- By Brahmatej
Chaturvedi
Addl. Civil Judge (Jr. Div.)
Gonda
To criticize
judiciary for delaying in administration of justice is in vogue.
Newspapers, News Channels and other wings of government are
going on and on about huge number o cases pending in the courts
at every level. And when it comes to judiciary they mean
judges/judicial officers only. Undoubtedly the huge pendency of
cases is a major hindrance to the progress of country but what
about frivolous suits? Let us have a look on two examples:
(1)
A suit for permanent
injunction along with an application seeking temporary
injunction until the disposal of the suit is instituted in a
civil court. Presiding officer of the court, after seeking no
urgency in the case, orders for issuing notice to opposite party
and invites objection for the disposal of the above mentioned
application. The plaintiff, on the date fixed for the disposal
of application regarding temporary injunction, surprisingly
moves an application under Order 23 Rule 1 of The Code of Civil
procedure, 1908 (in short CPC) for the withdrawal of the suit.
Interestingly this application is without the prayer seeking
permission to withdraw from the suit with liberty to institute a
fresh suit. As the court remained busy hearing of other cases,
another date is fixed for the disposal of this new application.
On the next date, defendant turns up the files his objection on
the application regarding withdrawal of the suit with certified
copy of the order or another Court granting temporary injunction
in favour of the plaintiff in respect of same property in
another suit instituted later on the basis of same cause of
action as was drafted in the previous suit. The defendant
alleges that the plaintiff, before the other Court, has
concealed the fact of this suit and has got the order of
temporary injunction. Defendant also moves an application to the
same effect in the other Court.
(2)
In a suit for
permanent injunction, along with an application seeking
temporary injunction until the disposal of the suit, notices are
issued to opposite party and objections are invited for the
disposal of the above mentioned application. After some days,
while going through the files of freshly instituted suits.
Presiding Officer recalls that she or he has seen the same
description of property in suit (while going through another
case) and suddenly he recalls that the counsel for plaintiff is
also same. Presiding officer sends for records of recently
instituted suits. Thereafter the presiding officer is taken
aback to find that THE PARTIES, THE PROPERTY IN SUIT, THE CAUSE
OF ACTION and more interestingly THE COMPUTER GENERATED PLANT
(except the date of institution) of new suit and those one of
previous one are the same…
The dots in the last of these examples show
that the story never ends.
These are just two examples of
untoward situations the subordinate judiciary is facing today.
What should the judicial officer do in these circumstances? A
lot of energy (which can be used to hear the genuine cases) will
now be spent to overcome these frivolous situations. Now an
entirely new series of litigation (Civil as well as Criminal)
will start and litigants have to spend a lot of money and time.
Flatly speaking these incidents also cause confrontation between
judicial officers and bar.
Judiciary does not mean only
judicial officers. It includes bar also. Our judicial system has
its roots in British legal system where lawyers play an
important role in administration of justice. Actually it is the
counsel for either party who draws the attention of the court
towards a specific provision of law or interpretation of law
which goes in favour of her or his party and the counsel for
opposite party tells something different and the judicial
officer listens to the arguments of the learned counsels and
goes through the record in order to do justice. A good argument
always helps the judge interpret law in the interest of justice.
Suffice to say that without the co-operation of the bar good
judgments could not be possible. More over we should not forget
that bar is the mother of very great number of judges.
Undoubtedly legal profession is a
very pious profession and it is a very strong pillar of our
judicial system but there are very few lawyers who do not leave
a stone unturned to tarnish the image of their profession. As
our society is passing through its transition phase, every
institution is facing the deterioration of ethics. The legal
profession, which is considered the profession of learned, calm
and self-controlled people, is now a days going in the hands of
such persons who adopt this pious profession just to make a
quick buck and nothing else. They can do anything to achieve
this goal. Gone are the days when lawyers told their clients
very clearly that their case was weak. Now some of them assure
their clients that the judgment will be in their favour by hook
or crook.
The above mentioned examples
confirm this changing attitude of legal profession.
A fistful of such lawyers can
file a number of vexatious suits in order to achieve their goal.
Sometimes they encourage their clients for litigation even
though they know very well that this is a futile exercise. The
suits are being filed just to pressurize the other party.
Suppose there are some clashes
between husband and wife and after a hot discussion the wife
leaves the house of her husband. Some habitual litigants incite
the wife to file a complaint under section 498-A of Indian Penal
Code against her husband to teach him a lesson. Thereafter she
plans to move an application under Section 125 of The Code of
Criminal Procedure. Now, in order to collect the evidence of his
innocence, the husband moves an application for the restitution
of conjugal rights under section 9 of The Hindu Marriage Act and
so on……..
I am sure that almost every
complaint under section 498-A of Indian Penal Code also brings
the above mentioned litigation. I am not saying that every suit
is vexatious one but in the above example the counsels did not
try to make their clients understand that they can solve their
disputes peacefully or rather they encouraged the litigation.
In its 131st report “The
Role of Legal Profession in Administration of Justice” the
Law Commission of India says –
“It is unquestioned that in any unorganized
profession, there are bound to be some persons who are unaware
to maintain the high standard of profession. In some cases
evidence reveals a sordid state of affairs in lawyer-client
relationship. This itself can not be sufficient to condemn the
profession as a whole but this aspect can not be ignored also.
It is here the question of accountability of the profession to
their litigants and system comes to fore. The leaders of the bar
must show a deliberate concern with the fate of the poor and the
indigent by volunteering to take up their cases in court of
law.”
“ ……… Therefore, the first step that is
required to be taken is not to encourage litigation but to
reduce litigation. The role of the legal profession is to reduce
disputes and only in the last resort the matter should be
permitted to go to court.”
Our Constitution provides many
fundamental rights to citizens. The judgments of Hon’ble Supreme
Court and Hon’ble High Courts have also paved the path of real
freedom: but we should not forget that a big section of our
society is illiterate and does not understand law. When these
people face some legal problem they go to a lawyer. Now it is
the duty of lawyers to reduce disputes and only in the last
resort the matter should be permitted to go to court but I am
sorry to say that this role is not being played by few lawyers.
They are deviating from ethical values. They do not understand
the importance of their duty. They are busy making fast back.
They invoke the laws in order to encourage the litigation.
Really it is not a hopeful scenario.
Lawyers have played a leading
role in every field of life and they should also try their best
to reduce the burden of huge pendency of cases without worrying
about their income because frivolous suits die their own death
without any result and thus they whittle away the image of this
profession. On the other hand, if a lawyer gives her or his
client a good advice it pays to her or him in the form of good
clientage. I know that this is difficult to understand because
very few people have farsightedness. Furthermore there is a risk
to lose the client as in this age of internet everyone wants
quick results. Nevertheless it has been experienced that even if
a client runs away after getting your realistic advice he comes
back soon as a disappointed one and now he becomes your best
advertiser. Thus honesty is the best policy.
Development of society is not possible by making laws only.
Legislature amends the existing laws with a view to make them
fit for the needs of changing society. Nowadays many laws are
being framed or amended in order to reduce the litigation but
unless a large section of society is ready to get benefited by
this effort everything is futile. As it has been said above
laymen, because of illiteracy, go to lawyers for legal
consultancy and believe them therefore it is the duty of lawyers
to cooperate with the efforts of government by giving their
clients such advice that can solve their problems in a peaceful
way without unnecessary litigation and more problems. Hopefully
bar will understand its role in reduction of litigation and our
country, after getting rid of these chains, will achieve its
deserved positioning the world.
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