Role of the judge in civil proceedings

We all know that the proceeding of a Civil case, Is guided by the Civil Procedure Court. Therefore, the first and foremost role of the Judge is to act in a judicious manner and adhere to the Sections, Orders and Rules prescribed under Civil Procedure Code. Although beyond the rules prescribed under the statute, the Court has discretionary power to power to exercise whenever it is required in the proceeding of civil Suit or Civil.

The role of Judge in a Civil case or civil Suit, before passing the decree or dismissing the, is very important at 4 stages.

PLAINT

Once the PlaintPlaint has been filed before the Court, the first and foremost role of the Judge is to observe whether the PlaintPlaint is maintainable or not.

The PlaintPlaint has to be maintainable in terms of Jurisdiction, Claim and Subject matter and limitation.

EXCEPTION- COURT CAN NOT CONSIDER THE FACTOR OF MAINTAINABILITY ONCE THE SUMMONS ARE SERVED

The Hon’ble Delhi High Court has laid down the settled principle of law in S.S. Steel Industry v. Guru Hargobind Steels that the trial court has no power to consider the factor of maintainability once summons has been served to the Defendant. The Hon’ble Court further held that in view of the specific provisions of Order XXXVII Rule 2 Sub Rule 3 CPC, it is not within the powers of the Trial Court at that stage to assess as to whether the Suit satisfies the requirement of Order XXXVII CPC or not. Once summons in the prescribed form has been directed to be issued and duly served, the Defendant is obliged to enter Appearance within the statutory period. On the failure of Defendant to enter Appearance within the statutory period, the averments in the PlaintPlaint are deemed to be admitted. Plaintiff is entitled to a decree forthwith.

WRITTEN STATEMENT

Once the Court finds that the PlaintPlaint is very well maintainable and the Defendant has entered the Appearance and filed the Written Statement, thereafter the Judge has to observe whether the written Statement has filed within the statutory limit of 30-90 days or not as per order 8 of the CPC, if the Judge finds that the same has not been filed within the statutory limit, then the Judge either shall proceed with due process of law or admit the Written Statement if he observes that the delay was accrued due to genuine reason.

EVIDENCE

The role of the Judge is also crucial at the evidence stage, and the Judge has to observe that evidence has been annexed by both parties are authentic or not. The Judge has to determine further the veracity of the documents which has been annexed in the Plaint or Written Statement by both the parties.

If at any stage of evidence, where Judge finds that any particular evidence or witness determines that the claim mentioned in the PlaintPlaint which the Plaintiff has filed is not legitimate, then in such case the Judge at the stage of the final order shall dismiss the PlaintPlaint, by giving the recording the reason for such dismissal.

LIMITATION

The essential role of the Judge in the civil Suit is that the Judge has to observe that the Suit shall be filed within the limitation period, if the same has been filed after the limitation period without any explanation, the Court can dismiss the same. The Judge has to proceed with the standard rule, which has been prescribed under article 113 of the Limitation Act. The Judge has to check whether the PlaintPlaint has been filed within 3 years from the date commencement of right to sue the Respondent.

EXCEPTION- SECTION 5

In limitation, the Judge has to observe that whether the delay which has been accrued in filing the civil suite is bonafide or not. As there is an exception that under section 5 of the Limitation act wherein it has been provided that if the Suit has been filed beyond the limitation period and the delay was the bonafide delay, then the Court can entertain the Suit under Section 5 of the Limitation Act.

The Hon’ble Apex Court has held in the matter of Bhivchandra Shankar vs Balu gangaram more & ors.The expression “sufficient cause” used in Section 5 of the Limitation Act, 1963 and other statutes is elastic enough to enable the courts to apply the law in a meaningful manner which serves the ends of justice.

In the matter of Collector, Land Acquisition, Anantnag & Anr. vs. Mst. Katiji & Ors., (1987) 2 SCC 107 the Hon’ble Apex Court has held that in matter of condonation of delay, the Court should take liberal view.

Hence, as per the settled principle of law laid down by the Hon’ble Supreme Court that the Judge has to construe the Liberal Approach in the case of delay for filing of case beyond the statutory limit.

ROLE OF JUDGE IN CASE PARTY SEEKING UNNECESSARY ADJOURNMENT 

If the Court finds that either of the party is just making an attempt to seek unnecessary adjournment, in order to further delay the particular manner, the Court in such case, shall strictly follow the 3 adjournment rule.

The Hon’ble Apex Court has laid down the precedence of 3 adjournment rule as per order 17 rule 3 a of CPC. The Court has further held that no litigant has a right to abuse the procedure provided in the CPC. Adjournments have grown like cancer corroding the entire body of justice delivery system. the absence of the lawyer or his non-availability because of professional work in other Court or elsewhere or on the ground of strike call or the change of a lawyer or the continuous illness of the lawyer (the party whom he represents must then make alternative arrangement well in advance) or similar grounds will not justify more than three adjournments to a party during the hearing of the Suit. A party to the Suit is not at liberty to proceed with the trial at its leisure and pleasure and has no right to determine when the evidence would be let in by it or the matter should be heard. The parties to a suit , whether Plaintiff or Defendant, must cooperate with the Court in ensuring the practical work on the date of hearing for which the matter has been fixed.