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Report No. 14

14. Trial of Suits

1. Pleadings.-

Order VI of the Code of Civil Procedure has enacted in India broadly the main rules of pleadings followed in England. "The whole object of pleadings" says Jesse!, M.R., "is to bring the parties to an issue, and the meaning of the rules" (relating to pleading) "was to prevent the issue being enlarged, which would prevent either party from knowing when the cause came on for trial, what the real point to be discussed and decided was. In fact, the whole meaning of the system is to narrow the parties to definite issues, and thereby to diminish expense and delay, especially as regards the amount of testimony required on either side at the hearing."1

1. Throp v. Holdsworth, (1876) 3 Ch D 637 (639).

2. Oral pleadings inadvisable.-

In the civil courts in India, oral pleadings are unknown. The Soviet law provides for them only in cases of labour disputes. The Japanese Civil Procedure Code (Chapter IV, section 1, Article 25) speaks of an oral debate in court, a written record being kept of the same. Such oral proceedings may be useful in petty cases but in order to confine the 'claim and the defence to their proper ambit, it is desirable to have them in writing. In our questionnaire we invited views whether in certain types of cases, whether pleadings could be dispensed with altogether. The idea has, however, received no support and on a careful consideration, its adoption does not seem to us to be advisable.

3. The rules of pleadings enacted in Orders VI, VII and VIII of the Civil Procedure Code have been found to be adequate. The fundamental rule set out in rule 2 of Order VI requires (a) that every pleading must be a statement of fact but not of law, (b) that it must state only the material facts, (c) that it must state only the facts on which party relief for his claim or defence but not the evidence by which they are to be proved, and (d) that it must state such facts in a concise form. These rules have existed since the earlier Codes of the last century, yet lengthy and confused pleadings setting out numerous evidentiary facts, persist to this day.

In the courts in the mofussil, more particularly in the sub-divisional courts, no attempt is made to comply with these rules. Pleadings are generally prolix, argumentative and full of irrelevant matter. The averments lack precision and clarity. Very often material facts are omitted and immaterial and irrelevant facts and even the evidence are set out and repeated at length. In the written statements all possible defences, whether they arise or not, are taken.

It is not uncommon to find in these pleadings frivolous contentions such as "the suit is not maintainable in its present form" or that "the suit is time-barred" or that "the suit is bad for multifariousness" but no indication is given as to why the suit is not maintainable or how it is time-barred or multifarious. It is customary to deny every allegation made in the plaint including obviously true and undeniable statements of fact. With pleadings drafted in this manner, it is not surprising that very often the real question in controversy is obScured, the issues are needlessly enlarged and clouded, the trial lengthened, unnecessary costs incurred and the whole object of providing for pleadings is defeated.

4. Better pleadings.-

This is a matter over which the courts can exercise very limited control. The powers of the presiding officers to deal with unsatisfactory pleadings are very restricted. Under rule 16, Order VI, the court has the power at any stage of the proceeding to order to be struck out or amended any matter in any pleading which may be unnecessary or scandalous or which may tend to prejudice, embarrass or delay a fair trial of the suit. A presiding officer rarely attempts to exercise suo motu even this limited power. If he endeavours to perform this duty few make the attempt he is frequently represented as dictating to counsel how they should frame their cases."1 Preoccupied with other duties, the presiding officer has little time for examining the pleadings at the earlier stages of the proceedings.

Very often, he looks into them only at the stage of framing the issues, and not even then particularly if he has acquired the widespread habit of accepting without question the draft issues prepared by the advocates. The real remedy lies in our view in a proper training at the Bar. The art of drafting pleadings can be acquired only by an assiduous study of the rules and diligent practice. The Civil Justice Committee observed2 "that the first requisite was to train pleader, to draft, and that this training will be assisted appreciably by the preparation of works on pleadings in India on the lines of Bullen and Leake." Books containing detailed instructions for drawing pleadings and model forms are now available in India.

The young practitioner should provide himself with a good book on the subject. A course of instruction on drawing of pleadings should also form part of the young lawyer's professional training recommended by us elsewhere. Many practitioners in the mofussil allow pleadings to be drawn by irresponsible clerks, petition-writers or other lay persons who are not only deficient in the knowledge of law but lack general education. The profession must make a determined effort to put a stop to this practice. The practitioner will also greatly profit by studying and following drafts of pleadings drawn by senior lawyers.

1. Civil Justice Committee Report, p. 34.

2. Ibid., p. 34.

5. It was suggested by the Civil Justice Committee that a rule should be added to Order VI providing that the name of the draftsman must appear on the pleading and that the pleader who acts should be obliged to add a certificate that he has accepted the pleading and takes full responsibility for it. The proposal is similar to a rule obtaining in the United States under which, every pleading of a party represented by an attorney has to be signed by the attorney. The signature of the attorney constitutes a certificate by him that he has read the pleading that to the best of his knowledge, information and belief there is good ground to support it; and that it is not interposed for delay1.

We invited opinion on the question whether an advocate drawing the plaint should be required to certify that it is in accordance with the Code. The proposal did not receive much support. We do not think that such a provision will be useful. Rule 14 of Order VI does require the pleading to be signed by the party and his pleader, if any. The requirement of a certificate by the pleader that the pleading drawn by him is in accordance with the Code will not induce in the pleader a greater sense of responsibility. He would naturally look upon his own draft as answering the requirements of the Code.

1. See rule 11 of the Rules of the Civil Procedure for the United States District Courts.

6. Verification.-

We would, however, suggest a change in the rule requiring verification of pleadings. Order VI, rule 15 requires the verification of every pleading at the foot by the party or by one of the parties pleading or by some other person proved to the satisfaction of the court to be acquainted with the facts of the case. The person verifying has to specify by reference to the numbered paragraphs of the pleading what he verifies of his own knowledge and what he verifies upon information received and believed to be true. The verification though required to be signed by the person making it is not a statement on oath.

The statements verified are not therefore evidence on which a decree can be passed if the defendant does not appear.1 In ex parts' cases or in cases where the defendant appears but does not defend the suit, the court is therefore required to take the formal evidence of the plaintiff before passing the decree. If the rule is amended by providing for the verification of pleadings to be made on oath, we think, it will result in saving the time of the courts in such matters. Verification on oath is required by the rules in force on the Original Side of the Madras High Court.

1. J.B. Ross & Co. v. C.R. Seriven, ILR 43 Cal 1001.

7. Special officers for receiving and checking pleadings etc.-

We suggested in our Questionnaire the appointment of a special officer of the rank of a civil or subordinate judge for the purpose of receiving, scrutinising and checking the pleadings. The appointment of a special officer for the discharge of such functions for courts situated in the tehsil or taluka headquarters, may prove expensive as such officers might not have enough work. The appointment of an itinerant officer for the performance of these duties will also not be advisable because his other administrative duties and judicial work may be held up during his absence from headquarters.

However, the proposal seems capable of being given effect to in places where there is a concentration of several courts of different grades and jurisdiction. In order to discharge his functions effectively, the officer should have the power to make orders dismissing the suit or directing an amendment or the rejection of the pleadings.

8. Delay in filing written statements (Form of summons) (Written statements).-

Considerable delays frequently occur at the stage of filing written statements in suits. It may be useful in this connection to review the provisions of the Code in regard to the filing of written statements.

The Code does not provide for a summons on the defendant to file his written statement. The summons only directs him to appear either in person or by a duly instructed agent to answer all material questions relating to the suit. Order V, rule 5 contemplates two kinds of summonses: one, for the settlement of issues and the other, for final disposal. Before issuing the summons the court is expected to determine which of the two forms would be appropriate in the particular case, subject however, to the proviso that in a small cause case, the summons shall be for the final disposal of the suit.

A summons for final disposal requires the defendant to be prepared to produce all the witnesses upon whose evidence and all the documents upon which he intends to rely in support of his defence. In a summons for settlement of issues the defendant is directed to produce on the date of appearance all documents upon which he intends to rely in support of his defence.1 Order VIII deals with written statements. Rule 1 of that Order provides that the defendant may, and, if so required by the court, shall, at or before the first hearing or within such time as the court may permit, present a written statement of his defence.

Thus, unless required by the court to do so, the defendant is not bound to present his defence in a written statement. In practice, however, the date of appearance mentioned in the summons has always been understood to be the date for filing the written statement. In small cause suits and suits of a very simple nature, if the defendant appears but is not ready with his written statement, the court sometimes records his statement in his defence before disposing of the case finally or settling issues.

But generally, even though, a date may be fixed for final disposal or for settlement of issues, written statements are seldom filed on the day fixed, the defendant asks for time to file it and time is granted. Thus although the Code contemplates the final disposal of a suit or the settlement of issues, as the case may be on the date fixed, the court is not able to do either of these things in a large majority of cases. Even after the written statement has been filed the courts do not take the further step on the same day, but the suit is generally adjourned to a future date for the settlement of issues.

1. See Civil Procedure Code, App B, Form Nos. 1 & 2.

9. Unavoidable delays (Strictness in granting time) (Nagpur rule re: filing of written statements).-

Delay on this account is to some extent unavoidable. In rural areas in particular, the parties are accustomed to go to their pleader only on the day actually fixed for their appearance or on the previous evening. The defendant who may be an illiterate villager is not always ready with his defence. He requires time for giving instructions to his pleader for collecting documents and other incidental matters. An adjournment is in these circumstances granted as a matter of course. It may be a short or long adjournment depending upon the simplicity or complexity of the dispute. However, once a reasonable time has been given to the defendant for filing the written statement, there is no reason why he should not be compelled to file his written statement within the time allowed.

Thereafter ordinarily no further time should be granted for the purpose. Unfortunately, a great deal of avoidable delay takes place at this stage. Rarely does the defendant file his written statement on the first day of hearing or even on the subsequent day fixed for it. It is true that the defendant should be allowed a reasonable time to put in his defence, but once such time has been given and the defendant has not utilised it, there is no reason why the penal provisions in Order VIII, rule 10 of the Code should not be enforced.

The former Nagpur High Court made a rule1 providing, that if the presiding judge on directing registration of a plaint sees good grounds for requiring the defendant to file a written statement under rule 1 of Order VIII, a note should be added to the summons issued to the defendant ordering him to file a written statement on or before the date fixed for the first hearing. If such a direction is given, the rules direct that the provisions of rule 10 of Order VIII where they are applicable should be enforced against the party and in other cases substantial costs should be ordered to be paid. This seems to be in accord with Order VIII, rule 1 under which a defendant is under an obligation to file a written statement only if so required by the court.

Though the existing rule expects the court to determine whether the summons shall in the first instance be issued for settlement of issues or for final disposal, in practice the courts as a rule direct the former to be issued in title suits or suits of a complex nature, and the latter only in suits of a very simple nature including small cause suits. The Nagpur Rule would probably be reduced in practice to the same formula so that in all cases where the summons is for the settlement of issues, the court would require the defendant to file a written statement on the date of his appearance.

We were told by a former Chief Justice of the Nagpur High Court that this method had worked extremely well in Madhya Pradesh and ordinarily a written statement was filed on the day fixed for filing it. The Madras High Court has amended rule 5 of Order V by providing for a third form of summons in addition to the summonses for final disposal and for settlement of issues. The summons requires the defendant to appear and state whether he contests or does not contest the claim. It directs him, if he contests the claim, to receive directions as to the date on which he has to file the written statement, the date of trial and other matters. It is not clear in what class of cases the court issues this third category of summons for receiving directions.

1. Rules and Orders (Civil) for the Civil Courts, 1950, Ch. VIII, para. 134.

10. Strictness necessary.-

Delays in filing written statements undoubtedly occur owing to the want of vigilance and supervision by the presiding officer over his ministerial staff. Many judicial officers are in the habit of leaving these preliminary matters to their sheristadars or bench clerks. The practice also leads to a good deal of petty corruption. The effective remedy for these delays is a strict attitude by courts in the matter of granting adjournments for filing written statements. "Until the courts make it understood that an order must be obeyed, there will not be great improvement in this or in many other matters, and it may be suggested with a certain confidence that, once a court lays down unmistakably that it will enforce an order that has been passed, there will be few instances in which the order is disregarded.1

1. Civil Justice Committee Report, p. 31, para. 9.

11. Adoption of rule in Madhya Pradesh.-

We are of the view that the rule made by the former Nagpur High Court may usefully be adopted elsewhere so that if the summons is in the first instance for settlement of issues, the defendant should be directed to file a written statement on the date of his appearance. The mere adoption of the rule will not, however, be enough. It will have to be strictly enforced. That should not cause any hardship. If it has been enforced with good results in Madhya Pradesh, there is no reason why it should not be equally capable of enforcement in the other States.

It may perhaps be simpler to make an amendment in Form No. 2 in Schedule 1, Appendix B to the Civil Procedure Code which is the form of summons for settlement of issues by providing a direction to the defendant to file a written statement by a date which should be the date fixed for the settlement of issues and a notice to the defendant that if the written statement is not filed by that date, the matter may be dealt with ex-parte.

12. Written statement to be on oath.-

Having regard to the recommendation made earlier that a plaintiff should be required to verify the plaint on oath, we think it is desirable that a similar requirement be imposed on the defendant in regard to the written statement filed by him. Such a course will have the advantage of preventing reckless denials of fact or irresponsible allegations being made by the defendant in his written statement. He would, if he chooses knowingly to make untrue denials or untrue statements of fact, expose himself to the risk of being prosecuted.

13. Delays in filing written statements by Government.-

Long delays sometimes extending over a year occur at the stage of filing a written statement in suits in which Government is a defendant. This occurs particularly in suits against a railway administration. Order XXVII, rule 5 of the Civil Procedure Code makes a special provision for cases in which Governments have to answer plaints and empowers a court in fixing the day for the Government's written statement to allow a reasonable time for necessary communication with the Government through the proper channel and for the issue of instructions to the Government Pleader to appear and answer on behalf of the Government and to extend the time at its discretion.

The Government is therefore entitled to special consideration and a reasonably longer time than the ordinary litigant. However, unreasonable and inordinate delays do occur because the Government Pleaders are unable to get prompt instructions from the Departments concerned to enable them to draft a defence. Once the court has in its discretion allowed sufficient time to Government, we are unable to see any justification for further extensions of time being granted to Government.

Armed with their Law officers and Legal Departments, Governments ought to be able to file their defences within a reasonable time. It should therefore be the duty of the presiding officer to enforce the law with firmness in such cases if the reasonable time granted to Government has expired. In view of our recommendation that the provision in section 80 of the Civil Procedure Code, requiring notice to be given to Government of intended suits should be omitted, we are of the view that Government should be given three months' time to file its written statement.

In Madras, the High Court has amended the Rule so as to provide for not less than three months' time from the date of summons to be given to Government for filing its written statement. We recommend that Order XXVII, rule 5 be amended on the lines of the Madras amendment. Such an amendment will strengthen the hands of the courts and the Government Pleaders and at the same time serve as a reminder to the Departments concerned of the necessity of giving prompt instructions to the Government Pleaders.

Service of process

14. Registered address.-

The absence of a correct and an accepted address of a party frequently causes delays in the service of the processes of the court. It is therefore desirable that parties should, when filing their pleadings, be required to file a statement in the court giving their registered address. Such registered address should, after it is filed, be deemed to be the address of the party for the purpose of the service of processes in the suit or in any appeal or revision petition or in respect of any decree or order therein made and for the purposes of execution.

The address should be deemed to be the proper address of the party for a period of two years after the final determination of the cause or matter. The service of any process may be effected upon a party at his registered address in like manner in all respects as though the party resided thereat. A provision to this effect has been added in Order VI of the Civil Procedure Code in West Bengal by adding a new rule, namely, rule 14A. We recommend the amendment of the Civil Procedure Code by the addition of such a Rule to Order VI.

15. Preparation of processes (Process forms to be filled in and filed with plaint).-

After the plaint has been examined and registered, the next step is the service of summons on the defendant to appear before the court. Rules have been made by all the High Courts to ensure prompt payment of process fees. Generally, the rule provides that process fee and diet money must be paid with the plaint or application. In practice, however, delays occur as the office requires some time in calculating the amount of court-fee required for issuing-process.

After the process fee has been paid, further delays occur in the preparation of the processes in the office of the nazir. As pointed out by the Civil Justice Committee, this is most acute at certain times of the year when many suits are filed in the same day as on the reopening of the courts after the vacation. These delay can be remedies only by a closer supervision over the nazarat and a regular security of the arrears in the process lists. In certain States like Bihar, Madras, Orissa and West Bengal the High Courts have made a rule requiring the parties or their pleaders to file with the plaint or applications printed forms of process legibly filled in by them leaving on the date of appearance of the opposite party and the date of issue of process blank.

The forms of these summonses are usually available free of cost or on a small payment is the nazir's office. The parties or their pleaders are responsible for the accuracy of the information given in those forms and the duty of the court's office is only to fill in the blanks as to dates and get the process signed. This is a very useful device which saves time and labour and we recommend its adoption in other States.

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