Report No. 54
Questionnaire of The Law Commission of India on The Code of Civil Procedure
(Issued March, 1972)
This questionnaire deals with some aspects of revision of the Code of Civil Procedure, 1908. It may be stated that revision of the Code was considered at length by one of the previous Law Commissions, which duly forwarded to Government a detailed Report on the Code.1 A Bill intended to implement this Report was in due course introduced in Parliament; but the Bill lapsed. When the question of re-introduction of the Bill arose, the Government of India considered it desirable to request the present Commission to examine the Code afresh from the "basic angle of minimising costs and avoiding delays in litigation and taking into account its revised terms of reference".
The scope of the present inquiry will, therefore, be confined to a consideration of the major changes needed in the Code from the following points of view:-
(1) minimising costs;
(2) avoiding delays in litigation; and
(3) the revised terms of reference of this Commission, the most important of such terms being the implementation of the directive principles.
It is not proposed to examine again questions arising from the mass of case-law on the Code, the local amendments made in the various provisions of the Code, as well as the reforms introduced in other countries-including, in particular, the changes made in England in 1962 by way of revision of tile Rules of the Supreme Court-as these have been already considered by the previous Commission. It ought, however, to be emphasised that the questions included here are illustrative only, and any suggestions for amendment of the Code on other matters from the point of view of the present terms or reference will be thankfully received.
1. 27th Report of Law Commission.
Costs occasioned by delay2
1. Would you favour the insertion of a provision to the effect that the court shall, while passing an order for costs, make the party responsible for delay with reference to any step in the litigation, pay the cost proportionate to that delay, whatever may be the ultimate event of the suit?
1. The question have been arranged, as far as possible, in the order in which the relevant provision appear in the code.
Arrest in execution of a money decree
2. Do you consider any change, necessary in the present position regarding liability to arrest in execution of a money decree?
Suits and execution by or against the Government
3. Do you favour repeal of section 80 of the Code, which requires that two months' notice should be given of the institution of a suit against the Government or against a public officer, etc.?
4. What changes would you suggest in section 82 so as to expedite execution against the Government?
5. Would you favour the insertion of a provision to the effect that particularly in suits by or against the Government, the court shall hold a pre-trial inquiry, with a view to narrowing down the scope of the controversy, and, (where such a course is practicable), for the settlement of the suit without trial?
Appeals against decrees
6. As regards the right of first appeal, would you favour any limitations based on the nature of the questions at issue, or on any other criterion?
7. There is a suggestion that from the judgments of lowest courts of first instance, an appeal on facts should be excluded in petty cases, say, cases of a nature triable by a court of small Causes from the point of view of subject-matter, where the amount or value of the subject-matter of the dispute in the court of first instance and still in dispute on appeal was and is not more than three thousand rupees (or such other sum as may be considered proper), and the decree or order does not involve directly or indirectly some claim or question respecting property of an amount or value, exceeding three thousand rupees (or such other sum as may be considered proper).
The proposal is that in these petty cases, the first appeal should be allowed only if the appeal court certifies that a question of law is involved, and the issue of such certificate should be decided either in chambers or in open court as the appeal court may think proper.
What are your views in the matter? Would you agree with the suggestion?
8. Do you agree that a second appeal should be allowed only if a substantial question of law is involved?