Urban Legislation Mediation As Alternative To Adjudication

[Cites 18, Cited by 0]

Law Commission Report

Urban Legislation Mediation As Alternative To Adjudication

LAW COMMISSION OF INDIA

ONE HUNDRED TWENTY~NINTH REPORT
ON'

« URBAN LITIGATION
MEDIATION AS ALTERNATIVE TO ADJUDICATION

.1988



D ..<. .D,3SE LA"? COME-'1ICiSION

Chairman 3OV..3RL\II---TENT 0.: INDIE.
sms :21 Bani;-.N,
N3: DJLHI
:3.o.Nr~.44(l)/86--Lc.Pt.I August 8, 1988.

Shri B.Shankaranand,
Minister Err Law and Justice
G vernm nt FF India,

Shastri Bhavan,

'L\1fl7.'.' DLILHI

Dear Shri Lhankaranand,

As by nrw yru must be aware that the task Ff

studying and rec mmending judicial refrrms was assixned

tr the prgggﬂt Lzw Crmmissi n by the Gzvernmcnt Ff India

in Lsbrwary 1986 with a request te acc'rd prirrity tc the
same. nccrrdingly, the w*rk schedule cf thu Law Crmmissicn
was r drawn and study uf ;very term rf re erence drawn up

fer the benefit cf the Judicial Refcrms Cimmissirn was
undertaken and report in respect at each was submitted. The
present report deals with 'Urban Litigati n - Mediati:n as
Alternative t. Adjudicatirn'. with the submissirn cf the
present re crt, being 129th Reprrt FE the Law Cemmissirn,

all the terms at reference in the crntert of studying judicial
ref rms are ccvered save and except term No.6 relating to
'the r\le cf the legal prefessicn in strengthening the system
of administraticn Cf justice'. By the time cf the expiry Of
the term (E the present Law Cemmissizn, I sincerely hope to
submit the report rn that last remaining term of reterence so
as ti ccmplete the vrrk set apart fer Judicial Re7'rms
Ccmmissicn.

This report may be read with report dealing with
'Gram Nvoyalaya' (Nc.ll4) and the repcrts relating tr
'All Inﬁia Judicial Lervice'(Nc.ll6), ' The High Ccurt
Arrears -- A Tresh Lark' (Nc.124) and'£he Supreme Court -
A Fresh LC k' (Nc.l25). These reports are inter-linked and
inter~crnneCted and, therefore, they h~ve tn be treated as
a package which, when implemented, it is hoped, would bring
abrut rejuvenaticn ef the system of administraticn of justice
which at present is under great strain.

I hepe far early and expediticus implement ticn cf
the Se ref-:' rts .

With r §EdS

Yrurs sincerely,

igielz ..Eg;p_§t ( D.;-Jm£SnI )



CHAPTER I

CHAPTER II

'CHAPTER III

CHAPTER I?

CHAPTER V

CHAPTER VI
CHAPTER VII

NOTES AED
REFERENCES

APPENDIX

I-I

APPENDIX II

APPENDIX III

APPENDIX IV

APPENDIX V

APPENDIX VI

CONTENTS

INTRODUCTORY one
NATURE OF LITIGATION IN URBAN AREAS
HOUSE RENT/POSSESSION LITIGATION

LITIGATION OTHER THAN ONE UNLER

TEE REUT ACT» .u.
HISCELLAEEOUS SUGGESTIONS n.¢
REVISIONAL JURISDICTIOH OF

HIGH CCURT .;.

CRILINAL JURISDICTION 5°.

WORKING PAPER ON REFORMS IN
URLAH LITIGATION OTHER THAN

IN METROPOLITAN AREAS .0.
WORKSHOPS ...
FIGURES REVEALING THE

PENDENCY OF RENT LITIGATION
FROH 1980 TO 1985 ...

AVERAGE DURATION or DISPOSAL"
or RENT CASES FROM 1920 TO I935 _,,

PRE--TRIAL; IN-TRIAL AND PGST~TRIAL
COHCILIATION PROJECT IN THE SUE-
ORDINATE COURTS IN HIMACHAL
PRADESH ova

STATEMENT REGARDING CITY CIVIL
COURT" IN VARIOUS STATES son

PAGE

86

89

'11-.3

131

132

133

146



CHAPTER I

INTRODUCTORY

l.l. The Indian judicial system is pyramidic in
character, with courts at taluk level at the foot
of pyramid, moving vertically upward through the
district level where there is a Court of District
and Sessions Judge/City Civil Court in some
cities, ah- then further upward the High Court at
the State levelo At the national level, there is
an apex court -- Supreme Court of India, The
system is one integrated whole. And a rot has set
in at each layer of pyramid. That prompted a
thinking in the Government of India that a
Judicial Reforms Commission should be set up. The
terms_of reference of the proposed Commission were
drawn up. Later on the task was assigned to the
Law Commission. Conscious of the fact that the
system is highly centralised, which contributed to

making the system dysfunctional, the terms of

_ reference included the followings-

"l. The need for decentralisation of the
system of administration of justice by -

(i) establishing, extending and
strengthening in rural areas the institution
of Nyaya Panchayats or other mechanisms for
resolving disputes; V

(ii) setting up of a system of
participatory justice with defined
jurisdiction and powers in suitable areas and

centres;



(iii) establishing other tiers or systems
within the judicial hierarchy to reduce the
volume of work in the Supreme Court and the
High Courts.

24- condor!econaooueauaeanaoaboaouonnneononon

;, The procedural laws with a View
generally to disposing of cases
expeditiously, eliminating unnecessary
litigation and delays in hearing of
cases and reform in procedures and
procedural laws and particularly to
devising procedures appropriate to the
terms envisaged in items 1(1) and
l(ii).",

Ch lCL ly where the whole system from the bottom

to the top requires to be analysed in depth with a

view, if necessary, to restructure it, the normal

course is to begin from the bottom. Accordingly,
the Law Commission, after having been satisfied
that the system at present in vogue is unsuitable
for resolution of disputes arising in rural areas,
devised a new model - Gram Nyayalaya -- for

1

r do-utior of disput 3 arising from rural areas.

Unlike the present model, it was to be a different

node", farticipatory in character where people's

direct garticipation in the administration of
justice would be ensured so as to impart
respectability and credibility to the system.

Today there is such a yawning chasm between

justice system and the people for whom it is

devised that over a period credibility of the

system is considerably eroded. The participatory

model m where people themselves participate in



administration of -justice -- would restore
credibility, ensure respectability and impart a

touch of informality in resolution of disputes.

1320 The next layer moving vertically upward is

'the one at district level where the principal

court of original jurisdiction is the District
Court. At this level the two streams of civil and
criminal justice merge in the sense that the
District Court is styled as 'District and Sessions
Court" and the Judge presiding over it is
designated as 'District and-Sessions Judge". The
Constitution vested the control over district
courts and courts subordinate thereto-in the High
Court,2 yet the service up to and inclusive of
District Judge was part of the'judicial service of
the Stateo The state had power to legislate about
that service in View of pre--amendeo entry 3 of
State List which read, "Administration of justice;
constitution and organisation of all courts,
except the Supreme Court and the High Courts,...".
Entry 3 was amended by deleting the afore-
mentioned words by the Constitution (iortyusecond
Amendment) Act, 1976, which simultaneously
provided for inserting entry 11A in the Concurrent
List in the same language, Even thereafter, the
service up to and inclusive of District Judge

formed part of State Judicial Service. while



there are a number of all-India services, such as
I.A.s., 1.9.5., 1.1-".sI., 1.A. & A.s., §;c__a_1_, there
is no all--India judicial service. Article 312 of
the Constitution, which confers power to set up an
allelndia service, was specifically amended to
confer power to set up an all--India judicial
service by the Constitution (Forty--second
Amendment) Act, l9?6, The Law Commission,

therefore, dealing with the first intermediate

.stage examined the feasibility of setting up an

a1l--India judicial service to be styled as 'Indian
3
Judicial Service' and submitted its report.

1.3. Thereafter the Law Commission focussed its

4
attention first on the High Court and then on
5
the Supreme Court of Indiac
1.4. one segment 0. administration of justice,

both civil and criminal, remained to be explored,
that is, the litigation at the urban level. This

report deals with the same.

1.5. The Law Commission issued a comprehensive

working paper (see Agpendix I) specifying the
areas of urban litigation where reform is not only
overdue but is urgently neededo In the working
paper, the Law Commission pointed out the
tremendous congestion in dockets in urban centres

on account of litigation explosion with consequent



delay in resolution of disputes leading to certain
un€:sirable developme ts threatening the very
existence of the system. In separating the

problem of urban litigation from the one in rural

.areas, the Law Commission is guided by the fact

that till now the -present monolithic system of
administration of justice offered the same model
V procedure
for resolution of disputes by the same proliqﬂ
even though the disputes arising in rural areas
are comparatively simple in_character compared to
the disputes in urban areas. A' very simple
dispute arising in rural area would be dealt with
by the Judge of the civil or the criminal court,
as the case may be, in the same manner -as the
dispute would be dealt with in highly developed
urban are1e,i with the consequence that a simple
dispute remains unresolued for years, nay decades,
causing misery to the disputants, imposing an
unbearable load on the system and rendering the
system highly expensive. It is admitted on all
hands that this monolithic approach requires to be
largely abandoned. The State court system which
has been operating in this country since the
advent of the British rule requires to be modified
by inviting people"s participation in it.
Therefore, a participatory model has been

recommended for resolving disputes in rural areas.



The working paper invited a discussion whether the
same model with necessary modifications can be of
help and use in dealing with urban litigation.
The working paper also sets out the nature of
litigation Coming to urban courts, the causes for
delay in disposal of the same and tentative

suggestions for remedying the situation.

1.6. The High Courts, Judges at other levels,

organised bar and even some litigants responded to

the working paper and either agreed with some of

'the tentative suggestions made by the Law

Commission or offered their own solution. The
High Court of Jammu and Kashmir, Chief Justice and
some Judges of the Andhra Pradesh High Court and
some Judges of the City Civil Court submitted
their detailed response to the working paper. The
Higl Courts of Gujarat .nd Madras and the Supreme
Court of India stated that they had no comments to

offer on the working paper.

1.7. The' working paper was also sent to all the

State Governments requesting them to send in their

comments as early as possible. The Government of

Sikkim desired to have a copy of the report of the

Law Commission on Gram Nyayalaya before furnishing

comments/views on the working paper. A copy was

sent but thereafter nothing was heard from the

'Sikkim Government. A detailed reply was received



from the Government of Maharashtra. After
pointing out that Lh€ Government of Haharashtra
has framed a scheme, known as lThe Maharashtra

State Legal Lia and Advice Scheme, 1979", it

--proceeds to state that it has established Legal

Aid and Advice Boards at the State, district and
taluk levels. Each such Legal Aid Board was
required to constitute a Conciliation Cell.
Anyone seeking legal aid may have first to satisfy
the Board that he/she is entitled to legal aid.
Once the eligibility is established, the case is
referred to the Conciliation Cell. The Cell
issues notice to the opposite party and tries to
bring about settlement. Conciliation proceeding
is required to be over within a period of one
month, failing which the matter is presented to

the court for disposal gcnrding to lam. It also

vsuggested setting up of Lek Nyaya'aya. increasing

the Judge strength proportionately after taking
into consideration volume of litigation in all
districts in the State. Other suggestions were
the reduction in afjournmentsg restriction on the
advocate's right to appear in certain type of
litigation and, for its own reasons, agrees with
the statement in the working paper that section
ll5 oi the Code of Civil Procedure requires to be

delotedc The Government of Andhra Pradesh



promised to send at a later date its response to
the working paper but none was forthcoming. The
Government of west Bengal submitted detailed
response to the working paper. It leaned in
favour of setting up a court with two trained
Judges for rent litigation. It leaned in favour
of participatory model. The Government of Tripura
was not in favour of participatory model as it
apprehended that "justicing is a technical subject
which cannot be left to inexperienced, rustic
people in the name of village tradition and
culture". The Commissioner of Police, Union
territory of Delhi, giving his response to the
working paper offered his own suggestions
emphasising the fact that the strength of the

magistrates, prosecutors and investigating

-officers should be fixed in relation to the

workload. He was of the opinion that a number of
offences which are set out in the Penal Code

deserve to be deleted and the procedure should be

-recast.

1,8. The Law Commission, with a View to having an
exhaustive debate on the subject, organised
workshops at Delhi, Bombay, Puri in Orissa,
Shillong in Meghalaya and Shimlap in Himachal
Pradesh. The workshops were attended by Chief

Justice and Judges of High Courts, Judges of the



district and subordinate judiciary, lawyers, law
academics and others. By the interaction of
various interest groups at the workshops, numerous
suggestions emerged which would help in
formulating the recommendations. The debate was
thorough and incisive. The workshops generated
immense interest in the subjecto This would

become apparent from the names of the participants

set out in Aggendix I 4

199. The materials gathered and the information
available to the Law Commission is varied and
extensive and would assist in making concrete and

effective recommendations.



CHAPTER II

NATURE OF LITI"ATION IN URBAN COURTS

2.1. While the nature of litigation
qua.litywise is undergoing a change,
guantitywise the graph of number of causes
brought to the court is shooting up. Two
developments have contributed to this
situation. when the country undertook
planning for its economic development as
reflected in successive Five Year Plans, the
pace of industrialisation accelerated. In
the initial stages, industries were located

in urban areas where electric motive power

and water were easily available. An
industrial undertaking generates local
employment at ltwer levels. With the'

proliferation of industries in urban areas,
coupled with the lack of employment in rural
areas ekcept as farm labourer which is
dwindling on the elimination of zamindaries,
process of urbanisation accelerated. People
in search of petty jobs moved in numbers from
rural to urban areas. Housing as an industry
had not developed. There was a body of
opinion that Rent Restriction Acts have

proved to be a disincentive to development of

10



housing as an industry. Availability of
accommodation in r ban areas compared to its
demand gradually became scarce. Slums-came
into existence. In cities like Bombay,
pavement dwellers became a regular feature.
The demand on the availability of housing
accommodation compared to the supply was so
high that in order to protect tenants from
being exploited, every State enacted its Rent
Restriction Act. Today, the largest
litigation in urban courts relates to rent
and possession of urban dwellings. This is
the major head under which there is maximum
litigationo The Law Commission in the
course cf its enduiry has collected certain
figures in relation to 'about 1.5 States
showing the litigation under the: heading
'Rent and Possession". Maharcshta leads. The
information in this behalf, which is set out
in details in Appendix II ; will show at a
glance tnat if litigation under this head is
tackled in a scientific manner, the _burden
on the court system in urban areas would be

considerably eased.

2.2. Before the advent of freedom, when

mone --lendin rwas a controlled avocation,
Y 9

ll



money suits used to clog the courts. Money
suits comprised raits for recovery of money
advanced or suit to recover.the price of
goods sold" Where money--lending has been a
regulated business under the local laws, the

litigation .under ~the heading 'Money Suits'

has dwindled, though various devices are.

resorted to to extricate oneself from the

rigours of the money--lending regulation ACtSa

2°3. The next head under which suits used to
be filed were 'Suits on Mortgage". The
banking industry probably alone is the

initiator of suits on mortgageo

2.40» The next important heading under which
there is considerable litigation in urban
courts can be appropriately described as
"Property Suits". They include suits for
inheritance/succession, partition, mainte-
nance, easements and trespasso The last may

include also the boundary disputes.

2.5. One more sub-head under which the suits
are filed is "Suits on Contracts'. Either
the suits are for specific performance or for
damages ~for breach of contract or for

recovery of amount payable under the

12_



contract.

2.6, The suits for inheritance and partition
have more or less remained at the same level
but suits for recovery of damages for breach
of contract or for injunction 'or for

specific performance are proliferating.

2,7. Suits on easements are few and far

between.
2.8. Litigation involving family disputes
such as divorce, judicial separation,

' restitution of conjugal rights, custody of

children and alimony is on the increase.
This is broadly the pattern of litigation in

urban areas.

2.9, The pendency in various courts in urban
areas is staggering. As on 31st December,
1984, 2,48,845 cases were pending in Sessions
Courts; Similarly on the same date,
77,41,459 cases were pending in Magisterial
Courts. As on tne same date, 29,22,293 cases
were pending in civil courts of original
jurisdiction and 10,91,760 cases were pending

on the appellate side. The relentless rise

pin the pendency may be judged from the

information supplied in a tabulated form

13



Year--wise position in District and Subcrdinate Courts

hereunder:--

Year Institution Disposal Pendency
(1) SESSIONS COURTS
1982 231992 210971 199829
1983** 296192 273976 222045
l984** 296678 269878 248845
(2) MAGESTERIAL COURTS
1982 8077950 7676075 6749813
1983** 8595527 4896129 7439211
1984** 794097 7638730 7741459
(3) CIVIL COURTS (Original Side)
1982 2712309 2613670 2625399
1983** 2056298 1888959 2792738
1984** 2143599 2016044 2922293
(4) CIVIL COURTS (Appellate Side)
1982 232364 206736 945728
l983** 881088 778763 1048053
1984** 1030054 986347 1091760
** Does not include figures pertaining to the State of
Sikkim.
(Source: Report for 1987-88 the Government

India, Ministry of Law and Justice, p.32.]

14



CHAPTER III

HOUSE RENT/P {SESSION LITIGATION

3.1. The moment one focuses ene's attention on
urban litigation, V the institution of suits
involving rent and possession of urban property
stares into face. It is a pest--war phenomena. It
is an inevitable consequence cf ever-rising
urbanisation process. It is attributable to the
harsh law of demand far eutweighing the supply and

its consequences.

3.2. More and more people migrated from the rural
areas to the urban areas in search of livelihood.
Availability of the jobs in rural areas was so
scarce that the rural population in search of
petty jobs migrated to nearby cities. Housing
industry did not and could not cope with the
mounting demand for housing accommodatieno Apart
from the emergence of slums, the pressure on
availability of accommodation was so heavy that
unless the greed for thriving at the cost of needy
seekers of scarce accommodation is regulated and
checkmated by adequate legislation, the seekers of
accommodation were likely to be exposed to
exploitation by the owners of urban property.
This situation led to the enactment of Rent

Restriction Acts by almost all State Legislatures

15



as the subject bf 'land, including the relation of
landltrc and tenant', is ctmprised in entry 18 cf

the State List.

3.3. A mere luck at varicus Rent Acts would shew
the divergence in approach of varitus State
Legislatures. This was sought to be justified on
the one hand by saying that the local Acts reflect
peculiar lccal situations and seek to meet local
requirements and on the ether hand urged that the
degree cf pretecticn must differ from place tc
place relatable tc the availability or the
scarcity cf the heusing accommodation in the area.
There is nc material or appreciable difference
between the position of a tenant in a city like
Madras in Tamil Nadu compared to his counterpart
in a city like Bombay in Maharashtra State or
Calcutta in West Bengal. And yet the differential
treatment is so glaring that 'ene fails to
understand why the Tamil Nadu Legislature would

not grant that much protectien which the

"Maharashtra Legislature considered appropriate to

grant.

3.4. To illustrate, section 14 uf Tamil Nadu
Buildings (Lease and Rent Ccntrol) Act, 1960,
having the marginal note 'Recovery cf pcssessicn
by landlcrd fer repairs or for re-construction',

enables a landlord to cbtain possession by an

.16



order pf the Ccntroller, if he is satisfied - (a)
that the building is 'egg Eide required by the
landltrd fer carrying cut repairs which cannot be
carried tut without the building being vacant; er
(b) that the building is bgga ﬁigg required by the
landlord for the immediate purpcse of demolishing
it and such demtliticn is to be made for the
purpose cf erecting a new building on the site cf
the building sought to be demolished, directing
the tenant to deliver pessessicn cf the building
tL the landlcrd before a specified date. Sub-
section (2)(a) cf section l4 ensures that if
possession is given for repairs, on the completion
cf repairs the tenant would be re--inducted in
pcssessitn. But when it comes to evicticn en the
greund that pessessien of the building is required
by the landlord for the immediate purpose of
demtlititn, the only assurance which the landlcrd
has 'ta give to the Ccntrcller is that he would
substantially cemmence reccnstructicn within the
time specified. There is no assurance that en the
building being reccnstructed, the tenant would be
inducted in the building or in part thereof.
Ccmpare this prrvisicn with sectien l3(l)(hh) cf
the Btmaby Rents, Hotel and Lodging House Rates
Central Act, 1947, which provides that the

landltrd shall be entitled tt reccver ptssessicn

17



cf any premises if the ceurt is satisfied "that
the premises censist f net mere than twt f1c;rs

and are reasonably and bena fide required by the

landlcrc fer the immediate purpese cf demelishing
them and such demcliticn is tc be made for the
purpese cf erecting a new building cn the premises
scught to be demolished'. Sub--sectiun (3A) !cf
section 13 further prevides that no decree fer
eviction shall be passed en the ground specified
in sectien 13(1i(hh) unless the landlcrd produces
at the time cf the commencement cf the suit a
certificate granted by the Tribunal under sub-
section (3B) and gives an undertaking, amcngst
cthers, that the new building shall contain not
less than 'two times the number of residential
tenements, and not less than twc times the flcer
area, contained in the premises seught te be
demolished. Sectitn 17B further provides that
where a decree for eviction has been passed by the
cturt on the grtund specified in sectien l3(1)(hh)
and .the wcrk cf demclishing-the premises and cf
erecticn cf new buildings has been commenced by
the landlerd, the tenant may, within six months
from" the' date cn which he delivered vacant
pessessien of the premises to the landlcrd, give
nctice te the landlord of his intentitn to occupy
as tenant the premises in the new building on its

ctmpletien on the ccndititns set but in the

18



sectien. An cbligatien has been cast an the
lardlerd tc intimate he the tenant the ldate cf
cempletien cf the ctnstructien cf the new building
by sectien 17C. -The landlcrd then is under an

ubligatien to intimate te the tenant the date en

which the erection will be completed and en that

date .the tenant shall be entitled to Lccupy' the
tenement assigned to him by the landltrd. This is
the whcle scheme of law under the Bombay Act where
pcssessien is seught en the ground cf demcliticn
ef the building" New the Tamil Nadu Act alsc
permits evictien en the greund that the. building
is to be'demclished but there is absclutely ne
countervailing cbligatien en the landlard tt
reinduct the tenant in the new building nor the

tenant has any right to that effect.

3.5. The Tamil Nadu Act did net impose any
tbligati;nV an the landlord seeking pcssessien "en
the ground that pcssessien of a building is
required fer immediate demrliticn te reconstruct
and re--induct tenant.' This uninhibited right to
seek possession en the greund that pessessien cf
the building is required fer immediate cemeliticn
gave rise to numercus litigatiens where even
possessien cf a recently ccnstructed building was
sought en the greund pf immediate demzlitirn.

There was a whsle nefarifus purpcse behind ithis

19



mtve. It is a nrtari us fact that when a building
is under c.nstructicn nu intendec t. be let ;ut,
the prtspective tenants in search of accummcdatitn
give advance ltans {U the assurance cf securing
accomm;uaticn. If such building is demclished,
there can be fresh explaitatitn ;f such ctndum
tenantsi Such a nefaricus practice was curbeﬂ by
the pruvisixn in the Bcmbay Rent Act as delineated

hereinbefrre.

3.6. Numersus matters under Tamil Nadu Act came
befcre the Supreme Ccurt fer pcssessirn under
sectitn 14 Cf the Tamil Nadu Act. Pcssessicn in
each case was stught by the landlcrd an the grcund
that the building is required frr immediate
demclitian. The Ccurt tpkk nutice cf the fact
that unlike ether Rent Acts, the Tamil Nadu Act
die nut pr-vice fir re--inductitn vf the tenant
intcl the rec:.structec'building. Allgwing the
appeal 1f the tenants, the Ccurt held that: "The
age and decrepit ctndititn kf the building is a
relevant factor am<ngst several others which will

have te be crnsidered while acjudicating uprn the

bane gide requirement cf the landlrrd under that

pr;visitn [section 148) and might receive greater
emphasis in a case where the enactmenta as is the
case here, ccntains no prtvisicn fer reinducting

the evicted tenant int~ the new building than

20



where the c'ncernec enactment has such a
1

pr;visi<n.". In xthkf werds, the essence ;f a

pr:visirn ftr re--ineuctitn cf tenant in the newly

ctnstructec buileing is a relevant facttr tt be

taken int; censideratitn fer determining the btna

fides if the landl-re and in same cases the Cturt

insisted upcn the lanaltrd giving an undertaking
that an the tenant evicting the premises Mane
handing it ever tn the landltrd fgr immediate
demcliticn, the landltrd must cpmmence
recunstructien within the specified time and
crmplete it within a reas nable time and re~induct
the tenant. The Cturt drew inspiraticn frzm
prtvisi<ns cf Rent Acts in tther States. The
appeals ef the tenants were alluweu and the cases

were remancee t1 the Centrzller.

3.7. A grievance can be made that the approach
disclases USULP&CikH tf the legislative pbwer Rf
the State Assembly. Ccnceding that the Judges
have tp interpret law and ShLUld ntt assume the
rcle cf legislaters; yet it is well established
that they may legislate interstitially an: where
the prrvisitn is brazen--faceCly unfair as is the
case here, the temptation ta legislate cannet be
thwarted. Where such a situatien cames acress,
the Judges d; not fcld up their hands but wculd

enquire what wtuld they have dene if they had been



the legislators and to straighten out the tuck in
the texture and iron ct: the creases.
Said Lore Kenning, L.J.:-
"then a oeiect appears a Juoge cannot simply
folc his hanos ano blame the oraftsuan. He
must set to work on the constructive task 'of
finding the intention or Parliament -- and
then he must supplement the written words so
as to give "force and life' to the intention
of legislaturen A Judge should ask himself
the question how, if the makers of the Act
had themselves come across this ruck in the
texture of it, they would have straightened
it out? He must then do as then woulo have
done. A Judge must not alter the material of
which the Act is woven, but he can and
2
should iron out the creases.".
the Sugreme Court put its seal of agfroval on this
statement of law°3 consciously, and sometimes not
so consciously, this-is being done is a fact, and
whatever be the criticism it cannot be wished
away. More so when avoiding to do it would lead
to manifest injustice. ' The Law Commission is
conscious of the fact that the aforementioned
observation was not approved by the House of Lords
and in fact it was adversely commenteo upon but

that is haroly relevant.



3.8. Another illustration would turtner butteress
this position. Delhi being the capital town, the
Delhi Rent Control Act includes some special
features which are absent in rent laws in other
States. -A large number of buildings in Delhi are
either state ownedv or constructed by Delhi
Development Authority. But apart from the members
of the affluent section of the society who have
built their houses, numerous co-operative housing
societies have come into existence formed by

employees of the Central Government and Delhi

Administration. Most of them while occupying.

Government accommodation available to them by
virtue of their office built their houses and
rented them out at very high rents. As if this is
not sufficient, there is a provision in Delhi Rent
Control Act which by itself renders insecure the
possession of the tenant, simultaneously giving
leverage to the landlord to extort higher rent on
the pain of dispossessing the tenant. Section 21
of the Delhi Rent Control Act provides that:
'Where a landlord does not require the whole or
any part of any premises for a particular period,
and the landlord, after obtaining the permission
of the Controller in the prescribed manner, lets
the whole of the premises or part thereof 'as a

residence for such peﬂod as may be agreed to in

23



writing between the landlord and tenant and the
tenant does not, on the expiry of the said period,
vacate such premises, then, notwithstanding
anything contained in section 14 or in any other
law, the Controller may, on an application made to
him in this behalf by the landlord within such
time as may be prescribed, place the landlord in
vacant possession of the premises or part thereof
by evicting the tenant and every other person who
may be_ in occupation of such premises.'. The
object underlying this provision was that numerous
Government officers may be posted out of India for
short durations and during the period of their
absence from India, they may be able to rent out
premises with the assurance that on their return
they can evict the tenant without going through
the rigmarole of a sui:. The way in which this
section is implemented has led to numerous extra
legal devices. The landlord invoking jurisdiction
under section 21 gets a decree for possession in

advance. At the end of the specified period which

is usually not exceeding two years, the decree can_

be executed even without notice to the tenant.
Section 21 was used by unscrupulous landlords to
let out the premises for the specified period on

the ground that he/she does not temporarily

require the same. At the end of the prescribed

period, the landlord would call upon the tenant to

24



vacate but would renew for a further specified
period the tenancy by the same procedure at an
enhanced rate" Interpreting section 21 in a case
in which a landlady had let out premises by
invoking section 21 in 1968 for a term and
thereafter from time to time continued the
possession of the tenant on a phased lease and
increase in rent, the Court observed as under:

"We can correctly visualise the scope
and sweep of this provision (Section 21) only
in its proper social setting. It carves out
a category for special treatment. While no
landlord can evict without compliance with
sections 14, 19 and 20, does a liberal
eviction policy underlie Section 21?
Apparently contrary but actually not, once we
understand' the raison d'etre_of the section.
Parliament was presumably keen on maximising
accommodation available for ' letting,
realising the scarcity crisise one source of
such spare accommodation which is usually shy
is potentially vacant building or part
thereof which the landlord is able to let out
for a strictly limited period provided he has
some credible assurance that when he needs he

will get it back. If an-officer is going on

25



other.assignment for a particular period, or
the owner has official quarters so that he

can let out if he is confident that on his

retirement he will be able to re--occupy, such'

accommodation may add to the totaly lease-
worthy houses...,. Section 21 is the answer.
The law seeks to persuade the owner of
premises available for letting for a
particular or limited period by giving him
the special assurance that at the expiry of
that period, the appointed agency will place
the landlord in vacant possession."

The Court then proceeded -to point out that

'It is easy to envisage the terrible blow to the

rent control law if section. 21 were freely

5
perritted to subvert t'2 scheme of section 14'.

'The Court came to the conclusion that if the

landlord at the end of every specified period

repeatedly renews tenancy under the pretext of the'

accommodation being available temporarily for a
short period, then such exercise would be
violative of section 21 and it would be open to
the Controller when warrant for possession is sent
to.enquire whether section 21 was wrongly invoked

and deny the relief.

26



309. One more illustration would bring.to' fore
the denial of protection to tenant under Delhi
Rent Control Act._ Section 14, with the marginal
note of 'Protection to tenant against eviction',

sets out grounds, proof of anyone of which would

enable the landlord to re-enter.A Right of re-

v

entry of a landlord in demised premises is made

specifically subject to the provisions of section
14. One of the grounds enabling the landlord to
obtain possession of the demised premises is "that
the premises let for residential purposes are
required bong figs by the landlord for occupation
as a residence for himself or for any member of
his family dependent on him, if he is the owner
thereof, or for any person for whose benefit the

premises are held and that the landlord or such

person has no other reasonably suitable-

6

residential accommodati»n'. If the ground herein

specified is invoked by a landlord, he can proceed
according to the prodedure prescribed in Chapter
IIIA of the Act. This Chapter was introduced by
Delhi Rent Control (Amendment) Act, 1976; which
came into force with 'effect 'from 1m12--1975.
section 25B provides that where an application is
made by a landlord for the recovery of possession

of- premises on the grounds specified in section

l4(l)(e), the same shall be dealt with in

27



accordance with the procedure specified in the
section. Briefly, the procedure specified is of a
summary nature, the peculiar feature of which is
that on the service of a summons of an application
for recovery of rent made by the landlord, the

tenant shall not contest prayer for eviction from

the premises unless he files an affidavit stating

the grounds on which he seeks to contest the
application for eviction and obtains. leave from
the Controller in the manner provided in the
section. The Controller would give leave to
tenant to contest the application if the affidavit
filed 'by the tenant discloses such facts as would
disentitle the landlord from obtaining an order
for recovery of possession of the premises on the
ground mentioned in section 14(l)(e). In no other
Rent Act throughout the length and breadth of this
country except the Delhi Rent Control Act, the
tenant is left at the mercy of the court even with
his initial right to defend the action. The law
reports bristle with" numerous orders at the
Supreme Court level where not only the Controller
misdirected himself in refusing leave but the same
was upheld 'in a revision petition to the High
Court and the tenant was evicted without a
semblance of defence being heard. Leave to defend

oneself was treated a stage where long orders were

28



written by Controller as if evidence has been led
and that is required to be appreciated.
Ultimately the Supreme Court had to point out that
"Restrictions 'on the landlord's unfettered right
to re--entry may be stringent or not so stringent
depending upon the local situation. But the
underlying thrust of all rent restriction
legislations universally recognised must not be
lost sight of that the enabling provisions of Rent

Restriction Acts are not to be so construed or

interpreted as would make the protection conferred

on the tenant illusory by a liberal approach to

the desire of the landlord to evict tenant under
V 7

the camouflage of personal requirement". The

Court pointed out that the procedure prescribed in

.section 25B is harsh compared to the normal

procedure prescribed for dealing with application
for eviction on [grounds other than the one
mentioned in section l4(l)(e). . And it would be
surprising to recall here that no appeal was
provided against the decision of the Controller
refusing to grant leave. The Controller was the
final arbiter in a summary procedure of the
destiny . of the tenant. 'The Court further
proceeded to point out that the object and purpose
of rent control statutes of putting a fetter on
the unrestricted right of re--entry enjoyed by the

landlords with a view to protecting the tenants

29



assuring security of tenure, must always inform

and guide the interpretative process iof such

socially--oriented beneficial legislation. The.

tenants in other parts of the country are not
exposed to such harsh procedure almost bolting the

doors of the courts for justice.

3.10. These illustrations amply demonstrate the
need for a uniform Rent Act applicable to the
whole country excluding such areas where
inadequacy of accommodation is not a problem.
Enactment of Rent Act being within the purview of
the State Legislature, the Law Commission is not

undertaking this exercise. However, time is ripe

for formulating a model Rent Act.

3.11. The huge backlog of cases under the Rent

I'

Acts and inoriigﬁte delay in disposal or cases
have brought to fore some undesirable
developments. The pendency and the consequent
delay in disposal of cases under Rent Acts in
various States may. be appreciated from the
information herein supplied (Appendix IV). The
duration varies from 244 days in a small State
like Sikkim to 5,950 days in West Bengal and 1,359
days in 27 districts of Maharashtra. The figure
does not take account of the duration in disposal

of cases in the Bombay-Small Causes Court 'where

30



reportedly the case is not finally disposed of by
the trial court before the expiry of seven years

from the date of its institution.

3.12. So the question that stares into the face

is whether some peripheral reform in the present
method of disposal of disputes under Rent Act
would improve the situation or a radical departure

is necessary._% There is little . scope for

improvement or reform of »the present method.)

Therefore, some alternatives have to be found.'

3.l3.. Responses to the working paper disclose
four distinct approaches;
(1) The suggestion made by the Law
'Commission itself in the working paper for
response and comment, namely, the same model
which the Law Commission recommended for Gram
Nyayalaya.8.

(2). The second alternative suggested

was that instead of one Judge or Controller,

-whatever be the designation, hearing the
case, a Bench of Judges, minimum two, should
hear the cases and there shall be no appeal
against their decision save and except Va
revision 'on question of law to the .District

Court.'

31



(3) The third alternative suggested was
that some form of neighbourhood ,justice
centres must be set up for resolution of
disputes under rent laws because these
disputes have a local flavour and people, in
the vicinity of the premises involved in
dispute would be better suited to deal with
the dispute.

(4) Conciliation Court system now

working with full vigour in Himachal Pradesh.
All the four models may be separately examined.

3.14. The court system set up by British rulers
has continued to be operative till today with
minor modifications, The model is of a State
court, presided over by a professionally trained

lawyer who enters judicial service} This model is

in vogue for over 150 years. This model has
practically bcgomc dysfunctional. The system is
in total disarray. In the seminar at Bombay, it

was pointed out to the Law Commission that the

gross and unreasonable delay in disposal of

disputes under the Rent Act'has given rise to an

undesirable tendency adopted by some landlords in
utilising the services of members of the
underworld who, by sheer threat and violence,

inculcate such fear in the tenant that he is

forced to leave the premises and the landlord,

32



without the intervention of court system, regains
possession. Undoubteclg the service is for a price
and the Commission was tolc that the price varies
accoruing to the locality where the premises are
located and the carpet area of the premises of
which possession is sought. The'phenomenon is
thoroughly disturbing and is offered as a proof of

the utter failure of the system.

3.15. Another undesirable feature of the system
that was brought to the notice of the Law
Commission at the same seminar 'was that the
litigation under the Rent Act has acquired the
connotation of a need-based litigation and that
results in proliferation of litigation from court
to court. To be specific, it wast stated with
emghasis at the seminar that it is almost
impossible to get even a minimum accommodation -- a

roof over the head -- except for a huge price

styled as 'premium' or paghri, payment and

acceptance of which is illegal and violative of
section 18 of the Bombay Rent Act and yet it is
indulged into freely. A tenant in an action for
eviction, even if he honestly believes that the
landlord's petition for possession is genuine, yet

he would resist eviction at any cost and if

33



r oefeated, would prefer appeals after appeals 'ano

"2

when finally thrown out, would resist execution
Oﬂly -because oncetout cf the premises, he' has
nowhere to go. This lack of _availability of
accommodation also contributes to delay in
disposal of litigation when the .tenant seeks
adjournment by applying every device available to
him. Therefore, it. does not require elaborate
discussion to reach an affirmative conclusion that
the present model for resolution of disputes under
Rent Act throughout the length and breadth of this
country is a disaster and a dismal failure. The

alternative has to be found.

3.16. The first alternative suggested is to adopt
the model recommended by the Law Commission where
a professional Judge interacts with lay Judges
fro: the society and t_ the interaction of both,

they reach a reasonable conclusion in a short time

and dispose of the disputes. Obviously there will

be no appeal against this decision and only a
revision petition will be permissible on a
question -of law to the District Court. It would
be merely adding to the length of this report if
the entire model 'and the method of making it
operational has to be discussed over here. The
only thing the Law Commission would like to

reiterate is that a de-professionalised model of

34



justice delivery system has been gaining
acceptance" in a number of Countries. The

indigenous juristic potential of the people,

incluoing their own sense of justice, is allowed»

room for development. This can be achieved by

people's participationi in the administration of
9 .

ijustice. The Law Commission further reiterates

the methoc for orawing up a penal of layy Justices
and the mooel of the constitution of the court
composed 'of a professional Judge and two lay
10 H
Judgeso H The only difference in this case from
what has been recommenoed in the report on Gram
Nyayalaya is that this. bouy, which shoulﬁ be
styled as 'Nagar Nyayalaya", neeo not visit the
site unless necessary because its seat would be in

the urban areas and it wculd be dealing with

ﬂisputes in urban areas where distance may not be

prchibitiveo Incidentally it was stated that in

selecting two lay Judges, attempt must be made to

involve the interests affected by decisions under

Rent Acto It was saié that two lay Juoges must be

drawn, one each from the Associations of landlords
and tenants which have come into existence in
almost every city where a Rent Act is in 'force.
After mature consideration, this suggestion does

not meet with the approval of the Law Commission

35



inasmuch as the' experience shows that bias is

inherent in such compcuition of the court. To

illustrate, some decades back, Government of India

set up a Wage Board for engineering industry. The
composition of the Wage Board was so planned that
all affected interests did find a representation
on the wage Boaro.. Accordingly, the Chairman of
the Wage Board was a man drawn from Judiciary.

Thore were two independent members, two members

represented the workmen and two members
represented the employers" The Wage Board took
about five years to give an award. The startling

outcome was that the Wage Board gave four awards:
one by the Chairman; second by the two independent
members; third by the representatives of the
workmen; and fourth by the representatives of the

employerso This is an eye--o§ener. -The Law

"Commission is informed that such an experience

recurred when the Wage Board very recently set up

for working and non--working journalists gave an

award granting interim relief, These experiences

have moulded the thinking of the Law Commission in
disapproving the suggestion of drawing" one lay
Judge from the association of landlords and the
other from the association of tenants because both
of them may not be in a position to disabuse their

mind about the bias by association.

'36



3°17. The second model suggested was that instead
of one Judge, as at present? hearing the disputes,
styled as either 'Munsif' or 'Civil Judge' or
"Rent Controller', a Bench of two should hear the
cases following the same procedure, and their
opinion should be final.. No appeal should be
provided against the decision of the Bench save a

revision on a question of law;

3.180 Every statement of known legal position
need not be elevated to the status of a question
of law. The question of law must be such for
which~ there is no binding decision of the High
Court to which the urban court would be
subordinate or of the Supreme Court of India. The
question of law has to be specifically stated
whi.e entertaining the revision and the revision
petition must be confined to that question of law

alone and nothing else,

3.l9° The third alternative suggested was 'that
Neighbourhood Justice Centres should be set~ up
where these disputes can be conveniently resolved.
Before the enactment of Rent Act, subject to the
provisions . of the Transfer of Proprty Act}
landlord enjoyed an unrestricted right of re-
entry. In order to Checkmate the tendency to

informallyj use this right, Rent Act usually

37



imposed. a restraint on the right of re-entry by
making a provision that on proof of certain
positive and affirmative facts the landlord can
re~enter, otherwise the tenant will have the
protection of statutory tenancy. One such
enabling ground to be found in all Rent Acts is
the reasonable requirement of the premises by the
landlord for his own use or for the use of the

person ' for whose benefit the premises are

ibeneficially. held, Litigation for recovery of

possession on the aforementioned ground is
probably the highest in the litigation under the
Rent Acts. Now when a landlord seeks possession
on the ground of E933 gigg personal requirement,
two incontrovertible facts emerge: (1) that at

some point of time he Eid not need the premises

and could let it out for extra income by way of

rent; and (2) that his personal circumstances have'

altered so drastically that the accommodation at
his disposal is insufficient to provide for his
needs' andp therefore, he must get back the
accommodation in possession of the tenant, In
resolving these disputes, the court's approach is
to ascertain whether the need is genuine in the
sense that ithe accommodation at the disposal of
the landlord is insufficient or that his
circumstances 'have so altered that he must get

back into the possession of accommodation occupied

38



by 'he tenants -The siz of the landloij"s family,

the increase in the size since the premises were

let iout, other changes in the landlord"s family_

such as partition between brothers or marriage of
sons or the increase in the size of the family for
other sreasons are all relevant considerationso
Change in' the position of landlord such as that
premises were let out when landlord was in service
and he is about to retire and needs the premises
for' his own use is equally relevant. But these
are relatively simple issues. However, experience
shohs that numerous witnesses are' examined on
either side to establish this simple pointc It is
a a waste of court's time.. Thosd in the
neighbourhood" where the premises are situated are
bonni to be aware of the size of the 'landlord's

family; the changes that have occurred in the

gfamily, the incompatibility amongst family members

for various reasons and if the dispute is brought

to a Neighbourhood Justice Centre, it can be

;

easily disposed of rather than a court dealing

with the same,

'3a20. setting up Neighbourhood Justice Centres is

of recent origino By 1980 about over.one hundred

such Centres have been set up in different parts
'. ll.

of United States of America; His counterpart,

though not wholly analogous, is Comrade's Courts

39



in UoSoSoRo An integrated centralised justice
system has become static and there was a demand

for decentralisation of justice system by creating

a complementary system. The .model of such

decentralised system was almost wholly 'to be

different from the existing system" This thinking'

"gave rise to the concept. of setting up

Neighbourhood Justice Centres; The departure will
be noticed that while the court' has an
adjudicatory approach, the Neighbourhood Justice
Centre would try to reconcile the two parties and
bring 'them to a common understanding of problems
as fari as possible. The utility of the system
lies in the fact that it is believed:

"A good neighbour is someone who keeps to

himself but is there if needed. You borrow a_

cup of sugar (for a party) but you don't
invite them to the party"1;2
Another view expressed was that:
"Yeah, I know just about everything in the
neighbourhood, but they"re not my friends; I
guess i_like to know who they are, but that's

13
all there is to itV.

The "Neighbourhood Centre may consist of three

local residents and if a retired Judge is residing

in the area, preferably he should be included;

40



Such a locally situated centre holds promise of
being more conveniently located, more considerate,
and much faster in processing cases than the State
set up court system. Coupled with this is the
advantage of an informal, non-adjudicatory style
which would be very appealing. A legislation
would be necessary to set up such centres. It
would not be difficult to set up such centres in
urban areas. Fairly well educated local residents
would be available to work into centres. And
their knowledge of local conditions, traditions
and local needs would assist them in an informal
manner to resolve the dispute. 'And this would

reduce the load on the court system considerably.

3.21. The fourth alternative' suggested was
introduction of Conciliation Court as at present
in vogue in Himachal Pradesh. It is a model which
can be combined with any of the other three
models. It may be examined. Available mechanisms
for resolution of disputes are: adjudication by
courts, arbitration, mediation, negotiation and
various blends of these and other devices, such as
Ombudsman or fact finding inquiry body.
Conciliation is one such method. It has hardly
been put to test save to a' limited 'extent in

labour laws. It is'a model worthwhile examining.

41



3.22. 'Parliament envisaged introduction of
corciliation as a mode- for resolution of disputes
in civil litigation. Order XYVII provides for
suits by or against the Government or public
officers in their official capacity. Rule 5B was
introduced in Order XXVII by the Code of Civil
Procedure (Amendment) Act, 19769 It reads as

under: . I
"5-B. 'Duty of Court in suits
against the Government or a public
officer to assist in arriving at a
settlement,. (1) in every suit or
proceeding to which the Government, or a
public officer _acting in his official
capacity, is a party," it shall be the
duty of the Court to make, in the first
instance, every endeavour, where it is

possible to do so consistently with the

nature and circumstances of the case, to

assist the parties in arriving at a
settlement in respect of the subject-
matter of the suit.

(2) If, in any such. suit "or
proceeding; at any stage, it appears to
the Court that there is a reasonable
possibility' of a settlement between the

parties, the Court may adjourn the

'42



proceeding for such period as' it
thinks fit t enable attempts to be made
to effect such'a settlement.
(5) The power conferred under sub-
'rule (2) is in addition to any other
power of the Court to adﬁourn
proceedingso".
Identical provisions can oe found in sub~sections
(2) and (3) of section 23 of Hindu Marriage Act,

1955 and sub--section (1) of section 9 of the

Family Courts Act, 1984. Though rule SE is

limited in its application to a suit to which the
Government or the public officer ;cting- in his
official capacity is a party; it is time to expand
the coverage of the method of resolution of
disputes therein, provided to all suits in civil
courts, including the vclairb for compensation
before the Motor Accidents Claims Tribunala Rule
SB provides that in a suit_to which it applies, it
should be the duty of the Court to make, in the
first instance, every endeavour where it is
possible to do so consistently with the nature and
circumstances of the case to assist the parties in
arriving at a settlement in respect of the subject
matter of the dispute.' Where the court is of the
opinion that there is a reasonable possibility _of
a settlement between the parties to the suit, the

proceedings may be adjourned for such period as it

43



thinks fit to enable attempts to be made to effect
such settlement. Rule SB expects the court before
which the suit is pending to itself attempt to
conciliate the dispute. ' An apprehension was
entertained that if the attempt at conciliation
fails, the' presiding Judge whose efforts failed
may be embarrassed in proceeding with the suit on

merits. What is the way out?'

3323. Chief' Justice of.Himachal Pradesh High
Court, Justice P.D. Desai,. being aware that the
system is over-stretched 'and bursting at the

seams, with a view to salvaging the system coupled

with a burning desire to make the system result--'

oriented assisted by an uncanny vision, has used

this provision so successfully that the scheme of.

Conciliation Court framed by him and successfully
operated by him may now be accepted by all courts.
Not confining the conciliation process to the
suits to which rule 58 would apply, the Chief
Justice has made it applicable to all types of
litigation set out in the scheme under the heading
fldentification and Transfer of Cases _to the
Conciliation yCourts'. Frankly speaking, hardly
any litigation of civil nature is left out of the
purview of the Conciliation Court. He.hasA not
only successfully worked the scheme but obtained

results which are very encouraging,' This can be

44



deduced from the-information hereunder supplied:

Number cf cases disgosed

So No. . Period
' of by the Conciliation
Courts.
1. 1~9--s4 to 31--12--S4' 176
2. lwl-85 to 31-l2*85 1,890
3. 1-1-86 to 31-l2~86 4,897
4. lnl-87 to 31-l2--87 8,544
l",507
As the scheme is extended to Motor Accidents
Claims Tribunal, durin' the period August 1, 1986
to December 1, 1987, the Conciliation 'Court

disposed of 261 claim cases out of 555 pending
beforev the Tribunal and the settlements resulted
tune of

in distribution of compensation to thee

Rs.56,75,0S6n The results are so encouraging that
the success of the model cannot be put into
question. 'And in § State like Himachal Pradesh
where the concentration of litigation may not be
as high as in Bombay or Calcutta or Madras, the
impact of the system in reduction of litigaton can

be said to be noteworthy.

45



3.24. what is the scheme? Briefly, the scheme

envisages the setting up of Conciliation Court

earmarked for this purpose to which all suits at av

preliminary stage after pleadings have been filed
are transferred, Conciliation Court is presided

over by a Judge other than the one who would have

jurisdiction to try the suit in urban areas where

there is more than one court. At the taluk level
if there is only one court, eschewing any

inhibition of embarrassment, the presiding Judge

lof the same Court attempts to conciliate in the

matter under the scheme.

'3.25. The Conciliation Court, in order to form an

opinion about the alternative formula for an

'amicable settlement, -goes through the case papers

and also verifies the facts from the counsel as
well as from the parties to the extent necessary
and endeavours to evolve a fair and just formula,
acceptable to both parties, 7 for an amicable
settlement of the issues in dispute. The Judge,
with his suave persuasiveness, participates in
this process. The Judge is expected to bring _to
bear on the subject his understanding, narrowing
down the area of conflict, persuading the parties
to accept a fair settlement, and is required to

put his concentrated efforts in this behalf. The

46



Conciliation Court, in the initial stage of the
operation of the scheme, got the guidance and
advice of superior judicial officers and now there
is a trained cadre of Judges in Himachal Pradesh

who successfully operate the scheme.

3.26. The senior members of the Bar, amongst

4

others, are invited for personal discussion by the .

'District Judge, Additional District Judge and

Conciliation Court with a view to impressing upon
them that the project is on trial basis and its
success would materially help in making the svstem
resilient which had become static. It was also to
be impressed upon them that this approach would
save cost, avoiding the inevitable necessity of
calling witnesses, long drawn. out cross-
examination and unending arguments and all that
goes with a routine litigation in civil courts at
present times. It is open to the Conciliation
Court to frame issues and even try such cases on

J

merit or dismiss in default of appearance "or

proceed gg parte in appropriate cases but with a.

note of caution that the powers of dismissal for
default or proceeding_g§_parte are to be sparinglv
used with a limited end in view of securing the
presence of the parties and their counsel in order
to facilitate the conciliation work. It is" thus

an informal approach uninhibited by the Code of

47



Civil Procedure and informality permeates the
proceeding before the Conciliation Court so as to
help the parties in not taking up hostile
adversorial attitude but try to narrow the
difference and ultimately resolve the dispute. If
the parties. agree to a compromise, the same is
recorded as required by Order XXIII, rules 1_and 2
of the Code of Civil Procedure.' The litigation

ends there.

3.27. In the event of failure of the Conciliation
Court, the suit is returned either as a whole or,
where parties have narrowed down the area of
dispute, with the narrow area for adjudication by
the 'court in whose jurisdiction the suit was
filed. The scheme differs from the adjudicatory
process in civil court in the sense that it has an
informal atmosphere and approach of give and take
and appreciation 'of the point of view of both
sides and even help of senior advocates who:'are
not engaged by the parties. As the scheme is
successfullyi working, it must be accepted as a
model and the Law Commission is informed .that
recently judicial officers of the Rajasthan State
Judiciary supported the introduction of the model'

14
in Rajasthan State.

3.28. while approving the scheme as a whole, to

-make it more efficient and effective, it is

48



necessary to remove the difficulty exferienced by

the Conciliation Cour; in Himachal Predesh in

'settling disputes between the pzrties bv way cf

4

conciliation when the parties oo not aypeer in
person before the courto No one, under the
provisions of the Code of Livil Proceoure, l908,
as amended in 1976, can be compelled to appear
before the courto It may be pointed out that an

eg parte decree on merits can be passedo But that

woulu not help in resolving the dispute by the'

interface between parties. Order X rule 4 of Code
of 'Civil Procedure gives power to the Court to
yronounce the judgment against the party or to
make any other suitable order in this behalf only
if the Pleader to the party is unable to ansner
any material question relating to a suit. In
other words, a party cannot be ordered/directed to
eppear in pet50n before the court under ekisting
provision of Order x "rule 4 Code of Civil
Proceﬂure with a View to securing the personal
attendance of a party in the court for specific
settlement. It is, therefore, necessary to
empower the court to deal efﬁciently with the
absenteeism. This can be done by making the
ﬁollowing amendements in order X of the Code of
Civil Proceoure:-

(i) The following may be added as sub-

49



(ii)

nust be undo obligatory in all

clause (c) immediately after sub-clause

(b), clause (1) rule 2 of Order X of the

'\

CCLQ of Civil Procedure:
tuay 'require the attendance of any
suit or proceedings,

person with s View to

to the

party
to ugyeai in
arriving at an amicable settlement
Aof the dispute between the parties

and make an attempt 'to settle

the
dispute between the parties

amicably."
Ehe following may be added as clause (3)

immeéiately below clause (2) of rule 4

of Order X Code of Civil Procedures-

"Where a party orcered to appear

before the court in person with a

view to arriving at an emicable

settlement of the dispute

the parties, fails to appear in

person before the court without

ltwful excuse on the cute so

ayyointed, the court may pronounce

judgment against him or make such

order in relation to the suit as it

thinks fit".

with these additions, the Law Commission is of the

oginion that the scheme will be very effective and.

courts, removing

50

between'



the limitations that are to be found in rule 5B of
Grder XX$II' in the matter of application of the
grocecure' to suits other thanc those set out
therein, In fact, tge scheme must aﬁyly to all
suits of a civil nature coming before civil

courts.

3°29. Thtre is an identical provision in rule 3
of Orécr XXXIIA introduced in the Code of Civil
Procedure by the same amending statute which makes
the procedure therein apylicable to suits and
proceedings set out in sub-rule (1). The scheme
must mutatis mutandis agply to them also without
any further variation. The scheme in its full

1-

outlines is annexed at sggendix E to this report.

3.30.' In a Seminar/Workshop organised at Bombay,
various suggestions were made for effectively
dealing with urban litigation. Bombay yresumably
has the highest concentration of urban litigation
at all levels" This will be clear irom the fact
that in order to reduce the pressure on the High
Courty a City Civil and Sessions Court was set up
at Bombay in the year 1948. Initial sanctioned
strength of Judges was 4. As on April 30, .1988,

1

37 Judges were in position in the City Civil ano

Sessions Court and 53;266 civil suits and 4,944

criminal cases await disposal; Pendency of civil



matters include suits more than l0 years Oldo To

highlight this yositic;, it mug be mentioned that
six States have set ug Cit} Civilv Courts. They

are Gujaiet, Culcutta, Tamil Esau, Karnatake,

heharashtra ens Anchra Brcoesho A chart showing

the jurisdiction of the City Civil Court, the area

in which the Court was set ug, tne initial
sanctioned strength of Judges, Present strength of
Judges, initial arrears with which it started and

the p[€S€Ht arrears will be found at Angendix V10

3031; when these disturbing figures were
highlighted at the Seminar/Workshop, L suggestion

was made whether the court can be empowered to

ccmyel parties to go to arbitration. It may be
recalled that the particigants in the

Seminar/Worksnoy included 3 number of High Court
Judges, some City Civil Court Judges and Judges
from other rgnhso TLe suggestion was by a member

of the Judicier3. As the yrovisions of Arbitration

L

Act, lS40 today Vstand, before a iarty can be.

forced to resort to arbitration, there must be a
subsisting arbitration agreement between the
varties or even in a hatter eendinc in tne court,
I. L 

garties can resort to arbitration by consent of

J

ill the garties involved in the disputea In the

I'

absence of an arbitration agreement or in the

absence of the consent being accorded, the court



is gowerless to force parties to go to
ariitrationr The TJu{ges clearly were of the
oginion that there are numerous cases in which
arbitration woulc be 3 better node of resolution
of disgute than a proceeding in the court. The
suggestion deserves serious consideration and

amendment to the Arbitration Act may become a

necessity. It is not possible to deal with the

esuggestion in this resort but it would -be-

worthwhile to have a seprete report on the subject
which the Law Commission, time permitting, would

undertake.

3.32. Thus we have four different models. They

cannot be said to be exclusive of each other in

lcharacterc one or two can be lsaid to' be

complementary to each other, such as sthe'

Conciliation Court model can be 'introduced with
any other model. But the choice has tc.be made

from three models? 'such as whether the present

system should continue or whether a Bench of two

Judges should-hear the case or the participatory
model must be introduced. After mature
consideration, the Law Commission is of the
opinion that the participatory model should be

introduced along with Conciliation Courts.

53'



CHAPTER IV

gITIbATIUN CTHER TH.J CNE UNDER THE RENT ACT

cola Luce liti,:ticn LEQQI Rent Acty which
clogged the dockets or the courts in urban areas,
is taken lcare of, it is necessary tc tonsider
whether suits other than suits uneer Rent
Acts,suct as swits srising out at the disgute as
to inheritance ans successien;_ g"rtiticn,
.

maintenance [and suits cn easements, cad be dealt with 03 the ciisting system efficientl; and within time? The suits ccvered by the Family Ccurts Act sre not taken note of here as a_segsrate forum is set ug fer their disyesal aha that wcula further case the Pressure en civil cuurtsa The pressure cf the litigaticn under the Rent Act is so high that 'the cturts are txablc to fine any time for litigatitn cf eny ether nctureo-- If the litigation unuer the Rent 'Act is tsten over by 2 new garticiyattry mouelg the existing courts wculd be able ta fiﬂb sufficient and auegunte time fcr suits cf ether rature hcrciﬁubvve mentioned" The suits linvclving a dispute as to inhcritence/ SUCCQSSiLn& y?rtiti(n, maintenance are 'amcngst near rtlatitns. The disyutes invclving inheritance and succession, ccugled with cisputes arising cut sf wills, are nncngst generally bleed rel titns who are the kith tne kin cf the deceased 54- cht are imter--relatec. Unccubtcdly scmetimes this litigation' is taught with vcngcanccc But it is here that the Ctnciliatitn CLu;t system will be put tu testo If? therefcre, these suits are kept within the purview of the courts as at present 1 functisning with an cbligatcry cuty tu sec up Ccnciliaticn CLUItS, the restluticn of such cistutes can be speedily ' achieved. The intervention cf ccurt brings to bear its Lersutsive pcwer tn the,litigants and lawyers apgtaring in the matters. Near relatibns can be easily gersuaded ts take fair and just and ratienal attitudeo ,'Tnat will be .thc test of Ccnciliation Cturt scheme" Therefcre, the Law CCKhlaSlLn is or the opinion that in resgeet cf the suits hereinabtve mentioned, the Ctnciliation Cturt system must be msde .ccmgulsury by an efF«¢*ive'amenﬁmwnt tt the Ccue cf Civil Procedure en the lines of rule 58 cf Order XXVII thereof to widen its applictticn ta encompass suits of the Vafcrementicned'n;ture° 4.2. There remain suits involving disputes about easement rights as alst suits either far specific perfermante of csntract or ftr damages complaining breacn cf ctntracto 4.39 Suits involving disputes as tt easement 55 rights. are few and far betweeno In czngested cities, especially within the tld city walled area? suits ctmglainingn rf infringement of 1' easement Cr light anC_:ir crap up in courts.

Hewever, with the advance cf tewn planning schemes, the number is going dcwn. At any rate, csurt will have entugh time tn deal with the same ane HL chenge is necessary there.

'4n4c 'Similarly suits fcr specific performance of contract or fer demages fer breach of centract can be taken care with the extra time available to the cturts if the recemmendatitns herein made are fully imtlemented.

405. It may incidentally be mentizned that suits raising issues under service jurisprudence used ta crop ug in csurtso with the establishment of Central Administrative Tribunal enjoying exclusive jurisdictitn' in this behtlf; it is net necessary to make any sgecific previsien fer such suits. in restect ef Centrtl Gevernment servants. Htwever, sectien 4(2) tf the Administrative Tribunals Aét,-

1985, emycwers the Central Gqvernment en a request in this behalf frtm en; State Gcvernment tt set up an Administrative Tribunal tt exercise the jurisdictien, powers and huthcrity _under the Act ' ftr the State. The Law C mmissitn is sf must --

the cpinitn that every State GcvernmentLtake.step 56 . " . . ,. . ' .

tgr settlng up Adm1n1strat1ve_Tr1bunal uncer the

-ct° 57 °HAPTER V * LISCELLAFECUS.SUGGESTIOﬁ$ Scla Viewing the Qcurt prgcedure'es at present inW vague in courts at elese quarters, twe things emerge which can be seid in be tiee consuming, etntributing, tt the Cele; in disgessl ef cases gushing ug arreurs "in icourtsa The maximum esnsumpticn cf tine takes place in recerding erel evieenees and listening te arguments beth ;t~ the interin and final stage.

5.20 Dealing. witn the censumptien sf time in retarding evideneepi subject tc few exceptiens which are of a-marginal nature, it is' time tc relieve the ceurts frem the btredem sf doing this wera and investing its preeieus time in this otherwise avcidable exercisee

503. Order XVIII rule 4 Lf the Cede ef_ Civil Prccedure, 1908. gravices that the evidence "of witnesses in attendance shall be taken_crally in open Ccurt in the presence and under the personal éirectien and superintendence of the Judge. Rule 5 pravides that in cases in which an egfeal' is allewee, the evidence kf each witness shell be:

(a) taken dewn in the language cf the court:

(1) in_ writing by, er in the presence .

and under the yerscnal directicn and sugerintendence cf, the Judge; cr

(ii) Erin the dictatitn of the Judge directly an n tygewxiter; or

(b) if' the Judgef fer reaschs tc bet rettrded, ' SC I oirects, reccrded mechanically in the language cf the Ccurt in the presence cf the Judge. Rule 8 pruvides that where the evidence is not taken idtwn in writing by the Judge er frcm his dictaticn in the cyan Ccurt, cr reccrded mechanically in his gresenceg ze shall be bcund, as the examinaticn tr each witness proceeds, tc make a memcrandum cf the substance cf' what each witness depcses and 'such memcrandum 'shall 'be written. and signed b; the Judge and shall~ farm part er the ICCLfdo it may be mcnti3ned'that the exyressirns "the Juuge uirectly en a typewriter"

LI "may be mechénicclly reccrded" were intrcduced by .the amending Act 'cf 1976. This amendment authtrised the cuurt tc use a take reccrﬂer which was trcwned upcn enrlier. However, even if' the tage rectrdcr is tu be used,rthe prcceedings shall tike . glccei in the presence cf the V Judge. Therefcre, even if the tape reccrder is used, the time cf the Judge is net spared fcr ether work. Consequently, the pressure an the c;urt"s time is 5{\ .

-

net .reCuced even thrugh mechanical device can» be used in recording evidence. Hcwever, permitting the evidence ta be mechanically recerdeé is a step in gaed éircctien and deserves ta be aggrebated.

5.€e Secticn 75 cf the Cede sf Civil Prccedure ctnfers power an the ccurt to issue a cemmissicn, amongst cthers, to examine any witness. The power is net hedged in by any conditions. i4Hcwever,i Order XXVI cf the Code of Civil Prcceéure,- 1908, prescribes conditions-under which a cemmissicn can be issued. Rule 1 cf Order XXVI'prLVid€S thét a cemmissicn may be issued ta examine a person. as witness resieent within the lccal iimits cf the jurisoictien' cf 'the Court in which the suit is pending if the person is exempted in the Code of Civil Prccedure frem- ttending the Ccurt or is, from sickness er infirmity, unable tc sattend. Rule 4 prescribes conditions fer the exercise of pcwer ccnferred by secticn 75 tc issue ccmmissicn by providing that a ctmmissiun for examinatien may be issued if -- x

(a) he" is resident beyend the local limits cf his jurisdicticn; tr

(b) any person who is abcut to leave such limits befere the date tn' . which he is required tt be_examined_iniCcurt; and

(c) any person in the sauce of_ the 60 Government who cannot, in the uyinitn sf the Cturt, ¢-tenc uithtut detriment t;

the public service.

The Lrhbf tt issue etmmissian far examinetiqn pf a gersen as a witness is begged in by the cenditians tau. steciiiee in ruies 1 and 4 ti Greer X V'. These prtvisirns w«uld nciulf Del; in dealing with the issue Lf saving tie Judges" greci;us'time in LCC£r'diUg evidenceo 505: The Lower ctnferred by sectitn 75 and the grtvisi as if Order XVIII will have ta be expanded t; a certgin extent LS te help the ceurt in aygqinting C CkEmiSSiuD€[ sue mgtu tc rectrd eviuenee <f witnesses gresent in the ceurt.

50;: It Lnv a given day mere than one suit is fixtd igr recerding evidence and witnesses are ,restnt in ali the suits,_the distinct pcssibility is that the ceurt wtule nit be able t: rectrd eviuence ;£ wll witnesses ano same witnesses will nave ta DH back Ear ya fcult gt theirs. And the ceurt ¢\ule be <cCu[iec fer tme while day» in reetreing eviuenee v a Eunctitn which can be best lett ta a Cemmissitnera If A Cgmmissitner is gpgaintee ta rcerre evidence cf witnesses, it wcule sgve a let sf time _f the c.urt and weuld assist it in c;nCentrtting an disgtsal cf suitsp .This _agtears to be the buz9;se uncerlging the amendments made by t}; Lilahcbac Eigh Ceurt tc varicus rules ccmgrisee in Order XXVI vi the Ctde tf Civil Prtcecureo Rule 1 cf Order XXVI .f the Cice cf Civil irracedurc, up amended by the Allchabac High Ccurt, widens the g mer cf the C<urt t; issue ccmmissicn, 'the only C;hCitlLn iuresed being that the ccurt thinks it necessary s» tL c: in the interest cf justice pr expeditiena Rule 2 as it stands enables the ceurt tc exercise the gcwer Egg mctu. Rule 4, as ptinted cut eariiei, yermits the Cturt to issue ccmmissitn gnly in the circumstances srecifieé therein. as tar as UOPD is c;ncerned,.rule 4 has been deleted, impljing that the pcwer Cf widest amplitude ccnferred by amended rule l can be exercised witncut being hedged in b" any ccnditicns. Any V J evidcﬁce reccrded~en ccmmissicn cannct be used in evidence withcut the c nsent cf the petty against whcm the same is cffcrec, as prcvided in rule E, and the embsrgc wtuld be lifted nnly in the circumstances set cut in clauses (a) and (b) cf rule E0 Ly the emehdment made by Allahabad High C=urt, rule 3 has been deleted and while sc dcing, the extressicn 'subject tn the prcvisitns Lf rule 8' in rule 7 cf Order XXVI have alsc been deleted and in its place the WKECS "evidence in the suit' 1 nave been added. The cumulative eftect kf these 62 amendments weuld enable the ceurt tc issue cmnmissien when it is tapedient in the interest of justice er expedition tc examine» any witness.

Pregerlv J censtrued, in the situatitn hereinbefere set gut, the ceurt may issue cemmissien te examine witnesses in the ccurt. Te make the prcvisien etfective,i it weulc be aovantageeus fer each cturt, with the trier apgrrval cf the High Court, ta draw up a panel cf lawyers willing tr wcrk as Cemmissieners fer reccrding evidence. On the cemmencement cf the werk cf the czurt an a given day, the presiding Jtége will enquire as tc how many witnesses are present in all the suits fixed fzr recqrding evidence and then immediately aggeint available lawyers as Cemmissirners and they will recgrd evidence. This wculd leave the gresiding Judge time 'to deal Vwith all _suits withgut sgending his time in the mechanical exercise of recereing evidence. _This would censiderablyv save court's time and exgedite distesal cf cases.

5n7. it needs harcly to be stated that the ccst "ti Ctmmissicn in the circumstances herein oiscussed shall be bcrne by the State fcr cbvicus reascnsn Ordinarily the Code Lf Civil Precedure expects the presiding Judge t; recerd evidence.

He is relieve; sf this duty sc that he can 63 tonaentrate his attention on uisgosal of cases. on his oenalr, the Cohnissioner uoulo record evidence, not at the reguest of the rarties to the suit but at the instance or the Juoge exercising his Egg note powers, Therefore, tne State nust bear the cost of commission, 5.8, Long, unenuing and repetitive arguments is the bane of tne "resent cav 'ustice svstem, _ L > .1 J 1 .

Illustrations of long drawn out arguments sgreacing over months have already been noticed

- 2 ano it is unnecessary to repeat them here, If tne srperior courts Could hardly control and condone this unoesirable feature of court procedure, it would be sheer travesty to expect Judges of the subordinate courts to aeal effectively with local lawyers in this behalf. And in the course of a trial, oral arguments are offered at various stages, including also when an adjournnent is Vmoved andi opposed. Every apglicatiou under tne Code of Civil ?rocedure is hotly contested; 'Put the two most important stages where arguments consume avoidable long time are at the stage of confirming or vacating interim relief and at the stage of final submissions after evidence is recorded. Both stages may be examined, (D 03f trcer KEXEX rules 1 ané 2 of the Ccue of ('3 ivil iroceeurey 1583. as amended in 19 E; confer tower cm the court to grant interim relief of the nature set out therein and in the circumstances yrescribed thereinr It is an unfortunate _e:terien:e of the Judges in the subordinate trial courts to hear arguments for and against granting interim relief spreao over eays'anC months. *Long arguments have the tendency to ené in longer orders because the drder granting or refusing 3 7 relief is apgealable i_anC if the arguments advanced are not dealt with, the order is vigorously attacked in the aypellate Ccurtr :3, .

Tnerefore, the Judge tries to cover all arguments and in the Lrocess writes an unusually long order.

Tte Law Commission came across a recent case in which the City Civil Court at Ahmedabad wrote an Greer .e1tensing over hundred gages refusing to grant interim relief. The experience generally is that by the plaintiff moving for relief under Order XXXEX rules I and 2 of the Code of Civil Procedure; 1305, an x garte order is snatched and then there is total reluctance to get it heard to Getermine where the rule nisi should be confirmed or dischargednk This resistence leads to various ancillar} agylicatitns diverting the court'; attentict from the main" issuer The arguments generall§ sgread over a wide Canvass ans are heard 65 tor a number of days. How this situation can be taken care of by the court itself by granting E5 Earte order lirite; to certain days; say about a fortnight, and if the Llaintiff thereafter rails either to serve the same to the other side' or shcws reluctance to proceed in the matterg the' rule nisi should get discharged automatically bv .4' the eiflux of timeo This will put a pressure on the plaintiff to oroceed with the mattero If, on L the other hand, the defendant shows reluctance to proceeo with the matter, the rule can be confirmeé without further argumentso This will gut a gressure on both sides to get the interim relief application disposeé of in a shcrt times The time » limited to one hour at best may be fixed for eit er side. Equally ine consuming 53 the rinal arguments. As a rule, it is never heard from dayw to~oay. The hearing spreaos over months. This evil can be put a stop to by' insisting upon written submissions and the pointed attention to some aspects can be made in the cowrt by limiting the time granted to each side; with regard to the high Court and Supreme Court, a suggestion to this eifect has' been made by the Law Commission 4 alreadg. It is time to extend this method to ccurts subordinate to the High Court. For the weighty consideration therein mentioned, the Law Commission is of the opinion that the courts must be enyowered to limit oral arguments to specific time after written submissions have been furnished to the court. This would also assist the subordinate. courts in writing effective judgments because written submissions would be handy"

5010. The aéversorial system now Erevalent in our courts provides a place of pre~eminence to the .members of legal profession. One can hardly think of a successful working of adversorial system in the absence of legal experts assisting the parties' in search of justice. This is the first and grimary role of the members of the legal profession. 'Lut there is a more important and more ethical role which the members of the legal profession have to play and that is as officers of the court. _Their role is as important as, if not more than, the role of _the Judge who woulo ultimately render his opiniono In this sense lawyers are called the officers oi the court. They' assist 'in search of truth, in rendering justice and in imparting a healing touch to the parties. They are gerforming this dual role. The Law Commissionp howeverP- feels that this is a narrow and imperfect view of the role of the lawyers participating in adversorial system. It is, therefore, time to add a third dimension to their 67 rolep namely, accountability of the legal groiession to the society"

Sella' There is a tremendous uisunderstanding about the role of legal proiessiono Apart from the larger guestitn of the role of legal profession in a constitutional democracy? even on a narrower glane as officers of the court involved in disgensation of justice, their accountability to the society has not been spelt out. As officers of the court involved in the process of resolution of disputes, they have to contribute to bring about a satisfactory resolution of disputes. This is sgecifically the role of legal profession in adversorial system. Instead there is a tremenﬂous misagpreoiation about the role when occasionally the; art condemned. as "brokers iuteresteu in perhetuation' of cisputes". A leading Gujarati daily isai Hind' described them in editorial columns as kajiya dalalsa A grosecution _was launched against the eoitor, Comglaining of oefamation of the members oi tae professiona A yetition was filed on behalf of the \ for £0 eoitor in' the Gujarat High' Court Lrayin 5 .

quashing the Erosecutionn The court meticulously examined: the role of legal profession in the 1 mooern society ans especially in India, pointing out that the profession has suffered erosion in 68 its statusr T Undoubteoly the court alsc geegec at the otner side of the ticture which was described.

as brighter side. Legal grofestion has evokec hign admiration and gungent criticisno It is time for the yrcfession to sit ut and revaggraise its role in the mocern society and find ways ano means of establishing its accountability to the society, The profession has to have a re--apyreisal of its behaviour qua courtsp qua clients, their wooe anc metnod of charging fees, their life style, all of which enter the verdict about the role or the profession" One can look upon with pride at the role of the legal profession in our movemert for inoependenceo But since the incegpndeuce, even though one may not like to admit, the profession 'has lost its place of preweminencea The strike of the lawyers in Eelhi for months on enc with balance sheet cf grofit and loss to the legal profession yet to be drawn up, ccupleé yith the acrimonious exchange before _ %adhwa~Goswami Committee} wculﬁ leave no doubt in the mind of anyone that it dis not cover the profession with glory.. Its net outcone, one can say with confidence. is that as the cases were not being heard,, arrears further riled up and the worst sufferers were neither.the Judges nor the courts nor' the lawyers but the litigants'for whom, the profession claims to existn .Tnis fall out reveals 65 the total absence 'of L social auoit and accountability of the profession to the society.

5.12. Legal profession is a monopolistic profession. Every monogoly has an inbuilt tctentiality of the abuse of its monopolistic character. Legal trofession has been described as monotolistic in character because unless one is a member of the club, entry to which is by enrolment by Bar Council composed of lawyers, one cannot practise before a court or tribunal." To that extent, it is a closeo door club with eligible criterion' for' entry and the power to grant admission vests in the members of the' profession. It is thus a monopolistic profession. -Therefore, in order to curb the necessary evils off a monopoly,' it is of primary importance that a monopoly must be accountable to the consumers of its service. In the wider, perspective of constitutional democracy, apart from accountability to the consumers of justice, namely, litigants, a profession given monopolistic character by the society itself must be accountable to the society at large. It is this dimension of the profession which by some method must now be highlighted. There can be a multi- dimensional approach to this aspect. The' Law Commission in this retort touches only one.

5.13" Agart from litigation involving Government I or a gublic servant a-ting in discharge of nis ut.-s un-jer which a PT' optiesf there are certain sta rigLt cannot be claimed Unless a nctice cf demand is serve; ugcn the person against when the right is claimed and relief is to be Wrayee for. Leetion 50 of the Code of Civil Procedure prescribes a statutory notice to be served in the manner yrescribed in the section when either a Government or a public servant acting in discharge of his duties is to be suedn Similarly, under the Transfer of Property,Act; if the landlord wants to re-enter the gremises oemised by him, a notice terminating the tenancy has to be served unless the tenancy has exgired by efflux of times This yositicn.ras hardly undergone a change even after the introduction of Rent Actso Even when a writ yetitien is to be filed graying ror mandamus. a notice making deman; of justice has to be served.

The concept of serving notice deserves to be exyaneee to all potential areas where conflict may leac to litigationo The Law Commission is of the view that in any litigation exeegt where some urgent relief is necessary, a notice of demand must be issued on behalf of the person who claims ,a certain right or relief against another gerson which ma; as well include an artificial person or 71 a jnristic gcrson~ The gurgosc in intrccucing a tagc of nctice is to inforn the other size that 5 a lit'gation is center lated anc gi*e him an cggortunit; to avoio litigaticna If the other side is not cnamcoiec of litigation and is willing to act f'irly and justly; the notice will gut him on the Guard that 3 yossible litigation is 'hreatenec unless the gartiee meet and resolve the disg~1.:I-e 1 Sulfa Croinarily the tart; seeking to initiate any unit or legal action will aggroach the lawger firstr ate lawyer should give a nctice and in that notice he must specify that-the other side shoulg, on r€uC1kt of the notice, nominate his [_\ awgera This must be made obligatory" Once the A LC) ...a.

other side nominates his lawyer and regl es notice, it must be made statutorily obligatory IQ?

both tie lawvcrs to meet within a garioo of 15 days wﬁi-in m"'Y 4; action can be commenceo.

Even ii the limitation for the suit or legal action is to exgire,' by a statutory gzouieion it will be extendec by 15 day: being tne gericd of grace wit in which the lawyers must MLCCO At this meetinga tne lawyers snoulu start apbteciating each otner's gcint cf view, exchange evioence and-

attemgt to iind out whether a reasonable solution of the ~lsgutc by fair approach of give anﬂ take a Z\_'7 is goseibleo Minutes of the meeting' must be maintaineen If the éisgute is resolved, the consent terms must be drawn up and subnitteo to the court under Order XXIII rule 3 of the Code of Civil Procedure upon which he court must gass a consent ceoreea If the whole dispute is not resolved in course of the negotiations at the meeting but a Lartial agreement is achieved, the same must be recorded and treated as' binding on both sioes. The litigation may start only for the remainder of the disgute. Failure to resolve the dis;ute at the negotiating stage may etrnit a litigation to be started but in that event. the glaint must aver that such an effort has been made and the dooument eviéencing the attempt must. be disolosed along with the glainta The other side, on being informed that litigation has been filed must appeari without waiting for a summons to be served. The court must then enguire about the area of disyute not resolved and refer the matter to the Conciliation' Courti If possible, the Conciliation Court should Lersuade the parties to cone to a fair settlement" The Conciliation Court, after 'having perusal of the documents yreyared at the negotiating stagey must ascertain which party was unﬁustifiably recalcitrant at the time of negotiation, It must be ascertained at two stages, namely, at the stage of meeting of the 73 lawyers and at the stage when the matter is dealt wit. by the Conciliatic. Ccurtn Ultiﬁately if the trial goes on, the party shown to be recalcitrant and also shown to be unjust in approach must be visited with heavy cost, inclusive of the cost of establishment of the court as spelt out by the Law 6 Commission in its earlier reporto 5:150 "To reclaim the glory of the profession, only a minor step is suggested ,here. If implemented yin letter and spirit, the Commission is confident that instead of being accused of being "brokers of dispute', they would acquire the status of healers and solvers of dispute. In 'order to bringaboutthis result in a small way, the Law Commission recommends that on the notice and the reply being ex hanged, a statutory duty must be cast on the lawyers to meet and either resolve or narrow down the area of dispute and regular reports of the achievement in this behalf must be published. That published report would be subjected to 'social audit which would not only hely in imgroving the image of the profession, butt woule grovide objective evidence of their contribution to reclaiming the system under unbearable pressureo ' Jr'? 2:1.' '1 1:} 3?'. '7 REYISIOHAL JURIS? 3TICH OF HIGH LDURT £01. Section ll? of the Code of Civil Preeedure, llba, tenfers power on the Sign Court to call for the ICLLLU of any case which has been decided by any court subordinate to High Court and in which no appeal lies thereto, and if such subordinate court aggtars »

(a) to have exercised jurisdiction not vestee_in-it by law, or

(b) to have failed to exercise a jurisdiction so vested, or

(c) to have acted in exercise of its jurisdittien_ illegally or with material irregularity, the High Court may make such order in the case as it thinks fit. A {revise has been engrafted to this section by the Amendment Act of 19760 It is not necessary to reproduce the same here.

6020 This jurisdiction is briefly described as revisional jurisdiction of the High. Court.

"xgerienee has shown, and no statistical support need be given to substantiate the proyosition, this revisional jurisoiction has been largely responsible fer.holoing up the trial of suits and oelaying the uisiosal of the suitso The First Law 75 Comnission in its 14th Report examined the advisability of retention of the ' revisional jurisdiction and recommended its retention by- providing certain checks in exercise of the l ._ n jurisdiction. While comprehensively dealing with the Code of Civil Procedure, the Law Commission in its 27th Report reiterated its recommendation in the ldth Reyortoz while re--examining the Code of Civil Procedure, the Law Commission in-itsi 54th Report recommended total deletion of section 115 of the Code of Civil Procedure observing that often the cause of delay in the trial of suits is entertainment of petitions for revision: against interlocutory Vorders which invariably resulti in stay of groceedings. In fact? in many cases, the object of the parties in invoking the revisional jurfsdiction 'of the High Court appeared to be to delay the progress of the Lroceedings.3 The High Court Arrears Committee expressed the opinion that the revisional jurisdiction of the High Court 4 against interlocttory orders.snould be abolished.

6.30 As if this revisional jurisdiction hade not done enough harm, article 227-of the Constitution has been so interpreted as to widen the scope of 'revisional jurisdiction of the High Court.

Article 227 of the Constitution confers power of suterintencence over all courts and tribunals by the ~Hi9h Court throughout the territories in relation to which it exercises jurisdiction. This power of superintendence has been interpreted to confer wioer gurisdiction comgareq toe one conferree Lg-section 115 Code of Civil Procedure of correcting any and every error committed by the subordinate court through the yrogress aof the litigationo Whenever a constraint was felt in"

\ exercise of revisienal jurisdiction under section 115 of the Code of Civil Procedure, the parties invoked the-wider jurisdiction under article 227. The State of U.P. amended section 115 of the Code of Civil Procedure in its application to the State by confining the-revisional jurisdiction of the High Court to the suits wherein the value of the subject matter of dispute was Rs.20rOO0 and above or »uits instituted bef re August 1, i978, and in all other cases transferred the' same to the District' Court; 'Confirming the validity of the amendment, the Supreme Court observed that °access' ate justice~also inglies finality within reach of the rich and the gcor.o..° Judicial reform is up to now a tinkering exercise,'not an engineering project, but. even that little tinkering is. fiercely challenged as litigative anathema by the . V . S profession which is unfortunate°° 6040 The Satish Chandra Committee differed with 77 the recommendation of the Law Commission and leaned in favour of the amendment made by the state of UoPa in section 115 with some further exgansion of the jurisdiction of the District Court.

6c5n Has the situation improved? The answer is obviously in the negative. what is the utility of a revisional jurisdiction of the High Court or ieven of the District Court against interlocutory orders? One can apgreciate a revision petition against a final order and the exgression 'final order" should not be the subject matter of another rouno of litigation" The expression 'final or&er' must mean final disposal oi the litigation as a whole in which the order is passed and nothing further is -required to be done by the court dealing with the litigation. But when it comes to interlocutory orders, experience shows that even a rejection of an application for adjournment of Va' suitv has been the subject matter of a revision r getition.£

606. .It is generally accepted that anyone .

interested in delaying the progress of the suit would make any apglication, though utterly irrelevant, invite an order and approach the High oourt in revision; Till' it is admitted, aojournment of the suit will be sought on the 73 gtcuno that the orcer of the court is alreaey uno r chaliengec if aimitted, stay uCUlC follow as a LQLELI of course anc the progress or the suit weulc he Lalo er for yearsn Tie abﬁse of .the ﬁrovisicn 'can be sgelt out L; an illustration; Order it rule 2 of the Code of Civil Procedure grsviies ttat the ccurt shall cismiss the suit for cefauit cf a H' Agearancc of tue Llaintiff on the date when the suit is fixed for hearing: Order IX rule ﬂ groviues that when the suit is so dismissed, the glaintiit may apply for an crder to set aside the

-dismissal and if he satisfies the court_that there was suffiLient.e Q) use for his ncnuapyearance when the suit was called on for hearingy the court shall make an oreer setting aside the dismissal upon terms as to costso Order XLIII rule 1 clause (C) confers a right at appeal against as 'drder made under order IX rule 9 rejecting an agplicatien for an order to set asiae the dismissal of at suitc ~ The gclicy of the law apgcars L0 be that if the court which dismissed the sui" is satisfies that there was sufficient cause for the nonmappearance of the glaintiff on \ » the 'ate fixed for Hearing the suit, it shall set aside the dismissal of the suit and if the court dces not set aside the order dismissing the suit, the order of the court rejecting thee ap,licati0n '.

can be LcViGhE$ b; an al;eal. ﬁhie necaasarily irglits thht ii the application is granted, no a1geal would lien Ana it eteulé be see If the ulucr eismissing tge'suit is net bﬁt asiée, the ilaintirf becomes nenvsuited, Therefore? he is given a right cf aygealg Ify on the other hand, the court sets asiee the order dismissing the suit, the matter would precceé furthera The eefencant cannot than make a grievance about it. Ea;eric1ee, howevery shows that even though the Lelieg of law as disclosed by a combined reading 01 i.iee 4 ane S of Greer IX and Order XLIII rule 1(0) is that only the oréer dismigsing the suit for default cf afyearance may be reviewed by an a';ellate teurt; yet the cefendant generally eaestions the correctness of the order granting the fgpliczticn for setting aside the eismissal of tne suit by way of revisiono During the time the revisitr is percing further hearing of the suit will be stayed. Years arter revision application is dismissed which obviously it woule be} the suite would again be revived ane proteedea furthero And such tactics have been often resorted tea This is the harm causee by exercise of revisicnal juriseictionn The gain is little because where n 0 interlocutory orders are of some censeguence;

Greer KLIEI rule 1 frovides for appeal against the same; Therefore, naving regard "c all the EL CirCuLLt&LCCS cf thg matter and exgerience so far cci_ectc¢. amp the brev;cus opinions exyréssed and .

the irescn; eﬁerging situation} the Law Ccmmission is at the ViCW that section 115 shoulo be deleted sc far as ingerlacutory oruers are concernedo Tfis wuuld zcmuve the stagnating ghasc 'of the L, arogreus of tn: suite CC +--J CHAPTER VII C&ZLIH&L JURISEIC?ICﬁ 7019 while oeaiing with urban litigation, it wculo be a glaring omission if some change is not suggestet in the yresent court structure dealing with criminal cases in urban' areas. Undoubtedly when an exhaustive revision of the :ode of Criminal Procedure is undertaken, the question of dealing with criminal litigation can be' adequately jeealt with." Even then during the interregnum, certain steps can be taken which would reduce the_buroen. on the criminal courts in urban areas;

7;2. During the British rule and for some years after independence, there was a method of apgointing' honorary magistrates to deal with oroinarg routine criminal cases, such as violation of municipal law, traffic regulations? simple private complaints ané matters alike in character" The research shows that in appointing honorary magistrates under the British rule, the test was of loyalty to British regime. The power was used for extending State largesse. "Some title holders under tne British regime were appointed as honorary magistrateso Even then, 82 some of them acquitted-extremely well but by and large a good number of them did not come 'up' to vexpeetaticn with the result that the system came into abuse. And nemesis overtook it. "The system was discontinuedo "Instead full time stiycndiary magistrate"s courts were set up.

7.3. The criminal litigation has proliferated so much and the crime chart is going up at such a break--neck speed that it is rather difficult tof provide 'for' the system L of stipendiary magistrates for all 3sorts of criminal cases. There is a body of opinion that large number of offences as set out in the Indian Penal Code of 1860 vintage deserve to be deleted consistent with the mores of the present day societi. There is a belief that being guilty of over-legalisation; a case is made out for delegalisation. The behaviours' that need to-be decriminalised are those of homosexuality, yrcstitution, abortion, bigamy, et al. This requires an indepth study and the Law Commission has started its' research in this behalf. However, it will take some time before a thorough probe can be made and a well-considered report is submitted. 7.4. During the interregnum, the system of .83 appointing honorary magistrate must be re~ introduced. But departing from the past practice, a specificg gualiﬁicaticn must be prescribed that only those retired personnel of the judiciary who in their active life .rcnoered service as Judges should alone be appointed as honorary magistrates. There are now nearly hundreds of retired . Judges available for being appointed as honorary magistrates. Their experience in' decision making, their expertise in dealing with cases, their sense of justice and fairplay and their rational. approach acquired over a whole working life would make them ideal honorary magistrates, They can be entrusted with any work which ,a stipendiary magistrate 'can undertake.

7.5., Therefore, it is hereby recommended that honorary magistrates, subject to condition in the foregoing paragraph, may be appointed at once; They should sit in the same courts where _the regular courts sit in the early hours of the norning.' Their terms and conditions' of payment can be worked out and they will be able to take over all the old cases on which they can concentrate, relieving the 'burden on the sitting Judges; This one 84 suggestion would help in reducing the burden"

in urban criminal litigation.

7.6. In" preparing this report,- the Law Ccmmission must acknowledge with thanks the 'assistance rendered by Mrs. Jyctirmoyee Nag, retired Judge of the Calcutta High Court.' 7.7. The Law Commissionr recommends accordinglya (D.A. DESAI) CHAIRHAN (v,s. RAHA DEVI) MEﬁBER.SECRETARY NEW DELHI,T August 8, 1988.

85 NOPES AND REFERENCES Chagter E

1. LC_I,}__li1th Report on Gram N1ayala_y_g. 2; The Constitution of India,article 235.'

3. LCI, ;L_;L_6th Re_gort on Formation of an All India Judicial Service. _ ' ' 4." ml, 124th Report on The Hi_g_1_1___C'ourt.~ Arrears - 5 . §'_1_"_<.-_§sh Look .

E5. LCI, 125th Report on The Stgreme Court - A Fresh £9912- c§gpteg_III.'

1. yetalware and_Company etc. v.B3nsilal Sarma and Q9, etg., (1979) 3 sec 398 at 407.

2; Seaford Court Estates Ltd. V. Asher, (1949) 2 All ER 155 at 164.

3. §gngg}orq_Water Supply and Sewerage Board V. ggjapa, (1978) 2 SCC 213 at 285.

4. §;§;§9ronqﬂ Y. Prem Kumari Khanna, AIR 1980 SC 193 at l95»196.

5. ;g. at 197.

6. Section 14(1) (e) of the Delhi Rent Control Act; 97; Precision Steel and Engineering Works and Another Vo.Prem Deva Niranjan Deva Tayal, (19825 3 SCC . 270 at 279;

8.' LCI, ll4th_gepprt on Gram Nyayalaya.

9. ;§i§., for a fuller discussion.of the model of participatory justice, reference is invited to paras 5.6 to 5;9. V' 10; 12i§,, for a fuller discussion cf the selection fc' empanelling lay iudges, reference is invited to pir_:

5.16 to 5.19.

11. Roman Tomasic and Malcolm M.Feelay, Nei hbogrhood 2 ;;.9;~:9_s.r29_r2t. .91: .a.r3..E.rr9_r_<1i_r19_' I. dea. 199257 P . X 1 V -

12. gg. at p.82.

13. .iJ9;;§1-

914. Indian Express (Delhi Edition),dated 19th Feb,, 1988,p.10.

Chapter V

1., B.V.Viswanatha Aiyer, The Code of Civil Procedure, 4th Edition, Vol. II, pp. 1048-1052 under Order XXVI, rules 4, 7 and 8.

2. LCI, 124thJ{eport on The High Court Arrears -- 5 fgggh Look, paras 4.12 to 4.17: and _ LCI, 125th Report on The Supreme Court - A Fresh Look, paras 2.18 and 4.18.

-3. See Code of Civil Procedure, Order XLIII,rule 1 (r). ' '

4. LCI, 99th Report on ggaiiggyjgjtten Arggggnts in- the Higher Courts. _ A '

5.. Narottamdas L. Shah.v.'Pate1 Maganbhai ' Revabhai and Another, 1984 Gujarat Law Herald 687.

6. DCI, _1_g_8th Report on Cost of Li1;_igati_o_p_.

Chapter VI

1. LCI; lﬁ§gLReportMggJ1eform of Judicial Admipistration, para 30, p;429.

2. LCI, 27t_1fi_ _Rppor't on Code of Civil Procedure,1908, para 57, p.25.

3. ' LCI, _§z_;__t_13__Report on Code of Civil E5rocedure,1908, pp.96--97. - ~

4.. gepo£g"g§_the High Court Arreara Committeg,1972, para 71, p.67.

5.' Sri Vishqg_ﬁwtar etc. v. Shiv Awtar and Others, AIR 1980 SC 1575. .

6. B.V.Viswanatha Aiyer, The Code g§3Civil ggggggure, 4th Edition, Vol. I, p.351.

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