INTERVIEW

REDUCING JUDICIAL DELAYS IN THE INDIAN JUSTICE SYSTEM:

SERVICE OF SUMMONS THROUGH ELECTRONIC MEDIA

SUBJECT: CODE OF CIVIL PROCEDURE

SUBMITTED TO: MR. ASHWINI K PENDYALA

SUBMITTED BY: ADITYA SARKAR

III YEAR V SEMESTER
2015-5LLB-03

NALSAR UNIVERSITY OF LAW, HYDERABAD

 TABLE OF CONTENTS
Methodology .............................................................................................................................. 3

Interviewee Profiles ................................................................................................................... 4

Interview Questionnaire ............................................................................................................. 5

Question 1 – Nature of Judicial Delays ................................................................................. 5

Question 2 – Past Measures to reduce Judicial Delays .......................................................... 5

Question 3 – Legality of Electronic Service of Summons ..................................................... 6

Question 4 – Need for Formal Procedure of Electronic Summons ....................................... 7

Question 5 – Impact of Electronic Summons on Judicial Delays .......................................... 8

Analysis of Responses ............................................................................................................. 10

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 METHODOLOGY

This research assignment takes the form of a common questionnaire that had been circulated
to a specific set of interviewees with a particular profile in order to understand how their
experiences and technical knowledge of the law relating to the service of summons would
shape their opinions regarding the subject matter of the interview.

The assignment aggregates the opinions of interviewees who are either young lawyers or
research fellows at think tanks who have had some experience with litigation and understand
the working of civil procedure either through practice or theoretical training.

The questionnaire itself is a five question set that highlights the major aspects of the use of
electronic media for service of summons, its legality, its effect on judicial delays and the way
forward for using the same in civil procedure in the judicial system.

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 INTERVIEWEE PROFILES

MS. SANJANA BUCH

Associate,
VERUS Advocates, Mumbai
Contact: (M) +91 98199 06009; (E) sanjanabuch@gmail.com

MR. ARIJEET GHOSH

Research Fellow,
Vidhi Centre for Legal Policy, New Delhi
Contact: (M): +91 98796 79678; (E) arijeet.ghosh@vidhilegalpolicy.in

MS. ANEESA CHEEMA

Associate
VERUS Advocates, Mumbai
Contact: (M): +91 83907 45792; (E) aneesa.cheema@verus.net.in

MR. KUMARDEEP MAJUMDAR

Advocate,
Calcutta High Court
Contact: (M) +91 80177 64426; (E) kumardeepmajumder20@gmail.com

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 INTERVIEW QUESTIONNAIRE

QUESTION 1 – NATURE OF JUDICIAL DELAYS

What are some of the causes that you attribute judicial delays in civil cases to? Do you
feel that these delays are on account of the law being at fault, say red tape in the civil
procedure involved, or due to practices and conduct that arise in Courts themselves?

Sanjana: According to me, judicial delays in civil cases primarily arise due to the law being
at fault. There exist a set of procedures to be followed for each hierarchy of courts in the
country. Since I practice in Mumbai, we are required to adhere to procedural rules comprising
of the High Court Rules (original and appellate side), City Civil Court rules and rules
governing the Small Causes Court. The different set of rules, in turn, breeds red tapism as a
result of which litigators are required to indulge in paper pushing.

Arijeet: After the CPC (Amendment) Act, 2002, a considerable amount of changes have
been made to reduce judicial delay. On that basis, I would argue that although there might be
certain examples of law being at fault; but the major reasons for judicial delay arise from the
practices and conduct in the Courts themselves.

Aneesa: Judicial delays are the interplay of the law being at fault, red tape and the practices
followed not just by the lawyers but also the judges. It's so convenient to drag on a matter for
a period of 8 months without worrying about a legal consequence by just seeking time. The
judges most willingly adjourn matters as it saves them the time to read the papers or make
decisions. Red tape also plays a huge role in manner in which matters are conducted and
entertained or just knocked off.

Kumardeep: A lot of common law deals primarily with procedures of fair trial and ensuring
there is no miscarriage of natural justice. To that end, I feel that a lot of red tapism is inherent
in the law itself to be absolutely sure as to the proceedings in a case, be it summons or trial
before the court, producing witnesses, making arrangements for the accused to be present in
court. Thus, while judges have their hand to play in creating delays on account of prolonging
litigation, these are allowed by the law itself.

QUESTION 2 – PAST MEASURES TO REDUCE JUDICIAL DELAYS

Are you aware of any changes in the Civil Procedure Code (Amendment) Act, 2002 that
have tried to reduce judicial delays? Would you say that they have been successful?
(Personal experiences in this regard are welcome)

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Sanjana: I have had the experience of working on the Amendment of a Plaint under the
provisions of Order VI, Rules 17 of the Civil Procedure Code, 1908 during one of my
internships. It has added flexibility in the pre-trial stage of civil proceedings so as avoid delay
in the matter and also to ensure that the Plaint serves the actual purpose of the dispute.

Arijeet: One of the major changes brought in by the CPC amendment (1999) was to set the
upper limit of the number of adjournments sought to a maximum of three. However, Salem
Advocate Bar Association-II interpreted the provision as not curtailing the Court’s power to
grant more than three adjournments. Similarly, the CPC amendment (2002) incorporated an
outer timeline to file a written statement by not allowing courts to accept it beyond the period
of 90 days. However, in the 2005 judgment of Kailash vs Nanhku, the Supreme Court relaxed
this statutorily prescribed deadline by interpreting it as merely directory and not mandatory.
Because of these Supreme Court judgments, in my opinion, these changes which tried to
reduce judicial delays have completely failed.

Aneesa: Although the 2002 Act did impose time restrictions on the actions of the litigants
like filing the written statement (WS) in a specified period, arguments to be curtailed as
deemed appropriate and the judgment to be given in the time prescribed, all these
amendments have granted discretionary powers to the judges to extend such time. Although a
lot of courts are strict on filing a WS in 30 days, but are lenient in extending that time as well.
The courts require service of all pleadings/applications filed by a plaintiff on the defendant
even in an ex parte suit hence diluting the speedy trial intention of the Amendment Act.

Kumardeep: There have been changes to the effect of prescribing shorter timelines for
service of summons, for filing written statements and amendments of pleadings. The menace
of adjournment motions has been limited to three as well. However, in the Calcutta High
Court, there is a lot of informal leniency that is granted to advocates by the judges to allow
extra time and opportunity to produce witnesses by citing concerns of audi alterem partem,
thus diluting the effect that the Amendment Act was meant to serve.

QUESTION 3 – LEGALITY OF ELECTRONIC SERVICE OF SUMMONS

In January, 2017, there was reportage of an impending draft amendment bill placed
before Parliament by the Ministry of Law and Justice to allow the service of summons
by email. Further, there have been reports across the country that summons have been
served in rather innovative ways. In an unprecedented move, Justice Endlaw in the
Delhi High Court, Justice Gautam Patel in the Bombay High Court and several others

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have allowed plaintiffs to serve summons by text/WhatsApp/email, thus experimenting
with technology in the judicial process. In this regard, do you feel service of summons
by text message, WhatsApp or other media is legal as per the current provisions of
mode of service in Order V of the CPC? Are there explicit amendments required in the
current legal regime?

Sanjana: According to my understanding of Order V of the Civil Procedure Code, 1908,

parties are permitted to serve summons by email only. However, issue of summons by
whatsapp, text messages or other media would require explicit amendments to the Civil
Procedure Code, 1908 as it stands today.

Arijeet: I would argue that service of summons through text/whataspp/email would surely
not be illegal. The Indian Contract Act allows contracts to be made in electronic form. By
that analogy, usage of electronic means to serve summons cannot be deemed illegal. But yes,
if the Courts do want to allow service of summons in electronic form, suitable amendments
can be made to the Code so as to avoid any ambiguities and difficulties in future.

Aneesa: I think it's absolutely necessary to serve through alternate ways like WhatsApp or
text message as the was provided under the Code can be used by a defendant to avoid receipt
of summons and hence causing delay in the process of the trial of a matter. However, I feel
there need to be guidelines to implement these alternate ways of service simply to avoid the
mischievous use of the same by a plaintiff.

Kumardeep: Indeed it is a welcome initiative and an innovative way in which to serve

summons because defendants have been known to avoid summons and stall proceedings.
However, I would be apprehensive to call them as legal means of the same, and if challenged,
would not hold up as legitimate procedural methods. The controversy surrounding them
could be easily done away with if there were explicit provisions to that extent, and I feel there
should be such provisions, in this day and age of technological evolution.

QUESTION 4 – NEED FOR FORMAL PROCEDURE OF ELECTRONIC SUMMONS

In light of the fact that most High Courts determine their Rules of Practice, do you feel
that the mode of service of summons ought to be decided by the respective High Courts
themselves or should there be a formal uniform Central rule in this regard? What could
be the pros and cons of either system?

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Sanjana: In the event rules in this regard are framed by the Central Government it would
definitely bring in uniformity in terms of the procedure that is required to be followed.
However, every State may not be in consonance with the procedure so framed and it would
attract a challenge to the rules.

Arijeet: I would argue in support of a formal uniform Central rule in this regard. However,
before allowing such use of technology, evidence based research highlighting the advantages
of the use of technology in reducing judicial delays needs to be brought forward. The blanket
assumption that introducing technology always leads to better case management might not be
true. As to the implementation of such a formal uniform Central rule, there might be certain
resistance from High Courts who as of now do determine their Rules of practice. Both the
options should hence be kept open.

Aneesa: I think there should be a formal code that binds all courts equally simply to avoid a
banana republic of procedure and process.

Kumardeep: There becomes a lot of confusion when High Court determine differential rules
of practice across the country and becomes difficult to implement especially when summons
are involved and defendants live in places where the court has no jurisdiction. That’s why I
feel a centralised code should be in place to remove all ambiguity and create parity between
courts across the country.

QUESTION 5 – IMPACT OF ELECTRONIC SUMMONS ON JUDICIAL DELAYS

Do you feel changes in use of technology for service of summons can realistically reduce
delays in the judicial process in civil matters? Do they attack the heart of the issue of
judicial delays? What more can be done in your opinion, given your diverse experience
with litigation?
Sanjana: Yes, according to me service of summons through electronic mode will only end up
reducing judicial delays provided there is a larger percentage of litigants opting for this
method.
I feel that the Government should ultimately pave way for paperless service by gradually
reducing the conventional modes of service of summons and ultimately rely only upon
electronic modes as the recognised mode of service.
Arijeet: Although, I do feel that introduction of technology might lead to better case
management and hence reduce judicial delay, I wouldn’t be sure about it till I see an evidence

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based research on the same. Service of Summons is not the only issue at the heart of judicial
delay. The 1999 and 2002 amendments tried to bring procedural changes, which in my
opinion, all lie at the heart of judicial delay. Service of summons, time to file written
statements, number of adjournments allowed, time taken for oral arguments are a few
examples of issues contributing to judicial delay.
I would not be able to answer the question on what more can be done as I have negligible
litigation practice.
Aneesa: I do feel that using technology for service of summons can reduce delays. This
might not attack the heart of issue of delay but it does get the ball rolling. I have personally
seen matters being stuck for more than 2 years just because the Summons have not been
served on the defendant as per the Code. And so I feel at least the first step in the trial gets
expedited.
Kumardeep: Yes, the electronic mode of service of summons can drastically reduce judicial
delays when it comes to trial proceedings. But it is not the only issue that needs to be
addressed. Judicial discipline, curbing discretionary rules of practice and reducing leniency to
litigants and more efficient administration of courts can really reap results for the aim in
mind. In my opinion, changing the law itself makes it easier to implement better practices
with regards to curbing delays. So, amendment to current laws, rules of practice and such are
the way to go.

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 ANALYSIS OF RESPONSES

Having received four diverse responses from individuals associated with the legal practice in
India, there are some distinct takeaways that can be analysed in terms of the responses of the
interviewees to the five pointed questions.
The objective of the questionnaire was to aggregate diverse experiences of the evolution of
service of summons in civil procedure adopted by the Indian judiciary and develops an
understanding of how it has linked or furthered the cause of reducing judicial delay, a chronic
problem that is acknowledged across the board as lacunae in the working of the justice
system in the country. The questions have been pointed on different aspect such as the
legality, linkages and effectiveness of summons in dealing with this problem of judicial delay
and the way forward in the opinion of young legal associates, researchers and advocates with
a few years experience in litigation.
The interviewees agree upon the existence of a multiplicity of factors that lead to lacunae in
the administration of justice by the judiciary. However, when questioned on which factor
they could single out, apart from one, the rest point to the law itself as being the main culprit.
Due to the red tapism inherent in the procedure that has to be followed, litigants find the law
as a cumbersome means of addressing their disputes. It is partly why we have seen the
emergence of alternate dispute resolution in the past few years as effective counters to
judicial determination since the courts take years and years to settle disputes.
There is general consensus and knowledge of various provisions of the Civil Procedure Code
Amendment of 2002 that tried to deal with factors that hampered effective judicial
determination of cases, however, the interviewees feel that Courts have been reluctant to
implement them in reality leading to their provisions being read down, discretionary powers
being given to judges to interpret them ambiguously to suit their needs leading to the overall
failure of these amendments to make effective change in the justice system.
In specific regard to electronic media having been used in the recent past by Justice Endlaw
in the Delhi High Court and Justice Patel in the Bombay High Court, the interviewees
welcome this initiative taken by judges who have often been held accountable for the delay in
cases being disposed of in courts. Though the interviewees laud the innovation and
acknowledge that there is a need to change over to electronic means of communication even
by courts, there is some divergence on its legality. Owing to the fact that there are no explicit
provisions for using electronic media for service of summons, all the interviewees were in

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favour of having amendments introduced to that effect as soon as possible. They were all in
agreement for central guidelines to determine these procedural question because state-wise
rules of practice become difficult to implement.
Finally, on the point of the use of technology to deal with the heart of the issue of judicial
delays, the interviewees acknowledge that service of summons simply scratches the surface
and more structural changes are required to effectively deal with the issue of judicial delays.

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