Salem Advocates Bar Assn. v. Union of India [2003 SC] | Current Affairs & General Knowledge - CLAT PDF Download

These writ petitions have been filed seeking to challenge amendments made to the Code of Civil Procedure by the Amendment Acts of 1999 and 2002.

In the petitions, the amendments which were sought to be made by the aforesaid Amendment Acts have been challenged, but we do not find that the said provisions are in any way ultra vires the Constitution.

Amendment to Section 27

In our opinion, the words added by amendment fix outer time frame, by providing that steps must be taken within thirty days from the date of the institution of the suit to issue summons. In other words, if the suit is instituted, for example, on 1st January 2002, then the correct addresses of the defendants and the process fee must be filed in the Court within thirty days so that summons be issued by the Court not beyond thirty days from the date of the institution of the suit. The object is to avoid long delay in issue of summons for want of steps by the plaintiff. It is quite evident that if all that is required to be done by a party has been performed within the period of thirty days, then no fault can be attributed to the party. If for any reason, the Court is not in a position or is unable to or does not issue summons within thirty days, there will, in our opinion, be compliance with the provisions of Section 27 once within thirty days of the issue of the summons the party concerned has taken steps to file the process fee along with completing the other formalities which are required to enable the Court to issue the summons.

New Section 89

It is quite obvious that the reason why Section 89 has been inserted is to try and see that all the cases which are filed in Court need not necessarily be decided by the Court itself. Keeping in mind the long delays and the limited number of Judges which are available, it has now become imperative that resort should be had to Alternative Dispute Resolution Mechanism with a view to bring to an end litigation between the parties at an early date. The Alternative Dispute Resolution (ADR) Mechanism as contemplated by Section 89 is arbitration or conciliation or judicial settlement including settlement through Lok Adalat or mediation. Sub-section (2) of Section 89 refers to different Acts in relation to Arbitration, conciliation or settlement through Lok Adalat, but with regard to mediation Section 89(2)(d) provides that the parties shall follow the procedure as may be prescribed. Section 89(2)(d), therefore, contemplates appropriate rules being framed with regard to mediation.

If the parties agree to arbitration, then the provisions of the Arbitration and Conciliation Act, 1996 will apply and that case will go outside the stream of the Court but resorting to conciliation or judicial settlement or mediation with a view to settle the dispute would not ipso facto take the case outside the judicial system. All that this means is that effort has to be made to bring about an amicable settlement between the parties but if conciliation or mediation or judicial settlement is not possible, despite efforts being made, the case will ultimately go to trial.

It does appear to us that modalities have to be formulated for the manner in which Section 89 and, for that matter, any other provisions which have been introduced by way of amendments, may have to be in operation. It will be appropriate if a Committee is constituted so as to ensure that the amendments made become effective and result in quicker dispensation of justice.

This Committee may consider devising a model case management formula as well as rules and regulations which should be followed while taking recourse to the ADR referred to in Section 89. The model rules, with or without modification, which are formulated may be adopted by the High Courts concerned for giving effect to Section 89(2)(d).

Section 100-A

Section 100-A deals with two types of cases which are decided by a single Judge. One is where the single Judge hears an appeal from an appellate decree or order. The question of there being any further appeal in such a case cannot and should not be contemplated.

Where, however, an appeal is filed before the High Court against the decree of a trial Court, a question may arise whether any further appeal should be permitted or not. To give a further right of appeal where the amount involved is nominal to a Division Bench will really be increasing the workload unnecessarily. We do not find that any prejudice would be caused to the litigants by not providing for intra-Court appeal, even where the value involved is large. In such a case, the High Court by Rules can provide that the Division Bench will hear the regular first appeal. No fault can, thus, be found with the amended provision Section 100-A.

Order 7, Rule 11

To Order 7, Rule 11 clauses (e) and (f) have been added which enable the Court to reject the plaint where it is not filed in duplicate or where the plaintiff fails to comply with the provisions of Rule 9 of Order 7. It appears to us that the said clauses being procedural would not require the automatic rejection of the plaint at the first instance. If there is any defect as contemplated by Rule 11(e) or non-compliance as referred to in Rule 11(f), the Court should ordinarily give an opportunity for rectifying the defects, and in the event of the same not being done the Court will have the liberty or the right to reject the plaint.

Order 18, Rule 4

In Order 18, Rule 4 has been substituted and sub-rule (1) provides that in every case examination-in-chief of the witnesses shall be on affidavits and copies thereof shall be supplied to the opposite parties by the party who calls them for evidence.

Order 16, Rule 1 provides for list of witnesses being filed and summons being issued to them for being present in Court for recording their evidence. Rule 1-A, on the other hand, refers to production of witnesses without summons where any party to the suit may bring any witness to give any evidence or to produce documents. Reading the provisions of Order 16 and Order 18 together, it appears to us that Order 18, Rule 4 will not necessarily apply to a case contemplated by Order 16, Rule 1-A i.e. where any party to a suit, without applying for summoning under Rule 1 brings any witness to give evidence or produce any document. In such a case, examination-in-chief is not to be recorded in Court but shall be in the form of an affidavit.

In cases where the summons have to be issued under Order 16, Rule 1, the stringent provision of Order 18, Rule 4 may not apply. When summons are issued, the Court can give an option to the witness summoned either to file an affidavit by way of examination-in-chief or to be present in Court for his examination. In appropriate cases, the Court can direct the summoned witness to file an affidavit by way of examination-in-chief. In other words, with regard to the summoned witnesses the principle incorporated in Order 18, Rule 4 can be waived. Whether a witness shall be directed to file affidavit or be required to be present in Court for recording of his evidence is a matter to be decided by the Court in its discretion having regard to the facts of each case.

Order 18, Rule 4(2)

Order 18, Rule 4(2) gives the Court the power to decide as to whether evidence of a witness shall be taken either by the Court or by the Commissioner.

Under the said sub-rule, the Court has the power to direct either all the evidence being recorded in Court or all the evidence being recorded by the Commissioner or the evidence being recorded partly by the Commissioner and partly by the Court. For example, if the plaintiff wants to examine 10 witnesses, then the Court may direct that in respect of five witnesses evidence will be recorded by the Commissioner while in the case of other five witnesses evidence will be recorded in Court.

In this connection, we may refer to Order 18, Rule 4(3) which provides that the evidence may be recorded either in writing or mechanically in the presence of the Judge or the Commissioner. The use of the word ‘mechanically’ indicates that the evidence can be recorded even with the help of the electronic media, audio or audio-visual, and in fact whenever the evidence is recorded by the Commissioner it will be advisable that there should be simultaneously at least an audio recording of the statement of the witnesses so as to obviate any controversy at a later stage.

Rule 9 inserted in Order 41

Rule 9. Registry of memorandum of appeal – (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.

The apprehension was that this rule requires the appeal to be filed in the Court from whose decree the appeal is sought to be filed. In our opinion, this is not so.

Appeal is to be filed under Order 41, Rule 1 in the Court in which it is maintainable. All that Order 41, Rule 9 requires is that a copy of memorandum of appeal which has been filed in the appellate Court should also be presented before the Court against whose decree the appeal has been filed and endorsement thereof shall be made by the decreeing Court in a book called the Register of Appeals. Perhaps, the intention of the Legislature was that the Court against whose decree an appeal has been filed should be made aware of the factum of the filing of the appeal which may or may not be relevant at a future date. Merely because a memorandum of appeal is not filed under Order 41, Rule 9 will not, to our mind, make the appeal filed in the appellate Court as a defective one.