KARNATAKA BANK LIMITED Vs. MANJUNATHA FLOUR MILLS

JUDGEMENT

(1.) an unfortunate situation has arisen pursuant to an Order passed in this regular first appeal when the court had occasion to deal with la. I for condonation of delay. Those facts will be recounted slightly later because they are relevant. This court passed an Order dated 28-7-1995 directing the registrar to discontinue the practice of returning papers to the advocates after the same had been checked and various office objections noted, as a result of which the removal of objections would have to be attended to within the court premises without the lawyer being permitted to physically take back the records and retain them for an indefinite period of time. The raison detre for this decision was because experience has shown that the number of cases in which papers are properly presented along with all necessary annexures and the court fees, shockingly enough are less than 4%, and that therefore, in almost all cases barring this microscopic number, there is abnormal and heavy delay as a result of his default. What had been happening was that once the papers were returned to the learned advocates that for a variety of reasons, they did not come back sometimes for months and in a large number of cases for years and in a few cases even for more than one decade. In the first instance, once a proceeding is filed in the High Court regardless of the type of number that is assigned to it, it becomes a pending proceeding and it is ultimately the overall responsibility of the court to ensure that the matter be disposed of with the minimum of delay and the overall time frame between the date of filing up to the date of disposal is the responsibility of the court. For whatever reason, even if the records have been taken back and are lying with the learned advocates, the cases add up to the number of arrears that are pending. In a few instances the papers have never come back as the same were supposed to have been misplaced and the litigant has had to go through the trauma of being asked to reapproach the trial court and obtain fresh copies of the proceedings which is a laborious and expensive exercise. The damage caused to the litigant is not only grave and far-reaching but in many of the cases irreparable. As a result of this, there has been a flood of complaints from the litigants; that their cases are being abnormally delayed and that they do not come up before the court in the first instance even for admission or orders for months and years. It is their complaint that they were wrongly informed that the court is not taking up the matters due to pressure of work. The more serious head of complaints relates to a large number of civil proceedings in which there is a direct charge that substantial amounts of money under the head of court fees are collected, that the papers are presented with a token court fee and that after abnormally long periods of time the deficit amount is paid up. The last head of complaints, which is invariably from the respondents, records the position that they are rendered helpless for a long period of time because it is the opposite party namely the appellant's litigation and that the method used for choosing a forum is to retain the papers until such time as the appellant desires to present them. Once the papers have been lodged with the office, the limitation aspect is saved despite which it is possible to delay the matter through such methods.

(2.) the complaints from litigants is one aspect which the courts and the learned advocates have to take serious note of but what was equally of consequence was the fact that when the papers are taken back and the objections are removed, within the prescribed time, an application for condonation of delay in refiling results. In all these occasions affidavits are filed by the learned advocates themselves which undoubtedly is a matter of avoidable embarassment. The tenor of these affidavits is extremely casual and the two standard stereo type reasons that are set out are that the papers were mixed up in the lawyer's office or that it was a default on the part of the lawyer's clerk. The law of limitation very clearly stipulates that when the time limit is breached, the party forfeits the right to proceed in that litigation and that even while condoning delay a court ought not to lightly show indulgence to the defaulting party because corresponding rights have accrued to the opposite party. I have had occasion to point out and to record, that however much a court might want to be indulgent to the defaulting party, that a court cannot lose sight of the corresponding injustice that would result to the adversary in the litigation. If these principles were to be strictly applied, almost everyone of these applications would have to be dismissed and the inevitable result would be that the litigant would suffer irretrievably and the immediate fall out would be the action that would follow against the learned Advocate who was responsible for what happened. I have had occasion to deal in some detail with various aspects of this issue while passing orders in an application for refiling vide regular first appeal No. 729 of 1995 and for ready reference I propose to annex a copy of that judgment to this one. In short, what has been pointed out is that approximately 10% of the judicial time of the High Court was consumed in hearing these applications for condonation of delay in refiling in the year 1994 and over 6000 such applications had come up and that the figure in the year 1995 is even higher. When the courts are working under time pressures, it is just not possible to permit this situation to continue and it is in this background that it became necessary for this court to issue appropriate directions as a corrective measure. Effectively, it was considered proper that if the office objections are attended to without the papers being taken away, that the office would have some control over the time factor and would be able to monitor the matter so that the applications for condonation of delay in refiling would be completely eliminated. It would also avoid the embarassment to the learned advocates but more importantly save them from the vulnerability of action that would follow. I have also had occasion to point out to the bar in that Order, that the Supreme Court has had to bring the medical profession within the ambit of the consumer protection ACT and that the situation arose only because of a flood of serious complaints having come to the courts in respeet of acts relating to that, profession and that the legal profession should not invite a similar situation by allowing the state of affairs to continue.

(3.) for ready reference, the earlier Order dated 28-7-1995 passed by this court is reproduced below: "this is an application for condonation of delay in refiling. The learned Advocate has pointed out that by virtue of the papers having got mixed up with the ether briefs in the office, that some amount of delay took place in attending to the same. The court cannot hold such a situation against either the litigant or his learned Advocate and therefore, the delay will have to be condoned. This difficulty has been arising repeatedly and it is entirely due to one faulty procedure followed by the office of the High Court insofar as when objections are noted, the papers are returned to the learned Advocate with instructions to remove the objections in question and refile the papers within the prescribed time. Inevitably, having regard to the pressures on a lawyer and the other attendant difficulties which are prevalent in the system, the chances of this brief getting mixed up with other current ones cannot be ruled out and in the process if the time limit gets overstepped, invariable, the professional has to face punishment explaining his delay, filing his affidavit etc. This situation is avoidable by merely taking proper corrective action. The registrar shall notify prominently, so that all the members of the bar have adequate notice, that the system of returning filed papers to the advocates or their clerks for removal of objections in regular first appeals and writ petitions will be discontinued from a prescribed date i.e., 1-9-1995. The cases shall be notified on the board and the learned advocates shall be required to remove the objections within a prescribed date. If this is not done, the normal steps as are taken in cases when the objections are not removed within the prescribed date shall not be followed. The practice of returning the papers should be discontinued hereinafter. The office will take note of this fact immediately. As far as the present la. Is concerned, the same is allowed. Office to number the matter and proceed". Pursuant to that Order being passed, the registrar placed the matter before the full court for appropriate action because the matter concerned Rule 14 of the High Court rules. Rule 14 reads as follows: