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Report No. 163

Q.41. Order 39A (proposed) (Inspection before institution of suit): Clause 31 of the Bill

The Bill proposes to insert Order 39A, in the Code. The object (though not precisely stated in the draft rules) is that even while a suit is not yet filed, some one representing the plaintiff may apply to the court to appoint a Commissioner for local investigation "for the purpose of elucidating any matter in dispute". The Commissioner so appointed will be deemed to be appointed under Order 26. Order 39A, rule 2 further proposes that within seven days of filing of such application, "the peron competent to file suit shall file the suit."

The draft given in the Bill is silent about the consequences to follow-

(i) if the suit is so filed; or

(ii) if the suit is not so filed.

The intention presumably is that if the suit is filed, then the appointment will continue. If not, then it will lapse.

Probably the order as drafted does not bring about the real object behind this provision, which appears from clause (h) of para. 3 of the Statement of objects and reasons which reads as follows:-

"(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."

The rule in this order may be redrafted to accord with the said objective or to bring about clearly the intendment and scheme the draftman has in mind in this regard.

The proposal is unexceptionable in substance. In fact, it could be expanded to cover certain other types of commission - e.g., to record the statements of witnesses who are likely to leave the country or are very ill. Of course, in the absence of cross-examination, their statements (cannot constitute "evidence". But the statements so recorded can (if statutorily recorded) serve certain other purposes (e.g. see sections 32, 145, 157 and 159, Evidence Act).

However, the drafting will need changes in many respects, and it will also be necessary (as suggested above) to add a provision as to the consequences of filing/non-filing of suit after the pre-suit application is made.

The class of suits for which the provision is intended, may also have to be indicated with some precision.

You may like to offer your comments in the light of the above.

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

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