AdvocateKhoj
Login : Advocate | Client
Home Post Your Case My Account Law College Law Library
    

Report No. 163

2.13. Clause 15 of the Amendment Bill seeking to amend several rules in Order V.-

We may deal with each of the rules proposed to be amended separately.

(i) Amendments proposed to rule 1(1):

The existing sub-rule (1) of rule 1 of Order V provides that "When a suit has been duly instituted, a summons may be issued to the defendant to appear and answer the claim on a day to be therein specified: Provided that no such summons shall be issued when the defendant has appeared at the presentation of the plaint and admitted the plaintiff's claim: Provided further that where a summons has been issued, the Court may direct the defendant to file the written statement of his defence, if any, on the date of his appearance and cause an entry to be made to that effect in the summons".

According to the proposed/ substituted sub-rule (1) the defendant is required to file his written statement "on such day within thirty days from the day of institution of the suit as may be specified therein" in the summons. Though the first proviso is not proposed to be amended, the second proviso as amended, provides that where the defendant fails to file a written statement on the date prescribed in the main body of sub-rule (1), the defendant shall be allowed to file the same "on such other day which shall not be beyond thirty days from the date of service of summons on the defendant, as the Court may think fit".

It is true that the proposed amendment is inspired by a concern for expeditious progress of the suit but at the same time, it is necessary to take into account the practical problems and the realities of the situation while fixing such mandatory time limits. All the suits are not simple in nature. Some of them are complicated, calling for a good amount of preparation by the defendant before he can file a written statement. It may happen that in some cases the defendant may be required to gather good amount of material before he can file his written statement.

Some clarifications may also be necessary to be asked for by the defendant with respect to statements in the plaint. All this cannot happen within the period prescribed in the proposed sub-rule (1). While some participants, particularly the members of the Bar, suggested that there should be no such time limits and that the rule should merely direct the court to call upon the defendant to file his written statement at the earliest, having regard to the facts and circumstances of the case, some other members, particularly members of the Bench, strongly-supported mandatory time limits for filing the written statement.

However, even the latter class of participants agreed that the time limits proposed in sub-rule (1) were unrealistic and might result in failure of justice in some cases. There was consensus that the words "within thirty days from the day of institution of the suit" in the main body of the proposed sub-rule (1) should be substituted by the words "within sixty days from the day of institution of the suit" and similarly, in the second proviso, the words "thirty days from the date of service of summons on the defendant" should be substituted by the words "ninety days from the date on which the period of sixty days aforesaid expires".

2.13.1. The Law Commission agrees with the view that the time limits proposed in sub-rule (1) in the Amendment Bill are harsh and might result in failure of justice in some cases. This may be particularly true in suits where the Government happens to be the defendant. Experience shows that in cases where Government is the defendant, it is not as prompt as a private party in filing the written statement.

Because of the very nature or the working of the government departments and the requirement of coordination and internal correspondence between one department and the other, it generally requires a longer time for filing the written statement. It is true that in the interest of speedy disposal of the suits, the period for filing the written statement should be curtailed but it .should not be done in such a manner as to prove counter-productive.

The Law Commission is, therefore, of the opinion that the words "thirty days" in the main body of sub-rule (1) should be made "sixty days" and the period of "thirty days" prescribed in the second proviso to sub-rule (1) should be made ninety days and this period of ninety days should be calculated from the date of expiry of sixty days prescribed in the main body of sub-rule (1).



The Code of Civil Procedure (Amendment) Bill, 1997 Back




Client Area | Advocate Area | Blogs | About Us | User Agreement | Privacy Policy | Advertise | Media Coverage | Contact Us | Site Map
powered and driven by neosys