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--------------- Print Magazine --------------
  May 2016
  April 2016
Legal Article
From here to uncertainty
Lawyers leverage their expertise to prolong cases
By M J Antony

All judges had a past as lawyers, and all lawyers could have a future as judges. They know the system from inside, warts and all. Therefore, when judges disclose some of the manoeuvres adopted by the legal profession that cause delays in dispensing justice, ordinary people must listen. This rare occasion arose in two recent cases in the Supreme Court, one of which started in 1977 in the Delhi High Court.

The case's meandering course from one court to the other is too tedious to recount. The Supreme Court itself took six pages to set out its time line. In the introductory remarks, the court said: "This is a classic example which abundantly depicts the picture of how civil litigation moves in our courts and how unscrupulous litigants can till eternity harass rivals and their children by abusing the judicial system." (Ramrameshwari Devi v. Nirmala Devi).

It all started when a person was allotted a residential plot in the capital. He let his three younger brothers stay with him. Later, the younger brothers wanted the property partitioned. The main issues have been settled but what is left is, in the words of judges, "trivial and insignificant" questions regarding the imposition of costs. But they also reached the Supreme Court.

Observing the series of applications moved by one party, some of them based on misleading facts, the High Court had earlier stated that "the only object of the petitioners is just to delay the trial, which is pending for the last more than 18 years. It is well settled that frivolous litigation clogs the wheels of justice making it difficult for court to provide easy and speedy justice to the genuine litigants."

The Supreme Court added: "The credibility of the entire judiciary is at stake unless effective remedial steps are taken without further loss of time." Citing a book, Justice, Courts and Delays written by senior counsel and amicus curiae in this case, the judgment said 90 per cent. of the court's time and resources are consumed in attending to uncalled for litigation, which is created only because our current procedures hold out an incentive for the wrong-doer.

If the courts stress full restitution and realistic costs, litigation would not translate as profit for the wrong-doer. The cost-benefit ratio is directly dependent on what costs and penalties the court will impose on him; and the benefit will come in as the other "succumbing" en route or leaving a profit for him. Even if it is a fight to the end, the court still leaves a profit with him as unrestituted gains or unassessed short-levied costs.

According to the book, every lease on its expiry or a licence on its revocation is converted into litigation. Courts are flooded with these cases because there is an inherent profit for the wrong-doer. Domestic servants, watchmen, caretakers or security staff who are licensees indiscriminately file suits for injunction, not to be dispossessed. Then they demand a big amount for withdrawing the suit.

A huge number of flats are kept locked for years because owners are not certain if the property would be vacated even after the lease expires. It would take decades to sort out the controversies raised by the licensees. The courts might grant an injunction that would last long. The Supreme Court asked the courts below to be extremely cautious while passing injunctions.

False statements, concealment of facts and denial of genuine documents are some of the common tricks to tire out the opposite party. "The probability of the court ordering prosecution for perjury is less than that of meeting with an accident while crossing the road," according to the author. The imposition of actual or realistic costs is one of the 10 suggestions coming from the court.

In another recent judgment, the court set eight guidelines to speed up civil litigation (Indian Council v. Union of India). It was a case in which an industrial unit succeeded in delaying the execution of an order against it for more than 15 years. The court commented: "This is a classic example how by abuse of process of law even the final judgment of the Apex Court can be circumvented for more than a decade and a half."

When there is unjust enrichment, the guilty party has a duty of restitution, the judgment said. Restitution in law means not only restoration of the earlier condition, but includes even indemnification and reparation of loss or injury caused to another. However, section 34 of the Civil Procedure Code is weak and provides for the imposition of simple interest, not compound interest, on the decreed amount. The Court called for law reforms on this point to discourage vexatious litigation. Inflation should also be considered. The court could impose "punitive costs" in cases in which there was an attempt to deliberately delay the proceedings.

As the Delhi High Court stated in a 2008 decision, "you have only to engage professionals to prolong the litigation so as to deprive the rights of a person and enjoy the fruits of illegalities." Where the black-robed brethren have failed, the law-makers must take over. After all, some of their leaders are now experiencing the rigours of the system.

Courtesy: Business Standard

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