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Report No. 77

5.13. Pre-trial procedure in U.S.A.-

In the U.S.A. we have pre-trial procedure. The scope of pre-trial discovery under the federal rules is very broad and covers any matter, not privileged, which is relevant to the subject-matter involved in the pending action, whether it relates to the claim or defence of the examining party or to the claim or defence of the other party, including the existence, description, nature, custody, condition and location of any books, documents or other tangible things and the identity and location of persons having knowledge of relevant facts.

It is not ground far objection that the testimony will be inadmissible at the trial if the testimony sought appears reasonably calculated to lead to the discovery of admissible evidence. The federal rules also provide for a pre-trial conference "called by the judge and attended by the parties and their lawyers". The purpose of the conference is to simplify the issues, secure agreements on facts which are not really in dispute, and give the parties another opportunity to see if the case can be settled without trial.

5.14. Regarding the success of discovery and pre-trial procedures, the following opinion has been expressed in the Courts, the Public and the Law Explosion edited by Harry W. Jones1.-

"The discovery and pre-trial procedure has been in operation in the United States District Courts for over twenty-five years and has served as a model for reformed State court procedure in a majority of the States. There is no doubt that it has produced beneficial results: cases are better prepared, actual trial time has been saved by pre-trial processing, settlements without trial have been encouraged, and probably the quality of justice has improved in the cases which do go to trial.

The procedure is not, however, an unmixed blessing. Critics claim that it is not appropriate in all types of cases, that it is subject to abuse, that it has increased the costs of litigation, and that it has contributed to court congestion by increasing pre-trial delay. Further study and experience will be necessary before a balance can be struck between the merits and demerits of the system and a determination made as to the modifications indicated."

In our opinion, the provisions contained in Orders X, XI and XII of the Code of Civil Procedure are sufficient to deal with the situation in India and it is not necessary to transplant the pre-trial system with all its amplitude on the Indian soil. We may also in this context refer to the observations of the Law Commission in its Fourteenth Report with which we agree and which read as under2:

"The working of the system of pre-trial procedure which has been introduced in some States in the United States was examined by Evershed Committee. The American system made it clear that the success, of these pre-trial conferences depended for the most part, on the personality of the Judge and his willingness to deal and aptitude for dealing with such proceedings. 'No doubt', said the Committee, it would be the same in England'. We believe it would be the same in India as well.

The Committee examined this procedure with reference to the Rules of Practice and Procedure in England and came to the conclusion that the existing rules relating to the summons for directions in Order 30 of the rules of the Supreme Court give all the powers that are needed. The Committee took the view that the general adoption of the pre-trial conference procedure in all forms of proceedings would not be advisable in England.

The procedure has undoubtedly its attractions, particularly to those who have become accustomed to its working. After careful consideration we have reached a clear conclusion that it would not be appropriate for adoption in this country-certainly not for the purpose of saving costs More than this, the procedure may become somewhat elaborate and of long duration, possibly developing into a 'finishing expedition'.

As to the introduction of similar provisions for a similar procedure in India, the witnesses before us have pointed out that the practice already obtains in a modified form under the provisions relating to the examination of parties and discovery and inspection under Orders X, XI and XII of the Civil Procedure Code. The provisions for the amendment of pleadings are found in Order VI, rules 16 and 17, of the Civil Code.

Rule 16 gives power to the Court at any stage of the proceedings to order to be struck out or amended any matter in any pleading which may be (1) unnecessary, (2) scandalous or which may tend to prejudice, embarrass or delay the fair trial of the suit.

Similarly the duty of framing precise issues is cast upon the court under the provisions of Order XIV and if these issues are framed after the preliminary examination of the parties and the reading of pleadings as already suggested, it would no doubt lead in a considerable simplification of the issues. Thus, it can he said that the rules of the Civil Procedure Code amply provide for all the matter enumerated in rule 16 of the rules of the Civil Procedure for the United States District Courts."

1. Harry W. Jones (Ed.) The Courts, the Public and the Law Explosion, (1965), pp. 22, 23 article by Milton D. Green The Business of the Trial Courts.

2. Fourteenth Report, Vol. 1.



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