The Code Of Civil Procedure (Amendment) Bill,1997

[Cites 71, Cited by 0]

Law Commission Report

The Code Of Civil Procedure (Amendment) Bill,1997

LAW COMMISSION OF INDIA

ONE HUNDRED SIXTY THIRD REPORT

THE CODE OF CIVIL PROCEDURE (AMENDMENT) BILL, 1997

NOVEMBER, 1998

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LAW COMMISSION OF INDIA
SHASTRI BHAWAN
NEW DELHI - 110 001
TEL. : 3384475

-USTICE
3. P. JEEVAN REDDY
hauman, Law Cornnnssnm of lndna

Hcddcnce:
1,JANFaTH
NEW DELHI I10 O11
TEL.:3OI9465

D.O.No.G(3)(39)/97-LC(LS) 13.11.1998

Dear Dr.M.Thambi Durai,

I am forwarding herewith 163rd report on "The Code
of Civil Procedure (Amendment) Bill, 1997".

2. The Law Commission was requested by the Government
of India (Ministry of Law, Justice and Company Affairs) to
undertake comprehensive revision of the Code of Civil
Procedure, 1908. In January, 1998, the Commission took up
the subject and decided to do the exercise in two phases.
In the first phase, the Commission proposed to express its
views on the various amendments suggested by the Code of
Civil Procedure (Amendment) Bill, 1997 which was introduced
as an official Bill in the Rajya Sabha. In the second
phase of the work, the Commission intends to take up the
revision of the Code in its entirety since a comprehensive
revision of the entire Code would take comparatively longer
time. '

3. The Commission issued a comprehensive questionnaire
on the subject to elicit informed opinion on several
provisions and proposals contained in the Amendment Bill.
The Commission also held three conferences at Delhi,
Allahabad and Hyderabad through the assistance of concerned
Chief Justices of the High Courts. There was an excellent
response in the conferences from the members of the Bar,
subordinate judiciary and Judges of the High Courts. The
responses received on the various questions have also been
considered by the Commission '

4. The Commission is-- of the opinion that certain
changes recommended in the report need to be incorporated
in the Code of Civil Procedure (Amendment) Bill, 1997 to

attain the objective of speedy and effective justice.

with regards,

Yours sing_ere1y,

5 '. .
(B.P.JEEVAN EDDY)

Dr.M.Thambi Durai, -"
Hon'ble Minister for Law, Justice
and Company Affairs,

Shastri Bhawan,

New Delhi.

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CHAPTER-II

ANNEXURE-B

CONTENTS

INTRODUCTION

RECOMMENDATIONS AND CONCLUSIONS

REGARDING THE CODE OF

CIVIL PROCEDURE (AMENDMENT)

QUESTIONNAIRE

PAGES

1-10

11-67

1-38

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CHAPIER-I

INTRODUCTION

1L1. Scope of the Report:- The Law Commission of India was
requested by the Government of India (Ministry of Law, Justice
& Company Affairs) to undertake comprehensive revision of the
Code of Civi1 Procedure, 1908. The Commission took up the
matter in January, 1998. It decided to do the exercise in two
phases. In the first phase, the Commission proposed to
express its views on the various amendments suggested by the
Code of Civii Procedure (Amendment) Bi11, 1997 §Annexure-A)
(hereinafter to be caiied the Amendment Biii) which was
introduced as an officiai bi11 in the Rajya Sabha. In the
second phase of the work, the Commission proposes to take up
revision of the Code in its entirety since a comprehensive

revision of the entire Code wouid take comparativeiy Ionger

1.2. Issuing of Questionnaire and hoiding conferenceszwith
a view to eiicit informed opinion on severai provisions and
proposais contained in the Amendment Bi11, the Commission
prepared a questionnaire (Annexure-B) containing as many as 43
questions. Under each question, the Commission mentioned
briefiy the meaning of the proposed amendment' and aiso
indicated the possibie responses and interpretations of the
proposed amendment. wherever necessary, reievant case iaw was

aiso indicated to faci1itate"c1ear and informed responses. It

was, however, made ciear that the views, if any, expressed in
the questionnaire by the Commission did not represent its
Fina views but were onTy tentative opinions put forward with
a view to eiiciting effective and informed responses from

members of the Bar, Bench and other Jersons concerned with the
F

1.3. Besides communicating the questionnaire to aT1
concerned, the Commission also heid three conferences at

Deihi, Aiiahabad and Hyderabad. The respective Chief Justices

were requested to arrange the conferences which H they
gracefuiiy did. The conference at Deihi was moderated by Ms.
lustice Leiia Seth, Member, Law Commission whiie the

conferences at Aiiahabad and Hyderabad were moderated by the
Chairman. There was :n exceiient response at aTT the th'ee
conferences from the members cf the Bar, subordinate judiciary
and dudces of the High Court. In many cases, they expressed

.heir views in writing. The Commission prepared a record of

the proceedings of aTT the three conferences, briefiy
recording the various views expressed by the participants..

1.4. The Commission is gratefui to aii those who have
favou'ed us with their views in response to the questionnaire
or hcve addressed their views during the conferences organised
by the Commission. The repiies on the various questions have

received our most carefui consideration.

1.5. Importance of the subject:- The Commission has been
repectediy voicing concern in its various reports about the
quaiity of the justice de1ivery system in the country. Thus,
in its 127th report on 'Resource A11ocation for

Infra--Strucfura1 Services in Judiciai Administration - (A
continuum of the report on Manpower P1anning in Judiciary: A

Biueprint)', the Commission observed as Foiiowsz

"1.i Ever since men have begun to refiect upon the
re1ations with each other and upon vicissitudes of the
human Tot, they have been pre--occupied with the
meaning of justice and a popuiar beiief has been that
justice can oniy be obtained through court. That

:redence, credibiiity nd respectabi1ity

' 1

to the court system. But Tike any other institution,
the system h;s to constantiy justify its existenﬁe by
renderin' the service expected of it. The moment it
ails or Faiters, the c'edibi1ity and respectabiTity
devciues. For a Functioning democracy, court system,

where justice is obtained even against the State, is a

pre--reduisite. Therefore, the court system, whenever

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"s under an unbearabie Toad, requires thorough

re-examination and its restructuring with a view to

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peopie and resuit-oriented.

alien, quoted in the Report of the Labour Laws Review

Qommittee, 4 (Government of Gujarat

"i.2 The Universal Declaration on Human
Rights provides that:

"Ev

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ryone has the right to an
effective remedy by the competent
national tribunals for acts violating
the Fundamental rights granted by the
Constitution or by law". (Art.18,
Universal Declaration of Human Rights
approved by the General Assembly of

the United Nations).

Exoounding the fundamental principles of justice
underlying the Decl'ration, in another report. the Law

Commission had observed as under:

Equality is the basis of all modern systems
u. jurisprudence and administration of
justice... In so Far as a person is unable to
obtain access to a court of law for having his
wrongs redressed or For defending himself

agai

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.t a criminal charge, justice becomes
unequal and laws which are meant for his
protection have no meaning and to that extent
ail in their our ase. (LCI 14th Report on

Reform of Judicial Administration', p.58?)."

1.5.1. Failure on the front of providing adequate and easily

accessible courts of justice is one of the principal
causes of popular dissatisfaction with the
administration of justice. This was voiced way back

in 1906 by Dean Roscoe Pound in his famous speech as

follows:

"The dissatisfaction stems from unmanageable
backlog of cases, mounting arrears and
inordinate delay in disposal of cases in
courts at all. levels lowest to the highest
coupled with exhorbitant expenses. This has
attracted the attention not only of the
members of the Bar, consumers of justice
(litigants), social activists, legal
academics, Parliament, but also the managers
of the court." (Quoted in H.T. Rubin, The

Courts, Fulcrum of the Justice System, 208).

1.5.2. The Commission in its 127th report also pointed out
that the expression "access to justice" had different
connotations. The road blocks in the access to justice could
be high cost, geographical distance, adverse cost--benefit
ratio and the inordinate delay in search of illusory justice.
The State was responsible for removing all road blocks in the

access to justice. Accordingly, the State should ensure that

th .ystem is equally accessible to all and should lead to the

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results that were individually and socially just.

1.5.3 The coicept of access to justice has undergone
significant transformation. Eariier, the right to judicia1
protection meant the aggrieved individua1's formai right to
Titigate or defend a ciaim. It did not require active State
action for this purpose. Their preservation oniy required
that the State did not a11ow them to be injured by others.
Reiieving '1ega1 poverty', that is, incapacity of many to'make
fuii use of the Taw and institutions was not the concern of
the State. (M.Cape11etti, Accessi to Justice, 6-7 (Book 1)
(vide paragraphs 2.2 and 2.3 of the 127th report of the Law

Commission, cited supra).

1.5.4 The procedure is the handmaid to the substantive
rights of the parties. [Sukhbir Singh v. Brij Pa1 Singh,
(1997) 2 SCC 200]. Substantive iaws determined the rights and
obiigations of citizens but the procedural 1aws, which are
eduaiiy if not 1ess important, prescribe the procedure for the
enforcement of such rights and obiigaticns. The efficacy of
substantive iaws, to a iarge extent, depends upon the quality
of the prccedurai iaws. Uniess the procedure is simpie,
expeditious and inexpensive, the substantive Taws, however

Lood are bound to fai1 in their purpose and object.

1.5.5 Besides, as the Commission observed in its 114th

'eport on Gram Nayayaiaya, Chapter V, para 5.3 that -

"5.3 It would be unwise to look at the problem from

the point of view of court management only. In other
words, it would be very imprecise to examine the
matter from the aspect of ever--growing court dockets.
Such an endeavour has to be guided by the aspirations
proclaimed in the Constitution of India. Article 39A

of the Constitution of India directs the State to

secure that the operation of the legal system promotes

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, on a basis of equal opportunity, and shall,
in particular, provide free legal aid, by suitable
legislation or schemes or in any other way, to 'ensure
that opportunities for securing justice are not denied
to any citizen by reason of economic or other
disabilities. This is the constitutional imperative.
Denial of justice on the ground of economic and other
disabilities is in nutshell referred to what has been
known as problematic access to law. The Constitution
now commands us to remove impediments to access to
justice in a systematic manner. All agencies of the
Government are now under a Fundamental obligation' to
enhance access to justice...."

1.5.6. Article 33A casts a positive duty on the State to so
structure the legal justice system as to ensure that its

operation promotes justice, on a basis of equal opportunity.

'To attain this object, the State has to pass suitable

legislation or frame schemes to ensure that opportunities for

securing justices are not denied to any citizen by reason of

economic or other disabilities. Among other disabilities,
courts situated at a long distance from the habitat of the
citizens in search of justice itself would have a dampening
effect on one's search of justice (see para 2.4 of Law

Commission of India, 127th report, supra).

Therefore, while bringing about reforms in the Code,
it is quintessential to keep in view the above constitutional
objectives.

1.5.7. Delay in disposal of cases threatens justice;- The
lapse of time blurs truth, weakens memory of witnesses and
makes presentation of evidence difficult. This leads to loss
of public confidence in the judicial process which in itself
is a threat to rule of law and consequently to the democracy.
The rising cost of litigation ,can also be said to be
attributable to delay which in turn causes the litigants to

ither abandon meritorious claims or compromise for a lesser

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unjust settlement out--of-court. Besides, expression of
society's moral outrage is essential in an ordered society
that asks its members to rely on legal processs rather than
self--help to vindicate the wrongs. To avoid anarchy, fairness
has to be actually felt by the aggrieved persons and it is the
courts which provide the systematic outlet. Obedience to law
has been described as the strongst of all the forces making

for a nation's peaceful continuity and progress. (S.Shetreet,

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"The Limits of Expeditious Justice", Expeditious Justice, 1 at

page 15) (vide paras 2.15 and 2.12 of the 127th report of Law
Commission of India, supra).

1.6. Attempts made in the past

The Commission has made a number of recommendations in its

eariier

reports for speedy disposa1 of cases and with a view

to tackiing the mounting arrears pending in various courts in

the country.

(V)

(vi)

(vii)

(viii)

(ix)

(x)

The reievant reports are as under:

14th report on "Reform of Judiciai Administration"

27th 'eport on "Code of Civi1 Procedure, 1908"

54th report on "Code of Civi1 Procedure, 1908"

55th report on "Rate of interest after.decree and

interest on costs under Sections 34 and 35 of the Code

of Civii Procedure, 1908"

56th report on "Notice of Suit required under certain

Statutory Provisions"

58th report on "Structure and Jurisdiction of the

Higher Judiciary"

77th.report on "De1ay and arrears in tria1 Courts"

79th report on "Deiay and arrears in High Court and

Other Appe11ate Courts"

99th 'eport on "Ora1 and written arguments in the

Higher Courts'

114th 'eport on "Gram Nyayaiaya"

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10 5-

'eport on "The High Court Ar'ears - A F'esh

report on "The Supreme Court -- A F'esh Look"

128th 'eport on "Cost of Litigation"

129th report on "Urban Litigation -- Mediation as
Aiternative to Adjudication"

139th report on "ConF1iots in High Court Decisions on
Centrri Laws -- Hon to Foreoiose and How to Reso1ve"
139th 'eport on "Urgent Need to Amend Order XXI, Ru1e

Code of Civii Procedure to Remove an anoma1y

nu11iFies the Benevoient Intention of the

and occasions injustice to

Judgment--Debtors sought to be benefited.

1AGth report on "Need to :mend Order V, rule 19A of
the Code of Civi1 Procedure, 1908, re1ating to service
of summons of registered post with a View to
foreclosing 1ike1y injustice"

iﬁﬁth report on "Conflicting Judioiai Decisions

werteining to the oh Civii Procedure, 1908"

155th report on Suggesting some amendments to the
Code of Civi1 Procedure (Act No.V of 1908)"

CHAPTER-II

Recommendations and Conclusions Regardin9\The Code of Civil

Procedure (Amendment) Bill. 1997

2.1 The law relating to the procedure in suits and civil
proceedings in India (except in the case of State of Jammu and
Kashmir, Nagaland and Tribal areas of Assam and certain other

area

) is contained in the Code of Civil Procedure, 1908
(he'einafter referred to as the "Code"). The Code has been
amended from time to time by various Acts of Central and State
Legislatures. The Code is mainly divided into two parts,
namely, sections and orders. while the main principles are

contained in the section

ft)

, the detailed procedures with regard

to the matt

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dealt with by the sections are specified in the
orders. Under section 122 of the Code, the High Courts have
powers to amend, by rules, the procedure laid down in the
orders. In exe'cise of these powers, various amendments have

been made in the orders by different High Courts.

2.2 with a view to implementing the recommendations'of
Justice Malimath Committee, 129th Report of the Law Commission
of India and the recommendations of the Committee on
Subordinate Legislation (11th Lok Sabha), and the resolution
adopted in the Law Ministers' Conference held in New Delhi on
30th June and 1st July, 1997 the Government introduced a Bill
calla: the Code of Civil Procedure (Amendment) Bill, 1997 for

amenjing the Code of Civil Procedure, 1908. The Bill

(Annexure--A) inter~a}ia, aims at expediting the disposal of
eivii suits and proceedings so that justice may not be delayed
(see para 2 of the Statement of Objects and Reasons annexed
with the Amendment Biii). The Biii 'also seeks to amend
zertain provisions of the Limitation Act, 1963 and the Court

Fees Act) i8TG.

2.3 The Amendment Biii see s to make some of the foiiowing
important changes in the Code of Civii Procedure, 1308 (as

indicated in the Stctement of Objects and Reasons annexed with

"(r} any piaint to be Fiied ehaii be in dupiioate
and shsii be accompanied by ail the documents on which
the niaintiff reiies upon in support of his ciaim. It
is aiso to he supported by an affidavit stating tie
nendinen:ss of the ciaim of the piaintiff and of the
documéﬁts on which he reiiee upon;

'n tupiioate shaij be

if ' . 11 be Fiied

days from the date of
1

serv-ce of summons. written statement 's aiee to be
supported Jy an affidavit;

(=} in order to obviate dei

summons, it is proposed that piainti

enmmons from the court and send it to the parties,
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within two days of the receipt thereo , by post, Fax,
e~maii, spee post, courier service or by such other
mean: 1: may he directed by the court;

id} with a View to impiement the 129th Repert of
the Law Commission of India and making toneiiiation
scheme effective, it is'proposed to make it obiigatory
for the court to refer the dispute, after the issues
are Framed, for settiement either by arbitration,
con«»iiation, mediation, judieiei settiement or
tuinngh Lot Aﬂaiat It is unly after the parties Fail
to get their disputes settaer through any one of the

s aiternate dispute resolution methods that the suit

i shaii proceed Further in the court in which it was
fiied;

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(e) As maximum time is consumed by the
recording oral evidence which causes delay
or cases, it is proposed to reduce such delay by
making provisions For filing of examination--in--chief
of every witness in the form of an affidavit. For the
cross--examination and re-examination of witnesses, it
is proposed that it shall be 'ecorded by a
commissioner to be appointed by the court and the
evidence recorded by a Commissioner shall become part

_courts in
in disposal

of record of the suit;
(T) with a view to implement the 'ecommendations
of the Committee on Subordinate Legislation (11th Lok

Sabha) relating
adjournments,

to steps to reduce unnecessary
it is proposed to make it obligatory for
a judge to record 'easons for adjournment of a case as
well as award of actual or higher cost and not merely
notional cost against the parties seeking adjournment
in Favour of the opposite party. Further, it is
proposed to limit the number o adjournments to three
only during the hearing of a case'

'V'!

/3) As the party in whose favour an injunction has
been granted usually causes delay on flimsy and
unreasonable grounds, it is proposed that the party

who applies for iijunction shall also furnish security

so that that party may not adopt delaying tactics
during the trial of the case;
(h) In matters relating to property disputes,

particularly in matter of unauthorised construction on
the land of others, it has been found that, under the
existing provisions of the Code of Civil Procedure, no
application for injunction ,can be moved unless the
suit is filed first in the court having competent
jurisdiction. with a view to obviate this hardship,
it is proposed that a person.may make an application
to the court of competent jurisdiction for appoinment
of a commission to ascertain the factual status of the
property so that at the time of filing of regular
suit, the report is available to the Commissioner
'elating to the factual status of the property in"
dispute;

ith a view to implementing recommendations of
.8. Malimath Committee, it is proposed that
e' asaeal against the judgment of a single
l 'e even in a petition under article 226
he Constitution; and -

with a view to 'educe delay, it is p'oposed
the court shall, on the date of pronouncement of
n simultaneously provide authenticated copies
of the judgment to the parties. Appeal shall be filed

... . »o.a»-av

in the court which passes the decree and no notice
sha11 be served on the advocates of the parties in the
' court of first instance.

3. The Bi11 seeks to achieve the above objects."

2.4. A perusa1 of the Amendment Bi11 shows that there are
36 ciauses which contain various amendments, substitutions,
omissions and insertions. »The Amendment Bi11 aiso contains
notes on ciauses of the Bi11 which furnish the necessary
background for amending the existing provision or for
insertion of new provision in the Code. A memorandum
regarding deiegated 1egis1ation points out the provisions
under which the Government or the High Courts can frame ruies.
For faci1ity of comparison with the existing provisions of the
Code which are sought to be modified by the Amendment Bi11, an
extract of such provisions is a1so appended to the Amendment

Bi11 at interna1 pages 23 to 38 thereof.

2.5. The Commission intends to specificaliy dea1 with and
make recommendations on the fo11owing ciauses in the Amendment
Bi11, name1y, ciauses 2, 7, 10, 11, 12, 13, 14,' 15, 16, 17,
18, 19, 20, 23,, 24, 26, 27, 28, 30, 31 and 32, which appear
to bring about radica1 changes in the Code. In respect of

other:c1auses of the B111, the Commission is in agreement with

the amendments suggested.

2.6 C1ause 2 of the Amendment Bi11 proposing to insert
sub-section (2) in section 26 making it obiigatory upon the
plaintiff to fi1e an affidavit in support of the fact§__§tgtgg

in the p1aint:- A simi1ar provision has been proposed in Order

VI. The proposa1 is to insert sub--ru1e (4) in Ruie 15 of
Order VI providing that "The person verifying the p1eading
sha11 a1so furnish an affidavit in support of his p1eadings".

0bvious1y, this wouid cover the written statement a1so.

2.6.1. The response of members of the Bench as we11 as the
Bar has been uniformiy against the above proposa1s. The
generai view expressed by them is that such a provision wou1d
oniy add to the deiays in disposa1 of suits. It was submitted
that there are enough provisions in the.existing law to dea1
with faise and maiicious averments in the p1eadings and that
this additionai requirement wou1d not make any difference. By
way of exampie, the participants in severai conferences
referred to a simiiar requirement in support of facts stated
is and counters and other affidavits fiied
in the writ proceedings which had in no manner operated as a
check upon the tendency to make faise statements. It was a1so
oiserved that the pieadings acquired the character of evidence

with the fi1ing of affidavit in support of the pieadings. In

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such an v nt, a party cou1d even caii the other party to
cross--examine him with respect to the facts stated in his

pieadings.

2.8.2. The Law Commission is, however, of the opinion that

extent, check the tendency to make fa1se averments in the
pieadings. In this connection, the Commission 'ecaiis the
Foiiowing oiservation of George Bernard Shaw..." the theory of

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1ega1 procedure is, if you set two Iiars to expose one
another, truth wi11 emerge". Probab1y it was meant as a
satire, made in his typica1 sty1e, on the type of p1eadings in
courts and to emphasise the tendency to make fa1se averments
in the pieadings. This tendency has certainiy to be checked.
Even if the parties in two to five per cent cases couid be
dea1t with appropriate1y for making fa1se statements in -the
pieadings, it would greatiy he1p in arresting this tendency.
In any event, the measures proposed may be tried out on an
experimentai basis and if it is found to cause further deiays,
as apprehended by many participants in the conferences, the
same couid be reviewed. It should, however, be clarified that
the party swears to the correctness of on1y the facts stated
in the pieadings and not to the questions or propositions of
iaw, if any, stated therein. It shou1d a1so be open to the
party to say in his affidavit which of the facts are true to
his know1edge and which of the facts he be1ieves to be true on
the basis of information received by him. It may not be
inappropriate to refer to observations of the Supreme Court in

the fo11owing cases:

In Dhananjay Sharma v. State of Haryana, (1995) 3 SCC
757, p.38, it was heidz

"...The swearing of fa1se affidavits in judicial
procedings not on1y has the tendency of causing

obstruction in the due course of judiciai proceedings

but has aiso the 'tendency to impede, obstruct and

interfere with the administration of justice... The'

due process of law cannot be permitted to be siighted
nor the majesty of 1aw be made a mockery by such acts
or conduct on the part of the Vparties to the
litigation or even whiie' appearing as witnesses.
Anyone who makes an attempt to impede or undermine or
obstruct the free ficw of the unsoiied stream of
justice by resorting to the fi1ing of fa1se evidence
commits criminai contempt of the Court and renders
himseif 1iab1e to be dealt with in accordance with the
Act. Fiiing of faise affidavits or making fa1se
statement on oath in Courts aims at striking a b1ow at
the Ruie of Law and no Court can ignore such conduct
which has the tendency to shake pubiic confidence in
the judiciai institutions because the very structure
of an ordered iife is put at stake. It wou1d be a
great pubiic disaster if the fountaion of justice is
aiiowed to be poisoned by anyone resorting to fi1ing
of fa1se affidavits or giving of faise statements and

fabricating faise evidence in a court of 1aw. The

If!

.tream of justice has to be kept ciean and pure and
anyone soiiing its purity must be dea1t with sterniy
so that the message perco1ates ioud and ciear that no
one can be permitted to undermine the dignity of the
court and interfere with the due course of judiciai

proceedings or the administration of justice...

In Mohan Singh v., Late Amar Singh through the gﬁs,
1998(5) SCALE 115, the Supreme Court stressed the consequences

of fiiing faise affidavits in courts, by hoiding as under:-

"35...Tampering with the record of judiciai
proceedings and fi1ing of faise affidavit,in a court
of iaw has the tendency of causing obstruction in the
due course of justice. It undermines and obstructs
Free fiow of unsoiied stream of justice and aims at
striking a biow at the ruie of 1aw. The stream of
justice has to be kept ciear and pure and no one can
be permitted to take iiberties with it by soiling its
purity. Since, we are prima facie satisfied that the
tenant has fiied Faise affidavits and tampered with
judiciai record, with a view to eradicate the evi1 of
perjury, we consider it appropriate to direct the
{ Registrar of this Court to fiie a comp1aint before the

appropriate court and t the criminai 1aw in

an
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motion...

In view of these ruiings, the Law Commission considers

thrt the suggezted amendment is appropriate.
2.7 Ciause 7 of the Amendment Biii proposing to insert
section 8:. enabiing and/or opiiging the Court to expiore the

prssibiiity of aiternative methods of dispute resoiution viz;.

-conciiiation, mediation. arbitration, judiciai settiement or

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ttiement through Lok"Adajat:-- Coming to the proposai, it may

be mentioned that there was good amount of debate on the same.

Almost a uniform'opinion was expressed by both the members of

the Bench and the Bar that the Court should not be asked to
undertake the exercise contemplated by proposed Section 89.
Doing so would invite comments and suspicion upon the
neutrality of the court as an impartial arbiter, it was

submitted. while formulating the terms of settlement or while

reformulating the terms of a possible settlement after

receiving the observations of the

parties, it maylhappen that

the court may be obliged to express some opinion on a

particular aspect of the dispute which may not be liked by one

of the parties. Some procedural absence

difficulties (e.g.

of provision for a reference to arbitration in a pending suit

in the present Arbitration Act) were also pointed out.

Accordingly, several alternatives were suggested by the

participants. One of the alternatives suggested was that

instead of inserting proposed section 89, the existing Order
XXXII-A may be suitably amended to cover all suits. Another
suggestion which appeared to have gathered large amount of
supaort was that after the issues were settled, every suit
should be necessarily sent to a committee or board of
conciliators comprised of senior lawyers and retired judicial
officers enjoying high reputation for integrity and
competence. Such a committee or board will decide, after

hearing the parties, whether the suit should be referred to

any of the alternative modes of dispute

(1)

resolution mentioned

in sub--seotion .cf' section 89. It was explained that

generally speaking, there was good amount of interval between

.. ...-,_ .

the framing of the issues and the commencement of the trial

and as such a mandatory reference to the committee or the

would really result in delaying the trial or the

board not,

disposal of the suit. some others, however, expressed an

apprehension that while this suggestion may be possible to

implement in cities and big towns where a number of. senior

lawyers and retired judicial officers were available, there

may be difficulties in implementing the same in smaller towns

where there was only one court and there were not enough

senior lawyers or retired judicial officers of high integrity.

2.7.1. The Law Commission is of the opinion that proposed

section 89 may be suitably modified to provide as under:

(a) After the settlement of issues in every suit (when both

the parties would have also filed their basic documents as

required by the proposed provisions relating to filing of

documents along with the pleadings), the suit shall be

referred to a board of conciliators to explore whether there

existed elements of settlement which were acceptable to the

parties and if it appeared to the board that such elements of

settlement did exist, they shall refer the suit for

arbitration, judicial settlement or settlement through Lok

Adalat. Method of conciliation could be tried by the Board

itself ound feasible. Such reference could be made either

after reformulating the terms of possible settlement if the

board Found the same feasible and advisable QL without such

reformulation, as the case

may be.

'.....a:o .-~4-um

(b) The presiding Officer of the principai civi1 court

in every city and town sha11 constitute, in consuitation with

his senior coiieagues, a Board of conciiiators consisting of

retired judiciai officers and senior iawyers of known

integrity and competence.

board of conciiiators shaii compiete its work i.e., either
refer the suit to arbitration/judicial settiement or
settiement through Lok Ada1at-- or bring about a settiement

through conciiiation --if it finds that such a course was

advisabie QL report to the court that it couid not find any
eiements of settiement which might be acceptabie to the
parties and that, therefore, any reference of the suit to
arbitration/conciiiation/judiciai settiement or settiement
through Lok Adaiat was not warranted or advisabie. This
period couid range between 4 months to one year, as may be
specified by each court.

(d) To deiete the aiternative mode of "mediation"

under ciause (2) of sub--section (1) of the proposed

Mediation by a court couid be resorted to at any

stage of the proceedings and it shouid not be stipuiated as a

matter of iaw either at the stage of the issues or at any

Such a course is aiways open to the court
define or codify it. Accordingiy,

(2) of Section 89 might be deieted.

Section 89 may be redrafted in the light of the

aforesaid recommendations.

2.8 Clause 10 of the Amendment Bill proposing to
substitute existing section 100A:- By virtue of this
amendment, the Letters Patent Appeal against the judgement and
decree of a single Judge made in an appeal preferred under
section 96 of the Code as well as the Letters Patent Appeal
preferred against the judgment and order of a single judge in
an application made under article 226 or article 227 of the
Constitution is sought to be done away with altogether.

2.8.1. So far as the proposal to abolish the Letters Patent
Appeal against the judgment and order of a learned single
judge made on an application under article 226 is concerned,

ther

III

W51

0')

a strong and uniform opposition against the proposal
from both the members of the Bench and the Bar. Such a move
would only result in adding enormously to the burden of the
Supreme Court because the only remedy_then available would be
to approach the Supreme Court under article 136 of the

Constitution.

2.8.2. so far as article 227 is concerned the position is the
same. However, the procedure followed by different High
Courts in this behalf is not uniform. For example, in the
High Court of Andhra Pradesh-- and probably in some other
southern High Courts too,Man application under article 227 of

the Constitution is treated and registered as a civil revision

petition. In such a situation, the'e is no question of any

Letters Patent Appeal against the order made on such an
application/petition. In some other High Courts,however, an
application under article 227 is generally treated on par with
an application under article 226. Yet another distinctive
practice peculiar to Allahabad High Court appears to be, that
by virtue of Uttar Pradesh High Court (Abolition of Letters
Patent Appeal) Act, 1962. Letters Patent Appeal' stands
abolished against the orders of single Judge made on a writ
petition (a petition under article 226 of the Constitution)
preferred against the judgment and orders of tribunals and

other quasi--judicial authorities.

2.8.3. The Law Commission is of the opinion that so far as
the proposal to abolish Letters Patent Appeal against the
judgment and order, whether interim or final of a single Judge

made on an application under article 226 or article 227 is

CONC-

III

rned, it is neither advisable nor desirable. Quite a few
of the writ petitions disposed of by single Judges in various
High Courts involve substantial stakes and have serious
consequences both for the State as well as the citizens." Very
tften, the writ petition is an original proceeding. At any
rate, it is an original proceeding in a civil court i.e., High
.ourt. There ought to be at least one appeal against the
order made by a single Judge on applications pneferred under
article 226. The proposed move is certainly not in public
interest because in many cases the public interest may suffer

such a proposal 'is"given effect to. The Law Commission,

therefore, strongly recommends against the move to abolish the
Letters Patent Appeal against the judgment and orders made by
a single Judge on an application made under article 226 or
article 227, wherever it is available at present. The
existing practice prevailing in various High Courts ought to
be continued. In fact, by virtue of the aforementioned UP Act
of 1962, a large number of appeals are being preferred in the
Supreme Court against the judgment and orders of single judges

made in writ petitions filed in the Allahabad High Court.

2.8.4. Now coming to the proposal to abolish the Letters
Patent Appeal against the judgment and decree of a "single
Judge made in an appeal against the original decree (i.e.,
under section 96 of the Code), two strands of opinions can be
said to have emerged in the various conferences and in the
responses received from the various governments, organisations
and individuals. while one view is to continue the existing
practice without any change, the other view is to limit this
right only to substantial questions of law arising from the
judgment of a single judge on the lines of section 100 of the
Code. A few participants supported the proposal in' its
entirety. The opinion ultimately expressed by a majority of
the?participants/respondents is that the provision of Letters
Patent Appeal against the interim/interlocutory orders made by
a single Judge in such first appeals should be done away with
though the letters patent appeal against the final
judgment/decree should be retained in a restricted fashion.

It was suggested by some"of the Hon'ble Judges of the High

Court that not many Letters Patent Appea1s were fiied against
the judgment and decrees of singie Judges in first appea1s and
that even among those fi1ed, a majority were dismissed at the

stag of admission itse1f.

It:

2.8.5. The law Commission is of the opinion that so far as
the fina1 judgment and decrees made in first appea1s (appea1s
preferred against the judgment and decree in an origina1 suit)
are concerned, it is both advisable as we11 as desirable that
the Letters Patent Appeai shou1d not be aboiished a1together
against such judgment and decree. The suggestion to restrict
the Letters Patent Appeai in such matters to substantia1
questions of Taw on1y on the Tines of section 100 of the Code
is Taudab1e and deserves to be accepted. This suggestion is
made in view of the fact that according to the Taw Taid down
by the Supreme Court and certain High Courts, in such Letters
Patent Appeais even questions of fact are open to review,
though as a matter of practice, the Letters Patent court
ordinariiy respects the concurrent findings of fact. Be that
as it may, the restriction of the Letters Patent Appeai to
substantiai questions of Taw a1one wouid not on1y restrict and
reduce the number of such Letters Patent Appea1s but wou1d
drastica11y cut down the admission rate of such appea1s. No
such appea1 shouid be permitted against interim/interiocutory

orders.

._ ._
2.9 Ciause 11 of 'the Amendment Bi11 proposing to
A
substitute the existing section 102:- By this amendment, not

on1y the va1ue of subject--matter of the suit is sought to be
raised from Rs.3000/- to Rs.25,000/--, even the existing
restriction as to the nature and character of the suit is a1so
sought to be done away with. In other words, according to the
proposed/substituted section 102, there sha11 be no second
appea1 at a11 where the amount or va1ue of the subject-matter

of the origina1 suit does not exceed Rs. 25,000/-.

2.9.1. Whiie some participants/respondents supported this
pronosai, quite a few of them opposed the remova1 of

restriction as to the nature and character of the suit whi1e

from Rs. 3000/- to Rs. 25000/--. It was pointed out by
several participants that having regard to the provisions
contained in section 11 of the Code incorporating the rule of
res judicata, many decrees made by the courts in suits the

vaiue of the subject-matter whereof is 1ess than Rs..

2 ,GO0/- may operate as res judicata even in matters of far

higher vaiue.

2.9.2. The Law Commission is of the opinion that whiie the
amount or value of the subject-matter of tie origina1 suit in
p'oposed section 102 be raised from Rs.25,000/ to §s.50,000/-,
the proposed removai of restriction as to the nature and
character of the suit may be dropped. (At present, the

provision is iimited to suits of the nature cognizabie by

courts of Sma11 Causes.) It may be remembered that a second
appea1 is not avai1ab1e on a11 points but is restricted .only
to substantiai questions of iaw. In such a situation,
aboiition of second appea1 aitogether in a11 matters the vaiue
of subject--matter whereof does not exceed Rs.25,000/- may not
be an appropriate step. The reason for the Law Commission
recommending the raising of monetary Timit from Rs. 25,090/to
Rs.50,000/- is that genera11y speaking, money suits are
comparativeiy simp1e suits which fact is recognised and
affirmed by the fact that the Legis1ature has thought it fit
to enact Order XXXVII--providing for summary procedure in many
money suits irrespective of the monetary va1ue thereof.
Situation may be different in the case if other types of
suits. In this connection, it may be recaiied that suits for
mere permanent injunction are vaiued at a Tow figure unreiated
to the vaiue of the subject--matter of the suit. This is

indeed permitted by the various court--fe

III
ff:

Acts. Therefore, a

provision of the nature proposed may resu1t in grave injustice
in such cases.
2.10 _C_.TaI.i.s.»::_._1.2 0.1" tJJ:2.Ar.n_e__cL_e_v11;_E3_i..]_i-..;:ropesing t.o deiete

the existing ciause (b) of the proviso to sub--section (1) of

Section 115 and the further addition of sub-Section L3) in
section 115.:-There was almost uniform opposition to the

proposai to deiete oiause (b) of proviso to sub--section (1) of
ion 115. It was submitted that such a power shouid be

avaiﬂabie to the High Court to correct instances of faiiure of

justice or of orders causing irreparab1e injury. It was
submitted that de1etion of the said o1ause wou1d on1y resu1t
in more remands by the appe11ate courts. Only a few members
of the subordinate judiciary in the State of Uttar Pradesh
supported this provision. So far as the insertion ' of

sub--sec.ion (3) is concerned, it was genera11y welcomed by

2.10.1. The Law Commission, whiie weicoming the insertion of
sub--section (3) in section 115, is of the opinion that the
p'oposa1 to deiete ciause (b) of the proviso to sub-section
(1) is not advisabie nor wouid it serve the purpose of' speedy
disposai of suits. May be, it is true, that in some States
interference under section 115 is being made very 1ibera11y
and without due regard to the restrictive language of the
section. That is certainiy a feature to be deprecated and
discouraged. The High Courts and the other authorities

exercising powers of revision (in the State of Uttar Pradesh,
I.
7

the power of revision has been conferred upon the District
Judges) shouid aiways bear in mind the significance, the

oaject and the purpose under1ying Section 99 of the Code.

IT'

Section 99 is premised on the supposition that each and ev ry
infraction of a procedure] provision in the Code does not

V1551!'

----

'ant interference by the appe11ate court and that int FF :1: «D (D r nce with a judgment and decree is warranted on1y where such infraction has resu1ted in 0':

ubstantia1 prejudice to the party. This is the spirit behind section 99 which says, No decree sha11 be "reversed or substantiaiiy varied, nor sha11 any case be remanded, in appeai on account of any misjoinder or non--joinder of parties or cause of action or any error, defect or irreguiarity in any proceedings in the suit, not affecting the merits of the case or the jurisdiction of the Court." But the proposal to deiete ciause (b) of proviso to section 115 (1) on the ground of frequent interference by the courts exercising powers of revision may not be warranted.

The remedy 1i III s eisewhere, nameiy, exercising restraint and se1f--discipiine whiie exercising power of revision. i noteduthat this ciause was inserted on the recommendations of It may be Law Commission of India, 27th report, pr.57 thereof at p.25. In this regard the reason underiying these provisions is quoted under pr.56 of the said report, are quoted be1ow:-

56. As regards the second question, the Law Commission after carefuiiy considering the views expressed before it, came to the conciusion that the right of revision against an interiocutory order is a vaiuabie right which shouid not be aboiished. The case for retaining the right of revision against an interiocutory order was fairiy put by an experienced Chief Justice who made the foiiowing statement before the Law Commission:-

"It is not unoften that a very wrong order is made. If it be made impossibie to chaiienge the order immediateiy and have it set aside and if the error is ieft to be corrected in fa 4 :3é~v~%r~= ......

the appeai from the fina1 order if and when such an appea1 is taken, the intermediate proceedings wi11 necessari1y a11 be on an erroneous basis and it can hardiy be just to compei the parties to submit to the order without any chance of instant redress."

The Law Commission in the Fourteenth' Report according1y recommended that the expression case decided" in section 115 shouid be so defined as to inc1ude an interiocutory order. Necessary amendment is proposed in section 115."

The Commission feeis that the reasons assigned for introducing this c1ause in Section 115 as quoted under pr.56 of 27th 'eport of Law Commission are germane and iead to the conciusion that the said provision shouid be retained. The Law Commission, therefo'e, recommends that the proposai to deiete ciause (b) of proviso to sub--section (1) of section 115 be given up. The addition of sub-section (3) is, however, 13 of the Amendment Bi11 seeking to substitute not exceeding 30 days in totai "in the p1ace of the existing words "such period":- Section 148 provides for eniargement or extension of time Fixed or granted under the ord rs of the court. -The proposai to iimit the discretion of «Ir the court in this behaif to a totai period of 30 days has been uniformiy opposed by a11 the participants as unduiy fettering the discretion of the courts.

2.11.1. The Law Commission is aiso of the opinion that no such restriction shouid be piaced in section 148. Situations may arise where the interests of justice may ca11 for exercise of power under section 148 even beyond the period proposed to be stipuiated. Any such restriction of time may in some cases even Tead to fai)ure of justice. The proposai may, therefore, be dropped.

Amendment of Orders 2.12. Ciause 14 of the Amendment Bi11 proposing to amend syb-ruie (1) of ruie 1 of Order IV and proposing to insert §gb--ru1e (3) in ruie 1 of Order IV.:-- The amendment to sub-rule (1) is formai in nature and is not opposed. But, so far as the proposai to insert sub-ruie (3) is concerned, it was apprehended by many of the participants in the various conferences that such a ruie may Tead to innumerabie compiications. Sub-ru1e (1) of Ruie 1 of Order IV provides th:t every suit sha11 be instituted by presenting piaint to the court or such officer as it appoints in this behaif whiie sub-ruie (2) says that every piaint sha11 compiy with the ruies contained in Orders VI and VII, so far as they are appiicabie. The proposed sub--ru1e (3) says that a piaint shaii not be deemed to have been duiy instituted uniess it complies with the requirements specified in sub-ru1es (1) '(2)-

The defendant that the piain reduirements of Order VI de1aying the suits further.

Timitation aiso, the proposed sub-ruie (3) may considerabie difficu1ty.

the date of presentation fiiing of suit. This proposed sub--ruie (3) is which indicated within presentation of piaint mu m. a 32 and proposed ruie wou1d give room for objection by the t does not conform to one or the other or Order VII, which may contribute to Moreover, from the stand point of give rise 'to The existing Tegai position is that of piaint is treated as idate of ru1e may become inapp1icab1e, if the inserted. A time--1imit couid be aii defects in and objections to are to be rectified. The Law Commission, therefore, recommends that the proposed sub--ru1e (3) may be dropped and instead a time--1imit may be prescribed within which a11 defects in and objections to the presentation of piaint have to be rectified. An outer time-Timit of 30 days wouid apnear appropriate.

2 13. Ciause 15 of the Amendment Biii seeking to amend sevev:1 Rules in Order V:- We may dea1 with each of the ruies proposed to be amended separate1y.

(1) Amendments proposed to Ru1e 1(1):

The existing sub-ru1e (1) of Ruie 1 of Order V provides that "when a su therein it has been duiy instituted, a summons to the defendant to appear and answer the ciaim specified: Provided that no such summons sha11 be issued when the defendant has appeared at the presentation of the p1aint and admitted the p1aintiff's c1aim:

Provided further that where a summons has been issued, the Court may direct the defendant to fi1e the written statement of his defence, if any, on the date of his appearance and cause an entry to be made to that effect in the summons". According to the proposed/substituted sub-ru1e (1) the defendant is required to fi1e his written statement "on' such day within thirty days from the day of institution of the suit as may be specified therein" in the summons. Though the first proviso is not proposed to be am II:

nded, the second proviso as amended, provides that where the defendant fai1s to fi1e a writt II» n statement on the date prescribed in the main body of subjru1e (1), the defendant sha11 be a11owed to fi1e the same "on: such other day which sha11 not be beyond thirty days from the date of service of summons on the defendant, as the Court may think fit". It is true that the proposed amendment is inspired by a concern for expeditious progress of the suit but 1

--r

-t ah lI' same time, it is necessary to take into account the practica1 irob1ems and, the rea1iti s of the situation whi1e III In 'ixing .uch mandatory time 1imits. A11 the suits are 'not ff:

--l 'mp1e in nature. Some of them are comp1icated, ca11ing for a good amount of preparation by the defendant before he can fi1e ,a written statement. It may happen that in some cases the defendant may be required to gather goor amount of materia1 ore he can fi1e his written statement. some c1arifications may a1so be necessary to be asked for by the defendant with respect to statements in the p1aint. A11 this cannot happen within the period prescribed in the proposed sub-ruie (1). while some participants, particu1ar1y the members of the Bar, suggested that there shou1d be no such time Timits and that the fuie shouid mere1y direct the court to ca11 upon the defehdant to fi1e his written statement at the ear1iest, having regard to the facts and circumstances of the case, some other members, particu1ar1y members of the Bench, strongiy supported mandatory time Timits For fi1ing the written statement. However, even the Tatter c1ass of participants agreed that the time Timits proposed in sub--ru1e(1) were unreaiistic and might resuit in faiiure of justice in some cases. There was consensus that the words "within thirty days from the day of institution of the suit" in the main body of the proposed sub--ru1e(1) shou1d be substituted by the words "within sixty days from the day of institution of the suit" and simiiariy, in the second proviso, the words "thirty days from the date of s rvice of summons on the defendant" shou1d (D be substituted by the words "ninety days from the date on which the period of sixty days aforesaid expires".

2.13.1. The Law Commission agrees with the view that the time Timits proposed in sub-ru1e(1) in the Amendment Bi11 are harsh and might resuit in fai1ure of justice in some cases. This may be particuiariy true in suits where the Government happeis to be the defendant. Experience shows that in cases where 1 Government i. th I'D defendant, it is not as p'ompt as a private party in Fi1ing the written statement. Beca C it-

s of the very nature of the working of the government departments and the requirement of coordination and interna1 correspondence between one department and the other, it generaiiy requires a Tonger tim 11' for fiiing the written statement. It is true that in the interest of speedy disposai of the suits, the period for fiiing the written statement should be curtaiied but it shou1d not be done in such a manner as to prove counter-productive. The Law Commission is, therefore, of the opinion that the words "thirty days" in the main body of sub-ru1e(1) shou1d be made 'sixty days" and the period of "thirty days" prescribed in the second proviso to sub-ru1e(1) should be made ninety days and this period of ninety days shouid be caTcu1ated from the date of expiry of sixty days prescribed in the main body of sub--ru1e(1).

(ii) Proposed substitution of Ruie 9:

2.13.2. The proposed substitution of ru1e 9 provides for sending the summons to the defendant by other suppiementary means present1y not specified in sub--ru1e (1) of Ruie 9. The existing sub--ru1e aiso piaces the duty of serving the summons upon the p1aintifF. Sub--ru1e (1) says that "The Court sha11 1 sue summons and deiiver the same to the piaintiff or his :1! (C.-

III nt For service . . . . . . . .." Whiie there was a generai we1come II:

to the proposed sub--ru1e(1), which eeks to take advantage of the new and modern methods of communication Tike speed post, courier service, Fax and E.mai1, there was uniform opposition, both from the members of the Bar and Bench, to the proposai to i deiiver the summons to p1aintiTF for being served upon the defendant. It was submitted that the summons shouid be sent in any of the modes specified in sub--rule (1) to rule 9 by the court itself, though at the expense of the plaintiff. An apprehension was expressed by many participants that delivery of summons to the plaintiff for service upon defendant may provide room for mischief and fraud. The Law Commission agrees with the same and accordingly recommends that while sub--rule (1) of Rule 9, as proposed, may be adopted the words in the said sub-rule which provide for delivering the summons to the plaintiff or his agent for service upon the defendant should be deleted and the service of summons in any of the modes specified by the Code should be iy the court itself, no doubt at the expense of the plaintiff.

2 13 3 So far :s sub-rule (2) of new Rule 9 is concerned, it also requires to be amended in the same terms. In other words, sending of summons through court in the traditional mode shall be by the Court itself and not through plaintiff.

It was suggested that the sub--rule may stipulate that the II» office/Registry of th Court shall send the summons within seven davs of the filing of the summons with 'equisite charges by the plaintiff .1 I'_. ) .4. It was alwo I\) If! suggested by some of the respondents/participants_that sub--rule(3) must provide further that where endorsement was made by a postal employee or any authorised person that the defendant or his agent had refuscd to take delivery of the postal article containing the summons z or refused to accept the summons by any other modes specified in sub--ru1e(1), the Court sha11, before deciaring that the summons had been duiy served upon the defendant or his agent, make an appropriate enquiry and make such dec1aration on1y on being satisfied that the endorsement was true. For this purpose, the court shou1d be empowered to summon the postal emp1oyee or other authorised person and to record his statement on oath wherever ca11ed for. The Commission in its 140th Report pr.6.1 observed that we cannot over1ook' the fairﬂy iarge number of reported cases in which injustice might have; resuited by reason of a fraud practised with the he1p of a dishonest postman or 1apse in tendering the artic1e to a wrong person. In view of this, the Law Commission agrees with this suggestion.

Proposed new Ruie 9-A:

2.13.5. It was suggested by the participants and it is a1so the opinion of the Law Commission that the opening words in sub-ru1e(1) of the proposed Ru1e 9--A shou1d read as fo11ows:

"The Court sha11, in addition to and simu1taneous1y with the issuance of summons in the manner provided in Ruie 9....".

In other words, the norma1 mode of deiivery of summons through Court shouid be mandatory and obiigatory and sha11 be in addition to any modes of service specified in sub-ru1e(1) of Ru1e 9. Other amendments proposed in Order V are in order.

2.14 C1ause 16 of the Amendment Bi11 proposing to amend certain ru1es in Order VI:-- (i) Sub--c1ause (i) of c1ause 16 of the Amendment Bi11 proposes to omit Ru1e 5 of Order VI. The said ru1e enab1es the court to direct the parties to furnish better statement of the nature of the c1aim or defence.or further and better particu1ars of any matter stated in_ any p1eading. This ru1e is perhaps sought to be omitted on the ground that it is unnecessary in view'of the provisions for serving the interrogatories and the provisions re1ating to discovery and inspection. (Note on this c1ause indicates that the omission is being effected consistent with other changes proposed in the Code). Though there was some opposition to this de1etion from among some of the participants, the Law Commission is of the opinion that existing Ru1e 5 can be

0. safe1y omitte

(ii) The proposed insertion of sub-ru1e(4) after sub--ru1e (3) in Rule 15 providing that the person verifying the p1eading sha11 a1so furnish an affidavit in support of his p1eadings has a1ready been discussed by the "Law Commission under paragraph 2.6., supra.

(iii) The proposa1 to de1ete Ru1e 17 (and the consequentia1 3*ovision in Ru1e 18) of Order VI has been opposed uniform1y by a11 the participants, whether members of the Bar or of the Bench. A11 the participants p1eaded for 'etaining Ru1e 17 but 1'. H III It:

'F W it! re two different strands of opinion in this regard.

Recording to one view, the present ru1e shou1d be 1eft untouched. It was pointed out that in appropriate cases, the $upreme Court had granted the amendment of p1eadings at the stage of appeai to the Supreme Court. It was a1so observed that any number of situations may arise inciuding the subsequent changes in iaw and the subsequent discovery of new and reievant facts, which may caii for amendment of the pieadings. In such a situation, it was suggested, the power of the court to grant amendment on appropriate terms_ shouid not be interfered with in any manner. According to the other strand of opinion, this power of amendment shouid be restricted. Members of the Bench, in particuiar, suggested that no appiication for amendment shouid be entertained once the triai of the suit had begun. In other words, a11 the amendments shouid be effected before the trial opened. Once the triai had commenced, no amendment shouid be granted except where such an amendment was caiied for by a subsequent change in iaw or the happening of a subsequent event necessitating such amendment. According to this view, the provision for amendment of pieadings was being misused by parties with a view to deiay the triai and to harass the other side. It was submitted that very often appiication for amendment was fiied on the date when the suit was posted for triai oniy with a viewito stopping commencement of the triai because the party was [not 'eady or it was not convenient for it to go on with the triai on that occasion. It was suggested that such attempts and tactics shouid be discouraged and it was for this '.

ID 113 U:

n that the suggestion had been made that no amendment shouid be aiiowed to be appiied for once the triai opened and that no such appiication shouid be entertained on the date on which the triai was to commence. The Law Commission is of the opinion that this Dower of amendment of pieadings shou1d not be taken away. At the same time, however, it is necessary to ensure that this Drovision is not abused and is not used as a means of delaying the commencement or progress of the triai.

The Law CONWISSIOH. aCCOFdin91Y. agrees with the second strand of thought afOFementioned. In other words, the Ruie shouid state that no amendment of pieadings sha11 be granted and no such application for amendment shouid be entertained, on the date the triai is to commence except where the Court feeis that subsequent to the VFamih9 of the issues or on account of any fart coming to the sLL_ knowiedge of the appiicant after framing of 'I L'?

m.

issues which he couid not have discovered, with due diiigenge before the framing of the issues. Once the triai commences, no amendments shouid be aiiowed except where it is found necessary on account of the subsequent events whether iegai or factuai as mentioned above. Ruie 18 being consequential in nature, does not ca1T for any separate comment.

2.15 Ciause 17 of the Amendment Bi11:- (i) Ciause 17 Of the Amendment Biii proposes changes in Ruie 9 order VII deaiing with the procedure on admitting piaints. The pr0D0$51§ is to substitute Ruie 9 in Order VII. This may be effected:

the amendment is necessitated by a change in Taw effected' subject to the caveat that the service of summons' shou1d not be by the piaintiff but through the court as discussed hereinabove whi1e deaiing with Order V.

(ii) The additional grounds on which the piaint can be rejected as proposed in sub-ciause (ii) of ciause 17 of the Amendment Biii couid aiso be inciuded subject to the rider that it shouid be c1ear1y indicated that the faiiure refer*ed to in each of the proposed sub-ciauses (e), (f) and (g) in ru1e 11 of Order VII, shouid be a repeated fai1ure.

(iii) The proposed substitution of Ru1e 14 is a step in the right direction but the on1y thing suggested by the participants -- with which the Law Commission agrees -- is that the plaintiff shouid not be compeiied to fiie the originai document where he apprehends that it may be tampered with"

whiie in the custody of the registry of the Court. It shou1d be open to the piaintiff to Fiie the xerox copies of those racuments which he apprehends may be tampered with whiie in the custody of the registry of the court. But, he sha11 be under an obiigation to produce the same at the tria1 or as'and when caiied upon by the court.

2.15.1. A number of participants suggested that sub-ru1e(3) of Ruie 14 shouid be so worded that for speciai reasons to be recorded, the court shouid be empowered to aiiow the piaintiff to produce a document or copy thereof which he has not fiied with the piaint. According to the Commission, this is a good Y, I suggestion. sub--ru1e 3 of Ru1e 14 may according1y be re-cast so as to enab1e the court to permit the p1aintiff to produce a document or a copy thereof which he has not fiied a1ong with the'p1aint.

(iv) The proposa1 to de1ete existing Ru1e 15 of Order. VII is in order in view of Rule 14 (2) of Order VII as proposed in the Amendment B111.

(v) Sub--c1ause (V) in c1ause 17 of the Amendment Bill proposes to omit the words "without the Teave of the Court" in sub-ru1e (1) of Ru1e 18. This proposai is consistent with the' formuiation in proposed Ruie 14.

2.16 Ciause 18 of the Amendment Bi11:(i) The proposed/substituted ru1e 1 in Order VIII provides that the defendant shail at or before the first hearing or within such time as the Court may permit, which sha11 not ~be beyond 30 days from the date of service of summons on the defendant, present a written statement of his defence. This aspect has been discussed and dea1t with when deaiing with Order V, hereinabove. For the reasons mentioned ear1ier, the periods prescribed For fiiing the written statement shouid be as suggested by the Law Commission whi1e discussing-the proposed amendments in Order V. (ii; Ruie 1A sought_to be inserted in Order VIII is on the same Tines as the proposed/substituted Ru1e 14 of Order VII. Therefore, whatever we have said with respect to proposed Ruie 14 of Order VII applies in a11 respects to this proposai as we1T.

(iii) The proposed deTetion of Ruie 8A is consistent with pro3ose- Ruie 1A and is, therefore, unobjectionabie except to the extent that the power of the court to permit the defendant LO produce a document, which he did no produce with the written statement, shouid be retained with the rider that such power couid be excercised on1y for specia1 reasons to be recorded.

(iv) The proposed deietion of Ru1e 9 appears to be rather 'n:dvis:bTe It 18 one thing to say that no pieading subsequent to the written statement of a defendant sha11 be aiiowed to be presented rnd it is a different thing to deiete Ruie 9 aim I I Jgether. By de1eting Ruie 9, the opportunity to fi1e'a subsequent iieading by way of defence to a set off or connter--c1aim wouid also be taken away which is a very serious thingr J3 din Such an cmmmndnmiity avaiiadnie to the defendant ought not to be taken :w:y. Neither the objec s and reasons appended to the Bi11 nor the notes on ciauses appended to the Si}? furnish any reasons for the deietion of Ruie 9. In Smt Shant: Rani Dis Dzwanjee v. Dinesh Chandva Day (Dead) By

-P§_ i977f6\ SCALE 260, it w:s heid whiie referring to "2.... It has been heid by this court that right to fi1e a counter-claim under Order VIII Rule 6A of the Code of Civii Procedure is referab1e to the date of accruai of the cause of action. If the cause of action had arisen before or after the fi1ing of the uit, and such caus of action continued upto the date (/1 CD of fiiing written statement, or extended date of fiiing written statement, such counter--cTaim can be fiied even after fiiing the written statement..."

In Shri Jag Mohan Chawia v. Dera Radha Swami Satsang, 1996(4) SCALE 585, 587, it was observed regarding the iimitations under Ruie 6A:-

1 , "5... The on1y Timitation is that the cause of action ' shouid arise before the time fixed for fiiing the written statement expires, The defendant may set up a :ause of action which has accrued to him even after the institution of the suit..."

The Law Commission is, therefore, of the opinion that either the proposai to de1ete Ru1e 9 may be dropped or it shouid be so worded that a pieading subsequent to the written statement of a defendant shaii be permitted oniy by way of defence to a set off or by way of a counter--:1aim.

(v) The proposal to delete Rule 10 of Order VIII means that the court is now free to make such order as it thinks fit on the failure of the defendant to file a written statement. Probably, the idea behind the deletion is that Rule 10 is superfluous since it states the obvious. May be, Rule 10 is mone in the nature of guidance to the court. On the failure ofi the defendant to file the written statement, it is open to the court either to pronounce judgment against the defendant or to make such appropriate order as it thinks fit in the fact. and circumstances of the case. Indeed, Rule 10 does not contribute in any manner to the delay in disposal of suits. May be, it would be more appropriate to retain the rule than to delete it.

-A'! |I lau I'll e 19 of the Amendment Bill proposing to l'\) C) ti ff ub U:

I/I ute Rule 2 and to amend Rule 5 in Order IX:- (i) The proposed Rule 2 as substituted in Order IX says that "Where on the day so Fixed it is Found that the summons has not been (I:

ent within the stipulated period of two days, to the CL efendant by the plaintiff or his agent or [sic] in conseruence of their failure to pay the court-fee or any charges, if any chargeable for such servic , the court shall III make an order that the suit be dismissed." (It is not necessary to refer to the 3FQVl50.) Inasmuch as the Law Commission is recommending that the summons be sent through court (and not by the plaintiff), no doubt at the expense of the plaintiff, this Rule requires to be reworded accordingly.

The penaity shouid be for not paying the requisite charges, court fee and/or for not taking steps necessary to enabie the Court to send the summons.

(ii) The amendment to Ru1e 5 is designed oniy to cut down the period for app1ying for fresh summons from one month to seven days. The amendment is unobjectionab1e.

2.18 Ciause 20 of the Amendment Bi11 proposing to amend Order X:-- C1ause 20 of the Amendment Bi11 proposes to insert ruies 1A, 1B and 1C after Ru1e 1 and aiso proposes to amend Ruie 4 of Order X. So far as proposai to insert Rules 1A, 1B and 1C in Order X is concerned, it may be observed that they

-r are on she same pattern as in proposed section 89 except for the distinction in the ianguage emp1oyed in Ruie 1A of this Order and the proposed Section 89 which is sought to be cf inserted Jy c1ause 7 of he Biii. Ru1e 1A reads as if the court is under a mandate to ask the parties to opt for either mode of sett1ement outside the court as specified in the proposed section 89(1) and that this shouid be done after recording the admissions and denia1s. On the other hand, the proposed section 89 is couched in an enabiing ianguage. It ehabies the court to take these specific steps if it appears to it that there exist eiements Lf settiement which may be acceptabie to the parties. Be that as it may, the opinion expressed by the Commission with respect to section 89 shou1d /J a. we11 be reievant in res ect o Ru1es 1A, 1B and 1C as proposed in Order X. Indeed, Rules 1B and 1C merely state the obvious while Rule 1A, as stated above, is really intended to effectuate the provision in the proposed section_89.

(iii) Amendment to Rule 4(1) is only by way of cutting down the time limit and is a step in the right direction.

2.19 Clause 23 of the Amendment Bill: By this clause, Rules 1 and 2 of Order XIII are sought to be substituted. The amendments are in accord with the provisions contained in proposed Order VII Rule 14 and proposed Order VIII Rule 1A. Indeed, proposed Rule 1 of Order XIII expressly contemplates situations where the original documents are not filed but only copies thereof are filed with the plaint or written statement, a matter referred to by Commission while dealing with amendments in the said Orders. The obligation created by the clause under consideration is to produce the original before the settlement of the issues. It would be more appropriate if the strge at which originals are to be produced is left to the isdretion of the court. It can be done even at the time of trial. The matter should be left to the discretion of the court. It would be for the court to direct the parties to produce the original documents at the appropriate stage. with this clarification, the amendments proposed in Order XIII can be said to be in order.

may 2.20 Ciause 24 of the Amendment BiT1:-- (i) The amendment in Ruie 4 of Order XIV is in order. It mere1y seeks to out down the time limit.

(ii) The proposai to deiete Ru1e 5 of' Order XIV, however, is questionabie. It was pointed out by the participants/respondents that the power of amending the issues or framing of additionai issues shouid aiways be avaiiabie to L'?

he court and that the said power shouid be avai1ab1e to be at» «I-

x rcised at any stage of the suit. The existing Ruie 5 a1so I I empowers the court to strike out issues which in it. opinion are wrongiy framed or unnecessary. The Commission is of the opinion that there is no sound reason to deiete Ruie 5.

2.21 C1au-e 26 or the Amendment Bi11 :-- This ciause of the an Amendment Bi11 seeks to substitute sub--ru1e (1) of Ru1e 1 of Order XVII and aiso to amend sub-rule (2).

(i) Sub--ru1e (1) of Ruie 1 as sought to be substituted requires the court to record reasons in writing for every

- I .

adjournment of the hearing of a suit.' Furthermore, the proviso piaces a ceiiing upon the iumber of adjournments which can be granted to a party during the hearing of the suit Evidentiy, the adjournment contemp1ated by this sub-rule is an adjournment granted at the request of a party and not an adjournment occasioned on account of the court not being abie to take up the case or any other reason for which the court is Ito not abie to take up the cas . Even so, the members of the Ear '.

I I I strongiy opposed the proposed amendment whiie the members of the Bench supported the amendment. One of the suggestions put forward by the participants was that no adjournment shail be granted at the ora1 request of a party and that every request for adjournment shou1d be made by way of an app1ication. The appiication shou1d either be verified by the advocate concerned or it shouid be supported by an affidavit of the party. Another suggestion put forward was that instead of piacing a cei1ing upon the number of adjournments which can be granted to a party at its request, awarding of costs shou1d be made obiigatory for each such adjournment and that the costs shouid ascend steep1y with every succeeding adjournment. In other words, if the amount of cost awarded for the fi'st adjournment is Rs.100/- the .osts to be awarded for the second F') adjournment shou1d be three hundred and so on. Yet another suggestion put forward was that where an adjournment was granted with costs, the costs awarded to the other side shou1d be the fu11 costs which are incurred and not an arbitrari1y determined figure. By way of exampie, if in a given case the party brings iis witnesses for examination but the other side asks for an adjournment, the fu11 and actuai costs incurred by the party for bringing the witnesses and for making a11 necessary arrangements in that behaif for proceeding with the suit shouid be reimbursed by the party asking for adjournment. In this connection it was submitted that ciause (e) of the proviso to ru1e 1 of Order XVII shouid be amended by substituting the words #:may, if it thinks fit" occuring therein with the word "sha11"; another view expressed in this 50 behalf was that the words to 'be substituted ought to be "shaii, uniess the court records speciai reasons therefor".

The members of the Bench submitted that uniess a cei1ing is piaced upon the number of adjournments which couid be granted to a party, prompt disposai of the suits could not be ensured. It was submitted that the members of the Bar bring pressure in severai ways upon the courts to grant 'adjournment. Very often, the opposing counsei does not oppose the request.

Sometimes, -a request is made by both the parties, even where the suit is posted for tria1- and the CCJFt feeis helpiess. Some of the iearned triai judges suggested that once the suit was posted for triai and the court was in a position to it up on that day, no adjournment whatsoever shouid be granted ither at the request of one party or at the joint request of both the parties, uniess of course it was a case of a death of a party or gsome other supervening reason which made the adjournment inevitabie.

2.21.1. In this connection, we must mention an interesting discussion which took piace at the conference ie1d_ at Aiiahabad. .In the Aiiahabad High Court, there is a pecuiiar practice preyaient over a 1ong number of years according to a Counsei seeking adjournment on the ground of his need.not send an appiication nor is it necessary that ' is made by him or some other counsei on his behaif, in the court. What is being done is that a siip caiied 'iiiness siip' is sent to the Court Master/Bench Cierk. iiiness On 'eceiving the siip the Court Master/Bench Cierk take' \ automatica11y adjourns the case without even bringing it to the notice of the presiding Judge or the Judges constituting Ithe Bench. The counsei on the other side too is not informed. 'Admitted1y, there have been severaT instances where an advocate sends such an iiiness siip in one court of the High Court whiie he is found arguing or present in another court on the same day. The Judges of the Aiiahabad High Court strongiy pieaded for putting a stop to this unhoiesome practice which is very often resuiting in abuse of_process of the court. The members of the Aiiahabad High Court Bar who were present and participated in the conference tried to justify the said system though they did admit that it was being abused by some advocates. The Law Commission is of the opinion that this insidious practice must be put an end to. The practice may have originated in some distant past. It is not ciear in what circLmstances and for what reasons such a practice began. The fact, however, remains that not oniy is it a practice not sanctioned by the Code, it appears to run counter to the very discip1ine, dignity and decorum of the court. It is high time, it is put an end to. It does not aiso appear to be prevaient in any other High Court.

2.21.2. In the 1ight of the above discussion, it is obvious |that the proposed sub--ru1e (1) of Ruie 1 is a highiy desirabie and saiutory step. The sub--ru1e must, however, be c1arified to indicate that the adjournment contempiated by it meant an adjournment granted or to'be granted at the request of a party r and not an adjournment caused by other reasons. It should further be made obligatory that even for the first, second or third adjournment which may be granted to the party at his request, the other side shcu1d be compensated in fu11 for the actua1 costs incurred by it for that date of hearing. Indeed, this aspect can be said to be impTicit in the amendment proposed in sub-ru1e (2) of Ru1e 1. There must be a further proviso added to sub-rule (1) to the effect that no adjournment sha11 be granted on an ora1 request of a party or in terms of a s1ip or a Tetter given by the counse1 and that an adjournment sha11 be granted on1y on the basis of a written appiication fi1ed by a party which shou1d either be verified by the counsel for the party or shouid be supported by an affidavit of the party. This shou1d be so even where the other side does not object. In a case where joint request is made by both the sides for adjournment, the court shou1d impose costs upon both parties, which can be remitted to the 1ega1 aid body of that district or State, as the case may be. In sum, two more provisos shou1d be added to sub-ruie (1). The second proviso as proposed by the Law Commission, shou1d say that no adjournment sha11 be granted except on the basis of a written appiication which is verified and signed by the counse1 for the party or which is supported by an affidavit of the party, the copy whereof is served before hand on the counse1 for the opposing parties. The third proviso shou1d say that an adjournment contempiated by sub-ru1e is an adjournment granted at the request of the party and not an adjournment granted for other reasons. It is, however, _ ..?

FGEISOHS , "2.22.

obvious that even where the suit is adjourned for other the court has to record the reasons for such adjournment as required by proposed sub--ru1e (1).

(ii) In the Tight of the above discussion it must be said that the proposed amendment in sub--ru1e (2) is a weicome step and the Law Commission agrees with the same.

Ciause 27 of the Amendment Bi11:- (i) The proposa1 to deiete sub-ruie (4) of Ruie 2 of Order XVIII does not appear to be an appropriate one. This was proposed, the Commission beiieves, in the Tight of the fundamenta1 change in the manner of recording of evidence proposed by the new Ruie 4. Be that as it may, and even if new Ruie 4 is given effect to there is no reason why sub-ru1e (4) of Ruie 2 (which enab1es the court, for reasons to be recorded, to direct or permit any party to "examine any witness at any stage) shouid be deieted. This sub-ru1e was specifica11y put in by the Code of Civil Procedure (Amendment) Act, 1976 for sound reasons and there is no reason to undo it now.

(ii) The existing ruie 4 is sought to be substituted aitogether by a new ruie. The said ruie states that, "The evidence of the witnesses in attendance sha1T be taken ora11y in open court in the presence and under the personai direction and superintendence of the Judge", whereas the proposed rule provides i be given by way of that (a) the examination--in--chief of a witness sha11 Z an affidavit, copies whereof sha11 be -: 54 :- supp1ied to the opposite party by the party who ca11s him for evidence; (b) the cross-examination and re-examination shall be done before the commissioner to be appointed by the court;

(c) power is, however, retained in the court to examine a witness in the court in the presence of and under the personal direction and superintendence of the Judge, for reasons to be recorded in writing; (d) the expenses incurred for examination on commission shaii be paid by the court or by the party summoning the witnesses as may be prescribed by the High Court; and (e) where any question put to a witness is objected to by the other side, the commissioner sha11 a11ow the same to be put but shaii take down the question together with his decision.

2.22.1. with respect to this new method of examination of witnesses, there was a good amount of controversy in a11 the conferences. While members of the Bar uniformiy opposed this method, some members of the Bench welcomed it. The members of the 'Bench who weicomed the new proposai were of the opinion that this method wouid greatiy he1p the court in disposing 'of the suits expeditiousiy. In fact, it was brought to our notice that in severai courts, a pecuiiar method was being adopted whereunder whiie the Judge was hearing the arguments in one suit, the examination of witnesses in another suit was simuitaneousiy going on in a corner of the court. Indeed, we were toid that sometimes the witnesses in two different suits were being examined in"'two different corners of the court whiie the Judge was hearing arguments in a third matter.

Whenever any objection was raised or controversy arose in any one of those suits, the Judge stopped hearing the arguments, we were to1d, heard the objections and after disposing of the same, resumed hearing the arguments in the third suit. This method was being adopted, we are to1d, with a view to enab1ing the Judges to fu1fi1 the quota of disposa1s prescribed by the High Courts. Be that as it may, we sha11 deai with' the objections put forward to the new method suggested by the proposed Ru1e 4.

2.22.2. so far as the examination--in--chief of a witness by way of an affidavit is concerned, the objection was that the evidence given in such a fashion wouid not on1y be not an evidence given in the court -- not even the evidence given before the commissioner appointed by the court -- but wou1d be evidence given» before an advocate. It was pointed out that very often words were put in the mouth of the witness which he had not uttered. In effect, it was submitted that it wou1d be evidence of an advocate of the party and not of the witness. Yet another objection put forward in this beha1f was that'if the examination-in-chief was aiiowed to be tendered by affidavit, the command of the Evidence Act that no ieading questions couid be put in examination-in--chief, couid not be observed and implemented. It "was also submitted that very often many documents were marked in the course of examination--in--chief of a witness and if no objection was raised on that occasion itseif and the document is marked, the opposite party wouid be preciuded from raising the objection !.' .~ \ at ajiater stage. The examp1e of marking of insufficient1y or unstamped documents was given and the bar in Section 36 of the Stamp Act was relied upon.

2.22.3. So far as the cross--examination and re-examination on commission is concerned, the objections were manifoid. It was submitted that the soiemnity and sanctity of the court wouid not be there if evidence was recorded in the office of a commissioner or at any other premises;' It was submitted that sub--ru1e (7) of Ruie _4, as proposed, on1y provided for the commissioner taking down the question together with" his decision where an objection was raised by a party and the commissioner a11owed the said question to be put. The Ru1e did not provide, it was pointed out, as to what shouid happen in case the commissioner upheid the objection and did not a11ow the question to be put. Yet another objection put Forward reiated to the practicai aspect of the matter. It was submitted that whenever a witness was examined on commission, the record had to be 'taken by a cierk of the court to the advocate's office or to such other premises, as the case may be, where the evidence of the witness was being recorded. It was pointed out that the record couid not be made over to the commissioner and that it was necessariiy to be in the custody of a court officer. It was further pointed out that if the recording of evidence on commission became the generai practice, a number of suits may be simuitaneousiy opened where the evidence was being #Lecorded and there Inouid not be sufficient number of cierks avaiiabie to take the fiies and _expenses.

attend the recording of evidence by different commissioners. some of the participants pointed out that the commissioners generaiiy did not conciude their work expeditiousiy and that they go on Teisureiy and very often demanded faciiities at high cost hote1s invoiving Tunch and other misceiianeous It was pointed out that many of the parties might not be abie to afford the said expenses. some others objected that oniy where the witnesses were examined in the court. wouid the court be able not on1y_to notice the demeanour of the witness but aiso form an impression about the veracity of his evidence and about his credibiiity. A11 these eiements wouid be missing in cases of evidence recorded on commission, they submitted.

2.22.4. On the other hand. it was pointed out by certain members of the judiciary that the aspect of demeanour or for that matter the assessment of the credibility and veracity of a witness by the court was no ionger of any real significance because of the large number of suits and the iarge number of witnesses who were examined by the courts every week/every month. It was pointed that uniess the demeanour was qecorded by the court even during the course of examination of the witness, it couid not be relied upon by the court while disposing of the suit. It was aiso pointed out that in countries iike the United States of America, the entire evidence was recorded not even before the commissioner but in the office of the attorney_of the party whose witness was being examined. The said system was functioning successfuiiy, it was pointed out. It was a1so suggested that because of the heavy 1oad of work, the presiding officer was obiiged to spend most of the ear1y hours of the day in disposing of misce11aneous matters and that if evidence was to be recorded by the Judges themse1ves, not much time wou1d be 1eft for "hearing arguments, for study, for ref1ection and Vfor preﬁaration of judgments. From this stand point, it was submitted that the proposed Ru1e 4 was an extreme1y weicome step. It was submitted that the_examination-in-chief should aiso be required to be recorded before the commissioner instead of being tendered by way of an affidavit.

2.22.5. After considering a11 the view points carefu11y, the Law Commission has come to the conc1usion that Ru1e 4 might be redrafted as fo11ows:--

(a) In a11 suits, the subject--matter whereof is vaiued _at more than Rs.5,00,000/--, the examination-in-chief, cross~examination and re--examination may be done before the commissioner to be appointed by the court except in cases where the court, for' reasons to be recorded in writing, considers that the witnesses or some of them as may be specified by the court, sha11 be examined in court;

(b) Presiding Judge of every principai civii court in a city or town shalj prepare a iist of commissioners comprising retired judiciai officers and other senior 1-V1-$ advocates who are prepared to undertake the job. It wou1d be' appropriate if the court a1so specifies the scaie of remuneration of such commissioners. The remuneration may be fixed on an hour1y basis.

(c) The expenses of commission sha11 be incurred by the party whose witness is being examined. 0rdinari1y the evidence sha11 be recorded at the office 'of the commissioner (if he is an advocate) or such other piace as may be agreed upon by the parties and the commissioner. It may a1so be considered whether it wou1d not be convenient if the evidence is recorded at some piace in the court premises, wherever avai1ab1e.

It wouid a1so be appropriate if the Commissioner undertakesthis work after the court hours or during ho1idays.

(d) Even in suits the value whereof is Tess than Rs.5,00,000/-, the examination of witnesses can be done on commission, aif the parties agree thereto--subject, of course, to the orders of the court.

(e) The proposai to adduce evidence of a witness in his examination-in--chief by way of an affidavit be dropped.

(f) where a question put to a witness is objected to by a vparty or his pieader and the commissioner disa11ows the same, the commissisoner sha11 record the question, the objection and his decision thereon. where he a11ows the question to be put notwithstanding the objection. even in such a case, the commissioner sha11 record the question, the objection and his decision thereon aiong with the answer given by the witness in that behaif.

(iii) The proposai to deiete Ru1e 17A, which was indeed inserted by the 1976 Amendment Act has been strong1y opposed by practicaiiy a11 the participants/respondents. The Law Commission is a1so of the opinion that there is no good reason why this ru1e which was incorporated' by the 1976 Amendment Act after due deiiberation shouid be taken away. The proposal' to deiete the sub-ruie may, therefore, be dropped. ' ! 2.23. Ciause 28 of the Amendment Bi11:- Severai amendments suggested in Order XX appear to be actuated by a concern for transparancy and promptness. we sha11 dea1 with each of 'the proposed amendments separateiy.

(i) The words "but a copy of the whoie judgment shaii be made avaiiabie for the perusai of the parties or the pieaders immediateiy after the judgment is pronounced" in /"/ sub-ruie (2) of Ruie i of Order XX are evidentiy proposed to be deleted in the light of proposed Rule 6B. Rule 68 says that where the judgment is pronounced (which obviously means where a prepared judgment is pronounced), copies of the judgments shall be made available to the parties immediately after the pronouncement of the judgment for preferring an appeal on payment of appropriate charges. In this sense the deletion of the aforesaid words from sub-rule (2) of Rule 1 is unobjectionable. But what was suggested by some of the memders of the judiciary was that the requirement of supplying copies of the judgement immediately after the pronouncement of the judgment was difficult because of several practical difficulties and that the requirement should be to supply copies of the judgment within three days. In other words, the words "immediately after" occurring in Rule 6B ought to be substituted by the words "within three days of". It was submitted that in many cities and towns, the facilities by way of zerox and» photocopying were not immediately available or even if available there would be practical difficulties in Ipiotocopying and supplying copies of the judgments on the day of their pronouncement. The proposal appears to be based upon experience of the judicial officers and in our opinion ought to be respected and given effect to. The matter can be reviewed at a later stage, if necessary.' On many occasions, orders/judgments are dictated in court. In such cases, it is not possible to comply with the requirements of Rule 6B. A clarification with regard to proposed Rule 68 may, therefore, be necessary to indicate,that the 'equirement of this rule _would be attracted only after the order/judgment is .transcribed, corrected and signed, in cases K where the order/judgment is dictated in the court.

(ii) The provisions contained in the proposed Rule 6A are unexceptionable. sub--rule (2) of Rule 6A may, however, be clarified by adding a proviso to ~the effect that where an appeal is preferred on the basis of the judgment on the ground that the decree had not been drafted or made available, the appeal so preferred shall not be treated as defective proyided that the copy of the decree is filed within a reasonable period after the preparation of thefdecree.

2.24 Clause 30 of the Amendment Bill:- There.' was considerable controversy about the proposed addition of sub--rule (2) in Rule 1 of Order XXXIX. Particularly the members of the Bar felt that the requirement of security as pre--condition for the grant of temporary injunction may adversely affect the interest of indigent and poor plaintiffs like a widow claiming maintenance and asking for temporary injunction against alienation of properties by her husband, plaintiffs suing in forma pauperis but having a' good cause, plaintiffs in suits relating to public nuisance and public charities and so on. On the other hand, quite a few participants supported the proposed sub--rule on the ground that it would help discourage plaintiffs asking for temporary injunctions in a flippant or casual manner.

...,u 2.24.1. The objectors to the said sub--ru1e have not apparentiy given sufficient attention to the wording of the proposed sub--ru1e (2). The ru1e requires that the court sha11, whi1e granting a temporary injunction of the nature mentioned in the sub--ru1e, "direct the p1aintiff to give security or otherwise as the court thinks fit". In our opinion the suberuie contains a very saiutory princip1e. However, to make the matter ciear it wouid be appropriate if the words "or otherwise" are substituted by the words "or make such other .directions". A proviso may aiso be added that the said requirement of giving security or making of other appropriate directions as a condition for granting temporary injunction (of the nature specified in the sub-ruie) may be dispensed with in appropriate cases for speciai reasons to be recorded by the court.

2.25. Ciause 31 of the Amendment Bi11:- Ruies i.and 2 of the proposed order XXXIX-A do not bring out or give effect to the intention behind the said provisions. Paragraph 3(h) of the statement of objects and reasons is as under:

"In matters *re1ating to property disputes, particuiariy in matter of unauthorised construction on the iand of others, it has been found that, under the existing provisions of the Code of Civi1 Procedure, no app1ication for injunction can be moved uniess the suit is fiied first in the court having competent jurisdiction. with a view to obviate this hardship, \ it is proposed that a person may make an appiication to the court of competent jurisdiction for appointment of a commission to ascertain the factua1 status of the property so that at the time of fi1ing of the reguiar suit the report _is avaiiabie to the commissioner reiating to the factuai status of the property in dispute."

' However, the ianguage of Ruies 1 and 2 does not bring out the said intention and for that reason the rules have been criticised as iacking in direction and as ambiguous. It wou1d be appropriate if these ruies are redrafted to refiect the intention cieariy so as to be in consonance with the statement of objects and reasons.

2.26 Ciause 32 of the Amendment Bi11:- The amendments proposed in Order XLI have evoked uniform opposition from both the members of the Bar and the Bench. The main idea behind the amendments proposed in this order is to provide that an appeal can be preferred in the court which has passed the decree to be apeaied against and that court is required to remit the same to the appeiiate court. It was pointed out that very often the parties aiso asked for interim orders by way of stay or injunction or other appropriate directions on an interiocutory appiication fiied aiong with the appeai and that if an appeai was to be preferred before the court which passed the decree appeaied/against, it may not be inciined to make any such orders against its own decree. It was also pointed out that ordinarily, the parties consulted a lawyer of the appellate court who may very often be located in a different city or town and took his opinion on the advisability of the preferring of the appeal. It was observed that while the lawyer who had lost his client's case in the court generally advised strongly for preferring the appeal, the appellate court lawyer might take a different view. For this and other practical reasons (viz., maintaining separate appeals register in each court apart from the appeals register in the appellate court), it was suggested that the proposal may be dropped.

2.26.1. After considering the views expressed by the participants/respondents, the Law Commission is of the opinion that the measure how suggested is a half-hearted one. Either the old system should continue or if the idea is to facilitate the filing of an appeal in the trial court (or in the court which passed the decree to be appealed against as the case may be), it should be further provided that while filing the appeal, the appellant shall serve copies of the appeal and the accompanying interlocutory applications, if' any, upon the counsel for the other side in that court and that such service shall be deemed to be sufficient service upon the other side.

Such a practice is in vogue in the High Courts in the matter of preferring Letters Patent Appeals whether in civil matters or in writ petitions. For this purpose, the form of the Vakalatnama prescribed by the appropriate rules has to be modified I ! making it obligatory upon the advocates to receive I the copies of the appea1 and other accompanying app1ications, if served upon them by the other side even after passing of the decree. The court whose decree is being appeaied against shouid aiso be expressiy empowered to pass appropriate interim orders for a Timited period within which the appeal papers can be transmitted to the appropriate appeiiate court and the appeiiate court can deai with the same. This suggestion has the merit iof obviating the necessity of sending summons once again in appea1 which normaiiy takes a very Tong time. The

- experience shows that serving the respondents in appea1s takes years in many cases which aiso contributes to the de1ay in disposai of the appeais. A11 this can be avoided if the' service upon the advocate of the respondents (in the appea1) is treated as sufficient service upon the party. The tria1 court can then fix a day on which both the parties sha11 appear before the appe11ate court and from which stage the appe11ate court takes over the matter. But the provision now proposed mereiy provides for fiiing of appea1 in the trial court .or in the court whose decree is sought to be appeaied against, as the case may be, without anything more. In the opinion of the Law Commission, the proposed measure is 1ike1y to prove ineffective. » The amendments may need to be reconsidered in the Tight of the above observations.

2.27 Law Commission has no objection to the other amenduments III uggested in the Code of Civ11 Procedure CD

--I

-ul-

7.1) (D 'J (Amendment) '11, ANNEXURE - A As INTRODUCED IN RAJYA SABHA .1 H mlh #3':

Bill No. L OF 1997 THE CODE OF CIVIL PROCEDURE (AIVIENDMENT) BILL, 1997 A .

BILL further to amend the Code of Civil Procedure, 1908, the Lintitatio Act, 1963 and the Court Fees Act, 1870. I BE it enacted by Parliament in the. Forty-eighth Year of the Republic of India as follows:-- ' CHAPTER I PRELIMINARY 5 , (1) This Act Inay be called the Code of Civil Procedure (Amendment) Act, 1997. Short title and com-

(2) It shall come iIIto force on such date as the Central Government may, by menccmcnt.

IIntil'Iealion in the Official Gazette, appoint, and different dates may be appointed for different provisions of this Act and for different States or for different pans thereof.

CHAPTER II AMENDMENT OF SECTIONS Amendment 2. In the Code of Civil Procedure, 1908 (hereinafter referred to as the principal Act), of section _ existing section 26 shall be re-numbered as sub-section (1), and after sub-section (1)

26. as so renumbered, the following sub-section shall be inserted, namely:_.

"(2) In every plaint, facts shall be proved by afl'idavit.",.

Amendment 3. In section 27 of the principal Act, the following words shall be inserted at the end, of section namely:---- ' A ."

274 .

' "on such day not beyond thirty days from dateof the institution of the suit". Amendment 4. In section 32 of the principal Act, in clause (c), for the words "not' exceeding ftye of section hundred rupees", the words "not exceeding five thousand rupees" shall be substituted.

32. Amendment 5. in section 58 of the principal Act,--g of section

58. (i) in sub-section (1),-

(ct) in clause (a), for the words "one thousand rupees", the words "five.

thousand rupees" shall be substituted; .

(b) for clause (b), the following clause shall be substituted, namely:-

"(b) where the decree is for the payment of a sum of money exceeding two thousand rupees, but not exceeding ﬁve thousand rupees, for a not exceeding six weeks:";

(it) in subsection (M), for the words "livc hundred rupees", the words "two thousand rupees" shall be substituted.

Amendment 6. In section 60 of the principal Act, in the lirst proviso to sub-section (1), in clause of section (i), for the words "four hundred rupees", the words "one thousand rupees" shall be

60. substituted. ' Insertion of In the principal Act, nfter section 88, the following section shall be new section numcly:--- ' .

89. ' Settlement "89. (I) Where it appears to the court that there exist elements of a settltztent which may be acceptable to the parties, the court shall formulate the terms of ' scltletuent and give them to the parties for their observations and after receiving the observations of the parties, the court may relonnultitc the terms of it possible settlement and refer the same for----

of disputes outside the Court.

(a) arbitration;

(b) conciliation;

5 10 15 20 25 30

P 26 of I996.

39 of 1987.

I0 39 of I987.

20 25 30 35

(d) mediation.

(2) Where a dispute has been referred-

(cr) for arbitration or conciliation, the provisions of the Arbitration and Conciliation Act, 1996 shall apply as if the proceedings for arbitration or conciliation were referrcu for seltletnent under the provisions of that Act;

(1)) to Lok Adnlat, the court shall refer the same to the Lok Adalat in accordance with the provisions of sub-section (1) of section 20 of the Legal Services Authority_ Act, [987 and all other provisions of that Act shall apply in respect of the dispute so referred to the Lok Adalnt;

(C) for judicial settlement, the court shall refer the same to a suitable institution or person and such institution or person shall be deemed to be a bok Adalat and all the provisions of the Legal Services Authority Act, 1987 shall apply as if the dispute were referred to a Lek Adalat under the provisions of that Act;

(1!) for mediation, the court shall effect a compromise between the parties and shall follow such procedure as may be prescribed".

8. In section 95 of the principal Act, in sub--section (1), for the words "not exceeding one thousand rupees", the words "not exceeding fifty thousand rupees" shall be substituted.

9. ln section 96 of the principal Act, in sub-section (4), for the words "three thousand - rupees", the words "twenty--ﬁve thousand rupees" shall be substituted.

I0. For section IGOA of the principal Act, the following section shall be substituted, tnuncly:----

"I00/\. Notwithstanding anything contained in any Letters Patent for any High Court or in any other instrument having the force of law or in any other law for the time beingin force,----

(a) where any appeal from an original or appellate decree or order is heard and decided, (I2) where any writ, direction or order is issued or made on an application under article 226 or article 227 of the Constitution, by a single Judge of a High Court, no further appeal shall lie from the judgment, decision or order of such Single Judge.''.

11. For section 102 of the principal Act, the following shall be substituted, narnely:--

"t02. No second appeal shall lie from any decree, when the amount or value of the subject--mutt:-r of the original suit does not exceed twcnty--ﬁve thousand rupees.".

Amendmbnt of section

95. Amendment of section

96. Substitution of new section for Iectlon IOOA.

No further appeal in certain cases.

7'.

Substitution of new section for section 102.

No second appeal in certain cases.

I_.u._ Amendment 12. In ueutlun I15 of the principal Act. ltt uttlwteutluu (I),-» of section .

1lS. (i) for the proviso, the following proviso shall be substituted, na.mely:--

"Provided that the High Court shall not. under this section, vary or reverse any order made, or any order deciding an issue. in the course of a suit or other proceeding, except where the order. if it had been made in favour of the party applying for revision, would have ﬁnally disposed of the suit or «other tvmuoedlugn."', (H) after suhausotlnn (2). hut before the lt'.tplmmttun, the ti-lluwlug Ittil uwtluu shall be inserted. namely:-

"(3) A revision shall not operate as a stay of suit or other proceeding before the Court except where such suit ortbther proceeding is stayed by the High Court". ' f ~ Amendment a t 13. in section 143 of the principal Act, after the words "such period", the _ worth ",not exceeding thirty days in total," shall be inserted.

of section H8.

I'll/\|'ll|ll lll I\MtItttIt\tt\ttt Ht' tttttmtttt Atnelultueut I4. In the tlh-st Schedule tn the ptlnulpul Ant ttu'-tetnultut u-.lr.m.«l in an the I-'tut of Order Schedule), in Order W, in rule l.---- '* ' IV.

_ (i) in sub-rule (1), for the words "plaint to the Court", the words "plaint in duplicate to the Conn" shall be substituted; '

(ii) after sub-rule (2), the following sub--rule shall be inserted, namely:-A ''(3) The pltthit shall not he tleetttctl to he thtly lu.-ttltuted ttttlmts It complicit \ \' \' "V N \ with tho It't|I|lIt'l|'lt'lIll| apt-t'll'lt*tl lu llttlt-l'l\lt'R U) tttttl (3l).".

mu-«n-Inn-ut II. In Ilw Hunt it--tn-sluts-. tu Hut--u \'. nt I mt»-t V- Ht llt tutu I. lul hlllt tttlt'- Ht. t\u~ tutluwtuu I-hull |u- t-ulr--lltttlt-gl. uutut-l\-

"(1) Whctt a suit has been duly instituted, a autnumus may he lh':'ll.|t'(l to the defendant to appear and answer the claim and to file the written statement of ' defence, if any, o'r_i_ such day within _thi_r_ty_ days from the day of institution of the \\ N 0' '(V5 I sui_t__as may be speciﬁed therein: ' Q _ L: / _< . , \'6"'"\' "A Provided that no such summons shall be issued when a delcndmrt has y/ 'I' 34-'? )§::._v'{ appeared at the presentation of the plaint and admitted the plaintiff' s claim:

I_ V ' ' J l'rovlded furth:-.r that where the tlolhtulnttt lhlht to tile the writtutt ututctncttt mt \3(L'\{' _ We ' the said day, he shall be allowed to file the same on such other day which shall , ' ) not be_bey_ond thirty days fromwvdate of service of summons on the defendant, _/' . us the court may think lit.";

. h \ 4) g l Rn'-I') ,1," Kr) I __ _ .

- 3)"

l0 1' 20 I' 30 35 I 5 10 15 20 25 30 35 40

(ii) for rule 2, the following shall be substituted, namely:--

"2. Every summon shall be accompanied by a copy of the plaint.";

(iii) in rule 6, for the words "for the appearance of the defendrmt", the words "under sulrmle (1) of nile 1'' shall be substituted;

(iv) in mle 7, for the words "all documents", the words and figures "all documents or copies thereof specified in rule IA of Order VIII" shall be substituted;

(v) for rule 9, the following rules shall be substituted, namely:--

"9. (1) The court shall issue summons and deliver the same to the plaintiff or his agent, for service, and direct the summons to be served by registered post acknowledgment due or by speed post or by such courier service as may be approved by the High Court or by fax message or by Electronic Mail Service or by such other means as the High Court may prescribe by rules, addressed to the defendant to accept the service at the place where the defendant or his agent actually and voluntarily resides or carries on bminess or personally works for gain.

(2) The plaintiff or his agent shall send the summons by any means as directed by the court under sub-rule (1) within two days from the delivery of summons to the plaintiff by the court under that sub-rule.

(3) When an acknowledgment or any other receipt purporting to be signed by the defendant or his agent received by the court or postal article containing the summons is received back by the court with an endorsement purporting to have been made by a postal employee or by any authorised person to the effect that the defendant or his agent had refused to take delivery of the postal article containing the summons or refused to accept the summons by any other means specified in sub-mle (1), when tendered or transmitted to him the court issuing the summon shall declare that the summons had been duly served on the defendant: ' , ~ Provided that summons was properly addressed, pre--paid and duly sent by registered post acknowledgment due, the declaration referred to in this sub-rule shall be made notwithstanding the fact that the acknowledgment having been lost or misled or for any other reasons has not been received by the court as the date fixed by it.

9A. (1) The court may, in addition to, and simultaneously with the. delivery of summons for service to the plaintiff as provided in the manner provided in rule 9, may also direct that summom to be served on the defendant or his agent empowered to accept the service at the place where the defendant or his agent actually and voluntarily resides-or carries on business or personally worls for gain.

(2) The summons shall, unless the court otherwise direct, be delivered or sent to the proper officer in such manner as may be prescribed by the High Court to be served by him or one of his subordinates. ' » n-«so m¢.&---:1-1.

Copy of plaint annexed to summon.

Delivery of ' summons

-to the plaintiff or his agent.

Simulta-

neous isue of summons for service ' by the court controlled proc.

t |%-s ,-----u j I (3) The proper officer may be an officer of the court other than that in which the suit is instituted, and where he is such an officer, the summon may be sent to him in such manner as the court may direct.

(4, The proper officer may serve the summons by registered post"

acknowledgment due, by speed post, by such courier service as may be approved by the High Court, by 'fax message, by Electronic Mail service or by such other means as may be provided by the rules made by the High Court.";

(vi) rule 19A shall be omitted;

(Vii) ll! Nlc 21. for the words "or by post", the words "or by post or by such courier service as may be approved by the High Court, by fax message or by Electronic Mail service or by any other means as may be provided by the rulesmade by the High Court" shall be substituted;

(viii) in rule 24, for the words "by post or otherwise", the words "or by post or by such courier service as may be approved by the High Court, by fax message or by Electronic Mail service or by any other means as may be provided by the rules made by the High Court" shall be substituted;

(ix) in rule 25, for the words "by post", the words "or by post or by such courier service as may be approved by the High Court, by fax message or by Electronic Mail service or by any other means as may be provided by the rules made by the High Court" shall be substituted.

Amendment \/l6. In the First Schedule, in Order VI,--

of Order IVI.

Amendment of Order Vll.

Procedure on admitting plaint.

(1) rule 5 shall be omitted;

(ii) in rule 15, after sulrrule (3), the following sub-mle shall be inserted, namely:---

''(4) The person verifying the pleading shall also furnish an affidavit in support .of his pleadings";

(iii) rules 17 and 18 shall be omitted.

17. In the First Schedule, in Order Vll,---

(i) for rule 9, the following rule shall be substituted, namely:--

"9. (1) Where the plaint is admitted, the court shall give to the pkiutiff summons in the name of 'all the defendants to be served upon or get sealed in the manner provided under Order V. (2) Within two days of the receipt of summonsunder sub-rule (I), the plaintiff shall send or cause to send the summons to the defendants alongwith the copy of the plaint in the manner provided under Order V. (3) Where the court orders that the surmnons be served on the defendantsin the mamier provided in rule 9A of Order V, it will direct the plaintiff to present as many copies of the plaint on plain paper as there are defendants within two days from the date of such order alongwith requisite fee for service of summons on the defendants".

- -nun sv§ I0 15 20 25 30 35 40 7

(ii) in rule 11, after sub-clause ((1), the following sub-clauses shall be inserted, namely:--

"(e) where it is not filed in duplicate;

(f) where the plaintiff fails to comply sub-rule (2) of rule 9; 5 (9) where the plaintiff fails to comply sub-rule (3), of rule 9A.".

(iii) for rule 14, the following rule shall be substituted, namely:--

''l4. (1) Where a plaintiff sues upon a document or relies upon document in Production"

his possession or power in support of his claim, he shall enter such documents of document in a list, and shall produce it in court when the plaint is presented by him and on which 10 shall, at the same time deliver the document and a copy thereof, to be ﬁled with plaintiff the plairtt. sucs at relies.

(2) Where any such document is not in the possession or power of the plaintiff, he shall, wherever possible, state in whose possession or power it is.

(3) Where a document or a copy thereof is not ﬁled with the plaint under 15 this rule, it shall not be allowed to be received in evidence on behalf of the plaintiff at the hearing of the suit. --

(4) Nothing in this rule shall apply to document produced for the cross examination of the plaintiff's witnesses, or, handed over to a witness merely to refresh his memory."-, 20 (iv) rule 15 shall be omitted.

(v) in rule 18, in sub-rule (1), the words "without the leave of the court" shall be _ omitted. ' _ -

J 18. In the First Schedule, in Order Vlll,-- Amendment of Order (1') for rule 1, the following rule shall be substituted, namely:-- VII]. 25 "l. The defendant shall at or before the first hearing or within such time as Written the court may pennit, which shall not be beyond thirty days from the date of statement. service of summons on the defendant, present a written statement of' his defence.";

(ii) after mle l so inserted, the following rule shall be inserted, namely:----

30 "IA. (1) Where the defendant bases his defence upon a document or relies Duty upon any document in his possession or power, in support of his defence or def _ t claim for set off or counter claim, he shall enter such document in a list, and to produce shall produce it in court when the written statement is presented by him and documents shall, at the same time, deliver the document and a copy thereof, to be filed with upon which 35 the written statement. fcllcf is claimed or (2) Where any such document is not in the possession or power of the relied upon defendant, he shall, wherever possible, state in whose possession or power it is. by him.

(3) Where a document or a copy thereof is not ﬁled with the written statement under this rule, it shall not be allowed to be received in_ evidence onbehalf of 40 the defendant at the hearing of the suit.

Amendment of Order IX.

Dismissal of suit where summons not served by the plaintiff or his agent or in con-

sequences failure to cost.

Amendment of Order X. Direction of the court to opt for any one mode of alternative dispute resolution.

Appearance before the conciliatory forum or authority.

Appearance before the court consequent to the failure of ' efforts of conciliation.

(4) Nothing in this rule shall apply to docurnents--

(a) produced for the cross examination of the plaintiffs witnesses, or

(b) handed over to a witness merely to refresh his memory;

<.\. ,

(iii) rules 8A, 9 and 10 shall be omitted. A J19. In the First Schedule, in Order lX,-- (i') for rule 2, the following rule shall be substituted, namely:--

"2. Where on the day so ﬁxed it is found that the summons has not been sent within stipulated period of two days, to the defendant by the plaintiff or his agent or consequence of their failure to pay the court--fee or any charges, if any chargeable for such service, the court shall ma_ke an order that the suit be dismissed: .

Provided that no such order shall be made if, notwithstanding such failure, the defendant attends in person or by agent when he is allowed to appear by agent on the day fixed for him to appear and answer.";

(ii) in rule 5, for the words "one month", the words "seven days" shall be substituted.

'/10. In the mm Schedule, in Order x,- (i') after rule I, the following rules shall be inserted, nainely:--

"lA. After recording the admissions mid denials, the court shall direct the parties to the suit to opt either mode of the settlement outside the court as specified in sub-section (1) of section 89. On the option of the parties, the court shall fix the date of appearance before such forum or authority as may be opted by the parties.

1B. Where a suit is referred under rule 1A, the parties shall appear before such forum or authority for conciliation of the suit.

'*2'

-1 1C. Where a suit is referred under rule IA and the presiding officer of conciliation forum or authority is satisﬁed that it would not be proper in the interest of justice to proceed with the matter further, then, it shall refer the matter again to the court and direct the parties to appear before the court on the date fixed by it.";

(ii) in rule 4, in sub-rule (1), for the words "may postpone the hearing of the suit to a future day", the words "may postpone the hearing of the suit to a day not later than seven days from the date of first hearing" shall substituted.

10 15 20 30

l0 i5 20 25 30 9

21. In the First Schedule, in Order XI,-

(i) in rule 2, after the words "submitted to the court", the words "and that court shall decide within seven days from the day of filing of the said application," shall

(ii) in rule 15, for the words "at any time", the worth "at or before the settlement of issues" shall be substituted.

22. in the First Schedule, in Order XIl,---

(i) in rule 2, for the word "ﬁfteen", the word "seven" shall be substituted;

(ii) in rule 4, second proviso shall be omitted.

23. In the First Schedule, in Order Xlll, for rules l and 2, the following rule shall be substituted, nurnely:--

"l. (1 ) Tire parties or their pleader shall produce on or before the settlement of issues, all the documentary evidence in original where the copies thereof have been ﬁled along with plnint or written statement.

(2) The court shall receive the documents so produced:

Provided that they are accompanied by an accurate list thereof prepared in such form as the High Court directs.

(3) Nothing in sub-rule (1) shall apply to documents-

(a) produced for the cross~exnrnir1ntion of the_ witnwses of the other party; or

(b) handed over to a witness merely to refresh his memory.".

24. In the First Schedule, in Order XIV,-

(I) in rule rt, for the words "may adjourn the framing of the issues to a future day", the words "may adjourn the framing of issues to a day not later than seven days" shall be substituted.

(ii) rule 5 shall be omitted.

25. in the First Schedule, in Order XVI,-

(i) in rule 1, in sulrrulc (4), for the words "court in this belrnll", occurring at the end, the words, brackets and figure "court in this behalf within five days of presenting the list of witnesses under sub-rule (1)" shall be substituted;

(ii) in rule 2, in sub-rule (I), after the words "within a period to he ﬁxed", the words, brackets and ﬁgures "which shall not be Inter than seven days from the dntc of making application under sub--r'ulc (4) of rule 1" shall be inserted.

. -Aodasxtv Amendment of Order Amendment of Order' ~ of Order Original docnmarts to be produced at or before the settlement of issues.

Amendment of Order XIV.

Amendment of Order XVI.

Amendment of Order XVII.

Amendment of Order XVII].

Recording of evidence by com-

missioner.

26. In the First Schedule, In Order XVII, in rule I,--

(i) for sub--rulc (1), the following shall be substituted, namely:--

"(1) The court may, if sufficierrt eaus'e is shown, at any stage of the suit grant time to the parties or to any of them, and may from time to time adjourn the hearing of the suit for reasons to be recorded in writing:

Provided that no such adjournment shall be granted more than three times to a party during hearing of the suit."',

(ii) in sub-rule (2), for the words "may make such order as it thinks fit with respect to the costs occassioned by the adjoin-rrment", the words "shall make such orders as to costs oceassioned by the adjounrment or such higher costs as_the court deems lit" shall be substituted.

27. In the First Schedule, in Order XVlll,-- '.

(i) sub-rule (4) of rule 2 shall be ornitled;

(ii) for rule 4, the following rule shall be substituted, narnely:--

"4. (1) In every case, the evidence of a witness of his examination-in-chief shall be given by alTidavit and copies thereof shall be supplied to the opposite party by the party who calls him for evidence.

(2) The evidence (cross-examination and re-examination) of the witness in attendance, whose evidence (examination--in-clriel) by aflidavit has been furnished to the court shall be taken orally by a commissioner to be appointed by the court from amongst the panel of cormnissioncrs prepared for this purpose on the same day:

Provided that, in the interest of justice and for the reasons to be recorded in writing, the court may direct that the evidence of any witness shall be recorded by the court in the presence and under the personal direction and superintcndence of the judge.

(3) The commissioner shall be paid such sum for recording of evidence as may be prescribed by the High Court.

(4) Tire amount payable to the commissioner under sub--rulc (3) shall be paid by the Court or by the parties summoning the witness as may be prescribed by the High Court.

'I (5) The District Judge shall prepare a panel of commissioners to record the evidence under this rule. -

(6) The commissioner shall record evidence either in writing or mechanically in his presence and shall make a memorandum which shall be signed by him and the witnesses and submit the same to the court appointing such commissioner.

(7) Where any question put to a witness is objected by a party or his pleader and the commissioner allows the same to be put, the commissioner shall take down the question together with his decision.";

10 15 20 25 30 35

(iii) rule l7A shall be omitted;

(iv) after mle 18, the following rule shall be inserted, narnely:--

"l9. Notwithstanding anything contained in these rules, the court may, instead of examining witnesses in open court, direct their statements to be recorded on 5 commission under rule 4A of Order XXVl.".

28. In the First Schedule, in Order XX,-

(i) in rule 1, in sub-rule (2), the words "but a copy of the whole judgment shall be made available for the perusal of the parties or the pleaders immediately after the judgment is pronounced" shall be omitted;

10 (ii) for rules 6A and 6B, the following rules shall be substituted, namely:--

"6A. 31) Every endeavour shall be made to ensure that the decree is drawn .up as expeditiously as possible and, in any case, within ﬁfteen days from the date on which the judgment is pronounced.

(2) An appeal tnay be preferred against the decree without filing a copy of IS the decree and in such a case the copy made available to the party by the court shall for the purposes of rule l of Order XLI be treated as the decree. But as soon as the decree is drawn, the judgment shall cease to have the effect of a decree for the purposes of execution or for any other purpose.

6B. Where the judgment is pronotmced, copies of the judgment shall be made available to the parties immediately after the pronouncement of the judgment for preferring an appeal on payment of such charges as may be specified in the rule tnadc by the High Court.".

29.In the First Schedule, in Order XXVI, after rule 4, the following rule shall be inserted, namely:-- A "4A. Notwithstanding anything contained in these rules, any court may, in the interest of justice or for the expeditious disposal of the case or for any other reason, issue eotntnission in any suit for the examination, on interrogatories or otherwise, of any person resident within the local limits of its jurisdiction, and the evidence so recorded shall be read in evidence.

30 30.111 the First Schedule, in Order XXXIX, rule 1 shall be renumbered as sub-rule (1) of that rule and after sub--rule (1) as so remnnbered, the following sub--rule shall be inserted, namely: --

"(2) The court shall, while granting a temporary injunction to restrain such act or to make such other order for the purposes of staying and preventing the wasting, Power to get statements recorded on com-

mission.

Amendment of Order XX.

Preparation of decree.

Copies of judgments when to be made available.

Amendment of Order XXVI.

Commission for examination of any .

person resident within the court local limits.

Amendment of Order XXXIX.

Imertion of new Order Filing of application for inspec-

tion by legal rep-

resentative.

Filing of the suit.

Amendment of Order XL].

l l Registry of memoran-

dum of appeal.

[2 damaging, alternation, sale, removal or dhaposltion of property or dispoesession of the plaintiff, or olherwlno mtnlng injury to the plaintiff in relation to any property under disposition in the Iuit under sub-rule (1), direct the plaintiff to give security or otherwise as the oourt thinks fit".

31. In the First Schedule, after Order XXXIX, the following Order shall be inserted, namely:--

"ORDER XXXIXA INSPECTION BEFORE INSTITUTION OF SUIT

1. In a case where a person competent to file a suit for grant of relief is not available to ﬁle such a suit for injunction, the legal representative of that person may make an application to the competent court of jurisdiction for the appointment of a commission to malce local investigation of the property for the purpose of 'elucidating any matter in dispute and such commission shall be deemed to be appointed under Order XXVI.

2. Within seven days from the date of the filing of the application under rule 1, the person competent to tile sult, shall file the suit.".

32. In the First Schedule, in Order XLI,-----

(F) in sub'-rule (I) of rule 1, for the words and brackets "decree appealed from and (unless the Appellate Court dispenses therewith) of the judgment on which it is founded", the word "judgment" shall be substituted;

(ii) for rule 9, the following rule shall be substituted, namely:---

"9. (1) The Court from whose decree an appeal "lies shall entertain the memorandum of appeal and shall endorse thereon the date of presentation and shall register the appeal in a book of appeal kept for that purpose. h (2) Such book shall be called the register of appenl.";

(iii) in rule it, for sub--rule (1), the following sub-rule shall be substituted, nnmely:------

"(I) The Appellate Court after ﬁxing a day for hearing the appellant or his plcadcr and hcaring'l1lm'acoordlngly if he appears on that day may the appeal."; '

(iv) in rule 12, for sub-rule (2), the following sub-rule shall be sulntituted, namely:-- ' "(2) Such day shall be ﬁxed with reference to the current business of the court.";

(v) rules l3, l5 and l3 shall be omitted;

(vi) in rule 19, the words and ﬁgures "or rule 18" shall be omitted;

(vii) in rule 22, sub--rulc (3) shall be omitted.

I0 15 20 30 35 13 CHAPTER V REPEAL AND SAVINGS

33. (1) Any amendment made, or any provision inserted in the principal Act by a Repeal State Legislature or High Court before the commencement of this Act shall, except in and 5 so far as such amendment or provisions is consistent with the provisions of the principal savings. Act as amended by this Act, stand repealed.

(2) Notwithstanding that the provisions of this Act have come into force or repeal under sub-section (I) has taken effect, and without prejudice to the generality of the I0 of 1897. provisions of section 6 of the General Clauses Act, 1897,---

10 (a) the provisions of section 26 of the principal Act and of Order [V of the First Schedule, as amended by sections 2 and 14 of this Act, shall not apply to or affect any suit pending immediately before the commencement of sections 2 and 14; and every such suit shall be tried as if sections 2 and 14 had not come into force;

([1) the provisions of section 27 of the principal Act, as amended by section 3 of IS this Act, shall not apply to or affect any suit pending immediately before the eorrunencement of section 3 and every such suit shall be tried as ifseetion 3 had not come into force;

(c) the provisions of section 58 of the principal Act, as amended by section 5 of this Act, shall not apply to or affect any person detained in the civil prison in 20 execution of a decree before the commencement of section 5;

(d) the provisions of section 60 of the principal Act, as amended by section 6 of this Act, shall not exempt salary froru attachment to the extent mentioned in clause (4') of the first proviso to sub-section (1) of section 60 before the commencement of section 6;

25 (c) section 89 and rules IA, IB and 1C of Order X of the First Schedule, as inserted in the principal Act by sections 7 and 20 of this Act, shall not affect any suit in which issues have been settled before the cormnencentenl of section 7; and every such suitshall be dealt with as if sections 7 and 20 had not come into force;

(f) the provisions of section 96 of the principal Act, as amended by section 9 of 30 this Act, shall not apply to or affect any appeal from original decree which had been ndtnitled before the commencement of section 9; and every admitted appeal shall be dealt with as if section 9 had not come into force;

(g) the provisions of section 100A of the. principal Act, as substituted by section 10 of this Act, shall not apply to or affect any appeal against the decision of a "6 35 Single Judge of it High Court under article 226 or article 227 of the Constitution which had been admitted before the cotnrnencetnent of section 10; and every such admitted appeal shall be disposed of as if section 10 had not come into force;

«.

(Ir) the provisions of section 102 of the principal Act, as substituted by section ll of this Act, shall not apply to or affect any appeal which had been admitted before 40 the commencement of section 11; and every such appeal shall be disposed of as if section 11 had not come into force;

. (i) the provisions of section 115 of the principal Act, as amended by section l2 of this Act, shall not apply to or affect any proceeding for revision whichhad been ﬁnally disposed of;

I4 (1) the provisions of rules I, 2, 6, 7, 9, 9A, I9/\, 2|, 24 and 25 of Order V of the First Schedule as amended or, as the case may be, inserted or omitted by section I5 of this Act shall not apply to any summons issued immediately before the commencement of section I5;

(k) the provisions of rules 9, II, 14, 15 and I8 of Order VII of the First Schedule, as amended or, as the case may be, substituted or amended by section 17 of this Act, shall not apply to in respect of any proceedings pending before the cotmnencement of section 17; ' (I) the provisions of rules I and IA of Order VIII of the First Schedule, as substituted or inserted by section 18 of this Act, shall not apply to a written "

statement filed and presented before the court immediately before the commencement of section 18;

(m) the provisions of rules 2 and 5 of Order IX of the First Schedule, as amended by section I9 of this Act, shall not apply in respect of summons before-the commencement of section I9;

(I!) the provisions' of rules 2 and 15 of Order XI of the First Schedule, as zuuended by section 2| of this Act, shall not apply to or affect any order passed by the court or any application submitted for inspection to the court before the connnencemcnt of section 21 of this Act;

(0) the provisions of rules 2 and 4 of Order XII of the First Schedule, as amended and omincd, as the case may be, by section 22 of this Act, shall not affect any notice given by the party or any order made by the court before the commencement of section 22 of this Act;

(/2) the provisions of rules I and 2 of Order XIII of the First Schedule, as substituted by section 23 of this Act, shall not affect the documents produced by the parties or ordered by the court to be produced before the commencement of section 23 of this Act;

(q) the provisions of rule 4 and 5 of Order XIV of the First Schedule, as amended and omitted by section 24 of this Act, shall not affect any order made by the court adjouming the framing of the issues and to aunend and strike out issues before the commencement of section 24 of this Act;

(r) the provisions of rules I zurd 2 of Order XVI of the First Schedule, as amended by section 25 of this Act, shall not affect any application made for summoning of witnesses and time granted to a party to deposit amount for 10 .15 20 25 30 summoning WllltCSSc'.. made by the court before the commencement of section 25; my 35 1 (3) the provisions of rule I of Order XVII of the First Schedule, as amended by section 25 of this Act, shall not affect any adjoumnrent granted by the court and any cost occasioned by the adjounnnent granted by the court before the commencement of section 25 and the number of adjournments granted earlier shall not be counted for such purpose;

(I) the provisions of rules I, 6A and 6B of Order XX of the First Schedule, as amended and substituted by section 28 of this Act, shall not affect any application for. obtaining copy of decree for ﬁling of appeal made by a party and any appeal filed before the commencement of section 28 of this Act; and every application made and every appeal filed before the commencement of section 28 shall be dealt with as if section 28 had not come into force;

40 45

l5 (:4) in suh~rule (2) of rule I of Order XXXIX of the First Schedule, as inserted by section 30 of this Act, shall not affect any temporary injunction granted before the commencement of section 30 of this Act.

(V) the provisions of mics l, 9, ll, 12, 13, I5, 18, 19 and 22 of Order XL! of the 5 First Schedule, as amended, substituted and omitted, as the case may be, by clause 32 of the Bill slmll not affect any appeal ﬁled before the commencement of section 32; and every appeal pending before the commencement of section 32 shall be disposed of as if section 32 of this Bill had not come into force.

CHAPTER VI l l0 AMENDMENT OF THE LIMITATION ACT, i963 36 of 1963. 34. In the Limitation Act, i963, in section 12. in sub--scction (3), the words "on which the decree or order is founded" at the end shall be omitted. CHAPTER Vll AMENDMENT or THE COURT FEES' ACT, 1870 7 of l870l5 35. hi the Court Fees' Act, 1870 (hereafter in this Chapter referred to as the Court Fees' Act), after section 15, the following section shall be inserted, namely:---

"l6. Where the court refers the parties to the suit to any one of the mode of S of I908. settlement of dispute referred to in section 89 of the Code of Civil Procedure, the plaintiff shall be entitled to a certiﬁcate from the court authorising him to receive 20 back from the collector, the full amount of the fee paid in respect of such plaint.".

36. In the Court Fees' Act, in the Second Schedule after serial number IA and entries relating thereto, the following serial number and entries thereof shall be inserted, namely:-- -

"lB. Application to any Civil Court for When presented to Rs.50/- 25 local inspection under Order XXXIXA Civil Court of the Code of Civil Procedure, 5 of i908. 1908.".

Amendment of section

12. Insertion of . new section

16. Refund of Fee.

Amendment of the Second Schedule.

STATEMENT OF OBJECTS AND REASONS 'lhe law relating to the procedure in suits nud civil proceedings in India (except those in the State of Jnmmu and Kashmir and Nagnlund _und Tribal Areas of Assntn and certain other areas) is contained in the Code of Civil Procedure, I908. 'l1ie Code has been amended from time to time by various Acts of Central and State l,egislnnm-.-;. 'the Code is mainly divided into two parts, namely, Sections and Orders. While the main principles :ne'eontain«-d in the .'~2ection.-.*, the detailed proeedunrs with reganls to the matters dealt with by the Sections are speeilied in the (Jrders. Under section I22, the High Cotuts have powers to amend, by rules, the procedure laid down in the ()ltlt'I'S. ln exercise of these powers, various amendments have been made in the Orders by the different lligh Courts.

7.. In terms of the Common Minimum Programme of the United Front Ciovemment, it was envisaged that n Hill on judicial reforms: and dispocml of pending ca.':es within tt period of tltree years may be introduced in the t'xu'liatnent. With a view to keep the commitment given to the people of lndia so that a speedy dbposal of cases may take place within the tixcd time frame and with a View to implement t.he report of Justice V.S.MaliInath, it was thought necessary to obtain the views of the State Governments on the subject_also. in the Law Minister's Conference held in New Delhi on 30th June and [st July, I997, the working paper on the prop-rtevl :um~mlmeut:; to the Code of Civil Procedure, I908 was ¢.liseti:;st-ti. On the basis of resolution adopted in the :::iitl (fonfemtree and with a view to implement the reeommeuvlations of Justice l\lalituath Cotmnittee, 129th Report of the Law ffonunix-:ion of India and the reconmuemlation:: of the Couunittee on Subordinate Legislations ttlth Ink Sal-ha). it is proposer] to introduce a Bill for the amendments of Code of Civil Procedure, 1908 keeping; in view, tuuoug others, that evety effort should be tuade to expedite the disposal of civil suits and pttv.'ee.dings so that justice may not be delayed.

.l Some ot' the tuotv itupottaut cltauges ])l't)p'|.'~'t'tl to be mmle are :-.:~' l'ollow.-;:---

\-----4 (at :m_\,' pluint to be tiled :1ll.'Ill be in «luplieate and I-ll'tll be :tecotnp:utied by all the tlovtttitctits "'t whit-h the piainlitt rs-li--': upon in .'€|l|'[t|)ll ol hit; elttim. It is also to be .'ttl[\|)()tlt'(l by an xttﬁrlmvir

-:t~ttiug tltr t:t'tlllltlt'tt".'~.'€ ol' the claim of the pluiutilt' and ot the «lorumrnts on whi-ih he rtrlits upon;

(lit the written statement in duplicate shall he :I('t.'t)ltI[tt\tllt'(l by all the documents and shall be tiled within a period of thirty days trom the (lntr of service of suuunons. Written statement is also to lie ruippoltt-tl by all :tl'li(l:r/it;

(e) in older to obviate delay in service ot' .-mmtnon.-;, it is propoe:efd that plaintill shall take the .'~utntIIott': lion» llle eoutt and send it to the p'utir.~;, within two (lays ol' the receipt then-ot', by post, lax, e mail, spm-rl ptvﬁl, courier service or by such other tneatis as may be dinzeted by the court;

ill) with a view to implement the l.'!')lh Report of the Law ('UtIItlIl.'~'..\'intl ol' India and to make ("tltt'lll:tllttlI .-'eli-hie elteetive, it is pr'op<-s-ml to tualu' it obligatory littl the court to refer the di:~:pttt<'.'nltt'r the l:~'.\'tu'.\' are liatned for settleirtent ritln-r by way ot' arbitration, conciliation. mediation, judicial settlement or Ilrrough Ink /\(l.'ll.'ll. It is out' alter the parties tail to get their disputes settled through any one of the .'!llt'tlI.'Ilt' diwpute resolution methods that the suit shall pron:-sd Iinthrr in the court in which it waslilctl:

(e) as the maxitmuu time is cotIstIIw'(l in n-voulinl; oral evidence by the courts which causes

-lrl:-_v in tlisporml ol' cases, it is ptoposetl to lt'tllll't' stu-h d-.-lay by tnakitly, provisions for tiling of t"(.'||Itlllttllt'lI in ehiel ol n-very WlllII'.'~"- in the totm -:l an nllirlavit. For the crossexutilinalion .'Ill;l te-

s'x-unin.-ntion mt wittu~s:.t~.-; it i:; |Ylt![Mt'1t'(l that it .'-ltflll he tt't'tVItlt'tl by '1 rotmuissioner to he appcitttml by the er--ut and the t".'l£lt'tH.'C reeotxletl by a CutlIttti:~'~;ltttIe{ .--:h:rll become part of the zecotd ot' the suit;

U') with :x View to impleutent the t't-anmmu-ml;-ti-m:; ot the Cotutuittre on Subordinate Legislations ttlth lok Salvha) relating to steps to reduce iutn:v:e~'s:tt'y adiourtituents, it is proposed to make it obligatory for a jmlge to reeotd reasons tor ud_ir.mtntneu: of :1 case as well as; award of actual or higher cost and not merely notional eost against the parties .'u't'4.'l(lltg ad_iour1uueut in favour of the opposite party. l-'nrth-'r. it is proposed to limit the number of :uli-mtnmeut.-.' In three only during the lieatiug of a ease;

NS , ~ ~..--< .. . \l¥bll'y"' 1 17

(g) as the party in whose favour an injunction has been granted usually causes delay on ﬂimsy and u||rcas()|ml)lc grounds, it is proposed that the party who applies for injunction shall also furnish security so that that party may not adopt delaying tactics during the trial of the case;

(h) in matters relating to property disputes, particularly in matter of unauthorised construction on the land of others, it has been found that, under the existing provisions of the Code of Civil Procedure, no application for injunction can be moved unless the suit is filed first in the court having competent jurisdiction. With a view to obviate this hardsnip, it is proposed that a person may make an application to the court of competent jurisdiction for appointment of a commission to ascertain the factual sums of the property so that at the time of the ﬁling of the_regular suit the report is available to the commissioner relating to the factual status of the property in dispute;

(i) with a view to implement the recommendations of Justice V.S. Mnlimath Committee, it is ' proposed that no further appeal against the judgment of a single judge shall lie even in a petition lmder - article 226 or 227 of the Constitution; and

(j) with a view to reduce delay, it is proposed that the court shall on the date of pronouncement of judgment simultaneously provide authenticated copies of the judgment to the parties. Appeal shall be filed in the court which passes the decree and no notice shall be served on the advocates of the parties in the court of first instance. '

3. The Bill seeks to achieve the above objects..l.x NEW DELHI;

Lijme 12:11 August, 1997. . RAMAKANT D. KHALAP.

Note.' on clauses' Clause 2.--»- In section 26 of the Code, a suit is instituted by presentation of a plaint or in such other ninnner as may be prescribed by rules made by High Court. Since. these rules are different with different High Courts, the. requirenients for institution of suit are not uniform. 'lhe rules made by some High Courts require plaint to be supported by an aflidavit stating the gciiuinencss of the claim of the plaintiff and of the documents on which he relies upon while. no such affidavit is required under the rules made by some lligli Courts. With ll view to lirlltp uniforinity and lay down simple procedure to eoiuplete the pleadirigs, clause 2 ainerids section 20 of the Code and provides that face; riuist be proved by aflidavit in every plaiut.

('Iuu.w» 3 aineud:: seetioii 27 of the Code with ii view to lay down xi lixed time frame to send summons to rleleiidziiits. It seeks to provide 30 days frorii the institution of suit within which siiriimons should he sent to deteiidants. ' ('lriirse 4.- - in clause (c) of section 32 of the Code. the court is empowered to impose a line not exceeding five hundred rupees for the purpose of compelling the attendance of any person in the court. (flame

-t substitutes "live. thousand rupees" in place of "live hundred rupees" in the said section. for the reason of deeiease in the riioiiey value. since the time |tt'tt\lSlUll w:is made.

('/:m.w 5.~~ Section 58 of the Code provides for the detention and release of a person from civil prison in e.'(er_'iitiori of a rl«'4.'rec. Sinee. the time pro\'isions of section 58 were iuade. the value of money has decreased! eon.-:ivleial-ly. In this view. cl.-in.-;e 5 seeks to am-.-rid section 58 and it substitutes for the Words "one thousandf . rupee::" and "live hundred rupees" the words "live tlltIl|'~'fIlltl rupees" :Ut(l "two thousand rupees" respectively. 5 f'/uuse 6.- Section (>0 of the Code provides for att-ielv.im-ivt and sale of properties in execution of at der-tee. t'l:ui.-ze (3 se4'l"4 to arueud section (0 by svibstiliitiv-e "-me ti-ou.-carul rupees" in place of "four lumdred-- rupee.-:" for the reason ol' decrease in the. money value siiiee the iitltt' p~o'.'t~:ioris were llltltltf.

t t E I .

t t'/iiu.\':' 7. -- provides for the settlernetit of disputes outsisle the -'t.'l|ll. 'l'l'e pmvisioiis of clause 7 are based on the veer»nirneud:itioii:< inade by Law ('?oiiiiiiis's'ioir of India and Maliniatlr Couiinittee. It was suixgesteil by law ("4--moi-;-;ion of India that the ('oiirt make require attendance. of any party to the suit or [\rri¢'erdiiigs to appear in |".'l.'u"'lI with a view in arriving at an amicable settlement of di::puIe between the. partieti and make an attempt in .-zrttht the dispiite. between the parties ainieably. Maliiiiath Coiiiiiiittee f(X.'()ll|tllt't'(lt'(l to lltttlic it obligatory for the court to refer the dispiite, alter issiies are li-aincd, lor settlement either b_y way of arbitration. t.'t)Ilt_'lllttll('lI.i ltlttlilllivm' judicial settlerneiit or llirougli l.ok Adalat. it is only when the p:ll'lit'.'= tail to their disputes settled; tliioripl: an,' of the alte.ruate dispute resolution method that the suit could proceed further. In view of the ahove,i t'l!Itt.'t1' '7 .~:eel::'. to insert a new section 89 in the Code in order to provide for alternate dispute resolution. ' I t'.hIu':r- 8'. -- in '3t'('ll('lt ')5 of the Code, the court uiay award conipeusatioii not exceeding, one tlinusatid zupees in ezi.-;e it appears to the court that an arrest, attachment or injunction has been effected and sucli arrest, att:ielmient or iiijimetiorv was applied for iiisuftieieut ground or that there was no reasonable ground for instituting the suit. Sub clause (2) --l' llt'.' said ."t'etion bars a suit for eoiiipeiiszilioii in respect of such arrest, nttacliuient or ' irijniwtinn it' .-in uni-.-.r ll.'l.'i lxr-cu p:a::::ed by the court on an application for eoni[x'rr.-zatioii under subefeetiou (I). In this ciieuuislatice._ elriu::-- R .\'I'1'l\'.'~' Io Sltltslllltltiﬁ "lility tliousaud rupees" iti place of "one tlioiisarid nipces".

('/uu.w' 0. ~ Se--tion 'Vi ol the ('ode provides for an appeal lioui original decree. Since the tiriic provisions were made the value of |IIUt)t'\' has eoii-<ider.-iblv deereaseul and the pecuniary limits of "three thousand nipees"

recpiiie to be revisetl. (fl,-ui:;e 9 tlieieli-rv: seele; to subretitute "twenty live tliousaud rupees" in place of "three llt"tI.'~'.'tl|(l rilpves" iu seetioii 'VJ.

(.'/rim»: /0.--» Justice Maliinatli (.'ouiniittee examined the issue of further appeal against the judgiuerit of " u I 1', - "'is' v -ven a tin: a v vellate 'urisdietion. 'l|ie ('oininittee reeomiueiided for suitable amendments Strip) in L: t..'(tlL mi, 9 H J h _ _ ;

to .-;ecIiori I00/\ of the Code. with a view to provide that further appeal in this regard shall not he. the Coniinittce ' also reer-uiineiider.l for suitable t.'l\7'.L'lllltTltl by l'arliaineiit for abolition of appeal to a Division Bench against the (lt'r'i_*§l4ui and order rendered by a Siiugle Judi-_e of the High ('ourt in a proceeding under articles 226 or 227 of the ('mistitution_ ("lanse IO seeks to siib.-»titutc a new section l0'J/\ with a View to provide for no further appeal in the above cases.

[8 19 1"/arm' II. - - S:-vti<m I02 of the (Tale hats rccnnl nppcal when the xitmumt or vnluc of the subject Inuttcr If'l tlw .-mil ulm-s llnl <'.V(n'I'd um-, thou.-::m(l rlupccs. .II:.sticc Malimalh Cnmihitlcc l'cL'()lIll'n(7ll(.lt:(l the alncmlmcnts Ivy

-:n-Iinu I02 in ('l(l'-'I' In :-'ulvr:tilulI' a limit of I\vrI1ly-livr. lhnnreand tnlpcn-5 in place of (mu: Ihnusand r'up(:¢_:s {pr the h Ira.uu|::: nl t|ccIr:I.~:r in Ihr value of money since the tune provisionx wun: made. Clause ll sucks to bring in a Elinnil c-I' twc,-my-live lhnu.-:am| rupcus to bar l'l3C(>l'(.l nppcnl.

('I:Iu.':(' I2. Sc-vliun ll5 til" the Cmlc prnvixlcs fur n-vision hy Ilw. High Cnurl of an order ur dccisirm «ii any cnurl .-mlmnlin.-Itr In .~:ncII High (Wmrl. 'Ihc Mulinmth ('nmInittvc nuticcul that ultrn the n-rural}: of thr lower t'I\Hll?m :m~ .-.1-nl tn lhr lligh (fnurl in lln: n-visinnal pmcwtliluzs. It is ilIl|>('l'llllVl'. [hat n-corals of paw.-muliupgs '~'l1'.lilI1; in Ilu- sulmr(lin:m.-. Cuurl slmuld nut In: sum un|c:~;.~: High Court so tlx'..~'.irc.x' and n-vi.-aiun :;huuId not op:-ralc ax' -gm, nl' procm-(lingx In-lbrv the trial court. The Cnmmillcx: while agreeing in prinviplc that scope nf inlcrlictcncc .;:np_vain.-:1 int:-rloculnry nr(h't.\' slmuhl lac rvstrictvd, frll that the ohjocl can In: achictvctd mun: cllcctivcly without i<lx-Inamling the High (fuurt u!' the power of revision. Clause I2 scrk.-4 In :lclliuv(' the above nlvjccl by suitable am-'mI|m-nl-; tn xv:-Iiun IIS.

('Iunw I3. « :wL'li0II I-18 nl" the Code pruvixlcs for enlargement ul' lime by thc court. When: any pcrixxl 'is lix-.-«I ur ]1f.'IlIlt'(l Ivy llw Cllllfl for of any act pn-scriln-(I or nll0wc(l hy that ('(xh',, cum! Ims disci'cli(m to cnlatgc ~;Iu'lI p:-Iiml. ('I:m::v I3 St'l?l(S to put a limit on cnlargmmtllt nl' .~:u<:h pcriud by inserting the words "not cxcccding [thirty days in total" in scclinn I48 with {I VICW In minimise Iln: procedural delay at the instance of cilhrr pzuly ., .

§I1I.'I.\'llII.

(,'l.m.w I4. Duh-r IV ml' the codc pmvid-:s fur the institution at suit.-s. .'>'ul»~mIc (I) of rule I of Onln-r ;l\' ~;I.-ale--: that cvrry suit shall be instituted Ivy pwsculing a plain! to the court. Since a copy of plain! is sent Elv-l'<~n- vault and a rluplia.-an-. copy of plaint in llL'('(ll'tl l'ur rm-'nrds, .~:uitalnl:'. amrnrhmmls are made in thi:s n-gard

-_x vlau-=-' M which n-quin-2 insliluliun of a suit lwy pl'l?Sl'.lIilIlg plain! in duplicate in lh-: cmul. SuI)--ruIc (2) of rule I ml' lhv said «ml:-r n-quirrs cuinplizmcc. 0|" ccrlain fnrmalitics Ivy the rcgisuy of cuurt. Will: in View In (ll.\'])('.l'lll(' hull-IS wh:-n a suit is n:p.:ml«-d to have been lllslllllltttl, clause I4 inserts a nvw sub-rulc (J) in provide that lhr.

-him shall not hr (In-mml to be duly iuslitulcxl unlc.s's it complies with tln: rcquircnu-nls specified in sulv-ml:-.< ll! rm-I (2).

E :

E I'/-m.-.w /'-_ (ml-vr V ol' lhv C()(l(f prnvitlcs l'nr ixwc and surviur of sulmm-n:<. The Malilnath Cnmmitl-:r

-ml:--4| imn thr [vmhlvm nl :nr«~:n'»' nl' cases in lln: courts and rccmmncuvlml :m1c!1(hm'nl:~: to lln: Cmlc with a vi('\v in l:-_\,' (hI\\'lI :1 livml timv lramv \"ilI\in which ph:a(ling:»' arc to In' osmllplctrd. (flausc I5 Sl'.Cl'.S to substitute suit ,uI:- II) --I' mlv l ul l)nI«-r V In ptuviulv lnr tiling wrillrn :~:IaIcmcnt:~: within thirty (lays I':-om the day of iI1:~'tilntiu|\

-1 llvr -mil -'ﬁr':-1-I in Ivw u'iIuaIi<m-4. l'l:u1.~:v I5 anwmlr. llIl('.'i 2, 6 .--ml 7 In I'lI.'illH' that L.'np_y ml" plain! alungwith vll vl----wr nl.'~' on which plainlill rrlins; upnn arr lil'ilV('l|'(l with .'§lllIIIIlIIltH In lhv th-lcmlzlnl. 'lhi.-4 clause S|llYs'lilIlll'S

-nlr ') In |rrn'v'lllt' linr dcliu-ry ul sumnmnv lay .-:pc(t(l post. cnuricr .~:crvic1-,, lax llutsszugt: cut by clcctmnic: mail, .:-xviz'1- xv; lllc lligh ('uml may prcscrilx: lly mlvs. It tIrnlu::~; the Cmlr up lntlfllt' with lhc cliauging nrcd:~: of the Illm'.

--~ ('/rams' IO.--v ()l'.ll'l' VI 11]" llu: c.'(Kllt proviilm llwr Ii]:-attlitigs gain-.r:all_'y. Clause l(1 Sl?lZl(S to provide that §"'l'~ vn xmilying lhv plvtlclillg shall l'urni'-sh :m ullixlavil in .~.uppnJ'l nl' his ply-:ulinp,s. 'Ihi.s' clause nmils rules 5, I7 gm-I IR ml" Uulrr VI In lining in cnusinlx-mzy with nu-.w L'lmn,,;r.-: in tin: Cmlc.

('/mm' /7.--»- In Unl-.r VII ml" Ilu: Conic, mlc I4 pmviLIx-5 Inr pn-ducliun nl' (lnclItm'nIs on which plaintiff '-lrllll rnl--r suvlt tlm-Irnwnls in :1 list and shall pmclncr. it in court when plainl is pl"\\\'-I'l'tlt'l.l by him and shall «I-'liu-r (lug-urncnl and a vupy t|Iv:rc'(>l' In In.' lilcxl with lhc plainl. 'lhL' In-,w mh: lurlhur prm-i<lc:~; in case an dnculnunl : r ¢.'rr]r_v ill-'rrnl' is lml lilcrl with the plainl. it shall nut In: allmvul In In: ntccivcxl in CVILICIICL' on hcl1:I|l'ul' glainlill at that Iutaring (It llu' suit.

('1./u_~,« I8. Dnlrr VIII ml' Ihc (fmlu pnwi(lu.~ lm' writlrn 1~'l.'Ill'lllI'IIl and sclnll'. (.'l:nI.~;r I8 scrim tu 'E--ll iitulv tulv I nl (hclrr \'III In ]IIn\'i(l¢.' a Iixvcl limr luunr within \\'hi<*l| |vh':nIiII;:s an' In In: L'n|u[\l\'luI. 'Ihr ¥«-u 1-m\i.~.'i<-n-4 n-quilt-«I lhv (lI'l|'llllIIlli In puts:-nt a wiillrn slalumrni within thirty (lays lrnm lhc dalc ol' scrvicv. ul wuuunnnzx nu thr (lr|'«-Iulaul. ('l:msc IR inscrls rulc I/\ to provide it a duly nl di-.l'«:n(lant In protlucc (lncuun'nt:~:

you which rulicl is Clilillllftl 0|' lt'lll'(l Upnll. Ivy him. Rulc IA n:quirr:~' lhr ¢l«:li-mlaul In produce Ll()ClIlll('lIl.\' in his :§rr.-u--.--~i<m in thv cum! and (lt'llVl'f tho <lcu.'un|u.'nl and a copy lln:rruI' wlwn lhr wlitlrn slatcmcnt is prc.~;('l|l«'4l by iim. llulv IA lurllu-r I'rq\1iu'H in must a (Iucunu.-nt or copy lln-In-ml' is not liilrd with lhv Wllllcn slatcm<'ul,_il §hal| uni luv alluw(~(I In in' Il'L"'l\'\"l in c-\i:l<',uc:- on lvclmll' HII' (l«~li'iulaIIl_ at lhv lwaringynli tln: suit. ' il inn--; ('l:msx: I7 Sl'I'l>{.\' In sulzslilulc rule I4 10 pmviilr when: a plaintiff sums' upon a doc-mm-nl in his pus:~:('.~:sion, .

Clause 19.-- Rule 2 of Order IX is being substituted so as to provide that where there is default on the part of plaintiff to deliver summons _to the defendant, the suit shall be dismissed by the court. This is in addition to non-payment of cost by the plamttff as a ground of dismissal of suit.

It is proposed by amending rule 5 of Order IX so as to reduce the period from one month to seven days within which the plaintiff is required to apply for fresh summons where summons earlier issued remain un- served.

Clause 20.--- Order X is proposed to amend by inserting rules IA, IB and 1C in the said order. This amendment is consequential to the insertion of new section 9 vide clause 7 of the Bill.

Clause 21 .-- Rules 2 and IS of Order XI are proposed to be amended by ﬁxing time limit to decide an application for leave to deliver interrogatories and to provide that an application for inspection of documents by the parties can be made only before the settlement of issues.

Clause 22.---- Rule 2 of Order XII is proposed to be amended for reducing the time from fifteen days to seven days within which notice to admit a document may be given by any party to the suit. ' Further the second proviso to rule 4 of the said order is being omitted so as to curtail the discretion of the court in the matter of allowing any party to amend or withdraw admission made by him.

Clause 23.---- Rules 1 and 2 of Order XIII are proposed to be substituted so as to provide that the original of documents of which copies have been ﬁled with the plaint and written statement shall be submitted before the settlement of issues is made by the court.

Clause 24.---- Rule 4 of Order XIV is proposed to be amended so as to restrict the discretion of court by fixing time--limit beyond which no adjournment for the examination of witnesses or of the document shall be granted by the court before framing of issues by the court.

It also proposed to omit rule 5 so that issues are framed within time and no application for amendments and striking out the issue is entertained by the court.

Clause 25.---- Order XVI is proposed to be amended so as to tix a time limit within which an application may be made for summoning of witness. Further it is proposed to provide that a party applying for summons shall pay fee towards calling the summons within a period not later than seven days from the date of making application.

Clause 26.--- Order XVII lays down the procedure for granting adjournments. The Committee on Subordinate Legislation (Eleventh Lok Sabha) recommended that it should be made obligatory in the judgment to record reasons for adjournment of cases as well as award of actual and not merely notional cost against the party seeking adjournment in favour of the opposite party. It is proposed to make it obligatory by amendment of proposed Order. It is proposed to make it obligatory for the judges to record the reasons in writing where the court grants adjournment and to award the actual cost to the opposite party. Further limit up to three adjournment: has also been fixed in a case.

1} Clause 27.---- Order XVIII provides for manner of recording the evidence. It is proposed to confer the power of recording of evidence by the commissioner to be nppointul by the court.

Clause 28.-- Order XX makes it compulsory for a party ﬁling appeal to annex the certified copy of the decree to the Memorandum of Appeal. Justice Malimath Committee has pointed out that it takes a long time for obtaining certified copy of the decree and thus filing of appeal takes a long time. It is proposed to dispense with annexing certified copy of the decree alongwith Memorandum of Appeal and it is also proposed that the whole judgment shall be made available to the parties immediately after the judgment pronounced.

Clause 29.--- Order XXVI enables the court to issue commission only in cases where witness resides outside the local limiL<'. of the jurisdiction of the court. It is proposed to amend Order XXVI by inserting a new rule 4A so as to enable the court to issue commission in any case where the interest of justice so demands.

.'2.l Clause 30.-- All has been observed that after obtaining temporary injunction the party in whose favour injunction has been granted causes delay in disposal of cases on flimsy and unreasonable grounds. To curb this practice it is proposed to amend Order XXXIX so as to provide that the party who applies for obtaining injunctionslrall also funrish security so that it may not adopt delaying tactics during the trial of the case.

Clause 3l.-- seeks to insert a new Order XXXIXA. Under the existing provisions of the Code of Civil l'l'()L'('AlllfC, I908 no application for interim injunction can be moved unless the suit is ﬁled ﬁrst in the court having competent jurisdiction. ln matters relating to property disputes particularly it may help a person if such a person 'can make an application to the court of competent jurisdiction for appointment of a Commission to ascertain the factual status of the property so that at the time of ﬁling of the regular suit the report of the ,Cornrnissioncr is available relating to the factual status of the property.

Clause 32.---- proposes to amend Order XL! of the First Schedule so as to provide for ﬁling of appeal m the basis of the copy of the judgment, to avoid delay as obtaining copy of decree takes considerable time.

El-'urther to avoid delay it is proposed that an appeal may be tiled in the suture court which passed the judgment and that court shall direct the parties to appear before appellate court.

» Clause 33.-- By this clause, all amendments to the Code made by the State Legislatures and the High "onrts before the commencement of the Code of Civil Procedure (Amendment) Act, 1997, are, except to the extent they are consistent with the provisions of this Act, being repealed. The provisions reL'tting to savings are broadly intended to ensure that the amendments made by the sections are broadly intended to ensure that the mendrnents made by the sections mentioned in sub--section (2) are not taken advantage of in respect of roceedings which are pending at the commencement of the Code of Civil Procedure (Amendment) Act, 1997.

Clause 34.-- (Amendment to the Limitation Act, 1963) E Subsection (3) of section I2 of the Limitation Act, 1963 excludes for limitation purposes the time required for obtaining a copy of judgment on which the decree or order is founded. As it is proposed in clauses 28 and 2 of the Bill that copy of judgment is to be delivered at the time of pronouncement of judgment and that is C ufﬁcicnt for filing of appeal, therefore, amendment of consequential nature are being made under the aforesaid ub-section by omitting the words "on which the decree or order is founded".

The proposed amendment is consequential to the new section 89 in the Code of Civil Procedure, V308, Erroposed to be inserted vide clause 7 of the Bill so as to enable the party to claim refund of court--fee in case Clause 35.-- (Amendment to the Court Fees Act, 1870) re matter in dispute is settled outside the court. Clause 36.------ (Amendment to the Schedule to the Court-Fees Act, 1870) The proposed amendment is consequential to the insertion of new order XXXIXA in the First Schedule Eroposed to be inserted vide clause 31 of the Bill. The proposed amendment prescribes fee in these cases where a person applies for inspection before institution of the suit.

MEMORANDUM REGARDING DELEGATED LEGISLATION Clause (d) of sub-section (2) of section 89,. as sought to be inserted by clause 7 of the Bill, empowers the Government and the High Courts to make mles to be followed in mediation proceedings to effect the compromise between the parties.

Rules 9 and 9A of Order V as sought to be substituted by clause 15 of the Bill, empowers the High Courts to approve the courier service for the purpose of service of summons and also empowers to make rules with "regard to other means of service of surmnons.

Rule 4 of Order XVIII as sought to be substituted by clause 27 of the Bill empowers the High Courts to provide, by rules the sums 'to be paid to the Commissioner for recording of evidence and the amount payable to the Commissioner by the court or by the parties.

Rule 6B of Order XX as sought to be substituted by clause 28 of the Bill empowers the High Courts to make rules with regard to the charges to be paid by the parties for supply of copy of the judgment.

The matters, in respect of which such orders or rules may be made are matters of detail and may hardly be provided for in the Bill. The delegation of legislative power is, therefore, of a normal character.

Institution of suits.

Summons to defendants.

Penalty for default.

Detention and release.

'qt! U<L.'.

ANNEXURE Exnmcrs FROM THE CODE or CIVIL PROCEDURE, 1908 (5 or I908) * 'k 'k 'k 'k INSTITUTION OF SUITS

26. Every suit shall be instituted by the presentation of 'a plaint or in such other mamrer as may be prescribul.

SUMMONS AND DISCOVERY

27. Where a suit has been duly instituted, a summons may be issued to the defendant to appear and answer the claim and may be served in manner prescribed.

* 'k * * 'k

32. The Court may compel the attendance of any person to whom a summons has been issued under section 30 and for that purpose rnay--

'k 'k 'I: * t

58. (1) Every person detained in the civil prison in execution of a decree shall be so detained,-

(a) where the decree is for the payment of a sum of money exceeding one thousand rupees, for a period not exceeding three months, and ([1) where the decree is for the payment of a sum of money exceeding ﬁve hundred rupees, but not exceeding one thousand rupees, for a period not exceeding six weeks:

Provided that he shall be released from such detention before the expiration of the said period of detention-

(i) on the amount mentioned in the warrant for his detention being paid to the officer in charge of the civil prison, or

(ii) on the decree against him being otherwise fully satisﬁed, or

(iii) on the request of the person on whose application he has been so detained, or

(iv) on the omission by the person, on whose application he has been so detained, to pay subsistence-allowance:

Provided, also that he shall not be released from such detention under clause (ii) or clause (iii), without the order of the Court.

(IA) For the removal of doubts, it is hereby dwlared that no order for detention of the judgment-debtor in civil prison in execution of a decree for the payment of money shall be made, where the total aruount of the decree does not exceed live hundred rupees.

2.3 .2/I /\'l'TACllMENT

60. (1) The following property is liable to attachment and sale in execution of a decree, namely, lands, houses or other buildings, goods, money, bank--notcs, cheques, bills of exchange, hundis, promissory notes, Govenuuent securities, bonds or other securities for money, debts, shares in a corporation and, save as hereinafter mentioned, all other saleable property, molvable or irnmivablc, belonging to the judment--dcbtor, or over which, or the protits of which, he has a disposing power which he may exercise for his own benefit, whether the same be held in the name of the judgment0debtor or by another person in trust for him or on his behalf:

Provided tha the following particulars shall not be liable to such attachment or sale, namely:---

* t 'k * *

(i) salary to the extent of the first four lnuidred nlpces and two~thihds of the remainder in execution of any decree other than a decree for maintenance:

Provided that where any part of such p|ortion ol' the salary as is liable to attachment has been under attachment, whether continuously or intermittently, for a total period of twenty-four months, such portion shall be exempt from attaclnnent until the expiry of a further period of tweleve months, and where such attachment has been made in execution of one and the same decre, shall, alter the attaclnnent has continued for a total period of twenty-four Inonths, be ﬁnally exempt from attachment in execution of that decree.

95. (I) Where, in any suit in which an arrest or attaehemnt has been effected or a temporary injunction granted under the last preceding section,-

((1) it appears to the Court that such arrest, atachcmnt or injunction was applied for on in suflicient grounds, or (I)) that suit of the plaintilT fails and it appears to the Court tht there was no reasonable or probable grolund for instituting the same, the defendant may apply to the Court. and the Court may, upon such applicatiomawanl against the plaintili by its order such, amount, not exct-cdin;_-_ one thousand rupees, as it deems a reasonable. coIn|x'nsatioII to the tlelendannt for the expetise or injury (including injury to reputation) caused to him:

Provided that the Court shall not award, under this section. an amount exceeding the lkimits of its pecuniary jurisdiction.

PART Vtl APPEALS APPEALS FROM ORIGINAL DEGREES

96. (I) * * * * * Property liable to attach--ment and sale in execution of decree.

Compen-

sation for obtaining arrest, attach-

ment or injunction on suflicient grounds.

Appeal from O r i 3 i n a l decree.

Z5' (4) No appeal shall lie, except on a question of law, from a decree in any suit of the nature cngnisable byh Courts of Small Causes, when the alnount or value of the ::ubiect--matter of the original suit does not exceed three thousand rupex-As.

K * * 'k 'R No I'urtlu-.r I00/\. Notwithstanding anything contained in any Letters Patent for any High Court appeal in in any other instrument having the force of law or in any other law for the time being certain in force, where any appeal from an appellate decree or order is heard and decided by cases. a single Judge of a High Court, no further appeal shall lie from the judgement, decision or order of such sin le Jud e in such a v al or from an decree assed in such a l. E 8 Y P * . * 'k 'R 'k No second I02. No second appeal shall lie in any suit of the nature cognizable by Courts of appeal in Small Causes, when the amount or value of the subject-matter of the original suit docs certain not exceed three thousand nlpecs. suits.

k * 'k * 'k Revisions H5. (I) The High Court may call for the record of any case which has been decided by any Court subordinate to such High Court mud in which no appeal lies thereto, and if such subordinate Court appe. s--

(a) to have exercised a jurisdiction not vested in it by law, or (II) to lmvc failed to exercise a jurisdiction so vested, or ((') to have acted in the exercise. of its iuuisdiction illegally or with material irregularity, the High Court may make such order in the case as it thinks lit:

Provided that the High Court shall not, under this section, vary or reverse any order made, or any order deciding an issue, in the course of a suit or other proceeding. except where-

(a) the order, if it had been made in favour of the party applying for revision, would have linally disposed of the'suit or other proceeding, or

(b) the order, if allowed to stand, would occasion a failure of justice or cause irreparable injury to the party against whom it was made.

(2) The High Court shall not, under this section, vary or reverse any decree or order against which an appeal lies either to the High Court or to any Court subordinate thereto.

ExpIunuIion.--ln this section, the expression "any case which has been decided"

includes any order made, or any order deciding an issue, in the course of a suit or other proceeding.

R 'A' 'k 'k * 16

148. Where any period is ﬁxed or granted by the Court for the doing of any act Enlarge- prescribcd or allowed by this Code, the Court may, in its discretion, from time to time, meat of enlarge such period, even though the period originally ﬁxed or granted may have time. expired.

'k * 'k * R ORDER IV INSTITUTION OF SUITS l. (1) Every suit shall be instituted by presenting a plaint to the Court or such ofﬁcer Suit to as it appoints in this behalf. be com-

' menced * * * * * by plaint.

ORDER V Issue and Service of Summons Issue of Summons

1. (I) When a suit has been duly instituted a sutnmons may be issued to the Summons. defendant to appear and answer the clailn on a day to be therein speciﬁed:

Provided that no such sutnmons shall be issued when the defendant has appeared at the presentation of the plaint and adtnitted the plaintiffs claim:

Provided further that where a summons has been issued, the Court may direct the defendant to ﬁle the written statement of his defence, if any, on the date of his appearance and cause an entry to be made to that effect in the summons.

2. Every summons shall be accompanied by a copy of the plaint or, if so permitted, Copy or by a concise statement. state-

IIICDI * * * * * annexed to summons.

'1 4

6. 'lhc day for the appearance of the defendant shall be ﬁxed with reference to the Fixing day current business of the Court, the place of residence of the defendant and the time for appear- necessary for the service of the summons; and the day shall be so ﬁxed as to allow the ancc of defendant sufﬁcient time to enable him to appear and answer on such day. defendant.

7. The summons to appear and answer shall order the defendant to produce all Summons tot documents in his possession or power upon which he intends to rely in support of his order cnsc_ dill-Cﬂdﬂﬂl (0 produce * * * * * documents relied on by him.

Delivery or trans-

rnission of summons for service.

Sirnult-

aneous issue of summons for service by post in addition to personal service.

Service of summons w h c r e defendant r e s i d e s w i t h i n jurisdiction of another Court.

Service on defendant in prison.

1'7 Service of Summons

9. (I) Where the defendant resides within the jurisdiction of the Court in which the suit is instituted, or has an agent resident within that jurisdiction who is empowered to accept the service of the sutulnntts, the summons shall, unless the Court otherwise directs, be delivered or sent to the proper officer to be served by him or one of his subordinates.

(2) The proper officer may be an officer of a Court other than that in which the suit is instituted, and, where he is such an officer, the summons may be sent to him by post or in such other manner as the Court may direct.

* * * * 'A' 19A. (1) The Court shall, in addition to, and simultaneously with, the issue of summons for service in the manner provided in rules 9 to 19 (both inclusive), also direct the summons to be sewed by registered post, acknowledgment due, addressed to the defendant, or his agent, empowered to accept the service, at the place where the defendant, or his agent actually and voluntarily resides or carries on business or personally works for gain:

, Provided that nothing in this sub~rule shall require the Court to issue summons for service by registered post, where, in the circumstances of the case, the Court considers it unnecessary.

(2) When an acknowledgment purporting to be signed by the defendant or his agent is received by the Court or the postal article containing the summons is received back by the Court with an endorsement purporting to have been made by a' postal employee to the effect that the dcfc.ndant or his agent had refused to take delivery of the postal article containing the summons, when tendered to him, the Court issuing the summons shall declare that the summons had been duly served on the defendant:

Provided that where the summons was properly addressed, pre-paid and duly sent by registered post, acknowledgment due, the declaration referred to in sub--rule shall be made notwithstanding the fact that the acknowledgement having been lost or mislaid, or for any other reason, has not been received by the Court within thirty days from the date of the issue'of the surnrnons.

* 'k 'k 'k 'k

21. A surmnons may be sent by the Court by which it is issued, whether within or without the State, either by one of its officers or post to any Court (not being the High Court) having jurisdiction in the place where the defendant resides.

* 'k * k *

24. Where the defendant is confined in a prison, the sutntnons shall be delivered or sent by post or otherwise to the officer in charge of the prison for service on the defendant.

2.8

25. Where the defendant resides out of India and has no agent in lndia empowered to accept service, the summons shall be addressed to the defendant at the place where he is residing and sent to him by post, if there is postal communication between such place and the place where the Court is situate:

Provided that where any such defendant resides in Bangladesh or Pakistan, the summons, together with a copy thereof, Inay be sent for service on the defendant, to any Court in that country (not being the High Court) having jurisdiction in the place where the defendant resides:

Provided further that where any such defendant is a public oflicer in Bangladesh or Pakistan (not belonging to the Bangladesh or, as the case may be, Pakistan military, naval or air forces) or is a servant of a railway company or local authority in that country, the summons, together with a copy thereof, may be sent for service on the defendant, to such officer or authority in that country as the Central Govermnent may, by notiﬁcation in the Official Gazette, specify in this behalf.

'R * 'k 'k 'k ORDER Vl PLEADINGS GENERALLY * 'k k k -k

5. A further and better statement of the nature of the claim or defence, or further and better particulars of any matter stated in any pleading, may in all cases be ordered, upon such tenns, as to costs and otherwise, as may be just. --

* 'It' 'I: 'k 'k

17. The Court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be just, and all such umendtnents shall be made as may be necessary for the purpmze of determining the real questions in controversy between the parties.

18. lf a party who has obtained an order for leave to amend does not amend accordingly within the time limited for that purpose by the order, or it' no time is thereby limited then within fourteen days from the date of the order, he shall not be permitted to amend after the expiration of such limited time. as aforesaid or of such fourteen days, as the case may be-, unless the time is extended by the Court.

ORDER VII PLAINT 'k 'k * 'k k

9. (I) 'lhe plaintiff shall endorse on the plaiut, or aruiex thereto, a list of the documents (if any) which he has produced along with it; and, if the plai_nt is admitted, shall present, within such time as may be fixed by the Court or extended by it from time to time, as many copies on plain paper of the plaint as there are defendants, unless the Court by reason of the length of the plaint or the number of the defendants, or for any other sufficient reason, permits him to present a like number of concise statements of the nature of the claim made, or of the relief claimed in the suit, in which case he shall present such statements.

Service where defendant resides out of India and has no agent.

Further and better state-

ment, or particulars.

Amendment 0 f pleadings.

Failure to amend after order.

Procedure on admit-

ting plaint.

Concise statements.

Production of document on which plaintiff sues.

List of other documents.

Statement ill case of documents in o t i n plaintil'l's possession (ir IXYVVCT.

luadmisi--

hility of document not pro-

duced when plaint tiled.

W r i t t e n statement.

(IA) The plaititiff shall, within the time ﬁxed hy the Court or extended by it under sulv-«rule (I), pay the requisite fee for the service of summons on the defendants.

(2) Where the plaintiff sues, or the defendant or any of the defendants is sued, in a representative capacity, such statements shall show in \vhat capacity the plaintiff or defendant sues or is sued.

(3) The plaintiff may, by leave of the Court, mncnd such statements so as to make them correspond with the plaint.

(4) The chief ministerial ofliccr of the Court shall sign such list and copies or statements if, on examination, he linds them to be correct.

* w _ * * *k Documents relied on in pliant I4. (I) Where a plaintiff sues upon a document in his possession or power, he shall produce it in Court when the plaint is presented, and shall at the salnc time deliver the document or .1 copy thereof to he filed with the plaint.

(2) Where he relies on any other documents (whether in his possession or power or not) as evidence in support of his claim, he shall enter such documents in a list to be added or annexed to the. plaint.

15. Where any such document is not in the possession or power of the plaintiff, he shall, if possible, state in whose. possession or power it is.

I8. (I) A document which ought to he produced in Court hy the plaintiff when the plaint is presented, or to he entered in the list to he added or annexed to the plaint, and which is not produced or entered accordingly, shall not, without the leave of the Court, he received in evidence on his hehalf at the hearini_.-, of the suit.

* * * k * ORDER Vlll WRl'l'l'lZN STATIZMENT, SE'l'~OFF AND COUNTER--CLA|M l. (I) The defendant shall, at or before the first hearing or within such time as the Court may permit, present a written statement of his defence.

(2) Save as otherwise provided in mle 8A, where the defendxmt relies on any document (whether or not in his possession or power) in support of his defence or claim for set-off or counter--claitn, he shall enter such documents in a list, and shall,-

(1!) if a written statement is presented, annex the list to the written statement:

.,t.-U. 4 so Provided that where the defendant. in his written statement, claims a set-off or makes rt counter-claim based on rt document in his possession or power. he shall produce it in Court at the time of presc.ntation of the written statcrm-nt and shall at the same time deliver the document or copy thereof to he ﬁled with the written statement;

(h) if a written statement is not presented, present the list to the Court at the first hearing of the suit.

(3) Where any such document is not in the possession or power of the defendant, he shall, wherever possible, state in whose possession or power it is.

(4) If no such list is so annexed or presented, the defendant shall be allowed such further period for the purpose as the Conn may think fit.

(5) A doctunent which ought to he entered in the list referred to in sulrrule (2), and which is not so entered, shall not, without the leave of the Court, be received in evidence on behalf of the defendant at the hearing of the suit. ' (6) Nothing in sub-rule (5) shall apply to documents produced for the cross-

examination of plaintiff's witatt-rises or in answer to any cnsc set up by the plaintiff subsequent to the tiling of the plaint, or handed over to a witness merely to refresh his memory.

(7) Where a Court grants leave under sub-rule (5), it shall record its reasons for so doing. and no such lenvc shall be granted unless good cause is shown to the satisfaction of the Court for the non-entry of the document in the list referred to in sub«rule (2).

8A. (I) Where a defendant hases his defence upon a document in his possession or power, he shall produce it in Court when the written statement is presented by him and shall, at the same time, deliver the document or a copy thereof, to be filed with the written statement.

(2) A document which ought to be produced in Court by the defendant under this nrle, but is not so produced, shall not, without the leave of the Court, be received in evidence on his behalf at the hearing of the suit.

(3) Nothing in this rule shall apply to documents pt'0duced,--~--

(a) for the cross--examination of the plaintiffs witnesses, or

(b) in answer to any case set up by the plaintiff subsequent to the tiling of the plaint, or (C) handed over to a witness merely to refresh his memory.

9. No pleading subsequent to the written statement of a defendant other than by way of defence to a set-off or counterclaim shall he presented except by the leave of the Court and upon such tenns as the Court thinks fit, but the Court may at any time require a written statement or additional written statement from any of the parties and fix a titue for presenting the same.

I0. Where any party from whom a written statement is required under rule 1 or rule 9 fails to present the same within the time permitted or fixed by the Court, as the case may be, the Court shall pronounce judgment against him, or make such order in relation to the suit as it thinks ﬁt, and on the pronouncement of such judgment, a decree shall be drawn up.

Duty of defendant to produce documents upon which relief is claimed by him.

vi' Subseiruent pleadings.

Procedure when party fails to present written 5 t at e in e n I. called for by Court.

Dismissal of suit where surumons not served in conse-

quences of plaintil'l's failure to pay costs.

Dismissal of suit where plaintiff, after summons referred unserved, fails for one month to apply for fresh summons.

Conse-

(.|I|('lICt' of refusal or inability of pleader to answer.

3/ ORDER IX /\Pl'E/\RANCE OF PARTIES AND CONSEQUENCE OF NON-APPEARANCE k W 'k 'k k

2. Where on the day so lixcd it is found that the summons has not been served upon the defen_dant in consequence of the failure of the plaintiff to pay the court-fee or postal charges (if any) chargeable-.for such service, or to present copies of the plaint or concise statements, as required by rule 9 of Order VII, the Court may make an order.

that the suit be dismissed:

Provided that no such order shall be made, if, notwithstanding such failure, the defendant attends in person (or by agent when he is allowed to appear by agent) on the (lay lixed for him to appear and answer.

'k 'k 'I: A' 'k

5. (I) Where, after a summons has been issued to the defendant, or to one of several defendants, and retumed unserved, the plaintiff fails, for a period of one month from the date of the return ruadc to the Court by the officer ordinarily certifying to the Court returns tuade by the serving oflieers, to apply for the issue of a fresh summons the Court shall make. an order that the suit be dismissed as against such defendant,lunlcss the plaintiff has within the said period satisfied the Court that-

(a) he has failed_after using his best endeavours to discover the residence of the defendant who has not been served, or (1)) such defendant is avoiding service of process, or ((7) there is any other sullicient cause for extending the little, in which case the Court. may extend the time for making such application for such period as it thinks lit.

(2) In such case the plaintiff may (subject to the law of limitation) bring a fresh suit.

'k * k k 'k ORDER X 4 Examination of Parties By the Court k * * 'k *

4. (I) Where the pleader of any party who appears by a pleader or any such person accompanying a pleader as is referred to in nrle 2, refuses or is unable to answer any material question relating to the suit which the Court. is of opinion that the party whom he represents ought to answer, and is likely to be able to answer if interrogated in person, the Court may postpone the hearing of the suit to a future day and direct such party shall appear in person on such day. ' 'K 'k R 'k k

3)..

ORDER Xl .. Discovery and Inspection * * k k 'k

2. On an application for leave to deliver interrogatories, the particular interrogatories proposed to be delivered shall be submitted to the Court. In deciding upon such application, the Court shall take into account any offer, which may be luade by the party sought to be interrogated to deliver particulars, or to make admissions, or to produce documents relating to the matters in question, or any of them, and leave shall be given as to such only of the interrogatories submitted as the Court shall consider necessary either for disposing fairly of the suit or for saving costs.

'k * * k 'k I5. livery party to a suit shall be. entitled at any time to- give notice to any other party, in whose pleadings or aftidavits reference is made to any doculncnt, or who has entered any document in any list annexed to his pleadings, to produce such document for the inspection of the party giving such notice, or of his pleader, and to pcnnit him or them to take copies thereof; and any party not complying with such notice shall not afterwards be at liberty to put any such document in evidence on his behalf in such suit unless he shall satisfy the Court that such document relates only to his own title, he being a defendant to the suit, or that he had some other cause or excuse which the Court shall deem sufficient for not complying with such notice, in which case the Court_ may allow the same to be put in evidence on such tenns as to costs and otherwise as the Court shall think lit.

'k 'k 'k * 'k ORDER XII Admissions * W 'k 'k *

2. Either party may call upon the other l\atty to admit, within fifteen days from the Particular int erro-

gatorics to be submitted.

Inspection of documents' referred to in pleadings or ' affidavits.

Notice to date of service of the notice any docimient, saving all just exceptions; and in case of! admit refusal or neglect to admit, after such notice, the costs of proving any such document shall be paid by the party so neglecting or refusing, whatever the results of the suit may be, unless the Court otherwise directs;_atul no costs of proving any document shall be allo\ved unless such notice is given, except where the omission to give the notice is, in the opinion of the Court, a saving of expense.

Vk ir 'k I! *

4. Any party may, by notice in writing, at any time not later than nine days before the day fixed for the hearing, call on any other party to admit, for the purposes of the suit only, any specitic fact or facts mentioned in such notice. And in case of refusal or neglect to admit the same within six days after service of such notice, or within such further time as may be allowed by the Court, the costs of proving such fact- or facts shall be paid by the party so neglecting or refusing, whatever the result of the -suit may be, unless the Court otherwise directs: Provided that any admission made in pursuance of such notice is to be deemed to be made only for the purposes of the particular suit, and not as an admission to he used agaiustvlltc party on any other occasion: or in favour of any person other than the party giving the notice:

documents.

Notice to admit facts.

3:

Document-

3")' evidence to be produced at. or before the settlement of issues.

Effect of tmn-pro~ duction of doculnents.

Court may examine witnesses (Yr docnernents I)L'I-(II'L' framing issues.

Power to amend, and strickc out, issues.

353

Provided also that the Court may at anytime allow any party to amend or withdraw any admission so made on such terms as may be just.

* k 'k * k ORDER" XIII Production, lmpounding and Return of Documents I. (I) The parties or their pleaders shall produce, at o. before the settlement of issues, all the documentary evidence of every description in their possession or power, on which they intend to rely. and which has not already been filed in Court, and-all documents which the Court has ordered to be produced.

produced: Provided that they are in such fonn as the IIigh'Court (2) The Court shall receive the documents so accompanied by an accurate list thereof prepared directs.

2. (I) No documentary evidence inthe possession or power of any'party which should have been but has not been produced in accordance with the requirements of rule I shall he received at any subsequent stage of the proceedings unless good cause is shown to the satisfaction of the Court for the non--production thereof; and the Court receiving any such evidence shall record the reasons for so doing.

(2) Nothing in sub--rule (I) shall apply to documents,----

(a) produced for the cross~exatnination of the witnesse of the other party, or

(h) handed over to a witness merely to refresh his memory.

'k k * * k ORDER XIV Settlement of Issues and Dctenninalion of Suit on Issues of Law or on Issues agreed upon * 7\' 'k * * ti

4. Where the Court is of opinion that the issues cannot be correctly framed without the examination of some person not before the Court or without the inspection of some document not produced in the suit, it may adjourn the framing of the issues to a future day, and may (subject to any law for the time being in force) compel the attendance of' any person or the production of any document by the person in whose possession or power it is by summons or other process.

5. (I) The Court may at any time before passing a decree amend the issues or frame additional issues on such tenns as it thinks lit, and all sucharnendrnents or additional issues as may be necessary for determining the matters in controversy between the parties shall be so made or framed.

(2) The Court may also, at any time before passing a decree, strike out any issues that appear to it to be wrongly framed or introduced. » 'K 'k A' * fc 34- ORDER XVI Summoning and Attendance of Witnesses L U) R w k w * (4) Subject to the provisions of sub-rule (2), summonses referred to in this rule may be obtained by the parties on an application to the Court or to such officer as may be appointed by the Court in this behalf.

* k * 'k *

2. (l) The party applying for a summons shall, before the summons is granted and within a period to be ﬁxed, pay into Court such a sum of money as appears to the Court to be sufficient to defray the travelling and other expenses of the person summoned in passing to and from the Court in which.he is required to attend, and for one day's attendance.

1' * 'k 'A' * ORDER XVII Adjourruncnts l. (1) The Court may, if sufficient cause -is shown, at airy stage of the suit grant time to the parties or to any of them, and may from time to time, adjourn the hearing of the suit.

(2) In every such case the Court shall fix a day for the further hearing of the suit, and may make such order as it thinks [it with respect to the costs occasioned by the adjoumment:

Provided tliat,--

(a) when the hearing of the suit has commenced, it shall be continued from day-

to-day until all the witnesses in attendance have been examined, utiless the Court ﬁnds that, for the exceptional reasons to be recorded by it, the adjournment of the hearing beyond the following day is necessary,

(b) no adjournment shall be granted at the request of a party, except where the circumstances are beyond the controlof that party,

(d) where the illness of a pleader or his inability to conduct the case for any reason, other than his being engaged in another Court, is put forward as a ground for adjournment, the Court shall not grant the adjouniment unless it is satisfied that the party applying for adjournment could not have engaged another pleader in time, , (e) where a witness is present Itt Court but a party or his pleader is not present or the party or his pleader, though present in Court, is not ready to} examine or cross- exainine the witness, the Court may, if it thinks lit, record the: statement of the witness and pass such orders as it thinks ﬁt dispensing with the examination--in-chief or cross-examination of the witness,.as the case may be, by the party or his pleader not present or not ready as aforesaid.

«k * it ' List of witnesses and ' summons to wit-

nesses.

Expenses of witns to be paid into Court on applying for summons.

Court 'may ' grant time and adjourn hearing.

Cost of adjourn-

ment.

1?.

Statement and production of evidence.

Witnesses to be examined in open Court.

Production of evidence rr()t previously known or which could not be produced despite due diligence.' Judment w h c n pronounced.

Last paragraph of judgment to indicate in precise terms: the relief granted.' 65 ORDER XVIII Hearing of the Suit and Examination of Witnesses 2(1):: * t * it (4) Notwithstanding anything contained in this rule, the Court may, for reasons to be recorded, direct or permit any party to examine any witness at any stage.

* * 'k 'k 'k

4. The evidence of the witnesses in attendance shall be taken orally in open Court in the presence and under the personal direction and supcrintendence of the Judge.

* * 'k k * l7A. Where a party satisﬁes the Court that, after the exercise of due diligence, any evidence was not within his knowledge or could not he produced by him at the»time when that party was leading his evidence, the Court may pennit that party to produce that evidence at a later stage on such terms as may appear to it to be just.

* k it * k ORDER XX Judgment and Decree L") k * as k * (2) Where a written judgment is to be pmnounced, it shall be sufficient if the ﬁndings of the Court on each issue and the ﬁnal order passed in the case are read out and it shall not be necessary for the COIIN to read out the whole judgment, but a copy of the whole judgement shall be made available for the perusal of the parties or the pleadcrs immediately after the judgment is pronounced.

fr * k k 'A' 6A. (I) The last paragraph of the judgment shall state in precise terms the relief which has been granted by such judgment.

(2) Every endeavour shall be tirade to ensure that the decree is drawn up as expeditiously as possible, and, in any case, within ﬁfteen days from the date on which.

the judgment is pronounced; but where the decree is not drawn up within the time aforesaid, the Court shall if requested so to do by a party desirous of appealing against the decree, certify that the decree has not been drawn up and indicate in the certiﬁcate the-reasons for the delay, and thereupon-

(a) an appeal may be preferred against the decree without ﬁling a copy of the decree and in such a case the last paragraph of the judgment shall, for the purposes of rule I of Order XLl, be treated as the decree; and

(b) so long as tlze decree is not drawn up, the last paragraph of the judgment shall be deemed to be the decree for the purpose of execution and the party interested shall be entitled to apply for a copy of that paragraph only without being . r4 36 N'(|lllt'L'(l to apply for a cnpy of the whnlt: of tin: judglncnt; but as soon as a decree is drawn up, the last paragraph vi" lht; jmlgtucnt shall cease to have the effect of n tlccrt-c. for thc purpusc of cxccutiou or for any nthcr purpose:

l'mvitlt-tl tlmt, whrrc an applicttliutt is llltltlt'. fur nlataining a copy nI' only the last paragraph ut the pulglnvnt, such copy shall indicate the nauu: und mltlrcss of all the parties tn the suit.

6l!. Whcrc the judgtmtut is typc-written. cnpius nf the lypc-written judgntcnt shall, when: it is practicable so to du, he made uvailahlt: tn the panics immediately after the |)r<7ttnttttCl:lm:t!l of the judglncnt nn payment, hy lht-. party applying for such copy of such clmrgcs as may in: spccilicd in the nnlcs tnndc. by the High Court.

ix * » 74' ' W k ORDER XXXIX 'l'lZl'v1i'OlU\l(Y lNJUN(.'l'lONS AND lN'l'ERLOCUl'0RY ORDERS '|'t:Inpur:ufy injunctions I. Wl|l7l'C in any suit it is |)fUVt'.tl hy atlitlztvit ur utlu'rwisc----

(u) that any pmpcrty in disput--. iuln suit is in tl.-mgcr nl lacing wasted. damaged nr tlllt'l)1|ll'tl lay any pally tn thc suit, nr wrtmgtnlly suit! in cxccutiun of n dccrcc. m (D) that the dcfclulant thrcatrns. or intends. to rt-mnvt: or dispose of his property with a view to defrauding his crcditurs,

(c) that tin: dt:l'cndant tluvatcns to (lispusst-ss the plaintiff or otherwise cause injury In tht: plaintiff in relation In any prnpcrty in dispute in the suit, the Court may by urdcr grant a temporary iniunctiun tn rt-strain such act, or make such nthcr nrtlcr. for the purpnsc of staying and pntvcnting thc wasting, danmging. alienation, sale, rclnnval nr (lispnsitiun 01' the prupcrty nr disposscssiun 0|" tin: plaintiff. or uthcrwist: causing injury In tlw plaintilt in l\'l.'Illc7tt to any property in dispute in the suit as the: Court thinks lit, until tht: disposal ul' thr suit or until further orders.

1. it * in nu ORDER XL! /\l'l'l-I/\l.S mom URIGINAI. l)iacRt=.1~;s ,-

I. (I) Every appval shall he prt~l't~.m-d in the tuna of a tncumrandtun signed by the appt-llant ur his plcnthtr nml prttscntt-cl tn the: Court nr to such nfliccr as it appoints ill this lat-hall'. 'l'|u-. llt('lIlt)t'ttl|(l|lll| shall hc accmnpanit~t| try a cupy M the (lccrcc uppcalcd than and (unless thc Appcllatc Cnurt tlispcnscs llu'ruwith) ml' the judgment on which it is founded:

Prtwitlctl that where two or mun: suits lutvc. been tried together and a common jutlgtncnl has hcttn <h'.|ivcrctl tltcrrl'nr and Iwn or mun'. appeals arc lilcd against any (lrcrt-r t.'()V('l't'(l lay that _j1ItlgtIIcht, whctlu-r by tho Sitlllt' appcllant or hy dillcrcnt app:-llants, thc appcllattr Cuurt may dispttnsc with thc tiling 0|' mun: than unc copy of the jutlgtmtnt.

Copies of I h c typcwrittcn judgment . when to be made nv ni table.

Cases in which temporary injuctiun may be granted.

Form of appeal.

.37 Procedure on admission of appeal

9. (I) Where a rnernorandurn of appeal is athnitted, the-Appellate Court or the proper ofﬁcer of that Court slmll endorse thereon the date of presentation, and shall register the appeal in a book to he kept for the purpose.

(2) Such book shall be called the Register of Appeals.

t 'k k * * ll. (1) The Appellate Court, aﬂcr sending for_the record if it thinks fit so to do, and after ﬁxing a day for hearing the appellant or his pleader and hearing him accordingly . "

if he appears on that day, may dismiss the appeal without sending notice to the Court.

from whose decree the appeal is preferred and without serving notice on the respondent or his pleader.

'k 'k I * *

12. (1) k * w t (2) Such day shall be ﬁxed with reference to the current business of the court, the place of residence of the respondent. and the time necessary for the service of the notice of appeal, so as to allow the respondent sufﬁcient time to appear and answer the appeal on such day.

13. (I) Where the appeal is not dismissed under rule ll. the Appellate Court shall send notice of the appeal to the Court from whose decree the' appeal is preferred.

(2) Where the appeal is frotn the decree of a Court, the records of which are not deposited in the Appellate court, the court receiving such notice shall send with all practicable despatch all material papers in the suit, or such papers as may be specially called for by the Appellate Court.

(3) Either party may apply in writing to the Court from whose decree the appeal is preferred, specifying any of the papers in such Court of which he requires copies to be made; and copies of such papers shall be made at the expense of, and given to, the applicant.

* 'A' 'k )\' 'I' IS. The notice to the respondent shall declare that, if he does not appear in the appellate Court on the day so lixcd, the appeal will be heard ex pane.

Procedure on lwarirrg * * * * p *

18. Where on the day ﬁxed, or on any other day to which the hearing way be adjoumed, it is found that the notice to the respondent has not been served in consequence of the failure of the appellant to deposit, within the period ﬁxed, the sum required to defray the cost of serving the notice or, if the notice is retunred unservcd, and it is found that the notice to the respondent has not been issued in consequence of the failure of the appellant to deposit, within any subsequent period ﬁxed, the stun required to defray the cost of any further attempt to serve the notice, the court may make an order that the appeal be dismissed:

Provided that no such order shall he made although the notice has not been served 33 upon t.lIe respondent, if on any such day the respoIIdent appears when the appeal is called on for hearing.

19. Where an appeal is distnisscd under rule ll, sub-rule (2), or rule 17 or rule 18, the appellant may apply to the appellate Court for tlIe re-admission of the appeal; and, where it is proved tlIat he was prevented by any sufﬁcient cause from appearing when the appeal was called on for hearing or from depositing the sum so required, the Court shall re-admit the appeal on such tenns as to costs or otherwise as it thinks ﬁt.

* 'k 'k 'k 'k 22_ (1) * * 'fr it (3) Unless the respondent ﬁles with the objection a written acknowledgment from the party who may be affected by such objection or his pleader of having received a copy thereof, the appellate Court shall cause a copy to "he served, as soon as may be after the ﬁling of the objection,' on sIIelI party or his pleader at the expense of the respondent.

'A' * k k k Exnmcrs FROM THE_ LIMITATION Acr, 1963 ACT No. 36 OF 1963 * 'k * k * PART III COMPUTATION or PERIOD or LIMITATION l2_ * 1: * at (3) Where a decree or order is appealed from or sought to be revised or reviewed, or where an application is made for leave to appeal from decree or order, the time requisite for obtaining a copy of the judgment oil which the decree or order is founded shall also be excluded. M 'k 'k * k * RAJY/\ S/\l!|l/\ A BILL futllutr lo mncnd dn: Code. of Civil I'ruccLlm1;, I908, lhc Liluilzlliou Acl, I963 and the Court Fccs Acl, |870.

[Shri Rumakun! D. Klmlup, Mini.\'!<'r nf Slaw for Law and Ju:.'Ii(w) ANNEXURE - B LAW COMMISSION OF INDIA QUESTIONNAIRE ON THE CODE OF CIVIL PROCEDURE; 1908 Page No.1 Lﬂw CDMﬂI§§IQN QE_IﬂD;A DRAEI QU§S|IQﬂﬂQ1RE Qﬂ_TﬂE cone QE_ CIVIL P3oggD_t_,L§,_ iggg Introductory Remarks

1. The Law Commission of India has been requested by the Government of India in the Ministry of Law to make recommendations for revision of the Code of Civil Procedure, 1908.

2. The Commission proposes to undertake the exercise in two phases.» In the first phase,-the Commission proposes to express its views on the various amendments suggested by the Code of Civil Procedurezémendment) Bill, 1997, which has. been introduced as an official Bill in the Rajya Sabha. In the second phase of the work, -the Commission will, if necessary, consider the provisions of the Code which have not been dealt with in Page No.2 the Bill (that is, provision on which the Bill does not propose any amendment) but which may appear to be in need of revision, in the interests of simplicity, certainty and uniformity in the law of Civil Procedure and with a view to achieving rationalisation and modernisation of the law.

Division of the project into two phases (as above) has been decided upon by the Commission, in the light of the fact that proposals for a comprehensive revision of the Code at this juncture may involve considerable length of time, while the proposals contained in the Bill seem to require a comparatively urgent attention.

3. In order to elicit informed opinion on the various proposals contained in the Bill, the Commission has prepared a Questionnaire on the subject. In the various questions as formulated by it, the Commission has attempted to mention, very briefly, some of the courses and alternatives that can be Page No.3 possibly adopted with reference to the points to which the various amendments (as proposed in the Bill) relate. The Commission would like to make it clear that these courses and alternatives do not necessarily represent the final views of the Commission. They have been put forth, mainly in order to elicit informed ggigigﬂ on the subject, and in order to facilitate a detailed consideration of the various points by the persons and bodies who may like to express their opinions on the proposals contained in the Bill.

4. The Commission will appreciate if interested persons and bodies will kindly forward their comments by the 30th of April, 1998, to the Commission.

[For facility of reading, each amendment proposed on the Bill is set out, along with the text of the existing provision].

Page No.4

GU§BT1QNﬂALﬂ§ gusnruugn 95: §' UIT8 G-1 ;_ Section gQ_(P1§int) L Qlgggg 3 Q1 tug Section 26 of the Code provides that a suit shall be instituted by the presentation of a plaint or in other prescribed manner. The Bill proposes the addition of the following I In every plaint, facts shall be proved by affidavit".

[See also G-11 below -- Order 6, rule 15]. The main object is to reduce the possibility of false statements made in a plaint ~ believed to be a common phenomenon.

(a) Do you consider that above amendment will serve a useful purpose ?

(b) If so, would you favour a re~framing of the amendment - say, as under :

Page No.5

"The allegations of fact made in a plaint shall be supported by an affidavit, setting out separately facts which the plaintiff states on his own knowledge and the facts which he states on 'information received by him and believed by him to be true ?"

G-2 ;_ Section §§_§Dgtent;on ;_ prison :_maximgm period) : Clause ; Q1 the Bill Existing section 58 of the Code makes certain provisions, placing limits on the period of detention of the Judgment debtor in execution of a decree. The limits are based on the amount of the money decree. In view of fall in the value of the rupee, the Bill seeks to increase the relevant amounts as under :

Existinq_Amount Proposed Amount Maximum gggigﬁ

(a) exceeding 1,000 exceeding 5,000 3 months rupees rupees .._....._.........._._............._..__.._.._.__.......__.._._.......__...._.__.._......._--....._........__...._._..._....._....__.

(b) exceeding 500 rupees but not exceeding 1,000 rupees exceeding 2,000 rupees but not exceeding 5,000 rupees Page No.6 6 weeks (C) amount does not exceed 500 rupees amount does not exceed 2,000 rupees no detention can be ordered would amendment ?

G-3 i you agree with the need for A.D.ﬂ Section §2_§to Qg_inserted1 settlement _L disputes outside the court) ; Clausg Z_Q1 the Bill The Bill proposes to insert a new section (as section 89), seeking to provide that "where it appears to the court that there exist elements of settlement, parties, settlement and give them to the parties for observations". After observations of the which may be the ggurt shall formulate the the court (it is proposed) may acceptable to the terms of their parties, re-formulate the Page No.7 terms of a possible settlement and refer the same for arbitration, conciliation "Judicial settlement" including settlement through Lok Adalat) or mediation.

where the reference of the dispute is for arbitration or conciliation, the Bill proposes that the Arbitration and Conciliation Act, 1996 shall apply, "as if the proceeding for arbitration or conciliation were referred for settlement under the provisions of the Act".

where the reference is to Lot Adalat or "judicial settlement", the Legal Services Authority Act, 1989 is to apply.

Where the dispute is referred for mediation, the proposal is that "the ggurt shall effect a compromise between the parties and shall follow such procedure as may be prescribed".

It should also be mentioned that while clause 7 of the Bill reguires such attempts at "settlement", "only ﬂﬂgcg thegg ggist elemggtg Q1 settlement", clause 20(1) of the Bill proposes to Page No.8 I introduce Order 10, rule 1A, whereunder, after the admissions and denials of the parties are recorded by the court, "the court shall direct the parties to the suit to opt either mode of settlement outside the court as specified in sub-section (1) of section 89".[See G-22, infra].

(Thus, one or other mode must be opted for, by the parties, under proposed Order 10, rule 19).

The object of the proposal in the Bill is obviously to promote alternative methods of dispute resolution. However, on the proposals as formulated in the Bill, certain points of substance as well as points of form, arise for consideration. Opinion is therefore invited on the following points :

(a) would the proposal in clause 3 make for quicker resolution or would it lead to the insertion of one more step in the chronology of the suit ?

(b) Should the reference by the court to the alternative method be discretionary Page No.9 (with the court) or should it be mandatory?

(c) Should the stage for reference be set out in proposed section 89 itself 7

(d) where the reference is to arbitration or conciliation, would the formula in proposed section 89(2)(a) "as if the proceedings were referred for settlement under the provisions of that Act (i.e. the Arbitration and Conciliation Act, 1996)" be appropriate and in conformity with the language of that Act 7

(e) Should the court itself be required to frame the agreement or, would it be better to permit the parties to enter into an agreement ? (This needs deep thinking, because the Act of 1996 is basically structured upon the concept of ag s3_r_'b.i.t_c«'iL;fL9_L1 _e.s..g r_een_3e__u.t) -

(f) In case of arbitration, several points of detail may arise, e.g. -- who Page No.10 will be the arbitrator, what will be his jurisdiction, what will be the venue, what will be the arbitrator's fees, etc.. How will these issues be dealt with ?

(g) Where mediation is decided upon, then, under section 89 as (proposed), "the court shall effect a compromise between_ the parties". What will be the situation, if the parties do no agree on a compromise?

[Some further points may also arise in the context of clause 20, seeking to insert Order 10, rule 1A -- See Q-22 below].

APPEQL_AND REVISION B-4 :_ Section 100A (Appeals from d ns sf.

single Judge Qj_High Couctl L Clause ;Q_ Qj_ the At present, section 100A of the Code bars an appeal (Letters Patent appeal) from the appellate decision of a single Judge. The Bill proposes to Page No.11 enlarge the scope of this bar (by amending section 1DQﬁ), so as to bar an appeal even from an ogiginal decision of a single Judge, as also from the writ, direction or order issued by a single judge "on an application made under article 226 or article 227 of the Constitution".

Do you consider that this amendment will be in the interests of justice ?

would you favour, as an alternative, an amendment which would restrict such appeal to cases where the decision of the single Judge involves a substantial question of law or is likely to result in a serious miscarriage of justice T 0-5 ; Section 102 1 ﬂQ_segond agggal ;Q_ gggggin cases : clause 11 of the Bill.

Section 102 of the Code bars second appeal in certain (what may be called "petty") cases. The par operates, if two conditions are satisfied, namely:

inature Page No.12

(i) The suit is of a nature cognizable by a court of small causes;

(ii) The amount or value of the subject matter of the suit does not exceed three thousand rupees.

Thus, a double test is to be satisfied at present, depending on -

(1) the Qgturg of the controversy; and

(ii) valuation of the subject matter.

The Bill seeks to eliminate the requirement at

(i) above. As regards the second requirement, the Bill seeks'to replace "three thousand rupees" by twenty five thousand rupees (in view of the fall in the value of the rupee).

Do you agree with the above approach ?

would you agree with the desirability of retaining the criterion that the suit must be of a F. cognizable by the court of small causes Page No.13 (while increasing the amount of pecuniary valuation) ? It may be necessary to keep in mind in particular, suits for declaration, injunction, etc. The present section (as mentioned above) :1I:.i_ma..r_:....i...1.._~.(_ £9 .t;.__e_ §_u___t:. and on 1y secondari Iv concerns itself with the value of the subject matter.

[At present, section 102 does not apply to declaratory suits: --RameshchgQdra eQgg 2;, NQggul;a_ Sghig, (1907) ILR 30 Mad 101 or to suit for title -- see sections 15, 16, 27, Provincial Small Cause Courts Act, 1887. Nor does it apply to suits for accounts.

[Small Cause Courts Act, 1887, Second Schedule, article 31).

The nature of the suit determines appealability.

Diqambar Parshwanath gain Mandir gs; Valubai, AIR 1961 Bom. 221.

Mohini Vs. s§§33+ ﬁgs, AIR 1924 Cal. 487.

B.P.Gautam Vs. R.K.Aqarwal, Page No.14 AIR 1977 911. 1.03.

[Your comments on Clause 11 of the Bill are idvited in the light of the above legal position.].

Q;Q 1 Section 115 (Revigion) Clausg ;__ Q1 t_g 554;.-

(i) Section 115 (1), Proviso, of the Code (as inserted in 1976), provides that the High Court shall, not in revision, vary or reverse an order made in the course of a suit or an order deciding an issue in the course of a suit (briefly, interlocutory orders), unless one of the following conditions is satisfied :

(a) the order, if it had been made in favour of the revision petitioner, would have finally disposed of the case or

(b) the order, if it is allowed to stand, would occasion a failure of Justice or cause irreparable injury to Page No.15 the petitioner.

In either of the two cases mentioned above, the High Court can interfere.

Of course, the requirements given in the main paragraph of the section, -clause

(a), (b), or (c) -- are still to be satisfied. See Mulla, CPC (1995), Vol. 1, pages 776 and 824.

The Bill proposes to amend the proviso, so as to delete clause (b). The~ effect would be to bar interference in revision against interlocutory orders, even where :c_b_e:-erg. is I_«*=1i..1.u.r;s __f_ .LL__st___i c...e. 9.- 1J'_'_C_E_E§.C._.-3 b._1__e igiurx. The proposal is intended to cut the number of revisions on petitions. However, it is to be noted that the effect would be to bar interference even in cases of serious injustice resulting from an interlocutory order.

For example, an order of the trial court refusing an amendment of pleadings, even Page No.16 where the amendment is sought because of intervening events or to rectify a bona jigg mistake or to remedy unintentional omission to implead a party or unintentional omission to take a plea in defence which is left out, would cease to be revisable under the Bill.

(ii) An order rejecting a document as inadmissible would cease to be revisable, even thouqh the document may be very material.

(Such orders can possibly be made a ground of attack in appeal against the ultimate decree, but the lapse of time would itself cause serious injustice).

(iii) The revisional court would be deprived of the opportunity of taking into account subsequent events w a power which it possesses at present.

[U3 ;gtg Qj_Madras Vs. Asher Textiles Ltd., AIR 1960 Mad. 180.

Page No.17

(iv) If the trial court wrongly frames an issue on a fact which is admitted by the defendant, the High Court can (under the existing section), interfere.

!.r'29_r"._.c:a.._k.t_w SL5.-_ \.Z_i__tJ1_a_\_l.-

(1887) ILR 11 Bom. 435 Cf.

§._1.xs.9.r:s_:=:»_a_c_1_ 5/.2:-_ .

(1915) ILR 42 Cal. 926, 931.

[The proposal will take away this power.] Keeping the above aspects in mind, would you favour the proposed amendment of section 115 ?

PLAINT BND SUMMON8 9-7 ; Order 1, rule A Lﬁommencgment Q1 suit 91 Qlaint) ; Clause ;ﬁ_Q1 the Bill.

Order 4, rule 1(1) of the Code provides that every suit shall be instituted by presenting a plaint, etc.. Order 4, rule 1(2) further provides that every plaint shall comply with the provisions of Order 6 and Order 7, so far as they are applicable. The Bill proposes two amendments in Page No.18 this regard :

(1) It is proposed that the plaint must be in duplicate. This will become Order 4, rule 1(2); [For consequential proposals, see O-14, below].

(ii) It is further proposed to add Order 4, rule 1(3), as under 1 u(3) The plaint shall not be deemed to be duly instituted unless it complies with the requirements specified in sub rules (1) and (2)."

It would appear that while the first amendment is a comparatively minor one, the second one may require serious consideration. The effect would be obvious, particularly on reading proposed rule 4(3) with rules 4(1) and 4(2), under which any omission to comply with Order 6 or Order 7 would have serious consequences.

In this context, it is to be remembered that Order 6 (pleadings generally) and Order 7 (plaint) Page No.19 contain a vast variety of provisions, dealing with nLuner'ous g_r_y_a__t_t,_;,e__r_-_s_*_._ gjJ_;[ _l_. I 'f i t is to be provided that a deficiency in respect of any of the detailed matters is to mean that there is no plaint in law, then great anomalies and hardships are bound to ensue. For example, the Code lays down, igtgg alga, [Order 6, rule 2] that pleadings shall state the material facts on which the plaintiff relies ~ and this must be done fconcisely". If the registry of the court regards , /not the pleadings as/"concise" and, consequently, the suit is not regarded as not propperly instituted, the result will be that the plaintiff will have to re~draft the plaint. But, even if he is prepared to do so, he will not be certain, if the re- drafted plaint itself is "concise" enough (in style) or whether (in point of substance), it contains all material facts. No doubt, the level of drafting should be improved. But it is apprehended, that that object can be more appropriately achieved by educating Junior members of the bar, rather than by visiting the litigants with adverse consequences for deficiencies in Page No.20 d ra f ting .

To take another instance, similar problems could arise, if the provision relating to Order 7, rule 14 (documents to be produced, etc.) is alleged to have been infringed. Under the proposed amendment, the plaintiff and the court registry may be compelled to enter into long-ranging controversies, as to what are basic documents, what are evidentiary documents, etc..

A still more fertile source of trouble would emerge from the requirement in Order 7, rule 1(c) that the plaint must contain the facts which show the cause of action. It is not always easy at the initjal stage for the plaintiff to decide what are lawyer may not always find the matter easy, as the question is a mixed one of fact and law; and complex issues of substantive law may be inextricably linked with the factual matrix. A difference of opinion between the plaintiff's lawyer and the registry may create problems.

Page No.21

The Commission would like the respondents to this Questionnaire, to offer their considered views in the matter in the light of the above position.

Q:§ _=_ 9r_d-_er__'-ii__.ru1e _1_l___Bumm___ons L sense: a___nd answerL ; Clause 1511) 91 the 8111.

Order 5, rule 1 of the Code empowers the court (after the institution of the suit), to issue to the defendant summons to appear and answer the claim, on a day to be therein specified.

The Bill proposes an amendment of this rule, whereunder the day so fixed has to Qg within thi'tx_ daxg from the day of institution of the Secondly, while the present rule leaves it to the court's discretion to require that the defendant should file his written statement also on that date, the amendment proposes that the day fixed for appearance shall also Qg the day fixed for filing the written statement.

Page No.22

Thirdly, the proposed amendment envisages that if the defendant fails to file his written statement on the date so specified, he shall be allowed to file the written statement on a specified day, but that (later) day "shall not be beyond thirty days from the date of service of summons on the defendant."

Thus, the date fixed for appearance (under the proposed amendments) shall never be beyond thirty days from the filing of the Qlaigt. And the date for written statement can never be beyond 30 days from the date of service of summons.

The amendments so proposed are obviously well- intentioned, aiming at as speedy a completion of the preliminary of trial of the case, as possible. At the same time, certain counter --balancing factors do arise for consideration, as under :

(a) Is it proper to fix a rigid time limits for the acts in question ~ rigid, in :he sense that the court will have no discretion to relax or modify the same, even when the special facts of a case so Page demand ?

(b) The date of appearance and date for filing written statement are fixed after taking into account several factors, including the following --

(1) Volume of work before the court in question;

(ii) Distance of the defendant's place _ of residence from the headquarters of the court;

(iii) Available facilities for sending the summons;

(iv) Magnitude of the claim (A big claim may require good deal of documentation, for properly defending it).

(V) Complexity of the controversy (sometimes, the claim which is to be met by the defendant may need good deal of time for dealing with it. For example, No. H Page No.24 he may have to take competent legal advice, not only as to what facts he should admit or deny, but as to how the denial should be framed.).

(vi) Consulting his (defendant's) lawyers for ascertaining whether legal defences, such as jurisdiction, limitation, want of cause of action, plea of ﬁgs iggigata, etc. are available.

The point to make is, that most of these factors are fleuible and variable and they cannot be governed by one uniform criterion as to the requisite time.

Comments on the proposed amendment, in the light of the above aspects, are welcome.

[Clause 15(iii) and clause i5(iv) of the Bill propose certain amendment, which are consequential on other proposals].

Page No.25

9:1 _=_ LJ_r_«1sL§iLg_l_2_s;2_L2£1..l3_A_iZl_L;&_a1_d_ 2.9. LL19..d3si9_i§sr_~L_1__¢:_e_ef_s___9__J_umm r-5 !_C...___.__13UBE ___(_).13v :9. Clause (ix).

The Code (in Order 5, rules 9, 19A, 21, 24, 25, etc.) at present contemplates service of summons --

(1) through proper officer of the court, and (2) also by registered post (unless the court dispenses with it).

Instead of this scheme, the amendment proposes that the service shall be under a different scheme, whose main features are as under :

(a) The court shall hand over the summons to the plaintiff or his agent, who shall arrange to serve it within two daxs in the manner provided in (b) below;

[For the consequences of default, see 0- 20, below, see also G--13, below].

Page No.26

(b) The plaintiff (or his agent) will serve the summons on the defendant by --

(i) registered post: or

(ii) speed post: or

(iii) approved courier service: or

(iv) fax message: or

(v) Electronic mail service: or

(vi) other means prescribed by the High Court by rules.

[The actual mode to be adopted, out of (i) to (vi) above, will be specified by the court].

would you prefer the above scheme which seeks not only to take advantage of modern technological innovations but also provide for modes of service which are more abuse-proof?

would you agree that both the modes of service

(b) and (c) above should be mandatory?

Page No.27

PLEADINGS QND PARTICULARS 0-10 .=_ QI:9_e_r; é_.._I1l_e Q L_FQr_th.gr' and better statement gE_ particulars] L Clause 111) g_ tug Bill.

Order 6, rule 5 of the Code provides that the following may be ordered (by the court) :

(a) A further and better statement of the particulars;

(b) further and better particulars of any matter stated in any pleading;

(c) The order may be upon such terms as may be Just.

The Hill proposes gglgtigﬂ of this rule. The proposal seems to be based on the aseumption that the present rule is unnecessary and may cause delay. However, the assumption so made may require further consideration. "Further and better particulars" are undeniably intended tg enlighten the court and the opposite party, as to the nature of the case. The expression "further" denotes the Page No.28 quantitative aspect, while the expression "better" denotes the qualitative aspect. In principle, the law should encourage such clarification of the controversy. Ordering of particulars may not necessarily cause delay. Rather, the more clear the controversy becomes, the less time will be taken, in future in disposing of the issues. The object of particulars is to enable the parties to understand the case better. Sgeddiqg s.

ykl L'. S' Fitz €f."ms (1888) 38 Ch. D 413.

Your views on the subject will be welcome.

0-11 L Order 9; rule ;_ (Verification) L Qlause Order 6, rule 15 of the Code deals with verification of the pleadings. The Bill proposes to add sub~rule (4), to the effect that the person verifying shall also make an affidavit, in support of the pleadings. This is connected with the amendment proposed in section 26, to the 'effect that facts in the plaint shall be "proved by affidavit". [Clause 2 of the Bill] - See G-1, Page No.29 above.

what are your comments in this regard ?

0-12 ;_ Order Q4_ rulgs 17-1B (Amendment Q1 pleadings) 1 Clause ;Q_(111) Q: the Bill.

The Bill proposes deletion of Drder 6, rules i7~1B of the Code, which empower the court to grant leave to amend the pleadings. The proposal appears to be based on the assumption (1) that this power is unnecessary and (ii) that recourse to it causes delay.

The above proposal may, however, require very careful consideration. Amendment of the pleadings is not always necessitated by carelessness. It may become necessary for a variety of causes. It may (for example) be necessitated by subsequent events or by reason of facts, which would not have been in the plaintiff's knowledge in spite of his due diligence. (In fact, in such cases, the law allows even a review of the Judgment -- see Order 47, rule 1 of the Code). [See "Illustrative cases, Page No.30 below].

Occasionally, a document which is material to the case was not originally known to the party now applying for amendment. The document may affect the nature of the pleading. In such cases, the considerations of justice obviously demand that the real issue should come before the court. A court of Justice is expected to deal with the real controversy that troubles the parties and not with a debate which reflects the contest in a very imperfect manner.

Delay in the disposal of the litigation in such cases may be unavoidable. But the parties will have at least the satisfaction, that the real dispute between them has been "adjudicated" - which, indeed, is the heart of the judicial function. Otherwise, the Judgment will leave undecided the dispute as the parties perceive it.

Lllustrative gaseg gg_tQ_amgndmeQt In order to illustrate the points made above more concretely, a few instances, culled out from Page No.31 reported decisions, are noted below :

(1) Plaintiff sued for partition and accounts. Defendant objected, that the suit should have been for dissolution of partnership and accounts. Amendment of the plaint to that effect was allowed (even at the appellate stage), as it was based on the pleadings and evidence of the defendant himself.

E.-__Er..;L_siLr1«a_ Bag. 25,-. '_'§_-_!3_¢I='J3..1_"-'.9. B_e_Lq.

AIR 1991 AP 232 (DE).

(ii) Amendment of the plaint may be more readily granted, if the 'necessary materials are already on record.

L'=_L1.|rL__..._a'"dé"='» YE».-_ §_t_«.2\_L?_ Of .15'..-

AIR 1979 SC 551.

(iii) Plaint did not give the valuation for court fees. Amendment was allowed, to permit the plaintiff to add such valuation.

Sa_tl1§_m2.a. Ql19_1:_t_l.a_«:. Sis; B.a.r_n_=:m_a__t11_a.n Qﬂgttiag, AIR 1958 SC 245.

Page No.32

(iv) Plaintiff sued in a court for an amount beyond the pecuniary jurisdiction of the court. He wished to relinquish a part of his claim, in order to bring the suit within the jurisdiction of the court. It was allowed.

Qunua Ezaaag xii « dhex §bxam, AIR 1990 Raj. 57.

Compare mhobﬂ" Venkatl Bag Vs. E.\ Mal lg, AIR 1969 Hum. 370.

[It may be mentioned that Order 2, rule 2(2) and Order 23, rule 1 of the Code permit the plaintiff to abandon or relinquish a part of the claim].

(v) In considering the prayer for amendment, subsequent events can be taken into account.

AIR 19q5 SC 571 = (1934) 3 sec 352;

ﬂ_iiiai Mai betel Neei_m.

AIR 19a} Bom. 432.

.. ...-.-v-- 7- --

Page No.33

(vi) Amendment of the plaint may be necessitated by intervening events, where the changed circumstances give rise to a new cause of action : (Of course, after such amendment, the defendant has to be allowed opportunity to meet the amended plaint).

Eiascgscsis !§L Menhsiscsisa AIR 1979 AP 14;

Prem Lal Vs. Jadav Qﬂagg, AIR 1979 Raj. 44;

Satish Chandra Vs. State 91 ﬂﬁ, AIR 1960 Cal. 278.

(vii) Plaintiff in a suit for specific performance failed to make an avertment of his 'own readiness and willingness to perform the contract as required by section 16(c), Specific Relief Act, 1963. Amendment was allowed to add this averment. (It did not introduce any new cause of action).

Bajanan Jaikishan ggghi Mg; Eggbhakar ﬂghagial maiist. (1990) 1 sec 166.

Page No.34

(viii) In a petition for divorce under the Hindu Marriage Act, 1955, a prayer for seeking Judicial separation (as an alternative) was allowed to be added, by way of amendment.

...«.I:!Ji_}{.§.'_.'l.!.!.!l_- 5/5.»...-_ §-_2a.b. |3.e__s1_x.-

AIR i'?6».1 AP $12.

(in) A suit was filed to annul a marriage, but the date of the marriage was left out, by slip. Amendment to add the date of marriage was allowed, being Qgga j;gg_ mistake and essentially required to bring the facts on record.

QLv..ar1s_:|_c'assQ..-

AIR 1986 Bom. 172.

(H) Amendment of the plaint may be allowed to permit withdrawal of an admission made by the plaintiff in the plaint (under a misconception).

Fanchdeo Narain Vs. Jyoti Sahav, (lvaé) Suppl. sec 594.

Page No.35

As to withdrawal of admission made in the written statement compare --

Q Iglivision Vs. State ﬂagg Qﬁ Lydia, AIR 1988 A11. 257.

(xi) An amendment of the plaint to add the relief of possession should be allowed, if no grave prejudice is caused to the defendant.

Haridas Vs. Bodrej Rustdny AIR 1983 SC 319.

Views are invited on the proposal in question, in the light of the above legal position.

,G--13 L Order 1; rule 2_;_Erogedure gg_admission Q1 jplaint : Clause 17(1) Q1 the gill.

Under Order 7, rule 9, the plaintiff is to endorse on the plaint, etc. a list of documents and (on the plaint being admitted), he shall furnish the necessary number of copies of the plaint or (if so permitted) concise statement of the plaint. The Bill seeks to revise this rule, on the following points :

Page No.36

(1) On admission of the plaint, the court shall give to the plaintiff the summone, to be served as per Order 5 (as propoeed to be amended). [See under 0-9, §HR£§-]-

(ii) The plaintiff shall forward the summons to the defendant within two days.

(iii) Where (under Order 5, rule 90 as proposed), the summons is to be given to the court (i.e. its proper officer), the court will direct the plaintiff to file the necessary number of copies (and service fees) within 2 days.

Have you any comments in this regard ?

0-14 ; Order Z; ru1e _; (Rgjection Q1 ai t L Clause 171111 Qi the Bill.

.--_;._._ Order 7, rule 11 of the Code requires the court to reject the plaint in four situations. The Bill seeks to add, to this enumeration the Page No.37' I following additional situations :

"(e) where it (i.e. the plaint) is not filed in duplicate;

(f) where the plaintiff fails to comply with sub--rule (2) of rule 6 (The reference seems to be to Order 5, rule 9, as proposed to be revised ~ See 0-13 above).

(q) where the plaintiff fails to comply with sub~rule (3) of rule 9A [This seems to refer to Order 5, rule 9A (2), relating to court~controlled service of process].

In order to help the respondents in answering this Questionnaire, it may be convenient to elaborate the impact of the proposed amendments in some detail, as under :

Proposed clause 1g1_-- The Bill, by clause 14(1), proposes that the plaint shall be filed in duplicate. [See G-7,. above]. Presumably, as a connected amendment, clause 17(ii), by inserting Order 7, rule Page No.38 11(e), seeks to provide that for failure to file a duplicate, the plaint shall be rejected" (The proposal does not envisage any time to be given to the plaintiff for the purpose of rectification].

It seems to be preferable that some time should be given to the plaintiff to rectify the omission.

Proposed Clause 1j1_" Order 7, rule 5 as proposed to be amended [See G~9, above], requires the plaintiff to send the summons to the defendant talongwith a copy of the plaint) for carrying out the mode of service through the plaintiff (as now contemplated). This must be done within 2 days. Order 7, rule 11(f) proposes that if this is not dome, the plaint shall be rejected.

Now, it is to be noted that the above stage will really arrive, only after the plaint is admitted under (proposed), Order Page No.39 7, rule 9(1). Post~admission "rejection" may not be quite appropriate. Apart from that linguistic point, there is a matter of substance to be considered. Should not the plaintiff be allowed some time to rectify the failure to send the copies ?

Ordinarily, the plaintiff will not deliberately delay the service; but the pressures of work or other circumstances may come in the way in special situations.

Progosed glause (Q) ~ Clause (g), as proposed to be inserted in Order 7, rule 11, in effect means that if, as contemplated by proposed Order 5, rule 9A(2), the plaintiff does not deliver to the court office the copies and fees etc. for court--contro1led service, then the plaint shall be rejected. Here again, no opportunity is to be given to the plaintiff to rectify the failure. It is to be considered whether a straightway rejection of the plaint (compulsorily) is Page No.40 called for, in such cases. It is true that the rejection (i) is appealable and (ii) does not bar a fresh suit (there being no decision on the merits). But, in the long run, an appeal or a fresh suit will mean fresh burden on the court (apart from the trouble and expense which have to be incurred by the plaintiff).

Comments on Clause 17(ii) of the Bill are invited in the light of the above points.

[See also G--7, ggpgaj.

0-15 L Ogder 1* rule 14, ;§L Lg (Pgoguctigg gt documents _ﬂ_ which Qlaintiff sues) ;_ Clause 17(iii) (iv) (V) Qi the Bill Existing Order 7, rules 14, 15, and 18 of the Code deal with the production or listing of documents, alongwith the plaint. For this purpose, the present scheme makes a distinction between :

(a) documents which form the foundation or basis of the suit (one can call them the "basic documents") and Page No.41

(b) documents which merely constitute evidence of the claim ("evidentiary documents") Documents under category (a) above have to be physically produced (if in the plaintiff's possession etc.), while documents under category

(b) above are merely to be listed.

Further, non~production or non-listing of documents does not necessarily mean exclusion (of the documents) from evidence, In every case, the Court can, under existing Order 7, rule 18, grant leave to admit them in proper cases.

This existing scheme is sought to be replaced (under the Bill) by a more drastic scheme, whose chief features are as under :

(a) A l ggggmentg must be physically produced along with the plaint;

(b) Non~compliance with the above cannot be cured, as the court's power to grant leave is sought to be taken away, by Page No.42 amending Order 7, rule 18.

Now, with reference to the above amendments, at least two major points require consideration. First, whether it is really necessary to insist on physical production and delivery (at the commencement suit) of even evidentiarx gggumeﬂts T This would mean burdening the court with many documents which may ultimately never be formally tendered in evidence (say, because the defendant's admission of certain facts may render them superfluous). The present scheme, which makes a distinction between "basic" and "evidentiary documents", has worked well. Evidentiary documents are to be produced when the issues are (or are about to be settled). See Order 13, rule 1~2 (whose scheme is examined in detail in AIR 1990 Gauhati 7). If the defendant has, by that stage, already admitted certain facts, the related documents will have no role to Page No.43 perform.

Secondly, to completely deprive the court of the power to permit production etc. of a document at a later stage (for sufficient cause) appears to be a course uncalled for. It is not in every case that non~production will cause prejudice to the defendant. If, for example, there is no possibility of fraud, etc. and there is no doubt about the existence of a document at the date of suit, the court should admit the document.

Dﬁvidas Vs. Pirjada Bequm, (1884) ILR B Bom. 377.;

Arjun Vs. Sankariah, AIR 1957 AP 73%;

Shibkumar Vs. Rasulbux, AIR 1959 Cal. 302.

This is particularly the case where certified copies of public documents are sought to be produced at a late stage.

Iaiguac §ingb.!ai ﬂhsguau Rae.

(1908) 12 CNN 312.

Page No.44

The utility of the discretion conferred at present on the court to relax the rigour of the rules relating to production of documents has been recognised at the highest level.

(1)    v

AIR 1950 PC 68.

(ii) .I_ms.uLb_«:=msLi Es.-- ['11-.Ll-3§..é_\._C_'._€J_-Ln ILR 45 Cal. 379 (PC). ' One small point (not arising out of the proposals) can be conveniently mentioned, at this stage. Present Order 7, rule 15 reads as under :

"15. where any such document is not in the possession or power of the plaintiff, he shall, if possible, state in whose possession or power it is".

It can be considered whether, at the end of Order 7! rule 15, the following words should be a added "and take steps for getting it produced before the court by ; applying to the court for issuing process Page No.43 ; for such production". [See also 0-28, below].

G-16 g_ Order §4_;g;g_; gﬂritten statgmeg; Q1 d_______t.J_efendan 1. 91329.: .1_.8_(_!.J_ 91 i._.9_h B.__._1__v..1 1 Order 8, rule 1 of the Code (as it stands at present) requires the defendant to present his written statement at the first hearing or "within such time as the court may permit". The Bill proposes to provide that the time permitted by the court shall not be beyond thirty days from the date of service of summons on the defendant. The question is, whether an igfleniglg limit of 30 days should be categorically provided by the. law. It is to be kept in mind that when a summons is received by the defendant, who is now to prepare his defence, 'such defence usually involves »the following steps-

(i) getting ready the necessary documents;

(ii) engaging a lawyer and giving him instructions;

Page No.46

(iii) allowing the lawyer some time, to go through the material;

(iv) drafting (and getting typed) the written statement; and

(v) physically filing it in court.

Steps at (iii) and (iv) above are not within the control of the defendant personally. Further, if the case is a complex one, the lawyer will take some time to study the legal defences (if any), that may be available.

Having regard to these considerations, a proposal depriving the court of its present piscretion in regard to the time limit for filing the written statement may not be a very desirable step. Sometimes, in order to keep to the (proposed) time limit, the defendant's lawyer may be induced to include in the written statement all conceivable defences ~ sound and unsound _- thus leading to delay in disposal and to the framing of unnecessary i'55LlES .

Page No.47

0-17 _=_ 0_c__e_d r§L_u_r lgia i2ce29_§_e_Q)_ D__e_fs__d.sn___gn t' 0 documents ;_Clause 1B(i1] Q1 the 8111.

Order 8, rule 1(2) at present, requires the defendant to file a list of documents on which he :proposes to rely. A document not so listed cannot lbe later received in evidence for the defendant, without the court's leave, for which reasons have to be recorded. This is the gist of existing Order 8, rules 1(2), 1(5) and 1(7). If the defendant relies on a document as the basis of is §g_ Q11 or counter-claim, then that document must be physically delivered to the court with the written statement.

.where no set off is claimed, but the defendant bases his ggfence on a document which is in his possession or power, the same also must be physically delivered to the court, along with the written statement, as provided by Order 8, rule BA(1). If it is not so produced, it cannot be received in evidence for the defendant, without the leave of the court, under existing Order 8, Page No.48 rule 89(2).

The Bill proposes to change this scheme, both in substance and in structure, by replacing existing Order 8, rule 1(2) to 1(7) and rule BA, by Order 8, rule 1A, whose main features are as under:

(a) Defendant must list. produce and deliver, along with the written statement every gpcument QQ which h gelies --

(1) whether it is a document which forms the basis of his defence (without set off etc.) or

(ii) whether it is a document on which he bases his set off or counter-

claim or

(iii) whether it is a document on which he merely "relies" (i.e. which is merely an evidentiary document and not a basic or foundational document)}

(b) A document which is not so listed, Page No.49 produced and delivered, cannot be tendered in evidence on behalf of the defendant at the hearing of the suit. This bar is mandatory (under the Bill) and admits of no relaxation by the court, even if good cause is shown for its non~fi1ing etc. [Contrast proposed Order 8, rule 1A(2), with existing Order 8, rule 1(5) and Order 8, rule 8A(2)J. It is a matter for serious consideration whether such a provision, admitting Q1 QQ relaxation, would preserve the essentials of fair .._._....._...._.....

trial. It would even render nugatory Order 47, rule 1, under which the court can entertain a review application for evidence subsequently discovered. Other inconveniences may also result from the proposal. [See also O--2B, below].

gU"18 ; Order Q; rule 2 gsubseguent glggginggl L gclause 181111) 91 the 8111.

Existing Order 8, rule 9 of the Code _provides as under :

Page No.50

"No pleading subsequent to the written statement of a defendant; other than by way of defence to a set off or counter-

claim, shall be presented except by the leave of the court and upon such terms as the court thinks fit; but the court may at any time require a written statement or additional written statement from any of the parties and fix a time for presenting the same."

The Bill proposes to delete this rule. The consequences of the proposed deletion of Order 8, rule 9 need to be analysed in some detail.

(a) The existing rule begins with a Qgghibition. Couchedv in negative language, it lays down that QQ Qlggging (subsequent to the first pleading) shall be allowed, without the leave 'of the ' court. Thus, literally, its deleting would mean removal of the prohibition Page No.51 against subsequent pleadings.

(b) However, that does not seem to he the intention underlying the Bill, whose general approach is towards eliminating (what are regarded as) procedural refinements; The object seem to be to take away the power of the court to permit subsequent pleadings. If so, the proposal seems to be extremely unrealistic and may cause serious injustice. Filing of such supplementary pleadings may become necessary in various situations. Following list of such situations is illustrative only :

Illustrative cases §8uQQlegentarx pleadings

(i) If the defendant introduces a new case, it is fair to allow the plaintiff to file his subsequent pleading.

Qhagggg gs; Jaipur Development A tﬂggitx, AIR 1987 RaJ.IQ.

Page No.52

(ii) If the plaintiff amends (with leave) his plaint, defendant should be given leave to file a subsequent pleading.

AIR 1979 Drissa 78.

Conversely, if the defendant amends his written statement, then leave should be granted to permit the plaintiff to file his additional pleading, to react to it.

(iii) Leave to file an additional pleading may be granted to take linto account subsequent events, occurring after the filing of the suit and t9 §iY_£~'.L.i.£--1. a.v_L...s_1,_t;_i.r;_1.,i.___tx of suits-

Bamaswa i idu Vs. Fﬂtﬂg Pillai, AIR 1965 Mad. 9.

(iv) when a minor attains majority during the pendency of litigation and is not satisfied with the pleading filed by Page No.53 the guardian ad litgm, the minor should he given leave under this rule.

§_Lv.J_L_\a §.1.!2£1Jl E~.'.s__1. Sinq_h_.

QIR 1962 Fat. 159.

Your views on the point under' consideration are invited in the light( of above aspects.

G-19 ;_Drder EL rule l9_§Defgndant's fgilurg gg file written statement] L Clause ;8(ii11 Q1 the Bill.

Present Order 8, rule 10 deals with the situation where the defendant fails to file a written statement. The rule (as amended in 1976) leaves to the court two alternatives :

(a) the court may proceed to pronounce Judgment, or

(b) the court may make such order as it thinks fit.

Gangat Qnand Vs. Seth ﬂal, AIR 1983 Raj. 146.

Page No.54

The Bill proposes to delete this rule. It would appear that this would remove from the Code a power which is badly needed. Its deletion would create a void in the procedural apparatus and create uncertainty.

would you favour the proposal ?

SUMMDNS EDT QERVED G-20 ;_Order 2; rule ; [Dismissal Q1 sgit uhera ."1 summons not served for ;El'E;$tg Qgx_Q;ggg§§_jgg§L etc.) : Clause 19(1) Q1 the Bill.

.._. _.--__ Order 9, rule 2 of the Code, at present, empowers' (but does not ggguiﬁg) the court to dismiss the suit, if the summons has not been served upon the defendant' because of the plaintiff's failure to pay the process fees or to present necessary copies of the plaint, etc.. The Bill makes the provision more stringent, by s .

fgguigigg the court to dismiss the suit, 'if the summons has not been served because of plaintiff's failure to send the summons to the defendant Page No.55 within two days (that being the scheme in the Bill in the amendments proposed in Order 5, rule 9) -

See O-9, above.

(Further, the Bill does not mention non- service because of failure to file copies of the plaint -- presumably because of the amendment, proposed in Order 4, rule 1).

The amendment to Order 9, rule 2 is thus consequential and does not need separate comments.

IU1 N 1'!' Q;g; L Qgggg 2; gule Failur __ agglx fog ﬁgesh summons) ;_§lause 19:11) Q1 the Bill.

Under existing Order 9, rule 5(1), if the plaintiff fails to apply, githig ggg. month, to apply for fresh summons (after the first one has been returned unserved), the court shall dismiss the suit, unless the plaintiff satisfies the court about certain specified circumstances excusing the failure.

The Bill proposes to substitute geven days, in place of thirty days.

Page No.56

would you favour the proposal ?

PRUQEDURE FOB ﬁ,Q.E. 9-22 ; Order 10, rule iﬁ (New) Alternatige gigggtg resolution 3 Clause 2011) Q1 the Bill.

Order 10 of the Code deals with examination of the parties by the court at the Qgggtgigl stage. In this Order, the Bill proposes the addition of new rule 1A, to the effect that after recording the parties' admissions and denials, the court jshall direct the parties to opt (for) either mode of the settlement outside the court as specified in sib-section (1) of section 89".

This new rule is, in substance consequential on the proposed amendment, of section 69 (as per clause 7 of the Bill. However, it is necessary to point out that sector 89 (as proposed by Clause 7 of the Bill) begins as under :

"89(i) where it appears to the court that thg_g exist e1 ents f a settlement which _.._......._... ..._............ .1... .. .:....._...._...._......i...

Page No.57

max be amggptable to the parties the court shall formulate the terms of settlement....".

[See under O~3, above].

Thus, under section 89 as proposed, the court is to take into account the possibility of settlement in the gagtigulag gage, while proposed Order 10, rule 16 contains no such requirement. On the general principle that. rules should not go beyond the sections, it would be a point worth considering if Order 10 rule, 19 (proposed) would not require some change.

[This point of drafting is, of course, in addition to the major question whether ADR through court, with "limited" compulsion under section 89, can reduce de1ay.] Page No.58' REFUSAL IQ_AN§NER Q~23 ;_ Order 10, rule ﬂ4_ Befusal tQ_ gggggg material Questions ; Clggse 20§ii) Q1 the B111.

where the partyds pleader, appearing at the pre~trial hearing, is unable to answer material questions, and the court is of the opinion that the party himself can answer those questions, it can, under Order 10, rule 4, "postpone the hearing of the suit to a future day" and direct that such party shall appear in person on the day so specified. The Bill proposes that such "future day" shall not be later than seven days from the date of first hearing.

The object, obviously, is to cut short the interval. But a few important aspects may have to be kept in mind, while evaluating this proposal.

(1) The volume of business before the court may be such, that in the next week, it has no free time left.

(ii) The defendant (assuming that he is wellnconnected with his counsel) may not Page No.59 necessarily be able to arrange for his travel in five or six days.

INTERRDGATORIES ﬁﬂﬂ INSPECTION G24 ;_Drder 11. rule ; ; Interrogatories.

Order 11, rule 2 of the dode provides for delivery of interrogatories by a party to the court, but lays down no time limit, as such, within which the court must decide about their admissibility. The Bill seeks to add these words "and that court shall decide within seven days from the day of filing of the said application".

Since decision on the interrogatories within 7 days (though good as a working rule) may not always be feasible (where the court calendar is a heavy one), this proposal may need modification. It can, for example, be provided that the court shall ordinarily gggigg the application within two weeks".

Page No.60

0-25 : Order 11. rule ig Notice for inspection Q1 documents : Clause 2; (ii) Q1 the Bill.

_ _..__--._..

Under Order 11, rule 15 of the Code, "every party to a suit shall be entitled at agv time", to give to any other party notice to produce for inspection documents referred to in the pleadings,. affidavit, list of documents etc. filed by that party. The Bill proposes an amendment, whereunder the notice must be given "at or before the settlement of issues".

The proposal appears to be acceptable. Of course, this is the usual practice, though parties do not resort often to the notice procedure in India.

ADMISSIONS O-26 : Order 12, rule 2' (Notice t adm documents) g_C1ause 22(1) Q1 the Bill.

Order 12, rule 2 deals with the notice given by a party to the opposite party to admit, within I I Page No.61 fifteen days from the date of service of the notice certain documents. The proposed amendment seeks to reduce this period to seven days.

I The proposal is grim; fagig, acceptable.

G-27 : Order 12,_rule ﬁ_§Notice gQ_admit facts.

Under Order 12, rule 4 of the Code, a party may give to the other party notice to admit certain facts. Even where an admission is made in pursuance of such notice under the second proviso, the court may, at any time, allow any party to amend or withdraw any admission so made", on such terms as may be just". The proposal now is to delete the second proviso altogether. The effect, of course, would be that an admission can neither be withdrawn, nor can it be amended -- and this would be so, even if the admission was made under a mistake, coercion, fraud or undue influence. Egima, jagig, the proposal seems to go too far. Moreover, even the present rule does not. give a right to withdraw. The matter is in the discretion of the court. There do arise occasions when an Page No.62 admission ~ even in the pleadings - may have been made under mistake, etc.. Facility of withdrawal should therefore be preserved.

cf. ﬂglgig gs; ﬂyrtop, (1892) 3 Ch. 226.

DQQQMENTS .0-28 _=_ QI;c_l_ev;i§_._cu_1_e_esisbg Z. i .1 documents) 3 Clause 2; Q; the Bill.

Order 13, rules 1-2 of the Code provide that where a document is not already filed in court by a party, the party must produce it (if in the party's possession or power) at or before the settlement of issues Otherwise it cannot be tendered in evidence, without leave of the court.

In the Bill (see the amendments proposed in Order 7, rule 14 and Order 8, rule 1A). the scheme adopted is different. All documents ~ basic or evidentiary ~ must be produced -- in original or in copy wwith the pleading. Where a copy has been so filed, the original must be delivered when the issues are settled. [See under G~15 and 0-17, Page No.63 above].

To a very large extent, the amendment of Order 13, rules 1-2 is consequential on the more stringent approach already adopted in the Bill under Order 7, rule 14 and Order 8, rule 1A, and the fate of the two proposals hangs together. However, one point of detail needs examination. A party may be having only a copy of a document and may be able to file it under Order 7, rule 14, etc.. But he may not be able to comply with proposed Order 13, rule 1 (requiring the filing of the original on settlement of the issue in every case where he has filed the copy earlier). In such a situation, the rule must provide that the party ought to apply to the court to send for the document from the custody of the person in possession of it.

ISSUES Q--29 3 Order 14, rule 5 _:_ Adjournment for framing issues 3 Clause 24(i) gg the bill.

Under Order 14, rule :4 of the Code, when a court cannot frame the issues immediately (because it desires to examine some witness or to inspect some document), it may adjourn the case to a Page No.64 future day. The proposal in the Bill is that the future day should not be later than seven days.

The object of course, is to reduce the gintervals. But one has to remember that the later ;date will be for production of some witness or document. Circumstances may arise where the witness or document may not be available so soon. The proposed rigid time limit will then prove to be unworkable.

The proposal has to be examined in the light of the above practical aspects.

G-30 ; Order 15, rule § amendment, etc. Q1 1 issues : Clause 24§ii) QL the Bill.

Existing Order 14, rule 5 of the Code empowers the court to add to or amend, the issues, even after they are framed. The Bill seeks to delete this rule. It seems to have been assumed that since the power to grant leave to amend the pleadings (Order 6, rule 17) is to be 'removed, [G~12, supra]. [see Clause 16 (iii) of the Bill], therefore, there is no need to retain the Page No.65 provision relating to addition etc. of issues.

However, it needs to be pointed out that this is not a totally complete or accurate picture of the position. Addition to, or amendment of, the issues may become necessary or desirable, not only by reason of amendment of the pleadings, but also because, even on the pleadings as filed originally, some issues may have been incorrectly framed. Obviously, the court should have power to rectify the mistake.

Moreover, even leaving aside these situations (i.e. amendment of the issues, consequential on amendment of pleadings or necessitated by mistake of the court), there may exist other special circumstances, justifying a re--framing of the issues. The following is an i1lus,£atixg list.

Illustrative list :_Amending the issues

(i) Evidence may show that a certain document (not illegal) is void, The court may like to examine the implications. and Page No.66 to améﬁ the issues.

C-f §heLmH.Eat_e_ V- eggiig again (1912) ILR 35 Mad. 507 (P.C.)

(ii) Evidence may show that an agreement is illegal (and not merely' void). Court has itself to frame an issue on the point.

(iii) Defendant may admit a certain fact (in his evidence) or under Order 12 (in response to a notice). The related issue may then require deletion or modification.

(iv) Court may discover that the issue framed by it cannot possibly arise having regard to the nature of the suit.

Chikkaveera Gowda Vs. Deveoowda, AIR 1975 Earn. 145.

In fact, the power to amend, etc. issues, instead of causing delay, can well be exercised to avoid multiplicity of litigation.

Chartered Bank of India Vs. Imperial Bank of gﬂggg, AIR 1930 Cal. 534.

Page No.67

It is presumably because of the valuable object which can be achieved through amendment of the issues, that the Privy Council in one case held that an issue can be raised, even after the arguments.

Shamu Patter Vs. Abdul Kadir, ILR 35 Mad. 607 (PC).

; PROCESS close of (31-31: Order 16. rule 1(4) Isumggogg _{;g_ be obtained Q1 parties 5 Clause 25(1) Qi the gill Under Order 16, rule 1(4) of the Code, parties may obtain summons to witnesses applying to the court. The Bill proposes that should be done within 5 days of presenting list of witnesses.

Do you agree T the bv this the Page No.68 g;§g_ : Qgggg 16, rule 21;) ; Qegosit Q1 exgegses Qlauses 25(ii1_gi the Bill Order 16, rule 2(1) requires a party applying for witness summons to deposit the expenses of witnesses. The Bill proposes that the deposit should be made within 7 days of the application under Order 16, rule 1(4).

Do you agree QDJDURNMENT 0-33 L Order 17, rule ; Adjggrgment and gusts thereof : Clause §§ Q: the Bill.

At present, the Cnurt has power to adjourn the hearing under Order 17, rule 1. and "may make an order" as to costs. The Bill proposes that -

(i) not more than three adjournments shall be granted to a party during the hearing of the suit; and

(ii) the court §hali_make an order as to costs (including such higher costs as the Page No.69 court deems fit), when adjounment is granted.

It is felt that the fettering of the court's discretion as to the grant of adjournment and the award of costs (as proposed) may not be a very expedient course, as there may arise, in practice, gﬂggptigﬂal cases justifying a special approach. For example, if party "A" dies and is succeeded by "8", who also dies and is succeeded by "C", adjournment may be necessary at the instance of the plaintiff, an both the occasions. Thereafter, plaintiff's lawyer has fallen ill on one occasion, necessitating an adjounment. Later, the plaintiff is injured in an accident. These episodes would make up four adjpurnments. Rigidity would not be desirable. [See Bashir Ahmend Vs. Mehmood Hussain, AIR 1995 SC 1857].

WITNESSES AND EVIDENCE G-34 : Order 18. rule 2(4). Order of examinatign Q1 Qarties : Clause 27(1) Q1 the Bill.

Order 18, rule 2 of the Code provides for the order in which witnesses shall be <examined. The Page No.70 general rule may be departed from, under Order 18, rule 2(4), which reads as under :-- ' "(4). Notwithstanding anything contained in this rule, the court may, for reasons to be recorded, direct or permit any party . to examine any witness at any stage." The Bill proposes that this sub~ru1e shall be deleted.

For understanding the implications of this proposal, it is desirable to look at the scope and utility of the present sub~rule. It confers two different kinds of power on the court "

(i) power to girggt the examination of witnesses at any stage; and

(ii) power to permit the examination of witnesses at any stage.

At the outset, it should be pointed out that sub--ru1e(4) (now proposed to be deleted Came to be inserted in 1976, and incorporates the gist of High Court Amendments (made by the High Courts of Page No.71 Assam and Nagaland, Kerala, Madhya Prasdesh, etc..) One of the reasons why the law was regarded as needing such clarification was the fact that some High Courts had taken the view, that after the case is adjourned for arguments, the Court is not bound to examine a witness (even if he is present).

cf - t1.9_L1s..r1.l_a._1_ 5/2--_ _I_r1<_isr_n.e....-

AIR 1954 Raj. 238, dissenting from the opinion of the Chief Justice in Monilal Bandopadhyayg 2;;

§«;!_1_; od Q§§g_1_, (.1994) ILR 20 Cal. 740.

The subsrule was added in 1976 to remove the controversy. If it is deleted, the earlier controversy will be revived.

That apart, on the merits also, the provision in sub~ru1e (4) seems to be needed. Following are some illustrative situations :

Illustrative cases :_Drder Qj_examination

(i) After the plaintiff had closed his case, the defendant tendered - certain documents through his witnesses. Plaintiff had no opportunity of rebutting them. The Page No.72 court permitted him to produce additional evidence for the purpose.

Aranya Kumar Vs. Chintaﬁgni, AIR 1977 Drissa 87 cf. Alekh Pradhan Vs._ﬁp§gm§£ Eal, ﬂlﬁ 1978 Drissa 58.

(11) Plaintiff was in hospital, when his witnesses were being examined. Court allowed the plaintiff himself to be examined at the end.

Shiv Sahay Vs. Nandlal, AIR 1989 MP 40, 42.

cf. grahﬁﬂdgg Frasad Sah Vs. Ram Sakal gag, AIR 1985 Pat. 5}.

(iii) Case was set ex Qagte for the defendant absence. The defendant was later permitted to participate in the trial (though ex pagtg order was not set aside as such). It was held that the court could permit a party to examine its own witnesses.

Subala Dharan Rout Vs. Exéﬁilg. Kumari Page No.73 Qaﬁi, AIR 1991 Drissa 157.

0-35 : Order 18. rule g_§§gam1nation Q1_the ggﬁgg ig_open courtL_;_Clause 27(ii) Q1 the Bill.

I 9 In the present scheme of the Code, witnesses are to be examined in open courtby the Judge.

Order 18, rule 4 provides as under :

"4. The evidence of the witnesses in attendance shall be taken orally in open court in the presence and under the personal direction and supretendence of the jtudge."

This applies, igtgr_alia, to expert witnesses also.

Lakshmayya Vs. Suryanaravana, QIR 1958 AP 254.

The Bill proposes to substitute a radically different scheme, by revising Order 18, rule 4.

The revised rule, (which is lengthy enough) need not be quoted at this place. But its Page No.74 principal features are as under :-

(a) Examination in chief of a witness shall be in the form of affidavit.

(h) Thereafter, his crossmeuamination shall Qg taken orally Qx a Commissioner.

(H) The Commissioner shall be selected by the trial court from a panel constituted by the District Judge. He will be suitably renumerated (High Court will make rules on the subject).

(d) Commissioner shall record the evidence and make a report and submit the same to the Cour 1.: .

(e) when a question is objected to by a party, but is still allowed by the Commissioner, "the Commissioner shall take down the question together with his decision" W this is laid down in proposed Order 18, rule 4(7). [Incidentally, the proposed subwrule is silent about taking down the gist of the gg1ggt;Qm and the Page No.75 answer given by the witness].

(f) For reasons to be recorded, the court may examine a witness in open court. [See proposed Order 18, rule 4(2), proviso).

The language of proposed Order 18, rule 4(2) main para, would seem to suggest that (subject to the proviso), the ordinary' mode will be examination through commissioner. But proposed Order 18, rule 19 (new) and Order 26, rule 4A (new) [see clause 27 of the Bill] suggest that the matter is in the court's discretion. [See under Q--37 and Q--39, below].

The Commission is of the opinion that this is a very salutory and long overdue provision. The age-old rule that final decision by the judge who has heard the evidence is conducive to a fair judgment has lost much of its validity in the present day situation. Very often we find that the judge who decides the case finally is not the judge who has recorded the evidence. In many places, retired judicial officers are available, who can be assigned this job which will also save the frequent trips and the incidental expenses involved in bringing the witnesses on every adjourned date of hearing. This would also mean a great saving of time of trial courts, which can be gainfully employed in final hearing of suits and/or the interlocutory matters. In most of the States, the courts are groaning under the weight of workload and the proposed process would mean a god -- send to them.

This does not mean that the court cannot itself take up Page No.76 the recording of deposition of witness(s). Where it thinks that such a course is just and proper or where the court has ample time at its disposal, it can certainly choose to do so.

so far as demeanour of witness is concerned, the ordinary rule is that it should be recorded at the time of recording of his deposition (See Order 18 Rule

12). If it is not so recorded, but is refered to in the judgment, proper reasons must be given for such opinion (see AIR 1972 SC 1618) referred with reference to Section 363 Cr.P.C. (1898) which broadly corresponds to order 18 rule 12, CPC.

Such a procedure is in vogue in USA and has been working successfully.

A few points of detail should also be adverted to, at this stage

(a) In Order 18, rule 4 is to be amended as proposed, some consequential changes Page No.77 may he needed in other rules also (for example, in Order 18, rule 5, Order 18, rules 8, and 14, Order 18, rule 15, etc.).

(b) Where a question is objected to, by the opposite party, but is allowed by the Commissioner, it may be better to provide that the Commissioner shall take down :

(i) the question

(ii) the nature of the objection

(iii) the name of the objector

(iv) the decision of the Commissioner, and

(v) the answer given by the witness.

[cf. Order 18, rule 11, as to the evidence recorded by the Judge himself].

(C) It should also be considered as to what is the status of the order passed by the Commissioner. At present, a Page No.78 Commissioner appointed to take the evidence of witnesses has rm) power tun disallow questions which he considers irrelevant.

Ram Krishna Dalmia vs. Firoze Chand:

AIR 1960 Punjo 430.

Such a power may have to be conferred upon the Commissioner, by the Rule.

At present, Order 26, rule 16A (inserted in 1976), deals with the matter in some detail.

Page No.79

0-36 L Order 18. rule LIA (Evigengg got Qreviouslx knowQl_etc.1.

At present, Order 18, rule 17A of the Code empowers the court to permit a party to produce (at a later stage) evidence which he could not produce earlier, either because it was not within his knowledge or because it could not be produced when he was leading his evidence. In either case, due diligence must be proved.

The Bill proposes to delete this rule.

It is submitted that in coming to a conclusion on this proposal, several points need to 'be considered.

(1) The rule was inserted as late as 1976 and its deletion today, within two decades, should pgima jggig be considered an an unusual course, for which very strong reasons would be required.

(11) On the merits also, the rule appears to be a rational one. If certain evidence Page No.80 (not earlier available) becomes available before the judgment is pronounced, it stands to reason that the court should have power to permit it. It would be pointless to compel the party to wait until the judgment is pronounced and then expect the party to file an application for review under Order 47, rule 1, on the ground that such evidence had become available. Order 18, rule 17A, far from delaying the trial or making the procedure complex, has really the effect of lessening the time spent in litigation and making the procedure less complex, because it avoids the laborious chronology of :

(1) Judgment and decree;

(2) application for review (because of fresh evidence);

(3) hearing and disposal of the I review application;

(4) (if review is granted), fresh Page N0.81 hearing of the main case, though limited to the new evidence and /evidence and (5) fresh/Judgment in the trial so reuopened.

QIR 1980 P&H 160.].

9-37 ; Order 18, rule i2_(New) (Power §Q_ ggg statements recorded gQ_Commission) : Clause 27§iv) of thg_Bil1 The Hill prmpmses the insgrtign of a new rule

-- Urder 18, rule 19, under which the ggggt may, instead of examining witnesses in open court, direct their statements to be recorded on Commission under proposed order 26, rule 40. By clause 29 of the Bill, it is proposed to insert Order 26, rule 4A, to the effect that the court may in the interests of justice er for the expeditions disposal of the case or for any other reason, issue a commission for the examination of any person resident within its Jurisdiction" and the evidence sm recorded shall be read as Page No.82 evidence" (Compare Rajasthan amendment Order 26, HI] re 11)) .

Thus, Order 18, rule 19 (proposed) and Order 26, rule 40 (proposed), go together.

Order 26, rule 4A, at the first sight, appears innocuous. But the real problem arises from the vogueness of the language. What is the basis on M which the discretion is to be exercised Is the Commission procedure to be resorted to ".1 as a routine Apart from that, there is the question of disharmony between W

(i) Order 18, rule 4(1) (as proposed) under which (subject to the proviso) cross examination, etc. must be done gg Qgmmissiena [Bee G*35. supra]-

(ii) Order 18, rule 9 and Order 26, rule 4 (as proposed), whereunder it is . 2 discritionary?

[See OM39, im£caJ-

Page No.83

JUDGMENT AND DEGREE 9-38 L Order 20,_rule ;_ §Pronouncing _1 t e Judgment and qiv1ng_cogx, etc.) ;_Clause g§_g1 the 8111, read with Clause 32(1).

The Bill, in clauses 28, and 32(1), proposes certain material changes "

(i) in the course to be adopted by a trial court, when it pronounces Judgment, regarding giving the parties a copy of the judgment, and preparation of the decree, etc. [Clause 28 of the Bill), and

(ii) in the requirements of the law relating to the copy of the decree, etc. that must accompany the filing of the first appeal [clause 32(1) of the Hill].

The prmposals are fairly elaborate and relate tn Urder 20, rule 1(2), Order 20, rule 6A and rule 68 and Order 41, rule 1 of the code. It will be convenient, if the present law and the proposed amendmente are analysed as under :

Page No.84

(a) Under existing Order 20, rule 1(2), a copy of the whole Judgment shall be made available "for the perusal mf the parties, etc." immediately after the Judgment is pronounced. Under the propoeal regarding Order 20, rule 6B, gggieg §haLL ge made available to the parties, immediately "fer preferring an appeal", on payment of charges specified by rules made hy the High Cnurt.

(h) Under prement Order 20 rule, 6A(1) and (2), and rule 6ﬂ(2), the scheme is as under:

(1) The last paragraph of the judgment shall state precisely the relief granted.

(ii) The court shall endeavour to draw up the decree expeditiously and within 15 days, but, if the decree is net ready within 15 daye, the party deeiroue of appeal can obtain from the Page No.85 court a certificate and thereupon the appeal can be preferred without filing a copy of the decree. The last paragraph of the judgment will constitute the decree, for purposes of appeal and execution.

In contrast, under the proposed scheme, the position will be as under :

(1) The decree must be drawn up within 15 days [Order 20, rule 6A(1), as proposed].

(2) Provision that last paragraph of the judgment should contain the precise relief, is omitted [Order 20, rule Anti), as proposed].

(3) Copies of the Judgment must be available for preferring an appeal.

[order 20, rule 68, as proposedl.

(4) Appeal can be filed without filing a copy Q1 the gwgggg. Copy of ...._..

the iuggmggt [made available under Page No.86 point (3) above] is to be treated as the decree. But once the decree is prepared, the Judgment ceases to have the effect of a decree. [Order 20, rule 69 and Order 41, rule 1, as proposed].

[Order 41, rule 1 as proposed by clause 33(1) of the Hill].

In a rough and ready manner, it can be stated that the Bill wishes to place strict emphasis upon a timely preparation of the decree and (consequentially) deletes the facility of filing an appeal with copy of the last paragraph of the judgment. (pending preparation of the decree) However, the judgment can be» treated as the decree, till decree is prepared.

The main question to be considered is, whether this altered scheme is an improvement on the present law, which is based on the 'extensive examination of the subject by the Law Commission in its 54th report and connected recommendation.

Page No.87

Present law does not seem to have given rise to any serious complaint. It takes note of the realities ~ i.e. delay in the preparation of the decree and makes other connected provisions.

Incidentally, the present provision in Order 20, rule 60(1). [Judgment to state the precise relief] is not only helpful for appeal, but also serves to improve the quality of Judgment writing It compels the judge to focus and concentrate his mind on the relief, thus promoting the cause of clarity and precision. The proposed amendment seems to have missed this aspect very important aspect also.

[See also G~42, infra].

, ,-,--._...,,. . . , 7 A.-- . ,. ,. . . ......_.... _ . -.._..- .... -. .. _ _. ..

Page No.88

9-39 ;_ Order 26, rgle ﬁQ_ (New) Commission for witnesses 1 Clause 21 Q; the bill. [See also Q-35, supra].

Clause 29 of the Bill proposes to insert Order 26, rule 40 (new), under which. the court "may in the interest of Justice, etc. issue Commission, for examining a witness within its Jurisdiction." it may he noted that clause 27(ii) of the Bill proposes to amend Drder 18, rule 4 to make such commissions mandatory (except in certain cases). [See Q~35, supra].

INTRERLDCUTDRY RELIEF 9-40 L Order 39, rule _; (Temporary) Injunction L Clause §Q Q1 the bill.

l Present Order 39, rule 1 of the Code empowers the court to issue temporary injunctions ~ mostly relating to disputed property or on apprehension that the defendant will dispose of his property to defraud his creditors. The Bill seeks to add sub-

rule (2), under which "the court shall" (when Page No.89 granting such injunction) "direct the plaintiff to give security or .make such other directions 35

-the court thinks fit."

It is not certain if such a mandatory provision is really required; and this point of substance will definitely need attention. In addition, the drafting may also need a second hook.

Q-41. 5_0rder 39 (proposed) (Inspection Qefoge institution Q1 suit} : Clause 31 f thg Bill :._¢:_.._.j.____._..__.

The Bill proposes to insert Order 39A, in the Code. The object (though not precisely stated in the draft rules) is that even while a suit is not yet filed , some one representing the plaintiff may apply to the court to appoint a Commissioner for local investigation "for the purpose of elucidating any matter in dispute". The Commissioner so appointed will be deemed to be appointed under Order 26. Order 399,' rule 2 further proposes that within seven days of filing of such application, "the person competent to file PME7/PMBD212 Page No.90 suit, shall file the suit.

The draft given in the Bill is silent about the consequences to follow -

(i) if the suit is so filed; or

(ii) if the suit is not so filed.

The intention presumably is that if the suit is filed, then the appointment will continue. If not, then it will lapse.

Probably the order as drafted does not bring about the real object behind this provision, which appears from clause (h) of para 3 of the Statement of objects and reasons which reads as follows:-

"(h) in matters relating to property disputes, particularly in matter of unauthorised construction on the land of others, it has been found that, under the existing provisions of the Code of Civil Procedure, no application for injunction can be moved unless the suit is filed first in the court having competent jurisdiction. With a view to obviate this hardship, it is proposed that a person may make an application to the court of competent jurisdiction for appointment of a commission to ascertain the factual status of the property so that at the time of the filing of the regular suit the report is available to the commissioner-relating to the factual status of the property in dispute."

Page No.9OA The rule in this order may be redrafted to accord with the said objective or to bring about clearly the intendment and scheme the draftman has in mind in this regard.

The proposal is unexceptionable in substance. In fact, it could be expanded to cover certain other types of commission -- e.g., to record the statements of witnesses who are likely to leave the country or are very ill. Of course; in the absence of cross- examination. their statements (cannot constitute "evidence". But the statements so recorded can (ig statutorily recorded) serve certain other purposes (e.g. see sections 32, 145, 157 and 159, Evidence Act). However, the drafting will need changes in many respects, and it will also be necessary (as Page No.91 suggested above) to add a provision as to the consequences of filing / nonmfiling of suit after the pre-suit application is made..

The class of suits for which the provision is intended, may also have to be indicated with some precieion.

You may like to offer your comments in the light of the above.

APPELLATE PRQQEDURE 0-42. _:_ Order 41. rule 111) (Form Q_f__ aggegll :

Clause 32(1) gj_the B111.

In View of the amendment proposed by the Bill in Order 20, rule an, 68, etc. the Bill (as a consequential change) proposes to amend Order 41, rule 1(1). [See D"28, ggggg].

Page No.92

0-43 L Qgggg 1;; rule 1 Presentatiog and re istration _1_memo Q1 appeal L Clause 32111) _1 the Bill.

Under existing Order 41, rule 1. 9, etc. the memorandum of appeal is to be presented to the appellate court. Thereafter (subject to technical scrutiny), the memo of appeal is admitted by the court (or its officer), who shall endorse thereon the date of presentation and enter it in the register of appeals.

In place of the above procedure. the Bill "envisages a different scheme. The memorandum of 'appeal will be filed in the very court which pronounced the Judgment. This is the gist of the amendment proposed in Order 41, rule 9 -- though Order 41, rule 1 is not being amended in so many words, for this purpose. It is proposed that _the trial court will forward the memo to the appellate court (though the suggested amendments do not make this specific provision explicitly).

How far do you favour this scheme ?

Page No.93

[The amendments proposed by the Bill in Order 4], rulmg 11, 12, 13, 15, 18, 19 and 22 by clause 32(vti) are cmnsequential, an those referred to in Questions 41, 42 abmve.].

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The Code Of Civil Procedure (Amendment) Bill,1997