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Report No. 27

61. Sections 121 to 128.-Sections 121 to 128 empower the High Courts to annul, alter or add to all or any of the rules in the First Schedule to the Code. In the draft Report circulated for comments, it was proposed, that this power, which at present vests in the High Courts, should vest in an all-India committee. The object of this proposal was to achieve uniformity. On further consideration, we think that while uniformity is desirable, there are other weighty reasons why the rule-making power should continue to vest in the High Courts. We will briefly set out these reasons. First, local conditions vary from State to State, and it is not possible to achieve complete uniformity.

Secondly, after the Code is revised in the manner proposed by us, there is no serious danger of divergent rules being made by the various High Courts on any important matter. We have examined the various amendments made by the High Courts so far. We have adopted many of these amendments of a general character, which should in our view apply to the whole of India. There will, therefore, be little scope for further amendments of the rules by the High Courts. Thirdly, Article 227 of the Constitution empowers the High Courts to make and issue general rules and prescribe forms for regulating the practice and proceedings of all courts subordinate to them.

In conformity with the spirit of this article, it is desirable that the rule-making power under the Code of Civil Procedure should also vest in the High Courts. Fourthly, the revision of the Code was considered in some detail by the Law Commission in the Fourteenth Report. That Report did not suggest the constitution of an all-India committee for the purpose of making rules. Fifthly, there are practical difficulties in the constitution of an all-India committee. The committee proposed in the draft Report consisted of twenty-seven members. The committee included only six advocates from the whole of India.

It has been represented to us, that the committee should include one advocate from each State. If this proposal is accepted, the committee would become still more unwieldy. In our opinion, an all-India committee which is fully representative of all interests will consist of not less than thirty-five members. Such a committee will not be a suitable agency for annulling, altering or adding to the rules in the Fifth Schedule to the Code. The committee must necessarily consist of busy judges and advocates, who will hardly have any time to meet together, much less to initiate and consider amendments to the rules. Moreover, the all-India committee, by the very nature of its constitution, will not be in a position to initiate amendments. The proposals for amendments must necessarily come from the High Courts which in their experience come across any difficulties in the working of the rules. It follows, that though the power to make rules would not formally vest in the High Courts, the moving spirit behind the committee would be the High Courts.

We may point out that in Canada1 it is the "provincial diversity rather than federal uniformity that prevails" in the law of procedure and administration. The problem is not in any way different in the several federating States in U.S.A.

For these reasons, we recommend that the existing provisions conferring the rule-making power on the High Courts should not be disturbed.

1. Canadian Jurisprudence. The Civil Law and Common Law in Canada by Edward Mc Whinney, (1958), p. 301.

62. Order I, rule 8.-Order I, rule 8 deals with what are known as "representative suits" filed by or against numerous persons having the same interests. We have proposed some changes in this rule1. The main change to which we would like to draw attention is the proposed provision to the effect, that while a judgment under this rule should be binding on all persons on whose behalf the suit is brought or is defended, it shall not, except with the leave of the court, be executed against any such person who is not actually a party to the suit. In suggesting this amendment, we have followed the provisions of Order XV, rule 12 (2) of the Revised Supreme Court Rules of England.

1. Appendix I, Order I, rule 8.

63. Order VI, rule 17.-Order VI, rule 17 deals with amendment of pleadings. A question has arisen whether the court can allow amendment of a plaint where the effect of the amendment would be to render that court incompetent to try the suit. One view is, that the court cannot grant such an amendment. Another view is that the court can grant such amendment, but the plaint should after the amendment, be returned for presentation to the proper court1. We propose that statutory effect should be given to the latter view, by a suitable amendment of Order VI, rule 172.

1. For details see Appendix II, notes on clauses, Order VI, rule 17

2. Appendix I, Order VI, rule 17.

64. Order VIII and counter-claim.-There is at present no express provision for the filing of a counter-claim except the rule-making power in section 128(2)(c). The present position has been summed up by Mulla1 thus:

"Though the Code does not provide for counter-claims, there is nothing to prevent a Court from treating the counter-claim as a plaint in a cross-suit and hearing the two suits together, provided the requisite court-fee on the counter-claim has been paid."

High Courts which exercise original jurisdiction have made rules which provide for counter-claims (e.g. Bombay High Court Original Side Rules, 1957, rules 137 et seq.). We are of the opinion that in order to avoid multiplicity of proceedings and to dispel doubts that counter-claims cannot be entertained, an express provision2 should be inserted in the Code for this purpose.

1. Mulla Code of Civil Procedure, (1953), p. 634

2. Appendix I, Order 8, rule 6A et seq.

65. Order XVII, rules 2 and 3.-The provisions of rules 2 and 3 of Order XVII have given rise to considerable difficulty. It is not clear in which cases rule 2 applies and in which cases rule 3 applies1. There is considerable conflict of judicial opinion on this matter. We recommend2, that the law on the subject should be clarified. Stated broadly, the effect of our proposal is, that where the parties are present, rule 3 should apply, and where the parties are absent, rule 2 should apply notwithstanding that there has been a "default" in terms of rule 3.

1. See Appendix IL notes on clauses, Order 17, rules 2 and 3.

2. Appendix I, Order 17, rule 3.

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