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Report No. 54

Chapter 36

Statement of Case


36.1. Persons claiming to be interested in the decision of any question of fact or of law may, under Order 36, enter into an agreement is writing stating the question in the form of a case for opinion, and providing that upon the finding of the court thereon, certain money shall be paid or property delivered by one of them to the other, or that one or more of them shall do or refrain from doing some other specified act.

36.2. The agreement has to be filed in the court, and is numbered and registered as a suit. Thereafter, the procedure in other respects is substantially the same as in an ordinary suit, and the scheme of the provisions contemplates a judgment as well as a decree. The peculiarity and special merit of this procedure lies in the (i) framing by the parties before-hand of the questions involved, (ii) the submission of the case to the court by agreement of both parties,-to that extent diluting the element of contest met with in ordinary litigation, (iii) the formulation by the parties of the precise relief that is anticipated, and (iv) the acceptance by them before-hand of the binding character of the determination of the court.

Order 36, rule 3-Procedure under Order 36, not often

36.3. Unfortunately, the procedure provided by Order 36 is rarely invoked, and we venture to think that one of the reasons why it has not proved popular is the absence of any apparent benefit to the litigant. The choice is always made in favour of the ordinary procedure, because, the procedure of a statement of case, even if known to the ordinary litigant, does not furnish any additional inducement. Some inducement should be offered, which may be in respect of court fees. The subject of court fees is outside the competence of the Union. But in order to highlight the desirability of making a distinction between an ordinary suit instituted by a plaint and a special case originating in an agreement, the relevant rule of this order should expressly provide that the proceeding can be initiated by an application.

Suggestion to substitute application so as to reduce court fees

36.4. An objection was raised during our discussions that the proposed amendment would be incongruous, as it would bring in the idea of "decree" and "procedure for suit" in a proceeding instituted on an application. But we think that from the point of view of court fees, such a proceeding should not be treated as a plaint. It is also desirable to provide that there should be no appeal from the decree passed as a result of such proceedings. Even now, that should be the position, because the decree is, in a sense, a compromise decree, against which there is no appeal1. But an express provision prohibiting appeal would be useful.

1. cf. section 96.

Recommendation to amend rule 3

36.5. Accordingly, we recommend that Order 36, rule 3, should be revised as follows:-

"3(1). The agreement, if framed in accordance with the rules hereinbefore contained, may be filed with an application in the Court which would have jurisdiction to entertain a suit, the amount or value of the subject-matter of which is the same as the amount or value of the subject-matter of the agreement.

(2) The application, when so filed shall be numbered and registered as a suit between one or more of the parties claiming to be interested as plaintiff or plaintiffs, and the other or others of them as defendant or defendants; and notice shall be given to all the parties to the agreement, other than the party or parties by whom the application was presented."

Recommendation to add rule 6

36.6. The following rule would be added as Order 36, rule 6-

"No appeal shall lie from a decree pronounced under rule 5."

The Code of Civil Procedure, 1908 Back

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