The Central government has proposed substantial amendments to the Indian Penal Code, 1860, the Code of Criminal Procedure, 1860 and the Indian Evidence Act, 1860, with a bid to fast track the criminal adjudication process in the country.

However, it remains to be seen whether the Code of Civil Procedure, 1908, (CPC), the central legislation governing the procedure of conduct of civil cases, will also be amended to reduce pendency of civil cases in the country.

The database available on the website of National Judicial Data Grid (NJDG) presents a rather gloomy picture, with about more than 1 crore civil cases pending across the district courts in the country. Lack of infrastructure and a poor judge-to-case ratio apart, the present scheme of the CPC itself invites a long-drawn procedure and trial before a litigant gets a final decision from the civil court. The final decision is then appealed in the higher courts by the losing party, and yet another lengthy ordeal begins – by which time a litigant has already lost faith in the judicial system.

Where the problem lies

A regular civil case – whether for recovery of money, declaration of some right over property, eviction of a tenant or even enforcement of an injunction/defamation action - may involve various stages. Firstly, the pleadings or the parties’ respective plaint and written statements on disputes are called for by the civil court. Secondly, the points of determination or the ‘issues’ that arise for adjudication of the civil court upon a perusal of the pleadings of the parties are framed. Thirdly, the stage of ‘evidence’ begins, where the respective parties are called upon to lead witnesses to prove their case. Fourthly, the case is finally argued on the basis of the evidence led and the pleadings filed. Finally, the civil court prepares a final decree/judgment in the case.

The first problem that needs redressal is of simple timelines. Most of the stages of a civil case as described above do not prescribe a definite timeline by which such stage needs to conclude. Even in cases where there is a timeline (say for example filing of a written statement in a non-commercial civil case, i.e. 30 days in the first instance), the CPC does not set out any consequences for non-compliance with such timelines. As a consequence, in most non-commercial civil cases, the litigant who has defaulted on the above timelines usually suffers a paltry sum as costs, without any other adverse consequences. The comfort of not being burdened with adverse consequences is a safe haven for a defaulting party, and adds to the delay in adjudication.

For instance, the CPC provides for a timeline of 15 days (from the date of framing of issues/points of determination) in terms of Order 16, Rule 1 to a party to file its list of witnesses it wishes to produce in support of its case. However, since the CPC does not provide for consequences for not complying with this timeline, courts are usually not inclined to pass adverse orders if a party does not comply.

The Supreme Court has repeatedly held, including in Delhi Airtech Services Pvt Ltd v. State of Uttar Pradesh and Anr, that a legislation needs to prescribe consequences of non-compliance for it to be read as a mandatory provision. It is also in order to meet this judicial test that the CPC needs amendments to (i) firstly provide for stringent timelines at every stage; (ii) consequently, provide for consequences of non-compliance with these timelines, in order to ensure conclusion of a case within a reasonable time.

Adopting the best practices

The Commercial Courts Act, 2015 (CCA) was introduced with stricter timelines in order to address this issue. The CCA also includes, at various places, consequences for such non-compliance, which is resulting in relatively quicker resolution of ‘commercial’ disputes. There are also extant provisions in the CCA 2015 enabling the court to pass a ‘summary judgment’ if the opposite party is found to have a moonshine defence which is unlikely to succeed.

However, this Act and the amendments carried out to the CPC are only applicable to a ‘commercial’ dispute as defined under Section 2 of the Act, and may not apply strictly to property/non-commercial eviction/non-commercial money recovery cases. The CPC, 1908 needs to incorporate the stricter and mandatory timelines for each of the above stages, much in line with the provisions of the CCA.

The Supreme Court in Ambalal Sarabhai Enterprises Ltd v KS Infraspace LLP has noted that the CCA has been enacted for early resolution of commercial disputes and to create a positive image to the investor world about the independent and responsive Indian legal system. However, there is no good reason why the statutory scheme should favour quicker resolution of only ‘commercial’ disputes, while litigants in non-commercial disputes continue to suffer without similar amendments being made for such disputes under the CPC.

Indian courts are clogged with litigation surrounding property disputes, disputes relating to wills and succession, family disputes, non-commercial eviction matters (all of which are ‘non-commercial’ disputes). This essentially results in properties being stuck in litigation for years together without the actual owners getting to enjoy the benefits of the same, or being able to sell them in the market freely. 

Another aspect that needs redressal is the issue of interim occupation or possession of disputed property. Since disputed properties continue to be litigated over the course of decades, there is no comprehensive law dealing with guidelines on which party gets to enjoy the property in the interregnum of the civil dispute. In the absence of a comprehensive statute, one has to rely upon judicial precedents to justify a case of interim occupation of property in every case.

Consolidation of allied civil laws

Unlike criminal laws, the institution of civil proceedings involves an interplay with other minor civil laws like the (i) Suit Valuation Act, 1887; (ii) The Court Fees Act, 1870; and (iii) The Specific Relief Act, 1963. These Acts primarily deal with which kind of civil relief (declaration, injunction, recovery of possession, etc) may or may not be granted in specific fact situations, and what would be the court fees payable on such reliefs. However, the primary purpose of the Suit Valuation Act, 1887 and the Court Fees Act, 1870 is primarily to ascertain the forum/court where the civil action would lie and the amount of court fees payable.

Since a civil action can be rejected summarily under Order 7 Rule 11 of CPC if court fees are not paid properly, parties usually prefer technical objections of valuation and court fees by way of interlocutory applications. These interlocutory applications then further add to the delay in adjudication since these have to be decided before the civil action can proceed for trial. In all fairness, highly technical laws like the Suit Valuation Act, 1887 and the Court Fees Act, 1870, promulgated before the 1900s, and only in order to determine the amount of court fees payable on a civil action, need to be completely revamped and simplified.

The government is laying much stress and emphasis on repeatedly amending the Insolvency and Bankruptcy Code, 2016 and the Arbitration and Conciliation Act, 1996 to bring them in line with the international best practices. The CPC, despite being the bedrock statute for all procedural civil law in the country, continues to be neglected and is being afforded a step-brotherly treatment.

The legislature should immediately bring out about amendments to the CPC in order to meet the contemporary challenges, and to simplify the adjudication of civil disputes to restore the faith of the common man in the judiciary.

Vipul Kumar is an Advocate on Record (AOR) at the Supreme Court of India and has been a visiting faculty at NLU Delhi and NUJS Kolkata.