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Report No. 77

Appendix 2

Special List System in Kerala

It should be the aim of every court to dispose of the cases before it with the utmost expedition consistent with a full and fair hearing, without sacrifice of quality and with as little expense and inconvenience as possible to the parties and others concerned. This requires (apart, of course, from what is most important, earnestness on the part of the presiding officer) a suitable ordering of the work of the court. Of extrinsic factors the greatest impediment is the gross over-posting courts generally make with the attendant evils of indiscriminate adjournments and piecemeal hearings extending over months, often years.

In a good many munsiff's courts as many as 30 to 40 suits are posted for trial for a day whereas there is no reasonable chance of more than two being tried. In a Magistrate's court, as many as 30 or 40 witnesses are summoned whereas there is no prospect of more than 10 being examined.

Apart from the waste of time involved in calling the cases, in ordering applications for adjournment-one side or the other, in almost every case, will seek an adjournment-and securing with difficulty sufficient work for the day-in some courts, the roll-call, as this process is called, takes the best part of the morning-this results in a state of uncertainty as to which, of the cases posted will actually be taken up for hearing and leaves the parties, the lawyers and the court itself in a state of unpreparedness.

Since almost all the cases will have to be adjourned for want of time, no one takes the posting seriously. No one holds himself in full readiness since that would be a waste of time, money and energy, the odds being that the case will not be taken up.

A number of cases are begun and then adjourned to be heard piecemeal at long intervals, even witnesses being examined piecemeal; a large number of part-heard cases accumulate-in some courts, there are more than a hundred at a time; with a mind already mortgaged to so many part-heard matters, neither the court nor counsel are able to bestow much thought to or come to grips with the matter actually on hand; at each bearing of a case much of what was done before will have been forgotten and will have to be recalled;
the more difficult cases are passed over to grow older, everybody concerned being pre-disposed in favour of the lighter cases; and the numerous adjournments which even the simplest case suffers not merely involve more work for everybody, concerned, and a less satisfactory conduct and disposal of the case itself, but also entail unnecessary expense of time and money to the parties in attending court, in bringing witnesses and in instructing the lawyers.

Witnesses are not examined on the days on which they are in attendance with the result that they are not in attendance when they are required. And, it often happens that, owing to the failure of the other work posted, a lawyer is compelled to get on with a case on a day when, owing to the absence, of witnesses or for other reasons, he is not really ready to do so, the case having been adjourned on the days he was ready; and not infrequently, the charge is levelled that for the sake of an easy disposal, the presiding officer insists on a case in which the parties are not ready for being heard, adjourning at the same time cases in which the parties are ready.

In defence of this system of over-posting (if system it can be called), it is often urged that it makes for larger disposals and permits of accommodation to the bar while ensuring that the court is not left without work. It is also that there is an understanding that only the oldest of the cases will be taken up. If that be so, it is difficult to understand why the newer cases should be posted at all, for, it would follow that the parties concerned would not expect them to be taken up and would therefore not be ready.

In fact, over-posting tends to smaller not larger disposal; if certainly makes for unsatisfactory and haphazard trials and disposals; and while if only a sufficient number of cases, are posted for a day, the court can reasonably insist on that work being ready-and, once parties and their lawyers have had sufficient notice of the posting of a case for trial there would appear to be no justification for further accommodation-the result of posting more is that no one will be quite ready and that one side or the other in each case will ask for an adjournment. The refusal of an adjournment will be resented, when so many cases have perforce to be adjourned and the result might well be to leave the court without sufficient work for the day.

The expeditious and satisfactory disposal of cases demands that, once a case is begun, it should be heard continuously from day-to-day-where, as in a warrant case, the trial is in stages, each stage should be heard from day-to-day. This is indeed enjoined by both the codes of procedure-see section 344 of the Criminal Procedure Code and the proviso to Order XVII, rule 1 of the Civil Procedure Code.

Adjournments should not be granted except for good and, sufficient cause and unless justice would otherwise suffer; and, of course, a person must suffer the consequence of his own default. The, ideal would be for one case to be completed before another is taken up, and, to reach as near as possible to that, it is essential that no more work should be posted for a day than can reasonably be expected to be taken up. And, time permitting, all the work posted for the day must be taken up.

One great advantage of posting only as much work as can be taken up and of the certainty that the work will be taken up is that the lawyers can study the cases for the day thoroughly in advance and be fully prepared to conduct them.

The presiding officer also can, and should, prepare himself by going through the papers which should be taken home the previous evening.

The following system of posting of contested matters of various classes for actual hearing (as distinguished from the preliminary work necessary to make a case ready for hearing) is commended.



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