Report No. 14
16. Corruption in the process serving staff.-
A judge enforces his decrees and orders through the agency of the process server. The process server thus fills an important place in the scheme of the administration of justice, and should be compelled to perform his task with assiduity and honesty. However, in a very large number of States, process servers are known to be corrupt. Malpractices on their part are regarded as a major cause of delay in the trial of proceedings. Cases of process servers furnishing false or incorrect reports of service or non-service are frequent. Thus the U.P. Judicial Reforms Committee observed in 1951:
"The process-server is sometimes not a straightforward or efficient person and he leisurely moves to the beat with a determined effort to make as much out of the business as he can. Sometimes it is a question of bid between the two parties and whichever can exercise greater influence" (over the process? server) "obtains a report suiting its need We do not mean to say, however, that there are no scrupulous process-servers. There are many and they do record correct report of service but we feel that all is not well with the majority of this class of government servants".1
1. Uttar Pradesh Judicial Reforms Committee Report, p. 13
17. Types of processes (Methods of service).-
The Civil Procedure Code contemplates three types of process:
(a) those which are required to be served on persons, for example, notices, summonses and injunctions,
(b) those which are required to be executed against person or property, such as warrants for arrest and detention of persons, warrants of attachment, warrants of sale or delivery of possession of property,
(c) proclamations. There are also three modes of serving a simple summons or notice upon a defendant or opponent, namely,
(1) by delivering or tendering a copy of the defendant personally or to his agent or an adult male member of his family who is residing with him,
(2) by affixing a copy on the outer door of his house if the defendant or his agent refuses to accept service or cannot be found after due diligence and search, and
(3) by affixing a copy thereof in some conspicuous place in the court house and of the house where the defendant last resided or in such other manner as the court thinks fit after obtaining an order from the court.
The last is known as substituted service and is available in cases where the defendant is keeping out of the way for the purpose of avoiding service or where for any other reason the summons cannot be served in the ordinary way. Personal service is thus the primary mode of service under the Code and it is the duty of the process server to make diligent efforts to trace the party and effect service. The provisions as to proof of service are contained in rules 16 to 19 of Order V. Under rule 16 the person served is required to sign an acknowledgment on the original summons.
The service is proved by the endorsement of the serving officer on the original summons stating the time and the manner of service and the name and address of the person, if any, identifying the person served and witnessing the delivery or tender of the summons. The provisions of the Code of Civil Procedure as to the mode and proof of service of processes of various kinds are very clear and have been explained in detail in the Civil Rules and Circulars of all the High Courts for the guidance of subordinate courts.
18. Difficulties in effecting service (Transport difficulties.-
In dealing with the problem of delays in the service of process we have to bear in mind certain practical difficulties which obtain in many parts of the country. The service of process is often delayed on account of the long distances which have to be travelled by the process server and unsatisfactory or insufficient means of transport. Dealing with this aspect of the problem, the Civil Justice Committee observed in 1925:
"In many parts the process-servers have to proceed very considerable distances to the places where the service has to be effected. Good railway communication is rather the exception. Means of communication are sometimes incredibly bad. Roads may be non-existent, forests and jungles may have to be traversed, flooded rivers may have to be crossed."1
The conditions today in regard to roads and means of transport are better than in 1925, yet, there is no doubt that lack of proper transport facilities and bad roads hamper the work of the average process server even today. As late as 1951 the Uttar Pradesh Judicial Reforms Committee observed that "In some districts there are long distances to be traversed on foot and in the rainy season village paths are flooded and water-logged. In alluvial areas service of summonses sometimes becomes impossible in the rainy seasons."2
1. Civil Justice Committee Report, p. 5, para. 9.
2. Report, p. 14.
19. Poor service conditions.-
The difficulties of the process server are further increased by the fact that he is expected to visit the places on his itinerary on foot and his emoluments do not always provide for the expenses which he might incur by availing himself of public conveyances even where they are available. Clearly the service conditions of the process servers need improvement. We shall deal with this aspect presently in detail.
20. Negligence and corruption.-
However, what most causes delays in the service of process is the negligence and corrupt practices of the process server to which we have already referred. Sometimes the process server returns the process unserved without proceeding to the village at all either through indolence or in collusion with the defendant. On other occasions he proceeds to the village but fraudulently and at the instigation of the defendant returns the process unserved stating that the defendant is not to be found. Or he may in collusion with the plaintiff fraudulently serve the process on the wrong person. He may also return the process unserved without making proper inquiries and without attempting service. Such wrong or fraudulent reports of the process server inevitably hold up the progress of the case and put parties to unnecessary expense.
21. Need for and methods of supervision.-
As stated previously, effective supervision by the court of the process service establishment and a general improvement of the service conditions of the process server are the two measures which can reduce these delays. The rules of all the High Courts contain elaborate instructions for the guidance of the process servers and also of the nazir and subordinate courts in the matter of supervision over the process servers' work.
In Madras, for example, every amin and process server has to maintain a diary in a prescribed form written day by day and showing where he was on each day, what work he did and what processes he served or failed to serve. The diary is initialled by the nazir whenever he issues processes and whenever the amin or the peon returns to headquarters. The peon or amin has also to endeavour to get the entries in the diary attested by a village officer or other respectable resident of the village which he visits for the service of process.
The officers in charge of the central nazarats are expected to inspect these diaries from time to time and the district judges have during their inspection of subordinate courts to satisfy themselves that the diaries are being regularly maintained. Under the rules of the Bombay High Court also, the process servers who are called bailiffs in that State are required to maintain similar diaries. The following is a copy of the form in use in one of the districts in that State:-
Number of processes served
Manager of service
Reasons for non-service
Number of miles traveled daily
In What village Patil's Patrol Book signed by Bailiff
Signature of the Patil or any other well known person in the village visited by Bailiff
In addition, the village officers in Bombay have been instructed by a Government Order to give every assistance to bailiffs when serving processes. The village officers are required to maintain What is called a Bailiff's Patrol book in the following from:-
Signature of officer
Date of arrival
Date of departure
Summary of work done
To what village proceeding next
Whenever a bailiff visits a village, he has to ascertain from the patrol book the name of the bailiff who had visited it immediately before him and the date of his visit and has to make a note of these facts in his own diary. These notes are checked by the nazir from time to time in order to ascertain the correctness of the diaries of other bailiffs. This method ensures that the process server does go to the village to serve his process and does not make a false return of non-service. An effective method of controlling corruption and fraud of the process servers is the appointment of a responsible officer of the court to pay surprise visits to the villages visited by them.
He would pay surprise visits from time to time to a group of villages and verify in a few cases the truth of the process server's report of served or unserved processes. In Bombay, the deputy nazirs of the district courts who happened to be appointed guardians and managers of the minors' estates used at one time to be entrusted with the task of checking bailiffs reports. In Madhya Pradesh an officer is frequently sent suddenly and without previous notice to go over the beat of a process server to test the correctness of his reports by actual inquiry at each place. This system has yielded satisfactory results.
22. Service conditions of process servers.-
A basic cause of the corruption rampant amongst the process servers is the very small remuneration paid to them in most of the States. In Andhra and Madras process-serving establishment is divided into amins and process servers; the scale of remuneration of the amins is Rs. 21-2/2-31-1-33 and that of the process servers is Rs. 18-1-25. In Bihar and Uttar Pradesh the scale is Rs. 22-1/2-32 and Rs. 22-1/2-271/2 respectively and in Kerala it is Rs. 30-2-42-3-60. The lowest scale obtains in Mysore where it is Rs. 11-1/2-18 whereas the highest prevails in Bombay where a bailiff gets Rs. 40-1-50-1-60.
Though in most of the States dearness allowance is also payable to them yet on the whole the process server does not get even a living wage. In several States he is not paid any allowance for travel by bus or other means of public transport, nor is he paid any food allowance during his travels. An ill-paid and disgruntled process server is bound to be driven to corruption. The grant of dietary allowance and a higher rate of remuneration with an allowance for the cost of travel by public transport will result in less corruption and greater efficiency in their work.
Such additional remuneration will undoubtedly mean an increase in financial outlay but as generally, the rates of process fees are adjusted to cover the cost of the process serving establishment, this should not create any difficulty. As observed by the Civil Justice Committee, it is only right that the litigant should get full value for money paid for a specific purpose. The court-fees and process fees hav.-been enhanced in recent years in most States, "the enhancement should not be made a source of greater profit. The State should provide for the efficient discharge of service for which it is paid."1
1. Civil Justice Committee Report, p. 167 para. 18.
23. Use of postal agency.-
We suggested in our Questionnaire a more extensive use of the post office for service of various kinds of processes. This proposal has received universal approval. The normal method of effecting service under the provisions of the Code is personal service or service on an authorised agent. Prior to the amendment of 1956 a provision was made for service by post under Order V, rule 21 only in the case of processes to be served beyond the limits of the jurisdiction of the court issuing them. The High Courts however by their rules provide for a larger use of the post offices. The courts were empowered in specific cases to direct the summonses under Order V to be addressed to the defendant by registered post, acknowledgment prepaid.
An acknowledgment purporting to be signed by the defendant was to be deemed to be sufficient proof of service of such summons. That is the Madras rule. In Bombay, a new rule 21A made in 1940 provides for a summons to be sent at the court's discretion by registered post to any place where there is a regular daily postal service. The summons is to be addressed to the defendant at the place where he resides and sent by registered post prepaid for acknowledgment. An acknowledgment purporting to be signed by the defendant is to be deemed by the court issuing the summons to be prima facie proof of service.
The Rule further provides that in all other cases, the court shall hold such inquiry as it thinks fit and declare the summons to have been duly served or order such further service as may in its opinion be necessary. As to Whether the refusal of a packet of summons should be presumed to be good service, section 27 of the General Clauses Act, 1897 provides that service shall be deemed to be effected by properly addressing, pre-paying and posting by registered post a letter containing the document. Unless the contrary is proved, service will be deemed to have been effected at the time at which the letter would have been delivered in the ordinary course of post.
It was held in Baluram Ramkissen v. Bai Pannabhai ILR 35 Born 213. that the court was entitled to draw the presumption under section 27 of the General Clauses Act and to hold that there was sufficient service if it appeared that the packet was properly addressed to the defendant and had been registered, duly stamped and posted. The presumption is, however, a presumption of fact and liable to be rebutted. It has been held that the presumption would be rebutted as soon as the defendant appears and denied that the packet had ever been delivered to him by the postal authorities.
It might be argued against the greater use of the post office for serving process that a postal peon is as susceptible to corruption as the process server and in his case, there is the additional disadvantage that he is not subject to the control and discipline of the court. The latter part of rule 21A made by the Bombay High Court would, we think, act as a safeguard against improper practices by postmen. In order to satisfy itself whether the summons was duly served, the court would see whether the packet was sent pre-paid by registered post and an acknowledgment asked for and also whether it was properly addressed.
The court would therefore require it to be proved by affidavit or otherwise that the defendant resided at the place to which the packet was addressed to him at or about the time when it would reach him in the ordinary course of postal service. The acknowledgment purporting to have been signed by the defendant would also in most cases require an affidavit verifying the signature of the defendant on the acknowledgment. Subject to safeguards of this nature, we would recommend a more extensive use of the post office for the purpose of process service.
Recent amendment (Simultaneous service suggested).- Order V of the Civil Procedure Code has now been amended by the Act No. 66 of 1956. The newly enacted rule 20A enables the summons to be served by registered post either in lies of or in addition to the normal manner of service where for any reason whatsoever the summons is returned unserved. An acknowledgment purporting to be signed by the defendant or the agent or an endorsement by a postal employee that the defendant or the agent refused to take delivery may be deemed by the court issuing the summons to be prima facie proof of service.
However, even the new Rule lays emphasis on personal service as the primary mode of service and permits the use of the post office only if the personal service has been ineffective. We are of the view that such a restriction is unnecessary and should be removed and a summons by post should be issued simultaneously with the summons in the ordinary manner and the court should act on whichever return shows effective service. It may be mentioned that in England the Committee on County Court Procedure recommended service of ordinary summons by A.R. (advice of receipt) registered post.1 A further amendment of the Rules on this line would, we think, result in much saving of time at this early stage of the litigation.
1. Final Report of the Committee on Supreme Court Practice and Procedure, p. 15, para. 37.
25. Substituted service.-
Under Order V, rule 20 of the Civil Procedure Code the court has power to order substituted service in two cases only; firstly, where the court is satisfied that there is reason to believe that the defendant is keeping out of the way for the purpose of avoiding service, or secondly, where for any reason the summons cannot be served in the ordinary way. We invited opinion on the question whether the court should be empowered to order substituted service if service in the normal manner is not effected within a certain number of days. views on this question were divided and the proposal was not generally favoured.
A rule to this effect might perhaps be regarded as arbitrary and as likely to work hardship in practice. We, nevertheless, think that a limit may be placed on the number of attempts made to effect service in the ordinary manner rather than to fix the limit of a number of days within which such service must be effected. There would in our opinion be no point in wasting time in a number of futile efforts at effecting service in the ordinary manner. Normally, the only material upon which the court acts before ordering substituted service is the affidavit of the plaintiff and of the process server showing that the defendant is keeping out of the way in order to avoid service or that for some other reason, service cannot be effected in the ordinary way.
We suggest that in the second class of cases, failure to effect service in the ordinary way in two succeeding attempts should be deemed a sufficient reason for holding that summons cannot be served in the ordinary way and the court should thereafter proceed to order substituted service. We recommend that the Rule may be amended by making a provision to that effect.
Examination of parties, discovery and issues
26. Framing of issues.-
We now come to a group of important orders in the Code of Civil Procedure relating to matters preliminary to the trial of a suit. Orders X to XIII contain provisions for the examination of parties, discovery, production and inspection of documents, and admission of facts and documents. These are essential preliminaries leading up to the settlement of the issues under Order XIV. We propose to deal first with the subject of the settlement of issues because we have found that the importance of framing correct and precise issues is often not sufficiently appreciated by presiding officers.
Importance of framing proper issues.- Under Order XIV, rule 1, sub-rule (5) the Court shall at the first hearing of the suit after reading the plaint and the written statement, if any, and after such examination of parties as may appear necessary, ascertain the material propositions of fact or law upon which the parties are at variance and thereupon proceed to frame and record the issues on which the right decision of the case appears to depend. The duty of framing correct issues is thus cast on the Court which is expected to discharge it after reading the pleadings and examining the parties.
We have found that in many States the Courts do not follow the above procedure but accept the issues drafted by the pleaders without applying their minds to the questions in dispute, without examining the parties and at times without even reading the pleadings. Some of the judicial officers who gave evidence claimed that they followed the provisions of the Code in framing issues. Others while conceding that they did not examine the parties nevertheless insisted, that they themselves framed the issues after reading the pleadings and after considering the draft issues submitted by the advocates.
On the other hand, several representatives of the Bar stated that sufficient attention was not being paid to the framing of the issues which at times were too general, vague and carelessly framed and that some presiding officers accepted without question the issues drafted by the lawyers. The Court is undoubtedly entitled to invite the advocates of the parties to state the points on which the parties are at issue. But the framing of proper issues is the responsibility of the Court. The issues constitute the points of dispute on which the parties go to trial and give notice to the parties of the matters on which they have to adduce evidence or expound the law.
Unless therefore, the issues are complete and precise, the trial cannot come to a satisfactory conclusion. If issues do not reflect the real points in dispute, advantage is likely to be taken of these defects at a subsequent stage or in appeal. Delay and injustice will often result by the omission of the first Court to deal with and decide the real points in dispute.
27. Materials for framing issues.-
The Court itself should frame the issues after a careful study of the pleadings and ascertaining all relevant information from the parties themselves. The materials on which the Court may frame the issues are set out in Order XIV, rule 3 as follows:
(a) Allegations made on oath by parties or by any persons present on their behalf or by the pleaders of such parties;
(b) allegations made in the pleadings or in answers to interrogatories delivered in the suit;
(c) the contents of documents produced by either party.
Thus, the three sources from which the Court derives the material necessary for framing the issues are the pleadings, the examination of parties and the documents produced by them. It is important to note that Orders X to XIII dealing with the examination of parties and the production of documents and cognate matters precede Order XIV relating to issues in the Code. It is thus clear that the Code contemplates that the Court should have considered all matters relating to the controversy between the parties before it proceeds to frame the issues.
28. Examination of parties (Its importance).-
The Rules in Order X contemplate an examination of parties by the Court before the issues are framed in order to ascertain the nature of the dispute. Rule 1 enables the Court to ascertain from each party or his pleader whether he admits or denied the allegations of fact made in the pleadings of the opposite party and as are not expressly or by necessary implication admitted or denied by the party against whom they are made. Rule 2 contemplates an examination by the Court of a party. The object of these two rules is to ascertain the precise nature of the dispute between the parties and to obtain admissions or denials of facts alleged in the pleadings of the opposite party.
It is an effective way of elucidating the pleadings and timely and proper use of these provisions by the Court narrows down the issues and the facts in dispute and results in much saving of time and costs. The examination by the Court may also serve the purpose of a written statement in the case of defendants who are illiterate, and too poor to obtain legal advice. Here, again, rules made by the High Courts contain sufficient instructions to the subordinate courts in regard to the use of these provisions for the purpose of shortening the trial. Evidence before us showed that these provisions are, more often than not, disregarded.
Some judicial officers do try to elicit further information from the parties by examining them before the framing of the issues but a majority of them do not make use of these rules. As pointed out by the Uttar Pradesh Judicial Reforms Committee, the presiding officer is overworked and has to rush through the process of settling issues and does not have sufficient time to make proper use of Order X. Further, in view of the heavy arrears in many of the Courts, the presiding officers are not inclined to spend time and labour over preliminary steps in cases which they themselves may not be called upon to try.
In simple cases of small value, the examination of parties under these rules may probably put an end to the suit by the examination demonstrating that the parties are not at variance on any matter whatever or have only trifling differences. In difficult and complex cases a great saving of time will result, if proper and timely use is made of these provisions. It should be the duty of the district judges at the time of inspection to see whether the presiding officers make proper use of these provisions. Their failure to observe these rules should also be taken into consideration in deciding upon the officer's fitness for promotion.
29. Production of documents.-
The documents produced by the parties form the third source from which the Courts ascertain the matters in controversy. All documents in the possession of parties whether they be documents sued upon, or those on which parties rely as evidence in support of their case must therefore be on record before issues can be framed. However, parties do not file all their documents on the day fixed for the purpose and considerable delays occur. According to the scheme of the Code, documents required to be produced fall into two general categories-those which form the basis of the claim or what are known as documents sued upon, and those on which parties rely as evidence in support of their claim.
The former must be produced in the Court at the time of the presentation of the plaint if they are in the possession or power of the plaintiff. The latter must be entered in a separate list to be annexed to the plaint but they need not be produced at the time of the presentation of the plaint. If any of such documents is not in possession or power of the plaintiff he shall, if possible, state in whose possession or power it is. Documents of either class which are not produced with the plaint or the particulars whereof are not entered in the aforesaid list cannot, without the leave of the Court, be received i. evidence at the hearing of the suit.
Orders VI, VII and VIII do not provide for the production in Court of documents of the second category. However Order XIII, rule 1 requires the parties or their pleaders to produce at the first hearing of the suit all documentary evidence in their possession or power on which they intend to rely and which has not already been filed in Court and also all documents which the Court has ordered to be produced. Rule 2 provides that a document not produced in accordance with the requirements of rule 1 cannot be received at a subsequent stage unless good cause for its non-production is shown to the satisfaction of the Court.
30. Discovery (Admissions).-
The above group of Rules thus provides for the production of all documents which are in the possession or power of the party interested to produce them in Court. With regard to the documents in the possession or power of the opposite party a different machinery is provided in Orders XI and XII. That is the machinery of discovery and admission of facts and documents and inspection of documents. On the application of any party (without an affidavit) the Court may direct any other party to the suit to make discovery on oath of documents which are or have been in his possession or power relating to any matter in question in the suit.
The discovery is generally made by an affidavit in a prescribed form specifying the documents and the objections to the production of any particular document. The affidavit of documents must specify every document in the possession or power of the party called upon to make the discovery, even though he may state his objections to the production of any particular document in the list. The production of documents listed in such an affidavit can be obtained by an order from the Court under rule 14 of Order XI. A party to a suit has also a right of inspection all documents referred to in the pleadings or affidavits of the opposite party after service of notice to produce the documents for his inspection (Order XI, rule 15).
Non-compliance with an order for discovery or for inspection results in the plaintiff's suit being dismissed or the defendant's defence being struck out. The machinery for admission of documents and facts is laid down in Order XII. Any party may by notice in writing call upon the other party to admit any document or to admit for the purposes of the suit only any specific fact or facts. The refusal or neglect to admit such documents results in the cost of the proof thereof being paid by the party so neglecting or refusing, irrespective of the result of the suit unless the Court otherwise directs.