This is true that lack of settlement culture is one reason behind backlog, but not the only reason. Our Justice delivery system is several other bottlenecks. For instance:
(a) Judges are not accountable for not applying judicial minds in their order rather in almost majority cases they are passing just the mechanical orders. Remedy: A mechanism should be developed to give them rating for their orders based on application of Judicial Mind or on mechanical orders. This will improve Justice delivery system and also reduce the backlog of the Appeals.
(b) Permission to file suit or litigations to blackmail the other side parties, since law permits to file suit or litigations to blackmail the other side parties. Remedy: In the Civil litigation, the looser of the case for the reason of the fact should bear the entire cost of both side parties. In the criminal case, when it proved that case was based on created stories, the Complainant should be liable for the same punishment, which is fixed for the crimes being subject matter of the complaint.
(c) Advocate’s tendency to linger the proceedings. Considering such reasons, during 1983, after studying about 250 cases, I have prepared a Model Draft of New Civil Procedure Code, dividing a the Civil Litigation in to Judicial/Non-Judicial works, as follows:-
DRAFT FOR MODEL OF CIVIL PROCEDURE CODE
In view of the considerations, that Justice means Justice in time, the Petitioner had prepared a model of Civil Procedure Code to suggest the replacement against the existing Civil Procedure Code. All concerned may agree with that “Justice delayed Justice denied” in real sense due to long-long-time-taking procedures adopted under the said code for Civil litigations. Such serious situation is responsible for increase of crimes related to such civil litigations.
In the year of 1983-84, the I made an in-depth study of Civil Procedure Code and its 51 Orders, 703 Rules, and thousands Sub-Rules, besides 151 Sections and several hundred sub-sections and found that the object behind these provisions were to ensure free and fair justice. Butter mixed with honey will be poisonous. Likewise, good Civil Procedure Coder prepared in the line of law in United Kingdom , in India , became instrumental to misuse the Administration of Justice to harass and blackmail the opponents. Some people files litigations thinking that they can obstruct the object of opponent for several years. A democracy cannot survive for a long time unless Justice is protected and ensured. Having this concept in mind, the petitioner had written about the said Model of Civil Procedure Code to the then Law and Justice Minister Shri Ashok Sen by letter dated 15th March, 1985 by Regd. Post. In view of Reforms, Globalisation and open Market Economy, the said Model Code has now became more important and the petitioner have understood that their Lordships are eager to evolve a Judicial system under Free, Fair and Fast adjudication of the litigations can be possible. The main reasons for delay in litigations are unwarranted adjournments of trials on various grounds, interlocutory proceedings, which is removed in his model, from the business of trial courts and Advocates have given much more responsibilities, in depth involvement in Administration of Justice and made accountable to their clients. which I also forwarded to the then Hon'ble Chief Justice of India Mr. A. M. Ahmadi, through Registered Post vide Letter dated 3rd March 1995 and then referred in Writ Petition (Civil) No. 151 of 1996 filed and moved before the Hon'ble Supreme Court. However, after verbal observation/advice made by Justice Ahmadi, I also forwarded my aforesaid Suggestions to the Law Commission of India by letter dated 6th June 1996 posted through Registered Post”.
Model Code was prepared to ensure the Free, Fair and Fast Justice within time bound program described as under:- Service of summons 40 Days
Collection of documents by the
Advocates of defendants 60 Days
Filling of the Defence 60 Days
Interrogations and answers from both
side parties 60 Days
Recording of evidence 90 Days
Finding of Facts 90 Days
Judgments 60 Days
Maximum adjournments permissible 60 Days
520 Days
Execution of Judgments (If Appeal not filed) 180 days
Total 700 Days
Under this model code, adjudication of litigation, is divided in to four parts. Up to the interrogatories and answers, the record of the suit will kept with the court of the Registrar at a Sub-division level, who will also maintain Registers for the following business:-
a) Registration of all litigations in one Register irrespective of any Police Stations under the Sub-division.
b) Publication of a List of the Penal of Advocates; (the entire list of Members of a Bar Association of a Sub-Division will constitute such list on seniority basis.
c) Filing of the evidences recorded by the Penal Advocates of the litigation who will be appointed on rotation basis.
d) Allotment of litigations for the courts of Munsif on rotation basis to record findings of facts.
e) After return of the file of litigation from the concerned court of Munsif, allotment of litigation to a court of Asst. Dist. Judge to pronounce its Judgment.
Now the Petitioner would like to present a brief note on the orders of Model suggested Code which will ensure the Justice within prescribed period irrespective of all consideration.
MODEL OF ALTERNATIVE CIVIL PROCEDURE CODE
ORDER-I: Parties to the Suit (against the existing Order I and part of Order XXII) :
All interested parties have right to file, participate or defend any suit subject to bear full actual cost including damage due to suit, if failed to establish his / their claim or defence.
ORDER- II: Suits (against existing orders II, IV, VII, XI, XIV):
a plaintiff shall file the plaint in prescribed form along with duplicate copies of all documents in his possession and on which he relies to file the suit; list of documents which would not be in his possession but at the same time, he relies his claim giving the name and address of possessors of such documents, if plaintiff knows; suggested issues; list of witness all pleadings with full facts and full court fees before the Registrar of Trial Courts at a sub-division (There will be no provisions for amendment of plaint or pleadings)
ORDER-III: Recognised agents and pleaders (against existing Order III) :
The Advocate of the plaintiff would be accountable to serve the summons and Advocate of the Defendants would be accountable to receive the (copy of the) plaint and other documents from the Court of Registrar. Such Advocates would work in real sense as court officers as well as agents of their clients.
ORDER-IV: Summons:
(a) The Advocate being the agent of the plaintiff as the Court Officer in concerned litigation would serve the, summon within 30 days from the date of filing of litigation through his own men as well as by Regd. Post. If in both manner, the service of summon is not possible, he will publish notice in two local newspapers of sub-division stating suit No. name of the Court of Registrar, name and address of the plaintiff and defendants and himself, without referring the cause of the suit. The date of publication of such notice should be treated as service of summons.
(b) Copies of the plaint and all other documents would not required to send along with the, summon, but shall be deposited with Registrar, from whom, the Advocate being the agent(s) of defendant(s) would, collect such copies within 7 days from the date of service of summons.
(c) The Advocate of the plaintiff would be empowered to sign the summons in the capacity of court officer in the concerned litigation.
ORDER-V: DEFENCE (against existing Orders VIII, VVV-A, IX, XII and XXIII):
The Written Statement under existing code would be replaced by the word defence. The opposite parties shall file their defence within 60 days from the date of service of summons in the same manner of the plaint, alongwith Xerox copies of all documentary evidence in his defence, if any, have in his possession, list of any documents if not in his possession with name and address of possessors of the same, if he knows, list of witnesses in support of his defence, and list of additional issues, if any.
ORDER-VI Documents (Against Existing Order XIII):
The discovery of documents would be submitted alongwith the plaint. Under the model Code, the possessor of any documents relating to any litigation automatically become the Receiver of the particular documents in his possession for time being, till disposal of the concerned litigation and should supply True Photocopies of such documents on payment of cost within 7 days from the date of notice from the Advocate of either side in the said litigation.
ORDER-VII: Adjournment:
(Against existing Order XVII) Adjournment for total period of 60 days between the filing of the litigation and Judgment can be granted by the District Judge only.
ORDER-VIII: Interlocutory Orders:
Interlocutory orders like temporary injunction can be granted by the Appellate Court only, which will not effect the adjudication of the main suit at trial courts.
ORDER-IX: Affidavit, the provision will remain as existing, under order IX.
ORDER-X: Interrogatories:
(a) Under the proposed code, interrogatories will become a necessary part of the proceedings of the suit, which also will help judiciary to give findings and judgments on the more stronger basis.
(b) After filing defence by the defendants, in a suit, both the parties will, if any, make a questionnaires in a prescribed form within a limited period, upon opponent parties who in his turn shall bound to make answers within prescribed times in prescribed form, otherwise shall be debarred from contesting the suit.
(c) ORDER-XI: Jurisdiction:
(d) Instead of present jurisdiction of trial courts based on Police Station, all Civil Suits within all Police Stations under a particular Sub-Division shall be comprised as one Jurisdiction to be vested in the Court of Registrar of such Sub-Division.
ORDER-XII: Recording of Evidences:
(a) A Court Officer would be appointed for this purpose from penal of Advocates amongst all members of local Bar of a Sub-Division which shall be declared on the first day of each year, without delisting anyone, but on the basis of seniority.
(b) Recording of the evidences of the witnesses would be duty of this penal;
(c) This will be the duty of the plaintiff/defendant to produce his witnesses: before the Court Officer within prescribed time to record evidence in presence of the both side Advocates and parties and within the area of court compound;
(d) Evidences given by the witnesses would be recorded by the Advocates from the said penal on the rotation basis, and in presence of parties and Advocates of both side parties, and signatures of the witnesses, Advocates, of both side parties as well as parties would be taken over in the prescribed form on which evidence would be recorded.
(e) Evidences would be recorded in triplicate with the help of carbon paper and one copy each would be served to the first Plaintiff and defendant respectively just at the moment of recording of evidence and original would be submitted before the Registrar of the Trial Courts. Xerox Copies of recorded evidence shall be supplied to other plaintiffs or defendants, if any, after certifying as true copy by the Penal Advocate / Court Officers.
ORDER-XIII: FINDINGS:
On the basis of allegations, claims made by the plaintiffs the defence filed by the defendants, answer made by both side parties against interrogatories submitted by either party and evidence recorded by the Advocate Penal, the Court of Munsif will make its findings of facts on the prescribed form.
ORDER-XIV: Judgment and Execution of Decree:
(a) On the basis of findings made by the Court of Munsif, the Judgment of the suit after hearing both parties, would be given by a Sub-Judge, who will be assigned the Suit on rotation basis, considering all facts relates to merit of the case and legal side of the suit. If decree is passed, a copy of finding as well as Judgment would be served upon defendant's Advocate fixing the date of execution of decree. No separate case will be required to be filed for execution of decree under proposed code, but this will be duty of the court to execute the order of decree, if not appealed.
ORDER-XV: COST;
If plaintiff succeeds in establishing his case on the basis of merit, he will be entitled to get entire actual cost of the suit and damage caused thereof incurred by him. On the other hand, if he fails in establishing his claim on the basis of merit, he would be compelled to pay all actual expenses and damages incurred by the defendants. If any case lost by either party for the technical or any ground of law, no order would be passed as to the cost.
She against he in case of female.
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