Report No. 14

Hearing

51. Uncontested matters (Findings and recommendations of the Rankin Committees) (Utility of new form of summonses doubtful).-

In an earlier chapter, we have noticed that about two-thirds of the civil suits are disposed of by the courts without a contest and in the same year in which they are instituted. The average duration of such suits disposed of ex parte or without contest varies from about three to nine months. It does not appear that the hearing of uncontested or ex parte cases is unreasonably delayed. But occasionally such cases have taken nine or ten months or even a year for disposal. In the opinion of the Civil Justice Committee such delays in the disposal of ex parte cases arose in part from the over-worked presiding officer leaving the fixing of dates for hearing to his clerk. "He" (the presiding officer) "does not know, until the case is called on, whether it would be contested or uncontested.

An inordinately long list of cases is fixed for each day. It happens too often, that a suit which should be decided ex parte on the first date on which it is called is crowded out by other work and never reached. The hearing is then adjourned by the clerk and on the adjourned date the same thing happens"1. The Committee thought that the judge should invariably endeavour to find out at the first hearing whether the suit is contested or uncontested; and, if it is uncontested, to decide it at once.

It therefore recommended a new form of summons for directions whereby the defendant could be called upon to appear merely for the purpose of stating whether he does or does not contest the claim and, in the event of contest, of receiving directions as to the date on which he has to file his written statement, date of trial and other matters. The form of summons in use in Madras seems2 to have been based upon this recommendation. We have not been able to ascertain to what extent a summons in this form results in speedier disposal of uncontested cases.

If the defendant appears in consequence of the summons being served upon him, he either admits the claim or disputes it and in the latter case he either files his written statement immediately or asks for time to put in his defence. This would happen whether summons be in the form for settlement of issues or for receiving directions to file written statement. We do not therefore think that the form of summons recommended by the Committee will help in focussing the attention of the court to cases which are uncontested any more than a summons in the simple form for settlement of issues.

1. Report, p. 10 para. 21.

2. Schedule I, App B, Form IA.

52. Separate ex parte list.-

It has been proposed that ex parte matters should be set down for hearing from time to time in a separate ex parte list and judgment should be signed forthwith on the verified statement in the plaint and without taking evidence. The position under the Code is that if the defendant does not appear when the suit is called on for hearing and it is proved that the summons was duly served upon him, the court may proceed ex parte against the defendant. This is provided by Order IX, rule 6. The court is, however, unable to pass an ex parte decree forthwith because the law requires that the plaintiff should make out a prima facie case and the mere absence of the defendant does not of itself justify the presumption that the plaintiff's case is true.1

If the plaintiff is present, the courts generally take his evidence in support of the claim before passing the ex parte decree. However, very often the plaintiff who is represented by a lawyer is not present on the first date of hearing in the belief that the defendant will appear and ask for time to file his written statement. In such cases, if the defendant has not appeared to contest the suit, the courts make an order against him that the suit be heard ex parte. The ex parte hearing takes place thereafter on a future date.

There is of course no harm in setting down such cases for hearing in a separate ex parte list. However merely maintaining such separate lists of ex parte cases will not result in their expeditious disposal. ex parte matters may be fixed for hearing along with contested matters but the presiding officer must invariably take care to see that the ex parte matters are heard and disposed of before the contested work begins.

1. Mulla's Civil Procedure Code, 12th Edn., p. 639.

53. Judgment on allegations in plaint (Not possible unless verification is on oath).-

The proposal that judgment should in ex parte matters be signed on the verified statements in the plaint without taking evidence did not receive much support. Several judges of the High Courts expressed themselves against it. It was pointed out that verification of the pleadings required by Order VI, rule 15 is not on oath and that the plaint is not a sworn statement upon which judgment can be given. There is considerable force in this view and we deprecate the practice which we were told was in vogue in sotne States of passing ex parte decrees on the strength of statements made by the plaintiff in his plaint.

However if our recommendation to amend Order VI, rule 15 made earlier, is accepted, it will be possible for the courts to dispense with the formal evidence of the plaintiff and to give judgment straightaway on the plaint, which would be verified on oath, without adjourning the case to a future date.

54. Contested matters (Crowded cause-lists).-

As a rule the courts fix considerably more work than they can possibly dispose of on any one day. Consequently the litigants and their witnesses are in a large number of cases compelled to come to the court and go back, time and again, without their evidence being recorded. The practice results in considerable delays and an increase in the costs of litigation. The practice prevails not only in courts with heavy arrears but also in courts which have only a normal pending file of not more than one to one and half year's institution.

The practice of fixing more work than can be finished in a day seems to have arisen from a desire to provide against a possible breakdown of the day's file by reason of unforeseen circumstances. It is also due to the presiding officer not giving his personal attention to the fixing of his daily list and leaving it to his bench clerk or other ministerial officer of the court to post cases for hearing. In courts with a considerable amount of work all the cases ready for trial cannot be set down for hearing within a reasonable time from the date of settlement of the issues. Even if a distant date is given, there is no certainty that the case will be taken up on the date so fixed.

55. Heavy pending files.-

The normal average disposal of suits both contested and uncontested in munsif 's court may be taken to be about thirty to thirty five original suits. In such a court an ordinary title suit of a contested nature usually takes a year to reach final disposal. On that basis, a munsif's normal pending file should not be more than 350 to 400 suits. If the file is heavier, the presiding officer will be unable to cope with it and the number of pending old suits will have a tendency to continue to rise year after year.

In Uttar Pradesh we came across cases where a munsif's court presided over by a single officer had to deal with a file of over 1000 pending suits. The insistence by some of the High Courts on fixing a minimum out-turn of work as a test of efficiency of the judicial officers, results in a tendency in the officer to pay more attention to lighter and simpler suits and to adjourn difficult and heavier work.

In Kerala, we were told, that the munsifs post daily as many as thirty to forty suits for trial. A roll call of parties is taken at the commencement of the day's work and this takes an hour or more. The judge is not able to take up during the day more than one or two of the suits fixed for the day. Thus a large number of parties and their witnesses hang about the court unnecessarily throughout the day. The practice of fixing specific dates for hearing for a large number of cases makes day-to-day hearing of cases impossible and results in a piecemeal hearing and in frequent adjournments of even part-heard suits.

56. Inadequacy of officers.-

In some States, notably in West Bengal and Uttar Pradesh, shortage of judicial officers was stated to be the main reason for the congestion of work and the over crowding of cause lists in the subordinate courts. The problem of the adequacy of judicial personnel has been considered by us elsewhere.

57. Posting of cases (Personal attention of judicial officers to posting necessary).-

The main reason for this state of affairs in many of our courts, in our view is, that the question of fixing dates for the hearing of suits is not given the attention which it deserves. It is of the utmost importance that at the time of fixing dates the presiding officer should, in consultation with the advocates, attempt to estimate the time required for the trial so as to ensure that all the work fixed on a particular day will be disposed of on that day. "A reasonable estimate can be framed as to how long a particular suit will take to hear. The time required for the purpose may exceed the estimate; it may be below the estimate.

The death of a party may prevent the suit being heard on the day on which it is fixed, the plaintiff may withdrawal the suit, the parties may compromise. If the suit comes on for hearing, the hearing may take a longer period than the period estimated by the presiding officer. But over the greater part of India no attempt is made to make such estimates, and more work is fixed in a day than can possibly be done in the days".1 It is therefore essential that judicial officers should devote their personal attention to the fixing of their lists.

They should not leave the work of fixing these dates to their bench clerks or ministerial officers. The dates should be fixed by them after looking into their diaries and after making a reasonable estimate of the time required to dispose of the work fixed on a given day. It has been represented to us that lack of proper control of the ministerial staff by the presiding officer causes many unnecessary adjournments. The ministerial staff is, it is said, interested in a case appearing in the cause list many times, without being actually heard and disposed of.

The advocates, if they are remunerated by daily fees and the clerks in some courts also receive payment for each day the case appears on the list whether the case is heard or not. Thus, the interests of the clerk and of the pleader often are adverse to quick disposal of cases. It is therefore imperative that the courts should be vigilant and careful in framing lists so as to restrict them as far as possible to cases which will be disposed of on a particular day.

1. Report of the Civil Justice Committee, p. 26, para. 2.

58. The Madhya Pradesh method: setting date (Block of days for recording evidence).-

We would in this connection refer to the method evolved in Madhya Pradesh for the trial of civil suits. In that State on the completion of the preliminary stages a date is generally fixed called the "settling date" for giving a list of witnesses and paying the necessary process fees and expenses. On that day the court is also required to obtain information which will enable it to estimate the probable length of the hearing. Thereafter a date or several consecutive dates are required to be fixed for recording evidence.

An unbroken block of a sufficient number of working days commencing from the first working day of each month is allotted for the trial of regular suits each month. This block is reserved exclusively for cases in which evidence is to be recorded although work of a minor character which does not claim much of the time and attention of the Judge may be fixed along with such cases. How this method works in Madhya Pradesh was described by a former Chief Justice of the Nagpur High Court as under:

"I would strongly recommend the system of trial of civil cases evolved by Madhya Pradesh where adjournments are the least frequent and the witnesses are seldom turned back on the ground that the court is busy doing something else. In that State it has been recognized that witnesses should be called on the date of hearing actually fixed by the court. It may be a long date of even six months. But the litigant is not harassed every fortnight or every month to bring his witnesses and then be told that they all have to go back because the court was otherwise busy."

The success of this method in Madhya Pradesh seems to be due partly to the fact that the lawyers are not interested in prolonging the trial or in having adjournments, because they generally receive a consolidated fee prescribed by the rules of the High Court and not daily fees as is the practice in the northern States.

Further, in Madhya Pradesh, inability to take up a case on the date fixed for hearing is regarded as a slur upon the presiding officer. "Hence every presiding officer of the court makes a genuine effort to have the case heard on the dates fixed, with the result that there is least harassment to the witnesses or to the parties who called them and least expenditure too." We understand that the manner in which a judge fixes his diary and the number of adjournments are among the tests applied in Madhya Pradesh for assessing his efficiency. We are of the view that such a test of efficiency should be applied in all the States.

59. In Madras: special list system.-

In Madras, a somewhat different system was evolved and tried successfully in the munsifs' courts in some districts. The basic principle of this system which was described as the "special list system" was also the same, namely, that no more work is posted for the day than can reasonably be expected to be taken up. The essence of the special list system is that no contested suit would be taken up for trial unless it is posted for the day in the special list to be prepared and published by the presiding officer in the following manner.

All contested suits ready for hearing are in the first instance posted in the diary on hearing book by the bench clerk, about four to six suits being fixed for a day, so that all of them can be called up once in eight or ten weeks, it being clearly understood that this posting is merely formal and intended only for the purpose of reporting compromise, death of parties, and the like. The special list is then prepared at the beginning of every month for the whole of the following month. For each day of the following month not more than two suits selected from out of the suits posted in the hearing book and fixed for trial.

One of these must be the oldest of those suits while the other will be chosen from the rest having regard to the nature and complexity of the old suit. The old suit will of course be a heavy suit and therefore the second suit chosen is a light one. The special list prepared in this manner is treated as a provisional list and is published on the notice board of the court and of the Bar association by the fifth day of each month. Between the fifth and the tenth, any representation, which the lawyers might have to make will be heard and the necessary changes made. The final list is to be published by the tenth and thereafter, short of the death of parties or similar compelling reason, no adjournments are given. Suits not appearing in this special list have to be formally adjourned with the remark.

"Not in the list, adjourned to " But suits in the special list must always be taken up unless circumstances compel an adjournment. If, for any reason, a suit posted for the day cannot be taken up, it stands out of the list and is formally adjourned to some other day unless for some special reason the presiding officer thinks it necessary to post it peremptorily to a particular date. Failing that, it is not to be taken up until it re-appears in the special list and is not allowed to disturb the postings already made in the special list of the following month.

Ordinarily, the light suit is expected to be disposed of before the mid-day interval, so that, it becomes possible to anticipate whether the heavy suit will be disposed of that day or will go on to the next day. If it is found that the heavy suit will take a substantial part of the next day also, the heavy suit posted for the next day is taken out of the special list and the lawyers concerned informed accordingly. The same course is adopted if the heavy suit goes on to a third or fourth day.

60. Conditions for its proper working.-

It is claimed that the above system leads to the hearing of the cases from day-to-day in the munsifs' courts unless unforeseen circumstances make this impossible and also guards against there being more than one part-heard suit at a time. It is obviously necessary to the proper working of this method that adjournments should be given only in exceptional cases and for compelling reasons. In cases where both suits posted, for the day collapse, the presiding officer can utilise his time in checking the various departments of the court or dictating reserved judgments. Though the system had been tried successfully only in munsifs' courts, there is no reason why it should not be worked with equal success in subordinate judges' courts.

61. Bombay.-

In Bombay, the Rules of the High Court contain instructions for the presiding officers to make some sort of estimate as to the period required for disposal of each particular portion of work and to fix the dates after making such an estimate so as to ensure that the work fixed for a day will be finished. A margin may be allowed but every endeavour should be made to prevent litigants appearing in court and being sent away without a hearing on the ground that the time of the court is so occupied that no attention can be paid to them. The Rules of the High Court permit the courts to enter cases on a sine die. list, if necessary.

If, after the issues are framed and the matters preliminary to the trial are attended to, it is found that no day for hearing is available within the next ten weeks, the case is entered on the sine die list until such time as it can be fixed for hearing. The list must be carefully examined by the Judge every week so as to see that the cases in it are set down for hearing, as days become available. This method also prevents the congestion of the daily diaries and if intelligently followed, the parties and their witnesses are not put to the necessity of coming to the court from time to time without being given a hearing.

62. Recommendations.-

We strongly recommend the adoption of the Madhya Pradesh method of fixing a certain number of days in a month exclusively for recording evidence, which has yielded very good results. Merely laying down rules in the circulars prescribing the method will not be enough. The observance of these rules will have to be strictly enforced as in Madhya Pradesh. If some difficulty is found in working it, we would recommend the adoption of one of the other two methods with such modifications as may be necessary having regard to local needs and conditions.

63. Hearing from day-to-day a rarity (Violation of the Code).-

It has also been brought to our notice that in many States the provisions of Order XVII, rule 1 are disregarded and the hearing of a case once begun is not continued from day to day. This happens in spite of the instructions to the contrary laid down by all the High Courts for the guidance of subordinate courts. Our examination of the order sheet of a large number of suits in the courts of munsifs and subordinate judges in West Bengal and Uttar Pradesh showed the utter confusion which prevails in the matter of fixing the dates of hearing. Day after day the cases, were/are adjourned either because the lawyers are engaged elsewhere or because the court is otherwise busy. Indeed, so chaotic were the files, that cases often adjourned to a future date only for the purpose of fixing the next date of hearing.

This difficulty, in our opinion, is created by a total disregard of the provisions of Order XVII, rule 1 and a failure to appreciate that it contemplates the continued hearing of a case, once it has started, from day-to-day until it is finished. In various States we found the subordinate judiciary acting as if they understood, the Code to provide the contrary. They seemed to think that interrupted hearings should be the rule and a day-to-day hearings the exception. We found in some State the cross-examination of a witness spread over several hearings with breaks running in some cases into months.

It seemed to be the invariable practice to adjourn the case after the closing of the plaintiff's evidence and before the starting of the defendant's evidence. It would also appear to be common practice to adjourn the case after the recording of evidence is completed to enable the counsel to prepare their arguments. A further adjournment invariably takes place after the arguments are closed for the judge to deliver his judgment. It needs to be emphasised that every step in this method of what may be described as the hearing of a suit through a series of adjournments, is contrary to the Code.

There is no reason why all the witnesses in the case whether those of the plaintiff or of the defendant should not be examined in a series, the evidence followed immediately by arguments of counsel and, in most cases, the judgment following the close of the arguments. This happens every day in practice on the Original Sides of the High Courts of Calcutta, Madras and Bombay, and we see no reason why the subordinate courts should not be able to follow the same procedure.

64. Sudden intrusion of sessions work.-

The situation is most acute in parts of West Bengal where hearings are constantly interrupted particularly in the courts of the subordinate judge, by the sudden intrusion from time to time of sessions cases. The subordinate judges in that State as in many other States, are invested with the powers of the assistant sessions judges. But what is usual in West Bengal is that the trial of civil suits in these courts is very often interrupted by the start of a sessions case which is fixed for that very day or the next day. We were told by the President of the Alipore Bar Association and also by the District Judge of Alipore and other Senior judicial officers that the civil work is delayed because sessions cases have to be given priority.

Frequently, a civil suit which has been going on for a number of days has to be adjourned because a sessions case fixed for hearing on that very day, is suddenly transferred by the sessions court to the subordinate judge. This mixing up of civil and sessions cases creates great difficulties. The judicial officers said that they could dispose of pending heavy cases more expeditiously and might be able to give day-to-day hearing, provided they were not so frequently disturbed by the transfer of sessions cases.

Rational distribution of work in advance necessary.- At the time of our visit to Calcutta we found that the district of the 24 Parganas which is the largest in Bengal with its headquarters at Alipore had, besides the district and sessions judge, a judicial strength of nine additional district judges, twelve subordinate judges and twenty two munsifs, almost all of whom were holding court in Alipore itself. We have not been able to understand why a simpler and more practical method of distribution of civil and criminal work by entrusting some of the judges exclusively with civil and the others with criminal cases cannot be adopted.

If the subordinate judges have to be assigned sessions work it is of the utmost importance that the sessions judge should transfer cases to them sufficiently in advance of the date of the hearing to enable the subordinate judge to fix its hearing having regard to the state of his own civil work. The sessions cases must therefore be transferred as soon as the committal papers have been ' received, leaving it to the subordinate judge to fix the date of hearing. We see no justification for the system under which the hearing of the sessions case is fixed by the sessions court in total disregard of the state of file of the court to . which it may ultimately be transferred and the case is sent to that court at the eleventh hour so as to completely disorganize the posting of civil work in that court.

65. Adjournments.-

The law on the subject of adjournments has been thus stated in Order XVII, rules 1 and 3 of the Civil Procedure Code:

"The Court may, if sufficient cause is shown, at any stage of the suit grant time to the parties or to any of them, and may from time to time adjourn the hearing of the suit.

(Rule 1)

Where any party to a suit to whom time has been granted fails to produce his evidence, or to cause the attendance of his witnesses, or to perform any other act necessary to the further progress of the suit, for which time has been allowed, the Court may, notwithstanding such default, proceed to decide the suit forthwith".

(Rule 3).

Thus the hearing of a suit once begun has to go on from day to day, until all the witnesses in attendance have been examined unless the court sees sufficient cause to adjourn the hearing to a future date. The expression "sufficient cause" has not been defined because the rule does not intend to fetter the discretion of the court to grant time. On the one hand no adjournment can be granted if no sufficient cause is shown and on the other, the court should not refuse an adjournment if sufficient cause is shown. What is "sufficient cause" is a question of fact in each case.

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