Advocates, Judiciary or the Public?
An advocate friend is defending a case in a suburban court in Mumbai. As usual, it is a property-related litigation. These days, 70% of cases filed relate to real estate disputes.
Land is worth more than gold. Like gold, it attracts those we can do without. More often than not, it is the culpable who jam the judicial machinery with frivolous litigation and even malicious prosecution. Our case deals with a man who files a case in court. He claims to be in possession of a very small piece of land abutting a small road on one side and a gate on the other. The gate is one of two gates of a cooperative housing society (CHS). The man, the plaintiff, cites the municipality as the defendant, no one else.
For some reason, no one defends the suit. The usual process is that when no one from the defence denies the claim of the plaintiff, the court has to give the judgement in what is called an ex-parte order. It usually is in favour of the plaintiff.
You be the judge
What should the order be? In the instant case, the judge granted the man the rights to that postage stamp-size bit of roadside. Up went a vada-paav stall. The man had court papers giving him his title.
In cases past, the courts used to grant the plaintiff his prayers, often without considering the merits of the case. It is flawed reasoning and, thankfully, the Supreme Court of India, in a judgement a few months back, has questioned this line of thought. It has said that it is the duty of the court to assess the plaint on the basis of merit and not simply pass an ex-parte order favouring the plaintiff. We fully agree with this view.
Why? If the plaintiff is unscrupulous, he may use one of many tricks up his sleeve. Use subterfuge and the court may believe the summons was properly served. The defendant may be out-of-town or indisposed. There could be two persons of the same name in the village; the address could be tenuous, at best. Crooks are ingenious.
The vada-paav stall is now up and running. The CHS is appalled. The man says that the gate was put up after his title was adjudicated. It all becomes a matter of proof. And time.
In the meanwhile, our friend doubts the bonafides of the litigants. There is a power of attorney, allegedly executed by the original plaintiff in favour of the man running the stall. But no one recalls seeing the plaintiff. Is the plaintiff alive or dead? Or maybe non-existent. Stranger things have happened in court.
The advocate asks for proof of the plaintiff being alive. If the plaintiff is dead, the suit abates. It is as dead as the plaintiff; unless a legal heir is brought on record. There are rules to overcome this. The Code of Civil Procedure (CPC), the advocates’ bible, says that the advocate must inform the court within three months of a litigant’s death.
The matter either ends or the heirs carry on. But what if the advocate does not volunteer the information? The other party, having no access to the news of the demise, soldiers on, spending time, money and energy on futile litigation. The court’s time is wasted. The administration costs shoot up. Other important matters are kept on the back burner.
You be the judge and solve this conundrum.
When we approached the powers-that-be, they quoted the CPC; a catch-22 situation. As advocates, we have been arguing this matter amongst ourselves and come up with what seems a workable solution. If the other side, when in doubt, asks for a ‘life certificate’ for the other lawyer to produce, say, once a year, it must be done. The method is simple. Pension authorities already have such a system in place. Why cannot the courts? After all, purposeful concealment is contempt of court and receiving consideration for such concealment is criminal contempt.
(Bapoo Malcolm is a practising lawyer in Mumbai. Please email your comments to [email protected])
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