Delay in civil suit

Topics: Common law, Court, Law Pages: 15 (6746 words) Published: April 17, 2014
 Delay in civil suit

One of the most vexed and worrying problems in the administration of civil justice is of delay. Jonathan swift in his famous work Gulliver’s Travels sarcastically describes the delay in courts in the following words: “In pleading, the lawyers studiously avoid entering into the merits of the cause; but are loud, violent and the tedious in dwelling upon all circumstances which are not to the purpose…. they never desire to know what claim or title my adversary hath to my cow, but whether the said cow were red or black; her horns long or short; whether the field I graze her in be round or square; whether she were milked at home or aboard; what disease she subjected to; and the like; after which they consult the precedents adjourn the cause from time to time, and in ten, twenty or thirty years come to an issue. It is likewise to be observed that this society hath a peculiar cant and jargon of their own, that no other mortal can understand, and wherein all their laws are written; which they take special care to multiply; whereby they have wholly confounded the very essence of truth and falsehood; of right and wrong; so that it will take thirty years to decide whether the field, left by my ancestors for six generations, belong to me or to a stranger three hundred miles off.” Judiciary of Bangladesh is caught in a vicious circle of delays and backlogs. Backlog of cases causes frustrating delay in the adjudicative process, which is eating away our judiciary. While delay in judicial process causes backlog, increasing backlog puts tremendous pressure on present cases and vice versa. This process goes on with no apparent remedy in view. Present rate of disposal of cases and backlog is alarming for justice, rule of law and economic development of the country. Our judicial and legal system has a rich tradition of common law culture and it can boast of a long record of good delivery of justice. Like any other legal system, common law with its adversarial or accusatorial features, has both its merits and demerits. But in recent years, certain objective and subjective factors have led our judiciary to a situation where its demerits are ruling over the merits, manifesting in crippling backlogs and delays. Delayed justice fails to pay even the winning party of the litigation, for its costs in terms of time, money, energy and human emotions are too high. Delay in our judiciary has reached a point where it has become a factor of injustice, a violator of human rights. Praying for justice, the parties become part of a long, protracted and torturing process, not knowing when it will end. Where it should take one to two years for the disposal of a civil suit, a case is dragged for 10 to 15 years, or even more. By the time judgment is pronounced the need for the judgment in certain cases is no more required. Moreover, in a society of class differentiation, the lengthy process, which is adversarial and confrontational in nature, puts the economically stronger party at an advantageous position. If the judiciary functions substantively and in accordance with the procedural laws, an existing wide scope for delays, can transform it into a system which becomes procedurally hostile towards marginalized sections of our people, defeating the goals of social justice.

Reason of delay:
The reasons for delays in our civil justice system are both systemic and subjective. They may be identified as follows: 1. Common law oriented adversarial or accusatorial character of the civil process as against inquisitorial as practiced in continental Europe, meaning that the litigation is party-controlled which provides wide maneuvering power to the lawyers, and presupposes lesser initiative and relative passivity of the judges. 2. Slow process of service of the summons which can be further slowed down by the intentions of the parties concerned,...
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