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Legal Delays: Who is to be blamed?

BAPOO M. MALCOLM
Last updated: 14 January 2015
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Legal Delays: Who Is To Be Blamed?

Advocates, Judiciary or the Public?

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Advocates,
        Judiciary, Public, Supreme court,

 
An advocate friend is defending a case in a suburban court in Mumbai. As usual, it is a property-related litigation. These days, 70% of cases filed relate to real estate disputes.

Land is worth more than gold. Like gold, it attracts those we can do without. More often than not, it is the culpable who jam the judicial machinery with frivolous litigation and even malicious prosecution. Our case deals with a man who files a case in court. He claims to be in possession of a very small piece of land abutting a small road on one side and a gate on the other. The gate is one of two gates of a cooperative housing society (CHS). The man, the plaintiff, cites the municipality as the defendant, no one else.

For some reason, no one defends the suit. The usual process is that when no one from the defence denies the claim of the plaintiff, the court has to give the judgement in what is called an ex-parte order. It usually is in favour of the plaintiff.

Now, You be the judge

What should the order be? In the instant case, the judge granted the man the rights to that postage stamp-size bit of roadside. Up went a vada-paav stall. The man had court papers giving him his title.

In cases past, the courts used to grant the plaintiff his prayers, often without considering the merits of the case. It is flawed reasoning and, thankfully, the Supreme Court of India, in a judgement a few months back, has questioned this line of thought. It has said that it is the duty of the court to assess the plaint on the basis of merit and not simply pass an ex-parteorder favouring the plaintiff. We fully agree with this view.

Why? If the plaintiff is unscrupulous, he may use one of many tricks up his sleeve. Use subterfuge and the court may believe the summons was properly served. The defendant may be out-of-town or indisposed. There could be two persons of the same name in the village; the address could be tenuous, at best. Crooks are ingenious.

The vada-paav stall is now up and running. The CHS is appalled. The man says that the gate was put up after his title was adjudicated. It all becomes a matter of proof. And time.

In the meanwhile, our friend doubts the bonafides of the litigants. There is a power of attorney, allegedly executed by the original plaintiff in favour of the man running the stall. But no one recalls seeing the plaintiff. Is the plaintiff alive or dead? Or maybe non-existent. Stranger things have happened in court.

The advocate asks for proof of the plaintiff being alive. If the plaintiff is dead, the suit abates. It is as dead as the plaintiff; unless a legal heir is brought on record. There are rules to overcome this. The Code of Civil Procedure (CPC), the advocates’ bible, says that the advocate must inform the court within three months of a litigant’s death.

The matter either ends or the heirs carry on. But what if the advocate does not volunteer the information? The other party, having no access to the news of the demise, soldiers on, spending time, money and energy on futile litigation. The court’s time is wasted. The administration costs shoot up. Other important matters are kept on the back burner.

You be the judge and solve this conundrum.

When we approached the powers-that-be, they quoted the CPC; a catch-22 situation. As advocates, we have been arguing this matter amongst ourselves and come up with what seems a workable solution. If the other side, when in doubt, asks for a ‘life certificate’ for the other lawyer to produce, say, once a year, it must be done. The method is simple. Pension authorities already have such a system in place. Why cannot the courts? After all, purposeful concealment is contempt of court and receiving consideration for such concealment is criminal contempt.


Courtesy: Moneylife

 

Bapoo Malcolm is a practising lawyer in Mumbai. Please email your comments to mail@moneylife.in


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Comments

10 years ago yogendra prasad

The Quality of Justice delivery encompasses a just,cost effective and reasonably scheduled Justice. It is achieved in the system of US federal Law or many others. Pl. compare with ours.Pl. also refer Judgement (Ramrameswari 4912-4913 of 2011.)


10 years ago BAPOO M. MALCOLM

M. Mani, The laws, as they are are superb. Any changes should be incorporated only to add matters on new technology, eg, Information technology. It is the very transparency that you suggest that adds time to a judgement. Hurried decisions can never be transparent as all knowledge will never be presented to the court. You may say that it is an evil, but believe me, it is a necessary evil. Better to have a well-cooked one than an half-baked one.


10 years ago sachin

please send me the Supreme court judgement which you have mentioned in 4th para i.e it is the duty of the court to assess the plaint on the basis of merit and not simply pass an ex-parteorder favouring the plaintiff


10 years ago Prof Wg Cdr G Kumar

If you examine long-pending matters in Lucknow Bench, you will discover that Delays are often caused by Lawyers and Judiciary ignores Allahabad High Court Rules, to either Adjourn the matters or fail to fix next date of hearing.


10 years ago Mani

. Apart from replacing constitution, all the civil and criminal laws ought to be replaced with new laws suitable for present ‘socio-economic’ conditions. We should bring Transparency in justice delivery system.


10 years ago TGK REDDI

People want injustice. The most effective way of reducing pending cases in courts is to dispense justice. People will not approach courts and will be law-abiding.


10 years ago pritam

They promise that from the day earth was formed why it formed and how it formed, who was the first owner and they would take all NOCs right from day one the land came into being, say from Gods, then the people...


10 years ago dr g balakrishnan

They promise that from the day earth was formed why it formed and how it formed, who was the first owner and they would take all NOCs right from day one the land came into being, say from Gods, then the people... what great security talk about every one knows..that way the cheating begins its great day...!


10 years ago dr g balakrishnan

All their acts are contrary to advocates' Act and legal ethics, well supported by great bankers who just misuse the SARFAESI ACT.. read the recent SC judgement would reveal.....! Like that these greats too misuse the poor buyers of properties by saying....!


10 years ago dr g balakrishnan

NOC is a great idea that makes these guys to get some living these panel greats... they would say they would remove all encumbrance on land or flat...but in fact not true but lying they do ..what they do!...


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