Why blame the judges?

The scenario under the amended Code will run roughly as follows.A person, threatened with dispossession of his property, wishes to file a suit. He produces such documents as are in his possession and promises such further documents he may later discover. “I’m afraid it’s now or never”, says the lawyer. “Either they are filed with the plaint or not at all.”

Incredulously, the litigant asks: “Surely, if vital documents have come to light the court would permit me to rely upon them?” Comes the answer, “Well, that was so earlier, but now the court has no discretion and no power to admit any documents other than the ones filed with the plaint.”The lawyer must now serve the writ of summons within a period of 30 days and this, in keeping with the march into the 21st century, he can do, if permitted by the court, in a variety of ways including fax or e-mail.

The defendant does not access his e-mail for some three weeks; and, when he does, he discovers he has been sued and, more seriously, is left with only a week to file his defence. “Under the amended Code”, proclaims his lawyer, “you must file your written statement (defence) within 30 days from the date you receive the writ of summons along with all the documents. And, if you omit any documents, you won’t be allowed to rely on them later.”

“There are a number of vague statements in the plaint”, pleads the defendant. “Can we ask for further and better particulars?” “All that has now changed”, answers his lawyer. “The provision entitling the party to ask for such particulars has been deleted.”

Both the plaintiff and the defendant ask their respective lawyers whether they can expect an early hearing of the suit. “I’m afraid not for another 20 years” is the sobering reply. “What then is the point of rushing the parties through their pleadings and denying the parties the right to file additional documents or ask for further or better particulars?” “Well”, say the lawyers, “inscrutable are the ways of progressive legislation.”

The plaintiff now wishes to amend his plaint, either because of the defences raised or some new facts to have emerged. His lawyer says that the provision empowering the court to allow amendments has been deleted and the remedy, if at all, is to file a fresh suit. “But doesn’t that lead to multiplicity in litigation?” The lawyer remains eloquently silent.

After his defence is filed, the defendant wishes to plead a set-off or a counterclaim against the plaintiff in respect of fresh claims that have arisen. The answer: “No subsequent pleadings are allowed and, if you have a counter-claim, you must file a separate suit.” Multiplicity?

The plaintiff is in need of urgent interim relief as the defendant is threatening to dispossess him. The lawyer agrees to make an application but, under the new Code, the plaintiff must be prepared to furnish security. “I take it that it is in the court’s discretion to ask me to give security?" asks the defendant. "No" is the answer; "the discretion of the court only extends to the extent and kind of security but security you must give.”

The suit finally comes on for hearing. The amended Code now enjoins the court, “where it appears to the court that there exist elements of a settlement which may be acceptable to the parties (a state of affairs which conceivably would apply to every suit)”, to refer it for arbitration, conciliation, judicial settlement (including through the Lok Adalat) or mediation. The court, however, cannot enforce the settlement itself unless the parties are willing. Should the parties agree to disagree, the matter comes back to court and all that has been achieved is loss of time.

Finally, the trial. Oral evidence-in-chief is now supplanted by affidavit evidence. This is a commendable change. The radical departure is that cross-examination and re-examination of witness are now conducted before a commissioner, not the judge, and thereby a judicial function is delegated.Where any question put to the witness is objected to and the commissioner overrules the objection, “the commissioner shall take down the question together with his decision.” Presumably, the decision is subject to the ruling of the judge. But, where the commissioner upholds an objection, his decision becomes final. The judge may hold that the objection was improperly upheld, but the answer which otherwise may have been given is lost for ever.

The plaintiff now discovers evidence with an immense bearing on the case and pleads for an opportunity to produce it. If satisfied that, despite all due diligence, he could not produce this evidence earlier, the court, in its discretion, might have put him to terms and let him produce the evidence. This provision has been deleted and the court no longer enjoys such a power.The amended Code also provides that during the hearing of the suit a maximum of three adjournments will be allowed. The court has no discretion to grant any further adjournment even in consideration of a terminal illness or any other act of God.

Rules of procedure are, to use a cliche, but a handmaiden of justice. In attempting to hasten the procedure, it is justice that has become a casualty. More seriously, the assumption underlying the amendments to the Code is lack of confidence in our judges. Provisions for the judge’s discretionary powers whether to adjourn matters, admit documents, allow further evidence, order further or better particulars have all been deleted. The message is that our judges have failed the system, which should be made to work on its own.

This lack of confidence is emphasised by the withdrawal of the power of the court (in revision) to interfere with an order where it is satisfied that to allow the order to stand “would occasion a failure of justice or cause irreparable injury.” Again, the court is left with no power to enlarge the period fixed by it for the doing of any act beyond a maximum of 30 days. The right of appeal from the order in a petition under Article 226 or 227 of a single judge of the High Court to a division bench has been taken away so that the refusal to admit a writ or a grant relief is rendered remediless unless the party has the wherewithal to approach the Supreme Court.

The remedy for the law’s delays is not to tinker with the system, but to improve the working conditions of our judges, specially of the subordinate judiciary, so that the best talent in sufficient numbers is attracted.

The writer is a former president of the Bombay Bar Association