Chapter -1

INTRODUCTORY

The extent of the problem of pendency of the cases in the courts

in India is much comprehensive. The jurists as well the legal fraternity
have studied, analyzed and commented time and again over the
menace of delay in disposals. “Because justice is not executed
speedily, men persuade themselves that there is no such thing as
justice.” Way back in 1871, the American thinker James Anthony
Froude quoted the same. The history of delays in justice is thus not
modem thought. Conceding the same ratio Chief Justice Bhagwati
expressed in his speech on Law-Day, ‘I am pained to observe that the
judicial system in the country is almost on the verge of collapse.
These are strong words I am using but it is with considerable anguish
that I say so. Our judicial system is cracking under the weight of
arrears’.
The following tables consisting of institution disposal and
pendency of civil and criminal cases in High Courts as well in
subordinate courts in the preceding seven years display the actual and
alarming position in India.
CIVIL CASES
Pendency at the
Year Institution Disposal
end of the year
1999 816912 712482 104430
2000 795007 735301 59706
2001 874125 796228 77897
2002 932186 842646 89540
2003 988449 982580 5869
2004 1016420 863286 153134
2005 1082492 934987 147505

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 CRIMINAL CASES

Pendency at the
Year Institution Disposal
end of the year

1999 305518 267992 37526

2000 321615 283700 37915

2001 341301 297370 43931

2002 402016 343900 58116

2003 396869 367143 29726

2004 432306 375917 56389

2005 460398 403258 57140

CIVIL AND CRIMINAL CASES

Total Total Pendency at the

Year
Institution Disposal end of the year

1999 1122430 980474 141956

2000 1116622 1019001 97621

2001 1215426 1093598 121828

2002 1334202 1186546 147656

2003 1385318 1349723 35595

2004 1448726 1239203 209523

2005 1542890 1338245 204645

 Institution, disposal and pendency of civil and criminal cases in
sub-ordinate courts in the last 7 years are as under:-

CIVIL CASES

Pendency at
Year Institution Disposal the end of the
year

1999 3302042 3217516 84526

2000 3170521 3186753 —

2001 3373469 3140099 233370

2002 3385715 3342653 43062

2003 3170048 3121978 48070

2004 3697242 3726970 —

2005 4069073 3866926 202147

CRIMINAL CASES

Pendency at
Year Institution Disposal the end of the
year
1999 9429233 9177244 251989
2000 9643398 9451770 191628
2001 10064701 9354812 709889
2002 11159996 10177254 982742
2003 11635833 10874673 761160
2004 11888475 10857643 1030832
2005 13194289 12442981 751308

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 CIVIL AN D CRIMINAL CASES
Pendency at
Year Institution Disposal the end of the
year

1999 12731275 12394760 336515

2000 12813919 12638523 175396
2001 13438170 12494911 943259
2002 14545711 13519907 1025804
2003 14805881 13996651 809230
2004 15585717 14584613 1001104
2005 17263362 16309907 953455
(SOURCE : NIC INDIA.)

The District and Sessions Courts Nanded where I professes

must be a representative example to display the pendency in the state
as well the nation. The ongoing statistics of the preceding couple of
years discloses as under* :

Sr. Civil Criminal Total

Year
1 2005 19556 51929 71485
2 2006 19909 53139 73048

The above statistics issued by the office of registry of Principal

District and Sessions Judge at Nanded as well the NIC of India is self
speaking. By multiplying the number of principal district courts one
can imagine the stalked litigation burdened with the courts.

The modem legal history of India is witnessed by the hectic

legislation including the eras of pre and post independence. Being a

* Inference supplied by district and sessions court Nanded.

14
 developing nation it is obvious that India had to undergo a continuous
path of law making, to ensure the democratic values and socialistic
virtues. The demand in those days was the codification of laws, and
that too with the consonance of the notions of each and every citizen.
The statues, rules, laws and regulations are thus drafted by the
legislature and bureaucrats. The adopted concept of the welfare state
also geared the task. The process of law making is thus obviously an
on going process. Some of the main reasons for delay in the disposals
of the cases are abnormal increase in the number of cases going to
courts and tribunals, faulty legislations-enacted hurriedly, arbitrary
administrative orders, increased consciousness of one’s right,
gambler’s instinct in a litigant due to multiplicity of appeals and
revisions provided in the law and so on.

The twin explosion of population and legislation is the root

cause of the delays. The misery is added by the meager infrastructure
provided. Lack of modem techniques of recordings and records, un­
trained staff also are the factors to be enlisted even after the five
decades of independence. The situation in the mofussil courts is
pathetic. Most of the courts do not have proper housing, time full
maintenance and incidental amenities to coup with the routine of the
court. The result is decline in efficiency.

We have three major procedural statutes. They are: Civil

Procedure Code*
*, Criminal Procedure Code* and Evidence Act*. All
the three enactments have completed their first 100 years of rule in

* The Civil Procedure Code

’ The Criminal Procedure Code
* The Evidence Act

15
this country. They are the products of English jurisprudence brought
in, introduced and enforced upon the citizens of India by the then
British rulers and which have been adopted to be enforced even after
the independence. During the past 100 years or more several
unexpected and unimaginable changes and developments have
occurred in all spheres of human life in the world. So also the system
of law, the requirement of the rule, the tendency of the people and
needs a thorough change in these procedural laws in our country.

The parliament brought in certain amendments in 1976 to some

of the provisions of these statutes but they are proved to be less
insignificant for the need of the changing society. The Civil Procedure
Code prescribes the rules of pleadings and fixes the territorial as well
as the monitory jurisdiction to the courts. The time consumed in
disposing of civil case is alarming and sometimes astonishing. In
normal course of events the time that may be consumed in an ordinary
original suit before the civil court, if contested would take complete
30 years to get it disposed off and to come out of the threshold of the
courts. As many as 5,31,477 more than 10 years cases were pending
in the High Courts alone as on 31st Dec. 2005. The pendency of such
cases in subordinate courts is bound to be many times more. It is time
to stratify and segregate the old matters in the sub ordinate courts and
special measures ought to be taken to overcome the old litigation.
The method of awarding more disposal units to the judges for
concluding the old litigation has proved well and good. The high
Court should set up benches exclusively for regular hearing of old
litigation. If possible a time for not more than one year be awarded to
dispose the matter in which injunction or stay has been granted. A

16
suitable mechanism should be devised to ensure that the interlocutory
orders at trial court should be decided at the end of six months, unless
extended, for adequate and special reasons to be recorded in writing.

Undoubtedly, it is the system, which is at fault. And a system

is, surely, as good as the people who make it work. The pendency of
cases has been drastically reduced in the Supreme Court. The
disposals are usually more than the filling. It is the other side of the
mirror that our judges are supposed to do the better disposals than any
other country in the world. But the problem lies with the explosion of
the litigation. Considering the causes of the enormous filing of frays
the needle points to the lack of the pre litigation counseling. There
should be committees established of the social workers and voluntary
organizations to check the potential of a fray. These committees
should be asked to work from the village level. Due to
industrialization and urbanization the potential of the litigation has
been increased to a considerable level. Various labour laws also
provide tripartite solutions to settle the dispute and pacify the
situation. The legal aid committee, which works from the grass root
levels, has to find the solutions of the disputes and to settle them out
of the court. In these days we witness that various cells have been
established in labour offices, police departments and company offices
to settle the disputes outside the courts. The results of these cells are
promising but sad is to note that the people at large are not aware of
these establishments. Drastic measures are required to educate the
people to substantiate the efficiency of the compromises out of the
court. Better to say our emphasis should be on legal literacy. While
evaluating the scope of the concept of legal literacy, we have to go

17
through the concepts of rule of law and the democratic principle of
equality in the eyes-of-law. This constitutional guarantee forms the
bedrock of our Republic and all its major institution. The democracy
can effectively flourish only when people know their rights and
privileges and at the same time their duties and responsibilities.

The panchayats in our village level can play a great role in

augmenting the legal literacy. The purposeful methods disclosing to
the common man that how much time and money he may spend on a
proposed fray with his relatives or other persons should be the point of
issue. The law students can contribute at their level in guiding the
common man about the reparations of any litigation. The basic rule
should be routed in the common man that a fray, whatever may be its
causes can be settled by negotiations and informal meetings. The
lawyers community being professional can well canvass and convince
the common man about the worthlessness of a lis.

It is a fact to note that the pendency in our courts is measured

by the cases pending in the courts. But the other side is that the cases
due to certain incidents and by efflux of time have become
infructuous. Either of the party is not interested now about the fate of
the fray. This pendency and its number also add the stalked litigation
and the result is that it displays the final number very alarmingly. In
fact if such infructous litigation is deleted, the pendency of the cases
can be seen somewhat relaxed. Measures should be taken to enlist the
infructous litigation and to dispose the same with the consent of the
either litigants. The lawyers in this respect can play a very vital role.

18
 The concept of ‘next date’ also seems to be the root cause of the
delays. The adjournments are granted without any merit. In routine
the adjournments display the distinguishing character of a court. The
procedural codes provide phinically about the adjournments and warn
that it should be granted but in exceptional circumstances. The codes
provide penalties and sometimes very harsh on deferring the hearing.
But the cases are deferred on flimsy grounds parted mostly by the
lawyers. The exceptions provided in the codes have turned to be the
rules.
Palkhiwala made similar remarks in 1987. ‘The fault is mainly
of the legal profession. We ask for adjournments on the most flimsy
grounds. If the judge does not readily grant adjournments, he becomes
highly unpopular. I think it is the duty of legal profession to make sure
that it co-operates with the judiciary in ensuring that justice is
administered speedily and expeditiously. It is the one duty of which
we are totally oblivious.’

Long ago Charles Dickens wrote -‘in the High Court of

Chancery, the solicitors are mistily engaged in one of the ten thousand
stages of an endless cause, tripping one another up on slippery
precedents, groping knee deep in technicalities and making a
preference of equity with serious faces... This is the court of
Chancery... Which so exhausts finances, patience, courage, hope, so
overthrows the brain and breaks the heart, that there is not an
honourable man among the practitioners who does not give - who
does not often give - ‘Suffer any wrong that can be done you rather
than come here.’

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 Commenting upon the situation in the U.S. justice Warren
Burger, the former Chief Justice of the Supreme Court, told the
American Bar Association, “The harsh truth is that we may be on our
way to a society over-run by hordes of lawyers, hungry as lusts, and
brigades of judges in numbers never before contemplated. The notion
that ordinary people want black robed judges, well dressed lawyers
and fine-paneled court rooms as the settings to resolve their disputes
is not correct. People with legal problems, like people with pain, want
relief and they want it as quickly and as inexpensively as possible.

Chief Justice Bhagwati geared the concept of Lok Adalat. It

motivated the entire concept of the judicial system. The parliament
and state legislatures had to pass a bill in that regard. It shows the
significance of the conducting of the Lok Adalats. In my essays I
humbly suggested to motivate the concept to the roots of the society.
It is indeed an alarming instrument to dispose the litigations in a
possible best speed. In the past 18 years the Lok Adalats have become
part and parcel of our judicial system. The data displays a very
significant quantity of the frays finalized and that too with informal
and non-conventional dispute redressal system. It is the demand of the
hour that we should conduct these Adalats at least once a week to
check the stalked litigation. It is to be noted that most of the frays are
subjudice due to lack of informal - interference by the experts and
experienced personnel. The Lok Adalat throws this barrier to enable
the litigants to come together in such an informal way that most of the
time the litigants had no option to consent the concept of the
compromise. Lok Adalat is a different kind of Forum for expeditious
settlement of dispute and is currently sweeping our nation. Complex

20
procedure and high cost litigation in conventional courts made no
options before the litigants but to knock the Lok Adalat. The
following table will show that the lis are being concluded that too
informally between the litigants. The Lok Adalats which were held in
the district of Nanded where I professes display the following
statistics. It is hopeful and shows a mark of the process of alternative
solutions to the dispute is gearing up.

Alternate Total
Sr. Year Lok Adalat
Dispute
Resolution
1 2005 528 5 533
2 2006 1019 4 1023

In my humble opinion it is submitted that when more than 1000

disputes and cases pending in the civil and criminal courts were
finally concluded in the Lok Adalat, the figures will certainly be
augmenting in the forthcoming years.

The Indian legal history is the unique characteristics of

arbitration and its public odium and belief over it. Our society has
witnessed various arbitrators, called as panchas in its gradual
renaissance. The statutory codification of arbitration art connotes its
importance. The disputant wants a decision, and that too a fast
decision. As the problem of overburdened courts has been faced all
over the world, new solutions were searched. Various tribunals were
the answers to this search. In India we have number of these
tribunals. To name a few, we have Central Administrative Tribunal,
Industrial Tribunal, family courts, Consumer Forum, Railway

21
 Tribunal, Revenue Tribunal, and Human Rights Tribunal. However,
the fact of the matter is that even after formation of these tribunals the
administration of justice could not be geared. Thus it can be safely
said that the solution lies elsewhere. All over the globe the recent
trend is the shift from litigation towards Alternative Dispute
Resolution (ADR) method, which primarily involves arbitration,
conciliation and mediation. The most important aspect of the ADR is
that both the parties are eager to settle the matter, forget it and move
forward in their respective pursuits. We would do well to remember
the exhortation made by John F. Kennedy ‘Let us never negotiate out
of fear but let us never fear to negotiate. The civil courts are burdened
a lot with money suits. If a stringent provision is made that all money
suit be referred to arbitration, the courts may sigh with relief as most
of the pendency will be removed and it can endeavor in other complex
matters awaiting verdicts*.

Thus curtailing the causes and entailing the remedies the delays
can be checked. Alternative dispute resolution methods are the one
side but it is the courts alone, which mostly have to cross the
barricades of the delay. Generally the dispute before any forum is
composite and derived from heterogeneous source. In India, if we
examine the sources of dispute, we find that the some of them have
came from personal laws and local customs, some are based on some
incidents and political ideology and so on. Therefore when so many
elements work in shaping a dispute, the matter cannot be concluded in
a single stroke because a number of factors join hands together in
influencing the litigants which are formed to resolve it.

* Law of Arbitration and Conciliation 2nd Edn. S.K. Chawala Eastern Law House, 2004.

22
 The law is either substantive or procedural. The procedural law,
mostly concerned with the time frame of a lis. The Indian procedural
law, mainly consist of the Civil Procedure Code, Criminal Procedure
Code and Evidence Act. The other statutes also provide procedure to
follow to ascertain the rights and liabilities of litigants. But while
considering the aspect of the time frame disposal, we have to think
mainly over these major Acts. All these Acts have been enacted
before more than 100 years ago. Certain amendments were also
carried in these statutes but still more has to be done to enable these
codes to coup up with the present scenario, motivated by technologies,
cyberism and eventful modernization.

At the same time it has to be borne in the mind that these

procedural codes have been enacted very cautiously and amending or
altering them in a hush hush manner will result in the entire collapse
of the existing judicial system. After all for the century and more
these codes have provided the justice to our selves.

Audi ulterium parten is the fundamental rule and no procedural

code can curtail the same as it opposes the basic principle of natural
justice. It is witnessed that a very large section of the court personal
are engaged in causing the service of the summons and compelling the
attendance of the other side before the court. The Civil Procedure
Code also provides substituted service of summons for those who
avoid to get served*. It is seen that for this preliminary stage of
appearance often months together and seldom years together require

' Civil Procedure Code - Mulla.

23
 complying the provisions of attendance of the other side. The law
does not allow the service except provided by the code and by the
means of conventional bailiff battalion. The time has came that there
should be provided a separate courier service of the court to compel
the attendance of the other side or to enable the applicant to ensure the
service by his own and reliable methods. Most of the times it is seen
that the summons do not get served first time on the other side on
flimsy grounds, viz. incorrect address, full name, not found etc. The
Civil Procedure Code’ provides substituted service but it imperates
affidavit of the applicant to obtain such order. When the record
speaks itself, then pressing for filing affidavit seems very
unreasonable. The presiding officers are such pro-procedure oriented
that they decline to entertain such applications without affidavit. It
results in extra ordinary delay at this preliminary stage. The situation
is similar as well in the appellate courts and nobody seems to be
serious of the same.

In my humble opinion the alternative efficacious procedure is

the serving the summons by fax. So also the applicant be allowed to
take help of private couriers to serve the summons to the other side.
So also the applicant ought to have filled in the addresses of the other
side to enable the court staff to expedite the process of service of
summons.

The fray is again fainted, as the courts have to decide the same.
It is often experienced that the suit kept for judgment is continued on
the same stage for months together. The provisions of the code are

’ The Civil Procedure Code

24
overlooked and convenience and moods of judges prevail over the
law. Sometimes the officer directs to rehear the matter to brush up the
webs. Again the unending process continues and the lis is belated.

The journey mentioned herein above is belated due to

amendments in pleadings, furnishing better particulars, appointments
of commissioners and receivers, revisions appeals transfer petitions
and various other applications to reach its destinations. It is pathetic
to witness helplessly that generations together await the verdict and in
fructuous finale by efflux of time.

While including it ought to be borne in mind that the genus of

delay is such vast spread and comprehensive that it should be checked
at an earliest. May this virus will certainly extinct the judicial
institution.

Realism demands that we must acknowledge and not remain

unaware of the fact that there has been a gradual shrinkage of the
image of the courts. One main cause for that has been the tardy
judicial process and the long delay that takes place in the result that
the faith of the ordinary man in the capacity of the courts to dispense
prompt justice had been slowly eroding. The long delay in the
disposal of cases and the huge arrears, which have piled up in courts
must be a matter of great concern for all of us in the world of law.
Even cases, which by their very nature have an element of urgency
and call for speedy disposal, take considerably long time. I have
heard of cases where a landlord living on the second floor had heart
attack and was advised by the doctors to live on the ground floor. The

25
 landlord started proceedings for the ejectment of his tenant on the
ground floor. The proceedings lingered on for years and before they
could end, the landlord died. To take another case, of what a value
decree of divorce granted in matrimonial case if the parties spend their
youth in court proceedings and a decree of divorce is granted only
when they reach the middle age or even later. The problem of delay
and huge arrears stares us all and unless we the judges and the lawyers
can do something about it by joining our heads together, the whole
judicial system would get crushed under the weight of it.

It has to be borne in mind that the judicial system is

primarily intended to serve the needs of the community*. That was
the object for which it exists. The judges and the lawyers may be the
instruments of the system, the functionaries through whom the system
operates, but the real beneficiaries of the system have to be the people,
the members of the general public, the aggrieved, the injured, the
wronged, the persecuted and the victimized. Let us not while working
the system forget its basic purpose. It would be a sad reflection on us
all if an impression comes to prevail and gains currency that the
system operates mainly for the benefit of its functionaries and the
interests of the general public, if not ignored altogether, get a low
priority.

There are several parties connected to a litigation- the litigant

himself, the lawyer who conducts the case, the judge who hears and
decides it, the prosecuting agency in a criminal trial and last but not

' Basu D.D. Constitutional Law Of India.

26
the least, the State’s bureaucracy who whether most of the writ
petitions in the High courts.

Who amongst them is serious for the speedy disposal of the

pending cases and dispensation of cheap justice to the needy and the
poor? The problem does not seem to have been approached in its
correct perspective yet.

The Litigants- For him all the tears are being shed. But do all of
them want that their cases should be disposed of quickly? The
plaintiff who seeks relief may like to have quick justice, but what
about the defendant? Even the plaintiff after obtaining an order of stay
or injunction gets vitally interested in delaying to process. A tenant in
an eviction suit never wants the litigation to come to an end. Once
evicted, he cannot get a similar accommodation for the same price-
thank to the hike in the house rent. Similar is the position in a criminal
trial. An accused seldom wants his trial to commence and prolongs the
case till the time the evidence against him wiped out. Thanks to our
lethargic and slow acting judicial procedures, fifty percent of our
litigants, if not more, do succeed in showing down the process.

In an ecclesiastical Court, the clergy found it to be a religious

obligation to help the needy and assist the Court in the dispensation of
justice. It gave birth to a class of persons who came to be needed more
by the litigants and had little time to spare for the church. The lawyer
was bom towards the close of the seventeenth century vigorous new
policy of Imperial discipline paved the way to the adoption of
common law practice of the King’s court form Biblicism and local

27
customary English Law. The growth of propertied class created a
market for the service of lawyers and the Lawyer has come to stay. He
is an integral part of the judicial process. It is said that he is the
learned gentleman who rescues your estate from your enemies and
keeps it to him-self. Joseph H. Choate, a great American lawyer in a
dinner speech had his own joking truth. He said. “Every man in the
community owes a duty to our profession; somewhere between the
cradle and the grave, he must acknowledge the liability and pay the
debt............. It was one of the brightest members of the profession,
you remember, who had taken his passage to Europe....... and failed
to go. He said one of his rich clients died and he was afraid if he had
gone across Atlantic, the heirs would have gotten all the property.”

The allegation often is that lawyer makes a law-suit

complicated and confusing. Fred Rodell, an eminent Professor of Yale
University, once said- “While law is supposed to be a device to serve
society, a civilized way of helping the wheels go round without too
much friction, it is pretty hard to find a group less concerned with
serving society and more concerned with serving themselves than the
lawyers.”

I should not be misunderstood for mentioning all these. Most

of our lawyers are fairly honest, more or less upright and, in the main,
quite decent men; but that is not relevant. Karl Marx once said that
money annuls all human relationship, after all this profession has
come an industry. The interest of the lawyer lies in a protracted
litigation. He is not Shekh chili who would cut the branch of the tree
on which he is sitting by making a litigation short-lived.

28
 The Prosecutor- The agency, which is responsible for the
maintenance of law-and-order is also responsible for the investigation
of the crime. The law and order situation in the country is such that
the authority gets little time for investigation of a case. Many a time,
to control the crime, the investigation is slowed down to keep the
alleged criminal behind the bars. It is common knowledge that in
many cases the investigating officer is not available for examination
in Court for months and years and then who does not know what
prompts our police in not booking the criminal speedily. Once the
cases reach the hands of the lawyer-prosecutors, the matter gets
worse**. He works on a daily fee and can speed up the trial only at his
own peril. It is not that he has no other problems, but his own interest
gets the upper hand like that of anybody else. It is economics, which
determines everything in our social set up.

The state and its bureaucracy - The society has become very
complex. We have a very rich crop of Ordinances in free India. The
Rule of Law has been replaced by the Law Rules. Can you say sitting
over here if you are not violating any law? Thoughtless and malafide
orders give rise to many cases, especially the writ petitions in the
High Courts*. Many of them may be disposed of at the preliminary
hearings but, in spite of best efforts, proper instructions are not sent to
the counsel of the State. They say that the files in the Secretariat and
the Government offices have no legs. They have to be moved and it

* Code of Criminal Procedure - Batuklal.

* Principle of Administration of Criminal Justice in India - Biharchandra.

29
takes time for the file to walk from one table to the other. Those who
can make it walk succeed, but in the process, the matter gets delayed.

The state has become the single biggest litigant. It is the

common knowledge that the criterion for the appointment of counsel
is anything but merit. The heartless bureaucracy has neither ears nor
eyes. If at all, he cannot see beyond his own nose. He is trained in a
different way and most of his time is consumed in protecting himself
and pleasing the politician. Where is the time and will for him to think
about the problems? And why he should, at all?

I have tried only to pose a few basic problems, which seem to

have been overlooked. Many more can be added and multiplied. It is
threatening to note that in recent years this problem has attracted the
attention of people in authority and outside. But the remedial
measures suggested so far are most inadequate to cope with the
problem. It is generally suggested to curtail some of the procedural
laws and to increase the number of Judges and Courts. No one will
dispute that lethargic and slow acting procedural laws must be
replaced by quick acting procedures. But there is also an inheritant
danger in it. In doing so, care has to be taken that justice itself is not
disposed of instead of the cases. Considering the increase in the
number of cases, the increase in the number of Judges and Courts is
only a half-way solution. But what about the quality in the matter of
appointment of Judges which seems to have received a set back in
recent years. If delays cannot be curtailed in such maters, only God
knows if, we shall be able to cut off delays in the disposal of cases.

30
 This is a socio-economic problem. Lakhs of our educated
young men are every year rolled out of colleges. Very few of them get
employment. The others find their self-employment in road-rail
robberies, bank dacoities and other sophisticated crimes. They have
got to do something to live on. This gives rise to the large number of
criminal cases. Then, there are social offenders. These are every day
on the increase*. Can the procedural cut and the increase in the
number of Judges cope with these problems? You can kill the
mosquitoes in a room by spraying flit but many more will come inside
from the breeding ground. What is more important is plugging the
hole to see that the cases do not breed. That cannot be done by
slogans. There must be a vigorous attempt in the right direction and
there must be a will to do it. The cause has to be located and removed
by socio and economic operation. If we cannot do it, it is better that
we stop talking about it.

’ Law of Bails - M.R. Mallic, Eastern Law House.

31