TaxTMI 
TaxTMI 
2023 (10) TMI 1503
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....to 32 in respect of the suit properties described in the plaints schedule as item No.1 to 8, to be null and void by claiming to be the owner of the said properties; and for a decree of possession of the suit properties with costs. BACKGROUND OF THE CASE: 2. When the aforesaid suit was still at infancy stage the soleplaintiff expired on 18.05.2007. One Mr. Manoj Kumar Jain filed an application to substitute him as her legal heir, by placing reliance on the Will dated 19.05.1999 and claiming to be a legatee under the said registered Will. He also filed an affidavit stating thereunder that Mr. Yashpal Jain (hereinafter referred to as 'appellant' for the sake of convenience) was a witness to the said registered Will. The defendants objected to the said application contending inter alia that the appellant herein was the adopted son of late Urmila Devi by relying upon the adoption deed dated 06.01.1973 duly registered in the office of the Sub-Registrar. In the said proceedings, the present appellant also filed an affidavit stating thereunder that he was a witness to the Will dated 19.05.1999 executed by Urmila Devi in favour of Manoj Kumar Jain. The application filed by Manoj Kumar Jai....
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....ceedings. This vital aspect seems to have been lost sight of by the courts below conveniently. 4. Be that as it may, the aforesaid Urmila Devi who claimed to be Bhumidar and owner in possession of land situated in village Sonargaon, Patti Katulsyun, District Garhwal, Uttarakhand has contended in her suit that the suit schedule properties were looked after by Mangal Singh- the first defendant and as he had fraudulently obtained a Bhumidar Sanad of the land comprising No.77, 3/16 Nalis, she had filed an application under Section 137-A of UP Act No.1 of 1951 before the Tehsildar/Assistant Collector, Pauri Garhwal, challenging the said Bhumidari Sanad obtained by the first defendant, which was held in her favour by the Tehsildar, and confirmed by the appellate authority. Not being satisfied with the said order, the first defendant had filed a second appeal before the Revenue Board which came to be allowed in favour of Mangal Singh, against which a review petition was filed thereon by Urmila Devi which came to be allowed on 30.08.1982. The said order was challenged before the High Court of Uttarakhand in Writ Petition (M/S) No.342 of 2005 (old No.14655 of 1983) by Mangal Singh. In the ....
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....to be brought on record as legal representative of deceased Urmila Devi; the High Court erred in not considering the fact that courts below had recorded a clear finding that appellant herein was the sole surviving legal representative of the deceased plaintiff and as such it ought not to have interfered with the well-reasoned order passed by the Trial Court as affirmed by the Revisional Court; She would also contend that defendants in this suit who were the writ petitioners in WP(M/S) 342 of 2005 (old number 14655 of 1983) had substituted the appellant herein as legal representative of Urmila Devi in dispute related to the suit schedule property (involved in OS No.2 of 1982) and as such defendants cannot be permitted to take stand contrary to same. Hence, it is contended that impugned order is liable to be set aside. 8. Per contra, Shri Rameshwar Prasad Goyal, learned counsel appearing for the respondents, supports the impugned order and contends that in the Writ Petition No.144 of 2013, appellant herein who was a party therein had not filed a counter-affidavit and as such High Court had recorded that non-traversing of petition averments would amount to admission and had also take....
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....claiming right legatee under the Will dated 19.05.1999. This application was followed by an affidavit of the appellant (Yashpal Jain) dated 25.10.2008 stating thereunder that his mother Urmila Devi had executed a Will dated 19.05.1999 in favour of Manoj Kumar Jain and also stating thereunder that Will was duly registered. The legal heirs of the defendant objected the said substitution contending, inter alia, that the present appellant is the adopted son of Urmila Devi and said adoption deed was duly registered on 06.01.1973 in the office of the Sub-Registrar. It was also contended that Shri Rajendra Prasad Jain was the holder of power of attorney of Urmila Devi and on his (Rajendra Prasad) death on 18.02.2001, she had executed another power of attorney on 21.04.2001 appointing Virender Kumar Jain and on the basis of the same the name of his wife came to be mutated in respect of the lands indicated thereunder. Hence, it was contended that Will propounded by Manoj Kumar Jain was fabricated and forged. Hence, it was prayed that claim of Manoj Kumar Jain for being substituted as legal representative of Urmila Devi is liable to be rejected. Yet another affidavit was also filed by the ap....
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....lowed in favour of Mangal Singh. The Review Petition filed against the order of the Second Appellate Authority came to be allowed and this was challenged by Mangal Singh in WP (M/S) No.342 of 2005 (Old No.14655 of 1983). During the pendency of the said writ petition, as noticed earlier, Urmila Devi expired and an application for substitution came to be filed by the very same legal representatives of Mangal Singh (who are Respondent Nos.1 to 5 herein) vide Annexure P-10, specially pleading thereunder to delete the name of Respondent No.4 (therein) Smt. Urmila Devi and substitute Yashpal Jain (appellant herein) in her place. This application came to be allowed by order dated 24.02.2012 as reflected in Annexure RA/2 annexed to the rejoinder affidavit of the appellant. In this view of the matter, it cannot be gain said by the respondents herein that the appellant is not to be substituted as legal representative of deceased Urmila Devi. It is for this cogent reason, the learned trial judge vide order dated 09.05.2012 allowed the substitution and permitted the appellant herein to be substituted as legal representative of deceased plaintiff-Urmila Devi. Rightly so, this order of the trial....
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....t the cost of repetition, it requires to be noticed that respondents herein themselves having filed an application in WP (M/S) No.342 of 2005 for bringing the present appellant (Yashpal Jain) as her legal representative in the writ petition (M/S) 342/2005 and prosecuted the same, would reflect that they were in the acquaintance of the fact that present appellant being the legal representative of deceased Urmila Devi but yet are attempting to contend that Manoj Kumar Jain is to be brought on record as legal representative of Urmila Devi. In this background the impugned order which has resulted in rejection of the application filed by the appellant to be brought on record as legal representative of Urmila Devi if sustained would result in the estate of deceased plaintiff not being represented, as a consequence of which suit would abate or would be put to a silent death by the defendants without claim made in the suit being adjudicated on merits. Hence, point No.(i) is answered in favour of the appellant and against respondents and therefore, the impugned order is set aside. 17. As far as the question of right of the appellant over the suit schedule properties, we are of the view, by....
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....red on 30.08.1961 The Underlying factors behind Judicial Delays 19. The causes of delay are numerous loopholes in the law itself, redundant and voluminous paper work, absence of the witnesses, adjournments sought and granted for no justifiable reason as also delay in service of summons, lack of implementation of the provisions of Code of Civil Procedure (hereinafter referred to as 'CPC') and Code of Criminal Procedure (hereinafter referred to as 'Cr.P.C'), as the case may be. These are only illustrative and not exhaustive. It is not that there has been any lack of effort to speed up the Justice Delivery System. However, the attempts made hitherto have yielded limited results. Time and again various provisions of C.P.C. and Cr.P.C. have been amended to cater the ever-increasing demands for speedy disposal of cases and the results are not inspiring. There is an urgent need to take pro-active steps to not only clear the huge backlog of cases at all levels but there should be introspection by all the stakeholders to gear up to meet the aspirations of the litigant public who would only seek for speedy justice and to curtail the methods adopted to delay the proceedings which may suit....
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.... from the date of registration, whereas a criminal matter should be disposed within six months and in case of sessions trial it should not go beyond one year. It was also suggested to timely fill up the vacancies, appoint additional and ad-hoc judges and increase overall judicial strength. Some of the key recommendations of the Committee were: "(i) Improvement of judicial system to meet modern requirement of society. (ii) Time for scrutiny of the cases should not take more than one week. (iii) Summons and notices should be attached with the plaint at the stage of filing, without stating the filing date. (iv) Procedural reforms in civil and criminal case proceedings." 22. The 79th reports of the Law Commission of India pertains to "Delay and Arrears in High Courts and Appellate Court" which when read along with the 77th report as aforementioned, has provided a step-by-step manual for managerial judging, prescribing upper time limits for trial procedure to ensure speedy disposal of cases to be followed by Trial Courts, High Courts, and other appellate courts. Its recommendations range from ways in which judges should expedite the service of summons to the drafting of the....
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....lhi HC. whereunder 22 specific pilot and reference courts were referred to collect data to examine meticulously the life cycles of the legal cases. At its core, the project sought to understand how the cases progressed through the legal system in the absence of any backlog. The Data collected from the pilot project led to suggestions of some major recommendations which included, primarily, the assessment of Judicial strength, which as per the report, is regarded as a vital attribute to the cause of delay. The report in this regard suggested to arrive at an optimal judge strength to handle cases pending in different court and went on to provide the Ideal number of judges for different court. The report also highlighted that in criminal cases, prosecution evidence hearings accounts for the Highest percentage of court hearings however when it comes to allocation of time, the courts tend to dedicate more minutes to final arguments and the issuance of final orders. In civil cases, miscellaneous hearings are common, but final order proceedings receive more time nevertheless, judges allocate a greater amount of time to the final order or judgment hearings. 26. Melvin M Belli, a member of....
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.... Lack of adequate training and appropriate orientation course to judicial officers and lawyers; (vii) Lack of prioritization of cases; (viii) Lack of accountability and transparency. 28. Apart from the above reasons, the other vital reasons include the over-tolerant nature of the courts below while extending their olive branch to grant adjournment at the drop of the hat and thereby bringing the entire judicial process to a grinding halt. It is crucial to understand that the wheels of justice must not merely turn, they must turn without friction, without bringing it to a grinding halt due to unwarranted delay. It is for such reasons that the system itself is being ridiculed not only by the litigant public but also by the general public, thereby showing signs of constant fear of delay in the minds of public which might occur during the resolution of dispute, dissuading them from knocking at the doors of justice. All the stakeholders of the system have to be alive to this alarming situation and should thwart any attempt to pollute the stream of judicial process and same requires to be dealt with iron hands and curbed by nipping them at the bud, as otherwise the confidence of t....
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....elays either directly or indirectly. The procedure that is being adopted by the courts below or specifically the trial courts is contrary to the express provisions of the CPC. It can also be noticed that there are party induced delays. It is laid down under Orders VIII Rule (1) that a defendant shall at or before the first hearing or within 30 days, or 90 days as the court may permit, present a written statement of his defence. In most cases, there would be no difficulty in presenting such a written statement on the date fixed, and no adjournment should be given for the said purpose except for a good cause shown, and in proper cases, costs should be awarded to the opposite side, namely realistic costs. However, this is seldom found. Delay in filing the written statement and seeking adjournments is also another tactic used by the parties to litigation to delay the proceedings No doubt in catena of judgments including Kailash vs. Nanku 2005 (4) SCC 480, Serum Advocates Bar Association, Tamil Nadu vs Union of India, AIR 2005 SC 3353. Bharat Kalra vs. Raj Kishan Chhabra (2022) SCC OnLine SC 613 and Shoraj Singh vs Charan Singh (2018) SCC OnLine All 6613 the time limit prescribed under ....
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....a party, except where the circumstances are beyond the control of that party, (c) the fact that the pleader of a party is engaged in another Court, shall not be a ground for adjournment, (d) where the illness of a pleader or his inability to conduct the case for any reason, other than his being engaged in another Court, is put forward as a ground for adjournment, the Court shall not grant the adjournment unless it is satisfied that the party applying for adjournment could not have engaged another pleader in time, (e) where a witness is present in Court but a party or his pleader is not present or the party or his pleader, though present in Court, is not ready to examine or cross-examine the witness, the Court may, if it thinks fit, record the statement of the witness and pass such orders as it thinks fit dispensing with the examination-in-chief or cross-examination of the witness, as the case may be, by the party or his pleader not present or not ready as aforesaid." The High Court of Karnataka in the matter of M. Mahalingam vs. Shashikala reported in ILR Karnataka 4055 had an occasion to deal with this rule and it was observed as under: "17. The proviso to sub-rule (2....
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....nt amended the law once again and now an attempt is made to control the power of the courts in granting adjournments. 18. This time sub-rule (1) and (2) of Rule 1 of Order XVII was amended substantially by the code of Civil Procedure (Amendment) Act, 1999. The object and reason behind the amendment Act was that, every effort should be made to expedite the disposal of civil suits and proceedings so that justice may not be delayed. The committee on Subordinate Legislation (11th Lok Sabha) recommended that it should be made obligatory to record reasons for adjournment of cases as well as award of actual or higher cost and not merely notional cost against the parties seeking adjournment in favour of the opposite party. Further limit up to three adjournments has also been fixed in a case. 19. The amended Sub-rule (1) of Rule 1 provides that at any stage of the suit, if sufficient cause is shown, the Court may adjourn the hearing of the suit for the reasons to be recorded in writing. Therefore, an adjournment cannot be granted for a mere asking. There should be sufficient cause for such an adjournment. Before granting adjournment, the Court has to record in writing the reasons, whi....
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....letter and spirit, it may lead to some inconvenience and hardship as, for more than a century, the Judges, the lawyers and litigants are used to a particular atmosphere in Court. It is this atmosphere in Courts, which has no legal support and is the cause for delay in disposal of cases. Therefore, it is high time in the interest of speedy disposal of cases, these rules are implemented; once implemented, in course of time, lawyers and litigants would fall in line. In order to implement these statutory provisions as amended, what is required is a change of mind set among the Judges and they must have the courage to depart from the practice which is in vogue. They must remind themselves that till now these provisions are not followed and the procedure which is adopted in Courts was totally different from what is provided under the statute and thus has no legal basis. That is the real cause for delay in disposal of cases. Therefore, the need of the hour is a change of mental attitude, firstly, on the part of the judges and secondly, on the part of lawyers and litigants. A beginning has to be made. It has to be done by Judges and Judges alone. In spite of the criticism and the amendm....
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.... is, it shall be continued from day to day until all the witnesses in attendance have been examined. Even to grant an adjournment beyond the following day exceptional reasons should exist and it should be recorded in writing before adjourning the hearing beyond the following day. A reading of the proviso makes it clear that the limitation of three adjournments contained in proviso to sub-rule (1) apply where adjournment is to be granted on account of circumstances which are beyond the control of that party. Even in cases which may not strictly fall within the category of circumstances beyond the control of a party, the Court by resorting to the provisions of higher cost which can also include punitive cost grant adjournment beyond three times, having regard to the injustice that may result on refusal thereof, with reference to peculiar facts of a case and compensate the party who is inconvenienced by such adjournment. The said cost cannot be notional. It should be realistic. As far as possible actual cost incurred by the other party shall be awarded where the adjournment is found to be avoidable but is being granted on account of either negligence or casual approach of a party or i....
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....dy to the courts to prevent such abuse of the judicial process. The Case Flow Management System Rules: An Overlooked Lifesaver 31. On the recommendation of this Court in 'Salem Bar Association vs. Union of India AIR 2003 SC 189=2003 (1) SCC 49 a committee was appointed to study the application on implementation of Case Flow Management system in India, and in response, 'Case Flow Management Rules for High Courts and Subordinate Courts' were meticulously crafted. These guidelines mirrored the suggestions outlined in the 'National Mission for Delivery of Justice and Legal Reform,' which served as a comprehensive blueprint for judicial reforms through its strategic initiatives from 2009 to 2012. Furthermore, the introduction of the Justice A.M. Khanwilkar Committee on Case Management System aimed to align with these efforts. On the basis of above recommendation most of the states have adopted the concept of Case Flow Management and have framed their own Rules for ensuring timely delivery of justice since 2005. However, some of the States are yet to frame the rules. We request the Hon'ble Chief Justices of those High Courts where said Rules are yet to be framed to take immediate ste....
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.... Court) 47,941 13,817 2,911 14,378 3 Assam (Gauhati High Court) 98,763 3,38,828 4 Bihar (Patna High Court) 1,08,550 87,779 5,07,039 3,022,705 5 Chattisgarh (Chhatisgarh High Court) 59,640 32,342 23,419 76,331 6 Goa (Bombay High Court) 6,01,362 1,14,309 26,040 30,521 7 Gujarat (Gujarat High Court) 1,10,403 56,267 4,02,283 12,70,278 8 Haryana (Punjab& Haryana High Court) 2,76,432 1,65,363 4,55,539 11,13,672 9 Himachal Pradesh (Himachal Pradesh High Court) 81,875 13,618 1,63,805 3,70,345 10 Jharkhand (Jharkhand High Court) 37,565 46,895 85,359 4,21,577 11 Karnataka (Karnataka High Court) 2,535,097 45,802 9,33,869 10,69,156 12 Kerala (Kerala High Court) 1,99,169 55,659 5,56,950 13,70,576 13 Madhya Pradesh (Madhya Pradesh High Court) 2,74,085 1,75,924 3,68,346 16,37,442 14 Maharashtra (Bombay High Court) 15,96,833 34,09,391 15 Manipur (Manipur High Court) 4,567 493 5,049 2,670 16 Meghalaya (Meghalaya High Court) 883 189 3,517 10,880 17 Mizoram (Gauhati High Court) 2,980 3,120 18 Nagaland (Gauhati High Court) 1421 2747 19 Odisha (Or....
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....o that the nation constantly rises to higher levels of endeavour and achievement. Article 51A is to be understood to be in a positive form with a view to strive towards excellence. The people should not conduct themselves so as to enable anyone to point fingers at them or blame them. "Excellence" means honest performance. It is the vision of the founder of constitution makers that citizens of this great country India that is Bharat, should discharge duties in an exemplary manner rather than perform halfheartedly. The duties envisaged under Article 51A are obligatory on citizens. No doubt the fundamental duties cannot be enforced by Writs and it is in this background it has to be understood that the duties which are required to be performed by the citizens in general and particularly by the stakeholders of judicial dispensation system should ensure that they do discharge the obligations prescribed under the law in an exemplified manner and not blame worthy. 36. In the hallowed halls of justice, where the rights and liberties of every citizen are protected, we find ourselves at a critical juncture. Our Judiciary, the cornerstone of our democratic system, stands as the beacon of hope....
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....reform with urgency, for the legacy we leave will shape the destiny of a nation. In the halls of justice, let not the echoes of delay and pendency drown out the clarion call of reform. The time is now, and justice waits for no one. Hence, the following requests to Hon'ble the Chief Justices of the High Courts are made and directions are issued to the trial courts to ensure 'speedy justice' is delivered. RE: POINT NO.3 For the reasons aforestated, we proceed to pass the following ORDER 1. Civil Appeal is allowed and the order dated 28.11.2019 passed in Writ Petition (M/S) No.144 of 2013 by High Court of Uttarakhand at Nainital is set aside and the order dated 09.05.2012 passed by the Trial Court as affirmed in Civil Revision No.4 of 2012 dated 13.12.2012 stands affirmed. 2. The following directions are issued: i. All courts at district and taluka levels shall ensure proper execution of the summons and in a time bound manner as prescribed under Order V Rule (2) of CPC and same shall be monitored by Principal District Judges and after collating the statistics they shall forward the same to be placed before the committee constituted by the High Court for its consideration and mo....