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% 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 follows
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. 6500/- Per appearance to their panel counsels and about Rs 10000 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 & 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 hand 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 other side 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 unauthorized 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,
License or tenant will not vacate the premises for years together despite
expiry of lease period, thus causing wastage of nation's wealth. 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. 10000/ 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.
Decided after 8 years despite two High Court directions to
decide the case in 6 months.
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 6 months . Has the High Court noticed that why the cases are
not being decided in 6 months or 1 year or 2 years but taking atlest 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 3-03-2010 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 M 138 N.I Act to decide the complaint
in 6 months why the complaints are not decided in 6 months or one year and
against the law the Court is taking 4-5 years in Jammu even in cheque bounce
cases whileas in rest of the country the Magistrates have made it a point to
decide it if not within 6 months then atlest in 1 years but in J&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 6 months of such cases. High Court of J&K has
codified rules governing subordinate courts and divided the cases into 4
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. 3.3.2010
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 9 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 qualitaive 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.
