Civil Courts – delay: Many complain that there is so much delay before traditional Civil Courts and I do strongly feel that the possible delay before the Civil Courts and the presumptions makes a person to compromise with his rights too even. It is presumed that the enormous work load before the Civil Courts and the complicated procedures and especially the procedure prescribed under Civil Procedure Code, 1908 is the root cause for the delay. Though it is some extent true, it is not fully correct. Everybody is aware of the Alternative Dispute Resolution Mechanism (ADR) and especially about the Arbitration Mechanism. Arbitrator is a person got appointed by the parties to the dispute pursuant to an agreement or clause in the agreement to decide their disputes. In case if there is no agreement between or among the parties to the Arbitration Agreement or the Agreement which contains an Arbitration Clause, then, the Court is empowered to appoint an Arbitrator under section 11 of the Arbitration and Conciliation Act, 1996. If a dispute is referred to an Arbitrator, he devotes substantial amount of time to decide the dispute and he need not follow the procedure prescribed under the Civil Procedure Code though is guided by the principles of natural justice. There is no appeal provided under the Arbitration and Conciliation Act, 1996. Given the relaxation in the procedure to be followed and the amount of time an Arbitrator can devote on a dispute, the dispute before an Arbitrator is supposed to be disposed of very soon or even within days unless there exist complicated facts and law. But, it is not happening and we have seen many Arbitration Cases where a dispute before an Arbitrator is prolonged for years and very similar to the delay before the traditional Civil Courts. As such, it is not totally true that the work load before the Civil Courts and the procedure to be followed under the Civil Procedure Code, 1908 is the main cause for the delay before the traditional Civil Courts. There are some other reasons too.
Public perception: But, we can not remain silent without alleging something at the system. The standards are getting degraded in legal profession and as such we may have to see sub-standard judges and advocates and it tend to be there in every profession. But, the standards in the legal profession and its consequences are clearly evident to the general public. I have heard many litigants who express their dismay at the manner in which a case has been dealt with by the Court and I was not in a position to answer the litigant many times when they pose a logical and reasonable question.
Ways adopted to prolong a civil dispute before a Civil Court: There are certain ways to delay a Civil Case before the traditional Civil Court. If one chooses to drag a civil case before the Traditional Civil Court, then, he keeps filing interim applications knowingfully that those are not maintainable. When an interim application is filed in a suit, then, the Court orders notice to the opposite party. The notice is to be served and the opposite party will take time naturally to file his counter in the matter. Then, there will be arguments in the Interim Application and a judgment finally. An appeal can be preferred against the order in the Interim Application if the order is apeallable and when the interim order is not appeallable, then, a Civil Revision Petition is filed either before the Competent Appellate Court or before the High Court under Article 227 of the Constitution of India. If the Appellate Court grants stay of the further proceedings of the suit pending disposal of the Appeal against the interim order, then, it consumes some time. Likewise, if one chooses to drag a civil suit before the Civil Court, then, it will go for years.
I have only given a simple example as to how a civil case can be prolonged before the Traditional Civil Courts. Even the courts are handicapped at times though they think for the speedy disposal of the matter. In many cases, discretion is given to the Court with the wording ‘may’ and an application seeking an interim order can be entertained by the Court and may also be dismissed without ordering any notice. There are many such provisions. What normally litigants or the advocates representing a case do is that when there is no provision for filing an application, then, they invoke section 151 of the Civil Procedure Code, 1908 which confers inherent powers on the Civil Court. It is the discretion of the Civil Court as to whether to exercise its inherent power under section 151 when something is sought, or dismiss the same summarily as not maintainable.
Likewise, there are many complications in the procedure and practice before the traditional Civil Courts. We can not simply say that the law is obsolete and require reforms. It is true that we require some reforms in the process, but, we can not ignore other things as well. If only the Civil Procedure Code, 1908 is the delay in a civil suit before a traditional Civil Court, then, an Arbitration case before an Arbitrator should get disposed of soon. But, it is not happening in many cases.
How to get the speedy justice: Now the question is, how to get the speedy justice before the traditional Civil Courts?
The straight answer is to engage a competent lawyer who has credentials and all the standards. It is not difficult for a litigant to find a competent lawyer, but, normally, competent lawyers charge more. Thus, the litigant often chooses a lawyer depending upon the fee he charges and it is also true that the fee should be affordable to the litigant. But, even when the litigant is in a position to engage a competent lawyer in view his position and stakes involved, in some cases, the litigant prefers an advocate who charges less and will not concentrate much on the standards of an Advocate. I am sure on one thing that a litigant will definitely feel the consequence of not choosing a competent lawyer soon after filing the brief with the Court or in the course.
I have my personal opinion over the rules governing lawyers in charging fees or remuneration and I feel that those are obsolete and require reforms. We have a laudable concept that rendering legal service is a service and should not be seen as a business etc. Looking at the same yardstick, imparting a medial aid to a patient is also a service, but, look at the charges being levied by the doctors both directly and also indirectly. We need a conceptual change in this regard and that is a different issue altogether. Recently, I had the privilege of looking at the schedule of fees can be charged by the Chartered Accountants for rendering para-legal kind of services like drafting agreements and power of attorney etc. and I am shocked to look at the fees. There is so much difference between the fee allowed for the Chartered Accountants for drafting a Power of Attorney and fee allowed for the legal professional for rendering the same service. I just want to give an understanding and don’t want to get the reader deviated.
My advice for getting a speedy justice from the Civil Courts is like:
(a)Engage a competent lawyer to the extent possible;
(b)Brief clearly to the lawyer and answer all his queries and don’t impose everything;
(c) When something is drafted by an Advocate, to the extent possible go though the draft carefully as many will not look at the draft prepared by the advocates carefully;
(d)Follow-up the each hearing of the case with the office of your advocate and makes it makes the counsel to feel responsible;
(e)Listen to the advice of competent lawyer and provide the required details from time to time.
I have given the above small brief with my experience and the knowledge of law and it is just my opinion.
V.Durga Rao, Advocate, Madras High Court.
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