INTRODUCTION
The case of
Salem Advocate Bar Association v.
Union of India[1] preceded by the original case of
Salem Advocates Bar Association, Tamil Nadu. v
. Union of India[2].
This case was presided over by the Hon’ble 3 Judge Bench consisting of
Y.K. Sabharwal, D.M. Dharmadhikari and Tarun Chatterjee. It is a civil
matter wherein a writ petition challenging the constitutional validity
of the amendments made by the Amendment Acts of 1999 and 2000 to the
Civil Procedure Code was challenged. Various amendments were proposed
analysis of which is dealt in the following pages.
The amendments made were rejected by this
Court but it was noticed in the judgment that the propositions so made
have to be critically analysed and formulated for the manner in which
section 89 of the Code and, for that matter, the other provisions, which
have been introduced may have to be administered. It was for this
purpose that a high level Committee was constituted which was headed by
a former Judge of this Court and Chairman, Law Commission of India
(Justice M. Jagannadha Rao). Its main objective was to make sure that
the amendments become effective and result in speedy dispensation of
justice. It was further observed that the Committee may consider
devising a model case management formula as well as rules and
regulations. So the committee submitted three reports based on peer
review which will be dealt in the following pages. The main issue
involved for the Committee’s scrutiny was
Whether the amendments made in the
Code of Civil Procedure, 1908 by the Amendment Act of 1999 and 2000 were
constitutionally valid or not.
Analysis of the three reports submitted with amendments is elaborately dealt with in the following paragraphs.
REPORT 1
ANALYSIS OF AMENDMENTS BROUGHT IN 1999 AND 2002
1. AMENDMENT OF ORDER XVIII RULE 4
(a)The amendment does not disturb the
right of cross-examination or re- examination as it provides that
examination-in-chief to be done on affidavit. (b) The Court is empowered
to apply its mind, look into nature allegations to determine whether
witness can be examined by Court or Commissioner, for eg in case of
complex issues of title, partnership business etc, Court itself can
examine. (c) Committee suggested that the practise in some states of
conducting tests for advocates to test their ability to be empanelled as
Commissioner should be encouraged and adopted.
2. CONFLICT BETWEEN ORDER 18 RULE 5(A), 5(B) AND ORDER 18 RULE 4(3), ORDER 18 RULE 19, ORDER 26 RULE 4-A.
Order 18 rule 5 empowers court to record
evidence in appealable cases, whereas Order 18 Rule 4(3), Order 18 Rule
19, Order 26 Rule 4-A when read overrides the above order as it empowers
Court to appoint Commission to record evidence in case of appeal. Also
in case of interest of justice and disposing matter expeditiously Court
can appoint Commissioner in whose jurisdiction such witness lie to
record evidence.
3. POWER OF THE COMMISSIONER TO DECLARE A WITNESS HOSTILE.
It has been held that if Order XVIII Rule
4(4), Order XVIII Rule 4(8) which stipulates that the provisions of
Rules 16, 16-A, 17 and 18 of Order XXVI, in so far as they are
applicable, shall apply to the issue, execution and return of such
commission thereunder and under Sec 154 of Evidence Act it is clear that
it is only after grant of permission of Court that a Commissioner be
allowed to examine his own witness and declare him hostile.
4. DELETION OF ORDER 18 RULE 17-A
It was held that by deleting this rule the position before insertion i.e 1st
July 2002 was restored which held that Court had inbuilt power to
permit parties to produce evidence not known to them earlier or which
could not be produced in spite of due diligence. Therefore, deletion of
Order XVIII Rule 17-A does not disentitle production of evidence at a
later stage.
5. RESTORATION OF ORDER 6 RULE 17 BY 2002 AMENDMENT
This rule was deleted by 1999 amendment
but restored by 2002 amendment to prevent frivolous applications which
provided that application for amendment of pleading cannot be made after
commencement of trial provided if a party shows that in spite of due
diligence it was not possible to earlier bring amendments.
6.VALIDITY OF ORDER 5 RULE 3, RULE 9-A, RULE 9(5)
These amendments were held valid which
provided for serving of summons by plaintiff itself or through courier.
In order to avoid its abuse High Court should make rules regarding
filing of affidavit setting details as to who all were present at the
time summons were served etc. If affidavit found false they can be
summarily tried and courier company can be black listed.
7.INSERTION OF PROVISOS TO ORDER 17 RULE 1, PROVISO TO ORDER 17 RULE 2
The proviso removes the restriction of
granting just three adjournment in cases where circumstances are beyond
the control of party. It also provides for awarding costs and higher
costs including punitive costs and in such cases more than three
adjournments can be granted.
8. DELETION OF ORDER 18 RULE 2(4) BY 1999 AMENDMENT
Effect of deletion is the restoration of
the status quo when it was inserted in 1976. Under the said Rule, the
Court could direct or permit any party, to examine any party or any
witness at any stage.
9. ORDER 18 RULE 2 SUBRULE 3(A) , 3(D)
In Order XVIII Rule 2 sub-rules (3A) to
3(D) have been inserted by Act 22 of 2002. The object of filing written
arguments or fixing time limit of oral arguments is with a view to save
time of court.
10. ORDER 7 RULE 14, ORDER 8 RULE 1-A 4
Order VII relates to the production of
documents by the plaintiff whereas Order VIII relates to production of
documents by the defendant. Under Order VIII Rule 1A(4) a document not
produced by defendant can be confronted to the plaintiff’s witness
during cross-examination. Similarly, the plaintiff can also confront the
defendant’s witness with a document during cross-examination. By
mistake, instead of ‘defendant’s witnesses’, the words ‘plaintiff’s
witnesses’ have been mentioned in Order VII Rule (4). Therefore it was
suggested that plaintiff’s witnesses should be read as defendant’s
witnesses’
11. INSERTION OF SEC 35A, 35B
This amendment directed High Courts to
make rules to provide actual reasonable costs like transportation,
lodging, payment of court fees etc in cases of frivolous and false
claims and defences.
12. AMENDMENT ACT 1999 DELETING PROVISO (b) TO SEC 115
The amendment which deleted clause (b) of
proviso questioned the curtailment of constitutional powers of H.C, but
it was suggested that amendment cannot take away the power given to H.C
under Art 226 and Art 227.
13. AMENDMENT TO SEC 148
After time period of max 30 days is fixed
for doing an act prescribed or allowed by Court. But it was suggested
that it should not be strictly interpreted and in exceptional cases to
advance the cause of justice according to facts and circumstances Court
can allow beyond the period of 30 days. Sec 151 of the Court to be fully
used.
14. ORDER 11 RULE 15
It was suggested that the stipulation in
Rule 15 of Order XI confining the inspection of documents ‘at or before
the settlement of issues’ instead of ‘at any time’ is also nothing but
directory. It does not mean that the inspection cannot be allowed after
the settlement of issues.
15. SUGGESTIONS BASED ON CONSTITUTIONAL REVIEW COMMITTEE
The committee suggested that Central Govt
has to provide substantial funds for establishing courts which are
subordinate to the High Court and the Planning Commission and the
Finance must make adequate provisions therefore, as they deal with
majority of Central laws under List I and III of Schedule 7. An approach
of ‘judicial impact assessment’ should be adopted where the budgetary
requirement should mention additional expenses that may arise out of
bill like number of civil and criminal cases likely to be generated by
the new Act, how many Courts are necessary, how many Judges and staff
are necessary and what is the infrastructure necessary. They directed
Central Government to examine the aforesaid suggestions and submit a
report on this Court within four months.
REPORT 2
CIVIL PROCEDURE ALTERNATIVE DISPUTE RESOLUTION AND MEDIATION RULES, 2003
The committee made various rules for Arbitration and Mediation which are as follows :
1.CONFLICT IN USE OF SHALL AND MAY IN SEC
89 AND ORDER 10 RULE 1A: The position was cleared as Sec 89 uses
‘shall’ in its 1st part while it uses ‘may’ in 2nd part. Whereas Order
10 Rule 1A uses the term shall, so upon harmonious reading of the two it
can be inferred that the word ‘may’ only refers to reformulation of
terms and its reference to one of the modes of ADR.
2. POWER OF HIGH COURTS TO MAKE RULES
UNDER ORDER 10, SEC 89: It was suggested that the Arbitration and
Concilation Act, 1999 would apply only after the stage of reference by
court to choose among one of the four options and arbitration is chosen
as a mode. Similar rules can be made for ‘Conciliation’ after the stage
of reference and not before it.
3. In case of U.O.I or Government of
State, public authorities shall nominate persons or group of persons to
take final decision to avail one of the modes in case where Court asks
for the option and within 3 months decision needs to be communicated to
H.C.
4. They defined ‘Arbitration, Mediation, Conciliation, Lok Adalats’
ARBITRATION is a process where upon the
consent of parties or by court an adjudicator is appointed who
adjudicates the dispute and passes an arbitral award. This will be done
by referring to Arbitration and Conciliation Act 1996.
MEDIATION is a process in which a
mediator so appointed facilitates discussion between parties, identifies
issues, explore areas for compromise and help arrive at comprise.
CONCILIATION is a process in which a
conciliator under power given in Sec 67, 73 of Arbitration and
Conciliation Act 1996, can make proposal for settlement, formulate and
reformulate terms and has a greater role than mediator.
LOK ADALAT is a process in which dispute can be referred to Lok Adalat under Legal Services Authority Act, 1987.
5. Court to give 30 days time period to
parties to opt for either mediation or conciliation if their
relationship need to be preserved eg matrimonial cases, maintenance of
child etc or to opt for arbitration or Lok Adalat if they do not need to
preserve their relationship.
6. Leave of the Court is required by
guardian or next friend appearing on behalf of a minor to opt for any of
the alternatives and a certificate needs to be attached that settlement
is sought for the benefit of minor.
7.The High Court and the District Courts
shall periodically conduct seminars, workshops, training courses for
lawyers and judicial officers on the subject of ADR procedures
throughout the State or States over which the High Court has
jurisdiction with a view to bring awareness of such procedures.
8. These rules can be applied to other
proceedings also before Court including including Family Courts
constituted under the Family Courts Act, 1984 while dealing with
matrimonial, maintenance and child custody disputes.
9. Various rules of mediation included
the criteria to select the empanelling of mediators including Retired
Judge of S.C, H.C, District Court and those who have been declared
insolvent, of unsound mind or convicted by criminal court would not be
eligible. Mediator shall give in writing clarifying doubts for his
impartiality or independence and his appointment can be cancelled if he
is deemed unfit.
10. Rules regarding procedure wherein 10
days before the session to be conducted a memo of issues to be resolved
need to be submitted to the mediator. Mediator will not be bound by
C.P.C or Evidence Act rules but guided by principles of fairness and
justice.
11. Rules regarding non appearance of
parties, maximum time period for mediation i.e 60 days , maintenance of
confidentiality of information by mediator, immunity of mediator from
civil and criminal liability, fees and costs of mediator were also
suggested.
12. Rules regarding agreement between
parties were made when mediation succeeds and parties arrive at a
settlement, the mediator needs to record the settlement with court in
view of maintaining public record and court would then pass a decree and
provide for execution if asked for. If the parties does not arrive at a
settlement it can be referred back to Court for settlement. It also
directed Central Govt to ask Planning Commission to allocate funds to
facilitate mediation process so that parties can avoid extra burden of
fee.
REPORT 3
CASE FLOW MANAGEMENT AND MODEL RULES
The committee was of the view that this
policy can yield remarkable results by monitoring a case from its
initiation to its disposal by Judges or officers. These rules have been
separately dealt with trial courts and first appellate subordinate
courts and for High Courts.
(A) MODEL RULES FOR TRIAL COURTS AND FIRST APPELATE SUBORDINATE COURTS
I.Division of Civil Suits and Appeals into Tracks:
(a) 4 categories were made depending upon
the nature of suit, Track 1 includes cases of maintenance, divorce
which shall be completed within a period of 9 months, Track 2 includes
money suits, negotiable instruments which should be disposed in 12
months, Track 3 includes partition, property disputes etc, Track 4
includes other matters and both shall be disposed within 24 months. (b)
Also registry/administrative staff either by computerization or manually
should maintain monthly records for stages of trial and judges may take
note of it for speedy disposal of cases.
II. Original Suit :
(a) Rules for fixing of maximum time
period in case of filing written statements as 30 days, max time period
of 6 weeks after receipt of W.S. (b) Rules for serving summons as given
in Order 5 Rule 9, Rule 9(3), Rule 17, Order 9 Rule 4 A has been given.
(c) Listing of cases should be done first with nominated senior officer
of Court then it should be listed with Court in necessary matters.
(d) Undue advantage of interim orders
for adjournment need to be avoided by Court and plaintiff can choose not
to file for rejoinder which would render the pleadings in
interlocutory order. (e) Trial Judge may order for prosecution of
perjury if it deems fit that a party has uttered falsehood. (f) Stay on
proceedings can be provided only on discretion of Court and not only
because a miscellaneous application has been filed.
III. First Appeals to Subordinate Courts:
(a) Notice should be served by the party preferring appeal to the opposite party so
as to enable them to appear for hearing.
(b) Relevant documents need to be filed along with a copy of the memo
of appeal. (c) In case of interlocutory matters, notice indicating date
by which reply needs to be filed should be mentioned. Rejoinder if any
should be filed within 4 weeks of receipt of notice. (d) Similar
provisions regarding call work, procedure on grant of interim order,
filing of written statement, costs is same as in the case of original
suits.
IV. Application/Petition under Special Acts
It deals with applications, petitions under special Acts like Industrial Disput Act,
Hindu Marriage Act etc and practise rules should mutatis mutandis be applied to such application/petition.
V. Criminal Trials and Criminal Appeals to Subordinate Courts
Criminal trials were categorized on the
basis of offences, Track 1 included capital punishment, rape, etc, Track
2 included cases in which bail is not granted, Track 3 included cases
of mass cheating, economic offences, illicit liquor tragedy and food
adulteration cases, etc, Track 4 included offences tried by special
courts like TADA, Prevention of Corruption Act etc,. Track 5 included
other offences. Track 1 needs to be disposed in 9 months while Track 2
and 3 within 12 months and Track 4 in 15 months. In case of criminal
appeals, if accused is of weaker section amicus curiae or State Legal
Aid counsel need to be appointed.
VI. Notice issued under S.80 of Code of Civil Procedure
An officer needs to be appointed by public authority to reply with caution to the notice served under Sec 80 of C.P.C.
VII. Whenever there is any inconsistency
In case of inconsistency between these
rules and provisions of C.P.C, C.r.P.c or High Court rules then
statutory provisions will prevail.
(B) MODEL CASE FLOW MANAGEMENT RULES IN H.C, 2003
Under Art 225 of Constitution and Chapter
10 of C.P.C H.C. cam make rules and categorize writ petitions apart
from writs of Habeas Corpus as Fast Track, Normal Track, Slow Track,
where fast track is to be disposed within 6 months, normal track within a
year and slow track within 2 years. Also rules regarding Letters Patent
Appeal from a single judge bench of H.C to a Division Judge bench were
also given. Also provisions regarding Second appeal, Revision power were
also given and explained.
CONCLUSION
This case is a landmark case in the
history of Indian Judiciary. This set of two cases, former one, laying
down the amendments and the latter one providing a report on the
amendment’s feasibility have laid down the foundation of providing
quick, financially accessible and proper justice. This basically intends
to reduce the number of suits filed in the courts every year. The case
has been referred to in numerous cases of civil nature after the
amendments by the Act of 1999 and 2002. Moreover, the model provided to
be followed by the trial court is an easily practicable model and does
show the ‘bright light of proper and speedy justice in the darkness of
innumerable cases’. The rules provided in the model are appropriate for
the system of Indian Judiciary and hence should be properly followed.
After analysing the pain taken by the Committee to prepare the three
reports it is hoped that will go a long way in dispensation of effective
and meaningful administration of justice to the litigating public. It
is hoped that the High Courts in the country would be in a position to
examine the aforesaid rules expeditiously and would be able to finalise
the Rules effectively so that the problem of huge backlog of cases can
be solved and can be disposed of effectively, speedily and fairly.
