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NON-ADHERENCE TO PROCEDURAL LAWS IS THE PRIMARY REASON BEHIND PENDENCY OF CASES AND JUDICIAL DELAY: SUPREME COURT.

In the present case, the Hon’ble Supreme Court deals with the selection of the legal representative of the deceased Mrs. Urmila Devi. In 1982, a sale deed carried out by Shri Mangal Singh was challenged in court by late Urmila Devi praying to declare the same null and void by asserting ownership of the properties; and an order to possess the property in question with costs. The case was still at its primal stage when Mrs. Urmila Devi died. Hence, Mr. Manoj Kumar Jain filed an application to be the legal heir.

Mr. Manoj Kumar Jain presented a duly registered will before the court executed by Mrs. Urmila Devi and witnessed by the current appellant Mr. Yashpal Jain. He prayed before the court to be substituted as the legal representative of Mrs. Urmila Devi. He also claimed to be her legatee according to the will. The defendants by way of presenting a registered adoption deed stated that Mr. Yashpal is adopted. The trial court ruled in favour of Mr. Manoj Jain. The order was challenged by the legal heirs of Mangal Singh by means of a civil revision petition before the district judge. In the course of the revisional proceedings, Mr. Manoj mentioned that he does not wish to proceed with application filed by him to be the legal representative of Mrs. Urmila Devi. On the basis of the proceedings, the judgement given by the trial court was overruled. The district judge directed the trial court to accept the application of condonation of delay and impleadment of a legal representative by Mr. Yashpal. Mr. Yashpal filed an application for the same as well as to dismiss the abatement of suit. The trial court allowed the same and hence ruled in favour of Mr. Yashpal Jain being the legal representative of the plaintiff. 

The legal representatives of the aggrieved party filed a civil revision application before the district judge. The judge upheld the verdict of the trial court and dismissed the petition. The defendants moved to the high court challenging the orders passed by both, the trial court and the revisional court. The high court overruled the impugned orders and rejected the application by the current appellant, relying on the initial order passed by the trial court which substituted Mr. Manoj Kumar Jain as the legal representative on the strength of the registered will and directed the courts to conclude the proceedings within 9 months. The appellants were aggrieved by the orders of the high court filed the present appeal.

The counsel for the petitioner contended that the high court has made a mistake by overruling the orders of the trial court and revisional court taken after careful consideration. The lower courts have also taken diligence of the fact that Mr. Yashpal Jain is the sole living representative of Mrs. Urmila Jain and the stressed on the aforementioned fact that the defendants had pleaded to substitute the appellant in the suit pertaining to the sale deed of property by Mangal Singh. In the instance case the defendants can be seen contradicting their own stance.

The defendants contend that the appellants had not filed a counter-affidavit. On the basis of the doctrine of non-traversal this would amount to admission. The defendants mention two instances wherein the current appellant had supported Mr. Manoj Kumar Jain and his will. The appellant cannot plead ignorance for the delay.

In response to issue one the court has contended that the application filed by the defendants in regard to the writ proceedings is the very reason that the trial court and revisional court substituted Mr. Yashpal as the legal representative. The defendants cannot contend that the appellant had filed two affidavits admitting and confirming Mr. Manoj Kumar Jain as the legal representative. The affidavits were mere proof of the appellant being a signatory to the will. It did not intend to substantiate or prove any other fact to any effect.

On non-traversal of writ petition claims, the records state that Mr. Manoj himself filed an application along with an affidavit expressing his disinterest in continuing the application of being the legal representative. If the orders of the high court to not implead Yashpal Jain as the legal representative were to be sustained then the then this implies that the estate of the deceased would not be represented and the case would eventually be closed. Hence, the Hon’ble Supreme Court quashed the order of the high court and upheld the verdict given by the trial court and revisional court.

The hon’ble supreme court took cognizance of the fact that the case is ancient and long standing. In addition to the property suit, the death of Mrs Urmila devi brought in a plethora of suits to determine her legal representative. The current stage of the property suit is unknown but it is said to have been moving at a “snail’s pace” since her death. There are numerous causes for the delay. The hon’ble court mentioned that it is due this very reason that the general public becomes cynical of the justice delivery system. The court delves deeper into the numerous reasons for delay in delivering justice. Inconsistencies in the law, hefty paperwork, leniency in granting adjournments for no justifiable reason, misuse of the provisions of the CPC and CrPC are some of the reasons. The government has taken steps, formulated policies and amended laws to clear the backlog but it has only resulted in poor results. The amendments of the statutory laws have been unsatisfactory.  The court stresses on the fact that it is the responsibility of all the stakeholders to restrict the practices that delays the justice delivery process. The courts must introspect and come up with solutions to serve the public with an effective justice delivery system. The growth of a nation, in all aspects, depends on the strength of the judicial system. The Hon’ble court revisited the findings of various law commissions instituted over the years to find out the cause and remedies to the perpetual problem of huge pendency of cases and inefficient judicial administration. The various reports by law commissions talk about setting a time limit for both civil and criminal cases to be strictly followed by each of the courts and a plea to increase the manpower and immediate replacement in when there’s vacancy. In furtherance to the 77th report by the law commission, the 79th report provides an all- comprehensive guide for managerial judging, time bound trial procedures by trial courts, high courts and other appellate courts.

The court also mentions delays arising due to non-adherence of procedural laws majorly in civil trials. The courts have been frivolous with the grants of adjournment without ay justifiable reason. This is the primary contributory issue that leads to delays and ultimately losing confidence of the public in the justice delivery system. The court relied upon the case of T. Arivandandam vs. T.V. Satyapal & Another AIR (1977) 4 SCC 467 which held that the answer to an irresponsible suit or litigation would be a vigilant judge. The court acknowledges the importance of maintaining cordial relationship with judges and gives a stark remark to the lawyers to refrain from frequent adjournment requests especially while dealing with cases that have been pending since decades. Under order viii rule 1(a) of CPC a defendant must submit and present the written statement within 30 or 90 days and if he fails to do so without any genuine reason then costs must be awarded to the opposite party payable by the defendant. This rule is seldom followed.

Adjournments should be given only when the request is honest and with a bonafide intention expressed by way of affidavit. Frequent grants of adjournments defeat the purpose of the legislation. It is pertinent for all the presiding officers to strictly adhere to the time schedule provided under sub-rule 1 of rule 1 of order viii. It is the responsibility of the stakeholders to ensure the same. In the case of M. Mahalingam vs. Shashikala the intention behind the legislation was duly stated. The legislation has curbed the power of the courts to grant frequent adjournments because when a case has begun the evidence must be recorded on a daily basis and only, if necessary, adjournments should be given to the following day. This ensures that only bonfide reasons should be entertained by the court and it should be strict in it dispense of adjournments.

Innumerable legislations can be enacted to ensure speedy disposal of cases but it would be of no use until it is strictly implemented by the courts and constantly monitored by committees established for the very reason. The fundamental duties mentioned in article 51 A of the constitution must be given utmost importance in light of any problems faced by the stakeholders. The citizens must always strive towards excellency for the growth of the nation. It is important for the judiciary to regain the confidence of the public in litigation a be a ‘beacon of hope”. The Hon’ble supreme court thus directs all the lower courts to strictly adhere to the rules laid down in the procedural laws ensuring the proceedings take place as scheduled. Some courts shall be controlled by Principal District Judges who, after compiling all the statistics, shall present it before the constituted committee of the high court.

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Judgement Analysis written by- Rashi Hora.

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Producing the documents during cross examination is permissible under law: Supreme Court

The case of Mohammed Abdul Wahid Vs Nilofer & Anr. (Special Leave Petition (Civil)No.14445 of 2021), there were two contradictory judgements by the high court of Bombay single bench. The judgements address the difference between a party to a suit and a witness in a suit, as well as when it is permissible to produce documents directly during cross-examination. The court determined that a witness and a party to a suit are not the same, and evidence cannot be produced during cross-examination. On appeal, the division bench upheld the decision. The current petition concerns the validity of Bombay High Court judgements.

The court concluded that neither a witness nor a party to a suit serves a different purpose in the witness box and that Order XVI Rule 21’s “so far as it is applicable” clause does not suggest otherwise. It was noted that neither the Plaintiff nor the Defendant is prohibited from appearing before the court to present evidence by the term “witness.”

In regards to the production of evidence, the court decided that the parties to the lawsuit would also profit from the freedom to produce documents for the two purposes of cross-examining witnesses and refreshing one’s memory. The court noted that if these documents are not used to properly ask questions of and receive answers from either party in a lawsuit, the other party may not be able to adequately prove their case, which could seriously jeopardise the proceedings. As a result, the proposition that the law distinguishes between a party to a suit and a witness for the purposes of evidence is invalid. It is well established law that what is not pleaded cannot be argued, because the other party must be aware of the contours of the case in order to adjudicate it.

 

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Written by – Surya Venkata Sujith

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NGT Should Not Impose Stringent Procedures of CPC When Citizens Seek Redressal for Grievances: Supreme Court

Case Title: Nabendu Kumar Bandyopadhyay v. The Additional Chief Secretary

Case No: Civil Appeal Diary No. 9637 of 2023

Decided on:  4th January, 2024

CORAM: THE HON’BLE MR. JUSTICE ABHAY S. OKA AND HON’BLE MR. JUSTICE UJJAL BHUYAN 

Facts of the Case

An application alleging the filling up of a waterbody/pond was summarily dismissed without conducting any inquiry. The NGT based its decision solely on certain photographs, a move criticized by the Apex Court.

The appellant submitted specific photographs along with the application. However, in its contested order, the NGT argued that these images failed to demonstrate the presence of a waterbody, as water was not apparent in them.

Issues

What approach is to be contemplated by NGT when a citizen approaches the NGT with a grievance that a water body is being filled in?

Court’s analysis and decision

The Supreme Court expressed dissatisfaction with the National Green Tribunal’s (NGT) handling of a case. It has noted its discontent with the NGT’s approach, emphasizing that when a citizen brings forward a grievance regarding the filling of a water body, a more nuanced approach is expected from the NGT. The court emphasized that the NGT should not rigidly adhere to the procedural requirements of the Code of Civil Procedure, 1908, in such environmental matters. Instead, it should adopt a different approach that takes into account the unique nature of environmental concerns and citizen complaints.

The Supreme Court clarified, stating that if a water body has already been filled in, it is evident that water would not be visible in the photographs. The court emphasized the need to consider the context and recognize that the absence of water in the images does not negate the possibility that a water body had existed and had been filled in.

Considering the presented facts and circumstances, the Court expressed the view that the National Green Tribunal had not fulfilled its responsibility. Consequently, the Court decided to send the matter back to the Tribunal. In this remittance, the Court directed the Tribunal to initiate a new inquiry into the aforementioned application.

Before concluding, the Supreme Court made it clear that the remarks provided are specifically confined to the remand order and should not be construed as the court’s definitive findings on the matter.

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Written by- Afshan Ahmad

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Consent and subsequent actions binds defendant in compromise agreement: Kerala High court.

Case Title: Ashiya Ummal vs S.N. Sathy

Case No: RSA NO. 247 OF 2023

Decided on: 3/1/2024

Coram: Hon’ble Mr. Justice A. Badharudeen

 

 Facts of the Case

The plaintiff instituted the Suit for fixation of boundary, recovery of possession, and consequential injunction. During the pendency of the Suit, a compromise was entered into and accordingly, the decree was passed.

The counsel representing the 1st defendant contests the binding nature of the compromise, citing the lack of their client’s signature as a critical ground for invalidating the subsequent decree.

However, as per the learned counsel for the plaintiff 1st defendant’s husband was a signatory. Therefore, it was pointed out that 1st defendant, even after not being a signatory acted upon the compromise and received benefit out of the same. It was further pointed out that when the lawyer on behalf of the client signs a compromise without express authority to do so, the same is unlawful. Hence, the appeal must fail for the 1st defendant could not succeed in opposing the finality of the compromise.

In this case, after passing decree in terms of the compromise as on 16.1.2019, subsequently the 1st defendant filed an affidavit before the Munsiff Court on 02.03.2019 and claimed the amount in terms of clause 5 of the compromise petition. 1st defendant also did not dispute the said affidavit.

Legal Provision

Order XXIII Rule 3 of the Code of Civil Procedure, 1908 reveals the mode of recording compromise, It states that when the parties have made an arrangement to settle the dispute entirely or in part the court if it is satisfied shall pass the decree to such effect and record the same. The agreement should be legal, in writing and signed by the parties.

 

Issues

  • Whether a challenge against a compromise decree is permissible by way of an appeal?
  • If a party, who did not sign a compromise, if acts upon the same subsequently, can he avoid the compromise decree thereafter merely on the ground that he did not put his signature in the compromise?

Court Analysis and Decision

With reference to the decision of the Apex Court in Prasanta Kumar Sahoo v. Charulata Sahu, [2023 (2) KLT 625 (SC)], it was clear that when the compromise is not signed by a party and signed by the concerned lawyer alone, without any express authority or without special vakalatnama executed in favor of the Advocate to sign in the compromise, the compromise signed by the Advocate for and on behalf of his client is unlawful.

In order to prevent the menace of multiplicity of litigations, Rule 3 of Order XXIII C.P.C. was amended. The Amendment Act inserted a requirement that all lawful agreements or compromise would be in writing and signed by the parties, to enable the court to satisfy itself about the authenticity of the compromise/agreement. The proviso empowers the court by whom a compromise decree was passed to determine the legality of the compromise, so arrived at between the parties.

The Apex court in  Banwari Lal v. Smt. Chando Devi [1993 (1) SCC 581] : [AIR 1993 SC 1139]

categorically held that a party challenging a compromise decree can file an application under the proviso to Order XXIII, Rule 3 C.P.C. before the same court by which the said decree was passed.

The recent legal amendments under Order 23, Rule 3A have reshaped how parties can challenge a recorded compromise decree. While direct appeals or separate lawsuits are now off the table, a new path emerges through appeals against the final decree itself. This allows disgruntled parties to indirectly raise concerns about the compromise’s validity, essentially questioning the legitimacy of the entire process leading to the final judgment. This shift acknowledges the potential for disputes within the supposed agreement, ensuring legal avenues remain open, albeit subtly different from before.

The legal principle of estoppel precludes the 1st defendant/appellant from contesting the validity of the compromise agreement despite the absence of her signature. Having actively participated in the execution and reaped the benefits of the compromise, evidenced by the actions undertaken through her lawyer and the affidavit (R1.D), the appellant is estopped from revoking her consent. Consequently, the compromise binds the appellant, and her appeal is dismissed. Kerela High court held that The compromise shall bind the defendant, because she gave consent and acted upon it

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Written by- Bhawana Bahety

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The Previous Order Which Is Correct In Law Can Not Be Modified By The Interim Application : Bombay HC

TITLE : Mangaka Sarosh Bana v Renuka alias Rekha Satish Narwankar  

CORAM : Hon’ble Justice Milind N Jadhav

DATE :  3rd January 2024

CITATION : Testamentary Petition No. 1996 Of 2022

FACTS

This Interim Application is filed by the Applicant – Original Respondent / Caveatrix for seeking modification of the order dated 04.07.2023 passed by the court. Petitioner, married younger daughter of deceased late Kamlakar Dattopant Abhyankar for seeking probate of last Will and Testament of the deceased. The Applicant Caveatrix is the married elder daughter of the deceased. Testamentary Petition 1996 of 2022 was filed on 06.04.2022. Petitioner is the sole executor in the Will. Along with the Petition notarized consent Affidavit dated 09.03.2022 was filed by the Applicant / Caveatrix giving her No- objection and free and full consent for grant of probate of the Will of the deceased in favour of the Petitioner justifying surety for legacy to be dispensed with and waiving service of citation upon her.

However subsequently after 10 months, on 18.01.2023 the Applicant / Caveatrix filed Caveat No. 89 of 2023 to oppose grant of probate in favour of original Petitioner by contending that she was not aware about the Testamentary Proceedings as also disowning her own consent affidavit which was executed and notarized by her. Assets of the deceased comprised of four movable properties and one immovable property. Learned Advocates informed the Court on 04.07.2023 that all movable assets were apportioned and distributed equally between the two legal heirs i.e. daughters of the deceased. They informed the Court that now the only property remains is the immovable flat belonging to the deceased situated at Mumbai Central. after taking instructions from the Caveatrix, learned Advocate agreed for apportionment / distribution of the said flat in equal proportion. Court passed the order in directing issuance and grant of Letters of Administration along with Will.

The present Interim Application is now filed on 28.08.2023 seeking a modification to the effect that if the parties had agreed to claim the legacy in equal proportion i.e. 50% each.

LAWS INVOLVED

  • Section 2(h) of Inidan Succession Act, 1925 :

(h) “Will” means the legal declaration of the intention of a testator with respect to his property which he desires to be carried into effect after his death.Section 3(5) of The Maharashtra Recognition Of Trade Unions And Prevention Of Unfair Labour Practices Act, 1971.

  • Section 96 of Code Of Civil Procedure, 1908.: This allows an aggrieved party to appeal a decree passed by a court exercising its original jurisdiction to a higher authority designated for this purpose.

ISSUES

Whether the court needs to alter the older order of the court under section 96 of Code of Civil Procedure; Whether the modification can be granted by the interim application under Section 151 of the Civil Procedure Code of 1908.

JUDGEMENT

By analyzing the witnesses in the proceedings, it was observed that the present Application has been filed by the Applicant / Caveatrix since there is reluctance to communicate and respond by the original Petitioner who is the younger sister of the Applicant Caveatrix. Considering the order passed on 04.07.2023 and the consent recorded there is no error in the judgement passed by the court in the previous order. The said order can’t be corrected in the manner as it is impermissible in law to do so. Once the consent affidavit has been filed by the Applicant / Caveatrix and she having agreed before the Court to apportion the estate of the deceased and distribute the same to the extent of 50% each, modification sought for by the present Interim Application cannot be granted.

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Written by- Sanjana Ravichandran

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