The words tareekh pe tareekh were made famous by Sunny Deol in the Hindi film Damini, and truly adjournments are the big hindrance in dispensing speedy justice in India and contribute majorly to the system getting clogged.
Chief Justice JS Khehar has little patience with lawyers and advocates who seek adjournment on flimsy grounds. A few months ago, when he had not become the CJI, he snapped when adjournments were sought in continuous cases. He angrily remarked “what is happening? Why is everybody in a holiday mood?” when a junior lawyer pleaded that he did not have the case papers. Justice Khehar offered him his file with the words “here, take my file. Argue.” Then he pressed the buzzer for recess and went to the inner chambers, instructing his staff to call him “when the lawyers are ready.”
Again, a few days ago, he castigated the central government for seeking frivolous adjournments with a warning to impose heavy fines on such pleas. Justice Khehar said “you (Centre) have been seeking adjournments in every matter. We haven’t done anything since morning. From now on, we will start imposing heavy costs for every adjournment”. Then again, just a few days back when Justice Khehar found that states were not filing responses in time, he angrily asked, “Is this a panchayat going on here that the states are not serious?” He directed the states to file the responses in four weeks, failing which the concerned secretaries were directed to remain present in court. The same day, when a junior lawyer sought adjournment on the plea that his senior had gone out of station for personal reasons, the CJI snapped, “is this a joke court or the Supreme Court?”
The Supreme Court has been making strong observations and passing many directives against repeated adjournments for the last few years, but in the absence of a deterrent or penalty, the judges of lower courts and lawyers have been ignoring all such remarks with gay abandon. In a situation similar to kids asking to be excused from going to school by thinking of ingenuous excuses every day, lawyers cook up various excuses to seek adjournments.
But this goes against the interests of the clients they represent, whose cases are prolonged unnecessarily and they have to bear the lawyer’s fees despite nothing taking place on the day of the hearing. Witnesses also have to make repeated trips to give evidence. The apex court has repeatedly directed that witnesses must be examined continuously to avoid this.
In January 2013, a bench of Justices DK Jain and JS Khehar had commented that “the lavishness with which adjournments are granted is not an ailment exclusive to narcotics (case) trials; courts at every level suffer from this predicament. The institutionalisation of generous dispensation of adjournments is exploited to prolong trials for varied considerations.” They went on to say that “such a practice deserves complete abolishment”.
In May the same year, a bench of Justices KS Radhakrishnan and Dipak Misra was even more sarcastic in saying that “we hope and trust that trial courts shall keep in mind the statutory provisions and the interpretation placed by this court and not be guided by their own thinking or should not become mute spectators when a trial is being conducted by allowing the control to the counsel for the parties”.
“The criminal justice system has to be placed on a proper pedestal and it cannot be left to the whims and fancies of the parties or their counsel. A trial judge cannot be a mute spectator to the trial being controlled by the parties” the bench further said.
In July 2016, the Supreme Court once again said that the virus of adjournments needed to be controlled. In the case Gayathri v. M Girish, the court said “if a case ever exposed the maladroit efforts of a litigant to indulge in abuse of the process of court, the present one is a resplendent example. The factual narration, to which we shall advert to immediately hereinafter, would limpidly show that the defendant-petitioner has endeavoured very hard to master the art of adjournment and on occasions having been successful become quite ambitious. And the ambition had no bounds; it could reach the Everestine heights or put it differently, could engulf the entire Pacific Ocean”.
The court further said that “a counsel appearing for a litigant has to have institutional responsibility. The Code of Civil Procedure so commands. Applications are not to be filed on the grounds which we have referred to hereinabove and that too in such a brazen and obtrusive manner. It is wholly reprehensible. The law does not countenance it and, if we permit ourselves to say so, the professional ethics decries such practice. It is because such acts are against the majesty of law”.
The legal fraternity is also concerned. Dushyant Dave, the president of the Supreme Court Bar Association said that “this is very unfortunate. The bar must realise that they have a responsibility towards the litigant. In any other country, you would have to face serious consequences by way of consumer court cases and complaints to the bar councils.”
Eminent jurist Soli Sorabjee also came down heavily on what he called “utter nonsense” and the “greatest curse” and was of the opinion that advocates must be brought under the Consumer Protection Act to make them responsible to their clients. But despite this, nothing seems to be happening and lawyers shamelessly approach the courts for repeated adjournments on frivolous grounds.
Adjournments come under order number 17 of rule 1 of the Code of Civil Procedure, 1908 which states as follows:
1. Court may grant time and adjourn hearing. – (1) 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 for reasons to be recorded in writing:
Provided that no such adjournment shall be granted more than three times to a party during hearing of the suit.
(2) Costs of adjournment – in every such case the court shall fix a day for the further hearing of the suit, and shall make such orders as to costs occasioned by the adjournment or such higher costs as the court deems fits:
(a) when the hearing of the suit has commenced, it shall be continued from day-to-day until all the witnesses in attendance have been examined, unless the court finds that, for the exceptional reasons to be recorded by it, the adjournment of the hearing beyond the following day is necessary,
(b) no adjournment shall be granted at the request of a party, except where the circumstances are beyond the control of that party,
(c) the fact that the pleader of a party is engaged in another court, shall not be a ground for adjournment,
(d) where the illness of a pleader or his inability to conduct the case for any reason, other than his being engaged in another court, is put forward as a ground for adjournment, the court shall not grant the adjournment unless it is satisfied that the party applying for adjournment could not have engaged another pleader in time,
(e) where a witness is present in court but a party or his pleader is not present or the party or his pleader, though present in court, is not ready to examine or cross-examine the witness, the court may, if it thinks fit, record the statement of the witness and pass such orders as it thinks fit dispensing with the examination in chief or cross-examination of the witness, as the case may be, by the party or his pleader not present or not ready as aforesaid.
It is clear that since there are no set rules or prescribed reasons for which adjournments can be granted, it depends purely on the discretion of the judges. In granting adjournments, judges have to strike a fine balance between fairness and efficiency.
The best way out of this predicament was described in the Australian case R v. Cox as “the judge in exercising his discretion is not confined to regarding the interests of the accused. He is entitled to regard the interests of justice which may well be a different matter.”
Court cases cost money, use public infrastructure and time of judges. Lists of cases for hearing on a particular day are drawn up much in advance to efficiently utilise all resources as well as to give advance and timely notice to litigants and their lawyers. Ideally, lawyers get sufficient time to come to court well prepared. Postponements mean that less than optimal work is done in courts on that day and it adds up in wasting scarce resources. It also contributes in delaying justice and it is well known that justice delayed is justice denied.
Hence, judges have to be strict with lawyers seeking repeated adjournments. Bringing lawyers under the Consumer Protection Act is one way to combat this menace, but just that is unlikely to yield the desired results. It will only add up to more disputes, this time between litigants and their lawyers.
This writer had the occasion to tag along with a litigant on a visit to his lawyer. The case was in a lower court and related to an eviction suit. The hearing date had been given about a month back and the lawyer had the file with him all that while. But when the busy man finally had the time to see us, the first words he said was “Oh, your hearing is tomorrow. I could not study the file.” Then he flipped through the file and went on to ask basic questions about the case from the litigant. He was not even aware what had taken place at the last hearing and the status of the case.
Finally, he himself got so confused that he could not figure out the line of argument or defense he could take up in court the next day. So he chose the easy way out and informed the poor litigant that he would seek an adjournment. This correspondent saw a large number of people waiting for the lawyer’s time and the complete chaos his office was in. His juniors had no inkling about the cases coming up for hearing in the next few days and kept asking the waiting litigants about the dates of the hearing. One got the feeling that the effort in that office was not on fighting the clients’ cases in the best legal way possible but to keep all of them confused and prolong the cases.
One is not saying that this is done in all lawyers’ offices but the number of inefficient lawyers is infinitely greater than that of efficient ones, especially in lower courts where cases move at a snail’s pace.
This reminded one of a joke one had heard a long time back. A lawyer stopped going to court on account of old age. He handed over his cases to his newly graduated son. After a few days, the son came home in high spirits with a box of sweets. “Father”, he said, “I won that case you had been attending without result for the last 15 years, here have some sweets.” The father immediately put his hand on his head in a pose of despair and said “you fool, you got a verdict in a case that I kept on prolonging to put you through college and law school. Nothing will become of you.” Although it is just a joke, it clearly describes the way the judicial system works in India where some lawyers keep manipulating both the courts and the litigants to maximise their returns.
One feels that the time has now come to look into restricting the number of cases each lawyer can take up at a time, like it is done with the limit placed on statutory audits chartered accountants can take up in a year. It is often seen that lawyers accept more cases than their infrastructure or time allows them to handle and since they do not find the time to study the cases, they keep on seeking adjournments, prolonging the cases and clogging the system. This is highly unfair. Why should litigants suffer due to the incompetency of and lack of time management by lawyers?
A system to put such restrictions in place can be worked out by the Supreme Court in consultation with the government, the Law Commission, the Bar Councils and other organisations representing lawyers and litigants. The restriction that was placed on chartered accountants was done to ensure efficiency and correctness of work. Overloading leads to being casual and the professional can sometimes cut corners to pass something which he would have examined more deeply if he had the time. The same goes for lawyers.
With lesser number of cases, they would be able to give more quality time to the cases at hand. This would ensure that they would seek adjournments only for genuine causes. It will benefit both the judicial system and the litigants. Although the lawyers would feel that it will reduce their income, but once they start disposing of cases at a faster pace, their efficiency will increase and so will the flow the cases, restoring their income to previous levels or even increasing it. Justice will be the biggest gainer.
The writer is Editor-in-Chief, www.indiacommentary.com