Report No. 27
15. Some delay inherent in English system.-If the English system is to be adopted, some delay is inherent in that system itself. The essence of the English system is a "fair trial". A "fair trial" means that each party must know the case of the other party (pleadings), that each party must disclose to the other party all documents which are relevant to the subject-matter of the dispute between them (discovery and inspection), that the Court should determine the points of difference between the parties (issues), that each party should be permitted to lead evidence in support of its case (examination of witnesses) and, finally, that each party should be heard before judgment is delivered. An ideal Code is one which strikes a just balance between a fair trial and expedition. Subject to the necessary safeguards to ensure a "fair trial", the procedure should be so simple that "it is easier to decide a case than to invent reasons for not deciding it".
16. Causes of delay-personal factors and defects in procedure.-The causes of delay may be divided under four heads (1) insufficient number of judges, (2) inadequate ministerial staff, (3) personal factors, and (4) defects in procedure:
(1) There is congestion of work in several courts. The only way of removing such congestion is to appoint additional judges. Unless the arrears in any court are wiped out by the appointment of additional Judges, any improvements in procedure will not result in the expeditious disposal of cases in that Court.
(2) The remuneration at present payable to judges is grossly inadequate. The Law Commission, has in its Fourteenth Report1, made certain recommendations on this subject. If Judges are expected to work efficiently and honestly, they should be properly paid, having regard to their status and the nature of work done by them.
(3) A great deal of preliminary work for getting cases ready for disposal is done by the ministerial staff. The ministerial staff should be of sufficient strength to handle such work properly and expeditiously. The emoluments paid to the ministerial staff in subordinate courts are near the starvation level. A great deal of corruption among the ministerial staff in subordinate courts is due to this factor. It is, therefore, imperative that the conditions of service of such ministerial staff should be improved2.
(4) Under the head "personal factors" fall such causes of delay as (1) inexperienced Judges, (2) inefficient ministerial staff, and (3) delaying tactics adopted by litigants. The first cause of delay is outside the scope of our inquiry. As regards the second cause, a great deal of delay caused by this factor could be avoided if in every court there is a well-organised office which is equipped with trained staff and is properly supervised. We shall, therefore, proceed to deal with cause (3), which is sometimes erroneously attributed to defects in procedure.
1. 14th Report, Vol. I.
2. 14th Report, Vol. I
17. Delaying tactics.-A leader of the New York Bar is said to have begun his practice with the following motto on his wall:
"If I am plaintiff, nothing can stop me. If I am defendant, nothing can move me."
There is a popular belief that the technicalities of legal procedure can be exploited and a case continued almost indefinitely if so desired. In a weak case, apart from numerous applications for adjournment, frivolous interlocutory applications are made, e.g., applications for amendment of the pleadings or for amendment of issues, examination of witnesses on commission, summoning unnecessary witnesses, etc. These tactics do not succeed before an experienced and astute Judge. They succeed only before Judges who have no adequate experience. And such tactics succeed not because of the observance, but because of the non-observance, of the rules of procedure. Delay under this item is, therefore, not due to any defects in procedure. Rules of procedure are intended to subserve, and not to delay or defeat justice.