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Report No. 27

31. Adjournments.-Order XVII, rule 1(2), proviso, enacts that when the hearing of evidence has once begun, hearing of the suit shall be continued from day to day. In practice, this provision is rarely observed1. The practice which prevails in England should be followed, i.e., the evidence should be recorded continuously without any break, except in very exceptional circumstances such as the illness of a party, his witnesses or the advocate appearing in the case.

There are far too many adjournments on the ground of (a) non-attendance of witnesses, (b) want of time, and (c) convenience of counsel.

1. 14th Report, Vol. I.

32. Non-attendance of witnesses.-Order XVI, rules 1 and 2 should be amended1 so as to provide that the list of witnesses to be summoned by any party should be filed within a specified time. The date of hearing should be fixed only after such a list is filed and having regard to the time that may be reasonably required for summoning the witnesses. The date of hearing should be fixed in consultation with the advocates of both sides. Where a party has applied late for summoning his witnesses, the summons should be issued at his risk2. A provision should be made in the Code enabling the parties to serve their own witnesses3. Penal action should be taken against witnesses who fail to attend though duly served (Order XVI, rules 10 to 13).

1. See Appendix I, Order 16, rule I.

2. Cf. 14th Report, Vol. I.

3. See Appendix I, Order 16, rule 7A.

33. Adjournments for want of time.-The remedy for adjournment for want of time is a proper and careful preparation of the cause list1. The cause list should be prepared after making an estimate of the time that each case will take. Such estimate may be made in consultation with the advocates of both the sides. Only such number of cases should be fixed for day as are likely to be finished on that day. The Judge himself should supervise the preparation of the cause list and not leave it entirely to a ministerial officer. The cause list should be scrutinized and, if necessary, revised before the date of hearing.

1.See 14th Report, Vol. I.

34. Adjournments on account of convenience of counsel.-Grant of adjournments for convenience of counsel is a practical and not a legal problem. Civil work is generally concentrated among a few leading lawyers. There is always the desire of the members of the Bar to accommodate each other. Although, under the law, a judge can refuse an adjournment on the ground of convenience of counsel, in practice he rarely does so. A judge becomes unpopular if he refuses adjournments on such grounds. The remedy for this evil lies in the hands of the Bar and a strong judiciary1.

1. Cf. 14th Report, Vol. I.

35. Delay at the appellate stage.-One obvious remedy for eliminating delays at the appellate stage is to restrict the number of appeals available to a litigant under the existing law. It is often complained that in this country there are far too many appeals. There is some justification in this complaint. Where the value of a suit tried by a subordinate judge is less than Rs. 5,000 or Rs. 10,000 in some States, a litigant has a right of first appeal to the district court on facts and law and of a second appeal to the High Court on a point of law only.

If the second appeal in the High Court is heard by a single Judge, the party can file a further appeal known as the Letters Patent appeal to a Division Bench of the High Court except where such appeals have been abolished1. Where the value, of a suit tried by a subordinate judge exceeds Rs. 5,000, or in some States Rs. 10,000, the first appeal lies direct to the High Court both on facts and on law. In both cases, there is a further right of appeal, subject to certain conditions, to the Supreme Court under Article 133 of the Constitution and section 109 of the Code of Civil Procedure, 1908.

1. 14th Report, Vol. I.

Code of Civil Procedure, 1908 Back

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