A. K SAWHNEY
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 one party and the probability of the Court ordering prosecution for perjury is less than that of meeting with an accident while crossing the road.
The Supreme Court in Swaran Singh’s case 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.”
The Court’s time and resources are consumed in attending to uncalled for litigation as it is created by clever litigants since they know that current procedures and practices hold an incentive for wrongdoer. At present 90 per cent litigation in the Court is created since the movers know the wheel of litigation is endless once struck in this rigmarole and frequent frivolous adjournments without costs are matter of practice so litigation is luxury for certain hardcore litigants and they generate litigation.
Those involved receive less than full justice and infact greater number than those involved who suffer injustice because they have less access to justice, infact lack of awareness and confidence in the justice system.
One of the major reasons of frivolous litigation and delay which is a cause of injustice that no adequate realistic costs are imposed by Judges which encourages one of the party who is interested in delay only and this has been observed by the Supreme Court of India also in Rameshweri Devi’s case where ways and methods have been devised to curb delays.
The parties play foul with Court procedure and don’t follow the interim orders and procedure since they know the practice in Courts and by delaying tactics they get easy adjournment on every date. The parties raise frivolous unwarranted pleas, claims, defences, adopt obstructionist and delaying tactics mainly because the Courts don’t impose actual or realistic costs including appearance fees of the counsel which Union of India is paying Rs. 6,500 per appearance to their panel counsels and about Rs 10,000 to a senior panel counsel.
The unsuccessful party usually remains uncompensated in Courts and it operates the main motivating factor for unscrupulous litigants and when wins only nominal cost is awarded which is a source and strength for wrongdoer.
Unless the Courts by passing appropriate directions, remove the basic cause for motivation or incentives, uncalled for litigation will flourish. Court time and resources will be consumed for nothing and “Justice will be delayed and denied” and this process to delay justice will remain endless.
Time has come that in case the Court wants to deliver justice then the frivolous adjournments will have to be curbed with heavy hand and impose heavy and realistic costs to compensate the lawyer appearing in the case so that he may not be embarrassed for unrealistic adjournments. There are certain lawyers who speak lie just to seek adjournment in order to benefit to their client since they know delay defeats justice but there are many lawyers who are virtuous and hard working and want to get the judicial system reclaim the lost glory.
Delays hamper achieving justice well in time therefore, to check the delays by impurity in presentation impose cost and compensate the lawyers representing the otherside so that his appearance and party’s Court visit are properly compensated. This will help to deliver justice quickly and counter the deployment of obstructive tactics. A Judge can’t be party to such tactics therefore; the Judges must impose realistic cost to compensate the other party appearing in the case. This practice has been fully endorsed by the Supreme Court in latest guide lines. Prolonging litigation is common place because, in practice the courts are reluctant to order actual cost incurred by the other side therefore to check unnecessary delays caused adequate compensation by way of costs should be imposed.
Unfortunately our Courts are flooded with such cases where delay is profitable for wrongdoer.
It is a matter of common knowledge that domestic servants, gardeners, watchmen, caretakers or security men employed in premises whose status is nothing more than caretaker or licence indiscriminately file suits for injunctions not to be dispossess by making all sorts of allegations against true owner or landlord and even filing forged documents and then blackmail the true owner or landlord by demanding chunk of money for withdrawing suits “using” the legal system to extort money by this sort of legal terrorism.
It is happening because it is general impression that even if ultimately unauthorised person thrown out of the premises the Court would not ordinarily punish the unauthorised person by awarding realistic and actual mesne profit, imposing costs or ordering prosecution to compensate the victim and then it would take years and years to get the own land, house or shop back so one has to settle on table by paying the wrong doer.
It is also a matter of common knowledge that lakhs of flats, houses, shops are kept locked for years because owners are sure that caretaker, licence or tenant will not vacate the premises for years together despite expiry of lease period, thus causing wastage of nation’s weath. But this is not the case in Europe or America, as laws and moreover execution of laws is stringent. A lease if violated has serious repercussions there but here even if the lease / rent deed or license expires no one bothers to vacate the premises as the law, procedure tilts in his favour and he can get the premium of his wrong.
In some cases the tenants stake claim for ownership against true owner when under law tenant can’t challenge the status of landlord or ownership but he knows that hardly the courts have any time to decide such cases and thus they demand chunk of money and landlord or owners are compelled due to the delayed process of courts to pay the money or forget about their property.
Hardly there is any case where delay tactics are not adopted and prolong the case for years and years. Courts should not become prey of such tactics but must compensate the otherside properly and award costs which should not be less than Rs. 10, 000 per adjournment or more for frivolous adjournments. Courts must come heavily against the party who dares to file forged documents and commits perjury such a party must be prosecuted to check the purity of legal system.
It will be difficult to control uncalled, frivolous litigation unless the Courts don’t control undue adjournments and delay the profit to wrongdoers. Let there be no incentive for frivolous litigation and false adjournments.
The High Court and Administrative Judge must keep periodical monitoring of the proceedings of lower/ subordinate Courts and incase any Judge who does not check delay his promotion avenues must be stopped and be declared deadwood. All promotions must be based on his quick qualitative disposal and not seniority.
Some classic example which abundantly depicts the picture of law the civil litigation moves in our Courts and how unscrupulous litigants, can till eternity harass the opposite party, their children by misusing judicial system.
In one case under J&K Hindu Marriage Act petition was filed for divorce before matrimonial Court Jammu and mandate of law is to decide the case in six months . Has the High Court noticed that why the cases are not being decided in six months or one year or two years but taking atleast 5-6 years or more? Has the administrative Judge ever expressed displeasure over undue adjournments granted without costs?
The High Court has framed rules on April 3, 2010 which mandate no adjournment shall be granted without exemplary costs. Has the administrative Judge read out the proceedings of files and expressed concern or asked for explanations? High Court orders too may not adhered too in several of such cases if checked, and number of frivolous adjournments granted to the wrongdoer. Similarly the mandate of law is 138 NI Act to decide the complaint in six months why the complaints are not decided in six months or one year and against the law the Court is taking 4-5 years in Jammu even in cheque bounce cases while in rest of the country the Magistrates have made it a point to decide it if not within six months then atleast in one year but in J and K it is strange that the cases continue ad infinitum and the concerned lawyer who seeks adjournments after adjournments is not even bothered and Magistrate too has no fear of High Court rules, Apex Court verdicts and the statutory law? Let the administrative Judges call for explanations of the concerned Magistrates and ensure the disposal in six months of such cases. High Court of J and K has codified rules governing subordinate Courts and divided the cases into four categories/tracks. The rule framed by High Court of J&K reads: Relevant extract:-
Trial Courts and First Appellate Subordinate Courts Rules, 2010 GAD Letter No. GDC-15 / CM/ 2010, dt. March 3, 2010.
In exercise of the powers conferred by section 102 of the Constitution of Jammu and Kashmir, section 122 of the Code of Civil Procedure, Samvat 1977 (X of 1977), section 8 of the Jammu and Kashmir State Civil Courts, Act, Samvat 1977 and Clause 26 of the Letters Patents (Jammu and Kashmir) and all other powers enabling it in this behalf, the High Court of Jammu and Kashmir, with the prior approval of the Governor, hereby makes the following Rules, namely:-
Division of Civil Suits and appeals into tracks:
1. Based on the nature of dispute, the quantum of evidence to be recorded and the time likely to be taken for the completion of suit, the suits shall be channeled into four tracks; Track 1 may include suits for maintenance divorce and child custody and visitation rights, grant of letters of administration and succession certificate and simple suits for rent or for eviction( upon notice under section 106 of the Transfer of Property Act) Track 2 may include money suits and suits based solely on negotiable instruments. Track 3 may include suits concerning partition and like property disputes, trade marks, copyrights and other intellectual property matters. Track 4 may include any other matter. All effort shall be taken for complete deposal of the suits in Track 1 within a period of nine months in Track 2 within a period of 12 months and in Tracks 3 and 4 within a period of 24 months from the date of institution of a suit.
Rule 8, 9, and 10 reproduced.
8. Costs
The costs shall invariably follow the event. Where a party succeeds ultimately on one issue or point but loses on a number of other issues or points which were unnecessarily raised, costs shall be appropriately apportioned. Special reasons shall have to be assigned if costs are not being awarded. Costs shall be assessed according to rules in force. If any of the parties has unreasonably protracted the proceedings, the Judge shall consider exercising discretion to impose exemplary costs after taking into account the expense incurred for the purpose of attendance on the adjourned dates.
9. Proceedings for perjury
If the Trial Court, while delivering the judgment, is of the view that any of the parties or witnesses have willfully and deliberately uttered blatant falsehoods, he shall consider whether it is a fit case where prosecution should be initiated for perjury and order prosecution accordingly.
10. Adjournments
When a suit is listed before a Court and any party seeks adjournment, the Court shall have to verity whether the party is seeking adjournments due to circumstances beyond the control of the party, as required by clause (b) of the proviso to sub-rule 2 of Rule 1, Order 17 Civil Procedure Code. The Court shall impose costs as specified in sub-rule 2 of Rule 1, Order 17 Civil Procedure Code.
A million dollars question arises whether High Court framed rule are meant to violate with impunity or it is a meaningless exercise to frame rules? Let the High Court decide whether the rules are to be framed to violate or implement depends on the will of the High Court itself. To me it appears no rule can be permitted to be violated particularly when it is made practice of the day. There must be an accountability why the rules are being violated and one of the party put to advantageous position to prolong proceedings endlessly.
Adjourning the case is no justice rather it is injustice to other party. It is high time to identify Magistrates/ Subordinate Judges who decide the cases expeditiously with time bound qualitative judgments must suitably rewarded by out of turn promotion and elevation to High Court. Seniority is no criterion for elevation, let it be checked and only deserving efficient and having unquestionable reputation amongst the Bar and general public be elevated out of turn to High Court. It will be a great boost for those who work and encourage all other judges to decide cases well within stipulated period.
Bar members too must evaluate performance and laud the role of such Judges and recommend to High Court for out of turn promotion. The Delhi High Court Judges and Chief Justice have taken a drive against some of the Judges whose performance was below average and are thrown out of service. Let the same drive be initiated by J&K High Court Judges and particularly the administrative Judge to physically examine the files of the lower Courts once in a week to gear up the justice delivery system.
(Author is a practicing Advocate, former President of J&K High Court Bar Association)
