The CPC Amendment Act

By Alladi Kuppuswami

EVERYONE REPEATS ad nauseum the maxim ``justice delayed is justice denied''. But no serious effort has been made till now to tackle the problem of delay in the administration of justice. Today there are about three crore cases pending in the subordinate courts in the country and lakhs of cases in the High Courts. The CPC Amendment Act (Act 46/99) is aimed at reducing the delay in the disposal of cases. Section 1 of the Act says that it shall come into force on such date as the Central Government may fix. Pending this, there has been a widespread agitation by advocates resulting in boycott of courts. Though the Bill was considered by the two Houses of Parliament before the Act was passed, the Prime Minister has said that it will again be discussed in Parliament and the views of the Bar Council of India ascertained.

Though the provisions of the Act are generally salutary, there are some provisions which are either unnecessary or undesirable. One of the primary causes for the delay is the time taken in serving summons. The Act seeks to expedite the procedure by providing that summons may be served through courier, e-mail etc. It also provides for simultaneous issue and service of summons by court. A copy of the plaint shall also be sent along with the summons. These provisions cannot be objected to.

Another cause for delay is repeated adjournment of cases. Some advocates repeatedly ask for adjournments on behalf of their clients for no substantial reason. The amended Act says that no adjournment shall be granted more than three times to any party and provides for payment of higher than the actual costs caused by the adjournment to the other party. This is also an amendment to be welcomed.

A third reason for the delay is the inordinate time taken in the examination of witnesses. An amendment rightly provides that the chief examination should be by affidavit. But it is provided that the cross- examination should be before a commissioner, unless the court directs otherwise. It is not advisable to have the cross-examination before a commissioner. This deprives the court of the advantage of observing the demeanour of the witness which is so essential for the appreciation of oral evidence. It is ununderstandable how examination before a commissioner helps in avoiding delay. On the contrary, it causes more delay and more expense to the litigant in the shape of commissioner's fee. Video recording of the evidence before the commissioner may, however, enable the court to observe the demeanour of the witness.

The plaintiff and defendant are directed to produce documents in their possession or power along with the plaint or written statement as the case may be. This does not prevent them from filing any document if it comes into their possession or power later. The defendant is required to file his written statement within 30 days of the institution of the suit or at any rate within 30 days of the service of summons. The argument that it is unjust to give the defendant only 30 days while the plaintiff is given much more time under the limitation act is untenable. If the plaintiff is given 3 years or 6 years or even 12 years to file a suit, is it suggested that the defendant should also be given the same time? In very exceptional cases, it must be provided that the court must have the discretion to grant more time to file the written statement. Subject to what is stated above, these amendments are to be welcomed as they are aimed at preventing the prolongation of the trial of the suit.

There are a number of amendments which have become necessary in view of the extreme devaluation of the rupee and there should be no quarrel about such amendments. One important amendment is the insertion of Section 89, enabling the court to formulate terms of settlement and to refer the same for arbitration or conciliation for settlement through Lok Adalat, or for mediation. This amendment should be welcomed by all who wish to see prolonged litigation cut short by such reference. Advocates will not be affected as they can also appear before the arbitrator, Lok Adalat or the mediator.

The most serious objection seems to be the substitution of the new sections 100 A and 102 for the old sections 100 A and 102 and to the amendment of Section 115. The amended Section 100 A provides that no appeal lies from the judgment of a single judge in an appeal from an original decree, or in a writ petition under Article 226 of the Constitution. This provision no doubt takes away a very valuable right of appeal. But one of the most important causes of delay in the disposal of cases is the hierarchy of appeals. It is but right that this hierarchy of appeals is ended. The impact of this amendment can be lightened by the single judge hearing the appeal or the writ petition referring the matter to a Division Bench if the subject matter is of importance or involves a substantial question of law. In other cases, no serious injustice is caused by depriving the litigant of the right of appeal. Even now if a Letters Patent Appeal or a writ appeal is preferred, the Division Bench refuses to admit the appeal (take it on file) if there is no substantial question of law. In other cases, instead of an appeal being filed and the Division Bench admitting the appeal, the same purpose is served by the single judge himself referring the case to a Bench. In such a case, the expense and delay in filing an appeal is avoided. Thus it is seen that there is no necessity for such a hue and cry against Section 100 A.

Section 102 as amended provides that no second appeal lies from an appellate decree where the value is less than Rs. 25,000. This is discriminatory against the poor litigant. To avoid this, it is suggested that it may be provided that an appeal from a district munsiff or a subordinate judge should be heard by a bench of two district judges and a second appeal will lie against their judgment only if there is a difference of opinion between the two, whatever may be the value of the subject matter.

The amendment to Section 115 is a salutary amendment. It is well known that by filing a revision petition against orders framing issues and other interlocutory orders the trial of the suit is inordinately delayed. Section 115 may also be amended by giving revisional jurisdiction to district courts against interlocutory orders of lower courts.

Apart from amending the CPC, there are many other ways of reducing delays: (1) In the lower courts, ``call work'' takes nearly half a day. A circular may be issued by the High Court to the subordinate courts that call work may be entrusted to sheristadars as in the original side of the High Court where the preliminary work is done by the Master. (2) In the High Courts, repeated adjournments are taken by the Government pleaders to file a counter-affidavit. Writ rules should be amended to provide that counter affidavits should be filed within two or three months. (3) In the High Courts, considerable time, extending over days and sometimes weeks, is taken in hearing a case. A time limit of utmost one day should be set as in the U.S. Advocates must be asked to submit detailed briefs (arguments) and judges should study them before the hearing. Young lawyers should be appointed as ``law clerks'' to assist the judges in sifting the law and facts in the case. This would help young lawyers in their career.

Strict supervision should be exercised by the High Courts over the subordinate courts which should see that cases are decided expeditiously but not at the cost of administering justice. They should ``decide'' cases, not ``dispose them off'', for while ``justice delayed is justice denied''. ``Justice hurried is justice buried''.

Now that an opportunity is given for obtaining the views of the members of the legal profession, they should, instead of opposing the amending Act in toto give constructive suggestions as to which portions of the amending act may be retained and which portions deleted or amended. It is the bounden duty of the advocates to suggest ways and means to have the huge backlog of cases cleared.

(The writer is a retired Chief Justice of the Andhra Pradesh High Court.)

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