Report No. 163
Statement of Objects and Reasons
The law relating to the procedure in suits and civil proceedings in India (except those in the State of Jammu and Kashmir and Nagaland and Tribal Areas of Assam and certain other areas) is contained in the Code of Civil Procedure, 1908. The Code has been amended from time to time by various Acts of Central and State Legislatures.
The Code is mainly divided into two parts, namely, Sections and Orders. While the main principles are contained in the sections, the detailed procedures with regards to the matters dealt with by the sections are specified in the Orders. Under section 122, the High Courts have powers to amend, by rules, the procedure laid down in the Orders. In exercise of these powers, various amendments have been made in the Orders by the different High Courts.
2. In terms of the Common Minimum Programme of the United Front Government, it was envisaged that a Bill on judicial reforms and disposal of pending cases within a period of three years may be introduced in the Parliament. With a view to keep the commitment given to the people of India so that a speedy disposal of cases may take place within the fixed time frame and with a view to implement the report of Justice V.S. Malimath, it was thought necessary to obtain the views of the State Governments on the subject also.
In the Law Minister's Conference held in New Delhi on 30th June and 1st July, 1997, the working paper on the proposed amendments to the Code of Civil Procedure, 1908 was discussed. On the basis of resolution adopted in the said Conference and with a view to implement the recommendations of Justice Malimath Committee, 129th Report of the Law Commission of India and the recommendations of the Committee on Subordinate Legislations (11th Lok Sabha), it is proposed to introduce a Bill for the amendments of Code of Civil Procedure, 1908 keeping in view, among others, that every effort should be made to expedite the disposal of civil suits and proceedings so that justice may not be delayed.
3. Some of the more important changes proposed to be made are as follows:-
(a) any plaint to be filled shall be in duplicate and shall be accompanied by all the documents on which the plaintiff relies upon in support of his claim. It is also to be supported by an affidavit stating the genuineness of the claim of the plaintiff and of the documents on which the relies upon;
(b) the written statement in duplicate shall be accompanied by all the documents and shall be filed within a period of thirty days from the date of service of summons. Written statement is also to be supported by an affidavit;
(c) in order to obviate delay in service of summons, it is proposed that plaintiff shall take the summons from the court and send it to the parties, within two days of the receipt thereof, by post, fax, e-mail, speed post, courier service or by such other means as may be directed by the court;
(d) with a view to implement the 129th Report of the Law Commission of India and to make conciliation scheme effective, it is proposed to make it obligatory for the court to refer the dispute after the issues are framed for settlement either by way of arbitration, conciliation, mediation judicial settlement or through Lok Adalat. It is only after the parties laid to get their disputes settled through any one of the alternate dispute resolution methods that the suit shall proceed further in the court in which it was filed;
(e) as the maximum time is consumed in recording oral evidence by the courts which causes delay in disposal of cases, it is proposed to reduce such delay by making provisions for filing of examination in chief of every witness, in the form of an affidavit. For the cross-examination and re-examination of witnesses it is proposed that it shall be recorded by a commissioner to be appointed by the court and the evidence recorded by a commissioner shall become part of the record of the suit.
(f) with a view to implement the recommendations of the Committee on Subordinate Legislations (11th Lok Sabha) relating to steps to reduce unnecessary adjournments, it is proposed to make it obligatory for a judge to record reasons for adjournments of a case as well as award of actual or higher cost and not merely notional cost against the parties seeking adjournment in favour of the opposite party. Further, it is proposed to limit the number of adjournments to three only during the hearing of a case;
(g) as the party in whose favour an injunction has been granted usually causes delay on flimsy and unreasonable grounds, it is proposed that the party who applies for injunction shall also furnish security so that that party may not adopt delaying tactics during the trial of the case;
(h) in matters relating to property disputes, particularly in matter of unauthorised construction on the land of others, it has been found that, under the existing provisions of the Code of Civil Procedure, no application for injunction can be moved unless the suit is filed first in the court having competent jurisdiction. With a view to obviate this hardship, it is proposed that a person may make an application to the court of competent jurisdiction for appointment of a commission to ascertain the factual status of the property so that at the time of the filing of the regular suit the report is available to the commissioner relating to the factual status of the property in dispute;
(i) with a view to implement the recommendations of Justice V.S. Malimath Committee, it is proposed that no further appeal against the judgment of a single judge shall lie even in a petition under Article 226 or 227 of the Constitution; and
(j) with a view to reduce delay, it is proposed that the court shall on the date of pronouncement of judgment simultaneously provide authenticated copies of the judgment to the parties. Appeal shall be filed in the court which passes the decree and no notice shall be served on the advocates of the parties in the court of first instance.
3. The Bill seeks to achieve the above objects.
The 12th August, 1997.
Ramakant D. Khalap.