Arrear

What is Arrear

Arrears in the Judiciary are understood as a classification of pending cases. However, it is used interchangeably with pendency, delay, and backlog. The computation of arrears is essential to address many problems concerning judicial administration in India.

Official Definition

245th report of the Law Commission of India

The 245th report of the Law Commission of India titled Arrears and Backlog: Creating Additional Judicial (wo)manpower, examines the question of adequate judicial strength, for the subordinate judiciary. In the report, ‘arrears’ is understood as a further subset of ‘delay’ where the case has taken a longer time and no ‘valid reasons’ explain the same.

It states, “Some delayed cases might be in the system for longer than the normal time, for valid reasons. Those cases that show unwarranted delay will be referred to as arrears.”

Thus, a pending case will qualify to be an arrear if it meets these two conditions

• It is in the system for longer than the normal time that it should take for a case of that type to be disposed of.
• There is no ‘valid reason’ for it to be in the system for more than the normal time.

Further, the computation of arrears depends on two determinants - the normal time of disposal of a case of that type and valid reasons for it to be in the system for more than the normal time.

What constitutes ‘normal time’ for disposing of a case of a particular type has been suggested in various Law Commission Report like the 14th Report: Reform of Judicial Administration, 79th Report on Delay and Arrears in High Courts and other Appellate Courts (1979), and 77th Report on Delay and Arrears in Trial Court (1979) but, these suggestions are rarely adhered to.

Generally, a period of two years is often considered to be a reasonable time frame to dispose of a case by simply adding up the timelines contained in the Code of Civil Procedure, 1908  (CPC) and the Code of Criminal Procedure, 1973 (CrPC).

Additionally, what constitutes a valid reason is also not discussed by the law commission. The Law Commission report also does not provide any clarity on whether ‘valid reasons’ are of an administrative nature stemming from the problem of resource and judicial strength, or procedural stemming at the instance of parties to the litigation.

Vision Statement at The National Consultation for Strengthening the Judiciary Towards Reducing Pendency and Delays (2009)

Vision Statement at The National Consultation for Strengthening the Judiciary towards Reducing Pendency and Delays classifies all cases which are pending disposal in courts as of 1.1.2009 as arrears.

Further, the vision document mandates that The NJDG will appoint a reporting executive for each High Court to give weekly reports on the reduction of arrears. All cases which are treated as arrears under the above definition will involve the preparation of short written arguments and timetables to be fixed by the Judge/Court Executives. Timetables for the disposal of cases will also be published on the Internet

High Court Rules

Arrears are also understood as matters that are not ready to be taken up or matters that cannot be listed.

Bombay High Court

Rule 2 of Chapter X- Warned List, Weekly and Daily Board of the Bombay High Court Appellate Side Rules, 1960 provides for an Arrear List which is a list of unready matters i.e. matters that are not ready to be placed on the Board (cause list) for final disposal. According to this, a matter shall be deemed to become an arrear

1. in the case of First Appeals, one year after their registration;
2. in the case of Second Appeals nine months after their registration.
3. in the case of Letters Patent Appeals, Appeals from Orders, and Civil Revision Applications, six months after their registration;
4. in the case of Civil Applications and other miscellaneous matters three months after their registration;
5. in the case of short notice matters, three months after their registration;
6. in the case of expedited matters, three months after the date of order of expedition; and
7. in the case of Writ Petitions, thirty days after their registration.

Supreme Court

The Supreme Court in its monthly report on pending cases classifies pending matters as:

1. Complete (miscellaneous)- In which all preliminaries are complete and ready for hearing.
2. Incomplete(miscellaneous)- Preliminaries not complete like process fee not paid/notice yet not served/pleadings not completed, etc.
3. Ready (regular hearing)- All preliminaries completed after admission
4. Not Ready (regular hearing)- Preliminaries not completed like notice of lodgement of appeal not served/statement of case not filed, etc.

It further states that ‘incomplete miscellaneous matters’ and ‘not ready regular hearing matters’ are matters that cannot be listed for ‘hearing’. In the same vein, cases that cannot be listed for hearing can be understood as arrears.