Report No. 14
81. Arguments.-
It has been stated that the arguments of the advocates tend to be prolix and some method should be devised to control them.
Prolixity (No special powers possible).- It is true that in many cases arguments are unduly prolix. Sometimes the arguments become lengthy because the court either from inexperience or for other reason is unable to control counsel. Some lawyers are long-winded; others are brief and to the point. Similarly, some judges are unable to control the arguments while some are inclined not to hear any arguments at all and cut them very short.
The Court which has heard the case from day-to-day should be familiar with the evidence and can if necessary go through the record of the case before the arguments are commenced to refresh its memory. The presiding officer who has followed the evidence will be in a much better position to control arguments. The control of arguments is a matter which must pre-eminently be left to the capacity, experience and discretion of the judge and the good sense of the advocate. We do not think it is practicable to confer any special powers on the judge in this respect.
82. Delays (Firmness necessary).-
Very often, delay is occasioned by the postponement of arguments to a later date on the conclusion of the evidence. The law contemplates that arguments shall be heard immediately after the evidence is concluded. In many cases, however, arguments are postponed either because the lawyers are not ready or because the court has other work on hand. If the court's diary is methodically prepared in the manner already indicated, there will be fewer occasions for a judge to postpone the arguments on the conclusion of the evidence.
The court must insist upon the lawyers appearing in the case presenting their arguments immediately on the conclusion of the evidence. Such a practice prevails on the original side of the High Court in Bombay, where, however heavy the record, counsel never ask for time to prepare their arguments. In cases of exceptional difficulty, complexity and a heavy record, it may perhaps be reasonable to give a short adjournment to enable the lawyers to prepare their arguments; but the normal rule should be to hear the arguments immediately on the conclusion of the evidence.
83. Judgments.-
It is not suggested that the delivery of judgments is as a rule delayed though no doubt delays have been brought to our notice in some places where some judges are in the habit of delaying their judgments, at times, inordinately. We have even been told of instances where judges have failed to deliver judgments for several weeks or even months after the conclusion of the hearing, and have caused entries to be made in the case diaries to show that the case was reopened for further arguments on some point at a later date.
84. Definite date to be fixed for delivery of reserved judgments (Provision of stenographers).-
The requirements of the Code on this point are clear. Order XX, rule 1 requires that after the case has been heard the court shall pronounce judgment in open court either at once or on some future date, of which due notice shall be given to the parties or their pleader. Therefore, if the court does not pronounce judgment immediately at the conclusion of the hearing, it will have to fix a definite date for the delivery of judgment and notice of such date will have to be given to the parties. Notwithstanding this provision, the courts however merely reserve judgment without fixing a specific date for its delivery. This is undesirable.
The Court should, as far as possible, fix the date for the delivery of the judgment when it adjourns the case for judgment. In practice, it is difficult for the subordinate courts to give their judgments at once at the close of the hearing as contemplated by Order XX, rule 1. In the courts of senior civil judges or subordinate judges who try difficult suits of higher valuation, a judgment may perhaps not be ready for delivery for a week or in some cases a fortnight after the conclusion of the hearing. However, except in ex parte and small cause cases and cases of a very simple nature, where judgment can and must be delivered immediately or on the next day, ordinarily not more than a week or a fortnight should be allowed to elapse before a judgment is delivered.
Delay on the part of the presiding officer in writing out his judgment weakens his grasp of the facts of the case, arguments are forgotten, impressions formed of the witnesses' demeanour become faded and generally there is a waste of time occasioned by the necessity of refreshing his memory by frequent reference to records. If all judicial officers are provided with stenographers as in the States of Andhra Pradesh and Madras, the judges will be able to deliver judgments at the close of the hearing in a greater number of cases and will also be able to deal expeditiously with reserved judgments. We recommend that the assistance of stenographers be made available to all presiding officers.
85. A fourteen day limit for delivering judgments.-
Certain High Courts have made rules for delivery of judgments of the lower courts within a fixed period. We have dealt with these rules elsewhere. We recommend that it should be generally provided by rules that judgments should be delivered within two weeks of the close of hearing of the case. There is no reason why this time limit which has satisfactorily worked in Madhya Pradesh and Madras should not work equally well in other States.
86. Prolix judgments (Training and practice necessary).-
It is said that judgments of the subordinate courts are often unnecessarily prolix. The law requires that the judgments should contain a concise statement of the case, the points for determination, the decision thereon and the reasons for such decision. Unfortunately, sufficient attention is not paid to this provision, Order XX, rule 4 C.P.C. The length of the judgments is increased on account of the long verbatim extracts of pleadings and reproduction of the evidence of witnesses. Instead of starting compendiously the case for each side, many judges set out in the judgments a literal translation of the pleadings. Sometimes the entire plaint and the written statement are translated into single continuous sentences. Some judges are in the habit of summarising the facts though they have set out the pleadings in detail.
The plaints often contain a great deal of irrelevant and unnecessary matter. The written statement also contains denials as to every such irrelevant fact. In the course of the trial many of these facts are either admitted or given up. In writing a judgment therefore, the judge should apply his mind to the facts as they have emerged at the trial. They should be stated shortly and with reference to the pleadings on specific points to which alone the dispute has been limited. It is wholly unnecessary to reproduce at length the evidence of witnesses as many judges do.
A judgment should not be a catalogue of events or a summary of the evidence. The judge owes it to himself to endeavour to develop his capacity for writing good judgments. A judgment is probably the most creative part of his work and the expression of his own personality. As an eminent English judge has said "the art of composing judgments is not taught; it is acquired by practice and by study of the models provided in the innumerable volumes of the law reports in which are recorded the achievements of the past masters of Art."1
The excellence of a judgment will depend upon the judge's power of expression and his capacity to grasp and to marshal the facts and the law in a simple, yet lucid and logical manner. We urge upon the judicial officers the importance of studying judgments of eminent Indian and English judges recorded in the Law Reports. Much can be achieved in the direction of the cultivation of this art by suitable instruction imparted to judicial officers at the stage of probation.
1. The written Judgements by the Rt. Hon. Lord Macmillan, L., Bom LRJ,p.1.
87. Reading out in court unnecessary.-
The rule that judgment should be pronounced in court requires that it should be read out in full. Opinion has been generally expressed that this practice results in a good deal of waste of judicial time and is wholly unnecessary. It would be sufficient to read the findings on the issues and the final order in the judgment in open court. The judgment could then be made immediately available to the parties. Such a practice is followed by many presiding officers. We recommend that legislative provision be made for the adoption of this practice by a suitable amendment.
Other causes of delays
88. Suits by or on behalf of minors or persons under a disability.-
The law relating to suits by or against minors or persons under a disability is contained in Order XXXII of the Code of Civil Procedure. Sometimes delays occur by reason of the special procedure required to be followed in cases in which such persons are parties.
Where the plaintiff is a minor (or a person under a disability) a suit on his behalf must be instituted by a next friend. Rule 2 of Order XXXII provides that if such a suit is instituted by or on behalf of a minor without a next friend, the defendant may apply to have the plaint taken off the file with costs to be paid by the pleader or other person by whom it was presented. If the minor plaintiff is and continues to be properly represented, no delays need arise.
89. Vexatious suits by next friends (Recommendations of the U.P. Judicial Reforms Committee).-
The Uttar Pradesh Judicial Reforms Committee, have however, pointed out a difficulty. Sometimes a suit is instituted on behalf of a minor after another suit for a substantially similar relief by a different person acting as a next friend of the same minor has been previously heard and disposed of. The Committee pointed out that a large majority of such suits are frivolous and the defendant finds it difficult to recover his costs from the next friend even if such costs are awarded against him personally. We have not heard of similar frivolous suits in other States. As a safeguard against this practice the Committee proposed the insertion of a new sub-rule (2) to Order XXV of the Code of Civil Procedure requiring the next friend to give security for costs of the defendant.1
1. Report, p. 34.
A Madras amendment (Commended).- In Madras a new rule 2A, in Order XXXII empowers the court at any stage of the suit either on the application of the defendant or suo motu to order the next friend to give security for the payment of the defendant's costs if it appears that the suit has been instituted on behalf of a minor by his next friend improperly or unreasonably. The security includes court-fees payable to Government when the suit has been instituted in forma pauperis.
This amendment goes much further than the recommendation of the Uttar Pradesh Committee which would restrict the right of the court to demand security only to those cases in which a suit for a substantially similar relief had already been instituted and decided and even in such cases security would be ordered only on the application of the defendant. We recommend that a provision similar to that introduced in Madras be enacted in the Code. Such a provision will control vexatious litigation by next friends of minors.
90. Suits against minors.-
When the defendant is a minor it is the duty of the court to see that the suit does not proceed against him unless he is properly represented. A suit against a minor cannot proceed until a guardian ad litem is appointed by the court to represent him. The evidence before us shows that though delays sometimes occur in the appointment of guardians ad litem they are neither frequent nor too long. At this stage it will be useful to examine briefly the existing legal provisions.
Statutory provisions.- Rule 3 of Order XXXII of the Civil Procedure Code empowers the court in cases in which a minor is a defendant to appoint a proper person to be his guardian for the purpose of the suit. The rule gives the order of preference for the appointment of a guardian ad litem as follows:
(i) A guardian appointed or declared by a competent authority;
(ii) The father or other natural guardian to the minor;
(iii) Where there is no father or other natural guardian, the person in whose care the minor is.
Under rule 4(1) any person who is of sound mind and has attained majority may act as next friend or guardian for the suit provided his interests are not adverse to those of the minor. The same rule provides that no person can be appointed guardian for a suit without his consent and that where there is no other person fit and willing to act as-such guardian the court may appoint any of its officers to be such guardian and may make proper orders for the costs to be incurred by such officer in the performance of his duties as such guardian.
Under rule 4, sub-rule (2) where the minor has a guardian appointed or declared by a competent authority, no person other than such guardian can act as a next friend of the minor for the suit unless the court considers for reasons to be recorded that it is for the minor's welfare that another person be permitted to act or be appointed. When no guardian has been appointed by any competent authority, the plaintiff has to propose the name of other suitable person for appointment as guardian and to support it by affidavit that the proposed guardian has no interest in the matters in controversy in the suit adverse to the minor. Under sub-rule (3) of rule 4, however, no person can be appointed a defendant's guardian for the suit without his consent.
91. Guardians refusing to act (Delays).-
A difficulty arises therefore when the persons proposed by the plaintiff refuse or are reluctant to act as guardians. It is said that the natural guardians or other persons entrusted with the custody of the minor often cause delays by refusing to act as guardians and hold up the progress of the suit for long periods. When the proposed guardian refuses to act, the plaintiff has to think of another relation and to apply for his appointment. When such other relation also refuses, the whole process has to be repeated because under rule 4 of Order XXXII the court can appoint one of its officers as guardian only "where there is no other person fit and willing to act as guardian for the suit".
It often happens that successive proposed guardians either evade service or decline guardianship with a view to harass and tire out the plaintiff and drive him to incur the costs of taking out fresh notices to other guardians who in their turn refuse to act. The Civil Justice Committee found that in many cases it had taken more than a year to appoint a guardian. This was also noted in 1951 by the Uttar Pradesh Judicial Reforms Committee who observed. "It is a matter of experience that considerable delay is occasioned in the appointment of guardians of minors".1
1. Report, p. 30.
92. Suggestions (Simultaneous notices) (Consent to be presumed).-
The Uttar Pradesh Committee suggested "that all probable guardians should be nominated in the very first instance and notices should issue to all of them simultaneously including the natural guardians. After the notices have been served, it will be open to the court to appoint a proper guardian out of those to whom notices have been sent". The rules of the Punjab High Court require a plaintiff to file with his plaint a list of all relatives of the minors and other persons with their addresses who prima facie are capable of acting as guardians. In Madras, the plaintiff is required to state in his application in order of suitability, a list of persons who are competent and qualified to act as guardians for the suit for the minor defendant.
This is a slightly modified form of the proposal of the Uttar Pradesh Committee. The plaintiff is also required to produce with his application necessary forms in duplicate for issue simultaneously of notices to at least two of the proposed guardians. If neither of the person served signifies his consent to act, the court has to proceed to serve notice simultaneously upon two other selected persons out of those named in the list and the applicant has, within three days of intimation of unwillingness by the first set of guardians, to pay the necessary process fees for service on the second set. Under rule 4, neither a guardian appointed by the competent authority nor a natural guardian nor a person in whose care the minor is, can be appointed without his express consent.
Under the old Code of 1882 if such a person neither accepted nor refused guardianship, his consent was presumed. The Civil Justice Committee was in favour of reverting to the old provisions. It proposed that the consent of such a person (namely a guardian appointed by a competent authority or a natural guardian or a person in whose care the minor is) should be presumed and notice should be issued upon him presuming his consent if he does not within a month refuse to act. If he eventually appears before the court and refuses to act, the court would then relieve him of his duties and appoint another guardian for the suit.1
1. Report 65, para. 7.
93. Objections (Conflict) (Unnecessary costs).-
The proposal of the Uttar Pradesh Committee which would require the plaintiff to furnish a list of all possible guardians and the service of simultaneous notices to them might create a conflict between the proposed guardians and also cause unnecessary costs to the plaintiff. The order of preference in Order XXXII, rule 3 is based on sound principle and we are unable to see that any useful purpose will be served by sending simultaneous notices to distant relatives when a natural guardian like the father or the mother or some other nearer relation in whose care the minor is/are available.
Such distant relatives may not agree to act as guardians or may not take adequate steps to safeguard the interests of the minor. In the absence of a guardia.-declared by the competent authority or natural guardian, preference will have to be given to the person in whose care the minor is or with whom he is residing. In making the appointment the court will of course take into consideration the question whether he has any interest adverse to that of the minor. But it appears to us inadvisable that the court should start a roving inquiry which is implicit in the proposal to send out notices simultaneously to other persons whose number may at times be very large.
The rules made by some High Courts for sending notices, not to all persons named in such lists, but to two or three at a time also do not, in our view, help to solve the difficulty. If those who are supposed to represent the interests of the minor defendant are inclined to be intractable, the notices issued to each group of such persons in succession will be evaded or refused and the position will in no way be improved. On the other hand, if the natural guardian or other person with whom the minor is residing accepts guardianship in the first instance, the plaintiff will have unnecessarily incurred the heavy cost of serving notices on other persons at the same time.
94. Presumption of consent undesirable.-
The suggestion of the Rankin Committee to revert to the procedure obtaining under the Code of 1882 whereby consent of the proposed guardian could be presumed did not commend itself to the majority of the High Courts at that time. The purpose of appointing a guardian is to safeguard the interests of a minor and if his consent is presumed, although he has not expressly given it, he cannot be trusted to act in the minor's interest. In such a case the possibility of the minor defendant bringing a suit to set aside the decree on attaining majority cannot be overlooked. An amendment on these lines has actually been made in Allahabad. In our view such a provision is likely to increase litigation and we are unable to recommend it.
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