24. WORK METHODS AND WORK ENVIRONMENT
24.1 The terms of reference to our Commission inter-alia require us to examine the work methods and work environment in courts to promote efficiency in judicial administration.
24.2 The proper work method and work environment in any court largely depend upon the judge who presides over the court. Those who preside over the court should be familiar with the procedure and its working and be able to proceed without delay or hesitation on matters of evidence and procedure. He must have the ability to control the courts and should command the respect of those who appear before him or her, whether Advocate, Clients or Witnesses. Without these qualities of the Presiding Judge, it would be impossible to provide speedy and satisfactory justice to the litigant public.
24.3 The second important aspect is that the Judge should have a court, with proper facilities, assistance of the personal and other court staff.
24.4 The third and equally important aspect is that the proceedings require the presence of parties and their counsel if they are represented and the presence of witnesses.
24.5 We may broadly examine these three aspects together.
24.6 The Commission has already emphasised the need to recruit right kind of persons – talented, dedicated and honest persons with attractive service conditions. The Commission also emphasised the need to have judicial training institute in every State for imparting induction training / periodical refresher courses to Judicial Officers.
24.7 Both these aspects have been elaborately dealt with in the earlier chapters.
24.8 To examine the court work methods and
work environment and to suggest improvements thereof, the Commission engaged the
services of Indian Institute of Management (IIM),
24.9 IIMB in its report, inter-alia, states that most people having stakes in the judicial work are of opinion that justice delivery system is unsatisfactory or poor. The main reason given by them is the delay in disposal of cases.
24.10 IIMB has ransacked the order sheets of several cases and after carefully analysing them stated as follows:
"In order to
gain an initial insight into the extent of delays obtaining at present in
subordinate civil courts, a sample of sixteen "Order Sheets" taken out
at random from the
The IIMB goes on to state :
"The major causes of delays were "summons not being served on time" and "witnesses not being present in court". For criminal cases, the most widely felt source of delay was "inadequate number of concerned personnel". For civil cases, it was "filing of unwarranted Interlocutory Applications". This finding accords with the views of several commissions and reinforces the felt need to introduce long over due reforms.
24.11 The IIMB has examined the question of
Process Management with reference to the report of Lord Woolf of
Management may be termed as Case Management in the legal context. We give below
the important aspects of case management. Case Management as stated in the
report of Lord Woolf in
a) Identifying key issues in a case
b) Encouraging parties to settle cases or agree on issues
c) Summary disposal of weak cases and trivial issues
d) Deciding the order in which the issues are to be resolved
e) Fixing time table for parties to take specific steps
f) Limiting disclosure and expert evidence
g) Allocating each case to specific track (Fast Track / Multi Track)
h) Achieving transparency, control of costs
i) Fixing and enforcing time table for procedural steps before and during trial, limiting length of trial strictly and the judge to ensure effective use of allotted time.
24.12 The remarks of IIMB on this aspect are as follows :
In the Indian context, enforcing time tables would be an essential element of Case Management and would involve deadlines to be set at the following stages of the legal process :
m Serving Summons and Warrants in time
m Posting of cases
m Examination of Witnesses
m Effective Pleadings
m Trial Procedure (criminal cases)
m Controlling Discovery, Inspection and Admission
m Limiting adjournments, Interlocutory Applications
m Effective execution of decrees (civil cases)
24.13 The IIMB has found that the delay in most of the cases is due to multiplicity of interlocutory applications, which are not dealt with by the Court promptly.
24.14 Further, the IIMB has noted that the Courts are not taking advantage of Orders X to XII of the Code of Civil Procedure (Code).
24.15 The IIMB then referred to the proposed Code of Civil Procedure (Amendment) Bill, 1997 and in particular the following provisions:
(i) Any plaint to be filed should be in duplicate, accompanied by all documents relied upon by the plaintiff. Any document not filed shall not be allowed in evidence at the hearing. The affidavit of genuineness of the claim must also be filed at this stage.
(ii) The Court shall issue summons to defendant within thirty days of institution of the suit, deliver the summons to the plaintiff (addressed to the defendant) for service and direct that the summons be served by courier service or fax or electronic mail as prescribed or approved by the High Court. The plaintiff should send the summons as directed by the Court within two days of writing of the summons by the Court. Default on the part of the plaintiff to deliver the summons to defendant will lead to dismissal of the suit.
(iii) The defendant should furnish the written statement in duplicate along with all documents relied upon. Any document not filed shall not be allowed to be received in evidence at the hearing. This should be filed within 30 days from the date of service of summons. This should also be supported by an affidavit.
(iv) Time taken to record oral evidence of witnesses must be reduced by filing affidavits of examination-in-chief and filing the statements recorded before a Commissioner, if need be, in the case of cross-examination and re-examination.
(v) Where elements of settlement acceptable to the parties are apparent, the Court should formulate terms of settlement and after obtaining the views of the parties, may refer the terms of possible settlement for Arbitration, Conciliation or judicial settlement through Lok Adalat for mediation. The Court shall direct the parties to opt for either mode of settlement outside the Court and fix appearance before the forum or authority as may be opted by the parties. The parties shall then appear before the authority for conciliation. If the Presiding Officer is satisfied that it is not proper to proceed with the matter further, in the interest of justice, the matter may be referred back to the Court.
(vi) In the case of adjournments, it is obligatory for the judge to record reasons and award actual or higher cost, not merely notional cost, to be paid by the party seeking adjournment. This proposal also limits the number of adjournments to three to a party during the hearing of a suit.
(vii) The Court, while granting temporary injunction to restrain an act or make an order for the purpose of staying proceedings against the defendant in relation to a property under disposition, shall direct the plaintiff to provide security so as not to cause delay on flimsy grounds
(viii) In matters relating to property disputes, to avoid hardship to the affected party, the Court may ask for the appointment of a Commission to make investigations and elucidate matters in dispute about the property so that when the suit is tried, the findings of the Commission will be available.
(ix) On the day of judgement, authenticated copies should be made available immediately after the judgement is pronounced, and within fifteen days, the decree shall also be drawn up. An appeal may be preferred in the Court, which passes the decree, and notices shall be served on the advocates in the Court of first instance.
24.16 The IIMB has stated that the above provisions are indeed useful means of avoiding delay in disposal of cases.
24.17 The IIMB recommends that awaiting the enactment of that proposed legislation, the High Courts could issue certain guidelines to lower Courts similar to those provisions wherever they are not inconsistent with the existing provisions of the Civil Procedure Code in order to reduce the avoidable delay in disposal of cases.
24.18 We also urge the High Courts to issue such other guidelines / directions to the lower courts so that Judicial Officers may be armed with such protection against the objection, if any, raised by the Advocates.
24.19 With regard to Criminal Courts, this is what IIMB has to remark :
"(i) In criminal proceedings, charge sheets are often filed in the Court after a long lapse of time. The court proceedings start from the time the charge sheet is filed in the court. There are procedural differences between summons trial cases and warrant trial cases. Nonetheless, reasons for delay are common to both procedures. The need for a greater degree of cooperation among the various agencies involved in the criminal justice system (The Police, The Prosecution, The Courts and jail authorities) is imperative since thousands of under trial prisoners languish in custody in criminal case.
"(ii) Problems in the service of Processes affect the criminal justice system as much as the civil system. The printed forms need to be revamped, made more legible and readable and as many copies as required be made and copies invariably given to concerned parties. The practice of writing just one copy or writing the names of more than one witness in one copy and serving them in a haphazard manner on the parties must end. Many of the delays and problems encountered by the criminal justice system in this country originate from the early state of delay and inefficiency occasioned in the service of processes. Many of these remedies lie with the Police and have to be initiated before the stage of filing the charge sheet. The Courts will need to question these delays when the charge sheet is submitted and monitor the progress of the case before trial commences. This calls for close coordination between the magistracy, the Courts and the agencies in charge of enforcing laws, be the Police or Customs or any other department.
"(iii) The IIMB has noted the usefulness of the Directorate of Prosecution in Karnataka which was set up following the recommendations of the Fourteenth Law Commission Report. It is of opinion that the directorate has greatly contributed to better disposal of criminal cases in the State. Officials of the rank of Assistant Public Prosecutor in a Magistrate’s Court and Public Prosecutors in the court of District and Sessions Judge and officials designated as Assistant Director of Prosecution, Deputy Director of Prosecution, Joint Director of Prosecution and Director of Prosecution & Government Litigation together head an independent, cohesive team dealing with all the government litigation in lower courts. The charge sheets are vetted by the Assistant Director of Prosecution who is attached to the Superintendent of Police of the district. This practice helps the prosecution to present a well-articulated case before the court and minimizes the chances of legal defects in the charge sheet. This single practice could by itself contribute to reduction of delays and streamlining of the system and is therefore worthy of emulation countrywide. (This may need an amendment to Section 173 of the Criminal Procedure Code.)"
The IIMB recommends the pattern of the Karnataka model of Directorate of Prosecution for replication in all the States."
24.20 The IIMB after examining the 77th Report of the Law Commission has also suggested that at least two well trained police officials at every police station should be set apart for getting service of summons effected upon witnesses for cases relating to that police station and for ensuring their presence on the date of hearing. Not only these police officials be set apart for service of process but they should not be diverted for other duties.
24.21 We entirely agree with these suggestions. We suggest, if not two police officers, at least one of them must be set apart exclusively in every police station to attend the court work, like service of summons, ensuring presence of witnesses and undertrial prisoners. We request the High Courts to take up this matter with their Government.
24.22 Among the general recommendations made by IIMB, the following may be noted :
A. xx xx xx xx
B. xx xx xx xx
C. xx xx xx xx
D. Infrastructure, Staff facilities and Working Environment
6) The existing classification of Courts based on work load should be re-examined by each High Court and new classification based on existing work load should be arrived at.
7) Load data for each Court, based on the nature of the cases should result in realistic classification and help establish benchmarks for performance at the Court and the individual levels. These benchmarks would help to assess the work load of each court, each judge, and eventually serve as inputs for future planning and performance appraisal exercises. These will also help superior courts by way of norms for use at the time of inspections.
8) There is scope to relieve the judge of some of the functions not directly related to judicial work. The suggestion to create an Auxiliary Adjudication Service which will function within the Court but will not call upon the resources of the judge except in rare cases should be further examined. Pre-trial processing tasks could be left to the Auxiliary Service.
9) Training and Development of the Human Resources of the judicial department is an issue that should be addressed earnestly to attain higher efficiency levels. Job Content, Job Description, Goal Setting and Performance Appraisal should receive attention.
10) Court facilities should be upgraded significantly to improve the morale of court officers and the staff and to offer better comforts to the public. Waiting rooms, information kiosks, telephones, photo copying machines; drinking water and toilet facilities for the public are necessary.
11) The Presiding Officers should be provided with dictating machines to reduce their dependence on stenographers. The working environment for the judicial staff should be pleasant. They should not depend upon the petitioners, members of the public etc., for stationery and other basic requirements. Adequate working space, ventilation, light, provisions of fans, a power generator etc., for all courts are minimal facilities that must be introduced.
12) As stated in the 77th Report, judicial officers must be provided with comfortable residential accommodation. They should not be at the mercy of the general public for such facilities as it may dilute judicial integrity. Staff facilities, good living quarters and better working conditions are pre-conditions for the efficiency of the judiciary. This is a reform long overdue.
13) The Record Room in the court should be computerized; all data must be backed up and kept elsewhere in data storage media for each court. Scanning of documents, micro filming etc. should be resorted to in order to reduce dependence on manual work, to prevent tampering with documents and ensuring documents safety.
E. Alternative Dispute Resolution methods (ADR)**
14) Various reports already submitted in this connection including the114th Report of the Law Commission of India should be studied and ADR should not be looked upon merely as a means of Court Management, reduction of arrears etc.
** The Commission has seperately dealt this subject at the fag end of this chapter.
15) The Legal Authorities Act, 1987, the Karnataka State Legal Services Authority Regulations, 1997 and other provisions relating to Lok Adalat are also relevant. These provisions should be used in pre-trial proceedings.
16) Mediation as a consensual and voluntary ADR method and the use of a facilitator trained in conflict resolution should also be studied and experienced in the Indian context.
17) Resorting to Arbitration to settle commercial disputes and other ADR routes should be looked upon as a vital alternative and awareness created among the public.
18) Plea-bargaining in criminal cases is a concept that calls for wider examination.
19) Pre-trial discovery helps classify and simplify issues and this calls for a wider discussion in the light of the Government of Gujarat’s Judicial Reform Committee which examined the question of pre-trial discovery with a view to diverting cases to Lok Adalats for resolution.
II. RECOMMENDATIONS : PROCESS IMPROVEMENTS
20) The following suggestions are based on our re-examination of the material collected by us and are also supported by the Survey conducted by us (IIMB Report Chapter 3). The Code of Civil Procedure (Amendment) Bill, 1997 (Bill No. L of 1977) now before the Parliament has an important bearing on improving judicial processes. If the Bill is passed, several observations contained in this report could be deemed to have been fulfilled. While making improvements in the process, we would like to stress that an automated system should supplement manual efforts, which should be based on the Recommendations of the 77th Report of the Law Commission.
A. Serving Summons in Time
21) Stern punitive action should be initiated against notice / summons / warrants servers, if delay is deliberate.
22) The various forms in use for issue of processes should be simplified in language and content. They should enable coding for computerization. Routine administrative problems should be resolved by using local resources.
xx xx xx xx
B. Presence of Witnesses (Criminal Cases)
26) If the prosecution witnesses are not produced, the court should intervene to secure the presence of at least material witnesses by issuing coercive processes.
27) The prosecution and defence should get a maximum of two opportunities to produce their respective witnesses. Further adjournments should not be allowed, but ends of justice should be borne in mind.
28) Lack of concern by the state for witnesses is a major hindrance in securing adequate presence of witnesses. Witnesses should be treated with consideration with respect to their time and provided adequate facilities.
C. Adjournments, Interlocutory Applications etc.
29) Frequent and avoidable adjournments due to dilatory tactics of litigants and their lawyers are major causes of delay. Deliberate filing of Interlocutory Applications leading to heavy delays should also be discouraged. Frequent and unwarranted adjournments, in principle should be curtailed by discretionary powers given to the judge, keeping the overall objectives of justice in mind. All reasons for adjournments must be clearly recorded by the Presiding Officer. Vague and routine reasons must show up in the Case Summary for follow up action. Cases should not be adjourned if witnesses are present. The entire evidence should be recorded in one stretch. Affidavits could be used to prove things of a formal nature. The provisions of Order 17 of CPC should be enforced strictly. There should be a ceiling on the number of Interlocutory Applications. Relevant rules may be amended to allow more than one prayer in one IL application with a maximum of three IL applications. ILs should not go on beyond 3 months.
30) A provision to limit prayer for adjournments by prosecution and defence to two only on any ground whatsoever deserves serious consideration. For filing counters and written statements also, there should be a time limit.
31) Heavy penalties should be imposed on those who plead for adjournments on frivolous grounds. Frivolous Interlocutory Applications and Appeals and Revisions on IL applications should be similarly discouraged.
32) For oral arguments, time limit should be introduced (say 15 minutes per issue) with a request to file short and neat written argument.
33) While posting cases, the judge should take into account the plausibility of conducting trial on a day-to-day basis. Posting of cases should be undertaken on a rational basis with judicial application of mind. The Presiding Officer should apply his / her mind to post cases in a shorter time.
34) Docket management should be introduced. This takes within its fold simplified procedures and enhances the judicial role in posting of cases. This will remain a judicial function.
D. Posting of Cases
35) Posting should be based on assessing reasonable work, which could be handled in a day, and not done indiscriminately.
36) As "Calling Work" consumes much time, the Presiding Officer should delegate quasi-judicial functions to such Officers and deal with matters of direct judicial relevance.
37) For more effective co-ordination among judges, prosecutors, defence lawyers and investigating officers, each judge should identify problems of co-ordination on a case by case basis and act as an Arbiter. There could be monthly meetings of these officials presided by the Judge at which only Court management and Case management aspects should be discussed.
38) As a matter of law and procedure, pleadings should bring out bare minimum facts and not matters of evidence. Incomplete pleadings should be discarded. After stipulated time, only resubmission should be allowed. Provisions of CPC (Order 6) Rules 16 should be made use of freely.
F. Discovery, Inspection and Admission
39) Though in the law of procedure, there are provisions for "Discovery, Inspection and Admission" there are not many cases in which these provisions are being invoked and this is one of the factors contributing to delay in disposal of cases. At the time of institution of suit, the judge should make it clear that the counsel should invoke respective provisions relating to "Discovery, Inspection and Admission", if they wanted to avail of such provisions. If they do not take such opportunity, they should be denied of such opportunity after a stipulated time frame (say 2 months).
G. Framing of Issues, Settlement of Issues
40) This is one of the primary duties of the Presiding Officer. It is a crucial control point. High Courts should issue fresh directives in this regard, especially in fixing time limits.
H. Judgements / Orders / Decrees
41) There should be greater control by Presiding Officer in expediting the execution of decrees, issue of certified copies and related processes. There should be no delay beyond seven working days after the judgement to draft and notify the decree. This can be ensured by better-organized work methods. Any instruction by the High Court in this regard should be accompanied by other instructions concerning better working procedures.
24.23 The Commission while generally agreeing with these recommendations, has, however, to emphasise the following:
It is disheartening to note that lawyers who are required to assist the speedy disposal of cases, are seeking adjournments. It is equally sad to note that certain Judicial Officers readily accept such requests of the lawyers and grant adjournments, may be, to be in good books of the Bar. These two are the major contributing factors for delaying justice.
Secondly, we tend to overlook the existing provisions in the Procedural Code meant for speedy disposal of cases and instead, suggest reforms and amendments. It is like a local saying that a dancer who does not know how to dance properly complaining about the defect in the stage.
Take for example, there are provisions like Orders X, XI and XII in the Code of Civil Procedure, which afford largest opportunity for lawyers appearing for the parties to exercise their expertise and procedural skills in the conduct of cases. It is the stage in which the greatest speed and effectiveness in procedure should be achieved for speedy disposal of cases. It is termed as Pre-Trial.
24.24 We may set out Orders X, XI and XII.
24.25 Order X, which provides for examination of parties by the Court, reads thus:
"ORDER X : EXAMINATION OF THE PARTIES BY THE COURT
Rule 1. Ascertainment whether allegations in pleadings are admitted or denied:
At the first hearing of the suit, the Court shall ascertain from each party or his pleader whether he admits or denies such allegations of fact as are made in the plaint or written statement (if any) of the opposite party, and as are not expressly or by necessary implication admitted or denied by the party against whom they are made. The Court shall record such admissions and denials.
Rule 2. Oral Examination of party, or companion of party:
(1) At the first hearing of the suit, the Court -
(a) shall, with a view to elucidating matters in controversy in the suit, examine orally such of the parties to the suit appearing in person or present in Court, as it deems fit; and
(b) may orally examine any person able to answer any material question relating to the suit, by whom any party appearing in person or present in Court or his pleader is accompanied.
(2) At any subsequent hearing, the Court may orally examine any party appearing in person or present in Court, or any person, able to answer any material question relating to the suit, by whom such party or his pleader is accompanied.
(3) The Court may, if it thinks fit, put in the course of an examination under this rule questions suggested by either party.
Rule 3. Substance
of examination to be written:
The substance of the examination shall be reduced to writing by the Judge and shall form part of the record.
Consequence of refusal or inability of pleader to answer:
(1) Where the pleader of any party who appears by a pleader or any such person accompanying a pleader as is referred to in rule 2, refuses or is unable to answer any material question relating to the suit which the Court is of opinion that the party whom he represents ought to answer, and is likely to be able to answer if interrogated in person, the Court may postpone the hearing of the suit to a future day and direct that such party shall appear in person on such day.
(2) If such party fails without lawful excuse to appear in person on the day so appointed, the Court may pronounce judgment against him, or make such order in relation to the suit as it thinks fit."
24.26 Order XI which provides for discovery and inspection may also be read.
So far as relevant, it provides:
"ORDER XI :
DISCOVERY AND INSPECTION
Rule 1. Discovery
by interrogatories :
In any suit the plaintiff or defendant by leave of the Court may deliver interrogatories in writing for the examination of the opposite parties or any one or more of such parties and such interrogatories when delivered shall have a note at the foot thereof stating which of such interrogatories each of such persons is required to answer :
Provided that no party shall deliver more than one set of interrogatories to the same party without an order for that purpose:
Provided also that interrogatories which do not relate to any matters in question in the suit shall be deemed irrelevant, notwithstanding that they might be admissible on the oral cross examination of a witness.
Rule 2. Particular interrogatories to be submitted:
On an application for leave to deliver interrogatories, the particular interrogatories proposed to be delivered shall be submitted to the Court. In deciding upon such application, the Court shall take into account any offer, which may be made by the party sought to be interrogated to deliver particulars, or to make admissions, or to produce documents relating to the matters in question, or any of them, and leave shall be given as to such only of the interrogatories submitted as the Court shall consider necessary either for disposing fairly of the suit or for saving costs.
Rules 3 to 23 . . . . Omitted . . . . . "
24.27 Order XII provides for admissions. So far as relevant, it reads:
"ORDER XII : ADMISSIONS
Rule 1. Notice of admissions of case:
Any party to a suit may give notice, by his pleading, or otherwise in writing, that he admits the truth of the whole or any part of the case of any other party.
Rule 2. Notice to
Either party may call upon the other party to admit, within fifteen days from the date of service of the notice, any document saving all just exceptions; and in case of refusal or neglect to admit, after such notice, the costs of proving any such document shall be paid by the party so neglecting or refusing, whatever the result of the suit may be, unless the Court otherwise directs; and no costs of proving any document shall be allowed unless such notice is given except where the omission to give the notice is, in the opinion of the Court, a saving of expense.
Rule 2A. Document
to be deemed to be admitted if not denied after service of notice to admit
(1) Every document which a party is called upon to admit, if not denied specifically or by necessary implication, or stated to be not admitted in the pleading of that party or in his reply to the notice to admit documents, shall be deemed to be admitted except as against a person under a disability:
Provided that the Court may, in its discretion and for reasons to be recorded, require any document so admitted to be proved otherwise than by such admission.
(2) Where a party unreasonably neglects or refuses to admit a document after the service on him of the notice to admit documents, the Court may direct him to pay costs to the other party by way of compensation.
Rules 3 to 9 . . . . . . Omitted . . . . ."
24.28 Since we have received complaints that the Courts are not following these procedures, we have formulated the following questions in our general Questionnaire seeking views and comments from all concerned :
"Q.No. 52. Order X of the Code of Civil Procedure deals with oral examination of the parties with regard to the admissions and denials of the allegations of facts as are made out in the plaint or written statement; Order XI of CPC deals with the discovery and inspection of documents after delivery of interrogatories in writing for the examination of the opposite parties and Order XII of CPC deals with admitting truth of the whole or any part of the case of any other party after giving notice and also calling upon other party to admit documents. Do trial Courts make use of these provisions before embarking upon the regular trial of a Civil Suit?
Please set out the procedural or other hindrance experienced for not following the aforesaid procedure.
Q.No. 52.1 Why pre-trial procedure in every case should not be made mandatory and why a case which is ripe for evidence, should not be taken continuously on day-to-day basis after fixing a date for Trial?
Q.No.52.2 Why a party non-co-operating in the pre-trial procedure should not be directed to pay costs?"
24.29 The responses received from High Courts / State Governments Officers’ Associations are summarised hereunder on State-wise basis :
ANDHRA PRADESH :
24.30 Seldom utilised as the Courts are over
burdened with work and if the steps under Orders X and XI have to be followed,
there should be cooperation from advocates so that adjournments are not sought
for even for going through these preliminary steps. The experience is that even
at the stage of framing of issues, there is no assistance from advocates in most
of the Courts. Interrogatories are seldom resorted to and very often documents
are filed after the commencement of trial with an application seeking
permission. There should be inculcation of better litigative discipline, if
necessary by imposing sanctions under law.
24.31 Presently, the trial courts in our State
are not making use of the provisions of Orders X, XI and XII of the Code of
24.32 In our opinion, the pre-trial procedure
should be insisted upon and where a departure is made from the said procedure,
the Court must record its reasons. In our opinion, once a case is ripe for
evidence, it should be taken continuously on day-to-day basis and only in
exceptional cases for reasons to be recorded the case should be adjourned to a
later date. The party not cooperating in the pre-trial procedure should be
directed to pay heavy costs.
24.33 Advocates produce hindrance in observing
the procedure and a very insisting officer is likely to be harassed in many
ways. Rules are already there but are not observed / practised because of
non-cooperation of various agencies responsible for producing witnesses.
24.34 Trial Courts do not make use of
provisions of Orders X, XI and XII CPC. This is because of non-cooperation by
the advocates and even by the litigants. However, we feel that a Judicial
Officer should strictly comply with these provisions. The pre-trial procedure
should be made mandatory. Though it is difficult to continue civil suit on
day-to-day basis after fixing the date for trial, the Judge concerned must
insist for a day-to-day trial.
24.35 The litigant, who is not co-operating in
pre-trial procedure, should be made to pay heavy costs and not merely costs, as
generally understood. If this is implemented by all Judicial Officers and not
lightly interfered with by higher forum, then, pre-trial stages can be
HIMACHAL PRADESH :
24.36 The Pre-Trial procedure should be made mandatory. The procedure prescribed under Order X of the Code of Civil Procedure is seldom followed in Himachal Pradesh, though there may not be any practical difficulty in following the procedure and the provisions of Order XI CPC are also taken recourse to in very rare cases. The provisions of Order XII are no doubt, by and large, followed and parties are called upon to admit or deny the documents which are available before framing of issues.
24.37 Non-implementation of relevant provisions seems to be a matter of practice which has evolved for years and the background is not known.
JAMMU & KASHMIR :
24.38 The Civil Courts apply the
procedure laid down by Orders X, XI and XII CPC depending on the facts and
circumstances of each case. Pre-trial procedure and recording of evidence on
day-to-day basis should be made mandatory. Costs may be awarded in case the
parties wilfully delay the progress of the case and non-cooperate with the
24.39 Observance and use of pre-trial procedures in every case should be made mandatory.
24.40 The provisions of Orders X, XI and XII CPC are not being effectively used. However, compulsory utilisation of the said provisions would reduce the time spent in recording evidence. Lawyers and litigants should be persuaded by proper legal literacy programmes to effectively and consistently use the said provisions.
24.41 The provisions relating to costs should be effectively used, if necessary by suitable modifications and party who does not co-operate in the pre-trial procedures should be directed to pay suitable costs.
24.42 The provisions are not generally being
followed by the Courts in this State.
MADHYA PRADESH :
24.43 No co-operation is there from the Bar
and the advocates. They are reluctant (many of them are rather ignorant) to make
use of these provisions.
24.44 Pre-trial procedure should be mandatory.
24.45 Very few Courts make use of Order X,
though other Orders referred to in the question are mostly relied on if the
parties move the Court. A party who does not adhere to the pre-trial procedure
should be saddled with heavy costs.
24.46 Procedures contemplated under Orders X,
XI and XII CPC are followed in the pre-trial stage and no procedural or other
hindrance is experienced for not following the aforesaid procedure. The
suggestion of the Commission is fully endorsed.
PUNJAB & HARYANA :
24.47 It is submitted that trial courts hardly
make use of the provisions of Orders X and XII CPC before embarking upon the
regular trial of a suit and the only hindrance being experienced by the trial
courts for non-following the aforesaid procedure is that the lawyers and
litigants do not cooperate at all in this regard and at times, it has been seen
that considerable long time is being wasted in securing the presence of the
parties for the purpose of admission and denial and seeking reply to the
interrogatories. Whenever any attempt was made by any trial judge for strict
compliance of the aforesaid provisions of CPC, there has always been hue and cry
amongst the members of the Bar even to the extent of making false complaints so
as to compel the Judge not to follow these provisions.
24.48 It is not always necessary to direct the
party to pay costs on account of his non-cooperation in pre-trial procedure.
Instead, the party may be proceeded under Rule 10 Order VIII and Rule 4 Order X
24.49 No doubt, the provisions of Orders X, XI and XII CPC are there for speedy disposal of matters and unnecessary issues may be avoided by examination of parties but this is not the routine practice of the Court due to non-cooperation of the parties, paucity of time and heavy work load in the Courts. Pre-trial procedure in fact must be made a mandatory provision. A party non-cooperating at the pre-trial procedure must be directed to pay heavy cost.
24.50 Order X CPC is occasionally
followed. Order XI and Order XII CPC are hardly followed. This has been the
practice since long. In fact, trial as of practice starts with Order XI and
Order XVIII CPC.
24.51 Pre-trial procedure may be made
UTTAR PRADESH :
24.52 Provisions of Orders X, XI and
XII CPC are being followed by the
24.53 It should be made mandatory.
24.54 Non-cooperating party in pre-trial
procedure should be directed to pay cost which should go to the State and not to
the other party, because in that case, it in fact goes to the pocket of the
lawyers of the party concerned.
24.55 The provisions of Order X CPC are
generally not utilised. Orders are passed by the Courts under Order XI and Order
XII CPC by way of routine matters. But those provisions are very rarely utilised
by the parties and their lawyers. The litigants and the lawyers, as well as to
some extent the Courts, proceed with these matters in routine fashion and these
opportunities under these provisions are hardly exploited, although by utilising
those provisions much delay may be avoided. Lawyers take these procedure quite
negligently as a result of which Courts also do not insist on these at the point
of penal orders.
24.56 It is in the interest of administration
of justice that those pre-trial procedures should be made mandatory. It should
be made mandatory if necessary by suitable amendments to the CPC by inserting
the provisions to make these procedure mandatory.
24.57 Provisions of Orders X, XI and XII CPC are not followed regularly in all cases. Experience has shown that litigants feel shy or avoid making statement to Courts in the absence of their advocates, because of adversarial nature of proceedings the litigants under legal advice or otherwise do not come out with truth. Sometimes they are tutored to give answers which are in tune with the pleadings already made. Too much insistence on the part of the Judicial Officers invites protests and at times open allegations of taking undue personal interest in the matter. A few dates of hearings are also wasted in procuring attendance of the parties.
24.58 It will be better if pre-trial procedure is made mandatory.
24.59 We may also set out hereunder the views and comments received from other eminent persons :
JUSTICE SRI RANGANATH MISRA, FORMER CHIEF JUSTICE OF
24.60 The provisions of Orders X, XI
and XII CPC are usually followed by the trial Courts and scrutiny from time to
time during inspection made. There is no hindrance. The suggestion that
pre-trial procedure in every case should be made mandatory and a case should be
taken continuously on day-to-day basis and a party non-cooperating in the
pre-trial procedure should be directed to pay costs are welcome procedure.
MR. JUSTICE K. RAMASWAMY, FORMER JUDGE OF THE SUPREME COURT :
24.61 Under the Legal Services Authorities
Act, 1987, all the cases can be compromised by the parties in the Lok Adalats
which result in decrees of the Court. Therefore, under Orders X to XII CPC and
similar provisions in the Criminal Procedure Code, all civil cases and petty
cases or compoundable offences should be dealt with at a pre-trial stage. Trial
of cases should be conducted on day-to-day basis.
MR. JUSTICE R.S. SARKARIA, FORMER JUDGE OF THE SUPREME COURT :
24.62 The proposal to make pre-trial procedure
mandatory seems to be worth implementation. It would result in saving valuable
judicial time as in
MR. P.P. RAO, SENIOR ADVOCATE OF THE SUPREME COURT :
24.63 There should be a provision in CPC
requiring the trial court to make an endeavour to resolve the disputes at the
earliest stage with the assistance of the counsel of both sides in the spirit of
Lok Adalat. Order XXVII, Rule 5B, requiring the Court in suits against
Government or a public officer to assist in arriving at a settlement has been
referred to for guidance.
MR. JUSTICE P. VENKARAMA REDDY, JUDGE, HIGH COURT OF ANDHRA PRADESH :
24.64 The Advocates’ resistance is the
primary cause for not observing the provisions of Orders X to XII CPC. In case
of a party not co-operating in the pre-trial procedure, he should be saddled
with costs, which should not be a nominal one.
MR. JUSTICE P.P. BOPANNA, FORMER JUDGE, HIGH COURT OF KARNATAKA :
24.65 The trial Court lawyers are the
biggest hindrance in observing the provisions of Orders X to XII CPC. That the
costs for failure of parties to co-operate in the pre-trial should be made
payable by the lawyers to ensure better co-operation.
IN SUM :
24.66 It will be seen from the views
obtained from the respondents that pre-trial procedures are not followed by
Courts primarily due to non-cooperation of lawyers and litigants. The other
ground is that the Court is over-burdened with the work load. This is the view
purforward by almost all the High Courts.
24.67 The High Court of
OUR RECOMMENDATION :
24.68 It is of importance to note that there
are three basic factors in the pre-trial, namely, the ascertainment of facts,
observance of time-limits and the incidence of costs. It may also be stated that
pre-trial is a process which is simple, speedy and comparatively inexpensive, as
in the case of entering a default judgment or obtaining a consent order. No
doubt it involves a great deal of energy and industry on the part of the
practitioners and the Judges.
24.69 In the premise, we recommend that the
provisions relating to pre-trial should be made mandatory against heavy sanction
for not observing it. If necessary, amendment in this regard may be made to the
Code of Civil Procedure.
24.70 In the meantime, we request the High
Courts to issue strict instructions by way of Circulars to the Courts to follow
the procedure of pre-trial and further to provide that the failure to follow the
said procedure should be treated as dereliction of duty on the part of the
24.71 We may further suggest that the copy of
such circular may also be sent to the Bar Association with a request for
PRE-TRIAL AND ALTERNATIVE DISPUTES RESOLUTION (ADR)
MEDIATION / CONCILIATION AND LOK ADALATS :
24.72 Alternative dispute resolution, which for the sake of brevity we shall refer to as ADR, is linked in most people's minds with alternatives to the traditional judicial process, with which it is usually contrasted. That is wrong conception. ADR gives people an involvement in the process of resolving their disputes that is not possible in a public, formal and adversarial justice system bristled with abstruse procedures and recondite language of the law. It offers choice: choice of method, of procedure, of cost, of representation, of location. It is often quicker than judicial proceedings and it can ease burdens on the courts.
24.73 We shall single out first for closer examination of mediation / conciliation.
24.74 There is not much difference between mediation and conciliation. Mediation is one of the methods by which conciliation is achieved. Conciliation is essentially a consensual process.
24.75 We are of the opinion, mediation / conciliation must be resorted to at the pre-trial stage itself.
24.76 The conciliation has now got statutory sanction under the Arbitration and Conciliation Act, 1996. Part III of the Act consisting of Section 61 to 81 provides for method of conciliation of disputes arising out of legal relationship, whether contractual or not. It is by an independent conciliator. The settlement agreement arrived at by such conciliation has the status and effect as if it is an Arbitral Award on agreed terms.
24.77 There are two models of conciliation, which we contemplate. The first one is the Trial Judge, himself to adopt a conciliatory role. If that is adopted, much formal court time can be saved, with consequential savings to the parties of time, money and stress. The judge may take the opportunity, at a pre-trial stage or at other stages to act as a mediator, directing the parties’ attention to the main issues in question and encourage sensible settlement. This is fine as far as it goes.
24.78 This is what the 14th Law Commission also suggested in its report under the sub-heading "CONCILIATION AND PRE-TRIAL".
24.79 The said report so far as relevant reads as follows:
"We are, however, of the view that the trial judge could himself act in a way as a conciliator. The appropriate time for initiating and tactfully helping parties to arrive at a compromise, we consider, would be when the clarification of the pleadings and the examination of parties under Order X, Rules 1 and 2 take place.
xx xx xx xx
xx xx xx xx
Lawyers perform a real service to their clients and to society and the Courts when they make settlements that are right settlements, where there are two sides to a case, where the issue may well be in doubt, where the facts are honestly in conflict or where the law is unsettled, there is always some figure which is fair to both sides. It should be the lawyer’s aim to make such a settlement if he can."
24.80 We have no wish to discourage this course provided judicial impartiality, which every member of the judiciary will be acutely anxious to preserve, is maintained. However, taking this process too far might undermine the perception of judicial impartiality.
24.81 It must be noted that this conciliation cannot become successful unless the judge plays an unduly active role. But we are afraid, judges who try to induce parties to come to an amicable settlement are liable to be misunderstood, however, tactful words are used by the judge without the appearance or taking a view of either side.
24.83 Indeed, we have thought up this model even at the stage of preparing the general questionnaire. In the general questionnaire, we have set out the following question:
An alternative forum viz.
24.84 We may hereunder briefly summarise the views and comments received in response to the said question.
24.85 High Court of Andhra Pradesh has stated
that it is doubtful whether creation of such
24.86 The High Courts of Guwahati,
24.87 High Court of
24.88 Most of the Judicial Officers’ Associations have favoured the establishment of Conciliatory Courts.
24.89 Mr. Justice R.S. Sarkaria, Former Judge
of the Supreme Court, has strongly recommended establishment of such
24.90 Mr. P.P. Rao, Senior Advocate of the Supreme Court has made an innovative suggestion. He has stated that the Court should be empowered by introducing suitable provision similar to Order XXVII Rule 5B CPC, in the Code of Civil Procedure to assist the parties in all types of cases in arriving at a settlement.
24.91 Before we proceed further, let us see
the opinion expressed by the Himachal Pradesh High Court, which has hitherto
successfully carried on the
"The system of Conciliatory Courts was introduced by the High Court of Himachal Pradesh and the system is still prevalent. Its working has been affected by Lok Adalats as two different institutions are serving the same purpose and the quantum wise achievement is also affected. Conciliatory courts may prove to be more effective alternate dispute resolutions system than the provisions of Arbitration and Conciliation Act, 1996.
The conference of Chief Justices on 10-13 December 1987 resolved recommending adoption of system of conciliation courts with modifications in each State. Such courts could be established in other States, in districts or even in taluks as done in Himachal Pradesh."
24.92 Let us now turn to another mode of ADR. This is styled as ‘Lok Adalat’.
LOK ADALAT :
24.93 This has been statutorily sanctioned under the Legal Services Authorities Act, 1987. Chapter VI of the Act contains provisions providing for organisation of Lok Adalats; the power and functions of the Lok Adalat and the effect of the award made by the Lok Adalat.
24.94 Section 20 of the Act is important for our purpose. Under this Section the Court may refer any case to Lok Adalat, if both the parties thereof agree; or, one of the parties thereof makes an application to the Court for referring the case to the Lok Adalat for settlement and if the Court is prima facie satisfied that there are chances of settlement; or the Court if satisfied that the matter is an appropriate one to be taken cognizance of by the Lok Adalat.
24.95 However, the Court shall not make reference unless the parties concerned are provided an opportunity of being heard in respect of the application filed by one of the parties or of suo motu initiation.
24.96 The Lok Adalat shall decide the dispute with utmost expedition to arrive at a compromise or settlement on the basis of principles of justice, equity, fair play and other legal principles.
24.97 Where no award is made by the Lok Adalat on the ground that no compromise or settlement could be arrived at between the parties, the record of the case shall be returned to the Court which referred the case to the Lok Adalats.
24.98 Every award of the Lok Adalat shall be
deemed to be a decree of
24.99 Every award made by the Lok Adalat shall be final and binding between the parties’ and no appeal shall lie to any Court against the Award.
24.100 But under the Arbitration and
Conciliation Act, 1996 there is no provision similar to Section 20 of the Legal
Services Authorities Act, 1987 enabling the Court to refer the case to
24.101 We may, however, point out that the
original court must have power to examine the nature of the dispute and pursuade
the parties to come to settlement by conciliatory procedure and if it thinks
fit, refer the case to the
24.102 In this regard, the suggestion made by Mr. P.P. Rao, Senior Advocate of the Supreme Court, would be relevant. He has referred to the Order XXVII Rule 5B CPC. This provision requires the Court only in suits against the Government or any public officer to assist the parties in arriving at settlement before the trial begins.
24.103 Similar provision could be introduced
in the Code requiring the Court prima facie to examine the matter and advise the
parties in all types of cases in arriving at a settlement at the pre-trial stage
and if it is appropriate refer the case to the
24.104 The settlement arrived at the
24.105 We are, however, of the opinion that
once the case is referred to the
24.106 The experience gained by Himachal
Pradesh High Court in the working of the
24.107 Himachal Pradesh is a small State.
Naturally, volume of work in the Courts will not be large. Separate
24.108 Indeed, as many as 9 High Courts have
favoured establishment of a separate
24.109 We are of opinion that it is better to have independent Conciliatory and Lok Adalat Courts.
24.110 Before we conclude, it may be useful to
bear in mind the role of mediator in conciliation proceedings, which role has to
be played by the
24.111 Mr. D.K. SAMPATH, Visiting Professor of National Law School of India University, in his tiny book titled as "MEDIATION" has explained the scope and role of mediator as follows (page 12):
"The mediator has an active but limited role. He is not expected to be neutral like an umpire. He is an activist in the cause of settlement and it is his duty to promote it. Hence he has to contribute his mite towards a solution. Such a contribution is by his functioning effectively as a conduit between the disputants who may not even be on talking terms. It is by no means a passive role that he plays. After both parties present their versions, it is the mediator’s task to mark the areas of agreement and widen the same by persuasion, with a view to shrink the area of differences. This will lead to identification of the surviving points of dispute and the parties have to be nudged by the mediator along the path of self-resolution by appealing to their good sense and sense of fair play. Relations and friends would help in this. The mediator should not hold out any threats of prosecution or litigation either to secure the presence of the disputants to the negotiating table or their consent to any of the terms proposed. The whole process is based on the exercise of free will and consent of both the disputants. The moment this is withdrawn, the process of conciliation collapses. The mediator is not called upon to apportion blame or guilt for generating the conflict or for the failure of negotiations. Once either party is dubbed guilty, he will turn sullen and angry. Thereafter, he will withhold all co-operation and may even withdraw from the negotiating table. It will create resentment. He will regret why he ever came at all. The mood for conciliation vanishes.
The mediator has to cash in on the initial impulse of the disputants to give mediation a chance and strengthen it into a strong sense of purpose. The wavering parties have to be motivated to a durable settlement that will give a quietus to the controversy. Once the consensual nucleus is identified and emphasised by the mediator, the waivers and concessions are to be promoted by a process of give and take on both sides. The disputants may differ on important issues relating to the dispute. The mediator has to resist the temptation of adjudicating on facts. He is not an arbitrator. His is not to be an attitude of take it or leave it. There is no machinery for adjudication on facts in the process of conciliation by mediation. No witness; no adversary process. No findings; no award. This limitation on the role of the mediator arises from the scope of the initial consent given by the initiator and the responding party to avail themselves of the facility of mediator’s services. This consent is the source of mediator’s role. It circumscribes his functioning. As it has an important bearing on the end result, it should be briefly explained to the parties at the outset. It cannot be and should not be enlarged in the course of the process by assuming powers of finding on facts or confronting the disputants with an award. The entire effort is an exercise in persuasion. You cannot change tracks half way."
OUR RECOMMENDATIONS :
24.112 In the light of the aforesaid discussion, we recommend that –
(1) The Conciliation and Lok Adalat Courts must be annexed to the civil justice system.
(2) There shall be permanent separate Courts for Conciliation and Lok Adalat in every City and District.
(3) A provision similar to Order XXVII Rule 5B CPC and such other provisions may be introduced in the Code of Civil Procedure requiring the Court to endeavour to settle the matter in dispute at the Pre-Trial stage and if it is appropriate to refer the same to one or the other to be taken cognizance of and adjudicated by them.
(5) When once the
case is referred to the Conciliatory or to the
LANGUAGE OF THE COURTS
24.113 In almost all States, the Judicial Proceedings in lower Courts, are recorded in local language of the State concerned. In some of the States, at the level of District and Sessions Judges, the proceedings are recorded in dual language, i.e. one in English by the Judge himself and another in the Regional language. Proceedings including evidences are recorded by the Reader (Peshkar) in vernacular while the Presiding Officer either in his own hand or by dictation to the Steno-Typist records the Proceedings in English.
24.114 On account of implementation of transfer policy of Judges of the High Courts, generally 2 rdJudges in a High Court are from outside the State concerned. The transferee Judges who are not familiar with local language of the State, face considerable difficulty in dealing with cases when the records are only in local language. The translation of all the records into English would be an enormous task besides the cost factors. Secondly, the High Courts are not generally well-equipped with adequate staff to get the records promptly translated into English, and even if it is done, it would cause delay in disposal of cases.
24.115 We, therefore, recommend that all High Courts should direct the lower Courts to record the Proceedings in English language and also in regional language in all cases where the judgment / decree is appealable or revisable by the High Courts.
24.116 We may also state that this procedure would facilitate the creation of All India Judicial Service.
24.117 The Commission sought the opinion with regard to submission of written arguments in Civil cases by framing the following question:
Q.No. 54: Section 314 of the Criminal Procedure Code provides for submitting written arguments supplementing the oral submission. But there is no similar provision in the Code of Civil Procedure. Is it not better to have similar provision for disposal of civil cases? If desired, please indicate the necessary amendments to the Code of Civil Procedure providing for written arguments.
24.118 There is consensus amongst all concerned that concise and brief written arguments in Civil cases would be helpful to judges and also would consume less time for oral submissions. It is also the consensus that a provision similar to Section 314 of the Code of Criminal Procedure could be incorporated in the Code of Civil Procedure.
24.119 We, therefore, recommend the inclusion of a section in the Civil Procedure Code similar to Section 314 of the Criminal Procedure Code.
24.120 Meanwhile, the High Courts may issue directions to the lower Courts permitting the judges to demand written submissions from the counsel with a list of cases to be relied upon at least a week before the date fixed for final arguments in all the cases.
FALSE AND FRIVOLOUS CASES :
24.121 It is common experience that Civil Courts are not free from false and frivolous cases and we have sought suggestions to prevent it. We have also asked the question:
Q.No. 55.1. Is the existing provision for taking action against those who give false evidence adequate? Is it deterrent enough? What are your suggestions in this regard?
24.122 The responses received, among others, is that the existing provisions are not adequate or deterrent enough to prevent such litigations coming to Courts.
24.123 Section 35A(2) of the CPC provides for imposing compensatory cost in respect of false or vexatious claims or defences. It states that no Court shall direct any party to pay an amount exceeding three thousand rupees or exceeding the limits of its pecuniary jurisdiction, whichever amount is less. This has been incorporated by the Amendment Act, 1976.
24.124 The High Court has got the power to limit the said amount of compensatory cost which any Court or class of Courts, is empowered to award.
24.125 Section 35A(3) of the CPC states that the compensatory cost awarded will not preclude the Court from taking any criminal proceedings against the party.
24.126 The responses received from the respondents indicate that the Courts generally do not initiate proceedings under Section 35A CPC for false or vexatious claims or defences.
24.127 It is also the general opinion that the witnesses who come before the Courts do not have any regard for truth. The Courts are reluctant to initiate proceedings against them under Sec.340 of the Criminal Procedure Code.
24.128 Indeed, initiating proceedings under
Sec.340 is cumbersome and time consuming. Even if the complaint is filed at the
instance of the
24.129 The Courts could take contempt
proceedings over gross perjury or for frivolous, false and fraudulent documents
as the same "interferes or tends to interfere with, the due course of any
judicial proceeding:" as provided under Sec. 2(c)(ii) of the Contempt of
Courts Act, 1971. (See: Chandra Shashi v. Anil Kumar Verma (1994) 7 JT (SC) 459
: 1994 AIR SCW 4994.) But this proceeding even if taken would be time consuming
24.130 In this context, we may also refer to Sec.344 of the Criminal Procedure Code. It empowers the Criminal Courts to take summary procedure for trial for giving false evidence.
"(1) If, at the time of delivery of any judgment or final order disposing of any judicial proceeding, a Court of Session or Magistrate of the first class expresses an opinion to the effect that any witness appearing in such proceeding had knowingly or wilfully given false evidence or had fabricated false evidence with the intention that such evidence should be used in such proceeding, it or he may, if satisfied that it is necessary and expedient in the interest of justice that the witness should be tried summarily for giving or fabricating, as the case may be, false evidence, take cognizance of the offence and may, after giving the offender a reasonable opportunity of showing cause why he should not be punished for such offence, try such offender summarily and sentence him to imprisonment for a term which may extend to three months, or to fine which may extend to five hundred rupees, or with both."
24.131 We recommend that a similar provision be introduced in the Civil Procedure Code.
24.132 We may also refer to Order XVI Rule 12 of the Civil Procedure Code which authorises the Courts to impose fine on witnesses not appearing before it, if for reasonable cause, despite being served. We suggest that a similar, but stringent provision could be included in the Civil Procedure Code empowering the Courts to take action against the person or witness for giving false evidence or producing false documents.
24.133 We further recommend that Section 35A(2) should be suitably amended empowering the Courts to impose compensatory or special cost of not less than Ten Thousand Rupees and not more than Twenty five Thousand Rupees.
COURT WORKING HOURS / HOLIDAYS / VACATIONS
24.134 With regard to Court working hours, we
have circulated the following question for opinions and comments:
What are the Court timings in your State? International Labour Organisation has
fixed 40 hours of work per week as the International work norm. How many hours
per week do the Courts work? How many working days are lost in a year by strike
or boycott of Courts? Are such loss of working days made good by compensatory
24.135 The information received from the
respective High Courts, the State Governments / Officers’ Associations and
individuals are summarised hereunder:
ANDHRA PRADESH :
24.136 The Subordinate Courts in Andhra Pradesh sit from 10.30 A.M. to 5.00 P.M. with lunch break between 2.00 P.M. and 2.30 P.M.
24.137 The Courts work for 30 hours in a week.
24.138 Saturday is a non-Court working day, but the office works.
24.139 The Court timings are from 10.00 A.M. to 5.00 P.M. with half an hour lunch break.
24.140 38 working hours in a week.
24.141 In April to June, the Subordinate
24.142 30 hours per week during summer except in the second week wherein the Courts work for 25 hours due to second Saturday being a holiday.
24.143 During the remaining months, the Courts work for 36 hours per week except the second week wherein the Courts work for 30 hours.
24.144 Court timings of Subordinate Courts are
from 10.00 A.M. to 4.00 P.M. with half an hour break between 1.30 P.M. and 2.00
24.145 The Courts work 33 hours in a week.
24.146 10.30 A.M. to 1.00 P.M. and 2.30
P.M. to 5.00 P.M.
24.147 The Courts work 30 hours per week.
24.149 The office hours of Civil and Criminal
24.150 The working hours of the Civil and
Criminal Courts are from 11.30 A.M. to 2.30 P.M. and from 3.30 P.M. to 5.30 P.M.
24.151 All Second and Fourth Saturdays are
HIMACHAL PRADESH :
24.152 The Courts work from 10.00 A.M. to 4.00 P.M. with half an hour lunch break from 1.00 P.M. to 1.30 P.M. However, the office works from 9.45 A.M. to 4.45 P.M.
24.153 Working hours of Courts are 33 hours per week, except in the second week wherein the working days are reduced to 271 hrs.
JAMMU & KASHMIR :
24.154 10.00 A.M. to 4.30 P.M. except during summer in Jammu Region where the Courts work from 8.00 A.M. to 1.30 P.M. with half an hour break.
24.155 On an average, 30 hours per week.
24.156 The working hours for District Judiciary are between 10.30 A.M. and 5.30 P.M. six days a week.
24.157 The Court sitting hours are from 11.00 A.M. to 2.00 P.M. and 3.00 P.M. to 5.00 P.M. with lunch break between 2.00 P.M. and 3.00 P.M.
24.158 30 hours per week.
24.159 11.00 a.m. to 5.00 p.m. Six days per week, except second Saturday.
24.160 10.30 A.M. to 5.00 P.M. six days a week.
MADHYA PRADESH :
24.161 The working hours of Subordinate Courts are from 11.00 A.M. to 5.00 P.M. with a break of half an hour.
24.162 The office working hours in all the Districts in Subordinate Courts are from 10.30 A.M. to 5.30 P.M. with half an hour recess.
24.163 The Court timings in Small Cause
24.164 In other Districts of Maharashtra, the Court timings are from 11.30 A.M. to 2.30 P.M. and 3.30 P.M. to 5.30 P.M.
JUDGES OF THE CITY CIVIL & SESSIONS COURT, MUMBAI :
24.165 11.00 A.M. to 4.45 P.M. with 45 minutes break.
24.167 The Court working hours in Meghalaya are from 10.00 A.M. to 4.30 P.M.
24.168 The Subordinate Courts follow the
timings of Government offices, i.e. from 9.00 A.M. to 3.30 P.M. in winter and
from 9.30 A.M. to 4.00 P.M. in summer for 6 days in a week, second and fourth
Saturdays being holidays.
24.169 The Court timings in the State
PUNJAB & HARYANA :
24.170 The working hours of Courts are from 10.00 A.M. to 4.00 P.M. with half an hour lunch break.
24.171 In Haryana, during summer, i.e. from 1st May to 31st July, the timings are from 7.30 A.M. to 1.30 P.M.
24.172 It is suggested that the Court hours throughout the country be fixed from 9.30 A.M. to 4.30 P.M. or from 9.00 A.M. to 5.00 P.M. to meet the requirement of 40 hours of work.
24.173 From 10.00 A.M. to 5.00 P.M. with lunch break from 1.30 P.M. to 2.00 P.M.
24.174 During summer, i.e. from 3rd week of April to the end of June, the Courts work from 7.00 A.M. to 12.30 P.M. with lunch break from 9.45 A.M. to 10.00 A.M.
24.175 10.00 A.M. to 4.00 P.M. with second
Saturday as holiday.
TAMIL NADU :
24.176 The Court timings are from 10.30 A.M. to 1.30 P.M. and 2.00 P.M. to 5.45 P.M.
24.177 The Court hours per week are 321 hours.
UTTAR PRADESH :
24.178 The Subordinate Courts work from 10.30
A.M. to 4.00 P.M. with half an hour lunch break at 1.30 P.M.
24.179 The working hours of the Subordinate Courts are from 10.00 A.M. to 5.00 P.M. and the Court sitting hours are from 10.30 A.M. to 4.30 P.M. The Courts remain closed on second and fourth Saturdays in every month.
24.180 The weekly working hours vary from 331 hours to 39 hours in the alternative weeks.
Sri P.P. Rao, Sr. Advocate, Supreme Court :
24.181 The working hours could be from 10.00 A.M. to 5.00 P.M. with a lunch break of 45 minutes in a 5 day week.
24.182 From the aforesaid analysis, it will be seen that there is a confusion as to the Court timings and Court hours of work. It may, however, be stated that working hours of the Courts, (we mean by Judges sitting in the Courts) would be 30 to 33 hours in a week in almost all the States.
24.183 In some States, one Saturday in a month is a non-working day, while in some other States, two Saturdays are closed days for Courts.
24.184 We may state that Punjab & Haryana High Court is the only High Court which has recommended for increasing Court hours for judicial work. They have suggested that throughout the country, in all Subordinate Courts, Court working hours be fixed from 9.30 A.M. to 4.30 P.M. or from 9.00 A.M. to 5.00 P.M. We really appreciate this suggestion.
24.185 We are, however, conscious of the fact that there is qualitative difference in physical work and mental work. The mental work carried on in the open Court is more strenuous and taxing than performing the physical work. Besides, Judicial Officers do work before and after Court hours in the chambers and in their home office. We are, therefore, not inclined to recommend 40 hours of work for them to meet the international work norms. We, however recommend that in all States there shall be a minimum 36 hours of judicial work per week.
24.186 We are recommending considerable improvements in the emoluments of Judicial Officers. We expect them to do more work voluntarily in the interest of the litigant public.
24.187 We also suggest that only second Saturday be declared as non-working day for Judicial Officers.
24.188 We are not in favour of working only for 5 days a week. It should be six days in a week. We accordingly recommend.
24.189 So far as the timings are concerned, it is not advisable to fix uniform timings for all Courts in all States. The climatic conditions differ from State to State. We leave this matter to the respective High Courts to determine the time schedule for working hours for Judicial officers and office timings for the non-judicial staff, with a reasonable lunch break, but bearing in mind the above requirements of 36 hours in Courts for Judicial officers to work.
24.190 In this context, it needs to be
mentioned that we have received a lot of complaints about Judicial officers that
they are not punctual on their seats. It is said that some of them come late to
the Courts and rise early too. It is also said that Judicial officers retire to
their Chambers during the Court hours, if Bar members are absent in Courts.
24.191 We deprecate this tendency. We expect
the Judicial Officers to be punctual. We may state that the Judicial Officers
should not retire to their Chambers merely because Advocates are not present in
Courts when the cases are called. The shop-owner cannot close his shop because
the customers are not present. He has to keep the shop open whether there is
customer or not. Likewise, the Judges should not retire to their Chambers if
Advocates are not available. They should go on with the case papers and
demonstrate more seriousness in their responsibilities. Then advocates would
rush to the Courts.
24.192 We expect the Judicial Officers to
religiously follow these basic traits of self-discipline.
24.193 We do not think that in any other country there are as many declared holidays in a year as in our country. This is in spite of the Central Pay Commission recommending that there should be reduction in the Government holidays. It will be useful to refer to the recommendation of 5th CPC. It has stated thus (Volume-III, p.1706 & 1707):
"Holidays other than the three national holidays are largely based on religious considerations and serve merely to satisfy the sentiments of different constituencies. Mere political expediency also dictates the closure of government offices on certain occasions. We have been informed that though government had considered a reduction in the number of holidays, the relevant proposals could not be given effect to in the absence of a consensus on the question of apportionment of the reduced number of holidays among different religious communities and groups.
We are of the considered view that efficiency and productivity would be considerably enhanced by curtailing holidays that are declared on various pretexts. In order to promote a sense of true secularism, religious festivals should rightly be treated as personal to individual employees and it should not be necessary to close government offices on such occasions. Apart from the revival of the six-day week recommended by us, which will result in an addition of 52 working days, it should suffice if Central Government offices are closed only on the three national holidays (Republic Day, Independence Day and Mahatma Gandhi’s Birthday). Simultaneously, individual employees could be permitted to avail of a larger number (say, about 16) of restricted holidays annually to enable the celebration of festivals and other occasions of specific significance and interest to them, the list of restricted holidays being suitably enlarged for the purpose.
Religious festivals and secular considerations apart, there is also an increasing tendency to declare holidays on the demise of political personages and leaders, past and present, the appropriateness of which has been a subject of intense debate in the recent past. We realise that this is a sensitive issue, which is often influenced by extraneous pressures and exigencies. It has nevertheless to be recognized that the closure not only of government offices, but of banks, commercial establishments, educational institutions, etc. on such occasions severely hinders productive activities, disrupts trade and commerce, and causes untold suffering to those whose very existence depends on their daily earnings.
In other countries of the world, homage to deceased dignitaries is paid not by closure of establishments and suspension of work but merely by flying the national flags at half mast, observing silence in memory of the departed and state mourning for a specified period. Even the instructions of the Ministry of Home Affairs on the observance of state mourning envisage only the flying of the national flag at half-mast and cessation of all official functions and entertainment during the mourning period. Having regard to the adverse implications of closure of offices due to the demise of leaders and political personages, the imperative need to develop a more committed work ethos and culture and to the fact that there are other respectful and dignified methods of paying homage, we are of the firm view that except President or Prime Minister in harness, no holidays should be declared on the demise of any other leader or dignitary."
24.194 It will be equally useful to refer to the significant suggestion made by the All India Judges’ Association. It has suggested thus :
"The holiday pattern of the District level judicial courts should be totally insulated from the general holidays spree of the State Governments who often suddenly declare un-anticipated non-working days through notification under the Negotiable Instruments Act causing whole-sale disruption of court work, for no justification at all. There should be a total ban on sudden closure of courts on the death of political or national personalities or on account of religious occasions."
24.195 It seems to us that the recommendations of the 5th CPC are extremely useful even for considering the working of Courts. We may also state that the suggestions of the All India Judges’ Association are pragmatic and should be accepted.
OUR RECOMMENDATIONS :
24.196 We deprecate the sudden declaration of a holiday for Courts merely because the holiday has been declared by the Government. The sudden closing of Courts causes enormous difficulties to the litigants and witnesses whose cases are listed for that day. We, therefore, recommend that High Courts should not fall in line with the Governments in the matter of suddenly declaring any day as a holiday for Courts.
24.197 We further recommend that the High Courts may request the State Governments not to include "Courts" in the notification of declaring holidays under the Negotiable Instruments Act.
24.198 We also recommend that the number of declared holidays for Courts should not exceed 12 in a year. We request the High Courts to determine such holidays having regard to local customs and traditions.
24.199 The All
1. There shall be
"Judicial Emergency" or an "extra-ordinary" situation
requiring 'extra-ordinary' remedial measures to tackle the pendency of cases. It
is suggested that there should be judicial emergency for a period of 5 years and
there shall be 50% moratorium on vacations and holidays on a voluntary basis.
2. It is necessary
to provide the holiday pattern of the District level Courts to be totally
insulated from the general holidays spree of the State Governments.
3. The 6 day week
should continue but Saturday should be treated as "judgments day". In
other words, no substantial court work should be fixed on Saturdays, and
instead, the Judges should exclusively devote it to dictation of Judgments or
miscellaneous orders or pronouncement of verdicts or perusal of files for final
arguments. The idea underlying this methodology is to permit full relaxation to
the Judicial Officers on Sundays.
OUR RECOMMENDATION :
24.200 Some have suggested that there shall be more Courts to clear the backlog of cases. Some have suggested that we must adopt double shift system with the same infra-structure. Yet others have suggested that the vacation to Courts should be curtailed.
24.201 We have examined the practicability of
adopting double shift Courts. Bar Members may not relish this idea. In
Metropolitan Cities like Mumbai,
24.202 Apart from that, it is not possible to secure Bar Members who could work in the shift system.
24.203 Additional Courts would be a good idea. But, there are no infrastructure, much less, the adequate manpower. It may take its own time for establishing the required additional Courts.
24.204 We are cognisant that the Judicial Officers need some time for attending their family affairs by way of a vacation. They need some rest too. But what is forefront in our minds is the enormous pendency of cases in all Courts.
24.205 We are of the opinion that by increasing the hours of work in Court and increasing the number of working days, and at the same time, reducing the vacation, we would be able to reduce the arrears to some extent.
24.206 We have elsewhere recommended that the Court hours of work should be increased to 36 hours per week with six days working.
24.207 Keeping in view the necessity of reducing the docket explosion and balancing the absolute need to give some respite to Judicial Officers, we recommend:
"That till such period the arrears are brought down to manageable limits, the Court vacation period should be cut down by 15 days in a year."
24.208 We leave this matter for the High Courts to work out appropriately by curtailing the existing vacation.
PENDENCY IN COURTS
24.209 We have got too much of pendency with
backlog of cases in each State. We do not have the enough manpower and the Judge
strength to tackle the same.
24.210 By way of illustration, we may
hereunder set out the pendency of cases and Judge strength in some of the major
States during the period 1985 to 1995 including the Judge strength as on 1999.
ANDHRA PRADESH :
24.211 In Andhra Pradesh, as on 30.6.1985,
there were 5,321 Sessions Cases, 4,44,104 suits and other proceedings in the
District Courts and Courts subordinate thereto and 1,22,560 cases in the
Magistrates Courts. In all, there were 5,71,985 cases pending. This pendency has
increased as on 31-12-1995 to 28,438 Sessions cases, 8,01,079 original suits and
other proceedings in the District Courts and Courts subordinate thereto and
2,47,281 criminal cases in the Magistrates Courts, altogether it comes to
10,76,798. The percentage of increase in pendency of cases from 1985 to 1995 was
24.212 The sanctioned Judge strength as on
1985 was only 608 and that has been increased to 680 as on 1995. During that
period, the percentage of increase of the sanctioned Judge strength was 11.84.
As on 1999, the Judge strength is 672.
24.214 The sanctioned strength of Judges as on 1985 was 192. In 1995, there were 200 Judges. Thus, there was increase in Judge strength from 1985 to 1995 at 4.17%.
24.215 The Judge strength as on 1999 is 221.
24.217 The sanctioned Judge strength as on
1985 was 1,276 and as on 1995 it was 1,537. The Judge strength increased during
the period of 10 years by 20.45%.
24.218 The Judge strength as on 1999 is 1648.
24.220 In 1985, the sanctioned Judge strength
was 479 and the strength was increased to 599 in 1995. The increase in the Judge
strength during the said period was 25.05%.
24.221 The Judge strength as on 1999 is 640.
24.222 In Haryana, as on 30-6-1985, there were
2,247 cases pending in the Sessions Courts, 1,04,341 cases pending in
Magistrates’ Courts and 86,979 civil cases pending in the District Courts and
other Courts. Thus, in all, there were 1,93,567 cases pending. This pendency has
increased in 1995 to 9,142 in Sessions Courts, 1,81,446 in Magistrates Courts
and 2,10,077 civil cases in District Courts and other Courts. The total pendency
was 4,00,665 cases. Thus, the percentage of increase in pendency of cases from
1985 to 1995 was 106.99.
24.223 The Judge strength during 1985 was 174
and it increased to 221 in 1995. Thus, the percentage of increase in sanctioned
Judge strength was only 27.01. The Judge strength as on 1999 is 266.
24.224 In Karnataka, there were 5,628 Sessions
cases, 3,36,933 criminal cases and 5,92,663 civil cases pending in various
Courts as on 30.6.1985. In all, 9,35,224 cases were pending. In 1995, there were
25,489 Sessions cases, 5,91,958 criminal cases and 6,15,379 civil cases pending
in those Courts, totalling to 12,32,826. The increase during the said period of
10 years was 31.82%.
24.225 The sanctioned Judge strength was 439
in 1985 and 557 in 1995. During the said period of 10 years, the Judge strength
was increased by 26.88%.
24.226 As on 1999, the Judge strength is 632.
MADHYA PRADESH :
24.227 In Madhya Pradesh, there were 19,570 cases pending in Sessions Courts, 6,65,733 cases pending in the Magistrates' Courts and 2,26.508 civil cases pending in the District Courts and other subordinate Courts as on 30.6.1985. In all, there were 9,11,811 cases pending in various Courts. In 1995, the pendency of cases increased to 65,371 Sessions cases, 11,20,675 criminal cases and 4,34,966 civil cases, totalling to 16,21,012. The percentage of increase in pendency of cases during 1985 to 1995 was 77.78.
24.228 In 1985, the Judge strength was 759 and in 1995, it was increased to 944. The Judge strength increased during the said period of 10 years by 24.37%.
24.229 The Judge strength as on 1999 is 988.
24.230 In Maharashtra, there were 20,177 cases
pending in Sessions Courts, 12,42,462 cases pending in Magistrates Courts and
5,89,543 civil cases pending in District Courts and Courts subordinate thereto,
as on 30.6.1985. Thus in all, there were 18,52,182 cases pending. In 1995, there
were 80,008 cases in Sessions Courts, 29,02,196 cases in Magistrates Courts and
9,23,850 civil cases in District Courts and Courts subordinate thereto. In all,
39,06,054 cases were pending. The increase in pendency of cases during the said
period of 10 years was 110.89%.
24.231 In 1985, the Judge strength was 918 and
it was increased to 1,226 in 1995. During the said period of 10 years, the Judge
strength increased by 33.55%
24.232 The Judge strength as on 1999 is 1,250.
24.233 In Punjab, as on 30.6.1985, there were 4,176 cases pending in Sessions Courts, 96,712 cases pending in Magistrates Courts and 1,01,958 civil cases pending in District Courts and other subordinate Courts. Thus in all, there were 2,02,846 cases pending in various Courts. In 1995, the pendency was 14,669 in Sessions Courts, 94,562 in Magistrates Courts and 2,16,240 civil cases in District Courts and Courts subordinate thereto, totalling to 3,25,471 cases. The percentage of increase in pendency of cases during the said period of 10 years was 60.45.
24.234 The sanctioned Judge strength was 186 in 1985 and 273 in 1995. The percentage of increase of Judge strength during the said period was 46.77.
24.235 As on 1999, the Judge strength is 301.
TAMIL NADU :
24.236 In Tamil Nadu, as on 30.6.1985, there were 6,082 Sessions cases, 2,75,594 Criminal cases and 4,42,711 civil cases. Thus, there were 7,24,387 cases pending in various Courts. In 1995, the pendency was 12,868 cases in Sessions Courts, 2,61,027 cases in Magistrates Courts and 4,72,414 civil cases in District Courts, totalling to 7,46,309 cases. The pendency of cases rose by 3.03% during the said period of 10 years.
24.237 The sanctioned strength of Judge was 271 in 1985 and 636 in 1995. The Judge strength during the said period of 10 years was increased by 134.69%.
24.238 The Judge strength as on 1999 is 602.
UTTAR PRADESH :
24.239 In Uttar Pradesh, as on 30.6.1985,
there were 62,449 cases pending in Sessions Courts, 8,46,577 cases pending in
Magistrates Courts and 3,97,202 civil cases pending in District Courts. Thus, in
all, there were 13,06,228 cases pending in various Courts. In 1995, there were
1,88,402 cases pending in Sessions Courts, 20,48,102 cases pending in
Magistrates Courts and 8,80,362 civil cases pending in District Courts and
Courts subordinate thereto. In all, there were 31,16,866 cases. The percentage
of increase in pendency of cases was 138.62 during the said period of 10 years.
24.240 The Judge strength was 1,391 in 1985
and 1,574 in 1995. The percentage of increase of Judge strength was only 13.16%
during the said period of 10 years.
24.241 The Judge strength as on 1999 is 2,239.
24.243 The sanctioned strength of Judges was
167 in 1985 and 304 in 1995. The percentage of increase of Judge strength during
the said period of 10 years was 82.04.
24.244 The Judge strength as on 1999 is 419.
24.245 Following are the charts depicting the
"pendency of cases in subordinate Courts" and the "Judge
strength" in all States / UTs as obtained by the Ministry of Law and
Justice, Government of India.
4.246 Increase in the number of Judges has not
kept pace with increase in the number of cases as evident from the above table.
During the period 1985 and 1995, the overall Judge strength increased by about
15.4% as against the increase in the pendency of cases by about 62.1%.
* * * * *