1. There is a famous saying that justice delayed is justice denied and it is also said justice hurried is justice buried. Thus, without bypassing the procedure, a via media has to be found out to reduce the pendency of cases especially before Constitutional Courts.
2. Before examining the issue, let me find out the Approved strength, Working Strength and Vacancies of Judges in the Supreme Court of India and the High Courts as that will have a direct bearing on pendency of cases. As on 01.12.2018, the said figures read thus:
3(a). As is clear from the statement given above, there are vacancy in all the High Courts as well as in Supreme Court and the same has a direct bearing on the pendency of cases in every Court.
(b). Though the vacancy of Hon’ble Judges is an all India factor, let me confine this write up to the position in the High Court of Karnataka (for short, “the HCK”) as I have personal knowledge of the position and problems here having been practicing exclusively in HCK for over 41 years.
(c). My endeavour in writing this write up is to suggest means of reducing pendency of cases notwithstanding the fact that there is vacancy of 29 posts out of 62 posts of Hon’ble Judges in the HCK.
4(a). The procedure of filing and consideration of cases in the KHK is followed in terms of three enactments viz. Karnataka High Court Act, 1961, Karnataka High Court Rules, 1959 and the Writ Proceedings Rules, 1977.
(b). The cases that are filed in HCK can be broadly divided into three categories. The first are those which are filed challenging the orders of subordinate Courts popularly known as Civil/Criminal Courts or Trial Courts, the second are those which are filed directly in HCK seeking relief against Statutory Authorities and the last being Intra-Court appeals.
5(a). As regards the cases coming under the first category are concerned, filing procedure of majority of them are governed by the provisions of the Code of Civil Procedure, 1908 (for short, CPC) and as such there is no scope to tinker with it. While complying with the proper procedure of filing, it is seen that the Trial Courts take a very lenient approach and that creates problems for the Advocates in HCK to file a petition without there being any mistakes. For example, age of the parties are invariably missed in the cause title, their full address will not be forthcoming and PIN Code will always be absent.
(b). All the aforesaid information will easily be available at the local level but still scrutiny staff at the Trial Courts close their eyes for the mistakes committed. Less said the better about the order sheet. In fact notwithstanding a judicial order, orders are written in an illegible manner.
(c). Registry of HCK could send a circular instructions as to what are all the requirements Trial Court shall comply mandatorily and on their failure to obey the same, action can be taken up on the administrative side. Filing at HCK will then be more easy avoiding several office objections now being raised by the scrutiny section.
6(a). Majority if not all cases coming under second category are writ petitions. In these writ petitions, State will be a party in almost all cases and Centre will be a party in few cases. Procedure followed in these cases are the Writ Proceedings Rules, 1977 (for short “the Writ Rules”). Rule 39 of the Writ Rules makes the provisions of CPC applicable in respect of matters where corresponding provision in the Writ Rules are absent.
(b)(i). It is seen that everyday several matters are moved before the Hon’ble Judges for being taken up on the next day. Some Hon’ble Judges grant the request in every case while some spend nearly half an hour in
entertaining the motion. Ultimately, Registry follows its own procedure in posting the matter.
(ii). Instead of so doing, if a matter is filed with a memo with a prayer to file on the next day, unless there are major office objections which goes to the root of the matter, let the matters be listed before the Hon’ble Court on the next working day. If the matter is not entertained then the matter comes to an end then and there and per contra if it is entertained then until the office objection is cleared within a period to be fixed by the Hon’ble judge, then neither the notice nor the interim order, if any, be not forwarded and shall be deemed to have been recalled automatically on the expiry of the time fixed for compliance with office objections.
(iii). By adopting the above procedure, the time consumed during motion time and in attending to scrutiny can be avoided.
(c). Prior to 20.08.1992, there was no requirement under the writ Rules to serve advance copy of the Petition in the office of Advocate General and/or Asst. Solicitor General. However, vide Writ Rule 12(2) introduced on 10.8.1992, effective from 20.8.1992, it is made mandatory to serve copy on them where interim relief is sought against them.
(d). With all respect to the concerned, I must say that the above amendment is the principle cause for the delay in disposal of matters, especially old one pending in HCK. The reason is very easy to gauge. The learned State Representative gets the file just on the morning of the listing from the concerned branch in the office of the Advocate General. My experience shows that unless the learned Government Advocate has appeared in identical matters, he will not be in a position to contradict the submissions made on behalf of the Petitioner as a result of which he will successfully move for an adjournment. Depending upon the Court, he gets a short or a long adjournment. Then to get the matter re listed is a herculean task for the Petitioner since the case gets transferred from Stage A to Stage B, and Registry claims that it has instructions not to list Stage B matters even if moved in Court. It is heard in the Bar that even when some of the Hon’ble Judges grant the request for posting on the next day but while forwarding the Moved Memos, the Court Officers filter them excluding B Group matters !
(e). Assuming that the Govt. Advocate gets instructions and is ready to go on with the matter, then these fresh matters occupy considerable length of time and by the time the old matters are reached, none will be interested in going on with other matters listed at the fag end of the day as a result of which old matters gets once again adjourned.
(f). Another hurdle is the prior service of the petition copy under Rule 12(2) of the Writ Rules on the learned Government Advocate. It is true that Section 80 of the CPC mandates prior issue of notice before a suit is filed against the Government but the same is only to enable the government to rectify the mistake pointed out so that the intended litigation can be avoided. However, Rule 12(2) of the Writ Rules contemplates serving of Petition copy and not the notice to the learned Government Advocate. This requirement has to be complied with even if a notice had been issued or even when the Government is just a formal party. Thus the procedure of filing a petition against the Government without serving them advance copy of the Petition that prevailed right from the date of establishment of the HCK and was in force for over 40 years has been changed vide the notification dt. 10.8.1992.
(g). Above procedure is introduced notwithstanding the availability of Sec.148A wherein the Government can file a petition known s Caveat Petition pleading that the Government Advocate be heard in the matter before considering the interim prayer likely to be made in the intended writ petition. While introducing the aforesaid notification, the fundamental difference between the procedure followed in Trial Courts and Constitutional Courts is lost sight of.
(h). In Trial Courts, except in exceptional cases, notice to the other side is ordered in every case where as in the HCK, the Petitioner/Appellant has to convince the Judge both on facts and law before notice is ordered on the other side. Even after following such a procedure, if the Hon’ble Judge feels the necessity of hearing the other side, he can just order notice both on main as well as interim prayers thereby safe guarding the interest of the other side be it private or statutory parties. Even if an exparte interim relief is granted, nothing prevents the Respondents to move for its vacation.
(i). It is thus humbly submitted that even thought the procedure followed in the HCK for over 40 years was a safe procedure taking into consideration the interest of both sides, the same has been changed wef 20.08.1992, not only the Petitioner is put to inconvenience but the consideration of old files gets automatically deferred for want of time. This is the principal reason for piling up cases in HCK.
7(a). The third category are Intra-Court Appeals and are confined to just two types they being Writ Appeals and Original Side Appeals respectively coming under Writ Rules and Company Act. As the name indicate, these are the cases filed against the orders of learned Single Judge in HCK. It goes without saying that before an order is passed by the learned Single Judge, as required under the High Court Act, all the relevant papers are required to be furnished in the original side. Thus the very same papers can be tagged on with the Appeal papers as Part B papers With Appeal Memorandum and the order of the learned Singe Judge forming part of Part A papers. Experience shows that majority of Appeals are not admitted and as such matters comes to an end at that stage itself. Per contra, if the Appeal is entertained or even without that if the Hon’ble Judges of the Division Bench feel the necessity of examining the papers in detail, they can always call upon the Appellant to produce copies of Part B papers.
(b). The advantages in the process are several. First and foremost is wastage of stationary can be avoided. In spite of the best care and caution taken, in almost all writ appeals, office objections are raised at the time of scrutiny resulting in time consuming process.
8. In conclusion, I am of the view that notwithstanding the fact that in HCK, even though nearly 50% of the posts of Hon’ble Judges are vacant, still pendency of cases can be reduced by adopting following procedures:
(a). Instructions have to be conveyed to scrutiny staff of Trial Courts to ensure that all the required particulars of the Plaintiff and the Defendants are fully furnished.
(b). No motion be entertained by the Hon’ble Judges for listing of matters on the next day and instead files moved with memo for posting be ordered to be listed even if there are office objections and the same may be the rectified within the time to be fixed by the Hon’ble Court only if the matter is entertained.
(c). In intra-Court Appeals, papers filed before the learned Single Judge be permitted to be filed as Part B papers only after the Appeal is entertained.
2. Before examining the issue, let me find out the Approved strength, Working Strength and Vacancies of Judges in the Supreme Court of India and the High Courts as that will have a direct bearing on pendency of cases. As on 01.12.2018, the said figures read thus:
Name of the Court
|
Approved Strength
|
Working
Strength
|
Vacancies as per
Approved
Strength
|
Supreme Court
of India
|
31
|
27
|
04
|
High Courts
|
Peramanent+
Additional =Total
|
Peramanent + Additional =Total
|
Peramanent +
Additional =Total
|
Allahabad
|
76 + 84 =160
|
62
+ 48 =110
|
14
+ 36 =50
|
Telangana
& Andhra Pradesh
|
46
+ 15
= 61
|
28
+ 00 =28
|
18
+ 15 =33
|
Bombay
|
71 + 23 =94
|
54
+ 18 =72
|
17
+ 05 =22
|
Calcutta
|
54
+ 18
=72
|
20
+ 17 =37
|
34
+ 01 =35
|
Chhattisgarh
|
17 + 05 =22
|
08
+ 07 =15
|
09
- 02 =07
|
Delhi
|
45
+ 15 =60
|
39
+ 00 =39
|
06
+15 =21
|
Gauhati
|
18
+ 06 =24
|
14
+ 05 =19
|
04
+ 01 =05
|
Gujarat
|
39
+ 13
=52
|
29
+ 00 =29
|
10
+13 =23
|
Himachal
Pradesh
|
10
+ 03 =13
|
08
+00 =08
|
02
+ 03 =05
|
Jammu &
Kashmir
|
13
+ 04 =17
|
09
+00 =09
|
04
+ 04 =08
|
Jharkhand
|
19
+ 06 =25
|
14
+05 =19
|
05
+ 01 =06
|
Karnataka
|
47 + 15 =62
|
21 +12 =33
|
26 +03 =29
|
Kerala
|
35
+ 12
=47
|
31
+07 =38
|
04
+05 =09
|
Madhya Pradesh
|
40
+ 13 =53
|
35
+00 =35
|
05
+13 =18
|
Madras
|
56
+19 =75
|
41
+20 =61
|
15
- 01 =14
|
Manipur
|
04
+ 01 =05
|
03
+00 =03
|
01
+ 01 =02
|
Meghalaya
|
03
+01
=04
|
03
+00 =03
|
00
+ 01 =01
|
Orissa
|
20
+07 =27
|
14
+00 =14
|
06
+ 07 =13
|
Patna
|
40
+13 =53
|
22
+06 =28
|
18
+ 07 =25
|
Punjab&
Haryana
|
64
+21 =85
|
48
+07 =55
|
16
+ 14 =30
|
Rajasthan
|
38
+12 =50
|
25
+00 =25
|
13
+ 12 =25
|
Sikkim
|
03
+00 =03
|
03
+00 =03
|
00
+ 00 = 00
|
Tripura
|
04
+00 =04
|
03
+00 =03
|
01
+ 00 =01
|
Uttarakhand
|
09
+02 =11
|
09
+00 =09
|
00
+ 02 =02
|
Total
|
771+08 =1079
|
543+ 152 =695
|
228+ 156= 384
|
3(a). As is clear from the statement given above, there are vacancy in all the High Courts as well as in Supreme Court and the same has a direct bearing on the pendency of cases in every Court.
(b). Though the vacancy of Hon’ble Judges is an all India factor, let me confine this write up to the position in the High Court of Karnataka (for short, “the HCK”) as I have personal knowledge of the position and problems here having been practicing exclusively in HCK for over 41 years.
(c). My endeavour in writing this write up is to suggest means of reducing pendency of cases notwithstanding the fact that there is vacancy of 29 posts out of 62 posts of Hon’ble Judges in the HCK.
4(a). The procedure of filing and consideration of cases in the KHK is followed in terms of three enactments viz. Karnataka High Court Act, 1961, Karnataka High Court Rules, 1959 and the Writ Proceedings Rules, 1977.
(b). The cases that are filed in HCK can be broadly divided into three categories. The first are those which are filed challenging the orders of subordinate Courts popularly known as Civil/Criminal Courts or Trial Courts, the second are those which are filed directly in HCK seeking relief against Statutory Authorities and the last being Intra-Court appeals.
5(a). As regards the cases coming under the first category are concerned, filing procedure of majority of them are governed by the provisions of the Code of Civil Procedure, 1908 (for short, CPC) and as such there is no scope to tinker with it. While complying with the proper procedure of filing, it is seen that the Trial Courts take a very lenient approach and that creates problems for the Advocates in HCK to file a petition without there being any mistakes. For example, age of the parties are invariably missed in the cause title, their full address will not be forthcoming and PIN Code will always be absent.
(b). All the aforesaid information will easily be available at the local level but still scrutiny staff at the Trial Courts close their eyes for the mistakes committed. Less said the better about the order sheet. In fact notwithstanding a judicial order, orders are written in an illegible manner.
(c). Registry of HCK could send a circular instructions as to what are all the requirements Trial Court shall comply mandatorily and on their failure to obey the same, action can be taken up on the administrative side. Filing at HCK will then be more easy avoiding several office objections now being raised by the scrutiny section.
6(a). Majority if not all cases coming under second category are writ petitions. In these writ petitions, State will be a party in almost all cases and Centre will be a party in few cases. Procedure followed in these cases are the Writ Proceedings Rules, 1977 (for short “the Writ Rules”). Rule 39 of the Writ Rules makes the provisions of CPC applicable in respect of matters where corresponding provision in the Writ Rules are absent.
(b)(i). It is seen that everyday several matters are moved before the Hon’ble Judges for being taken up on the next day. Some Hon’ble Judges grant the request in every case while some spend nearly half an hour in
entertaining the motion. Ultimately, Registry follows its own procedure in posting the matter.
(ii). Instead of so doing, if a matter is filed with a memo with a prayer to file on the next day, unless there are major office objections which goes to the root of the matter, let the matters be listed before the Hon’ble Court on the next working day. If the matter is not entertained then the matter comes to an end then and there and per contra if it is entertained then until the office objection is cleared within a period to be fixed by the Hon’ble judge, then neither the notice nor the interim order, if any, be not forwarded and shall be deemed to have been recalled automatically on the expiry of the time fixed for compliance with office objections.
(iii). By adopting the above procedure, the time consumed during motion time and in attending to scrutiny can be avoided.
(c). Prior to 20.08.1992, there was no requirement under the writ Rules to serve advance copy of the Petition in the office of Advocate General and/or Asst. Solicitor General. However, vide Writ Rule 12(2) introduced on 10.8.1992, effective from 20.8.1992, it is made mandatory to serve copy on them where interim relief is sought against them.
(d). With all respect to the concerned, I must say that the above amendment is the principle cause for the delay in disposal of matters, especially old one pending in HCK. The reason is very easy to gauge. The learned State Representative gets the file just on the morning of the listing from the concerned branch in the office of the Advocate General. My experience shows that unless the learned Government Advocate has appeared in identical matters, he will not be in a position to contradict the submissions made on behalf of the Petitioner as a result of which he will successfully move for an adjournment. Depending upon the Court, he gets a short or a long adjournment. Then to get the matter re listed is a herculean task for the Petitioner since the case gets transferred from Stage A to Stage B, and Registry claims that it has instructions not to list Stage B matters even if moved in Court. It is heard in the Bar that even when some of the Hon’ble Judges grant the request for posting on the next day but while forwarding the Moved Memos, the Court Officers filter them excluding B Group matters !
(e). Assuming that the Govt. Advocate gets instructions and is ready to go on with the matter, then these fresh matters occupy considerable length of time and by the time the old matters are reached, none will be interested in going on with other matters listed at the fag end of the day as a result of which old matters gets once again adjourned.
(f). Another hurdle is the prior service of the petition copy under Rule 12(2) of the Writ Rules on the learned Government Advocate. It is true that Section 80 of the CPC mandates prior issue of notice before a suit is filed against the Government but the same is only to enable the government to rectify the mistake pointed out so that the intended litigation can be avoided. However, Rule 12(2) of the Writ Rules contemplates serving of Petition copy and not the notice to the learned Government Advocate. This requirement has to be complied with even if a notice had been issued or even when the Government is just a formal party. Thus the procedure of filing a petition against the Government without serving them advance copy of the Petition that prevailed right from the date of establishment of the HCK and was in force for over 40 years has been changed vide the notification dt. 10.8.1992.
(g). Above procedure is introduced notwithstanding the availability of Sec.148A wherein the Government can file a petition known s Caveat Petition pleading that the Government Advocate be heard in the matter before considering the interim prayer likely to be made in the intended writ petition. While introducing the aforesaid notification, the fundamental difference between the procedure followed in Trial Courts and Constitutional Courts is lost sight of.
(h). In Trial Courts, except in exceptional cases, notice to the other side is ordered in every case where as in the HCK, the Petitioner/Appellant has to convince the Judge both on facts and law before notice is ordered on the other side. Even after following such a procedure, if the Hon’ble Judge feels the necessity of hearing the other side, he can just order notice both on main as well as interim prayers thereby safe guarding the interest of the other side be it private or statutory parties. Even if an exparte interim relief is granted, nothing prevents the Respondents to move for its vacation.
(i). It is thus humbly submitted that even thought the procedure followed in the HCK for over 40 years was a safe procedure taking into consideration the interest of both sides, the same has been changed wef 20.08.1992, not only the Petitioner is put to inconvenience but the consideration of old files gets automatically deferred for want of time. This is the principal reason for piling up cases in HCK.
7(a). The third category are Intra-Court Appeals and are confined to just two types they being Writ Appeals and Original Side Appeals respectively coming under Writ Rules and Company Act. As the name indicate, these are the cases filed against the orders of learned Single Judge in HCK. It goes without saying that before an order is passed by the learned Single Judge, as required under the High Court Act, all the relevant papers are required to be furnished in the original side. Thus the very same papers can be tagged on with the Appeal papers as Part B papers With Appeal Memorandum and the order of the learned Singe Judge forming part of Part A papers. Experience shows that majority of Appeals are not admitted and as such matters comes to an end at that stage itself. Per contra, if the Appeal is entertained or even without that if the Hon’ble Judges of the Division Bench feel the necessity of examining the papers in detail, they can always call upon the Appellant to produce copies of Part B papers.
(b). The advantages in the process are several. First and foremost is wastage of stationary can be avoided. In spite of the best care and caution taken, in almost all writ appeals, office objections are raised at the time of scrutiny resulting in time consuming process.
8. In conclusion, I am of the view that notwithstanding the fact that in HCK, even though nearly 50% of the posts of Hon’ble Judges are vacant, still pendency of cases can be reduced by adopting following procedures:
(a). Instructions have to be conveyed to scrutiny staff of Trial Courts to ensure that all the required particulars of the Plaintiff and the Defendants are fully furnished.
(b). No motion be entertained by the Hon’ble Judges for listing of matters on the next day and instead files moved with memo for posting be ordered to be listed even if there are office objections and the same may be the rectified within the time to be fixed by the Hon’ble Court only if the matter is entertained.
(c). In intra-Court Appeals, papers filed before the learned Single Judge be permitted to be filed as Part B papers only after the Appeal is entertained.
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