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Report No. 27

Note by Shri S.K. Hiranandani

I regret I am unable to agree with the conclusion of the majority of the Members that the rule-making power should continue to vest in the High Courts. In my opinion the consideration of uniformity is an over-riding consideration which should outweigh all other considerations. It was with a view to achieving such uniformity that the power to make rules under the Companies Act which under the Act of 1913 vested in the High Courts (section 246) was under the new Act of 1956 conferred on the Supreme Court (section 643). The same consideration weighed with us while, making our report on the law of insolvency. In that report we have recommended that the rule-making power under the new law should vest in the Supreme Court.

2. Article 44 of the Constitution contemplates a uniform Civil Code applicable throughout the territories of India. If we are not able to achieve uniformity in our procedural laws, it is difficult to see how we can achieve such uniformity in our substantive laws. Since Independence the policy has been to integrate laws and make them applicable to the whole of India. Consistent with this policy the case for a uniform Civil Procedure Code is fairly strong.

3. The main justification for vesting the power of making rules in the High Courts is to provide for local conditions. Tremendous changes have taken place in the country in the political, social, economic and other spheres since the Code was passed in 1908, particularly during the post-independence period. All these changes have minimised if not altogether eliminated local variations. Except perhaps in some minor matters, for which adequate provision can be made without affecting the general uniformity of the Code, I can hardly conceive of any local conditions which require a different law of civil procedure for different areas. There is thus little justification for continuing the power of High Courts to modify the rules contained in the first schedule to the Code on the ground of local needs.

4. During more than half a century that the Code of Civil Procedure, 1908 has been in force, High Courts have made numerous amendments which have virtually disintegrated the Code. For example, in Order V which deals with a comparatively minor matter of the manner of service of summons, High Courts have made as many as 40 amendments. In Order XXI, the number of amendments made by the High Courts of Allahabad, Bombay, Calcutta, Madras, Madhya Pradesh, Patna and Punjab have reached the colossal figure of about 200. We have analysed and classified all these amendments and have recommended the incorporation in the Code of many of them which are of a general character and which we think should apply to the whole of India. It is hoped that after the Code is revised in the manner proposed by us, it will be a neat and comprehensive piece of legislation applicable to the whole of India.

If the High Courts are again permitted to make amendments in the rules contained in the first schedule, the code is likely to revert back to the chaotic condition in which we find it at present. I will give one illustration of how the uniformity of the Code may in some vital matters be affected if the High Courts continue to exercise the power to amend the rules in the schedule. We have proposed a radical change in Order XXI, rules, 58 and 63. We have recommended that where a claim is filed under rule 58 the executing Court should have full power to decide the claim and that no suit should lie. It is possible that some of the High Courts may not agree with our view and would like to retain the existing rules. Such High Courts would be free to amend rules 58 and 63 and restore the position which obtains at present.

The result will be that while in State A a suit will not lie under rule 63, it will lie in State B. Obviously, this will not be a satisfactory state of affairs. A more serious anomaly is also likely to arise. Supposing a Court in State A transfers a decree passed by it to a Court in State B for execution. In such a case both the Courts would be competent to execute the decree (section 38) but the transferee Court would execute it in such manner as may be prescribed by rules in force in the State in which the transferee Court is situate (section 40). Now if a property is attached by the Court in State A and a claim is filed in respect thereof, the claimant cannot file a suit if the Court rejects the claim. But if a property is attached by the transferee Court in State B, such a suit would lie. Thus, in the execution of the same decree, two different laws would be applicable.

5. In order to achieve uniformity, the draft report on the Code of Civil Procedure circulated by us to State Governments, High Courts, etc., proposed the setting up of an all-India committee consisting of Judges and lawyers. Excepting the High Courts of Bombay and Madras, no other. High Court has raised any objection to the proposal. The proposal was approved in principle by majority in the Conference of Chief Justices of High Courts held in 1962. The conference merely suggested certain changes in the composition of the proposed all-India committee.

6. In order that the proposed all-India Committee should be able to act efficiently and expeditiously, it should be small and compact committee. I suggest that the committee may consist of the following persons:

(1) The Chief Justice of India or a Judge of the Supreme Court nominated by him (Chairman).

(2) The Attorney-General.

(3) Four Judges of High Courts nominated by the Chief Justice of India, of whom one shall be a Judge having experience of the original side, of a High Court.

(4) Five advocates elected by the Bar Council of India.

In my opinion, no useful purpose would be served by giving representation on the committee to the subordinate judiciary. Nor do I think that it is necessary to include in the committee an advocate from each State. We have now in the All-India Bar Council a representative body of the Bar. The selection of the advocates on the proposed all-India committee should be left to that body.

7. In order to provide for local conditions which is the main argument against an all-India committee, the committee may be empowered to make rules for a particular State or States only, where local conditions warrant such a course.

8. If for any reason the idea of an all-India committee is not accepted I would suggest another method of achieving uniformity. Let the rules continue to be made by the High Courts, but they should be subject to the approval of the Supreme Court. It is true that the rules made by High Courts under clauses (2) and (3) of article 227 require the approval of the Governor. I am not sure if the rules contemplated by that article are intended to be of the same nature as those contained in the first schedule to the Code of Civil Procedure. But assuming that this is so, I see no constitutional objection to a law made by Parliament with reference to the entry 'Civil Procedure' in the Concurrent List providing that the rules made by the High Courts in exercise of the power conferred upon them by that law should be subject to the approval of the Supreme Court.

S.K. Hiranandani.
13th December, 1964.

Code of Civil Procedure, 1908 Back

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