Most of us generally know why the wheels of justice are grinding slowly: Courts and judges starved of funds, indiscriminate grant of adjournments, lack of infrastructure and the like. However, there are certain provisions in the procedural laws which carry the secret virus of delays. These are in the details and only the legal profession, which uses the loopholes as part of their stratagems, knows them. They are not visible to the public, nor comprehensible.
One such bug which slows down the system was pointed out by the Supreme Court earlier this month in a judgment, Revajeetu Builders vs Narayanaswamy & Sons. Though this particular rule operates in a specialised field, the widespread havoc it causes to the litigants and public can be gauged from the remark of the court: “A large number of applications under Order VI Rule 17 of the Civil Procedure Code are filed and our courts are flooded with such cases. Indiscriminate filing of applications for amendments is one of the main causes of delay in disposal of civil cases. In our view, clear guidelines may help disposing of these applications satisfactorily.”
The rule was derived from English law and adopted in the old Civil Procedure Code of 1882. According to the law as it stands, the court may, at any stage of the proceedings, allow either party to alter or amend the pleadings to determine fairly the dispute between the parties. This is an important provision of the code, says the court, but it says further: “But we have no hesitation in also observing that this is one of the most misused provisions of the code for dragging the proceedings indefinitely, particularly in the Indian courts which are otherwise heavily overburdened with pending cases. All civil courts ordinarily have a long list of cases. Therefore, the courts are compelled to grant long dates which cause delay in disposal of the cases. The applications for amendment lead to further delay in disposal of the cases.”
This problem was studied by the Justice Malimath Committee and on its recommendation, the code was amended to delete the rule. Immediately there were agitations and boycott by advocates all over the country. The government hastily withdrew the amendment, leaving the field to the lawyers.
Some statistics from a book, ‘Justice, Courts and Delays’ by senior lawyer Arun Mohan, were quoted in the judgment to point out the mayhem caused by the rule. According to the study, 80 per cent of the applications under Order VI Rule 17 are filed with the sole objective of delaying proceedings, whereas 15 per cent applications are filed because of lackadaisical approach in the first instance and only 5 per cent applications are genuine. From the author’s experience, 95 per cent applications are allowed by courts and only the rest are rejected. The victims of such amendments shell out not only higher litigation costs but also pay with more years of their lives.
The most common misuse of the provision is to turn the petition into a new case, once the weakness of the old one is tested in the court. In the Revajeetu case, the Supreme Court found that this has been done. The earlier petition was for a money decree for sale of land, but four years later, it was apparently turned into a prayer for the land itself and ouster of the occupier. The court did not allow the amendment which would result in drastic consequences to the opposite party.
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If there was a mere defect in the original petition, the court might allow the amendment to arrive at the right decision. For instance, in Pursuhottam Umedbhai & Co vs Manilal & Sons, there was a mis-description of the partnership firm in the suit. The amendment was allowed. The Supreme Court stated in Jai Jai Ram vs National Building Material Supply, that “however negligent or careless may have been the first omission, and however late the proposed amendment, the amendment may be allowed if it can be made without injustice to the other side.”
But if it is meant to derail the process of justice, or mala fide, the practice is to reject the application. But the problem is that even for deciding whether the application is genuine or mala fide, time and money have to be spent on litigation. The failed party may file a revision petition in the high court, further delaying the case.
The significance of the Revajeetu judgment is that the Supreme Court has for the first time enumerated the factors to be considered by courts while considering applications for amendments. Some guidelines are: Chances of multiple litigation, whether the amendment is essential, whether it will cause prejudice to the other side which cannot be monetarily compensated. If the courts below strictly follow these norms, they would be relieved of junk litigation and bursting dockets.