A real and live case study as an example to illustrate how our justice delivery system works (did I say 'works', it must read 'does not work!')

08 MAY 2015

Though unavoidably long, it contains all that is needed to take a dispassionate look at how our justice delivery system works.

Outline of the case:

Ms. Wif was doing data entry work for an institution as a supplier of data entry services. She was billing the institution at a rate that was fixed for all customers. She was extending the services to several major customers at the same rate.

The husband of Ms Wif, Mr. Hus joined the same institution, as executive director, about 3 years after Ms Wif started giving her proprietary firm’s data entry services.

After serving the institution for over 9 years, Mr Hus left the institution. At that time the institution owed some 3.5 lakhs as accumulated salaries and consultancy fees and about 1.5 lakhs to Ms Wif’s concern for the services she has rendered to the same institution.

When the institution did not respond to several requests by both to pay their respective outstanding, both decided to file a suit before the expiry of time limit to file a suit.

After another 6 months after the couple filed one suit each claiming their dues from the institution, the institution filed a suit against the husband Mr Hus, claiming a total amount form him that was more than the amount that the institution owed him and his wife Ms Wif put together. The institution argued that it need not give anything to Ms Wif as she was the wife of the other party involved namely Mr Hus. who owed the institution more than the two outstandings put together. Interestingly the institution did not dispute the exact amount claimed by Ms Wif or Mr Hus, in their suit against the institution and agreed with the figures in toto..

Ms Wif, the wife, argued in her case vs the institution that she was a different legal entity from her husband and that she had been doing business with the institution and others at least 3 years before her husband Mr Hus joined the institution. She said that the outstanding from the institution to her cannot be clubbed with the other outstanding to her husband as hers was a company and a different legal entity. It was an elementary legal principle, they thought and so, the case should be disposed off in one hearing or a couple more. That happened some twenty three years ago. The case has just gone back to square one in the same lower court it started! Here is the processing that took so long and its details.

The processing of the case:

In the 23 years this case has been going in the small court, some 14 years went by only with setting dates for the next hearing as the defendant, the institution did not care to appear in the court for 14 long years.

At this point the advocate of the Ms Wif pleaded that, if for 14 years the defendant does not care to send his advocate to the court, the case must be decided ex-parte. After giving a couple of more notices, the court decided that there is bona-fide case for ex-party hearing of this case and gave a judgment in favour of Ms Wif. He had given a reasoned judgment, citing that the two entities, Mr Hus and Ms. Wif are two different legal entities and therefore the outstands due to Ms. Wif cannot be set off against the alleged outstanding by Mr. Hus to the institution. The mutual cases by Mr Hus against the institution and by the institution against Mr Hus must be settled differently. The court ordered the institution to pay the outstanding with costs and interest to Ms Wif.

Then Ms Wif filed an execution suit, as the Law requires that no execution can take place on the orders of a judge unless an execution suit is filed.

On this the institution files an appeal, much after the due date for filing an appeal has passed- in the High Court. Ms Wif, on the advice of her lawyer, contested the condonment of delay on the basis that the institution knew the lower court’s order much before the due date for filing an appeal.

The institution maintained that its lawyer was dead – 14 years before- and therefore the institution’s several notices were not received by it at all and they were unaware of the whole case! On this argument, Ms wif produced a proof of the lawyer for the institution by giving a copy of a communication that the lawyer of the institution has sent some 4 years before to Ms Wif.

The learned, honorable judge of the high court postpones the hearing for condonment of delay by 10 days as he wanted an event log from the small court. This requirement itself surprised many as it is not usual to call for such a record, unless one does not trust the small court. The judgment he gives after 10 days goes in favor of the defendant who filed the appeal too late, as the judge says in his judgment that no advocate was available for the defendant for 14 years as the one handling this case died and the defendant did not know about his death (a blatant lie by the defendant). The honorable judge overlooks the fact that the defendant had the ex-parte judgment in his hands on time and did not appeal within the stipulated time, after the judgment date. Whether or not the delay is to be condoned is in the realm of law but what is not in the realm of law is that the high court judge has in his possession the event log and the proof that the defendant had indeed employed a lawyer to fight this case just 4 years before the exparte judgment!

Now the petitioner has no option except to go to Supreme court with proof that a lawyer was indeed appointed and though the high court judge knew this, he has passed an order condoning the delay in the filing of the appeal, stating that there was no advocate handling this case for the defendant for 14 years, a blatant lie for which the proof of the defendant’s lawyer’s communication to Ms.Wif, just 4 years before was attached. It transpires also that this high court judge was recently appointed after several years of stint as an advocate and that his lawyer-friend during the stint as an advocate was the lawyer who handled the defendant’s case.

Ms. Wif, though disappointed, realizes that this is what people say about the justice delivery system in the country- ‘justice for the rich and the law for the poor’- and decides to appeal to Supreme Court. The Supreme court also condones the delay even though there is proof that the institution had a lawyer 4 years back and that the basis for appeal for condonment by the institution was that the previous lawyer had died and they did not even know he had died for the previous 14 years- a blatant lie for which there is written documentary evidence in front of the Supreme court!

On this Ms Wif decided to appeal a second time through a review petition to the Supreme Court on the condonment of the delay by Supreme Court. The Supreme court – in spite of having a documentary evidence of the existence of a lawyer for the institution and even though the basis for condonment request by the institution was that it did not know its lawyer had died, turns down Ms Wif’s representation and condones the delay. Also remember no advocates are permitted in the review phase of a petition, where if anything, it is more critical than the first appeal.

By this time, Ms Wif had made up her mind to fight the case to the last more as a service to the vast poor and illiterate people of this Nation, even though she had spent a substantial amount of money on all these multiple appeals to court after court right up to and including the Supreme Court of India for which the action is only in Delhi, the capital..

Now after 23 years the case has come back to square 1 where it started i.e., to the lower small court! Ms Wif in the meantime has got more firm in fighting this case to the very end, irrespective of how many times whatever court turns it down, simply because she knows that she had delivered the services to the institution, the institution had approved the bills for the service and also agrees with the amount due claimed by her! She knows it is a legal blunder to club the outstanding of two different legal entities, and set one off against the other, just because one is wife and the other the husband.

If this is the case with an educated intellectual, what should be happening to the uneducated/under educated millions in this country?

Recently a high court judge of the Karnataka high court retired and there was a send-off party for him organized. The retiring judge should have become the chief justice of the Karnataka high court but because of some weird system of promotion in the judiciary, he was not elevated but someone else. Interestingly the incumbent chief justice also was in the send-off party. Everyone spoke in the party and agreed that injustice was done to the retiring judge. And the judges asked: ‘If justice is not available to a judge, who else will get justice in this country?’ If any one else has asked this question he would have been booked and punished under the contempt of court provision in the justice delivery system. I hope the judges who spoke have been spared.

This brings us to another last – the twelfth suggestion- regarding the contempt of court provision which can bring in at least some semblance of accountability to any judge delivering any judgment. I suggest as follows: The judgment should necessarily address all the written proof of evidence submitted by either party and contain an explanation by the judge as to why the judge ignored the evidence attached in any suit or appeal.

How many poor, illiterate citizens of this country, who are the receivers of the services of the justice delivery system in this country, can fight a case like this? Is this case complicated in terms of legal content, which is simply the two parties Ms Wif and Mr Hus are separate legal entities, the defendant institution agrees to both the outstanding amounts and therefore the due to one- Ms Wif- cannot be clubbed with dues from the other Mr Hus? (Let us not forget that there is a case pending against the institution filed 6 months before by the husband for realizing the outstanding that the institution owes him filed 6 months before the institution filed a case to recover the alleged dues from the husband Mr. Hus.

One affected indian Bakra/bakri in the service of the people of India.