How flaws in the Code of Civil Procedure delay justice



The average person will not have heard of Dipali Biswas or Nirmalendu Mukherjee and may not be aware of the case decided by the Supreme Court on October 5, 2021. The case was decided by a division bench, composed of Hemant Gupta and V Ramasubramanian and the judgment was drafted by Judge V Ramasubramanian. Judge Ramasubramanian observed (not part of the judgment): “In order not to be discouraged by repeated failures, the appellants here, like the indefatigable Vikramaditya, who repeatedly tried to capture Betal, began the trick. current and hopefully the final round. Aside from smiling about a case that took 50 years to resolve and making jokes about ‘tareekh pe tareekh’, shouldn’t we be concerned about the rules and procedures (all in the name of natural justice) that allow a parody of justice?

Countless judgments have cited the maxim: “justice in a hurry is justice buried”. Likewise, delayed justice is also buried justice, and excessive delays mean that the legal system does not provide adequate deterrence to bad faith actions. In my opinion, for most civil matters, at the time the questions are framed, the outcome can be predicted within a range, with a reasonable degree of certainty. (Obviously, I’m not talking about constitutional cases before the Supreme Court.) Without disrespecting the legal system, I think AI (artificial intelligence) is capable of rendering judgments in such cases, thus freeing up time. for non-trivial matters.

In other words, once the issues are defined – since litigants can also predict the outcome – a party has a vested interest in ensuring that the status quo is maintained and, in the name of natural justice, the rules and procedures of the parties. courts allow it. More judges / benches and filling vacancies will not solve the problem. Take this case. Sasadhar Biswas borrowed 3000 rupees from Rama Devi. When he failed to repay the loan, in 1971, she filed a lawsuit with the Munsif District Court in Bongaon, West Bengal, to recover the money that was rightfully due to her. In 1974, in an ex parte decision, Sasadhar Biswas was ordered to repay in six equal installments, with a default clause. He couldn’t be bothered. In fairness, maybe he didn’t have the money. Rama Devi went to court again. Sasadhar Biswas owned land (7,450 square feet) in Bongaon. In 1975 the court ordered that this should be sold to pay Rama Devi. Sasadhar Biswas (through his lawyer) challenged the auction process. This objection being rejected in 1975, an auction was held in 1979 and Sachindra Nath Mukherjee and Dulal Kanti Mukherjee (two brothers) offered Rs.5,500 and, as the highest bidder, deposited the amount with the court. End of the day – or so you might think. Rama Devi gets his money back (now Rs 3,360, probably because of interest) and the Mukherjee brothers get the land. Or common sense suggests it.

However, legal processes are not always common sense. The October 2021 Supreme Court ruling refers to five rounds, possibly recalling two boxers in two corners (read lawyers), rather than King Vikramaditya. The first round ran from 1979 to 1992. Ignoring other aspects of Sasadhar Biswas trying to delay, in 1980 he ignored Rama Devi and made a deal with the Mukherjee brothers: Without any legal subtlety – I will give you back your money, let’s cancel the auction. With this mutual agreement in place, Biswas paid (as in, filed in court) Rs 3,700, not the Rs 5,500 that the Mukherjee brothers had paid. Common sense suggests that this should not be acceptable. It was not until 1992 for the court to establish that common sense was right. In the second round (1992), the debtor’s lawyers tried again to abort the auction, without success. In the third round (1992 to 2001), the debtor’s lawyers objected to the issuance of a certificate of sale. In the fourth round (2002-2005), the Mukherjee brothers returned to court, now wanting possession. Things were complicated because Sasadhar Biswas had built a building on this land, which had to be demolished. Finally, there was the fifth round (2005 to 2021).

In his observations (not forming part of the judgment), Judge Ramasubramanian noted that this case should be included in the curricula of the law school to illustrate how litigants can avoid the execution of a civil decree. Some law school graduates will become lawyers, acting on behalf of litigants. What will they learn specifically? Since Sasadhar Biswas had a vested interest in preserving the status quo, his lawyers used ordinances and articles of the Code of Civil Procedure (CPC, 1908) to delay cases. Granted, aspiring lawyers shouldn’t learn this. Instead, they and anyone interested in legal reform (including the justice system) should learn how these weaknesses in the CPC need to be addressed.

A substantive amendment was made to the CPC in 2002. At the time, the then Minister of Justice promised, with this amendment, that an average civil case would be resolved in a year and a half. Nothing like this happened, mainly because of a judgment in the Salem Advocate Bar Association case. Litigants and lawyers (at least on one side of a civil case) are not encouraged to finish a case quickly (does justice have it?). In case you haven’t noticed, the fifth round didn’t involve Sasadhar Biswas and the Mukherjee brothers. The case was conducted by their heirs. As for Rama Devi (or his heirs), the October 2021 judgment does not indicate whether she has been paid. She was not a party and may well need a sixth round. If you have to go to court, never be a lender.

This column first appeared in the print edition on November 11, 2021 under the title “Long affair of Sasadhar Biswas”. The writer is chairman of the Prime Minister’s Economic Advisory Council. Views are personal



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