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| M J Antony: Tyranny of procedure |
| M J Antony / New Delhi Sep 30, 2009, 00:05 IST |
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A lawsuit should be a continuous, seamless process from the stage of filing to getting relief.
While almost all central ministries rolled out their 100-day records recently, the law ministry conspicuously drew a blank. Except stray statements from the minister, there was no dream of reforms. In this deep background, it is informative to read what the Supreme Court has to say about procedural roadblocks before ordinary litigants.
It is often the procedure which oppresses the litigants more than the substantive law. The Civil Procedure Code has been amended more than 300 times since 1908 but it still remains an ill-lit maze through which only the legal profession can find its way out and to the bank.
In recent weeks, the Supreme Court called for simplification of civil procedures in two judgments. In Takkaseela vs Pujari, a decree was passed in 1949 but its execution is still not over and the winning party is yet to enjoy the benefit of the decree. In Shub Karan Bubna vs Sita Saran, a partition suit filed in 1960 was caught in complex procedures till the agony was hopefully ended last month. The Supreme Court used these instances to urge the Law Commission and the lawmakers to amend the code so that litigants get relief in their lifetime.
The century-old code makes the winning of a case almost illusory. The successful party has to climb a number of steps to reach its goal. The code contemplates numerous stages: Judgments, decrees, preliminary decrees, final decrees and execution of decrees. There is a pause between each stage. This break is meant to enable the party who lost the case to comply with the ‘preliminary’ decree. But it is not in human nature to easily comply with a decree to pay. So the decree holder has to take further steps, like an application for final decree or execution decree.
Now a litigant who thought he had won a money decree will find that his victory was only on paper. The court explains his mind at this juncture: “What he wants is relief. If it is a suit for money, he wants the money. If it is a suit for property, he wants the property. He naturally wonders why when he files a suit for recovery of money, he should first engage a lawyer and obtain a decree and then engage a lawyer and execute the decree. Similarly, when he files for partition, he wonders why he has to first secure a preliminary decree, then file an application and obtain a final decree and then file an execution to get the actual relief. The common sense query is: Why not a continuous process?”
The focus in most courts is on disposing of cases, and not what happens after that. Even among lawyers, importance is given only to securing the order, not securing the ultimate relief. The lawyers put aside the brief once the decree is obtained, and then leave their juniors or clerks to conduct the execution proceedings. In fact these proceedings may take longer than obtaining the main decree. The litigant is exhausted of his money and patience by then.
For these reasons, the present system is outmoded and unsuited for present requirements, the Supreme Court remarked. A suit should be a continuous, seamless process from the stage of filing of suit to the stage of getting relief. There should be a conceptual change to enable a party not only to get a decree quickly but also to get the actual relief quickly. This requires amendments to the code. In the present case, the Supreme Court asked the courts below to “expedite the final decree proceedings.” This would mean a few more years.
In some recent cases, the court has ended the long-winded execution proceedings exercising its extraordinary powers. The motor accident claims tribunals had asked the insurance companies to pay the victims first and then recover the amounts from the erring owner and driver. However, the latter insisted on execution proceedings. The insurance companies approached the Supreme Court contending that they should be spared of the execution proceedings. In National Insurance Company vs Baljit Kaur and in Oriental Insurance Company vs Shri Nanjappa, the court declared that “for purposes of recovery, it would not be necessary for the insurer to file a separate suit”.
Thus the courts are aware of the plight of the litigants, but the lawmakers have not looked into this aspect. They are too busy minting new laws. They should hear the court’s words expressed in Shreenath vs Rajesh a decade ago: “The seekers of justice many a time have to take long, circuitous routes, both on account of the hierarchy of courts and the procedural law. Such persons are and can be dragged till the last ladder of the hierarchy for receiving justice but even here he only breaths nearness of receiving the fruits of that justice which he has been aspiring to receive.”
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