Justice tarried is justice buried: Lawyers, and the judiciary, must guard against the law being used to delay cases – The Financial Express

Clipped from: https://www.financialexpress.com/opinion/justice-tarried-is-justice-buried-lawyers-and-the-judiciary-must-guard-against-the-law-being-used-to-delay-cases/2366684/

In my view, for most civil cases, the moment issues are framed, one can predict the outcome within a range, with a reasonable degree of certainty.In my view, for most civil cases, the moment issues are framed, one can predict the outcome within a range, with a reasonable degree of certainty.

The average person will not have heard of Dipali Biswas or Nirmalendu Mukherjee and may not be aware of the case decided on October 5, 2021 by a Division Bench of the Supreme Court, comprising Justices Hemant Gupta and V Ramasubramanian; the judgement was authored by Ramasubramanian. He observed (not in the judgement), “Not to be put off by repeated failures, the appellants herein, like the tireless Vikramaditya, who made repeated attempts to capture Betal, started the present round and hopefully the final round.” Other than smiling about a resolution that took 50 years and making wisecracks about “tarikh pe tarikh”, shouldn’t we be concerned about rules and procedures (all in name of natural justice) that permit a travesty of justice? Innumerable judgements have quoted the maxim ‘justice hurried is justice buried’. Then, justice tarried is also justice buried and inordinate delays mean the legal system doesn’t provide adequate deterrence to mala fide action.

In my view, for most civil cases, the moment issues are framed, one can predict the outcome within a range, with a reasonable degree of certainty. (Obviously, I don’t mean Constitutional cases before SC.) With no disrespect to the legal system, AI is capable of delivering judgements in such cases, freeing court time for non-trivial cases.

Once issues are framed, since litigants can also predict the outcome, one side has a vested interest in ensuring continuation of status quo and, in the name of natural justice, court rules and procedures permit this. More judges and filling vacancies won’t solve the problem. Take this case. Sasadhar Biswas borrowed Rs 3,000 from Rama Devi. When he didn’t repay the loan, in 1971, she filed a suit in District Munsif Court, Bongaon, West Bengal, to recover money that was rightfully hers. In 1974, in an ex parte decision, Biswas was directed to repay in six equal instalments, with a default clause. He couldn’t be bother In fairness, perhaps he didn’t have the money. Rama Devi went to court again. Biswas possessed a plot of land (7,450 sq feet) in Bongaon. In 1975, the court ordered this should be sold off to pay Rama Devi. Biswas (through his lawyer) contested the auction process. With that objection dismissed 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 matter, or so you might think. Rama Devi gets her money back (now Rs 3,360) and Mukherjee brothers get the plot of land. Or so common sense suggests.

However, legal processes are not always about common sense. The October 2021 Supreme Court judgement refers to five rounds, reminiscent perhaps of two boxers in two corners (read lawyers), rather than King Vikramaditya. The first round was from 1979 to 1992. In 1980, Biswas ignored Rama Devi and entered into an agreement with Mukherjee brothers. Shorn of legal niceties: I’ll return your money, let’s cancel the auction. With that agreement in place, he paid (deposited with the court) Rs 3,700, not the Rs 5,500 the Mukherjee brothers had paid. Common sense suggests this shouldn’t be acceptable. It took till 1992 for the court to establish that common sense is right. In the second round (1992), debtor’s lawyers tried to abort the auction again, without success. In the third round (1992 to 2001), debtor’s lawyers argued against issuance of a sale certificate. In the fourth (2002 to 2005), Mukherjee brothers went back to court, now wanting possession. Matters were complicated because Sadanand Biswas had constructed a building on that land, which had to be demolished. Finally, there was the fifth round (2005 to 2021).

In his observations (not part of judgement), Ramasubramanian remarked this case should be included in law school as syllabi, to illustrate how litigants can avoid execution of a civil decree. Some graduates of law schools will become lawyers, acting on behalf of litigants. What will they specifically learn? Since Sasadhar Biswas had a vested interest in preserving the status quo, his lawyers used orders and sections of Code of Civil Procedure (CPC, 1908) to delay matters. Surely, budding lawyers shouldn’t learn that. Instead they, and anyone interested in legal reform (this includes judiciary too), should learn how those weaknesses in CPC need to be plugged. There was a substantive amendment to CPC in 2002. At that time, the then law minister promised, an average civil case would be resolved in one and a half years. Nothing of the sort has happened, primarily because of a judgement in the Salem Advocate Bar Association case. Litigants and lawyers (at least on one side of a civil case) have no incentive to finish a case fast. (Does judiciary have it?) In case you haven’t noticed, the fifth round didn’t involve Sasadhar Biswas and Mukherjee brothers. The case was fought by their heirs. As for Rama Devi (or her heirs), the October 20201 judgement doesn’t indicate whether she has been paid. She wasn’t a party and may well need a sixth round. If you need to go to court, never a lender be.

The author is Chairman, EAC to the PMmail logo

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