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Report No. 114

2.8. Stakes in disputes disproportionate to relief claimed - Too much involvement in procedural wrangles - Defects in the present advanary system - Effects of amendments to C.P.C.-

Failure to achieve the desired objective - Need for basic structural change in the system of resolution of disputes.-If the stake involved in each of the disputes falling under any of the heads herein above enumerated is evaluated in forms of cost benefit analysis, it would appear to be fairly disproportionate to relief claimed and disputed in the litigation though to the parties concerned, that may appear to be of some considerable importance. These disputes at present land in the court of the lowest denomination, namely, Munsif /Civil Judge (J.D.) or Revenue Officer. They have to be processed according to the procedure prescribed in the Civil Procedure Code or in respect of disputes falling under revenue jurisdiction, according to the code prescribed for processing disputes of this nature. Civil Procedure Code has been universally accepted as formal, hyper-technical, dilatory, time-consuming and prolix.

Occasionally the procedural wrangles outweigh the real dispute whose resolution is pushed aside and acquires a secondary importance. In what manner can one appreciate the 1576 judgments upto 1971 rendered by the Supreme Court on various topics under the Code of Civil Procedure touching purely procedural aspects such as amendments of pleadings, framing of preliminary issues, interim injunctions, framing of issues, discovery and inspection, etc. Some of the aforementioned disputes are simple and wholly uncomplicated and can be disposed of in a few hours more so if handled at the spot. In an adversary system, spot resolution of disputes is generally frowned upon. The Judge must sit at an ordained place where parties must go with the lawyers, witnesses and documents and the Judge hears both the parties after all the formalities prescribed at various stages in the Code of Civil Procedure are gone through and then leisurely decides the disputes.

The average duration for disposal of such cases noticed in the year 1954 varied from 369.8 days in Assam to 762.6 days in Bihar.1 'A total number of original civil suits pending at the end of the year 1954 was 6,12,635.'2 The total number of suits and miscellaneous cases pending in the subordinate courts on 31st December, 1977 was 21,09,986.'3 The average duration now exceeds three years. In between 1954 and 1977, the Law Commission submitted three reports recommending changes in the Civil Procedure Code for reducing the delay in the disposal of cases. The figures hereinabove extracted tell their own tale. And all throughout the effort was to suggest radical changes in the Civil Procedure Code.4

A very cautious approach adopted in recommending amendments and modifications in the Code of Civil Procedure by the Law Commission of India in its Twenty-Seventh Report was replaced by a proposal to suggest radical changes and 'caution was not to act as a constraint where the expenses of procedure and the necessities of the times require radical changes.'5 The exercise was specifically undertaken to make available justice to the consumers at a price they can afford. It was accepted that "an expensive procedural system is a self-defeating instrument of justice."6 The Fifty-Fourth Report recommended numerous amendments in the Code of Civil Procedure, 1908. This led to the enactment of the Code of Civil Procedure (Amendment) Act, 1976. Several alterations have been made in the then existing provisions of the Civil Procedure Code and new provisions have been added based on the recommendations made in the Fifty-Fourth Report.

The Amendment Act came into force on February 1, 1977 except certain sections. Accordingly, the exhaustively amended Code of Civil Procedure designed to reduce the time spent in disposal of suits and to make the system speedy, effective and less-costly, has been in vogue for over 8 years. It is acknowledged on all hands that apart from making no impact in the manner, method and mode of resolution of disputes, it has proved to be counterproductive.7 The powerful impact which the justice delivery system has on a vast number of citizens has to be taken note of so that it may be properly appreciated that the reform of the system is a matter of vital importance 'not only to the lawyer and the Judge, but also to the State and average citizen.8

The priority thus delineated has to be reversed and the true test would be the pains and gains of the average citizen, the consumer of justice. The harsh albeit unpalatable outcome of this bizarre exercise cannot be washed away in that by keeping the structural part of the Civil Procedure Code intact and tinkering with it at various places would not be conducive to making the system resilient, effective and responsive to the felt needs of the times. The inescapable conclusion thus is that a basic structural change in the mode, method and forum for resolution of disputes is the sine qua non, before the system is engulfed by its own debris.

1. LCI Fourteenth Report, Vol. I, Ch. 11, para. 7.

2. Ibid, para. 3.

3. LCI Seventh-seventh Report.

4. LCI Fifty-Fourth Report, Ch. I, para. 1.5.

5. Ibid.

6. Ibid., para. 1.6.

7. Judges with vast experience of the handling of civil litigation from grass-root level brought their experience into making recommendations and this empirical research helped them in recommending extensive amendments in the Code of Civil Procedure. These recommendations as suggested were largely accepted but pursuant to their implementation, the outcome is the most undesirable which could not have been foreseen.

8. LCI Fourteenth Report, Ch. 3, para. 1.

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