Report No. 79
V. Service of Notice
5.10. Summons to be filed up by parties.-
Registration of the appeal is followed by the service of notices on the respondents to the appeal. It cannot be gainsaid that there is some amount of delay in the service of such notices by the appellate court, for two reasons-
(a) the first being the delay caused in the office of the High Court1 in the preparation of the notices,2 and
(b) the second being the time taken for actual service of notices on the respondents.3
1. This applies also to appeals heard by the District Courts.
2. Para. 5.11, infra.
3. Para. 5.12, infra.
5.11. Parties to file printed forms of process.-
Delay in the office in preparing the notice1 can be avoided by requiring the parties or their counsel to follow the same procedure as we have, in our Report on delay and arrears in trial courts, recommended for the preparation of summonses to be issued in suits to be served on the defendants.1 The parties should be required to produce, along with the memorandum of appeal, printed forms of the process in duplicate, duly filled up, for each respondent, leaving the date for appearance and the date of the issue of process blank for being filled in by the concerned officer of the court.
Such printed forms should be made available to members of the bar and litigants at nominal cost by the High Courts. It should also be provided that the appellant should along with the memorandum of appeal file, as many copies of the memorandum as there are respondents, and additional number of copies for the use of the Court. This is necessary in view of Order 41, rule 14(3) of the Code of Civil Procedure as amended.2
1. Para. 5.10(a), supra.
2. 77th Report, para. 4.2.
3. Order 41, rule 14(3), Code of Civil Procedure, 1908.
5.12. Payment of charges or process fees and issue of notice.-
The necessary charges or the process fee for the service of notices on the respondents should also be paid at the time of presentation of the appeal or within a week of admission of the appeal under order 41, rule 12(1) of the Code of Civil Procedure. Order 41, rule 14(1) and (2) of the Code1 makes the provisions of Order 5 relating to service of summons applicable to the court of appeal, and Order 5 now provides for simultaneous issue of summons by registered post and in the ordinary way.
Where there is no dismissal of appeal under Order 41, rule 11 of the Code, the notice of appeal can be issued by the Court to the respondents by registered post acknowledgement due and in the ordinary way at the addresses given in the memorandum of appeal. This should be done within a time to be fixed by the rules of the High court for the purpose, the time being computed from the date of registration of the appeal or from the date of admission of the appeal under Order 41, rule 12(1) of the Code.2
1. Order 41, rule 14, Code of Civil Procedure, 1908.
2. For implementation by rules.
5.13. Service of notice.-
After a notice of appeal is prepared and ready for service, actual service1 on the respondent, according to the present system in vogue, takes quite a long time and is one of the major factors contributing to the overall delay in the disposal of appeals.
1. Para. 5.10(b), supra.
5.14. Advantage of early service.-
It is true that even if the notice of appeal is served, say, within a month or so, the appeal, having rpgard to the present state of arrears, will be no nearer hearing and decision in the High Court till after the lapse of two further years-or even more. But that is due to the heavy backlog that has accumulated, for the disposal of winch we have elsewhere in this Report made our recommendations,1 including, in particular, the appointment of additional and ad hoc judges, if proper care is taken, then, as and when this backlog is eliminated, early service of the notice of appeal will undoubtedly ensure quick disposal of the appeal.
1. See Chapter 3, supra.