Report No. 54
1B.21. Litigation cannot be properly conducted if the points for determination are not properly presented to the Court. And, the points for determination cannot be properly presented if the court has not, before it, the case of each party in a precise and concise form. It is on this philosophy that procedural codes require the parties to file pleadings, and lay down elaborate requirements as to the form and contents of pleadings. This may sound elementary; but we are constrained to refer to these aspects, because we find that the rule which deals with the written statement (defence) of the defendant,1 leaves it to the discretion of the court to require the defendant to file his defence.
We are of the view that it should, in every case, be obligatory for the defendant to file a written statement, and that failure to do so should empower the court to pronounce judgement against him. There are provisions on the subject in the Code Order 8, rule 1 to Order 8, rule 10, but they are either incomplete in their scope or defective in their expression. We are recommending amendments to remove these defects.
1. Order 8, rule 1.
Disposal of case on preliminary issues
18.22. Considerable delay is often caused by the tendency of courts to avoid the decision of all the matters in issue in a suit, on the ground that the suit could be disposed of on a preliminary point. In such cases, when the decision of the trial court on the preliminary point is reversed in appeal, the matter has ordinarily to be remitted to the trial court again, with the result that the inquiry into other issues commences after the expiry of a long period of time, when documents might have been lost, the memory of witnesses might have faded, and, in general, the grip of the judge over the litigation would have been lessened. We think this should be avoided, and we are therefore recommending an amendment of the relevant rules, under which it would be obligatory for the court to decide all issues, subject to certain specified exceptions relating to jurisdiction and bar of suit.
Suits concerning the family
18.23. Litigation in the past, in India, has revolved mainly round questions of property. Even where questions concerning personal law and allied branches of the law were at issue, the indirect objective of the litigation was, in many cases, the establishment of proprietary rights, for example, in suits for adoption and proceedings as to guardianship. Litigation in future, is, however, likely to gain new dimension. By way of this illustration, we may state that disputes concerning the family will be brought with increasing frequency into the arena of litigation.
1B.24. In her remarkable work, The Century of the Child, Ellen Key1 quotes a dramatic work called The Lion's Whelp:
"The next century will be the century of the child, just as this century has been the woman's century. When the child gets his rights, morality will be perfected. Then every man will know that he is bound to the life which he has produced with other bounds, than those imposed by society and the laws. You understand that man cannot be released from his duty as father even if he travels around the world; a kingdom can be given and taken away, but not fatherhood".
1. Ellen Key The Century of the Child, (1909), p. 45, cited in Graham Parker Century of the Child, (1967) 35 Canadian Bar Review 741, 743.
1B.25. We do not, in this Report, pause to consider whether the traditional judicial machinery is an ideal system for the resolution of such disputes; but, so long as it remains the only machinery available for the purpose, it should be so moulded as to enable and encourage the judge, to perform more satisfactorily the duty of adjudicating on these new types of disputes. This basic consideration has encouraged us in recommending the insertion of a set of new provisions1 to deal with litigation involving matters concerning the family.
1. Order 32A (proposed).
1B.26. When courts encounter problems concerning the family in the context of conventional litigation, they tend to deal with them in a conventional way. This is understandable. "The judge is, above all, a skilled lawyer; a lifetime lived in the law has inculcated in him its promises, its analytical techniques, its principles"1. To correct this attitude in so far as litigation concerning the family is concerned, a few amendments would, we think, be desirable.
1. H.W. Arthur Developing Industrial Citizenship, (1967) 26 Can. Bar Rev. 796, 815.
1B.27. The law is never more nobly applied then when it is for the alleviation of the economic suffering of those who approach its portals. The Code has a Chapter1 dealing with suits by paupers. We are recommending certain changes in this respect, which will, we hope, improve its utility as a weapon in the fight against poverty. We may add that the question of the impact of law on poverty deserves to be considered in a comprehensive manner.
1. Order 33.
1B.28. A few other matters relevant to poverty-the question of legal aid and the question of court fees-are outside the scope of the Code. The former is being considered by a separate Committee.1 We have not, therefore, gone into these two aspects at length, but even so, wherever a point concerning legal aid or court fees required serious attention, we have thought it appropriate to refer to it, and are making appropriate recommendations in the matter, in the hope that the Union Government will be able to persuade the State Governments to adopt these recommendations.
1. Legal Aid Committee.
1B.28. At present, in suits on mortgages, the Code1 makes it compulsory to have two decrees-preliminary and final-whether the suit be for foreclosure, redemption or sale. This makes the procedure cumbersome, and almost invariably if two appeals are filed against two decrees in the same suit. We think that the procedure could be made simpler by substituting one decree (corresponding, broadly, to the present preliminary decree), and the rest of the proceedings could be relegated to execution. Following this approach, we are recommending a recasting of the relevant provision of Order 34.
1. Order 34.
1B.28. To prevent unreasonable obstruction of a suit by a defendant who has no defence the Code1 has a Chapter providing for summary procedure. The utility of this Chapter is obvious. The application of this Chapter is, however, limited to certain specified courts and to particular classes of suits. In order that greater use may be made of this useful chapter, we are recommending certain amendments in the relevant rules.
1. Order 37.