Law & Society

STEPS TO SPEED UP THE JUDICIAL PROCESS IN INDIA [with special reference to trial courts]

Judicial delay is a much-debated topic. According to Mr.Justice Rajendra Babu of the Supreme Court, impartial, timely and predictable judiciaries stimulate investment, efficiency and technological progress. Just as the heart, by employing muscular force, pumps blood at the right degree of pressure to ensure constant flow of blood throughout the body, the judiciary, by quick and just enforcement of the contracts by employing legal force, is expected to maintain the right velocity and pressure of economic blood flow, of money and other economic assets, from the undeserving to the deserving, the inefficient to the efficient, the dishonest to the honest, the incapable to the capable, the haphazard to the meticulous entrepreneurs, businessmen and other wealth creators and distributors. Just as an inefficient heart results in the ailment called hypotension or low blood pressure, an inefficient judiciary contributes to low level of economic vibrancy and growth.

Foreign Direct Investment is hesitant to step in to India citing judicial delays as the main reason. Businessmen take the help of the Police, politicians and rowdy elements to settle their disputes and enforce their contracts. They are also forced to severely curtail the volume and variety of their business transactions for lack of proper enforcement mechanism of contracts. After the amendments to the Civil Procedure Code that were carried out recently, without bothering to verify how far the spirit of the amendments has been actually put into practice, judges have started to complain that they are overburdened with cases and while pointing their fingers at the United States in particular and some other western countries in general, they expect that there should be a tenfold increase in the number of judges to achieve speedy disposal of matters. While there is some legitimacy in this expectation, the solution does not lie in just increasing the number of judges. The efficiency of the judges has a more important bearing on achieving early disposal.

In a seminar held at Tirupati, about two years ago, by the Bar Council of A.P, Sri P.V. Srinivasa Devar a senior advocate from Tirupathi presented a paper in which he analyzed the statistics of disposal of civil cases right from the year 1920. According to his analysis, the average time taken to deliver justice in courts at Tirupathi was seven months and two days in 1920, one year one month and nine days in 1930, one year three months and 13 days in 1940 and one year six months and twelve days in 1960. The average filing of cases in the years of study in that court was about 1000 a year. The average filing has not significantly increased now but the time taken for disposal has increased enormously. Surely we cannot blame the procedural laws or the workload for the delay. The actual reason must be lack of training of the judicial officers in managing the court work. The persons who are chosen to train them do not seem to have adequate experience in trial court work. The following suggestions are intended to improve the efficiency of the judges to enable them to achieve far better disposals in the existing set-up and with the present strength of judges. The aim is to secure disposal of civil and criminal proceedings in the original court in six months, execution of decrees in three months and appeals in three to six months.

Delay in service of summons on the opposite side

Instead of ordering fresh summons repeatedly, summons may be sent by registered post and through court, returnable normally within fifteen days and in rare cases by one month, only once, followed by substituted service by affixture or publication. Since substituted service is not due service, the court will anyhow set aside the exparte decree, if the defendant seeks such a relief, by pleading lack of knowledge of the service. If a circular order to that effect were issued by the High Court, it can be implemented more easily. .Even in the absence of such circular order, the court can set the defendant exparte if summons sent by registered post is not returned unserved even after thirty days, as per the ratio decidendi laid down by the hon‘ble Supreme Court in Basanth Singh and another vs. Roman Catholic Mission that if summons sent by registered post acknowledgement due is not returned, presumption of service can be raised- the defendant should examine the postman to rebut the presumption-2003-1 ALT 1 S.C.R.

How to Restrict Adjournments

The court may first prepare a monthly list of matters other than urgent petitions like injunction or receiver petitions, that would be taken up in the following month as already contained in the rules. This will enable the advocates to know that the court has focussed its attention on those matters. Where one of the parties is having urgency, his advocate can make a special request for his matter to be given priority and the opposite side can not claim any vested right to have the matter delayed.

As per Order 17 Rule1 [2] Proviso, and S.309 CR.P.C, once the trial commences, it is mandatory that the court should post the matter on a day-to-day basis. Adjournment beyond the following date may be granted only for exceptional reasons to be recorded in writing. Even if the advocates seek adjournments, the court can cite the aforesaid provision and refuse long adjournment. In most of the cases the witnesses are usually from the same place in which the parties reside. It should not be difficult to secure their presence on a day-to-day basis. In the rare cases where an important witness is either ill or has gone elsewhere, there is no need for the court to wait for that witness. The court can tentatively close the evidence of that party who wants to call such witness giving him the liberty to examine that witness after the evidence of the opponent is closed. Order 16 rule16 and s.311 CR.P.C expressly give such power to the court. If summons to witnesses are sought, courts must encourage the parties to obtain ‘hand over summons‘ to expedite service. If Advocates continue to seek adjournment in spite of the above provision the court may tighten controls by first imposing small amounts as costs and posting the matters on the next day This will compel advocates who are in the habit of dragging the matters on, to shed their habits and complete the trial quickly. If advocates do not get ready in spite of the above gentle pressure, after granting two or three adjournments on a day to day basis on progressively higher costs, the judge may dismiss the matter for default or pass an exparte decree. When a petition is filed to set it aside, the same may be allowed for the first time on slightly heavy costs, without wasting time on a detailed enquiry. If the matter is again disposed off for default, the second application for restoration may be allowed with still heavier costs. If the same thing is repeated again, the court may not restore the matter [unless a really good cause is shown] and let the defaulting party file civil miscellaneous appeal to get it restored.

After the trial is concluded, time, not exceeding one week may be given to get ready for arguments.

How to deal with interlocutory applications

Many interlocutory applications are filed seeking relief such as amendment of pleadings, impleadmment of parties, condonation of delay in filing documents, appointment of commissioners either to record evidence or to make a local Investigation etc. Judges must post such applications also on a day to day basis. This will discourage advocates from filing such applications just to delay the main proceeding. Judges may be trained to take the initiative in obtaining consent for allowing petitions like delay condonation petitions in filing documents or formal amendments of pleadings or petitions filed to set aside exparte decisions, if filed within the period of limitation and if consent is withheld by the advocates unreasonably, posting the matter to the next day and decide the same by a summary order. Where advocates file blatantly frivolous petitions with the sole object of delaying the matters, judges may be trained to summarily reject the petitions at the threshold, without registering them. It is not necessary that every frivolous interlocutory petition should go through the tedious process of numbering, followed by a counter, an enquiry and a detailed order. The possibility of filing a revision and getting a stay under s.115 C.P.C is no longer there in view of the recent amendments to the C.P.C restricting such revisions. If the rejection is too arbitrary and unjust, the revisional jurisdiction under.Art.227 can always be exercised. Alternatively, the unjustness of such order can be challenged in the appeal against the main judgement, as per S.105 C.P.C [2005 Supreme appeals reporter 165 and several other authoritative pronouncements]. A party has no right to obtain adjournment on the ground that he wants to file a revision against an interlocutory order [as per2001-5 ALD 568]

Delay in impleadment petitions under O.1 R.10 C.P.C

When a petition is filed for impleadment of parties under O.1 R.10, some precedents say that notice to the proposed party is mandatory. It means that the enquiry cannot go on until notice is served on the proposed party. This gives scope for advocates to delay the matters. It is desirable that C.P.C may be amended to make it clear that no notice is necessary to the proposed party even before impleadment, just as no notice is given for impleadment of any number of parties before the suit is registered. Till such amendment is made to the statute, the judges can refuse adjournment of the main trial of the suit, by giving option to the proposed parties to recall the witnesses, if needed, for cross examination, incase they are impleaded. This will ensure that frivolous petitions for impleadment are not filed at all.

Delay in criminal cases

When the eye witnesses turn hostile to the prosecution and when circumstantial evidence is not adequate to convict the accused, no useful purpose will be served in examining other witnesses, particularly medical witnesses and forensic experts and the investigating officer. The director of prosecutions may be requested to issue a circular to the prosecutors permitting them to exercise their discretion to give up such witnesses and save precious time of the courts. The final solution lies in introducing ‘plea bargaining‘ by amending the CR.P.C and it is beyond the scope of this article. [In the U.S. ninety eight percent of criminal cases are disposed off by plea bargain.

DELAY IN PRONOUNCEMENT OF JUDGEMENTS

As per O.20 C.P.C the court can pronounce judgement at once after hearing the arguments. This implies that after the arguments are advanced, the judge should look into the records only to verify the disputed facts and not the whole record, and quickly pronounce judgement. Suppose a suit based on a promissory note is being argued. The plaintiff’s advocate argues that his witnesses have consistently spoken about the due execution of the promissory note. The judge may note in his notes paper that p.ws have spoken consistently about execution. He must then ask the defendant’s counsel to comment about the plaintiff’s submission. If the defendant’s advocate does not contradict this or bring out the inconsistencies or deficiencies of the plaintiff ‘ s witnesses. the judge need not and I daresay, should not read the entire evidence led, by the plaintiff. He can straight a way pronounce judgement and write in his judgement that since the defendant’s counsel did not bring out the inconsistencies in the plaintiff’s evidence he has concluded that the execution of the promissory note is proved. The basis for the conclusion is the representation by the counsel, who are responsible officers of the court and not personal verification of nook and corner of the case by the judge. That is the reason why Order 20 Rule 1 of the Code of Civil Procedure enjoins that judgement may be pronounced at once, after the arguments are concluded. If he commits a grave mistake there is the mechanism of review provided under or. 47 and section 151 CPC. The judge must extract the maximum amount of data from the counsel by putting the appropriate questions while hearing the arguments. It must be borne in mind that while advocates have to deal only with their respective briefs, the judge must deal with the entire workload of the court. It is for the advocates to read the entire record, the law applicable to the case, and present it properly before the judge. This single step will go a long way in reducing the strain on the judges and help in delivering judgements quickly The judge’s mind should be focussed only on the disputed points and inconsistencies brought out by the counsel. Such intensive grilling of the advocates by the judge is rarely seen in the lower courts these days . If the counsel deliberately make wrong statements of fact, they can be proceeded against for contempt, by sending a report to the High Court.

DELAYS IN EXECUTION OF DECREES

The court may initially grant three days time for filing counter in money E.Ps, where the defence would invariably be ‘no means to pay‘, which does not require effort on the part of the judgement debtor to gain access to any documents. The decree holder, if he were deligent, would be ready with the documents to prove the means, even by the time of filing of the E.P. If he is not diligent, court my grant one month’s time to enable him to secure the copies of documents.

After the amendment of the C.P.C in 1976, the discretion of the court to grant instalments after the decree is curtailed by O.20 RULE 11 [2] and unless the decree holder consents, instalments cannot be granted.[ No doubt, there was a State Amendment in A.P and Madras deleting the requirement of consent of decree holder, but the same was held to be void as it was opposed to the Central Act, in a judgement of the A.P.High Court in Kalva Ram Reddy vs.Sriram Chits Ltd., in CRP2067/2004 dt.6-7-2004.] In spite of the above amendment, courts are adjourning sales, or releasing the judgement debtors from custody, even if small payments are made by the J.Ds. thereby converting the decree into an instalment decree, without the consent of the decree holder. This misplaced sympathy has made the above-amended provision ineffective

PROCEDURE IN CONDUCTING SALES

After the amendment of c.p.c in 1976, as per O.21 R.66, there is no need for the court to mention its own valuation in the sale proclamation. In spite of this, courts are ordering the so-called ‘tests’ to determine market value. It is enough if the court mentions the value assessed by the decree holder and judgement debtor in the proclamation.

Upset price:

A division Bench decision of the A.P.High Court has categorically laid down that the practice of fixing upset price by the court is deprecated as it is unworkable and leads to anomalies. [1972 A.L.T 52, and 2004-5 ALD P.27 NOC NO.371] Many advocates are not citing the judgement at the appropriate time and even where it is cited courts are showing scant respect to such a binding precedent. This is adding to the woes of the decree holder. No doubt there is a ruling of the Supreme Court reported in A.I.R 1997 S.C.938 which says that court must fix upset price, but that was rendered while interpreting the Rules framed by the Madras High Court and has no application in the State of A.P. It is advisable that the A.P.High Court may issue circulars directing the lower courts to dispense with the procedure of fixing upset price. Only when a mortgagee wants to participate in the bid, court has to fix a minimum reserve price below which he shall not bid as per R.72-A of O.21. This is not upset price, as third party bidders are not bound by it. It must be borne in mind that the executing court has no power to secure any fair market price for the property, unlike a tribunal under the Land Acquisition Act. The court can only arrange for the auction in public by following some minimum procedural safeguards to take care of the interests of the judgement debtor, bona fide bidders and rival creditors. The price that is obtained in the court hall, however low it might be, itself is the market price as the court hall itself is a market. If the judgement debtor is serious about securing a proper price, he can always resort to O.21 r. 83 to sell the property privately by negotiation by seeking permission of the court, notwithstanding the attachment. If the judgement debtor remains exparte, the court may at best adjourn the sale by not accepting the highest bid, once, to try to secure a higher price. Fixing upset price or declining to grant permission for decree holder to bid will not help the cause of justice in any way. Unmindful of all this, courts are treating judgement debtors with kid gloves and permitting them to drag on the matters indefinitely.

O.21 R.58 and R.90 petitions:

The next hurdle the decree holder has to cross is a petition to raise attachment filed by third parties, called claim petition and petition to set aside sale on the grounds of misrepresentation and fraud. Under O.21 R.58 (1) Proviso (b) the court shall refuse to entertain a claim petition if it is unnecessarily or designedly delayed and the aggrieved can always file a petition under rule 99 of O.21 or a comprehensive suit to attack the sale if he is likely to be dispossessed. The bar of a suit arises only when the petition is entertained and dismissed. If it is entertained, the court may grant not more than fifteen days to enable the parties to secure copies of title deeds and post the petition on a day to day basis. till it is finally disposed off. Regarding R.90 petitions, there are innumerable rulings to the effect that mere inadequacy of price is no ground to set aside the sale. Such petitions also may be disposed of by posting them on a day-to-day basis.

Evidence by affidavit and evidence commissioners:

Advocates are still debating the desirability of recording chief examination by affidavit. Since the amendment has already been carried out, it should be given a fair trial for some more time. The District Judges have not yet appointed panels of advocates to record evidence. It is desirable that the High Courts may get this amendment implemented by supervising the implementation stringently.

Appeals

Since appeals represent the second or third stage of the original dispute, first preference should be given to hear appeals, soon after the notices are served on the respondent. While assessing disposals, 75% weightage should be given to disposal of appeals so that the courts will have the necessary incentive and sense of imminence to dispose them off. on a priority basis. Unfortunately, second appeals are pending in the A.P High Court, which are nearly 12 to 13 years old. Civil miscellaneous appeals must get top most priority as the trial of the main suit in the lower court would have halted on its track.

LIBERAL APPROACH

The courts may be liberal in dealing with certain procedural lapses like condoning delay in paying batta, delay in representation of plaints, condonation of absence of complainant or accused, so long as they do not delay the trial. Similarly, where the defendant remains ex-parte, even if a few adjournments are granted for plaintiff’s evidence, it will not affect any body except the plaintiff himself. A tricky problem arises often when advocates seek adjournment of cases on the ground that the counsel is engaged in some other court. As per O.17 R[2] [c] C.P.C it shall not be a ground to adjourn a case. A workable compromise would be to pass over the matter for a while or till the post lunch session or the next day, and if the very same counsel again seeks adjournment in the same matter on the same ground that he is engaged in another court, to refuse further adjournment. Where personal inconvenience of advocates [other than his being engaged in another court] is urged as a ground, if the advocate for the opponent consents, a more liberal approach may be adopted. After all, if a judge applies for leave of absence on personal grounds, the entire judicial work comes to a stand still in his court. The law also does not prohibit such accommodative attitude when advocates, who are also officers of the court, really have personal inconvenience.

SUPERVISION BY THE HIGH COURT

It is desirable that a certain number of high court judges may, by turns, be entrusted with the responsibility of doing supervisory work exclusively. At present they have to steal some time for supervision, while fully immersed in judicial work. This has made the supervision ineffective. The Bar must also take the lead in implementing the above suggestions, in their own interest. If judges do not follow the above norms, more particularly the day to day posting of part heard matters or do not pronounce judgements and orders within thirty days, and in rare cases in sixty days as provided under O.20 C,P.C they must first be politely reminded of their duty and if they fail to respond, the port folio judge must be notified about the lapse, even at the risk of antagonising the judicial officer. Advocates must be prepared to face certain professional hazards to justify their existence in the profession, just as a police or army officer who is averse to facing danger is unfit to be in his profession.