Instituting Cases at the Wrong Fora: A Catalyst for Delay in the Adjudication of Disputes

Introduction

Recently, the Chief Justice of India, Justice U.U. Lalit while inaugurating the Legal Aid Defence Counsel (LADC) at Delhi, said that litigation is a bleeding wound, and the more it is allowed to bleed, the common man would be made to suffer all the more.¹ Two key contributing factors towards this situation is the pendency of a vast number of cases in our courts and the long time taken in the adjudication of disputes. In present day India, there are 70,310 cases² pending before the Supreme Court, 59.5 lakh cases³ pending in the High Courts of our nation, while there are 4.2 crore cases⁴ pending in the District Courts. The judiciary has undertaken several attempts to curb this delay, such as setting up tribunals to adjudicate upon specific subject-matter such as the Railway Claims Tribunal, the Debts Recovery Tribunal and Real Estate Regulatory Authority amongst several others. But the backlog continues to rise despite the same. It is accordingly stressed by the author that, one imminent factor that often leads to cases getting delayed is the institution of cases at the wrong fora.

Delay condoned; but overall relief delayed

When the court dismisses the case filed by the party on the grounds of maintainability by stating that it has been filed before the wrong forum, or when the party withdraws the case after realising that the case had been filed before the wrong forum, the party can accordingly undertake to file the case before the correct forum. But the same is subject to the court condoning the delay occasioned as a result of the time lost due to fighting the case before the wrong forum. It is the discretion of the court whether or not to condone the delay under Section 4 of the Limitation Act, 1963⁵. However, irrespective of the delay getting condoned, what arises for our consideration at this point is that this eventually causes an unwanted delay in the overall adjudication of the dispute.

The author will now elucidate and delve into the reasons as to why cases get filed before the wrong forum, thus delaying the overall adjudication of the dispute.

Litigants wrongly advised by counsel into filing case before wrong forum; explained in light of the tripartite test laid down in Mariambai v. Hanifabai

The issue that came up before the Madhya Pradesh High Court in Mariambai v. Hanifabai⁶ was whether a mistake occurring on the part of the counsel in advising their client would constitute sufficient cause for condoning the delay arising as a result of approaching the wrong forum. In this case, the appeal had been filed in the District Court in lieu of the High Court after the limitation period had expired. The Court, in order to establish that there was sufficient cause arising as a result of wrong advice being given by the counsel, put forth a tripartite test whereby the appellant would have to show that:

firstly, the advice had been given by a competent practitioner;

secondly, that the practitioner exercised reasonable care in giving the advice; and

thirdly, that the advice given by him was founded on a view which could, in the circumstances of the case, be taken by a competent legal practitioner exercising reasonable care.

The application filed by the appellant to condone the delay in the aforesaid case was rejected since the three requirements of the test had not been met. On the contrary, the High Court of Bombay in Pattherao Narsu Patil v. Gangubai A. Lad⁷, condoned the delay of 4 years in a case where the litigant had been advised by his counsel to file a review petition instead of an appeal. The Court accordingly held that where the litigant files the case before the wrong forum according to the legal advice given by their counsel, any delay occurring as a result of the same has to be considered for condoning the delay. It was further held that this is a well-settled principle which has been laid out under Section 14 of the Limitation Act⁸.

Notwithstanding the two contradictory perspectives as stated above, it must be noted that there is no binding perspective on the topic. But the litigant should not be made to refile and relitigate the case before an altogether new court because the counsel who advised them was negligent in putting forth their opinion.

Approaching the wrong court with an underlying intent to unmeritedly prolong fruitless and frivolous litigation: M. Durga Singh case

In M. Durga Singh v. Yadagiri⁹, the Supreme Court dismissed an appeal preferred against the order of the Andhra Pradesh High Court dated 12-12-2002¹⁰. The appellants had originally filed a suit before the civil court in 1967 claiming rights over the disputed land, which was dismissed by the trial court on merits on 29-3-1975 by holding that the appellants had not been able to prove their title to the land, and that the boundaries had not been specifically stated therein.

The appellants went on to file a suit for removing the encroachments by the respondents on 79.49 yards of the disputed land. The parties subsequently entered into a compromise and was disposed of in 1979. As a part of the compromise, the respondents paid an amount of Rs 5887 to the appellants, who ceded all their claims to the disputed land.

In 1982, the A.P. Land Grabbing (Prohibition) Act, 1982 ¹¹ (the Act) came into force, which established the Special Courts. Despite the Act coming into force, the appellants filed a suit before the civil court with respect to 139 sq yd of the land alleged to be grabbled by the respondents. This suit was accordingly dismissed for default on 19-9-1991. The appellants thereafter filed an application for restoring the suit, which was dismissed. They also filed an application for restoring the suit, which was dismissed.

After filing three other suits which came to be dismissed, they eventually filed a case before the Special Court established under the Act, which was dismissed in 1994. The Special Court concluded that there was no certainty with regard to the land alleged to be grabbed by the respondents. The location of the land had not been stated clearly, nor were the area, description, measurements, and the boundary of the land mentioned properly. Furthermore, as pointed out by the respondent's counsel before the Supreme Court, there was a clear admission made by the appellants in the plaint filed by them before the Special Court that the respondents already had a construction on the disputed land. This was also a finding given in the earlier suit filed by the appellants in 1967.

The appellant thereafter went on to file a writ petition before the Andhra Pradesh High Court contending that the proceedings that took place before the civil court after the 1982 Act were not maintainable and the decree passed by the civil court was a nullity, and thus, they were entitled to approach the Special Court. This writ petition was dismissed by virtue of the impugned order dated 12-12-2002¹², against which the appeal before the Supreme Court was preferred. The Supreme Court, in para 14 of the judgment held that irrespective of whatever may be the position in law, the appellants invited trouble for themselves either by not approaching the right forum, or by litigating before the wrong forum. The appeal before the Supreme Court was accordingly dismissed with costs of Rs 50,000 on the appellants for taking many courts for a long ride through fruitless and continuous litigation spanning over several decades.

The aforesaid case is a very good example of how parties viciously undertake to litigate before the wrong forums with an underlying intention to prolong a potentially fruitless case.

Filing of cases despite a statutory bar on jurisdiction, thus leading to dismissal and re-litigation: Salient perspectives

Writ petitions filed under Article 226 of the Constitution of India despite the existence of an alternative remedy

Several writ petitions are filed by litigants before the High Courts without exhausting the alternative legal remedies that are already available to them, thus causing them to relitigate the matter before the correct court of alternative remedy upon dismissal. Considering the fact that writ petitions often take several years to get disposed of the litigant is made to wait all the more until the case gets dismissed in light of an alternative remedy being available. In Radha Krishnan Industries v. State of H.P.¹³, the Supreme Court upheld the order of the High Court whereby the Court had dismissed the writ petition filed under Article 226 of the Constitution of India¹⁴ challenging the orders of provisional attachment by holding that an alternate remedy was available. In the case of a writ petition getting dismissed due to an alternative remedy being available, the litigant undertakes to file and litigate the case before the correct authority. This in turn contributes towards the overall delay caused to the litigant in pursuing the case.

Approaching the civil court despite the existence of an arbitration clause

When litigants undertake to file cases citing breach in employment, insurance, and purchase agreements amongst other cases before the civil court, they often fail to note that there is an agreement clause in the agreement. When one undertakes to file such a suit, the other side eventually comes forward with an application under Section 8 of the Arbitration and Conciliation Act, 1996¹⁵, seeking that the case to be referred to arbitration since such a clause exists in the agreement. The litigant thus loses a substantial amount of time and effort spent by them in filing the case before the civil court.

Statutory bar on the civil court entertaining the case when the tribunal concerned established under the statute is already empowered to deal with the subject-matter

Section 9 of the Code of Civil Procedure, 1908¹⁶, confers the jurisdiction upon all civil courts to adjudicate all cases bearing a civil nature, until and unless the same is barred by a statute, either in an express manner or by necessary implication. It must be noted in this respect that this basic rule of the ouster of jurisdiction must not be readily inferred, as was held by the High Court of Bombay in Akash Impex v. Municipal Corpn. of Greater Mumbai¹⁷. It was further observed that even if the jurisdiction of the court is barred, the court of plenary jurisdiction bears the power to rule upon its own jurisdiction by recording a fact as to that jurisdictional fact.

To state a provision that ousts that jurisdiction of the civil court, Section 430 of the Companies Act, 2013¹⁸ states that no civil court shall bear the jurisdiction to adjudicate any suit or proceeding in respect of any matter which the National Company Law Tribunal or the National Company Law Appellate Tribunal is empowered to determine under the Act. Another example is that of Section 34 of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act (Sarfaesi Act), 2002¹⁹, which bears a similar statutory bar with respect to the matters which the Debts Recovery Tribunal (DRT) or the Appellate Tribunal is empowered to determine under the Act. It was held by the Madras High Court in Electrosteel Castings Ltd. v. UV Asset Reconstruction Co. Ltd.²⁰ that the correct forum for challenging the proceedings under Section 13 of the SARFAESI Act²¹ i.e. enforcement of security interest, is the DRT as opposed to the civil court. This was accordingly affirmed by the Supreme Court.²²

Quite often, the case filed by the litigant before the civil court gets dismissed in light of the statutory bar that may apply in instances such as the above, thus leading to them refiling the case before the correct tribunal. This results in a considerable amount of delay for the litigant seeking relief in such instances.

Conclusion

By enumerating the several instances as to why and how the case is filed before the wrong forum, the author intends to put forth a set of cautionary tales that the reader can peruse in order to acquire a deeper understanding on the topic. It is further clarified that the article does not intend to prop the total number of the cases filed before the wrong forums against the number of cases being filed before the right forums of law and draw out a comparative study, but points towards the different reasons as to why this phenomenon occurs in the first place. It further intends to lead the reader towards precautions that they can undertake in order to avoid unnecessary litigation. As the well-known legal maxim goes, justice delayed is justice denied. Furthermore, the litigant loses a lot of money in spending money towards court fees and filing the matter in this instance, only to realise later that they need to spend more. This can be curbed if sufficient safeguards are undertaken. The author thus hopes that the reader arrives upon an effective and a logical conclusion with respect to the present topic.