Report No. 54
Section 152
1-O.41. Section 152 was considered in the earlier Report,1 but no amendment recommended. We agree with the earlier Report.
1. 27th Report, note on section 152.
Section 153A (Proposed)
1-O.42. Sections 152 and 153 authorise the correction of mistakes in judgments etc., in specified cases. The inherent power under section 151 could also be resorted to, for the purpose. A question which has arisen with reference to these provisions is, whether, when an appeal has been summarily dismissed under Order 41, rule 11, an application for amendment of the decree should be made to the appellate court, or, whether it should be to the court which passed the substantive decree.
1-O.43. The Bombay1 and Patna2 view is, that it is the original Court which must be approached for the purpose, the reason being that when an appeal is summarily dismissed, the original decree is neither reversed nor varied, and is left untouched. (The Bombay case presents complicated facts but the principle applied was as stated above).
1. Hussain Sah v. Sitaram, AIR 1953 Born 122 (Chagla C.J.).
2. Batuk Prasad v. Ambika Prasad, AIR 1932 Pat 238.
1-O.44. But the Allahabad1 and Andhra2 view is that there is no difference in essence, between a judgment dismissing an appeal under Order 41, rule, 11, Civil Procedure Code and that made under Order 41, rule 27, Civil Procedure Code. In both the cases, the judgment of the appellate court adjudicates upon the rights of the parties, though in one case, the manner of disposal is concise and speedy, and in the other it take a more elaborate form and longer time.
Whether the appeal is dismissed in limine against the ex parte respondent or dismissed after hearing the respondent it is the decree of the appellate court that governs the rights of the parties. As the appellate decree is the final decree and the decree of the lower court merges with it, it follows, that the application for amendment of the decree should be made to the appellate court. The doctrine of merger applies even when a second appeal has been dismissed by the High Court summarily under Order 41, rule 11, Civil Procedure Code.
1. Durga Singh v. Wahid Raja, AIR 1965 All 226 (DB).
2. Ramanna v. Sreeramulu, AIR 1958 AP 768 (DB).
1-O.45. and 1-0.46. Having regard to the conflict of decisions on the subject, a clarification is needed. It is suggested that the Bombay view should be adopted. No doubt a decision under Order 41, rule 11, is also a determination of the appeal, but, since the decree of the lower court is, for all practical purposes left untouched, it is not improper to give power to amend the decree to the original court. It may be convenient to have a separate section,-say, as section 153A-on the following lines:-
"153A. Where an appeal from the decree or order of a court has been dismissed by the appellate court without hearing the respondent, the power of the court to amend the decree or order or other proceeding in the case may be exercised by the court which passed the decree or order, notwithstanding that the dismissal of the appeal has the effect of confirming the decree or order."
Section 153B (New) (Duty of the Court to assist litigants)
1-O.47. It is common experience that litigants who have not previously been to court feel lost in the court, and not being familiar with procedural rules, often do not realise the consequences of this or that default. Some provision drawing the attention of the court to its duty in such cases would be useful.
1-O.48. In the Fundamentals of Soviet Civil Procedure,1 there is an interesting provision:-
"It shall be the duty of the court, without confining itself to the pleadings and materials submitted, to take all the measures prescribed by law for the full, comprehensive and fair clarification of the actual facts of the case, and the rights and duties of the parties. It shall be the duty of the court to explain to the litigants their rights and duties, to warn them of the consequences of procedural acts and omissions, and to help litigants in the exercise of their rights."
1. Article 16, Fundamentals of Soviet Civil Procedure.
1-O.49. The earlier half of the above provision is not appropriate for our system. But the latter half contains a provision which could be inserted in the Code, at least for cases where the litigant is not represented by counsel. When legal aid on a comprehensive scale becomes feasible, it could be deleted.
Recommendation
1-O.50. It is believed that a provision on the following lines would not impose too heavy a burden on the presiding officers-
"153B. Where a party to a suit is not represented by pleader, the court shall explain to that party his rights and duties in relation to the procedure in the suit, and acquaint him with the significance of every material step necessary for the progress of the suit."
We recommend the insertion of such a provision.
Section 153C (New) (Proceedings in Camera)
1-O.51. The Code of Civil Procedure has, at present, no provision as to holding the proceedings in open court and as to the power of the Court to hold proceedings in camera. At present, the matter is dealt with under section 151. It would be appropriate to have an express provision on the subject. The matter pertains to "civil procedure" and should present no difficulty as to legislative competence of, Parliament.
1-O.52. The Supreme Court has elaborately considered, in Naresh's case,1 the importance of public trial, and the necessary exceptions. The Supreme Court stated that the primary function of the judiciary to do justice between the parties, is not to be overlooked. If the primary function of the Court is to do justice in causes brought before it, then on principle, (the court stated) it is difficult to accede to the proposition that there can be no exception to the rule that all causes must be tried in open court.
It was held that the High Court has inherent jurisdiction under section 151 of the Civil Procedure Code, to hold a trial in camera, if the ends of justice clearly and necessarily require the adoption of such a course; the High Court has also jurisdiction to prohibit excessive publication of a part of the proceedings at such trial.
1. Naresh Mirajkar v. State of Maharashtra, AIR 1967 SC 1.
1-O.53. It may be noted that the Code of Criminal Procedure has an express provision1 on the subject.
1. Section 352, Cr. P.C.
Recommendation
1-O.54. In view of what is stated above, we recommend the insertion of a new section as follows:-
"253C. The place in which any civil Court is held for the purpose of trying any suit shall be deemed an open Court, to which the public generally may have access, so far as the same can conveniently contain them:
Provided that the Presiding Officer may, if he thinks fit, order at any stage of any inquiry into, or trial of, any particular case, that the public generally, or any particular person, shall not have access to, or, be or remain in, the room or building used by the court."
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