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Report No. 163

Chapter II

Recommendations and Conclusions Regarding The Code of Civil Procedure (Amendment) Bill, 1997

2.1. The law relating to the procedure in suits and civil proceedings in India (except in the case of State of Jammu and Kashmir, Nagaland and Tribal areas of Assam and certain other areas) is contained in the Code of Civil Procedure, 1908 (hereinafter referred to as the "Code"). 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 regard to the matters dealt with by the sections are specified in the orders. Under section 122 of the Code, 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 different High Courts.

2.2. With a view to implementing the recommendations of Justice Malimath Committee, 129th Report of the Law Commission of India and the recommendations or the Committee on Subordinate Legislation (11th Lok Sabha), and the resolution adopted in the Law Ministers' Conference held in New Delhi on 30th June and 1st July, 1997 the Government introduced a Bill called the Code of Civil Procedure (Amendment) Bill, 1997 for amending the Code of Civil Procedure, 1908.

The Bill (Annexure A), inter alia, aims at expediting the disposal of civil suits and proceedings so that justice may not be delayed (see para. 2 of the Statement of Objects and Reasons annexed with the Amendment Bill). The Bill also seeks to amend certain provisions of the Limitation Act, 1963 and the Court Fees Act, 1870.

2.3. The Amendment Bill seeks to make some of the following important, changes in the Code of Civil Procedure, 1908 (as indicated in the Statement of Objects and Reasons annexed with the Bill):-

"(a) any plaint to be filed 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 he 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 h 'o days of the receipt thereof, by post, fax, e-mail, speed post, courier se-vice 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 making conciliation scheme effective, it is proposed to make it obligatory roe court to refer the dispute, after the issues are framed, for settlement either by arbitration, conciliation, mediation, judicial settlement or through Lok Adalat. It is only after the parties fail 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 maximum time is consumed by the courts in recording oral evidence 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 record of the suit;

(f) With a view to implement the recommendations of the Committee on Subordinate Legislation (11th Lok Sabha) relating to steps to reduce unnecessary adjournments, it is proposed to make it obligatory for a judge to record reasons for adjournment 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 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 filing of regular suit, the report is available to the Commissioner relating to the factual status of the property in dispute;

(i) With a view to implementing 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 Articles 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."

2.4. A perusal of the Amendment Bill shows that there are 36 clauses which contain various amendments, substitutions, omissions and insertions. The Amendment Bill also contains notes on clauses of the Bill which furnish the necessary background for amending the existing provision or for insertion of new provision in the Code. A memorandum regarding delegated legislation points out the provisions under which the Government or the High Courts can frame rules. For facility of comparison with the existing provisions of the Code which are sought to be modified by the Amendment Bill, an extract of such provisions is also appended to the Amendment Bill at internal pages 23 to 38 thereof.

2.5. The Commission intends to specifically deal with and make recommendations on the following clauses in the Amendment Bill, namely, clauses 2, 7, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 23, 24, 26, 27, 28, 30, 31 and 32, which appear to bring about radical changes in the Code. In respect of other clauses of the Bill, the Commission is in agreement with the amendments suggested.

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

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