Report No. 163
Notes on Clauses
Clause 2.-In section 26 of the Code, a suit is instituted by presentation of a plaint or in such other manner as may be prescribed by rules made by High Court. Since these rules are different with different High Courts, the requirements for institution of suit are not uniform. The rules made by some High Courts require plaint to be supported by an affidavit slating the genuineness of the claim of the plaintiff and of the documents on which he relies upon while no such affidavit is required under the rules made by some High Courts. With a view to bring uniformity and lay down simple procedure to complete the pleadings, clause 2 amends section 20 of the Code and provides that facts must be proved by affidavit in every plaint.
Clause 3.-amends section 27 of the Code with a view to lay down a fixed time frame to send summons to defendants. It seeks to provide 30 days from the institution of suit within which summons should be sent to defendants.
Clause 4.-In clause (c) of section 32 of the Code, the court is empowered to impose a fine not exceeding five hundred rupees for the purpose of compelling the attendance of any person in the court. Clause 4 substitutes "five thousand rupees" in place of "five hundred rupees" in the said section, for the reason of decrease in the money value since the time provision was made.
Clause 5.-Section 58 of the Code providers for the detention and release of a person from civil prison in execution of a decree. Since the time provisions of section 58 were made, the value of money has decreased considerably. In this view, clause 5 seeks to amend section 58 and it substitutes for the words "one thousand rupees" and "five hundred rupees" the words "five thousand rupees" and "two thousand rupees" respectively.
Clause 6.-Section 60 of the Code provides for attachment and sale of properties in execution of a decree. Clause 6 seeks to amend section 60 by substitutive "one thousand rupees" in place of "four hundred rupee" for the reason of decrease in the money value since the time provisions were made.
Clause 7.-provides for the settlement of disputes outside the court. The provisions of clause 7 are based on the recommendations made by Law Commission of India and Malimath Committee. It was suggested by Law Commission of India that the Court make require attendance of any party to the suit or proceedings to appear in person with a view to arriving at an amicable settlement of dispute between the patties and make an attempt to settle the dispute between the parties amicably.
Malimath Committee recommended to make it obligatory for the court to refer the dispute, after issues are framed, for settlement either by way of arbitration, conciliation, mediation, judicial settlement or through Lok Adalat. It is only when the parties fail to their disputes settled through any of the alternate dispute resolution method that the suit could proceed further. In view of the above, clause 7 seeks to insert a new section 89 in the Code in order to provide for alternate dispute resolution.
Clause 8.-In section 95 of the Code, the court may award compensation not exceeding one thousand rupees in case it appears to the court that an arrest, attachment or injunction has been effected and such arrest, attachment or injunction was applied for insufficient ground or that there was no reasonable ground for instituting the suit. Sub-clause (2) of the said section bars a suit for compensation in respect of such arrest, attachment or injunction if an order has been passed by the court on an application for compensation under sub-section (1). In this circumstance, clause 8 seeks to substitutes "fifty thousand rupees" in place of "one thousand rupees".
Clause 9.-Section 96 of the Code provides for an appeal from original decree. Since the time provisions went made the value of money has considerably decreased and the pecuniary limits of "three thousand rupees" require to be revised. Clause 9 therefore seeks to substitute "twenty five thousand rupees" in place of "three thousand rupees" in section 96.
Clause 1O.-Justice Malimath Committee examined the issue of further appeal against the judgment of Singly Judge exercising even a first appellate jurisdiction. The Committee recommended for suitable amendments to section 100A of the Code with a view to provide that further appeal in this regard shall not lie the Committee also recommended for suitable enactment by Parliament for abolition of appeal to a Division Bench against the decision and order rendered by a Single Judge of the High Court in a proceeding under Articles 226 or 227 of the Constitution. Clause 10 seeks to substitute a new section 109A with a view to provide for no further appeal in the above cases.
Clause 11.-Section 102 of the Code bats record appeal when the amount or value of the subject-matter of the suit does not exceed one thousand rupees. Justice Malimath Committee recommended the amendments by section 102 in order to substitute a limit of twenty-five thousand rupees in place of one thousand rupees for the reasons of decrease in the value of money since the time provisions were made. Clause 11 seeks to bring in a limit of twenty-five thousand rupees to bar record appeal.
Clause 12.-Section 115 of the Code provides for revision by the High Court of an order or decision of any court subordinate to such High Court. The Malimath Committee noticed that often the records of the lower courts are sent to the High Court in the revisional proceedings. It is imperative that records of proceedings pending in the subordinate court should not be sent unless High Court so desires and revision should not operate as stay of proceedings before the trial court. The Committee while agreeing in principle that scope of interference against interlocutory orders should be restricted, felt that the object can be achieved more effectively without demanding the High Court of the power of revision. Clause 12 seeks to achieve the above object by suitable amendments to section 115.
Clause 13.-Section 148 of the Code provides for enlargement of time by the court. Where any period is fixed or granted by the court for of any act prescribed or allowed by the Code, court has discretion to enlarge such period. Clause 13 seeks to put a limit on enlargement of such period by inserting the words "not exceeding thirty days in total" in section 148 with a view to minimise the procedural delay at the instance of either party to a suit.
Clause 14.-Order IV of the Code provides for the institution of suits. Sub-rule (1) of rule 1 of Order IV states that every suit shall be instituted by presenting a plaint to the court. Since a copy of plaint is sent before court and a duplicate copy of plaint in needed for records, suitable amendments are made in this regard by clause 14 which requires institution of a suit by presenting plaint in duplicate to the court. Sub-rule (2) of rule 1 of the said order requires compliance of certain formalities by the registry of court. With a view to dispel the doubts when a suit is regarded to have been instituted, clause 14 inserts a new sub-rule (3) to provide that the plaint shall not be deemed to be duly instituted unless it complies with the requirements specified in sub-rules (1) and (2).
Clause 15.-Order V of the Code provides for issue and service of summons. The Malimath Committee looked into the problem of arrears of cases in the courts and recommended amendments to the Code with a view to lay down a fixed time frame within which pleadings are to be completed. Clause 15 seeks to substitute sub-rule (1) of rule 1 of Order V in provide for filing written statements within thirty days from the day of institution of the suit except in few situations.
Clause 15 amends rules 2, 6 and 7 to ensure that copy of plaint alongwith all documents on which plaintiff relies upon are delivered with summons the defendant. This clause substitutes rule 9 to provide for delivery of summons by speed post, courier service, fax message or by electronic mail, service as the High Court may prescribe by rules. It makes the Code up to date with the changing needs of the time.
Clause 16.-Order VI of the Code provides for pleadings generally. Clause 16 seeks to provide that person verifying the pleading shall furnish an affidavit in support of his pleadings. This clause omits rules 5, 17 and 18 of Order VI to bring in consistency with new changes in the Code.
Clause 17.-In Order VII of the Code, rule 14 provides for production of documents on which plaintiff was clause 17 seeks to substitute rule 14 to provide whore a plaintiff sues upon a document in his possession, be shall enter such documents in a list and shall produce it in court when plaint is presented by him and shall deliver document and a copy thereof to be filed with the plaint. The new rule further provides in case a document or copy thereof is not filed with the plaint, it shall not be allowed to be received in evidence on behalf of plaintiff at the hearing of the suit.
Clause 18.-Order VIII of the Code provides for written statement and set off. Clause 18 seeks to substitute rule 1 of Order VIII to provide a fixed time frame within which pleadings are to be completed. The new provisions required the defendant to present a written statement within thirty days from the date of service of summons on the defendant. Clause 18 inserts rule 1A to provide it a duly of defendant to produce documents upon which relief is claimed or relied upon by him.
Rule 1A require the defendant to produce documents in his possession in the court and deliver the document and a copy thereof when the written statement is presented by him. Rule 1A further requires in case a document or copy thereof is not filed with the written statement, it shall not be allowed to be received in evidence on behalf of defendant at the hearing of the suit.
Clause 19.-Rule 2 of Order IX is being substituted so as to provide that where there is default on the part of plaintiff to deliver summons to the defendant, the suit shall be dismissed by the court. This is in addition to non-payment of cost by the plaintiff as a ground of dismissal of suit.
It is proposed by amending rule 5 of Order IX so as to reduce the period from one month to seven days within which the plaintiff is required to apply for fresh summons where summons earlier issued remain unserved.
Clause 20.-Order X is proposed to amend by inserting rules 1A, 1B and 1C in the said order. This amendment is consequential to the insertion of new section 9 vide clause 7 of the Bill.
Clause 21.-Rtiles 2 and 15 of Order XI are proposed to be amended by fixing time limit to decide an application for leave to deliver interrogatories and to provide that an application for inspection of documents by the parties can be made only before the settlement of issues.
Clause 22.-Rule 2 of Order XII is proposed to be amended for reducing the time from fifteen days to seven days within which notice to admit a document may be given by any party to the suit.
Further the second proviso to rule 4 of the said order is being omitted so as to curtail the discretion of the court in the matter of allowing any party to amend or withdraw admission made by him.
Clause 23.-Rules 1 and 2 of Order XIII are proposed to be substituted so as to provide that the original of documents of which copies have been filed with the plaint and written statement shall be submitted before the settlement of issues is made by the court.
Clause 24.-Rule 4 of Order XIV is proposed to be amended so as to restrict the discretion of court by fixing time limit beyond which no adjournment for the examination of witnesses or of the document shall be granted by the court before framing of issues by the court.
It is also proposed to omit rule 5 so that issues are framed within time and no application for amendments and striking out the issue is entertained by the court.
Clause 25.-Order XVI is proposed to be amended so as to fix a time limit within which an application may be made for summoning of witness. Further it is proposed to provide that a party applying for summons shall pay fee towards calling the summons within a period not later than seven days from the date of making application.
Clause 26.-Order XVII lays down the procedure for granting adjournments. The Committee on Subordinate Legislation (Eleventh Lok Sabha) recommended that it should be made obligatory in the judgment to record reasons for adjournment of cases as well as award of actual and not merely notional cost against the party seeking adjournment in favour of the opposite party.
It is proposed to make it obligatory by amendment of proposed Order. It is proposed to make it obligatory for the judges to record the reasons in writing where the court grants adjournment and to award the actual cost to the opposite party. Further limit up to three adjournments has also been fixed in a case.
Clause 27.-Order XVIII provides for manner of recording the evidence. It is proposed to confer the power of recording of evidence by the commissioner to be appointed by the court.
Clause 28.-Order XX makes it compulsory for a party filing appeal to annex the certified copy of the decree to the Memorandum of Appeal. Justice Malimath Committee has pointed out that it takes a long time for obtaining certified copy of the decree and thus filing of appeal takes a long time. It is proposed to dispense with annexing certified copy of the decree along with Memorandum of Appeal and it is also proposed that the whole judgment shall be made available to the parties immediately after the judgment pronounced.
Clause 29.-Order XXVI enables the court to issue commission only in cases where witness resides outside the local limits of the jurisdiction of the court. It is proposed to amend Order XXVI by inserting a new rule 4A so as to enable the court to issue commission in any case where the interest of justice so demands.
Clause 30.-It has been observed that after obtaining temporary injunction the party in whose favour-injunction has been granted causes delay in disposal of cases on flimsy and unreasonable grounds. To curb this practice it is proposed to amend Order XXXIX so as to provide that the party who applies for obtaining injunction shall also furnish security so that it may not adopt delaying tactics during the trial of the case.
Clause 31.-Seeks to insert a new Order XXXIXA. Under the existing provisions of the Code of Civil Procedure, 1908 no application for interim injunction can be moved unless the suit is filed first in the court having competent jurisdiction. In matters relating to properly disputes particularly it may help a person if such a person can 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 filing of the regular suit the report of the Commissioner is available relating to the factual status of the property.
Clause 32.-Proposes to amend Order XLI of the First Schedule so as to provide for filing of appeal on the basis of the copy of the judgment, to avoid delay as obtaining copy of decree takes considerable time. Further to avoid delay it is proposed that an appeal may be filed in the same court which passed the judgment and the court shall direct the parties to appear before appellate court.
Clause 33.-By this clause, all amendments to the Code made by the State Legislatures and the High Courts before the commencement of the Code of Civil Procedure (Amendment) Act, 1997, are, except to the extent they are consistent with the provisions of this Act, being repealed. The provisions relating to savings are broadly intended to ensure that the amendments made by the sections are broadly intended to ensure that the amendments made by the sections mentioned in sub-section (2) are not taken advantage of in respect of proceedings which are pending at the commencement of the Code of Civil Procedure (Amendment) Act, 1997.
Clause 34.-(Amendment to the Limitation Act, 1963)
Sub-section (3) of section 12 of the Limitation Act, 1963 excludes for limitation purposes the time required for obtaining a copy of judgment on which the decree or order is founded. As it is proposed in clauses 28 and 82 of the Bill that copy of judgment is to be delivered at the time of pronouncement of judgment and that is sufficient for filing of appeal, therefore, amendment of consequential nature are being made under the aforesaid sub-section by omitting the words "on which the decree or order is founded".
Clause 35.-(Amendment to the Court Fees Act, 1870)
The proposed amendment is consequential to the new section 89 in the Code of Civil Procedure, 1908, proposed to be inserted vide clause 7 of the Bill so as to enable the party to claim refund of court-fee in case the matter in dispute is settled outside the court.
Clause 36.-(Amendment to the Schedule to the Court-Fees Act, 1870).
The proposed amendment is consequential to the insertion of new Order XXXIXA in the First Schedule proposed to be inserted vide clause 31 of the Bill. The proposed amendment prescribes fee in these cases where a person applies for inspection before institution of the suit.