10 OLDEST CIVIL CASES SORDID TALES OF ADJOURNMENTS, CASE & LITIGATION MISMANAGEMENT

By Bharat Chugh (Judge- Delhi)

S.No. Case Name & Particulars

1. Ram Swaroop Verma vs X - (RC-ARC-XX/09/XX) 2. X vs Vice Chairman DDA – (S-85/XX/08)

3. X vs XP Rastogi -

4. M/s Manufacturers Co-operative vs MCD etc (S-xx/13/00)

5. X @Y(Suit No. MM 1/08/XX)

6. Virender Gupta vs Sagheer Ali (Suit No. 8/XX/05)

7. Kehar Verma vs RL. Updhyaya (Suit No. RC/ARC-XX/08)

8. Manoj Kumar vs DDA (Suit No. S-XX/13/05)

9. Sh.Vikas Pahwa vs Paramjeet Kaur (RC/ARC-04/08/06)

10. Sumeet Singh vs Vice Chairman DDA (S-XX/13/08)

LIST OF CASES ANALYZED Total Pendency of the Court: 1064 cases as on 19/07/2013

CASE NO.1

M/S ALUMINIUM COOPERATIVE

VERSUS

MCD ETC

(SUIT NO : S-38/XXX/2000)

• A Simple Suit for Declaration and Injunction • Instituted in the year 2000 against MCD & DDA. • 13 years later the matter is still at the stage of evidence – even

the examination in chief not done yet. • SERVICE - Service was completed promptly in about 1 ½ months

of filing. • COMPLETION OF PLEADINGS : Took more than 2 years – MCD/

DDA sought and got unwarranted adjournments, no costs were imposed.

ABOUT THE CASE :-

• After completion of the pleadings – pleadings practically nothing was done in the case for more than 2 years (15 dates) (from 7.1.2003 to 5.4.2005) except talks for a possible settlement. 2003 to 2005 – talks of settlement

• Matter fixed time and again for appearance of officials from MCD/DDA – none appeared for one year – tendered affidavit of apology. Court took it on record and proceeded with the matter.

• Since settlement had failed – issues should have been framed forthwith however the court kept adjourning the matter for submissions on Or.39 1 & 2 wasting 5 years (2005 to 2010) in the process. Application ultimately dismissed in default. 2005-2010 – Application for ad interim injunction.

• Issues came to be framed in 2010. and till date since then plaintiff has not led his evidence.

• Apparently having a case weak on merits – he has now filed a review seeking setting aside of dismissal in default of O.39 R 1 & 2 and an application under order 12 Rule 6 – both pending.

• 2010-2013 - Review of order of dismissal in default + Or.12 Rule 6

• What went amiss :- • A big hiatus between stages which has no statutory

sanction. • Non imposition of costs – no deterrence. • Granting adjournments at the drop of a hat. • Plaintiff clearly not interested in pursuing the matter –

should have been dismissed in default much earlier. • Misuse of Mediation/Settlement to prolong and protract

the matter from the side of government bodies.

CASE NO.2

MR.CL. FARRUKHVERSUS

PP JAIN

(SUIT NO.XXX/08/04)

BRIEF ANALYSIS :• Instituted in 2004 – a simple eviction suit on ground of non

payment of rent.

• Service : Completed in time.

• Pleadings : WS filed on time – the matter kept pending for about 7 months for filing of replication !!!

• Evidence of just two witnesses took 5 years 6 months – about 25 date of hearings ! The reasons/excuses in the order - of how frequently they recurred :-

• Affidavit in chief – READY – but not signed/attested !

• Party not well.

• Witness not available/ill.

• Bifurcation of districts (unavoidable).

• Ld.PO on leave.

• Non availability of steno.

• A simple suit for eviction on ground of non payment of rent not decided for 10 years.

• Misc. Applications continue to be the biggest bottleneck in our system. After 14(i)(a) is entertained normally orders are passed for periodical payment of rent ad litem – (S.15 DRC) seldom complied with leading to misc. applications u/s 151 for release of rent – on which a reply is sought ! Landlord claims no payment – Tenant states payment not accepted – files Money order receipts/Section 27 Court deposits – Now do we take evidence ? If simple eviction matters are disposed off within a specific period of time – we won’t face these situations.

• Rent matters also fraught with other applications for disconnection/apprehended disconnection/restoration of electricity/water amenities.

TIME TAKEN AT RESPECTIVE STAGES IN THIS CASE

Litigation Clock

The problems with other eight cases analyzed remain largely the same….

From an analysis of the 10 oldest civil cases, the following causes of delay can be culled out :- 1. Adjournments. These may be broadly classified

into : A. Client’s personal problem. B. Other excuses.

2. Other delay tactics – • Relating to service of process. • Belated Amendment of pleadings/issues/recalling of

witnesses. • Other Misc. non conformance to court’s directions

within time limits.

WHAT CAN BE DONE ?

1. Specific Orders Always write specific orders, the specific purpose for which the matter is fixed. Avoid fixing the matter for FP (Further Proceedings) it is VAGUE !

2. Supply of Documents/copy of pleadings : Insist on filing of pleadings/documents before the stipulated date of hearing, with advance copy to the opposite side against a receipt.

3. THREE RULES OF COST – Actual/Realistic & Progressive. Try and bifurcate or even trifurcate costs between Litigant/Court/Legal Aid.

4. REALISTIC CAUSE LISTS – a good mix may be 20 Misc – 5 for evidence – 3 Misc. Arguments – 2 Final Arguments.

5. LIBERAL USE OF DASTI - for faster service of process. 6. MORE PRO-ACTIVE USE OF ORDER 10 RULE 2 & ORDER 15

7. AVOID ADVERSE ORDERS ON THE FIRST CALL – keep the matter awaited twice or thrice before proceedings ex-parte/dismissal in default.

8. PROBLEMS RELATING TO SERVICE : In many a cases – Process issued long back but no report on file. A major overhaul of how process servers work needs to be done. One should order service by way of PF/RC/Speed Post as well as authorised courier.

9. PAGINATION - There needs to be a uniformity in how court file & advocate’s files are paginated ! Eg : if plaint ends on the 30th page – WS should ideally begin with 31st. Would save a lot of time especially when hearing arguments.

10. I had got only the summons – and not the documents so couldn’t reply ? Don’t buy this excuse readily – Issue standing orders not to accept PF without all docs/pleadings.

11. DATE OF HEARING AS PER COUNSEL’S CONVINIENCE For purposes such as examination of witness/final arguments – it would be a good idea to ask for a date convenient to both the Ld. Counsels, so that everyone comes on the next date and no adjournment is sought.

12. INSISTING ON A SYNOPSIS BEFORE ARGUMENTS - If the matter is listed for arguments – insist on advance filing of a two page note/synopsis. Helps pass better orders – Reading the file the day before and having the synopsis would allow the judge to ask the right questions and avoid protracted oral submissions.

13. ON ALLOWING DOCUMENTS BELATEDLY ! There is no gainsaying that one has to be liberal while allowing documents to be brought on record at later stages – however only when it is made out that earlier could not be adduced at O.7 R 14/O.8 R 1A or O.13 stages. This would prevent the other party being taken by surprise and then taking an adjournment for cross examination.

14. MISC. APPLICATIONS – How to deal with them ? If possible dispose on first hearing and without reply ! – Insist on advance copy – filing of proof of service.

15. ADMISSION AND DENIALS - Ensure Admission/Denial is actually carried out. Huge time saver !

16. DON’T LET MEDIATION BE MISUSED. If parties don’t appear genuine. Try for settlement in the court only.

17.AMENDMENT APPLICATION – always allow/disallow in light of proviso to O.6 R 17. If allowed – impose realistic costs.

18. ENSURE YOUR ORDERS/CAUSE LISTS ARE UPLOADED ON THE INTERNET IN TIME.

GIVE BLOCK DATES FOR RECORDING OF EVIDENCE SO THAT LENGTHY EVIDENCE CAN BE DONE DURING THOSE DAYS. ALSO PERMITS A MORE COMPREHENSIVE VIEW OF THE CASE, INSTEAD OF A PIECEMEAL ONE.

20. CUT SHORT PROTRACTED/UNDULY LONG CROSS EXAMINATION.

21. INJUNCTION APPLICATIONS - Always try disposing injunction cases on the basis of undertaking – wherever possible.

22. ON ADJOURNMENTS – Let the provisions of Order 17 R1(2)(Proviso) guide you. Insist on Affidavits in case of unwarranted adjournments. We have the power to order inquiry in necessary cases.

23. ENDEAVOUR SHOULD BE WITNESS PRESENT SHOULD NEVER GO UN-EXAMINED.

25. IN PROPERTY MATTERS INSIST ON FILING OF PROPERTY PHOTOGRAPHS/SITE PLAN.

26 .DON’T STALL PROCEEDINGS FOR REPLICATION & REJOINDERS/REPLIES TO APPLICATIONS OF FORMAL NATURE. (Replication/Rejoinder has no sanction of law – not a matter of right for party to file it – and in most cases serves no purpose as WS is denied – it is required only in peculiar situations).

27. IN CASES OF PUBLIC UNDERTAKINGS/GOVERNMENT BODIES - We can impose punitive and progressive costs and charge it on the Salary of the erring official to check lackadaisical approach with respect to government litigation.

28. PREVENT MISUSE OF MEDIATION - Mediation should be conducted between the dates with specific directions to proceed with the suit/specific purpose to the court in case mediation doesn’t succeed

Delay in disposal threatens justice, the lapse of time blurs truth, weakens memory of witnesses and makes presentation of evidence difficult. This leads to loss of public confidence in the judicial process which in itself is a threat to Rule of Law…

The survival of rule of law rides on us…

THANK YOU