EFFECTIVE ADMINISTRATION OF CIVIL JUSTICE: BANGLADESH PERSPECTIVE
লিখেছেন লিখেছেন আ্য়ূব ২৩ নভেম্বর, ২০১৩, ০১:৫২:৪২ দুপুর
CONTENTS
Chapter – One
Introduction 1
Research Methodology 3
OBJECTIVES 3
Chapter - Two
(I) Administration of Civil Justice 4
(II) Trial Systems in Bangladesh 8
(III) Civil Courts in Bangladesh 8
(IV) Stages of Civil Suits 9
Chapter – Three
Drawbacks in our existing civil justice administration: Delay 16
(I) Reasons within the Code of Civil Procedure 17
(II) Reasons outside the Code of Civil Procedure 23
Chapter – Four
Effective Administration of Civil Justice: Some Recommendations 29
• ADR: A way of speedy Justice 31
• Awarding actual & compensatory cost in civil suits: A way of
preventing Backlog of cases. 36
• Legal Education 44
• Others Recommendations 45
CHAPTER – FIVE
Conclusion 48
Bibliography 50
Chapter – One
INTRODUCTION
Judiciary is the mirror of a nation and proper & effective administration of the judiciary is the precondition to ensure substantial justice. The system of civil administration of justice as obtained in our country today was planned and planned by the British government. It was modeled on the British pattern. The model, although working today with success in great Britain and many other countries, has been facing in our countries severe criticism from many quarters. It is said to be a foreign sapling not suitable to the socio-economic climate of this country. For securing administration of civil justice, speedy trial is a must. Delay defeats and civil justice. There is a well known dictum that “justice delayed justice denied”. But, in our country delay has become such an acute problem that the law courts of our Country are only providing ‘technical justice’ and not ‘substantial justice. The administration of civil justice in Bangladesh has been a subject matter of severe criticism for several years past. The harsh critics criticise that the procedure is cumbersome and dilatory and the courts and the lawyers are unruffled to the human sufferings resulting from inordinate delay and gross miscarriage of justice depending on the tutored versions of the procured witnesses. Availability of efficient and dutiful lawyers, judges and staff of the courts in the country may ensure delivery of proper relief to the aggrieved persons speedily through the present system of administration of justice. For proper delivery of justice speedily as efficiency of the lawyers, judges and staff of the court is required so also their honesty and dutifulness are indispensable. It is also to be seen whether any reform in the system of administration of justice is necessary as a result of the socio-economic and political change in the country. For delivering proper relief speedily to the complaints and grievances of the aggrieved persons as it is necessary to solve the problems of lawyers, judges and staff of the court so also it is necessary to remove the problems in the management of the civil litigations. Unless such problems are solved and difficulties removed confidence of the people in the courts will not be restored and their respect for law will not be increased. However, in this research monograph I have mentioned essential elements of the effective administration of civil justice and have identified obstacles of civil judiciary. Again more, I have proposed some measures for the efficient judiciary and cordially believe that if it becomes possible to introduce the measures recommended then it will ensure effective administration of civil justice.
RESEARCH METHODOLOGY
This research methodology is not a basic one rather than a library-based monograph. The study is product of articulation of articles contained in the newspapers and journals, legal documents including case files and Code of Civil Procedure 1908 (Act v of 1908) as amended off late. The method followed in preparing the Monograph includes:
Material papers collections with the help of concerned teacher
Comprehensive instructions and guidelines by Mr. Mohiuddin Khaled .
Preparing the Monograph.
Revision of the Monograph.
Typing, printing and binding of the papers, as the rule of examination requires.
OBJECTIVES
In this research monograph I have mentioned essential elements of the effective administration of civil justice and have identified obstacles of civil judiciary. I have proposed some measures for the efficient judiciary and cordially believe that if it becomes possible to introduce the measures recommended then it will ensure effective administration of civil justice. However, the specific objectives of the study may be as follows:
To find out the necessary elements for the effective administration of civil justice and to justify to what extent these elements have been ensured in Bangladesh legal system.
To find out the problems of civil judiciary in respect of speedy trial and recommendations are made to expedite disposal of civil suits in Bangladesh without impairing justice.
Chapter - Two
(I) ADMINISTRATION OF CIVIL JUSTICE
It is an established fact that law is an instrument for establishing justice in the society. Generally, the term justice is understood in two different senses. In the wider sense, justice is synonymous with morality. But in the narrower sense, it refers to one aspect of morality. Justice in this sense refers to the fair and equal treatment of all.
Justice in the sense of equality has tow aspects: (a) Distributive justice & (b) Corrective justice. Distributive justice works to ensure a fair division of social benefits. The task of establishing distributive justice is achieved primarily through constitution-making and by legislation. The functions of the court are mainly to apply these rules for the purpose of establishing corrective justice.
Thus administration of justice is one of the essential functions of a state. It means the maintenance of right within a political community by means of the physical force of the state.
Men being by nature selfish, some sort of external coercive authority is needed to keep him within limits and restrain his unfettered liberty. Unlimited and unrestrained liberty would lead to a state of anarchy and chaos. Thus, the necessity of the force of the state for the administration of justice has been emphasized. In other words, a common power is necessary to keep the people within the control in the community. Therefore state-force is inevitable for protection of right of the individuals in society.
Broadly speaking, justice may be of two kinds, namely, civil and criminal justice. Civil justice are the violations of civil or legal rights of individuals called civil injuries while criminal justice are the violation of public rights and duties which affect community as a whole. Thus, a crime is a wrong against the community as a whole and is punishable by the state, the civil wrong on the other hand, is an infringement of the legal right of the individual which does not affect the society in general and is redressable by monetary compensation. Civil proceedings result in a judgment for damages, or a judgment for payment of a debt or a penalty or in an injunction or a decree of specific restitution or any other forms of relief known distinctively as civil.
Minimum requirements for the efficient administration of civil justice:
The object of administration of justice is to establish rule of law and the purpose of administration of civil justice is to redress the wrong done to a particular person. State is vested with the prime responsibility of protecting, preserving and maintaining the rights of its citizens through its machineries.
Justice consists in the ordering of human relations in accordance with broad principles applied uniformly and impartially to one and all. Justice is of wide connotation to include social justice, political justice, economic justice, legal justice etc. But administration of justice primarily deals with the legal justice that is justice according to law:
Legal system of different countries may be distinct in way and procedure but the goal is one that is to ensure justice. Every country has its own legal system based on its own principles, doctrines and objects. But there are certain requirements, the existence of which, are considered as a must for an effective and meaningful administration of justice. Two every legal system having an objective of dispensing justice to its subject must have the following requirements.
1. Speedy trial
2. Cheapness
1. Speedy trial:
Justice hurried is justice buried’. Speedy trial does not mean to conclude a trial in a hurried way but to conclude it within a reasonable time. The test of reasonableness may vary from case to case but it is expected that the trial will be concluded without any undue delay. Delay frustrates very notion of adjudication as every delay has the tendency to give rise to more and more complicated situations in the process of litigation. The essence of speedy trail for an effective administration of justice may be summed up as follows:
(a) To minimize cost. Cost does not include only the Court-fees but also the incidental expenditures related with the litigation.
(b) To protect loss of time and energy,
(c) To protect the faith of the people over the judiciary,
(d) To avoid difficulties and to protect settlement outside the Court.
2. Cheapness:
The second requirement for an effective administration of justice is the expenditures incurred by a litigant in conducting a case must not be too high that is the cost of litigation should be cheap. Here the term ‘cost’ does not include only the Court-fees but also all other incidental costs involved with process of litigation. It is the constitutional right of every citizen to have access to justice and as such high cost of litigation should in no way act as a bar for denying such right of each and every individual.
3. Effectiveness:
Effectiveness means the effective control of the mechanisms of a judicial system. It means the effective control over the progress of proceeding, effective laws for meeting the remedies of the judgment and decree. If the legal system is not effective, things will go out of the grip of the judicial machinery and the judgment and decree passed by the Courts will practically have no impact on society. Hence, justice will be at the lowest pretence and the purpose of the judiciary will be totally disrupted.
Effectiveness of legal system depends upon the fulfilment of certain conditions which are as follows:
(a) Good organization of time;
(b) Absence of technicalities on minimization of the formalities of the procedural laws;
(c) Clear definition of issues and question of law;
(d) Control over the progress of proceedings;
(e) Pair conduct of trial;
(f) Variety and effectiveness of remedies and penalties;
(g) Speediest disposal of appeal, review and revision by the higher Courts.
(h) Effective and speedy execution of decrees.
(II) TRIAL SYSTEMS IN BANGLADESH
There are two trial systems all over the worlds.
1. Adversary system of trial
2. Inquisitory system of trial
In Bangladesh Adversary system of trial is enforced the adversary of trial in our country is in vogue. In this system the accused person know the charges taken against him and preserves the right of self defense. Both the complaint and the litigant have to face interrogations in this system. This system has some inherent weakness because of having a very normal role to play of judges. So it leads to delays and high costs in disposal of cases.
(III) CIVIL COURTS IN BANGLADESH
Our judiciary is divided into higher judiciary and subordinate judiciary. Article – 94 of the constitution of Bangladesh provides that there shall be a Supreme Court for Bangladesh comprising Appellate Division and High Court. Division. Article-114 of the constitution also provides that there shall be in addition to the Supreme Court, such courts subordinate there to as many be in establish by law. Section-3 of the Code of Civil Procedure, 1908 provides that the district court is subordinate to the High court and every civil court and every court of Small Causes Court is subordinate to the High Court and District Court. Following courts are enforced in Bangladesh:
1. The Court of the District Judge,
2. The Court of the Additional District Judge,
3. The Court of Joint District Judge,
4. The Court of Senior Assistant Judge,
5. The Court of Assistant Judge,
(IV) STAGES OF CIVIL SUITS
The fundamental principle of English law that wherever there is a right, there is a remedy (ubi jus ibi rmedium) has been adopted in our legal system also. In fact right and remedy are but the two sides of the same coin and they cannot be dissociated from each other. Accordingly a litigant with grievance of a civil nature has a right to institute civil suit in a Civil Court of competent jurisdiction unless its cognizance is either expressly or impliedly barred by any statue. With the law of tort still to see the light in our domestic legal system, any remedy for the civil infringement is to be effected by civil suit which till disposal by the trying Court, is to go through a marathon process of several stages resulting in virtually technical justice rather then substantive justice. Stages of civil suit involve the following procedural courses.
(a) Cause of action:
The first and foremost essential of a civil suit is the cause of action. Cause of action means cause of suit. A person, who is aggrieved by the cause of action, may bring a claim against a person in a proper and legal form in the Court. A suit can be instituted, subject to other limitations, either in the court where the cause of action arose or whose territorial jurisdiction the defendant resides. Every suit, as far as practicable, be framed so as to afford ground for final decision upon the subject or subjects and to prevent further litigation concerning it.
(b) Interviewing and Counseling:
Interviewing and counseling is an integral part of the civil suit. In dispute resolution through court, lawyer has to learn about client’s legal problems and acquaint with the facts for supporting or opposing possible legal claims. Initial client interviewing gives lawyer general impression of legal wrongs suffered by the client and facilitates lawyer to identify potential claims for relief based on the lawyer’s knowledge and understanding of the law. The dispute between parties comprise of multiple facts and variety of evidences Through interviewing, lawyer gathers and assimilates relevant facts and develops a cohesive theory and theme of the case. Effective counseling helps a lawyer to clarify, interpret and prove in fabour of the client before the court. Interviewing of client follows legal counseling by, which lawyer communicates advices to a client. This can be done directly through specific suggestions for action or indirectly through the presentation of a legal opinion. The lawyer communicates to the client the possible claims and defenses available, as well as the strategic suggestions.
(c) Pleadings:
The term ‘pleading’ includes plaint as well as written statement. Every pleading must state material facts in concise form and not the law. It need not state the evidence on which the party relies in support of his claim or defence. Every pleading shall be signed by the party or his agent duly authorized when the party is absent or unable to sign for any other cause and by his pleaders. Pleading shall be verified on oath or solemn affirmation.
(d) Submission of plaint:
A plaint shall contain the following particulars:
(i) Name of the Court
(ii) Name, description and residence of the plaintiff.
(iii) Name, description and residence of the defendant, so far as they can be ascertained.
(iv) The facts constituting the cause of action and the date when it arose and the facts showing the court has jurisdiction.
(v) The relief claimed.
(vi) A statement to show the value of the suit.
The plaintiff shall endorse on the plaint, or annex thereto, a list of the documents (if any), which he has produced with it.
(e) Issue of the process against the Defendant:
If the defendant does not appear at the presentation of the plaint, summons may be issued upon him for the appearance. The defendant may appear either in person or by a pleader duly instructed to answer all material questions relating to the suit. Summons may be issued either for the final disposal of the suit or for settlement of issues.
(f) Written statement:
The defendant has to present a written statement of his defense at or before the first hearing or within such time as the court may permit. Defendant may inspect the documents relied on by the plaintiff and when he is in full possession of all facts and is acquainted with the nature of the paint and documents, he is to ascertain the legal implications such as, the question of limitation, the question of res judicata, the question of the suit being barred under any other law, etc.
However, the period allowed for filing the written statement shall not ordinarily exceed 90 (ninety) days. In preparing the written statement the following rules are to be observed.
(i) all matters showing that the suit is not maintainable or the transaction is void or voidable or such other grounds of defense as fraud, limitation, release on payment, performance of acts showing illegality are specifically stated.
(ii) The denials must be specific. Each fact alleged in the plaint is to be taken up separately and shall be either admitted or denied specifically. The denial should not evasive.
(g) Discovery and Production of Documents:
The court may order production of documents by any party, during the pendency of the suit. The documents called upon by one party and produced by another may be inspected by Calling for them. Generally documents which form the basis of the claim in a suit are produced along with, when it is presented unless the court fixes a date for production of documents; the parties should produce them on the date fixed, unless, for good cause shown, the Court extends time. The object of the rule is to prevent fraud and production of suspicious documents at a later stage, and to take the adverse party by surprise.
(h) Framing of Issues:
Issues are framed after reading the plaint, written statement and inspection of documents. Issues arise when any material proposition of fact or law are affirmed by one party and denied by another. Accordingly issues are either issues of fact or of law or of mixed questions of fact and law.
(i) Opening Statement:
An opening statement with an overview of the case told in the form of a story with references to the evidence and the witnesses at the trial. Indeed, the opening statement is lawyer’s first opportunity to tell the judge what the case on trial is all about. In the opening statement, lawyer should develop a theory of the case e.g., a persuasive story of “what really happened”, It is, therefore, a critical part of the trial and must be carefully planned and effectively delivered. The opening statement should describe the parties in the case, the issues and the witnesses. It must be logical: fit the legal requirements of the claims or the defense; be simple to understand and be consistent with common sense. The opening statement should describe the parties in the case, the issues and the witnesses. It mist be logical; fit the legal requirements of the claims or the defense; be simple to understand and be consistent with common sense. The opening statement should not refer to evidence that is not admissible.
By opening statement, the court shall ascertain from each party or his pleader whether he admits or denies such allegations of the fact as are made in the plaint or written statement, if any, as are not expressly or by necessary implication admitted or denied by the party against whom they are made. The court shall record such admission or denial.
(j) Examination of witnesses:
Witnesses are summoned by parties either to give evidence or to produce documents or for both. At the hearing the witnesses are to be examined ordinarily in the open court unless some of them are examined on commission either by interrogatory or viva voce. The object of such examination is only to ascertain the matters in disputes between parties.
In Examination-In-Chief, lawyer may bring out the qualifications and background of witnesses precisely that makes their testimony relevant and credible. The question in examination-in-chief should be open ended but should not allow the witness to speak at length. The questions should be framed with sufficient details so that the witness must give direct answers. The questions should be in logical order to make the witness’s story coherent and persuasive and should be short, clear and simple so that both the witness and judge will understand easily. The order of the questions should lead the judge to conclusions that favour the client.
In cross-examination, questions may be leading but they should not be open ended. Question may be asked to introduce testimony in favour of client as well as evidence that is negative for the other side.
(k) Arguments:
In the closing arguments, each advocate argues by all the evidence in pleadings, corroboration and contradiction found in the examination of witnesses. Closing argument should also state facts, relevant laws and precedents. But closing argument involves more than a simple recitation of the testimony or facts. It involves analysis of facts, testimony and law that leads to a persuasive whole. Lawyer selectively picks and emphasizes those parts, and inference from the evidences that, when presented as an integrated whole, create an impression that convinces the judge that their side should win.
Closing argument is the lawyer’s last opportunity to communicate directly with the judge. For that reason, it is imperative that lawyer should present themes, position on contested issues, and the reasons logically in closing argument to get a favorable verdict. The most important question at this stage is as to the right to begin. In deciding whether the plaintiff or the defendant would begin, it is essential to know on whom the burden of proof lays in respect of different issues. Usually defendant submits arguments first.
(i) Judgment and decree:
After hearing of the case the Court shall pronounce judgment in open court either at once or on future date. The judgment is to de dated and signed at the time when it is pronounced. The judgment shall contain a concise statement of facts, grounds for decision and the decision itself with reasons, where issues have been framed in a suit, the names of parties and other particulars and the claim and the relief granted, if any. The decree shall bear the date and shall be signed by the judge himself or his successor. The date of the decree is important for the purpose of determining the period of limitation for the purpose of appeals or other relief.
Chapter – Three
DRAWBACKS IN OUR EXISTING CIVIL JUSTICE ADMINISTRATION: DELAY
The Code of Civil Procedure is an exhaustive and carefully devised enactment, the provisions of which if properly and rigidly followed are designed to expedite rather than delay the disposal of cases. Delay results not from the procedure laid down by it but by reasons of the non-observance of many of its important provisions, particularly those intended to expedite the disposal of proceedings.
Problem of Delay:
The problem of delay is not a new problem. It is as the law court. Nor is the problem peculiar to our Country. Lord Delvin in has speech before the Thirteenth Legal Convention of the Law Council of Australia admitted that even in England Cases are taking longer to be decided. In India, Committees after committees have been appointed to tackle this problem.
Of late, it (Judicial delay) has assumed gigantic proportions. This has subjected our judicial system as it must to severe strain. It has also shaken in some measures the confidence of the people in the capacity of the courts to redress their grievances and to grant adequate and timely relief.
For securing administration of civil justice, speedy trial is a must. Delay defeats equity and civil justice. There is a well-known dictum that justice delayed justice denied. And so backlog and delay are the most significant problems in the administration of civil justice in countries throughout the world, including Chile, China, the Czech Republic, Italy, Egypt; Hungary, the United Kingdom, and the United states. The problem of delay is as old as the law courts. It is not new and peculiar to our country. In fact, delay has become such and acute problem that the law courts of our country are only providing ‘technical justice’ and not ‘substantial justice’. The administration of civil justice in Bangladesh has been a subject matter of severe criticism for several years past. The harsh critics criticize that the procedure is cumbersome and dilatory and the courts and the lawyers are unruffled to the human suffering resulting from inordinate delay ad gross miscarriage of justice depending on the tutored versions of the procured witnesses.
The reasons behind the delay in our civil justice system may be divided into two heads, such as--------------------
(i) Reasons within the Code of Civil Procedure;
(ii) Reasons outside the Code of Civil Procedure;
REASONS WITHIN THE CODE OF CIVIL PROCEDURE:
(1) Filing of plaint (Section 26 and order VII): The preliminary step in the process of adjudication of civil rights is institution of the suit by filing a plaint. Delay in civil suits of our country starts from the very date of the presentation of plaint. A plaint is not examined by the judge on the date of registration to see whether a prima faice case has been made out or not. Automatic issuance of summons is a point from which delay ensues. There may also occur some delay between the filing of the plaint and its placing before the Court for a direction to register. The filing of a plaint with deficit court fees, intentional undervaluation of the relief claimed in the plaint and non-submission of documents to be accompanied with the plaint are some other factors for delay.
(2) Issues of summons (Order V): Delay in effecting the service of summons due to the internal complicated procedure of the process of issuance in the civil courts of our country is another cause of delay.
(3) Return & rejection of plaint (Order VII Rule 10 & Order VII Rule 11): Neither the plaint is returned nor rejected by the Court while scrutinizing and examining the plaint for registration. The Court waits till the matter is agitated before it by the opposite party. The result is the piling up of cases which are ultimately found not to be entertainable by the Court. It is to be noted that, petition for rejection of plaint as a test case is regularly filed on the ill advice on illusory grounds to linger the course of litigation. Moreover, the rejection of petitions under Order VII Rule 11 of the Code of Civil Procedure seeking rejection of plaint is also followed by appeal creating deadlock in the disposal of the original suit. Changed mentality is necessary to prevent such malfunction.
(4) Written Statement (Order VIII): Summons when issued bears a date for the appearance of the others side. As a matter of fact the defendant generally appears on the date fixed in the summons but invariable takes time for filing the Written Statement. It is a rarity to put in the W.S. after one adjournment. Several adjournments are taken and given for filing the W.S. Sometimes W.S. filed is of no merit and merely of denial. This may be avoided if the defendant is examined like the plaintiff after his appearance. On such examination, the suit may be easily disposed either due to the admissions made by the defendant or due to the easy ascertainment of issues between the parties.
(5) Non- appearance of the parties (Order IX): Dismissal for default followed by miscellaneous cases under Order IX Rule 4 and rule 9 of the Code of Civil Procedure for restoration of suits is a regular feature. Intentional non-appearance and absence by filing of petition for adjournment result in the dismissal for default to linger the course of litigation. Such malpractice need to be discouraged because orders passed by the trial courts in such miscellaneous cases give rise to miscellaneous appeals consuming much time in the disposal of the original suit. However, responsible and conscious discharge of professional duties by the lawyers can only fight out such unbecoming practices. Appearance on the date of ex-parte disposal seeking adjournment for filing of W.S. and rejection of such petitions for adjournment is followed by miscellaneous appeal creating deadlock and setting aside of the ex-part order by the appellate courts in terms of liberal construction enabling opportunity to the other side to contest the original suit consume much time to dispose of the original suit.
(6) Framing of issues (Order XIV): Issues are required to be framed on examination of parties when they are at issue. But this is never done. It is the usual practice of the Court to leave the framing of issues to the lawyers of the parties who submit draft issues. It is very common that many days pass off before drafts are given and issue framed.
(7) Non-attendance of witnesses: The witnesses of the parties are often found not present in the Court on the date of hearing. Consequently, the hearing of the case has to be adjourned. In fact, self-respecting persons avoid attending the courts as witnesses because of the atmosphere around the court and treatment meted out to them.
(8) Interlocutory matters (Order 39, Order 26): Interlocutory matters like applications for temporary injunction, local inspection, local investigation and appointment of receiver consume much time o the Courts. Lack of preparation of the lawyers for hearing of the temporary injunction followed by prayer for time spoils much time of the Courts. Orders either rejecting or allowing the temporary injunctions are followed by miscellaneous appeals preventing the disposal of civil suits because a long time is spent for the disposal of miscellaneous appeals in the higher court.
(9) Non-observance of the provisions relating to discovery, filling of interrogatories and inspection (order XI) : Interrogatories and discoveries have been incorporated in the Code to bring down the surprise of trials of the other arties. Interrogatories are not supplied by the parties in time on this or that plea seeking prayer for time. Concerned lawyer must be careful and vigilant in serving interrogatories timely in order to facilitate the speedy disposal of suits.
In the like manner documents are called for from the concerned Registry Office at the prayer of the parties for the proof of the genuineness of such documents, but the said offices fail to supply the volume book on the plea that the books are not traceable. Repeated reminders are not complied with in sending such volum books which kills much time in the disposal of the suits in a quicker pace of period. Necessary directives are essential to be issued on the Registration Department to comply with the requisites of the Court by such officers at once.
(10) Delay in writing and delivering judgment (Section 33, Order XX): Usually judgments are not written out even after the lapse of considerable period of time of the conclusion of arguments of the parties. This delay in delivering judgments is not conducive for expeditious disposal of the case and it may seriously affect the quality of the judgments as the Court is likely to miss pertinent facts and relevant laws from consideration.
(11) Drawing up of Decree (Section33, Order XX): Decrees are not drawn up in most cases unless a number of days have passed from the date of judgment. This delay creates a vicious circle in as much as there is consequent delay in obtaining the certified copies and filing of appeals and revisions.
(12) Delay in the Execution of the Decree: After traveling the most tedious way costing much time and money when the plaintiff gets the long cherished decree finally decided by when the plaintiff gets the long cherished decree finally decided by the court, the question of execution of the decree comes in Order XXI contains as many as 103 rules relating to the execution of decrees. The decree holder of a suit gets almost exhausted to get the decree satisfied. In a decree for partition, the decree holder in most of the cases has to move from post to pillar for getting final decree by metes and bounds on completion of the works to be done by the advocate Commissioner. In the event of the decree satisfied by auction sale of the property of the judgment debtor, there are provisions for setting aside the sale on various grounds. In view of the unusual lengthy and clumsy procedure many decree holders give up the hope of getting the fruits of the decree and in the execution stage many decrees die or are being foiled or frustrated to the utter disappointment of the unfortunate decree holders.
(13) Delay in the appellate Court: The position is no better in the appellate Court. Many factors at this stage are present against the expeditious disposal of cases.
(a) Petition for condoning of delay (Order XX Rule 20): It often happens that there is a delay in filing an appeal or a revisional application against the decision of the trial Court. The party as required under the law files and application for condonation of delay. The usual practice is to issue a show cause notice upon the respondent asking as to why the delay should not be condoned. The disposal of condonation petition itself after due service of notice becomes another proceeding and consequently the original appeal or revision remains pending.
(b) Non-receipt of the record of the lower Court (Order 51): When a revision or an appeal is admitted, the records of the trial are called for. But the records do not reach the higher Court for months and even years due to the negligence of the assistants in charge of the matter.
(14) Adjournments of Hearing Date with Piecemeal Hearings: The court fixes many suits for hearing on a single day; and when more than one suit is ready for hearing the court cannot usually cope with these and have to adjourn all but one for hearing. This manner of fixing date by itself is a cause of delay. Adjournments in peremptory hearing are responsible for about 50% of the delay. Judges and officers of the courts are responsible for about 15-20% of the adjournments while lawyers for both sides are responsible for 70-80% of the adjournments. In the case of Bhagwan Dass V. Kareem Box 1990 (1) C.C.C 395 (Raj) it was said that one of the most important reasons for the delay in the disposal of cases is the widespread practice of Judicial officers to deal with the cases in a piecemeal manner and their readiness to grant adjournment either for their own advantage or for the convenience of the parties or more frequently the lawyers, piecemeal hearing causes delay in preparing judgment as the Judges are unable to keep the evidence adduced alive in their memory and as such for the purpose of making up their mind at the time of writing out the Judgment have to make elaborate study of the whole record which is a sheer wastage of time.
REASONS OUTSIDE THE CODE OF CIVIL PROCEDURE
Procedural weaknesses and leniency are not only causes of delay in civil litigation in Bangladesh. The socio-economic causes along with other causes percolating from different aspects of the national life are lingering litigation process. They are in illustration, being discusses within the present scope.
(1) Shortage of Judicial Officers: In spite of the growing volume of the work, the strength of the judiciary has not been increased proportionately. The Government has generally shown apathy towards opening new court. At present 673 judges are engaged in our Lower Courts and 56 Judges are functioning in the High Court Division. The number is not enough for disposing of cases instituted daily. Moreover vacancies are not filled timely. If, in a country as small as Hungary, there could be 70 Judges in its highest court, then what is wrong in raising the number of Judges in our High Court Division to a hundred or even more. The Billia (Bangladesh Institute of Law and International Affaires) project of 1985 found out that judges attribute 10.15% of the delays being caused by Judges remaining busy.
(2) Non Co-operation of Lawyers: The lawyers role in adversarial system which is in vogue in our country is very significant for early disposal of cases. The trend in our country is that the lawyers prefer payment on daily basis to on lum-sum basis. It means that the fee of an advocate is directly proportional to the number of hearings. An unscrupulous lawyer tries to skretch a case to as many hearings as are possible by seeking adjournments on one pretext or the other. Thus non-co-operation of lawyers result in accumulation of arrears. Some advocates take up a lot of works which are not physically possible for them to attend. It results in seeking adjournment of cases resulting in accumulation of arrears. The BILIA project of 1985 found out that unwillingness of lawyers as being responsible for 40% of the delay in on average. Institutional weaknesses in the legal profession also contribute to protract litigation, resulting in backlog and delay.
(3) Want of Modern Facilities: Bangladeshi courts lack the modern facilities enjoyed by the courts of developed countries. These facilities include Dictaphones, tape recorders and word processors (Computers). More than eighty percent of the judicial officers interviewed opined that they would be able to dispose of cases sooner if they would be provided with the above modern facilities. From the view we can assure that want of modern facilities causes inordinate delay in disposal of civil lawsuits.
(4) Mid Term Transfer of Judges: Mid term transfer of judges often causes delay in the disposal of cases. If a judge has been transferred during the pendency of a suit specially during peremptory hearing, the successor judge has to deal with the case in a piecemeal manner. But piecemeal hearing leads a judge to read out the whole case from the very beginning and this consumes time.
(5) Shortage of Specialized Courts: These days are the days of specialization. But our judiciary lacks in specialized courts. So to dispose a special civil litigation, a general court consumes time and it lingers the disposal of the case. The causes of delay for disposal of cases are obvious and complaint is often heard that a civil dispute never ends. The procedures in the civil court are dilatory and cumbersome and in the changed situation the civil court is found to be inadequate to cope with the demand of speed, rule of flexibility and the need of expertise. Modern social legislation and problems arising there from call for expert knowledge which falls outside the traditional training and experience of the lawyers or of the civil courts. Want of the special tribunals and informal forums presided over by persons with expertise causes delay day to day transactions affecting interest of thousands of people. Special courts e.g. the Family Court has been successful in disposing of cases timely. In fact lack of expert persons prevents the establishment more tribunals what we require immensely.
(6) Weakness of Case Management & Court Management : Without early or accountable judicial interventions such as court administration and case management mechanisms, a suit can not be adjudicated in time. As Bangladesh lacks in case management, it is not possible to mange a litigation in earlier time. Case management may be generally defined as the imposition of early control and discipline by a judicial officer over the preparation of a case for adjudication. The key features of case management, therefore, are as follows: (a) it is conducted by a judicial officer; (b) case management sessions are scheduled shortly after a case has been filed but prior to any factual investigation; (c) prior to case management session, the parties are required to meet and confer to discuss the outstanding issues of disagreement between them and the preparation of the case for trial; (d) a judicial officer actively determines the time by which the parties must submit evidence to support their claims and defenses; (e) case management cover the preparation of a case but not adjudication (i,e, a decision on its merits) and (f) it attempts to identify and, if appropriate, prioritize wholly or partially dispositive issues for adjudication. Judges are the principal officers of the court. First and foremost duty of judges is to adjudicate. Every judge in the lower court gives preference in adjudicating to court management and court management remains dependent on the other staffs of the court such as Sherestandar, Peshkar, Nazir, process sever, etc. For the negligence and dishonesty of the staffs, court management runs very slowly in Bangladesh and it causes a agonizing delay in civil litigation. In Bangladesh, due to various reasons, the existing rules for speedy disposal, strewn over the Code of Civil Procedure, the Civil Rules and Orders and the High Court Division and Supreme Court Rules, have not been followed strictly during the last two decades. For fixing accountability for lapses inspection of the Courts of the Assistant Judges by the District Judge and the supervision of the subordinate judiciary by the High Court Division have not been done regularly. In spite of increase in the number of courts and judges at the lower level and the procedural amendments made for speedy trial the expected results have not yet been achieved. A committee of the judges appointed by the Chief Justice made a number of recommendations in its report dated 30th June 1989. It emphasized that steps be taken for fostering a shared commitment among judges, lawyers and supporting staff for reducing delay in the court system. The committee recommended for training for both the judges and their supporting staff.
(7) Shortages of Staffs, Machines etc: Though it is said that Bangladesh is a developing country, in fact Bangladesh is a least developed country in the world. For her miserable economic condition she can not provide he judiciary with sufficient number of staffs, machines etc and this shortage causes in ordinate delay. The BILIA project of 1985 found out that shortages of staffs, machines etc are responsible for 2% - 20% delay in civil litigation in Bangladesh.
(8) Working Environment of Courts: The environment of the lower courtroom is not up to mind satisfaction of the judges to work with deep attention. Most of the lower courtrooms lack in proper electric supply. Where as many government officers and chambers of managers of bank and other institutions are air-conditioned, courts are not. Both the lawyers and the judges are dressed much more than ordinary officers and sometimes cases are heard in rooms without electric fans. All the clamour far quick and better justice becomes a mockery when lowers and judges sweat profusely in unbearable heat.
A few of the interviewees feels that improvement of working environment will help lightly to mitigate the procrastination problem in civil litigation in Bangladesh. It is impossible to motivate the judges and the lawyers to dispose of cases within scheduled time without providing them with better and congenial working place.
The causes discussed above are not the causes, which linger civil litigation. There are other causes that can protract civil suits. For example we can state that want of classification of cases, want of ADR or CDR, centralization of judiciary, weak communication system, in convenience due to same court hearing civil and criminal cases, unwillingness of Government to get the cases decided and appeals by the state without application of mind etc. are causing delay in the disposal civil litigation.
Chapter – Four
EFFECTIVE ADMINISTRATION OF CIVIL JUSTICE: SOME RECOMMENDATIONS
For the effective administration of civil justice some recommendations are made in bellows and we believe that if it becomes possible to ensure the recommendations then it will ensure the same. To ensure speedy trial in the adversarial trial system that is running in Bangladesh, we should take up some measures which will enrich our trial system and minimize delay in the disposal of civil cases successfully. Firstly we should establish an effective administration. Court administration consists of the internal management of the courts including classification systems, monitoring, co-ordination and case-flow tracking mechanism. Classification systems will help the courts to consolidate adjudication of claims involving flow tracking will ensure that both pre-existing and new case management and consensual dispute resolution processes proceed according the established timetables. An effective court administration will reduce the bad tactics of lingering civil law suits in courts. Secondary, to minimize delay in civil litigation we should encourage alternative dispute resolution for resolving the disputes. The U.S.A has achieved a great success by resolving disputes through consensual dispute resolution. Various forms of alternative dispute resolutions such as mediation, conciliation, arbitration, judicial settlement and early neutral evaluation can revolutionize our entire civil justice delivery system. The essence of the concept is that after the filing of the plaint and submission of the written statement, attempts would be made to resolve the dispute through ADR by early judicial intervention. In short, it is mandatory recourse to ADR or CDR by the trial judge’s order in the pretrial stage of a case. It may be mentioned that in some of the states of the U.S.A. (for example California) 90% of the cases are resolved at the pre-trial stage through ADR by early judicial intervention and only remaining 10% go to trial. If we can introduce ADR effectively in our judicial system, it will help greatly to minimize delay in the disposal of cases.
According to Dr. M. Zahir three factors will help motivation in judges to keep to the time schedule. Firstly their living and working condition must be better because great over crowding, the working conditions are absolutely appalling. The judges should work in a comfortable surrounding e.g. air conditioned or cool rooms and have access to computers/word processors/Dictaphones and tape recorders for quick tracking and disposal of cases. Computer should be used monitoring the caseloads, the age of pending cases of the subordinate judiciary and for updating the Annual Reports on the Civil and Criminal Justice in the country. The total judiciary should be managed under a central judicial-net. Secondly, the judges must be trained properly and have to undergo periodical training in Government sponsored Institutes. Thirdly, there must be a trained case-flow manager attached to a court to monitor the progress of cases and pursue lawyers and advise a judge how to deal with a case quickly. The case-flow managers may be trained by foreign experts if necessary. For effective case management the number of advocate commissioners should be increased. Moreover local investigation, inspection by commissioner must be made at the time of framing of issues but not at the time of trial or after cross examination of witness in order to ensure an effective case management and this will minimize the time for disposal of civil cases.
• ADR: A way of speedy Justice
The essence of the concept is that after the filing of the plaint and submission of the written statement, attempts would be made to resolve the dispute through ADR by early judicial intervention. In short, it is mandatory recourse to ADR or CDR by the trial judge’s order in the pretrial stage of a case. In The Code of Civil Procedure (Amendement) Act, 2003. ADR is introduced providing section 89A and 89B.
89A Mediation- (1) Except in a suit under the Artha Rin Adalat Ain, 1990 (Act No 4 of 1990), after filing of written statement, if all the contesting parties are in attendance in the court in person or by their respective pleaders, the Court may, by adjourning the hearing, mediate in order to settle the dispute or disputes in the suit, or refer the dispute or disputes in the suit to the engaged pleaders of the parties, or to the party or parties, where no pleader or pleaders have been engaged, or to a mediator from the panel as may be prepared by the District Judge under sub-section (10), for undertaking efforts for settlement through mediation.
Provided that, if all the contesting parties in the suit through application or pleading state to the Court that they are willing to try to settle the dispute or disputes in the suit through, mediation, the Court shall so mediate, or make reference under this section.
(2) When the reference under sub-section (1) is made through the pleaders, the pleaders shall, by their mutual agreement in consultation with their respective clients, appoint another pleader, not engaged by the parties in the suit, or a retired judge, or a mediator from the penal as may be prepared by the district Judge under sub-section (10) or and other person whom they may seem to be suitable, to act as a mediator to settlement:
Provided that, nothing in this sub-section shall be deemed prohibit appointment of more than one person to act as mediator:
Provided further that, a person holding an office of profit in the service of the Republic shall not be eligible for appointment as mediator.
(3) While referring a dispute or disputes in the suit for mediation under sub-section (1), the Court shall not dictate or determine the fees of the pleaders and the mediator, and procedure to be followed by the mediator and the parties; and it shall be for the pleaders, their respective clients and the mediator to mutually agree on and determine the fees and the procedure to be followed for the purpose of settlement through mediation; and when the Court shall mediate, it shall determine the procedure to be followed, and shall not charge and fee for mediation.
(4) Within ten days from the date of reference under subsection (i), the parties shall inform the Court in writing as to whether they have agreed to try to settle the dispute or disputes in the suit by mediation and whom they have appointed as mediator, failing which the reference under sub-section (i) will stand cancelled and the suit shall be proceeded with for hearing by the Court, and should the parties inform the Court about their agreement to try to settle the dispute or disputes in the suit through mediation and appointment of mediator as aforesaid, the mediation shall be concluded within 60 (sixty) days from the day on which the Court is so informed, unless the court of its own motion or upon a joint prayer of the parties of not exceeding 30 (thirty) days.
(5) the mediator shall, without violating the confidentiality of the parties to the mediation proceeding, submit through the pleaders, to the court a report of result of the mediation proceedings; and if the result is of compromise of the dispute or disputes in the suit, the terms of such compromise shall be reduced into writing in the form of an agreement, bearing signatures or left thumb impressions of the parties as executants, and signatures of the pleaders and the mediator as witnesses; and the court shall, thereupon, pass an order or decree in accordance with relevant provisions of Order XXIII of the Code.
(6) When the Court itself mediates, it shall make a report and pass order in a manner similar to that as stated in sub-section (5).
(7) When the mediation fails to produce any compromise, the court shall, subject to the provision of sub-section (9), proceed with hearing of the suit from the stage at which the suit stood before the decision to mediate or reference for mediation under sub-section (1), and in accordance with provisions of the Code in a manner as if there had been no decision to mediate or reference for mediation as aforesaid.
(8) The proceedings of mediation under this section shall be confidential and any communication made, evidence adduced, admission, statement or comment made and conversation held between the parties, their pleaders, representatives and the mediator, shall be deemed privileged and shall not be referred to and admissible in evidence in any subsequent hearing of the same suit or any other proceeding.
(9) When a mediation initiative led by the court itself fails to resolve the dispute or disputes in the suit, the same court shall not hear the suit, if the Court continues to be presided by the same judge who led the mediation initiative; and in that instance, the suit shall be heard by another court of competent jurisdiction.
(i0) For the purposes of this section, the District Judge shall, in consultation with the President of the District Bar Association, prepare a panel of mediators (to be updated from time to time) consisting of pleaders, retired judges, persons known to be trained in the art of dispute resolution, and such other person or persons, except persons holding office of profit in the service of the republic, as may be deemed appropriate for the purpose, and shall inform all the Civil Courts under his administration jurisdiction about the panel.
Provided that, a mediator under this sub-section, shall not act as a mediator between the parties, if had ever been engaged by either of the parties as a pleader in any suit in any Court.
(11) Notwithstanding anything contained in the court Fees suit are settled on compromise under this section, the Court shall issue a certificate directing refund of the Court fees paid by the parties in respect of the plaint or written statement; and the parties shall be entitled to such refund within 60 (sixty) days of the issuance of the certificate.
(12) No appeal or revision shall lie against any order or decree passed by the Court in pursuance of settlement between the parties under this section.
(13) Nothing in this section shall be deemed to otherwise limit the option of the parties regarding withdrawal, adjustment and compromise of the suit under Order XXIII of the Code.
Explanation- (1) “Mediation” under this section shall mean flexible, informal, non-binding, confidential, non-adversarial and consensual dispute resolution process in which the mediator shall facilitate compromise of disputes in the suit between the parties without directing or dictating the terms of such compromise.
(2) “Compromise” under this section shall include also compromise in part of the disputes in the suit.
89B. Arbitration- (1) If the parties to a suit, at any stage of the proceeding, apply to the Court for withdrawal of the suit on ground that they will refer the dispute or disputes in the suit to arbitration for settlement, the court shall allow the application and permit the suit to be withdrawn; and the dispute or disputes, thereafter, shall be settled in accordance with Salish Ain, 2001 (Act No. 1 of 2001) so far as may be applicable:
Provided that, if, for any reason, the arbitration proceeding referred to above does not take place or an arbitral award is not given, the parties shall be entitled to re-institute the suit permitted to be withdrawn under this sub-section.
(2) An application under sub-section (1) shall be deemed to be an arbitration agreement under section 9 of the “Salish Ain, 2001 (Act No. 1 of 2001).”
• Awarding actual & compensatory cost in civil suits: A way of preventing Backlog of cases.
A cost means the expenditure of the parties from the beginning to the end of a suit. Such as, the court fees, summons cost, warrant costs, lawyer costs etc. The rule is that, the trial court will decide about the cost of the parties after end of the suit. The matter of the cost is a wide term. In this regard, cost means not only the costs of suit but also the consequential costs at the time of being suit. The consequential cost includes the communication charge of the suit, the collection of the documents costs, the costs of presentation of the witness, notice costs, stamp costs etc. But the cost only can decide the judgment in favour of him with mentioning the cost in their pleadings.
In case, Sir Comeshor Sing vs Nobilal, the court decided that courts discretion must be a judicial I discretion be exercised on legal principles not by chance, medley, nor by carrice, nor in temple. The court will observe all the terms of the cost of a suit before the announcement of the cost.
Kinds of Costs:
There are four kinds of costs in the Code of Civil Procedure:
1. General costs-section 35;
2. Miscellaneous costs – Order 20-A
3. Compensatory costs for false or vexatious claims or defenses – section 35-A; and
4. Costs for causing delay – Section 35 – B.
At present there is no provision for awarding actual cost of civil litigation to the winning party and such party is awarded nominal cost against the defeated party. So provision is required to be made to award actual cost of litigation to the winning party to prevent filing of frivolous cases and to avoid unnecessary contest of litigations. However, by the amendment of the Code of Civil Procedure (Third Amendment) Act, 2003 two sections have been introduced as to cost which will help to reduce the civil litigations and will help to ensure effective administration of civil justice
1. General costs: Section – 35 deals with general costs. The object in awarding costs to a litigants is to secure to him the expenses incurred by him in the litigation. It neither enables the successful party to make any profit of it nor punishes the opposite party.
The primary rules in respect of general costs are under:
(a) Costs are in the discretion of the court. The said discretion, however, must be exercised on sound legal principles and by caprice, chance or humour. No hard fast rules can be laid down and the discretion must be exercised considering the facts and circumstances of each case.
(b) Generally, coasts should be follow the event and successful party is entitle to costs unless there are good grounds for depriving him of that right. To put it differently, the loser pays costs to the winner. However, it does not always depend on who wins and who loses in the end. Even a successful party may be deprived of the costs if he is guilty of misconduct or there are other reasons to do so. Sub-section 34, however, expressly provides that when the court orders that cost should not the event, it must record reasons for doing so.
2. Miscellaneous costs: Order – 20A makes specific provision with regard to the power of the court to awards costs in respect of certain expenses incurred in giving notices, typing charges, inspection of records, producing witness and obtaining copies.
3. Compensatory costs: Section 35-A deals with compensatory costs. This section is an exception to the general rule on which section – 35 is based.
In the case Gundry vs Sainsbury (1910) the court said, costs are only an indemnity, and never more than indemnity.
Under this provision, if the court is satisfied that the litigation was inspired by vexation motive and altogether groundless, it can take deterrent action. The following condition must exist before this section can be applied:
1. the claim or defense must be false or vexations;
2. objections mist have been taken by the other party that the claim or defense was false or vexatious to knowledge of the party raising it; and
3. such claim must have been disallowed or withdrawn or abandoned in whole or in part.
Costs for causing delay: Section-35-B deals with costs for causing delay. It inserted to put check upon the delaying tactics of the litigating parties. It empowers the court to impose compensatory costs on the parties who are responsible for causing delay at any stage of the litigation.
Section – 35 of the Code of Civil Procedure provides for general cost, compensatory cost for vexatious claim or defense (section 35 A) and Costs for delay in making applications (Section 35 B). Therefore, if one of the defendants is ordered to pay plaintiff’s cost of the suit and no qualifying words are added, the costs include costs which the plaintiff has incurred by impleading another defendant against whom the suit has been dismissed with costs. Costs incurred by parties include not only above noted costs, but also incidents to costs, i.e., costs of applications in suits. As to cost of applications, the court may make an order directing either party to pay the costs of the other or it may make no order as to costs, or it may reserve costs or make costs, costs in the cause. Where an Official Receive was appointed a suit for partition but he had no power to bring suit of a certain nature without the leave of the Court, it was held that costs incurred for obtaining such leave were incidental to the suit of the nature contemplated. But the Court cannot make an order for costs incurred before the arbitrator as they are not costs of the suit, if there has been an invalid (costs incurred before the arbitrator) reference to arbitration out of Court.
In the litigation, the object in awarding costs to a litigant is to secure party to him the expenses incurred by him. It neither enables the successful party to make any profit out of it nor punishes the opposite party.
Costs penalty:
Beyond the costs suit, costs be imposed as penalty. It is not, according to law, to give to a party by way of damages the costs between pleader and client of the litigation in which the damages are recovered.
The object of awarding cost is to indemnify a party against the expense of successfully vindicating his rights in a Court of law. Section 35 of the Code of Civil Procedure, 1908 does not confer any disciplinary jurisdiction and a legal practitioner cannot be ordered personally to pay the cost of an application, which is an abuse of the process of the court. But compensatory costs can be awarded in cases of false or vexatious claims or defences as enumerated in Section 35 A.
Section 35 A of the Code of Civil Procedure, 1908 as amended by the Code of Civil Procedure (Third Amendment) Act, 2003 provides as follows:
If in any suit or other proceeding, including an execution proceeding, not being an appeal, any party objects to the claim or defence on the ground that the claim or defence, or any part of it, is false or vexatious, and if, thereafter, such claim or defence is disallowed, in whole or in part, the Court shall, after recording its reasons for holding such claim or defence to be false or vexatious, make an order for the payment to the objector, such cost by way of compensation which may, without exceeding the limit of the Court’s pecuniary jurisdiction, extend up to twenty thousand taka.
The amendment Act added a new section 35 B under the heading --- Cost for delay in making applications etc. in respect of interlocutory matters. It is inserted to put cheek upon the delaying tactics of the litigating parties. It empowers the Court to impose compensatory costs on the parties who are responsible for causing delay at any stage of the litigation. Such costs would be irrespective of the ultimate outcome of the litigation. The section runs as follows:
1. At any stage of a suit or proceeding, an application or written objection is not filed within the time fixed by the Court, such application or written objection, as the case may be, shall not be admitted for hearing without payment by the party of such cost to the other party not exceeding two thousand taka.
2. If after filing of written statement, any party to the suit makes an application in respect of any matter which, in the opinion of the Court, could and ought to have been made earlier, and is likely to delay the main proceeding of the suit, the Court may admit, but shall not hear and dispose of the application, without payment by that party of such cost to the other party not exceeding three thousand taka, as it shall determine and direct, and upon failure to pay the cost, the application shall stand rejected.
In the case Abdur Rahman vs. Md. Iqbal Ahmed and others 49 DLR (AD), the Appelate Division of the Supreme Court rightly discharged the rule with compensatory cost considering the conduct of the parties as vexatious aimed at delaying the execution case.
Costs to be in discretion of the court:
Section 35 (1) provides that the costs of suits and applications shall be in the discretion of the Court. Such discretion must be a judicial discretion to be expreised on legal principles, not by chance, not by caprice, nor in temper. In the exercise of this of this jurisdiction, the Court is not confined to the consideration matters which led up to and were the occasion of that litigation. The discretion conferred upon the Court by section 35 is very wide.
Thus, the Court may order the costs to be paid by the parties in definite proportions or it may order one party to pay to the other a fixed sum in lieu of taxe3d costs. Similarly, it may disallow costs to a successful plaintiff, as where the rate of interest claimed by the plaintiff and allowed to him is usurious or it may make the successful plaintiff pay the whole costs of the other side. It may also allow the expenses of witness though summoned through the Court.
But though the discretion conferred upon the Courts by this section is wide, it is a judicial discretion and must be execised on fixed principles, i.e. according to the rules of reason and justice and not according to private opinion or benevolence or even sympathy. Where there are no materials before the Court on which it can exercise its jurisdiction, it is not justified in depriving a successful party of its coats.
Compensatory costs: Section 35A
Section 35 A provides for compensatory costs. This section is an exception to the general rule on which section 35 is based, viz that the costs are only an indemnity and never more than indemnity. This section intended to deal with those cases in which section 35 does not afford sufficient compensation in the opinion of the Civil Court. Under this provision, if the Court is satisfied that the litigation was inspired by vexatious motive and altogether groundless, it can take deterrent action. This section applies only to suits and not to appeals or revisions.
The following conditions must exist before this section can be appied:
1. The claim or defence must be false or vexatious;
2. Objections must have been taken by the other party that the claim or defence was false or vexatious to the knowledge of the party raising it; and
3. Such claim must have been disallowed or withdrawn abandoned in whole or in part.
*The court considers all things before the declaration of costs. The court considers all things accurately such as who, how far affected; whose contribution is how far, for the institution of the causes of suit; is there any ill motive in the suit etc.
The court will consider it with the objective view, not with the private view. For this we can see that sometimes the wining parties do not get any cost. For this, the court has to follow the principles of ‘reasons and justice’. If the court declares any additional cost, it will be unmusical. Though the court does not find any sound and reasonable ground, it can give cost to the reasonable parties by its inherent powers.
Case:
Alauddin Sikder (MI) an orhers vs Bangladesh and others (civil) 56 DLR (AI) 2004 Article 102, (costs):
The petitions in spite of being conscious of their having no locust and to maintain the writ petition field the same and thus entangled the college with ulterior motive. In this view the petitions be saddled with cost.
Who will get the cost?
Generally the wining party will get the cost. But some times the wining party may not be awarded where---------
1. Such party is the guilty of misconduct, or;
2. The successful party willingly oppresses the other party, or;
3. The successful party make untrue statement raised dishonest pleas, or;
4. A proper tender or offer of compromise is refused, or;
5. The successful party is guilty of fraudulent conduct in the costs of the litigation for instance presentation of documents, or;
6. The party successful going to the law pending litigation, or;
7. The party has cost delay in the conduct of litigation. It mentions that go to arbitration is not cost for refusing cost. A successful party not to be deprive of its cost merely because the suits precedes expiree.
35B. Cost for delay in making application etc. in respect of interlocutory matters.- (1) If at any stage of a suit or proceeding, an application or written objection is not filed within the time fixed by the Court, such application or written objection, as the case may be, shall not be admitted for hearing without payment by that party of such cost to the other party not exceeding two thousand taka.
(2) If after filing of written statement, any party to the suit makes an application in respect of any matter which, in the opinion of the Court, could and ought to have been made earlier, may admit, but shall not hear and dispose of the application, without payment by that party of such cost to the other party not exceeding three thousand taka, as it shall deter4mine and direct, and upon failure to pay the cost, the application shall stand rejected.”
• Legal Education
Except law faculties in some universities there is dearth of standard institutions and colleges in the country for legal education with qualified teachers. Law colleges in some of the District Headquarters have no qualified teachers Professional lawyers having no knowledge of up to date development of laws teach in those colleges as part-time teachers and as such quality of legal education in those colleges where most of the students study law is not up to the mark. In such circumstances it is necessary to gradually abolish those law colleges which would not be able to employ qualified law teachers within a specified time and to fill in the vacuum created by the abolition of law colleges in the District Headquarters new Law Colleges should be established by the Government in the Divisional Headquarters with qualified teachers having facilities for day and evening classes for the benefit of the students who work in the day time.
Most of the legal literature being in English teaching of law in Bengali medium has lowered the standard of legal education. So it is necessary to give compulsory lesson in English to the law students to improve their knowledge of English and efforts should be made to develop legal literature in Bengali continue legal education in Bengali.
Moreover outdated syllabus and curriculum of legal education should be changed and replaced by one, which is in conformity with the syllabus and curriculum followed in the developed countries.
• Others Recommendations
For securing effective administration of civil justice, some others recommendations are made as follows:
• The number of courts should be increased and the quality of judges should also be increased through things on court management.
• The number of Ezlash should be increased.
• Courts should be computerized.
• Pleadings should be presented before the all the requirements needed.
• Effective management on the manner of service of process should be observed.
• The judges should dispose of uncontested suit on the date of first hearing strictly.
• The rules relating to discovery, inspection and admission under Order 11 & 12 of the Code of Civil Procedure must be followed strictly by the parties.
• The discretion of the court in amendment of the pleading should not be used leniently.
• The presiding officer of the court should himself fix up the date of peremptory hearing and trial should take place chronologically in reference to the age and oldness of the suit.
• Peremptory hearing should not be adjourned on flimsy grounds and piecemeal hearing should be discouraged.
• Hearings should be precise.
• The court must be vigilant in taking step for early argument of as lawsuit.
• Restoration of dismissed and exparte suit should not be allowed on inadequate grounds.
• The time limit for pronouncement of judgment and drawing up of decree must be followed strictly.
• A provision should be made so that the original suit and the interlocutory matters of the original suit can be heard simultaneously.
• Provisions regarding civil revision should be stricter.
• There must be fixed judges for regular inspection of lower courts.
• The District Judges must be more administrator than be judge.
• Suits from the court having more cases ready can be transferred with post consent of the District Judge to the court having no case ready for hearing.
• If, in the same judgeship, it is found that the number of suits in one court is higher than the suits of another court, then the District Judge should eventually distribute the suits among the judges.
• The District Judge should be empowered revisional jurisdiction.
• The High Court must be cautious in giving stay order on the proceeding of a lower court.
• Alternative dispute Resolution system should be made compulsory in the pretrial stage of a civil lawsuit.
If all the proposals stated above are implemented immediately, then delay in civil litigation will be reduced to a maximum level and moreover, it will ensure effective administration of civil justice because the recommendations are the accumulated result of practical experience of the Judges working at present in many courts.
CHAPTER – FIVE
CONCLUSION
Effective administration of justice ensure substantial justice. the object of administration of justice is to establish rule of law and the purpose of administration of civil justice is to redress the wrong done to a particular person. State is vested with prime responsibility of protecting, preserving and maintaining the rights of its citizens through its machineries. Our present system of administering justice is structurally comparable with the system of administration of justice prevalent in any developed country. In spite of the same it is to be seen why complaints are being often made that our people are not getting proper and effective justice from our courts speedily. If the judges blame the lawyers and the lawyers blame the judges or other staff of the court the problem will not be solved. To solve such problem it is necessary to solve the difficulties and problems of the lawyers as well of the judges and staff of the court. We should take up some measures which will enrich our trial system and minimize delay in the disposal civil cases successfully and will ensure effective administration. Firstly we should establish an effective administration. Court administration consists of the internal management of the courts including classification systems, monitoring, co-ordination and case-flow tracking mechanism. Classification systems will help the courts to consolidate adjudication of claims involving common legal issues. Monitoring, co-ordination and case-flow tracking will ensure that both pre-existing and new case management and consensual dispute resolution processes proceed according to established timetables. Secondly, to minimize delay in civil litigation we should encourage alternative dispute resolution for resolving the disputes. Thirdly the total judiciary should be manages under a central judicial-net. And lastly, the judges must be trained properly and have to undergo periodical training in Government sponsored Institutes.
BIBLIOGRAPHY
Jurisprudence by Hamid Uddin Khan.
CIVIL PROCEDURE by C.K. Takwani.
ADMINISTRATION OF JUSTICE IN BANGLADESH by Kazi Ebadul Hoque.
EARLY DISPOSAL OF COURT CASES by Virendra Kumar Mathur.
CIVIL LITIGATION IN BANGLADESH by Dr. Rafiqur Rahman.
ADR, what It Is And How It Works-edited by P.C. Rao.
Information from http://www.adr.com.
Law Vision, issue: 7, December 2001.
Delay in Courts and Court Management BILIA, 1998 by Dr. M. Zahir.
Ain O Salish Kendro (ASK) Publication, 2001.
Manual on Conduct and Instruction of Civil Cases, 1996, Dhaka by Siddiqur Rahman Meah,
Code of Civil Procedure, 1908 (Act V of 1908) Gi AwaKZi ms‡kvab K‡í cÖvwYZ AvBb|
বিষয়: বিবিধ
৪৫৩৩ বার পঠিত, ০ টি মন্তব্য
পাঠকের মন্তব্য:
মন্তব্য করতে লগইন করুন