The lower judiciary — litigation, pendency, stagnation

A Constitution Bench of the Supreme Court of India, headed by the Chief Justice of India, recently linked the sense of stagnation in the subordinate judicial service to prolonged litigation and the huge pendency in India’s courts. According to the National Judicial Data Grid, there are 4.69 crore cases pending in district courts. Another Bench of the Court has asked judges in Delhi to undergo training due to a lack of basic knowledge.

There are a few options to make changes in the administration of justice.

The Code of Civil Procedure and the Civil Rules of Practice contemplate procedures to be followed by courts in entertaining proceedings, issuing summons to the defendants, and for the appearance of parties. Subordinate judges handle this. They are forced to call every suit for the appearance of parties or order the issue of fresh summons and receive vakalathnamas. This takes up much time in the morning, leaving judges with very little time for the disposal of cases on merits. In most subordinate courts, the calling of cases goes on from 10.30 a.m. till well past noon. Quality time is lost by attending to such clerical and ministerial work.

A judicial officer in the lowest rank in hierarchy can be appointed in every district court to call all the cases of that particular cadre of courts (senior civil judges or civil judges or district munsifs, as the case may be). This court can do ministerial work the whole day and can also be assigned with the power to record ex parte evidence, issue of summons, receiving vakalath and written statements. At the end of the day, this court can list matters for trial and arguments the following day in each court. This list can be posted on the website in the evening.

The cases can be taken up, as in this list, from 10.30 a.m. every day by each court, and these courts can dispose of matters listed till evening. Even if some matters are adjourned, the orders can be still dictated, thus helping in judgements and case disposal.

The subordinate judiciary, its quality

There was a time when lawyers who practised law under the tutelage of a reputed lawyer in any branch of law, with at least 10 years of experience in the bar, used to be appointed district munsif/magistrates. Lawyers with more experience may also qualify after appearing for examinations for direct recruitment as district judges.

But now, judges are appointed without any experience and find it difficult to cope with the workload. In many cases, there are a number of judges who do not even pass orders as they are not equipped. Therefore, every civil judge or senior civil judge who is appointed must undergo training with different High Court Benches for a few months and observe how a High Court functions, how High Court judges hear matters, interact with lawyers, go through the judgments cited and study how orders are passed. This work culture by observation is a step that will definitely improve the working of the subordinate judge judiciary.

Whenever a statute is passed, new provisions are introduced, purportedly for the quick disposal of cases. But, in many cases, results are not achieved for expeditious disposal. On the contrary, there is a negative impact.

A typical example is Section 12(a) of the Commercial Courts Act and its provisions making pre suit mediation mandatory. The Supreme Court, while interpreting Section12(a), has held, in Patil Automation vs Rakheja Engineers (2022 (7) MLJ 139), that this provision is mandatory and that the plaint is liable to be rejected without pre suit mediation. In commercial cases, parties who are in business would have already exchanged notices. Only where exchange of notices do not result in settlement, do they resort to a legal proceeding in court. Therefore, at the time of filing the suit, it would be known where the matter is headed. So, where is the need to make mediation mandatory and direct the plaintiff to exhaust the remedy of mediation before filing the claim?

Another example is the six-month cooling-off period in marriage laws in filing for consent divorce. The parties concerned often want the disposal of the case within this period. Once a couple decides to separate on mutual terms, a pertinent issue is on whether they should be forced to wait for six months. Some courts do not allow this cooling- off period to be dispensed with, leading to further proceedings and pendency. It is not known if it is wise to have a one-year separation in filing a mutual consent petition, while the same is not applicable in a contested petition. An untrue declaration is made by the parties — making it out as if they have been separated for more than one year — to move a petition. Some of these provisions result in pendency and also the litigant facing frustration.

A third example is the new Rent Act. There is enough confusion already as to whether the absence of a written registered lease can vest the rent court with jurisdiction in conflicting judicial opinion. Armed with the same set of facts, one can approach a civil or a commercial court (in the case of commercial lease), but not a rent court. These anomalies could have been avoided had the legislation accepted oral lease as well as delivery of possession recognised by the Transfer of Property Act, as before. In the case of the lease of residential properties and small apartments, parties do not want to spend on stamp duty and registration fee for lease. The nebulous state of affairs created through statute is another reason for pendency in courts.

Archaic procedural law

A number of provisions in the Code of Civil Procedure have also become a tool for some litigants to delay proceedings. These provisions are misused for which there are many examples.

For instance, why should there be a preliminary decree and final decree in a partition action? Why cannot one decree be passed dividing the properties or order sale under the Partition Act soon after the passing of the decree?

Even if two decrees are contemplated, why should not the final decree proceeding be an automatic continuation of the preliminary decree, without a fresh application causing delay? Similarly, execution proceedings are not easily terminated because of many provisions under Order XXI of the Code which can be used by the judgment debtors to delay the process of execution. For example, why should there be 106 rules under Order XXI, many of which are hyper technical?

Unless drastic steps are taken to modify the procedure and compel parties to provide ways and means to satisfy the decree if passed in due course (even at the stage of framing and the list of assets by disclosure are made), a citizen will be forced to visit courts for years to realise his decree. This will be his plight in respect of all money claims including arbitration awards passed in his favour. There is a need to simplify the process of the execution of decrees and awards. and it is here that fast track procedure is needed.

What is important is the quick termination of the proceeding and not merely the conduct of trial or further proceedings by way of appeal. The code might have served the purpose when it was passed in 1908, but it is unfortunate that even after amendments in 1976 and 2002, there is still no solution to have the proceedings concluded expeditiously.

An example is the Amendment to Order VIII Rule 1 CPC making it mandatory for a defendant to file a written statement within 90 days (the Plaintiff can gather details for years to file the suit). What happens if the written statement is filed within 90 days? The suit is still not disposed of immediately and the trial takes its own course, especially when the right to appeal is exercised by the aggrieved party. So, why have a time frame only for filing the written statement?

This provision has not helped the cause other than its resulting in slipshod pleadings. While the time frame is fine when it is about money claims, it does not work in title suits.

Pendency and the higher judiciary

The issue of there being huge pendency needs to be addressed by the higher judiciary also. The termination of a judicial proceeding within a reasonable time — not a hasty approach to a proceeding when it commences or is work in progress — is the urgent need.

Solutions to reduce pendency ought to be considered. Unless we give up archaic laws and recruit competent lawyers as judges, we cannot expect the qualitative disposal of cases. Nor will pendency reduce.

The subordinate judiciary should be allowed to function as judges and not be a ministerial court officer ordering the issue of fresh summons, receiving vakalathnama and pleadings, and calling cases and writing notes on the docket for nearly two hours every day.

P.R. Ramakrishnan is a practising lawyer in Coimbatore

Published – November 18, 2025 12:16 am IST