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2006 DIGILAW 48 (KER)

Abdul Khader v. The Surburban Chit Funds (P) Ltd.

2006-01-24

R.BASANT

body2006
Judgment :- The delay in the judicial process in this country is scandalous. Rather than blame darkness it is certainly better to light a candle. Observance one’s Dharma – by the litigant, counsel, the adjudicator and the State appears to be the only way out. 2. There must be adequate courts. We must have competent adjudicators who do their homework promptly before and after trying/hearing the cases in court. We do also need prompt litigants ably assisted by counsel who do not fail in their duty to themselves and to the system. A transformation in the attitude to civil litigation by all concerned appears to be the need of the hour. This case brings into focus the unfortunate consequences flowing from the absence of such a wholesome culture. 3. The petitioners are defendants 1 and 4 in a suit for money based on what is referred to as a ‘surety agreement’. Altogether, there are 5 defendants. The suit stood listed for trial in the final list on 13/1/06. It is, in these circumstances, that this writ petition has been filed on 23/1/06. The short prayer is that Ext.P3 order may be set aside. 4. the sequence of events are narrated succinctly by the learned Principal subordinate Judge in the following words in the impugned order: “Verified records. The petitioner/1st defendant appeared on 23/11/02. Written statement was filed on 17/1/2003. Issues were raised on 25/10/2003. Thereafter several chance were given for taking steps. On 6/8/2005 parties reported “No more steps” and the suit has been posted for evidence in the special list on 13/1/2006.” It was, in these circumstances, that I.A.No.13/06 which was disposed of by Ext.P3 order was filed on 2/1/06. 5. The petitioners have disputed their signatures in the said surety agreement. Other executants have not, the petitioners now want the suit to be removed from the list so that they can get the suit document – the surety agreement, sent to an expert for comparison and opinion. This is the short purpose for which adjournment of the suit from the list was prayed for. The court below considered the request and held in Ext.P3 that the petition is highly belated; it lacks bona fides and the ulterior motive is to delay the disposal of the suit. 6. This is the short purpose for which adjournment of the suit from the list was prayed for. The court below considered the request and held in Ext.P3 that the petition is highly belated; it lacks bona fides and the ulterior motive is to delay the disposal of the suit. 6. The short question is whether the impugned order warrants interference by invoking the jurisdiction of this Court under Art.227 of the Constitution. 7. The sequence of events narrated by the court below must be alertly taken into account. The scandalous delay in the judicial process will only be further aggravated if this court by invoking the powers under Art.227 were to show undeserved indulgence to parties to a civil suit like the petitioners herein. An incorrect impression has gained ground that any and every error. Inadequacy and contumacious lethargy in the conduct of civil cases can be corrected at later stages by approaching the superior courts. The superior courts, it is lightly assumed, in their anxiety to do justice shall condone any and every inadequacy in the conduct of the trial and grant further leases of life for the litigation. This assumption and impression, and conduct of courts to confirm the same, have in no mean measure contributed to the inordinate delay in the judicial process. The earlier such incorrect impression is dispensed with, the better for the system. Law is for the alert. Justice can be claimed only by those who pursue the avenues open to them with diligence. The impression that the party and the counsel need open the case bundle only after the case is listed for trial must go at the earliest. Once issues are framed, it is the duty of the parties to contemplate the steps required to be taken in the suit and prompt and proper steps must be taken. The experience in the civil revisional/Art.227 jurisdiction in this Court conveys to me that there is a wrong assumption at least among certain sections of the bar that only after listing of the suits for trial, steps need be considered. Courts must ensure that the suits are listed only after all necessary steps are taken. The Presiding Officer in this case appears to have followed the ideal course. Courts must ensure that the suits are listed only after all necessary steps are taken. The Presiding Officer in this case appears to have followed the ideal course. The sequence of events narrated by the learned Subordinate Judge clearly conveys that adequate opportunity was given and the suit happened to be listed only after the parties reported that there were no more steps. There is no contention that the sequence of events narrated is not correct. No satisfactory explanation is offered as to why no steps were taken and why it was reported that there were no more steps. I must assume that no steps were taken earlier and the positive statement was made on 6/8/05 because the petitioners did not really think that any steps were necessary. 8. Rather than advance the interests of justice, it would only lead to negation of justice if the jurisdiction under Art.227 of the Constitution were to be invoked in favour of the defaulting litigants like the petitioners. There is no place for undeserved indulgence or misplaced sympathy. Even in life one does not get an opportunity to correct all mistakes set the clock back and start the game afresh. The careless, lethargic and the negligent litigant cannot be heard to complain of loss of opportunity and alleged denial of justice. Costs cannot always be reckoned as the panacea for the ailment of lethargy and negligence. The system and the polity are also indirect stake holders in every litigation and must insist on the elimination of delay. Stricter approach by courts appears to be necessary. Change in the culture of civil litigation in this land cannot be brought about unless courts adopt such an attitude. Every cause and mission may have its martyrs and courts cannot hesitate to be strict against the lethargic merely because of its anxiety to avoid that. 9. The impugned order may not be revisable; but the jurisdiction under Art.227 of the Constitution survives, it is urged. Jurisdiction under Art.227 cannot, of course, be fettered. Miscarriage and failure of justice must prompt this Court to invoke such jurisdiction. But wisdom, sagacity and practical prudence must be employed to identify that rare case where notwithstanding the fact that a revision petition is not maintainable, a writ petition under Art.227 is to be entertained. That can only be the medicine of law and certainly not its daily diet. But wisdom, sagacity and practical prudence must be employed to identify that rare case where notwithstanding the fact that a revision petition is not maintainable, a writ petition under Art.227 is to be entertained. That can only be the medicine of law and certainly not its daily diet. I shall/need not proceed to list the criteria for such invocation. But I am convinced that this is not a case where such invocation is necessary, warranted or permissible. The failure/omission to take steps earlier to send the document to the expert it is evident was because it was not felt necessary. It is sought now only because that would safely ensure protraction, I am convinced. This Court cannot invoke the powers under Art.227 of the Constitution in favour of the litigants like the petitioners. 10. This writ petition, is, accordingly dismissed.