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TMI Blog2023 (10) TMI 1503X X X X Extracts X X X X X X X X Extracts X X X X ..... n of the application filed by the appellant to be brought on record as legal representative of Urmila Devi if sustained would result in the estate of deceased plaintiff not being represented, as a consequence of which suit would abate or would be put to a silent death by the defendants without claim made in the suit being adjudicated on merits. Hence, question is answered in favour of the appellant and against respondents and therefore, the impugned order is set aside. Whether any further direction or directions requires to be issued for concluding the proceedings in a time bound manner on account of Suit pending for trial for past 41 years? - HELD THAT:- The very fact of the pendency of the present suit No. 2 of 1982, in the instant case, for the past 41 years is reflective of the fact, as to how some of the civil courts are functioning and also depicting how stakeholders are contributing to such delays either directly or indirectly. The procedure that is being adopted by the courts below or specifically the trial courts is contrary to the express provisions of the CPC. It can also be noticed that there are party induced delays. It is laid down under Orders VIII Rule (1) that a d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f 1982, was instituted for the relief to declare the sale deed, executed by Shri Mangal Singh (hereinafter referred to as 'first defendant' for the sake of convenience) in favour of defendants No.4 to 32 in respect of the suit properties described in the plaints schedule as item No.1 to 8, to be null and void by claiming to be the owner of the said properties; and for a decree of possession of the suit properties with costs. BACKGROUND OF THE CASE: 2. When the aforesaid suit was still at infancy stage the soleplaintiff expired on 18.05.2007. One Mr. Manoj Kumar Jain filed an application to substitute him as her legal heir, by placing reliance on the Will dated 19.05.1999 and claiming to be a legatee under the said registered Will. He also filed an affidavit stating thereunder that Mr. Yashpal Jain (hereinafter referred to as 'appellant' for the sake of convenience) was a witness to the said registered Will. The defendants objected to the said application contending inter alia that the appellant herein was the adopted son of late Urmila Devi by relying upon the adoption deed dated 06.01.1973 duly registered in the office of the Sub-Registrar. In the said proceedings, the present a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... esentative who is brought on record not only includes a legatee under a Will but also an intermeddler of the property who would be entitled to sue and to be sued and/or continue to prosecute the proceedings. This vital aspect seems to have been lost sight of by the courts below conveniently. 4. Be that as it may, the aforesaid Urmila Devi who claimed to be Bhumidar and owner in possession of land situated in village Sonargaon, Patti Katulsyun, District Garhwal, Uttarakhand has contended in her suit that the suit schedule properties were looked after by Mangal Singh- the first defendant and as he had fraudulently obtained a Bhumidar Sanad of the land comprising No.77, 3/16 Nalis, she had filed an application under Section 137-A of UP Act No.1 of 1951 before the Tehsildar/Assistant Collector, Pauri Garhwal, challenging the said Bhumidari Sanad obtained by the first defendant, which was held in her favour by the Tehsildar, and confirmed by the appellate authority. Not being satisfied with the said order, the first defendant had filed a second appeal before the Revenue Board which came to be allowed in favour of Mangal Singh, against which a review petition was filed thereon by Urmila ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Trial Court and the Revisional Court whereunder the discretionary power was exercised by condoning the delay while setting aside the abatement and allowing the application of the appellant herein to be brought on record as legal representative of deceased Urmila Devi; the High Court erred in not considering the fact that courts below had recorded a clear finding that appellant herein was the sole surviving legal representative of the deceased plaintiff and as such it ought not to have interfered with the well-reasoned order passed by the Trial Court as affirmed by the Revisional Court; She would also contend that defendants in this suit who were the writ petitioners in WP(M/S) 342 of 2005 (old number 14655 of 1983) had substituted the appellant herein as legal representative of Urmila Devi in dispute related to the suit schedule property (involved in OS No.2 of 1982) and as such defendants cannot be permitted to take stand contrary to same. Hence, it is contended that impugned order is liable to be set aside. 8. Per contra, Shri Rameshwar Prasad Goyal, learned counsel appearing for the respondents, supports the impugned order and contends that in the Writ Petition No.144 of 2013 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing the pendency of the said suit the plaintiff- Smt. Urmila Devi expired on 18.05.2007. On her demise Mr. Manoj Kumar Jain filed an application on 17.05.2008 for substitution as her legal heir and claiming right legatee under the Will dated 19.05.1999. This application was followed by an affidavit of the appellant (Yashpal Jain) dated 25.10.2008 stating thereunder that his mother Urmila Devi had executed a Will dated 19.05.1999 in favour of Manoj Kumar Jain and also stating thereunder that Will was duly registered. The legal heirs of the defendant objected the said substitution contending, inter alia, that the present appellant is the adopted son of Urmila Devi and said adoption deed was duly registered on 06.01.1973 in the office of the Sub-Registrar. It was also contended that Shri Rajendra Prasad Jain was the holder of power of attorney of Urmila Devi and on his (Rajendra Prasad) death on 18.02.2001, she had executed another power of attorney on 21.04.2001 appointing Virender Kumar Jain and on the basis of the same the name of his wife came to be mutated in respect of the lands indicated thereunder. Hence, it was contended that Will propounded by Manoj Kumar Jain was fabricated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ingh before the Assistant Collector against the order of Tehsildar did not yield any result, which gave rise to filing of a Second Appeal before the Revenue Board culminating in said appeal being allowed in favour of Mangal Singh. The Review Petition filed against the order of the Second Appellate Authority came to be allowed and this was challenged by Mangal Singh in WP (M/S) No.342 of 2005 (Old No.14655 of 1983). During the pendency of the said writ petition, as noticed earlier, Urmila Devi expired and an application for substitution came to be filed by the very same legal representatives of Mangal Singh (who are Respondent Nos.1 to 5 herein) vide Annexure P-10, specially pleading thereunder to delete the name of Respondent No.4 (therein) Smt. Urmila Devi and substitute Yashpal Jain (appellant herein) in her place. This application came to be allowed by order dated 24.02.2012 as reflected in Annexure RA/2 annexed to the rejoinder affidavit of the appellant. In this view of the matter, it cannot be gain said by the respondents herein that the appellant is not to be substituted as legal representative of deceased Urmila Devi. It is for this cogent reason, the learned trial judge vi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e plea of the appellant or in other words, it should have sustained the order of trial court and ordered for appellant being brought on record as legal representative of deceased Urmila Devi. 16. At the cost of repetition, it requires to be noticed that respondents herein themselves having filed an application in WP (M/S) No.342 of 2005 for bringing the present appellant (Yashpal Jain) as her legal representative in the writ petition (M/S) 342/2005 and prosecuted the same, would reflect that they were in the acquaintance of the fact that present appellant being the legal representative of deceased Urmila Devi but yet are attempting to contend that Manoj Kumar Jain is to be brought on record as legal representative of Urmila Devi. In this background the impugned order which has resulted in rejection of the application filed by the appellant to be brought on record as legal representative of Urmila Devi if sustained would result in the estate of deceased plaintiff not being represented, as a consequence of which suit would abate or would be put to a silent death by the defendants without claim made in the suit being adjudicated on merits. Hence, point No.(i) is answered in favour of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... C.C. No.2319 of 1959 - registered on 11.04.1959 (b) CJJD & JMFC Mehkar - R.C.C. No.61 of 1960 - registered on 06.10.1959 (c) Chief Judicial Magistrate, Amravati - R.C.C. No.778 of 1961 - registered on 30.08.1961 The Underlying factors behind Judicial Delays 19. The causes of delay are numerous loopholes in the law itself, redundant and voluminous paper work, absence of the witnesses, adjournments sought and granted for no justifiable reason as also delay in service of summons, lack of implementation of the provisions of Code of Civil Procedure (hereinafter referred to as 'CPC') and Code of Criminal Procedure (hereinafter referred to as 'Cr.P.C'), as the case may be. These are only illustrative and not exhaustive. It is not that there has been any lack of effort to speed up the Justice Delivery System. However, the attempts made hitherto have yielded limited results. Time and again various provisions of C.P.C. and Cr.P.C. have been amended to cater the ever-increasing demands for speedy disposal of cases and the results are not inspiring. There is an urgent need to take pro-active steps to not only clear the huge backlog of cases at all levels but there should be introspecti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ers have decreased the confidence among the general public about the judicial system. It was emphasized that civil cases should be treated as lapsed if the matter was not disposed of within one year from the date of registration, whereas a criminal matter should be disposed within six months and in case of sessions trial it should not go beyond one year. It was also suggested to timely fill up the vacancies, appoint additional and ad-hoc judges and increase overall judicial strength. Some of the key recommendations of the Committee were: "(i) Improvement of judicial system to meet modern requirement of society. (ii) Time for scrutiny of the cases should not take more than one week. (iii) Summons and notices should be attached with the plaint at the stage of filing, without stating the filing date. (iv) Procedural reforms in civil and criminal case proceedings." 22. The 79th reports of the Law Commission of India pertains to "Delay and Arrears in High Courts and Appellate Court" which when read along with the 77th report as aforementioned, has provided a step-by-step manual for managerial judging, prescribing upper time limits for trial procedure to ensure speedy dispos ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the project was a remark by Justice M.N. Venkatachalaih (former CJI) in a conversation with Justice Ravindra Bhat, one of the members of the State Court Management System Committee (SCMS) of the Delhi HC. whereunder 22 specific pilot and reference courts were referred to collect data to examine meticulously the life cycles of the legal cases. At its core, the project sought to understand how the cases progressed through the legal system in the absence of any backlog. The Data collected from the pilot project led to suggestions of some major recommendations which included, primarily, the assessment of Judicial strength, which as per the report, is regarded as a vital attribute to the cause of delay. The report in this regard suggested to arrive at an optimal judge strength to handle cases pending in different court and went on to provide the Ideal number of judges for different court. The report also highlighted that in criminal cases, prosecution evidence hearings accounts for the Highest percentage of court hearings however when it comes to allocation of time, the courts tend to dedicate more minutes to final arguments and the issuance of final orders. In civil cases, miscellaneo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arguments. Nonutilization of provisions of the CPC namely Order X (examination of parties at the first hearing); (v) Non-Awarding of realistic cost for frivolous and vexatious litigation; (vi) Lack of adequate training and appropriate orientation course to judicial officers and lawyers; (vii) Lack of prioritization of cases; (viii) Lack of accountability and transparency. 28. Apart from the above reasons, the other vital reasons include the over-tolerant nature of the courts below while extending their olive branch to grant adjournment at the drop of the hat and thereby bringing the entire judicial process to a grinding halt. It is crucial to understand that the wheels of justice must not merely turn, they must turn without friction, without bringing it to a grinding halt due to unwarranted delay. It is for such reasons that the system itself is being ridiculed not only by the litigant public but also by the general public, thereby showing signs of constant fear of delay in the minds of public which might occur during the resolution of dispute, dissuading them from knocking at the doors of justice. All the stakeholders of the system have to be alive to this alarming s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... No. 2 of 1982, in the instant case, for the past 41 years is reflective of the fact, as to how some of the civil courts are functioning and also depicting how stakeholders are contributing to such delays either directly or indirectly. The procedure that is being adopted by the courts below or specifically the trial courts is contrary to the express provisions of the CPC. It can also be noticed that there are party induced delays. It is laid down under Orders VIII Rule (1) that a defendant shall at or before the first hearing or within 30 days, or 90 days as the court may permit, present a written statement of his defence. In most cases, there would be no difficulty in presenting such a written statement on the date fixed, and no adjournment should be given for the said purpose except for a good cause shown, and in proper cases, costs should be awarded to the opposite side, namely realistic costs. However, this is seldom found. Delay in filing the written statement and seeking adjournments is also another tactic used by the parties to litigation to delay the proceedings No doubt in catena of judgments including Kailash vs. Nanku 2005 (4) SCC 480, Serum Advocates Bar Association, Tam ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Court finds that, for the exceptional reasons to be recorded by it, the adjournment of the hearing beyond the following day is necessary. (b) no adjournment shall be granted at the request of a party, except where the circumstances are beyond the control of that party, (c) the fact that the pleader of a party is engaged in another Court, shall not be a ground for adjournment, (d) where the illness of a pleader or his inability to conduct the case for any reason, other than his being engaged in another Court, is put forward as a ground for adjournment, the Court shall not grant the adjournment unless it is satisfied that the party applying for adjournment could not have engaged another pleader in time, (e) where a witness is present in Court but a party or his pleader is not present or the party or his pleader, though present in Court, is not ready to examine or cross-examine the witness, the Court may, if it thinks fit, record the statement of the witness and pass such orders as it thinks fit dispensing with the examination-in-chief or cross-examination of the witness, as the case may be, by the party or his pleader not present or not ready as aforesaid." The High ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was not appreciated. In spite of introduction of the proviso, there was no marked change in the trial of suits. Adjournments continued to dominate and obstruct speedy trial. Therefore, the parliament amended the law once again and now an attempt is made to control the power of the courts in granting adjournments. 18. This time sub-rule (1) and (2) of Rule 1 of Order XVII was amended substantially by the code of Civil Procedure (Amendment) Act, 1999. The object and reason behind the amendment Act was that, every effort should be made to expedite the disposal of civil suits and proceedings so that justice may not be delayed. The committee on Subordinate Legislation (11th Lok Sabha) recommended that it should be made obligatory to record reasons for adjournment of cases as well as award of actual or higher cost and not merely notional cost against the parties seeking adjournment in favour of the opposite party. Further limit up to three adjournments has also been fixed in a case. 19. The amended Sub-rule (1) of Rule 1 provides that at any stage of the suit, if sufficient cause is shown, the Court may adjourn the hearing of the suit for the reasons to be recorded in writing. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s give effect to the statutory provisions contained in the Code. If the Courts do not implement the law, one cannot find fault with the Advocates or the litigants. If these rules are implemented in letter and spirit, it may lead to some inconvenience and hardship as, for more than a century, the Judges, the lawyers and litigants are used to a particular atmosphere in Court. It is this atmosphere in Courts, which has no legal support and is the cause for delay in disposal of cases. Therefore, it is high time in the interest of speedy disposal of cases, these rules are implemented; once implemented, in course of time, lawyers and litigants would fall in line. In order to implement these statutory provisions as amended, what is required is a change of mind set among the Judges and they must have the courage to depart from the practice which is in vogue. They must remind themselves that till now these provisions are not followed and the procedure which is adopted in Courts was totally different from what is provided under the statute and thus has no legal basis. That is the real cause for delay in disposal of cases. Therefore, the need of the hour is a change of mental attitude, fir ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r defeat justice." 22. Therefore, while considering the prayer for grant of adjournment, it is necessary to keep in mind the legislative intent. After the trial commences, the legislative mandate is, it shall be continued from day to day until all the witnesses in attendance have been examined. Even to grant an adjournment beyond the following day exceptional reasons should exist and it should be recorded in writing before adjourning the hearing beyond the following day. A reading of the proviso makes it clear that the limitation of three adjournments contained in proviso to sub-rule (1) apply where adjournment is to be granted on account of circumstances which are beyond the control of that party. Even in cases which may not strictly fall within the category of circumstances beyond the control of a party, the Court by resorting to the provisions of higher cost which can also include punitive cost grant adjournment beyond three times, having regard to the injustice that may result on refusal thereof, with reference to peculiar facts of a case and compensate the party who is inconvenienced by such adjournment. The said cost cannot be notional. It should be realistic. As far as po ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... who want to abuse the judicial process and wants to use this legal machinery as a weapon of oppression against his opponents can have any grievance. It is there, these amended provisions come in handy to the courts to prevent such abuse of the judicial process. The Case Flow Management System Rules: An Overlooked Lifesaver 31. On the recommendation of this Court in 'Salem Bar Association vs. Union of India AIR 2003 SC 189=2003 (1) SCC 49 a committee was appointed to study the application on implementation of Case Flow Management system in India, and in response, 'Case Flow Management Rules for High Courts and Subordinate Courts' were meticulously crafted. These guidelines mirrored the suggestions outlined in the 'National Mission for Delivery of Justice and Legal Reform,' which served as a comprehensive blueprint for judicial reforms through its strategic initiatives from 2009 to 2012. Furthermore, the introduction of the Justice A.M. Khanwilkar Committee on Case Management System aimed to align with these efforts. On the basis of above recommendation most of the states have adopted the concept of Case Flow Management and have framed their own Rules for ensuring timely delivery ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the State & High Courts High Courts Civil Courts Civil Criminal Civil Criminal 1 Andhra Pradesh 2,12,317 37,615 4,15,774 4,40,468 2 Arunachal Pradesh (Gauhati High Court) 47,941 13,817 2,911 14,378 3 Assam (Gauhati High Court) 98,763 3,38,828 4 Bihar (Patna High Court) 1,08,550 87,779 5,07,039 3,022,705 5 Chattisgarh (Chhatisgarh High Court) 59,640 32,342 23,419 76,331 6 Goa (Bombay High Court) 6,01,362 1,14,309 26,040 30,521 7 Gujarat (Gujarat High Court) 1,10,403 56,267 4,02,283 12,70,278 8 Haryana (Punjab& Haryana High Court) 2,76,432 1,65,363 4,55,539 11,13,672 9 Himachal Pradesh (Himachal Pradesh High Court) 81,875 13,618 1,63,805 3,70,345 10 Jharkhand (Jharkhand High Court) 37,565 46,895 85,359 4,21,577 11 Karnataka (Karnataka High Court) 2,535,097 45,802 9,33,869 10,69,156 12 Kerala (Kerala High Court) 1,99,169 55,659 5,56,950 13,70,576 13 Madhya Pradesh (Madhya Pradesh High Court) 2,74,085 1,75,924 3,68,346 16,37,442 14 Maharashtra (Bombay High Court) 15,96,833 34,09,391 15 Manipur (Manipur High Court) 4,567 493 5,049 2,670 16 Me ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Fundamental Duties enshrined in the Constitution, specifically Article 51A(j) which obligates every citizen to strive towards excellence in all spheres of individual and collective activity so that the nation constantly rises to higher levels of endeavour and achievement. Article 51A is to be understood to be in a positive form with a view to strive towards excellence. The people should not conduct themselves so as to enable anyone to point fingers at them or blame them. "Excellence" means honest performance. It is the vision of the founder of constitution makers that citizens of this great country India that is Bharat, should discharge duties in an exemplary manner rather than perform halfheartedly. The duties envisaged under Article 51A are obligatory on citizens. No doubt the fundamental duties cannot be enforced by Writs and it is in this background it has to be understood that the duties which are required to be performed by the citizens in general and particularly by the stakeholders of judicial dispensation system should ensure that they do discharge the obligations prescribed under the law in an exemplified manner and not blame worthy. 36. In the hallowed halls of j ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... late, and the call for justice is unwavering. Let us, as guardians of the law, restore the faith of our citizens in the promise of a just and equitable society. Let us embark on a journey of legal reform with urgency, for the legacy we leave will shape the destiny of a nation. In the halls of justice, let not the echoes of delay and pendency drown out the clarion call of reform. The time is now, and justice waits for no one. Hence, the following requests to Hon'ble the Chief Justices of the High Courts are made and directions are issued to the trial courts to ensure 'speedy justice' is delivered. RE: POINT NO.3 For the reasons aforestated, we proceed to pass the following ORDER 1. Civil Appeal is allowed and the order dated 28.11.2019 passed in Writ Petition (M/S) No.144 of 2013 by High Court of Uttarakhand at Nainital is set aside and the order dated 09.05.2012 passed by the Trial Court as affirmed in Civil Revision No.4 of 2012 dated 13.12.2012 stands affirmed. 2. The following directions are issued: i. All courts at district and taluka levels shall ensure proper execution of the summons and in a time bound manner as prescribed under Order V Rule (2) of CPC and same shall ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inconvenience being caused to the stakeholders. vii. The counsels representing the parties may be enlightened of the provisions of Order XI and Order XII so as to narrow down the scope of dispute and it would be also the onerous responsibility of the Bar Associations and Bar Councils to have periodical refresher courses and preferably by virtual mode. viii. The trial courts shall scrupulously, meticulously and without fail comply with the provisions of Rule 1 of Order XVII and once the trial has commenced it shall be proceeded from day to day as contemplated under the proviso to Rule (2). ix. The courts shall give meaningful effect to the provisions for payment of cost for ensuring that no adjournment is sought for procrastination of the litigation and the opposite party is suitably compensated in the event of such adjournment is being granted. x. At conclusion of trial the oral arguments shall be heard immediately and continuously and judgment be pronounced within the period stipulated under Order XX of CPC. xi. The statistics relating to the cases pending in each court beyond 5 years shall be forwarded by every presiding officer to the Principal District Judge onc ..... X X X X Extracts X X X X X X X X Extracts X X X X
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