This article is written by Sachi Ashok Bhiwgade, B.A.LLB (Hons.) student of Hidayatullah National Law University, Raipur. This article talks about the causes of delay in civil litigation and the impact it has on the public.

Introduction

As the famous dictum says Justice delayed is justice denied. It is imperative that a person gets justice within time. Refusal of timely justice is equal to a denial of justice. In India, the existing justice delivery system is not proper and takes an unnecessarily long time to deal with a case. It is due to the enormous backlog of cases. According to the National Judicial Data Grid (NJDC), there are 3.3 crore cases pending in India of which Uttar Pradesh (61.58 lakhs) accounts for the highest pendency of cases followed by Maharashtra (33.22 lakhs) and West Bengal (17.59 lakhs). Speedy justice is a fundamental right and has also been reiterated by the Apex Court in a number of cases. Inordinate delay is unjustified and violates the fundamental right guaranteed under Article 21 the Constitution of India. The Supreme Court in Hussainara Khatoon v. State of Bihar, Abdul Rahman Antulay v. R S Nayak held that the procedure which does not provide for speedy trial cannot be regarded as just, fair and reasonable. The main cause of delay in civil litigation is the complex procedure of the Civil Procedure Code, 1908 and overabundance of cases for which the present Judge’s strength is totally deficient. The number of pending cases in India is growing at an alarming rate every day and the litigants face weak prospects of their cases being deferred rapidly. The problems of delay in the existing legal system in India have been extensively examined by the Law Commission of India over the years. The Supreme Court in Imtiyaz Ahmad v. State of Uttar Pradesh coordinated the Commission to attempt an inquiry and present its suggestions for the establishment of additional Courts for the expeditious disposal of matters before a Civil Court. The real issue of delay emerges when the time taken for disposal of a case surpasses the normal time taken to dispose of the case. This undermines the efficiency of the judiciary in India. 

Dangers of delay

The most important purpose of the Judiciary is to ensure the protection of the innocent. Delay invites a lot of problems and prolong pendency of cases causes serious repercussions on the public. An effective, fair and expedient trial is the fundamental right of every citizen. The Supreme Court in recent years by invoking Article 21 have tried to give some relief to people in this regard. Some of the dangers which could be caused as a result of the delay in litigation is discussed below: 

• Faith of the common people in judiciary loses: When a judgement arrives too late it contributes to a negative model of the judiciary in the eyes of the common man. Common people’s faith in the judicial system is lost and they find it difficult to inspire confidence again which leads to a serious implication on the justice system of the country.
• Non-appearance of the witness: Many times the witnesses do not come to the Court because they realise that the procedure of the Court is complex, slow, lengthy and time-consuming. In many cases, the witnesses are not available due to death, address not known, transfer, etc 
• Wrongdoer gets the chance to avoid litigation: Delayed justice encourages the culprit to evade the law to the prejudice of the opponent. In the majority of cases, the culprit escapes liability taking advantage of the situation. Sometimes it might also happen that the opponent agrees to the terms of the wrongdoer or loses the case altogether. 
• Remedies made available are of no use: If remedies are made available to the party but the judgment is not delivered within a reasonable time the purpose of justice would be frustrated and it would eventually mean denial of justice. For instance, a simple partition suit taking 15 years’ time to be finally disposed of. 
• Memory of the witness and the Judge fades: As a consequence of the delay in a trial, the memory of the witness fades, he is not able to recollect the correct sequence of the happenings or forgets the event and in certain cases even dies and the important evidence in a case becomes stale and the party having a strong case might even lose. Even the Judge who hears the arguments fail to recall the arguments or remember them in parts or even forget it to the prejudice of the parties.
• Mental and physical agony to the party to the suit: Sometimes, when a case is stretched for a long time it causes mental and physical suffering to the party to the suit. 

Causes of delay

There are numerous reasons responsible for the resolution of cases in a timely manner. Some of the important causes are discussed here:

• Judge-citizen ratio and vacancies of the Judges: The main reason for the delay is the shortage of judges with regard to the population of the country. There are many empty vacancies for judges which is another cause that leads to delay. Recently, the Parliament has passed the Supreme Court (Number of Judges) Amendment Bill, 2019 to increase the number of Judges from 30 to 33 in the Supreme Court. Since 1987, the population of the country has considerably increased and the judge-citizen ratio currently is around 10 million to 1. In 1987, the Law Commission in its report suggested a ratio of 50 million to 1. The sanctioned strength of High Court Judges is 1079 of which 397 seats (around 37%) are vacant around 25 High Courts in India as of December 2019. 
• Deficient number of courts: The Law Commission in its 254th report mentions the establishment of additional courts for speedy disposal of cases. An inadequate number of courts is viewed as a significant problem. Further, the suggestion for the creation of additional courts to the Law Commission was also given in the matter of Imtiyaz Ahmad v. State of U.P by the Supreme Court.
• Frequent adjournments: Despite the fact that the Civil Procedure Code under Order XVII, Rule 1 provides that adjournment cannot be granted more than three times, the courts do not seem to follow this rule in the strict sense. This eventually impedes expedient disposal of civil matter.
• Transfer of judges: when the judges are transferred, the new Judge may at times order for new trial altogether which postpones the procedures. This is another cause which obstructs timely disposal of matters. 
• Huge number of appeals: when a large number of appeals are brought before the Courts they find it difficult to invest their time and energy in the disposal of important matters and as a result have to invest their time in the disposal of these large numbers appeals.
• Non-compliance with the provisions of Section 89: Section 89 provides that if there is a possibility of settling the dispute outside the court, it will coordinate the issue for ADR instead of continuing with the ordinary procedure. This section was added by the amendment Act in order to reduce the delay in civil cases if the matters are likely to be settled outside the court with the consent of the parties by the methods of arbitration, conciliation, Lok Adalat, mediation. However, judges sometimes fail to refer the matter for ADR which is another cause that hampers the timely disposal of cases. Nonadherence to Section 89 causes a delay in civil suits.
• Non-appearance of the parties: Another reason which leads to delay in civil cases is when the date and time are fixed for a matter and the parties do not turn up on the given date and time. Since the respondent knows the probability of the judgment against him most of the time he tries to take as many adjournments as possible to give his counter. Further, the delay is also caused because the parties do not appear for cross-examination. The provision of CPC provides that
• Non-adherence to Order X: The Law Commission in its 77th Report mentioned that it is crucial that the Judge should read the pleadings of the parties in advance and should be aware of the case of each party and only then the issues could be framed properly to make proper use of Order X. Order X refers to the examination of parties by the Court and hence, non-adherence to this rule affects the proceedings.
• Delay in the filing of written statement: The defendant has to file his written statement within 30 days from the date of service of summons as provided under Order VIII of CPC. However, this rule is not adhered to by the Courts properly which is another reason for the delay in civil suits. The fact remains that this provision of the Code which was designed to speed up the process is misused and not followed strictly. 

Increase in litigation

Over the years the numbers show that the cases filed in the Courts are increasing day by day due to which they are getting piled up. Currently, there are 3.5 crore cases pending in the Supreme Court, High Courts, and the Lower Courts resulting in an increased backlog of cases in the Courts. The reality is that the Courts are overwhelmed with cases and even though an increasing number of Courts are being set up, the number of cases that are recorded isn’t adequate to match with the expanded number of cases. In the last decade, the pendency of cases has significantly increased, the primary reason is that more number of cases are filed every year than the number of cases disposed of. Another significant reason why the delays happen is that the provisions of the Code are not properly observed and followed by the Courts. Hence, the growing number of backlog cases and non-compliance with the provisions of the Code have eventually led to an increase in litigation.

Position prior to amendment acts

The Civil Procedure Code dating back to 1908 has been amended several times from the time of its enactment to ensure speedy trial for disposal of cases but it still faced the problem of delay. The Code was substantially amended in the years 1999 and 2002. Earlier there was no provision for out of Court settlement in CPC. A new Section 89 has been inserted to ensure that parties settle disputes amicably by the mechanism of Alternative Dispute Resolution. Another prime factor for delay in trials was that the parties used to avoid the filing of written arguments for a long time and besides the Court also used to condone the delay for filing of written submissions. The Code did not provide for a time-limit for the service of summons to the defendants. Often it happened that the summons issued to the defendant to appear and answer the claim before the Court took a long time. The defendants used to take advantage of this by evading the summons. Also, the Courts had the general power to extend the time without any limit the outcome of which was a delay in disposal of cases and a growing list of pending cases. 

Amendments of 1992 and 2002

The Code of Civil Procedure has been considerably changed in the year 2002. Amendment to the Code was also made earlier in the year 1999 but it was not made viable. Both the amendments were made effective on 1st July 2002. The principal reason for the Amendment to the Code was to guarantee expedient disposal of Civil cases represented under the CPC.

The constitutional validity of these amendments was consequently challenged in the case of Salem Advocate Bar Association of India vs Union of India to which the Court held that the amendments are valid and if any difficulties still arise then it can be set before the committee and the committee would consider the difficulties and make suggestions regarding them. 

Primary features of the amendments

Section 26 Institution of suits

A subsection to his Section was added by the1999 Amendment Act which made it compulsory that every fact referred to in the plaint to be proved by an affidavit. Hence, the plaint now has to be presented along with an affidavit at the institution of the suit. 

Section 27 Summons to the defendant 

Section 27 talks about issuing a summon to the defendant to appear and answer the claim in the suit. Prior to the amendment in 1999, there was no time period for serving a summons on the defendant. The amendment prescribed a time-limit of 30 days. The section now provides that summons has to be issued to the defendant to appear and answer the claim within 30 days from the date of the institution of the suit.

Section 89 Settlement of dispute outside the Court

This Section was not there originally and was added by the amendment of 2002 to include settlement of disputes outside the Court by way of alternative dispute resolution methods in the CPC. Hence, the cases referred to alternative dispute resolution could be settled quickly and the defendants in this way could be spared from the injury of a long time waiting for the disposal of matters in the ordinary run.

Section 100A No further appeal in certain cases

This Section was substituted by a new Section by the Amendment Act of 2002. Section 100A states that there shall be no further appeal in case an appeal has arisen out of an original or appellate decree or order and is heard and decided by a single Judge of the High Court. 

Section 102 – No second Appeal in certain cases 

This section was amended to enlarge the scope of Section 102. It now provides that there will be no second appeal from any decree in cases where the subject matter of the original suit for recovery of money is up to 25,000 rupees. Prior to amendment Section 102 was confined to the suit of which the cognizance can be taken by the Small Causes Court and the amount was limited to 3000 rupees.

Order V – issue and service of summons 

Under this, the summons was to be delivered through a proper officer of the court only. The amendment subsequently provides that the summons may now be delivered by the officer of the court or at the expense of the plaintiff through the courier service approved by the Court. Moreover, the Plaintiff can himself impact the service of summons on an application being made by him to the court. This helps speed up the process and has been done to reduce delay at the previous stage by permitting the use of a courier, email, fax for serving summons which was regarded as illicit until now.

Order VI – Pleadings generally 

Rule 17 and Rule 18 of Order VI were deleted by the Amendment Act of 1999 and was reinstituted by the amendment in 2002. A new provision has been added which provides that a person has to an affidavit in support of his pleadings while verifying the pleadings. Further, once the trial has commenced, no application for amendment will be allowed except when the Court arrives at the conclusion that in spite of due diligence, the party could not have raised the matter prior to the commencement of the trial.

Written Submission 

After the Amendment in 2002, the parties now have to file written submissions within 30 days from the date of summons which can be extended up to 90 days.

Order XVII: Adjournment 

The amendment Act has fixed an upper limit of 3 adjournments in a civil case and could only be granted based upon a written application. 

Proposed reforms

Fast Track Court (FTC) 

Fast Track Courts were established in India in the year 2000. These are special courts set up for speedy disposal of long-pending cases in the lower Courts. This helps speed up the litigation process. The State Government is empowered to establish FTC in consultation with the High Court. The establishment of 1734 FTC’s was suggested to be set up by the 11th Law Commission of India The Commission also allocated 500 crores in this regard. It also recommended that there should be five FTC’s on average in every district with preference to be given to those districts or states with huge pendency of cases. The Judges in the FTC’s are to be appointed on an ad hoc basis. Of the total 1734 FTC’s, only 1562 were functional by the year 2005 and 1192 by 2011. 

Lok Adalat

Also known as the people’s court is one of the Alternative Dispute Resolution methods in India. Lok Adalats are established under the Legal Services Authority Act, 1987 to settle long-pending cases before any Court or cases which are at the pre-litigation stage. The award passed under the Act is considered to be a decree of the Civil Court. The parties if not satisfied with the award of the Lok Adalat are free to initiate the proceeding in the Civil Court having appropriate jurisdiction. Since its inception around 15.14 lakh Lok Adalats have been organized in India and so far more than 8.25 crores have been settled through Lok Adalat. 

Mobile Lok Adalats: Mobile Lok Adalats are organized across the nation. These Courts travel to various parts of the country from one place to another to resolve disputes through this mechanism. 

Commercial Courts 

Commercial Courts deal with commercial disputes which relate to any alleged dispute relating to the invoice, price, late delivery, etc. The commercial courts were established under the Commercial Courts Act, 2015. The Act provides for the establishment of the commercial court and division in the High Court to adjudge commercial disputes to minimize the load on the Civil Courts 

Filling up of vacancies of the judges and increase in the number of courts

Since there are many vacant posts of judges in the courts there is an urgent need to fill up the vacancies so as to reduce the burden of the Court in disposing of the cases. The existing number of courts is not adequate and increased number of judges would require more courtrooms. 

Adherence to Section 89 of CPC 

Section 89 of the Civil Procedure Code relating to out of court settlement should be strictly complied with. There is no good reason to continue a case in the court where it is plausible to be settled outside the Court. The Courts should encourage the parties to settle a matter by amicable means rather than in Court which will help in reducing the workload of the Court and also in maintaining the relation of parties as well. 

Reduction of delay in filing of written statements 

The court should strictly adhere to Order VIII of CPC in order to save the time of the Court. 

Unnecessary adjournment 

Unnecessary and frequent adjournments should be avoided and there should be a check on these adjournments. The rules of Order XVII of CPC should be followed properly.

Conclusion

Every person has a right to speedy trial and refusal to timely justice results in no justice. Pendency of cases for a long time defeats the whole idea of justice and loses people’s confidence in the judiciary. With the number of cases currently pending in India, there are certain cases that are pending in the Courts for more than 10 or maybe 20 years. The changes brought by the Amendments in 1999 and 2002 to the CPC are basic in nature yet have sweeping results as far as working of Civil Courts in the nation is concerned if they are properly followed. How long should it take to dispose of a case depends upon the facts and circumstances of each case. It is not suggested that there should be justice quickly but without observing the procedures of the Code and hastily disposing of the case by the Judges without considering the material evidence and due hearing in every case. 

References

• https://www.businesstoday.in/current/economy-politics/3-3-crore-cases-pending-indian-courts-pendency-figure-highest-cji-dipak-misra/story/279664.html
• http://lawcommissionofindia.nic.in/reports/report245.pdf
• https://timesofindia.indiatimes.com/blogs/
• http://prsindia.org/theprsblog/examining-pendency-cases-judiciary
• https://www.clearias.com/pending-cases-in-indian-courts/
• https://doj.gov.in/appointment-of-judges/vacancy-positions
• https://timesofindia.indiatimes.com/topic/fast-track-courts
• https://nalsa.gov.in/lok-adalat
• https://web.archive.org/web/20180128035603/http://chddistrictcourts.gov.in/THE%20CODE%20OF%20CIVIL%20PROCEDURE.pdf

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