2001, instead of framing the issues that he did, had, after recording the statements of the parties and partially hearing the matter should have passed the following order:
In my prima facie view, your pleadings are not sufficient to raise an issue for adverse possession, secondly how can you contend adverse possession of three-fourth share? And thirdly, your pleadings and contentions before the High Court had the effect of completely negating any claim to adverse possession.
43. Framing of issues is a very important stage in the civil litigation and it is the bounden duty of the court that due care, caution, diligence and attention must be bestowed by the learned Presiding Judge while framing of issues.

44. In the instant case when the entire question of title has been determined by the High Court and the Special Leave Petition against that judgment has been dismissed by this court, thereafter the trial court ought not to have framed such an issue on a point which has been finally determined upto this Court. In any case, the same was exclusively barred by the principles of res judicata. That clearly demonstrates total non-application of mind.

45. We have carefully examined the written submissions of the learned Amicus Curiae and learned counsel for the parties. We are clearly of the view that unless we ensure that wrong- doers are denied profit or undue benefit from the frivolous litigation, it would be difficult to control frivolous and uncalled for litigations. In order to curb uncalled for and frivolous litigation, the courts have to ensure that there is no incentive or motive for uncalled for litigation. It is a matter of common experience that court's otherwise scarce and valuable time is consumed or more appropriately wasted in a large number of uncalled for cases.

46. Usually the court should be cautious and extremely careful while granting ex-parte ad interim injunctions. The better course for the court is to give a short notice and in some cases even dasti notice, hear both the parties and then pass suitable biparte orders. Experience reveals that ex-parte interim injunction orders in some cases can create havoc and getting them vacated or modified in our existing judicial system is a nightmare. Therefore, as a rule, the court should grant interim injunction or stay order only after hearing the defendants or the respondents and in case the court has to grant ex-parte injunction in exceptional cases then while granting injunction it must record in the order that if the suit is eventually dismissed, the plaintiff or the petitioner will have to pay full restitution, actual or realistic costs and mesne profits.

47. If an exparte injunction order is granted, then in that case an endeavour should be made to dispose of the application for injunction as expeditiously as may be possible, preferably as soon as the defendant appears in the court.

48. It is also a matter of common experience that once an ad interim injunction is granted, the plaintiff or the petitioner would make all efforts to ensure that injunction continues indefinitely. The other appropriate order can be to limit the life of the ex-parte injunction or stay order for a week or so because in such cases the usual tendency of unnecessarily prolonging the matters by the plaintiffs or the petitioners after obtaining ex-parte injunction orders or stay orders may not find encouragement. We have to dispel the common impression that a party by obtaining an injunction based on even false averments and forged documents will tire out the true owner and ultimately the true owner will have to give up to the wrongdoer his legitimate profit. It is also a matter of common experience that to achieve clandestine objects, false pleas are often taken and forged documents are filed indiscriminately in our courts because they have hardly any apprehension of being prosecuted for perjury by the courts or even pay heavy costs. In Swaran Singh v. State of Punjab (2000) 5 SCC 668 this court was constrained to observe that perjury has become a way of life in our courts.

49. It is a typical example how a litigation proceeds and continues and in the end there is a profit for the wrongdoer.

50. Learned amicus articulated common man's general impression about litigation in following words: Make any false averment, conceal any fact, raise any plea, produce any false document, deny any genuine document, it will successfully stall the litigation, and in any case, delay the matter endlessly. The other party will be coerced into a settlement which will be profitable for me and the probability of the court ordering prosecution for perjury is less than that of meeting with an accident while crossing the road.

This court in Swaran Singh (Supra) observed as under:
Perjury has also become a way of life in the law courts. A trial Judge knows that the witness is telling a lie and is going back on his previous statement, yet he does not wish to punish him or even file a complaint against him. He is required to sign the complaint himself which deters him from filing the complaint. Perhaps law needs amendment to clause (b) of Section 340 (3) of the Code of Criminal Procedure in this respect as the High Court can direct any officer to file a complaint. To get rid of the evil of perjury, the court should resort to the use of the provisions of law as contained in Chapter XXVI of the Code of Criminal Procedure.

51. In a recent judgment in the case of Mahila Vinod Kumari v. State of Madhya Pradesh (2008) 8 SCC 34 this court has shown great concern about alarming proportion of perjury cases in our country.

52. The main question which arises for our consideration is whether the prevailing delay in civil litigation can be curbed? In our considered opinion the existing system can be drastically changed or improved if the following steps are taken by the trial courts while dealing with the civil trials.

A. Pleadings are foundation of the claims of parties. Civil litigation is largely based on documents. It is the bounden duty and obligation of the trial judge to carefully scrutinize, check and verify the pleadings and the documents filed by the parties. This must be done immediately after civil suits are filed. 

B. The Court should resort to discovery and production of documents and interrogatories at the earliest according to the object of the Act. If this exercise is carefully carried out, it would focus the controversies involved in the case and help the court in arriving at truth of the matter and doing substantial justice. 

C. Imposition of actual, realistic or proper costs and or ordering prosecution would go a long way in controlling the tendency of introducing false pleadings and forged and fabricated documents by the litigants. Imposition of heavy costs would also control unnecessary adjournments by the parties. In appropriate cases the courts may consider ordering prosecution otherwise it may not be possible to maintain purity and sanctity of judicial proceedings.

D. The Court must adopt realistic and pragmatic approach in granting mesne profits. The Court must carefully keep in view the ground realities while granting mesne profits.

E. The courts should be extremely careful and cautious in granting ex-parte ad interim injunctions or stay orders. Ordinarily short notice should be issued to the defendants or respondents and only after hearing concerned parties appropriate orders should be passed. F. Litigants who obtained ex-parte ad interim injunction on the strength of false pleadings and forged documents should be adequately punished. No one should be allowed to abuse the process of the court.

G. The principle of restitution be fully applied in a pragmatic manner in order to do real and substantial justice.

H. Every case emanates from a human or a commercial problem and the Court must make serious endeavour to resolve the problem within the framework of law and in accordance with the well settled principles of law and justice.

I. If in a given case, ex parte injunction is granted, then the said application for grant of injunction should be disposed of on merits, after hearing both sides as expeditiously as may be possible on a priority basis and undue adjournments should be avoided.

J. At the time of filing of the plaint, the trial court should prepare complete schedule and fix dates for all the stages of the suit, right from filing of the written statement till pronouncement of judgment and the courts should strictly adhere to the said dates and the said time table as far as possible. If any interlocutory application is filed then the same be disposed of in between the said dates of hearings fixed in the said suit itself so that the date fixed for the main suit may not be disturbed.

53. According to us, these aforementioned steps may help the courts to drastically improve the existing system of administration of civil litigation in our Courts. No doubt, it would take some time for the courts, litigants and the advocates to follow the aforesaid steps, but once it is observed across the country, then prevailing system of adjudication of civil courts is bound to improve.

54. While imposing costs we have to take into consideration pragmatic realities and be realistic what the defendants or the respondents had to actually incur in contesting the litigation before different courts. We have to also broadly take into consideration the prevalent fee structure of the lawyers and other miscellaneous expenses which have to be incurred towards drafting and filing of the counter affidavit, miscellaneous charges towards typing, photocopying, court fee etc.

55. The other factor which should not be forgotten while imposing costs is for how long the defendants or respondents were compelled to contest and defend the litigation in various courts. The appellants in the instant case have harassed the respondents to the hilt for four decades in a totally frivolous and dishonest litigation in various courts. The appellants have also wasted judicial time of the various courts for the last 40 years.

11 comments:

  1. Thanks for the info. Nice Judgment

    ReplyDelete
  2. yes Judiciary is the main disciplinary boundry of society and people should stop missusing it, but scene is never going to change, so to balancing the socirty, judiciary must have to be strict in considering the prejury or initial stage of the cases. Document must b verified and evidence should be srtictly on oath and time should be fixed for appearance(for that ppl. must concern about their rights). and so many... after all thnx for this usefull info

    ReplyDelete
  3. Thanx for writing such a good article. I agree that these problem exist in our judicial system but still feel that its not that easy to tackle yet nevertheless necessary. This article and judgment referred therein has really inspired me to think about this issue and also good for awareness. I really thank you for posting it.

    ReplyDelete
  4. It is great subject. People are scary of the procedure linked with long drawn litigation and under unavoidable circumstances getting habituated to be silent when a wrong is performed even before their eyes. Even the Police system is much horrifies a common man to approach for lodging a complaint against the wrong doers. Let us hope steps will be expeditious to rectify this long disease that deprives justice.

    ReplyDelete
  5. Yes, Judiciary is the main disciplinary boundry of society and people should stop missusing it, but scene is never going to change, even in my " The Guardians & Wards Act, for Appointment of Guardin for my own minor SON, filed by my BIL & SIL jointly, High Court ordered to complete all Proceedings within 6 months from 23-10-2001, eventhough the matter Family Court, Ahmedabad , in ( renumbered ) SUITS/1072/2000 ( transferred from City Civil Court RCS No. 2258/2007 ) , Family Court, Ahmedabad in spite of completing the matter within 6 months, i.e. latest by 22-04-2002, he carried on this GAWA matter till 30-07-, that too , without Appointment of a Guardian, nor Dismissing the matter. Only he disposed off only by writing " Since long, no litigants appears, the matter is disposed off. " That's all.
    Hence, when Judiciary is culprit, & benefitted the Opposite Party , eventhough, we filed a Perjury Criminal matter against my BIL & SIL, Family Court did nothing. My Son attained Majority on 31-10-2006, in spite of our repeatedly Requests, the Family Court, Ahmedabad continued this matter, upto 30-07-2010, mean to say , after almost 4 years, after my Son attained majority. What a pity. I'm asking Respected Justices of Hon'ble Justices of Hon'ble The Supreme Court of India, to take Departmental & Criminal Action within 10 days against the Hon'ble Family Judge who disposed off SUITS/10752/2000 on 30-07-2010.
    Will The Hon'ble Justices of Hon'ble The Supreme Court of India can do Justice to us ? Will that Family Judge be suspended immediately for Contempt of Hon'ble Gujarat High Court's Written Order in Civil Revision No. 1143/2000. Can we given Fine from opposite party for a unscroplous legal battle for 13 years & 2 months long ? Any compensation will we get by SCI's timely Order ? I know, that nothing doing.We shall never get justice in India.

    ReplyDelete
  6. Yes, Judiciary is the main disciplinary boundry of society and people should stop missusing it, but scene is never going to change, even in my " The Guardians & Wards Act, for Appointment of Guardin for my own minor SON, filed by my BIL & SIL jointly, High Court ordered to complete all Proceedings within 6 months from 23-10-2001, eventhough the matter Family Court, Ahmedabad , in ( renumbered ) SUITS/1072/2000 ( transferred from City Civil Court RCS No. 2258/2007 ) , Family Court, Ahmedabad in spite of completing the matter within 6 months, i.e. latest by 22-04-2002, he carried on this GAWA matter till 30-07-2010, that too , without Appointment of a Guardian, nor Dismissing the matter. Only he disposed off only by writing " Since long, no litigants appears, the matter is disposed off. " That's all.
    Hence, when Judiciary is culprit, & benefitted the Opposite Party , eventhough, we filed a Perjury Criminal matter against my BIL & SIL, Family Court did nothing. My Son attained Majority on 31-10-2006, in spite of our repeatedly Requests, the Family Court, Ahmedabad continued this matter, upto 30-07-2010, mean to say , after almost 4 years, after my Son attained majority. What a pity. I'm asking Respected Justices of Hon'ble Justices of Hon'ble The Supreme Court of India, to take Departmental & Criminal Action within 10 days against the Hon'ble Family Judge who disposed off SUITS/1072/2000 on 30-07-2010.
    Will The Hon'ble Justices of Hon'ble The Supreme Court of India can do Justice to us ? Will that Family Judge be suspended immediately for Contempt of Hon'ble Gujarat High Court's Written Order in Civil Revision No. 1143/2000. Can we given Fine from opposite party for a unscroplous total legal battle for 13 years & 2 months long for NO RESULT IN ANYBODY'S FAVOUR ? Any compensation will we get by SCI's timely Order ? I know, that nothing doing.We shall never get justice in India.

    ReplyDelete
  7. Dear Sirs
    Excellent efforts to create awareness amongst all needy especially commoner. You are promoting Government policy to educate all especially "know your right ".
    Thanks
    K Y SAWANT .

    ReplyDelete
  8. SIR YOU ARE RIGHT I FACING FROM 24 YEARS THE SIMILAR REASONS OF THE OPPOSITE PARTY/COUSELS DOING ALL WRONG TO DELAY THE CASE. BUT I AM HELPLESS. WHAT TO WHEN THIS SYSTEM WILL BE ALLOWED TO WORK. THESE UNETHICAL PEOPLE DONT ALLOW TO WORK THE COURTS BY MISUSING LOOPHOSE OF THE SYSTEM. WHAT THEY ARE GIVING TO COMING GENERATION IS NOT A QUESTION THEY ARE CREATING A GENERATION LIKE THAT. NO MEDDICINE FOR THESE GOOD MANS OF THE SOCIETY.

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  9. THANKS FOR A VERY GOOD AND HELP FULLL INFORMATION.
    REGARDS

    ReplyDelete
  10. Do not allow the opposite party to seek adjournments. Strongly oppose it in writing. If opposite lawyer is not able to attend court due to any reason , ask him to depute another lawyer. DO NOT ALLOW opposite lawyer more than 3 adjournments for a total period of 3 months maximum.

    ReplyDelete
  11. Nowadays since mobile is commonly available all over India, hearing can take place over phone itself and can be recorded. Date / Time / security pin number can be distributed to the concerned parties. Hearing can take place over phone itself. This will reduce the delay to large extent. Similarly summary of summons / notices can be issued over SMS messages to the concerned parties. Details can be put up on web site for them to refer. All documents can simply scanned by mobile phone and stored in central server for reference. No need of any typing / printing/ hard copy etc., Every thing can be stored on servers and copy can be retrieved on mobile phones. Even accused people in prison, can sit in the prison and talk to judge over mobile phone during hearing . All witness can speak over mobile phones. This will be revolution in Legal court cases.Will lawyers agree?

    ReplyDelete

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