“It’s 12.30pm and we’ve already had 10 adjournments so far... Everybody is asking for adjournments at the drop of a hat.”
Justice B.R. Gawai let off steam at the Bombay High Court last fortnight when a senior counsel pleaded to have a copyright matter adjourned right at the outset of the hearing. Only minutes earlier, a junior lawyer had meekly requested the court to adjourn his case for four weeks, saying that his senior was busy in the Supreme Court. He was granted three weeks of reprieve.
Adjournments — the bane of millions of litigants — are now under the microscope. In mid-July, a public interest litigation (PIL) filed in the Bombay High Court by Mumbai resident Anil Gidwani sought to remove the menace of adjournments. Gidwani cited Order 17 of the Civil Procedure Code (CPC), 2002, whose rules are emphatic about granting no more than three adjournments in a case, and in circumstances that are beyond the control of that party.
If a litigant or its pleader is absent in court or unwilling to cross-examine the witness, the CPC gives the court the freedom to record the witness’s statement and pass an order. At the Supreme Court, the first 10 matters of the day are not permitted an adjournment. Lawyers seeking adjournments for extended periods for reasons such as lack of preparation are often surprised by judges who call them the very next day, says Sanjay Ghosh, a Supreme Court lawyer.
But adjournments in cases are more the norm than the exception. An effective way of seeking an adjournment at the apex or high court is for lawyers to submit a letter or an “adjournment slip” to the judge a day or two before the hearing, requesting the judge “not to read the file”. Ghosh adds that if the other party consents, the court usually grants the request.
Almost every court has to deal with the problem of adjournments. Sickness is often cited as an excuse by lawyers. The CPC talks of granting an adjournment on grounds of illness only if the court is convinced that the party could not have engaged another pleader in time.
Among the notoriously unprepared adjournment seekers are government pleaders. Further, government officials don’t give instructions to these lawyers to proceed in court, says Justice V.C. Daga, who retired last year from the Bombay High Court.
A pleader’s engagement in another court is not a ground for adjournment, but senior lawyers in higher courts often seek adjournments saying that they are engaged in lower courts, Justice Daga adds. “Senior lawyers ask for the most number of adjournments. Because of their standing, judges are too embarrassed to refuse them. Most of the time they’re unprepared but judges can’t force them to argue as they need the assistance of lawyers. Every case is a virgin one for a judge and it’s not possible to study all of them,” he adds.
A judge is often overloaded with cases, which also makes him more susceptible to grant adjournments. Justice (retired) Hosbet Suresh, who says he’d devised a system which called litigants only three times to court for proceedings, believes that rather than taking up the hundreds of matters placed on the board, a judge should assess his or her capacity and not take up more than 20-30 matters a day.
“A judge is in a position to choose the type and number of matters to appear on his board,” adds Justice Daga.
Of course, the courts are also often understaffed, which increases a judge’s caseload. For instance the high court in Gujarat — a very litigious state — has 29 judges, 13 short of the sanctioned strength. “We need to double or triple the number of judges and courts, but the Central and state governments are unconcerned and indifferent to tackling this,” says Mumbai’s criminal lawyer, Majeed Memon.
Judges stress that lack of time should not lead to a miscarriage of justice. In the Sunita Laxmanrao Shinde And Others vs Ashwini Co-Operative Housing Society case in June, 2007, a two judge-bench of the Bombay High Court set aside a lower court’s decision to grant multiple adjournments, and ruled that the courts were required to take a “pragmatic” approach and not be “hypertechnical” on procedural laws.
Similarly, in February 2007, the Gauhati High Court overruled a trial court’s decision to grant the eighth adjournment in a case, saying, “the rules of procedure are the handmaid of justice and not its mistress, and are meant to advance the cause of justice and not to defeat it.”
Retired chief justice of the Allahabad High Court Justice Ferdino Rebello believes the practice of adjournments can be “minimised”, but not stopped. “But judges should be firm with lawyers,” he argues.
In 1996, at Justice Rebello’s first posting as a single bench judge at the Bombay High Court, he found lawyers trying to dodge him. “But after granting the first four adjournments, I refused the fifth and the same afternoon even recalled those I had granted an adjournment to,” he says.
Over the years, Justice Rebello came to believe that once lawyers realised that a judge was serious about taking up a matter, they were less likely to ask for an adjournment.
But those seeking adjournments can always find a way out. “Lawyers know which judge is likely to give them a favourable hearing and order, so they wait till the bench changes, after every two months,” says Ahmedabad-based human rights lawyer Mukul Sinha.
Some lawyers believe that little will change unless lawyers themselves change their mindsets. “Rather than creating cosmetic solutions such as amendments to laws, lawyers should raise their moral standard,” Ghosh stresses.
That would make P.C. Singhi, a retired bureaucrat, happy. Singhi, who has been fighting a cancer surgeon for the past 25 years, says his case has been adjourned “countless” times, with lawyers citing reasons such as ill health or lack of preparation and time.
“But courts don’t mind being harsh on litigants. Once I got a letter from the Bombay High Court ordering me to be present at my hearing, failing which the case would be dismissed. I rushed from Ahmedabad, spending a good deal of money, only to find my case not on the board,” he says.
Justice delayed, he stresses, is indeed justice denied. He recalls that he once came across a woman in her 70s at the Bombay High Court who had been told by her lawyer that her case would be decided that very day. He later informed her — much to her disappointment — that the final order would be passed after a month. “I followed the lady as she left in tears. Just as she was to board a cab, she collapsed and died,” he recalls.