Report No. 54

Section 28 and summons sent to another court in another State

1D.81. In its earlier Report,1 the Commission noted that a suggestion had been made that when a summon is sent for execution to a court in another State, the return thereon should be made or translated in English, so that the Court which issued the summons may be able to understand the action taken on the summons. The Commission was of the view that this matter could be dealt with by appropriate provision in the General Civil Rules and Orders in force in each State, without any amendment of the Civil Procedure Code.

1. 27th Report, note on section 28.

Recommendation

1D.82. We, however, think it desirable to make a provision of the above nature. Its utility is obvious. Accordingly, we recommend that the following sub-section should be added in section 28

"(3) Where the language of the summons is different from the language of the record referred to in sub-section (2), a translation of the record in English shall also be sent together with the record sent under that sub-section."

Section 35B (New) (Costs for delay occasioned by party)

1D.83. It often happens that a party, though successful in the event, has been responsible for undue delay in respect of particular stages of litigation. It is but fair that such delay should be taken into account while awarding costs. In order to elicit opinion on the subject, we had put a question1 in the Questionnaire as follow:-

"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. Question 1.

1D.84. This question has led to a sharp difference of opinion. The replies received could be classified into three broad categories, namely, (i) those favouring the suggested amendment, (ii) those opposed to it,1 and (iii) those accepting it in a modified form, e.g. those which would leave the matter to the discretion of the court rather than insert a mandatory provision.

1. S. No. 10 (A State Government).

1D.85. Opinion is almost equally divided between the first two categories, only a few replies favouring an amendment with a modification. Those who are in favour of the amendment posed in the question, regard it as a desirable one in order to check dilatory tactics. It has been stated that solvent parties often resort to that dilatory tactics to cripple the opposite party, or a party with a bad case tries to delay the matter.1 It has further been pointed out that a good slice of litigation is aimed at delaying the relief to which the opposite party is entitled.2 One of the replies adds that the payment of costs of adjournment should be made a condition precedent to the felting of the next step in the litigation, i.e. the step for the purpose of which the adjournment has been granted to the party against whom the costs are awarded.3

1. S. No. 25 (A High Court Judge).

2. S. No. 28 (A High Court Judge).

3. S. No. 28 (A High Court Judge).

1D.86. The replies which are opposed to the suggested provision base their opposition on a variety of grounds; for example, it has been stated that such a provision would be unworkable and would create confusion, and much time will be spent in assessing who was responsible for a particular delay.1 It is also stated that since adjournments are granted by a judicial order, it would not be correct to make a mandatory provision of the nature contemplated.2 One of the replies adds3 that the court has, even now, a power to award costs where the delay is due to frivolous application or due to a deliberate omission or negligence in the prosecution of the action. Lastly, it has been suggested that such a provision will not reduce delay. Delay, it is stated, is caused by applications for adjournment or applications for time to file affidavits and the like etc., and these applications are dealt with by the court and separately provided for.

1. S. No. 11 (A High Court Judge).

2. S. No. 16 (A High Court Judge).

3. S. No. 12 (A High Court Judge)

1D.87. Some of the replies favour a modified amendment which would, while drawing the attention of the court to the need to consider this aspect, leave the matter to the discretion of the Court.1

1. S. No. 28 (A few High Court Judges).

1D.88. The above general difference of opinion is reflected in the replies received from the High Courts. Thus, some High Courts favour the suggested amendment,1 some are opposed to it,2 while in some of the High Courts, there is a difference of opinion among the individual judges3 of that High Court.

1. S. Nos. 5 and 25.

2. S. Nos. 11, 12 and 15.

3. S. Nos. 16 and 28.

1D.89. We have taken into consideration the opinions expressed. We have come to the conclusion that while it may not be wise to have a rigid provision, it would be useful to give a discretion to the court to take into account such delay. This should at least have the utility of focussing attention on this aspect.

Recommendation

1D.90. Accordingly we recommend that the following section should be inserted in the Code-

"35B. The Court may, while passing an order for costs, make the party responsible for delay with reference to any step in the litigation, pay the costs proportionate to that delay, whatever may be the ultimate event of the suit."