Report No. 14
31. Neglect of provisions for discovery and inspection (Limitation on their use) (Unfamiliarity of subordinate courts) (Undue leniency in admitting documents).-
The machinery of discovery and inspection is adequately used only in the High Courts exercising original civil jurisdiction and in some other Courts in urban areas. "The framers of the Code anticipated that in mofussil Courts the members of the Bar would not easily or quickly accustom themselves to the new procedure provided and would not avail themselves of its provisions. They, therefore, inserted in section 30 of the Code a provision which gives the court authority to order discovery and inspection of its own motion. Their anticipations have unfortunately been fulfilled and the power given to the court has not been utilised."1 The position today in the matter of discovery and inspection is practically the same.
The Chief reason for the neglect of the use of the law of discovery by the subordinate courts in the mofussil was also given by the Committee: "the great majority of cases are simple cases about matters of small money value, and because the old practice as to lodging in court the documents relief on is for so many cases regarded as sufficient"2 There is great force in this observation. The elaborate machinery of discovery and inspection given in Order XI is undoubtedly needed for the complex and difficult commercial litigation arising in large trading and industrial centres where civil practice is in the hands of experienced advocates and attorneys well-trained in practice and procedure and accustomed to make use of these provisions.
In the subordinate courts, the matters are simpler and less complicated and the machinery for discovery and inspection is naturally less apt to be used. In the result the legal practitioners and the judiciary have little familiarity with it. The difficulty in the use and application of these provisions even in difficult and complicated matters in the subordinate courts arises mainly therefore out of the want of experience of the judges and the lawyers of their working. The great advantages which result from their use cannot be appreciated unless they are put to practical use in the courts.
The timely and effective use of them must ultimately depend upon "a closer co-operation between the Bench and the Bar. Time spent by the judges and the lawyers in acquainting themselves with these provisions and the manner of their application at the appropriate stages of litigation will be of great help at the stage of the trial by having narrowed down the issues and the field of controverted facts. The Courts in the mofussil are unduly lenient in admitting documentary evidence at all stages of the suit. As the Civil Justice Committee rightly pointed ut, this laxity has deprived Order XIII, rule 1 of its true purpose.
All parties are defaulters in an equal degree in the matter of production of documents and the penalty of costs does not provide an adequate sanction and prevent the rule from becoming a dead letter. A considerable improvement in the matter of production of documents can be brought about by the presiding officers in mofussil courts following the undermentioned simple procedure.
1. Civil Justice Committee Report, p. 36, para. 14.
32. No obligation on defendant to produce or file list of documents (Amendment suggested) (Order XII, rule 3A).-
The provisions of Order VII, rule 14 requiring the production with the plaint of all documents upon which the plaintiff sues and which are in his possession or power and the entering into a list of all other documents upon which he relief as evidence must be strictly enforced. The Code curiously enough, imposes no obligation on the defendant to produce in Court with his written statement all documents on which he bases his defence or claim for set-off or to file a list of other documents in which he relief as evidence.
The High Courts of Allahabad, and the Punjab have, however, made such a provision in the case of the defendant by amending rule I of Order VIII. The obligation to produce such documents and lists with the pleading should be laid upon both the parties. We suggest that rule 1 be amended on the lines of the amendment made in the Punjab. After the pleadings are closed, a date should be fixed for the production of documentary evidence and the framing of the issues.
If the parties have on that date produced all the documents mentioned in the lists filed with their pleadings and other documents the production of which may be allowed by the Court, the Court should, acting under section 30 call upon each party to examine the lists of documents of the opposite party and admit such of the documents therein as they wish to admit. This is now provided by a new rule 3A to Order XII brought in by the Civil Procedure Code (Amendment) Act of 1956. The new rule provides:
"Notwithstanding that no notice to admit documents has been given under rule 2, the Court may, at any stage of the proceeding before it, of its own motion, call upon any party to admit any document and shall in such a case, record whether the party admits or refuses or neglects to admit such document."
Greater use necessary.- We recommend a greater use of this rule. The documents thus admitted can straightaway be numbered and admitted in evidence. In complicated and difficult cases, the Courts acting under the same section would do well to encourage the parties to ascertain their adversary's case by the delivery of interrogatories under Order XI, rules 1 and 2.
The Court should not hesitate to punish any party for evasive or unreasonable denial of any document by awarding against him the costs of proving those documents irrespective of the result of the litigation. We further recommend that in addition to the costs of proving such document as provided in Order XII, rule 2, the Court should be empowered to award against the offending party penal costs in case of wrongful or unreasonable refusal to admit documents. Order XII, rule 2 may be suitably amended for this purpose.
33. Supplementary documents.-
The issues should be framed after the procedure for the production and the admission of documents described above has been gone through. After the issues are settled the Court may, if necessary, give one more intermediate date before the date of the hearing for filing supplementary lists of documents. This is necessary because sometimes it may be unreasonable to exclude a document produced after the issues have been framed, unless the parties have had a reasonable opportunity of considering the issues, the evidence required on each issue and the importance of any document they may possess in the light of the issues.
In regard to documents in the possession or power of the opposite party, the ordinary practice in the mofussil courts is, that the party requiring the production of such documents applied to the Court for an order directing the party who is in possession or power of the documents to produce them. In the procedure indicated by us, parties will have at least three opportunities of producing all the documents which they wish to bring on the record.
Once the case reaches the stage of hearing, no further documents should be allowed to be produced, unless the Court for good reasons to be recorded by it, thinks it just to do so. This discretion should be exercised only in very exceptional circumstances; for example, in the case of documents which have come into existence subsequently or documents of the existence of which the party desiring to produce them was unaware and which he could not have produced at an earlier stage with due diligence.
34. Irrelevant documents.-
The Civil Justice Committee pointed out another difficulty experienced by presiding officers trying complicated suits of large value in the mofussil areas. parties produce in Court a large number of documents many of which are irrelevant or only of remote relevance. "Very generally there is a complete absence of arrangement: even as regards the ordinary correspondence it is nothing unusual to find that the first letter is the seventh in order, and that replies generally precede the letters to which they are an answer.
Sometimes a mass of documents is brought into a court in a locked box, copious allegations being made in the written statement as to the danger of theft or forgery if the plaintiff be allowed to go near them."' We saw tangible evidence of this complaint when in the course of our inquiries in Calcutta we took the opportunity of visiting the premises of the subordinate courts of the 24 Parganas at Alipore. We found in the courts of the subordinate judges rows upon rows of locked metal boxes of different sizes piled almost upto the ceiling in the anterooms of the courts and even the court halls.
We were told that these boxes contained the documents produced by the parties in the pending suits. The boxes were locked for fear that the contents may be tampered with or removed. We were told by a senior officer of the West Bengal Judicial Service that the practice of producing documents in metal boxes is universal in Bengal. Sometimes these boxes get mixed up or are mislaid and it takes a long time to trace them.
1. Civil Justice Committee Report, p. 37, para. 16.
It is difficult to suggest an effective remedy. 'The Chief causes, however, lie in the circumstance that parties and their pleaders will not agree to co-operate to prepare their cases so as to present their dispute to the court in a reasonable way. Doubtless it will be of service that the judge should preside over a prolonged inspection of documents, try to persuade the parties to make proper admissions, and try to help them to clear their minds as to the real points of a case.
But, though in small cases the judge may well do this sort of work at the settlement of issues, this is not really a judge's work and complicated cases are not as a rule best approached, so far as the judge is concerned, by an attempt to master a mass of documents. A competent Bar should not require this form of assistance. This kind of preliminary work when it has to be done at all should not be part of the hearing, but should be done well in advance in order that when the hearing commences it should go on continuously."1
The responsibility of presenting a party's case in a systematic and methodical manner falls primarily upon his advocate. The, presiding officer must, however, insist upon a proper arrangement and presentation of the documentary evidence. They should be entered in the lists and admitted in evidence in chronological or other methodical order so as to present the party's case in a clear, logical and connected sequence. If the judge takes a little trouble at the stage of framing the issues to consider the relevancy or admissibility of the documents, a large saving of time will result at the stage of hearing.
1. Civil Justice Committee Report, p. 40, para. 21.
35. Questions of admissibility to be discussed when they arise.-
At any rate; the High Courts should see that the presiding officers decide questions as to admissibility and relevancy of documents as and when they arise. Many officers are in the habit of reserving the decision on the relevancy or admissibility of a document sought to be tendered in evidence till the stage of the judgment. A note is sometimes made that the document is admitted subject to the question of its admissibility or relevancy being decided at the time of writing judgment. It sometimes happens that the case is eventually decided without decisions upon the point of the admissibility of the document and occasionally even without a reference at all to the documentary evidence.
This practice should cease. Clear instructions to prevent such a practice must be given whenever the attention of inspecting officers is drawn to instances of this character. In our opinion, a great saving of time will result if the simple suggestions that we have outlined above are followed. We are also of the view that the attention of the presiding officers in the larger industrial and trading towns which have a mass of commercial litigation should be repeatedly drawn to the advantages that will flow from a proper observance of the provisions as to discovery and inspection.
Conciliation and pre-trial
36. Conciliation proceedings (In foreign countries).-
Conciliation proceedings are intended to settle cases through the intervention of the Court. We have considered whether it would be desirable to have a conciliation proceeding on the date fixed for hearing at which the judge may try to induce the parties to come to an amicable settlement. The Code of Civil Procedure does not contemplate such proceedings but such a procedure exists in Japan, France and Norway.
In Japan it is the duty of the court either on the application of the parties or suo motu to send all civil proceedings either to a body consisting of two laymen and a judge or to Judicial Commissioners for a negotiated settlement. If the conciliation court succeeds in persuading the parties to arrive at a settlement, its terms are recorded by the court and the order becomes binding as a judgment. In the event of a failure, the proceeding is dealt with in the ordinary manner. In France, all cases go to a Cantonal Court presided over by a layman for conciliation and an agreed settlement.
Failing a settlement, the case goes for disposal to the court. In Norway, such proceedings are an essential preliminary to a proceeding in a civil court. The proceedings first go before a conciliation council, composed of three mediators, designated by the local authority. The council can record an agreement. If any of the parties fail to appear, the council can in petty cases settle the proceedings. If the conciliation proceedings fail, the parties may approach the court for the redress of their grievances.
37. A suggested procedure for India.-
A senior advocate of the Supreme Court has suggested to us the following procedure as a possible machinery for conciliation, having as its object the avoidance of litigation: the proceedings are to be designated Settlement Proceedings. Under this procedure, the plaintiff has to summon the defendant on a date to be called "the first settlement day" to attend before the settlement, judge by means of a "Notice of Complaint" in the prescribed form obtainable from a post office. On that day the settlement judge would hear both sides appearing in person without lawyers in a completely informal manner and briefly record the case of each party as stated before him orally and as supplemented or supported by documents produced before him.
The statements of the parties would be read over to and signed by them. Having heard parties and read the documents produced, the settlement judge would there and then try to bring the parties to an amicable settlement in regard to the matter in dispute. He would not pronounce his opinion before the parties on the validity or strength of their respective cases but he may act on his views of the strength of their cases in his endeavour to promote a settlement. If his effort succeeds, the terms agreed to would be signed by the parties and recorded by the judge. The rules would provide that the compromise shall be binding upon the parties and their assigns and, if necessary, a decree may be drawn up.
If however, the attempt fails, the matter would be adjourned for a period not exceeding two months to a date to be called the "Second Settlement Day." On that day the settlement Judge would again make a similar attempt to bring the parties to a settlement in an informal manner and without the assistance of lawyers. If he fails again, the settlement judge would give directions for a trial after which the suit would go for disposal to the trial judge. To ensure the attendance of the defendant in response to a summons to attend on the first settlement day or the attendance of parties on the second settlement day pursuant to the Courts' directions, it would be made a statutory offence punishable with imprisonment or fine for a defendant or a party to refuse or neglect without just cause to attend the court in answer to such summons or directions.
Unless this is done, the litigants may be persuaded by lawyers or interested persons to refuse to co-operate in settlement proceedings. The services of ex-judges of all categories or lawyers of not less than ten years experience may be enlisted to relieve the regular judges from the burden of settlement proceedings.
38. Success doubtful.-
The proposal envisages in every case a separate machinery for conciliation independent of the trial judge. We are not satisfied that the setting up of such a machinery will serve the intended purpose. On the contrary such settlement proceeding will, we think, be an additional step in a civil proceeding and lead to greater delay in the disposal of the proceeding.
Trial Judge to act as conciliation.- We are, however, of the view that the trial judge could himself act in a way as a conciliator. The appropriate time for initiating and tactfully helping parties to arrive at a compromise, we consider, would be when the clarification of the pleadings and the examination of parties under Order X, rules 1 and 2 take place. In this connection we were told that judges in the mofussil who try to induce parties to come to an amicable settlement are liable to be misunderstood.
That should not however, in our view, make the judge deny himself of all initiative in the matter of suggesting a compromise and deter him from helping the parties in arriving at a settlement in suitable cases. A competent and experienced judge who has learnt to make a proper use of the provisions of Order X will have no difficulty in perceiving cases pre-eminently suitable for a compromise.
A few tactful words by the Judge at a suitable opportunity, without the appearance of taking a view on either side and without playing an unduly active role, may bring about the desired result in a more satisfactory and speedier way than a separate conciliation proceeding in the manner described and spread over several weeks. In our opinion the promotion of a compromise in suitable cases should be left largely to the initiative and the personality of the judge and to the parties and their lawyers. We would like to emphasize that the Bar can play a very useful role in bringing about a compromise.
"Lawyers perform a real service to their clients and to society and the courts when they make settlements that are right settlements, where there are two sides to a case, where the issue may well be in doubt, where the facts are honestly in conflict or where the law is unsettled, there is always some figure which is fair to both sides. It should be the lawyer's aim to make such a settlement if he can".1
1. American Bar Association Journal, May 1929, The Trial of Cases by Emory R. Buckner.
39. Pre-trial conferences (The procedure in U.S.A.).-
Another proposal which was pressed upon us and which we have considered is, whether there should be a thorough-going pre-trial conference on the date of the hearing for the purpose of (a) a summary examination of parties and the hearing of the lawyers (b) the determination of the issues (c) a consideration of (i) documents to be produced, (ii) facts necessary to be proved and the manner of their proof (d) determining whether any witnesses other than those mentioned in the list may be called or examined on commission and similar matters. A provision for such a pre-trial conference is to be found in the Rules of Civil Procedure for the United States District Courts, rule 16 which provides as follows:-
"In any action, the court may in its discretion direct the attorneys for the parties to appear before it for a conference to consider:
(1) The simplification of the issues;
(2) The necessity or desirability of amendments to the pleadings;
(3) The possibility of obtaining admissions of fact and of documents which will avoid unnecessary proof;
(4) The limitation of the number of expert witnesses;
(5) The advisability of a preliminary reference of issues to a master for findings to be used as evidence when the trial is to be by jury;
(6) Such other matters as may aid in the disposition of the action.
The court shall make an order which recites the action taken at the conference, the amendments allowed to the pleadings, and the agreements made by the parties as to any of the matters considered, and which limits the issues for trial to those not disposed of by admissions or agreements of counsel; and such order when entered controls the subsequent course of the action, unless modified at the trial to prevent manifest injustice. The court in its discretion may establish by rule a pre-trial calendar on which actions may be placed for consideration as above provided and may either confine the calendar to jury actions or to non-jury actions or extend it to all actions".
The working of this procedure as explained by the Chief Justice of the State of New Jersey in the United States is briefly as under1:-
1. See The Challenge of Law Reform by Arthur T. Vanderbilt, p. 64.
The plaintiff and then the defendant states what each expects to prove at the trial. The trial judge thereupon dictates for the pre-trial order the issues to be proved and if any amendments of the pleadings are necessary he orders them made. The Judge then explores what facts may be admitted. The Judge then finds out if the execution and admissibility of any documents are uncontroverted. The pre-trial order which incorporates the above matters is dictated in open Court and signed by the Judge and counsel. The trial Judge then orders preparation of briefs to be delivered in advance of the trial, if such briefs are necessary. The details of the procedure are to be found in New Jersey Manual of Pretrial Practice.
Advantages.-The advantages of pre-trial conference have also been explained by the same author:
"The remarkable thing about it all is that at the end of a pre-trial conference very often the plaintiff's lawyer for the first time understands the plaintiff's case Likewise the defendant's lawyer for the first time gets a true concept of his own and his adversary's case. Suddenly it dawns on each of them that instead of this being a case that the plaintiff can lose or the defendant can't lose, it begins to be one that has a monetary value in terms of a settlement. month in and month out, in every country in our State three quarters of the cases are settled between the date of the pre-trial conference and the date when the case goes to trial two weeks later without the Judge saying a word about settlement".1
1. American Bar Association Journal-January 1954, Five Functions of the Lawyer.
40. views of the Evershed Committee.-
The working of the system at pretrial procedure which has been introduced in some States in the United States was examined by the 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".1 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 of long duration, possibly developing into a 'fishing net for the purpose of saving costs * * * More than this, the procedure may become somewhat elaborate and expedition".2
1. Final Report of the Committee on Supreme Court Practice and Procedure, p. 73, para. 216.
2. Ibid., p. 24, para. 220.