Daily Times

While most things seem to be going wrong for the present government, the one piece of good news is that it seems to be sincere about bringing about actual legal reforms in the country in terms of procedure, especially vis a vis civil cases. In so far as civil procedure goes, we are still proceeding under the 1908 Civil Procedure Code, with the most superficial of amendments. With respect to the criminal procedure, we are still stuck with the Criminal Procedure Code of 1898. I am not suggesting a repeal, but wide-ranging amendments to at least update these laws according to the times and unique challenges we face in administration of justice in this country. Even under the British, these laws worked better because loopholes were not exploited.

The biggest culprits in the process are lawyers themselves, I am sorry to say. The once noble profession of lawyering has been reduced to two things: Obtaining a status quo order. And secondly, deploying all the dilatory tactics in the book to ensure that the case lingers on for years. While there can be no issue with the idea of interim relief — provided it remains interim and does not become more permanent in nature — the dilatory tactics are what are more problematic. Let us consider just one scenario. Let us say that party-A files a suit for recovery against party-B. The judge admits the suit and issues notices to party-B. Party-B then hires a lawyer and asks him to delay the matter. The lawyer appears at the date of hearing and submits a memorandum of appearance while deliberately not filing a power of attorney or vakalatnama.

A new date is announced. The next date of hearing comes a month later. The lawyer sends his junior to get an adjournment under Order 17 Rule 1 by making some silly spurious excuse. The lawyer for party-A makes a hue and cry and the judge orders the junior to ensure that the vakalatnama is submitted by the next date of hearing along with the written statement. The case is adjourned for another month. The next month the lawyer appears in court and apologises for the last date of hearing. He or she then proceeds to submit the vakalatnama and seeks time for reply. The case is adjourned again for another month and this time for submission of reply to the plaint. The next date of hearing comes around and the lawyer’s junior shows up with an application under Order 7 Rule 11 of the CPC calling for the rejection of the plaint on grounds that the case is not made out. Obviously the lawyer for party-A now has to file a reply. The case is adjourned again for a month. The lawyer for party-A now files a reply and the lawyer for party-B seeks time to review the reply. The judge now fixes the next date of hearing for arguments on Order 7 Rule 11 application. The next date of the hearing comes by and the lawyer’s junior shows up and says that the lawyer is busy before the High Court or Supreme Court. The case is adjourned again. Meanwhile, the lawyer files a general adjournment and proceeds for a holiday around the time that the next date is fixed. The case is adjourned again. We are into the second year and the main case remains in limbo.

A case can easily be decided within one week if there was will on the part of the lawyers to allow justice to be done. A lawyer must first and foremost see himself or herself as an officer of the court who is there to assist the judge in coming to a fair conclusion. The ability to delay litigation indefinitely should not be rewarded, but must be classified as misconduct

At some point, the judge’s patience wears thin and the lawyer is given a final opportunity to argue the Order 7 Rule 11 application. It is argued, say in the thirteenth or fourteenth month of the case and the judge says he will pass an order on the next date of hearing. On the next date of hearing, the judge rejects the application and orders that the suit will proceed. Now the crafty lawyer files an appeal or civil revision against the rejection of application. The proceedings at the higher forum last about three to five months, while the main case with our civil judge lies in limbo. Ultimately, the higher forum decides that the civil judge was correct and the suit should proceed. Now the date is set for reply. The next date comes around and the lawyer asks for another opportunity, citing some bizarre reason. A fresh date is announced. Next date comes around and the lawyer again apologises that he still does not have the reply ready. The judge now grants him a final opportunity to submit the reply. Once again the junior surfaces and tells the court that the lawyer is busy before the High Court or the Supreme Court. This time the judge mocks anger and says it is the absolutely the final opportunity. So lo and behold, two years into the case, the lawyer finally submits a reply. The judge then orders framing of issues. The same story continues until an absolutely final opportunity is given for the framing of issues and by the third or fourth year, issues are framed and evidence is to be called.

The witnesses are sometimes present and sometimes not. Each witness presenting each document is to get two hearings, one for examination in chief and one for cross-examination. The matter lingers on another two years. The case is now five to six years old. Finally it comes to the arguments stage. More adjournments are sought, more final opportunities given. In the midst of all of this, the lawyer files another spurious application which then takes at least a few months to a year to be decided. Final arguments are then heard and a judgment is given — if you are lucky — in the seventh or eighth year of the case. Then come the appeals or civil revisions and so on and so forth. The case would finally be decided, if you are lucky, in 15 to 20 years.

This was not the intention of CPC 1908 and the cases under the British never extended this long even when the appeal went to Privy Council, because no case during the British Raj was decided without a costs order. What we need now is to institute an equivalent of the Woolf Reforms in UK. More importantly, though the courts must start handing down serious orders of costs against frivolous applications and litigants who are deliberately wasting the time of the court. Another thing that is absolutely necessary is to have block dates for trials. A case can easily be decided within one week if there was will on the part of the lawyers to allow justice to be done. A lawyer must first and foremost see himself or herself as an officer of the court who is there to assist the judge in coming to a fair conclusion. The ability to delay litigation indefinitely should not be rewarded, but must be classified as misconduct. Unfortunately, the Bar Associations in the country will never allow it and we will continue with the rotten damnable system of justice that will never deliver for the people.

The writer is practicing lawyer and was a visiting Fellow at Harvard Law School in Cambridge MA, USA. He blogs at http://globallegalforum.blogspot.com and his twitter handle is @therealylh

Published in Daily Times, September 17^th 2018.