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Report No. 163

Q.8. Order 5, rule 1 (Summons to appear and answer): Clause 15(i) of the Bill

Order 5, rule 1 of the Code empowers the court (after the institution of the suit), to issue to the defendant summons to appear and answer the claim, on a day to be therein specified.

The Bill proposes an amendment of this rule, whereunder the day so fixed has to be within thirty days from the day of institution of the suit.

Secondly, while the present rule leaves it to the court's discretion to require that the defendant should file his written statement also on that date, the amendment proposes that the day fixed for appearance shall also be the day fixed for filing the written statement.

Thirdly, the proposed amendment envisages that if the defendant fails to file his written statement on the date so specified, he shall be allowed to file the written statement on a specified day, but that (later) day "shall not be beyond thirty days from the date of service of summons on the defendant".

Thus, the date fixed for appearance (under the proposed amendments) shall never be beyond thirty days, from the filing of the plaint. And the date for written statement can never be beyond 30 days from the date of service of summons.

The amendments so proposed are obviously well-intentioned, aiming at as speedy a completion of the preliminary of trial of the case, as possible. At the same time, certain counter-balancing factors do arise for consideration, as under:

(a) Is it proper to fix a rigid time limits for the acts in question - rigid, in the sense that the court will have no discretion to relax or modify the same, even when the special facts of a case so demand?

(b) The date of appearance and date for filing written statement are fixed after taking into account several factors, including the following

(i) Volume of work before the court in question;

(ii) Distance of the defendant's place of residence from the headquarters of the court;

(iii) Available facilities for sending the summons;

(iv) Magnitude of the claim (A big claim may require good deal of documentation, for properly defending it);

(v) Complexity of the controversy (sometimes, the claim which is to be met by the defendant may need good deal of time for dealing with it. For example, he may have to take competent legal advice, not only as to what facts he should admit or deny, but as to how the denial should be framed);

(vi) Consulting his (defendant's) lawyers for ascertaining whether legal defences, such as jurisdiction, limitation, want of cause of action, plea of res judicata, etc. are available.

The point to make is, that most of these factors are flexible and variable and they cannot be governed by one uniform criterion as to the requisite time.

Comments on the proposed amendment, in the light of the above aspects, are welcome.

[Clause 15(iii) and clause 15(iv) of the Bill propose certain amendment, which are consequential on other proposals].



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




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