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Report No. 14

95. Recommendations (Early appointment of guardian by the court) (Provision for costs of guardian).-

We, however, recommend that a notice should be issued in the first instance to a guardian appointed by a competent authority, or if there be none, to the natural guardian, or failing him to the de facto guardian, i.e., the person in whose care the minor is. This is already provided in Order XXXII, rule 3(4). If the court finds that none of them can be appointed, it should immediately appoint one of its own officers as guardian for the suit instead of calling upon the plaintiff to propose the names of other distant relatives or friends.

Sub-rule (4) of rule 4 will have to be amended accordingly. We do not expect any difficulty in the officer of the court so appointed being able to discover a relative, near friend or other person who would be able to give necessary instructions to him and also put him in funds for the defence of the suit. It should of course be open to such near relative or other person who has been discovered and approached by the official guardian to come to the court and express his willingness to accept guardianship for the purpose of the suit.

The court would in that case relieve the official guardian of his duties and appoint that relative or the other person guardian for the suit. In cases where the court appoints an officer of the court to be the guardian ad litem, it should also be authorized to direct that the costs of the guardian shall come out of the estate of the minor. Provision to this effect has been made by the High Courts of Madras, Bombay, Nagpur and others.

96. Notice to the minor (To be discretionary).-

Sub-rule (4) of rule 3 of Order XXXII requires notice to be served on the minor also before any order can be made on an application under that rule. This rule has been amended in different States. Thus in Bombay and Madras it is not necessary now to issue a notice to the minor. In Uttar Pradesh following the recommendation of the Uttar Pradesh Judicial Reforms Committee, notice has to be served upon the minor only if he has attained the age of twelve. In Kerala the age has been fixed at fifteen years.

We think some uniformity in this matter is desirable. Again, when a minor is of tender years and unable to form an opinion as the person most usable to be appointed guardian, no useful purpose would the served by serving a notice upon him. On the other hand, it is equally undesirable to dispense completely with notice to a minor as had been done in Bombay and Madras. The minor may have reached an age nearing the age of majority and in such cases it would undoubtedly be advantageous to consult him.

We do not think it is necessary to lay down a hard and fast rule as to the age at which a minor should be consulted. It should, in our view be left to the discretion of the court to determine in each case, whether notice should be issued to the minor also. This is precisely the position in Madhya Pradesh under rule 4A framed by the former Nagpur High Court. We recommend an amendment of the Code enacting a similar rule.

97. Commissions.-

The court has power to issue commission-(a) for examination of witnesses, (b) for making local investigations, (c) for examining or adjusting accounts or (d) making a partition. Delays at times occur when commissions are issued for the examination of a witness or for making a local investigation or adjusting accounts.

Delays in executing commissioners.- Generally, a pleader is appointed a commissioner for the examination of a witness. Although the court fixes a date for the return of the commission, delays frequently occur, and the commissioner applied for an extension of the time fixed for the execution of the commission. The delay may arise by reason of the commissioner being a busy pleader and not being able to devote time to the work entrusted to him especially when the fees payable are unattractive. Delay may also be caused by the parties or their pleaders trying to seek adjournments of the examination before the commissioner.

Strictness necessary.- The commissioner appointed under the Code is an officer of the court and if the court exercises proper vigilance, there should not be unreasonable delay in the execution of the commissions for examining witnesses residing within the court's jurisdiction. If the delay is occasioned by the default of the commissioner himself the court would be justified in revoking his appointment and appointing another person instead of extending the time. If on the other hand, the party at whose instance the commission is issued is guilty of dilatory tactics, the court can still revoke the order of examination by commission and the party in default must take the consequences of such revocation. This is a matter entirely in the discretion of the court and expedition can be attained if the commissioner is imperatively required to finish his work within a stated period and if his fees are reduced in case of delay in executing the work.

98. List of suitable persons to be maintained.-

As regards witnesses residing beyond the court's jurisdiction the commissions are generally issued to the court within the local limits of whose jurisdiction such witness resides or to any pleader or other person whom the court issuing the commission may appoint. The court to whom the commission is issued is not bound to record the evidence but it may cause the evidence to be recorded by the appointment of a commissioner. The Civil Justice Committee observed: "As there is a disinclination to add to the duties of the court the recording of evidence in suits not within their jurisdiction, the usual practice is to appoint a pleader in the place where the witness resides as commissioner.

The pleaders to whom they are issued are apt to put them on one side and to take them up when they have nothing better to do.1 The work of recording evidence on commission should in our view be entrusted to comparatively junior lawyers who do not have much court work instead of busy practitioners who would not be able to give time to such work. Some courts maintain a list of pleaders willing to work as commissioners. As far as possible this list should consist of junior lawyers who can be depended upon to execute the commission promptly. Junior lawyers competent to do this work will undoubtedly be found in all districts.

1. Report 66, para. 8.

99. Excessive length of depositions (Powers of Commissioner) (Recommendations of the Rankin Committee) (Not favoured).-

The opinion generally held is that the depositions before the commissioners tend to be extremely lengthy. Although, it would appear that in law the commissioner has the authority to exclude irrelevant or inadmissible evidence, the Code is not clear on the point and the commissioner feels incompetent to exercise this power and the result is a mass of useless matter placed on record, through the mouth of the witnesses and much time .and expenditure are wasted in the process.

The Civil Justice Committee recommended that the rules should, be recast in order to provide for the appointment of a commissioner who shall have the same authority as the court in excluding inadmissible evidence or for the appointment of a commissioner who would be obliged to record everything that each party desired leaving the question of admissibility or inadmissibility to the decision of the court which issued the commission. In cases in which a commissioner is given full power to reject evidence as inadmissible the Committee recommended that an appeal against the decision refusing to admit evidence should lie to the court which issued the commission and that such appeal should be filed within seven days.

This proposal was rejected by most of the High Courts. We cannot recommend it. The acceptance of it will result in a multiplicity of interlocutory appeals which will have the effect of holding up the trial. A simpler solution is that the commissioner recording the evidence should have regard to the provisions of the Evidence Act and in case the pleader or other person examining the witnesses presses any question which the commissioner has disallowed, he should record such question and the answer thereto, but the same should not be admitted as evidence except by the order of the judge before whom the deposition is put in evidence. Such rules have been made by some High Courts and it is necessary that they should be generally applied by being enacted as a part of Order XXVI.

100. Other commissions.-

Delays also occur in the return of commissions issued for local investigations or for taking accounts. We think that commissions for local investigations which are usually issued for the purpose or preparing a plan or map of the site in dispute or for like purposes would be expedited if the work is entrusted to some ministerial officer of the court instead of to a pleader. The court will be able to exercise a more efficient control and supervision over its own officer than over a pleader.

Supervision necessary.- As regards commissions for taking accounts the Civil Justice Committee suggested, that the work should be entrusted to individuals competent in particular forms of accounts and that they should be remunerated adequately for the work performed. The appointment of commissioners is in the discretion of the court and the court can make a careful and judicious choice, and keep a strict watch over his work.

101. Stay of proceedings.-

Delays in the trial of a suit or proceeding often occur by reason of orders of stay of proceedings passed "by appellate or superior courts. Apart from the stay of execution of decrees, stay orders relating to suits and proceedings arise generally out of interlocutory matters. The progress of the suit is held up by an appeal or revisions against an interlocutory matter.

Stay orders by superior courts (Remedies).- A majority of these appeals and revisions lack substance. Sometimes, such interlocutory proceedings are not even bona fides. The applicant or appellant who files such interlocutory appeals or revisions knows that there is no chance of success and he flies it only in order to gain time when other attempts to obtain adjournments have failed. In such cases the original proceedings should not be stayed, unless a very strong case is made out. In any case, no stay should be granted without imposing terms.

The appellate courts should be very careful in dealing with admission of revisions or appeals against interlocutory orders. An examination of the returns of such proceedings shows that in more than 80 per cent. of such cases the order passed by the court of the first instance is confirmed and the appeal or revision is dismissed. The superior courts should also pay more attention to the disposal of these revisions and appeals which delay the original proceedings and as far as possible priority should be given to them. It will also be useful if the returns made by the subordinate courts to the superior courts contain a column setting out the suits in which proceedings have been stayed by the superior courts.

This will have the advantage of indicating to the superior courts from time to time the number of proceedings that have been stayed by reason of their orders and enable them to take measures for the early disposal of the proceedings in which stays have been granted. We have also discussed the problem of delays arising on account of stay of proceedings of interlocutory stages in the Chapter on "Civil Revisions" and have made several recommendations, which need not be repeated here.

102. Summary of conclusions and recommendations.-

We may summarise our conclusions and recommendations on the trial of civil suits as follows:-

(1) Instruction in the art of drafting pleadings should form part of the lawyer's professional training course.

(2) Efforts should be made by the legal profession to stop the practice of pleadings being drawn by clerks and petition writers.

(3) Order VI, rule 15 of the Civil Procedure Code should be amended by providing that the verification of pleadings should be on oath, so that in ex parte cases, the court may in its discretion give judgment on the plaint without requiring additional evidence and the defendant may not falsely deny obvious facts.

(4) parties should be required to file with their pleadings a registered address, service of processes and notices at which, will be deemed to be service on the party for the purposes of the suit, appeal, revision or execution proceedings. Order VI may be amended by the addition of a rule similar to rule 14A in West Bengal.

(5) Whenever there is concentration of several courts at one place, a special officer of the rank of a civil judge should be appointed for the purpose of receiving, scrutinising and checking pleadings with power to make peremptory orders for dismissal of the suit or direct amendment or rejection of the pleadings.

(6) The form of summons to the defendant should be amended by inserting in it a direction to the defendant to file a written statement by a date which should be the date fixed for settlement of issues and a note added in the summons to the effect that if the written statement is not filed by that date, the matter may be dealt with ex-parte.

(7) The courts should be strict in the matter of granting adjournments for filing written statements.

(8) Government should generally be given three months notice from the date of the summons for filing its written statement. Order XVII, rule 5 should be amended as in Madras.

(9) parties should be directed to file with their pleadings printed forms of processes, filled in by them leaving only the relevant dates to be filled in by the court.

(10) Printed forms for this purpose should be made available free of cost or on a small payment.

(11) parties should be responsible for the accuracy of the details given in the forms.

(12) The courts should exercise very strict supervision over the process serving establishment to reduce delays in the service of process.

(13) If practicable, a responsible officer should make regular inspections of the work of the process servers by paying surprise visits to the villages.

(14) The service conditions of process servers should be improved and provision made for the payment of travelling and other allowances to them.

(15) Summons by post and summons in the ordinary form should be issued simultaneously and the courts should act on whichever return shows effective service.

(16) Substituted service should be ordered after two unsuccessful attempts to effect service in the ordinary manner or by post.

(17) Although suggestions as to the framing of issues may be invited from the advocates, judicial officers should invariably frame the issues themselves after studying the pleading and documents and after obtaining relevant information from the parties.

(18) The rules for the examination of parties contained in Order X, rule 1 and 2 should be fully applied.

(19) The provision relating to discovery and the production and admission of documents in Orders XI, XII and XIII should be made use of as frequently as possible.

(20) Order VIII, rule 11 should be amended as in the Punjab so as to require a defendant to produce documents on which he bases his defence or claim for set-off and file a list of documents on which he relief as evidence in support of his case.

(21) The provisions of Order XII, rule 3A should be more extensively used.

(22) If necessary, after the settlement of issues, one intermediate date may be fixed before the date of hearing for filing supplementary lists of documents.

(23) The production of further documents should not be allowed at the stage of hearing save in exceptional circumstances and for good reasons to be recorded in writing.

(24) The court should insist upon the list of documents and their production in court being made in chronological or some other methodical order.

(25) Questions as to the relevancy and the admissibility of documents should be decided as and when they arise and not left to be decided at the stage of delivering the judgment.

(26) The High Courts should continuously draw the attention of presiding officers to the advantages resulting from the use of the provisions relating to discovery and inspection.

(27) parties should be required to file their lists of witnesses within a time to be fixed by the court not exceeding thirty days from the date of the framing of the issues.

(28) The date of hearing should be fixed after such lists are filed and in consultation with the lawyers to ensure a day to day hearing.

(29) parties should be encouraged to procure the attendance of the witnesses without the issue of a summons. No aspersions should be allowed to be cast on the integrity or impartiality of witnesses who appear without summons on the ground of their appearing without being summoned.

(30) Applications for examining additional witnesses not mentioned in the list should be decided on their merits and on sufficient reasons being placed before the court for such examination.

(31) Process fees should be remitted in cases when the party himself serves the summons.

(32) A separate machinery for conciliation proceedings is unnecessary.

(33) The bringing about of a compromise should be left to the initiative of the trial judge.

(34) The judge should be able at the stage of the clarification of the pleadings and the examination of the parties under Order X to form a view whether the case is suitable for a compromise and to make suitable suggestions with a view to effecting a settlement in appropriate cases.

(35) An elaborate pre-trial procedure on the American model is not suitable for adoption in our country.

(36) ex parte and uncontested cases should be fixed for hearing early by putting them in a separate ex parte list.

(37) Uncontested cases fixed for hearing on any given date should be disposed of before contested matters are taken up.

(38) If the plaint is verified on oath, judgment may be passed for the plaintiff without recording evidence. In all other cases formal evidence will have to be taken.

(39) Judicial officers should pay personal attention to the posting of cases and the fixation of dates for trial.

(40) The way in which a judicial officer fixes his diary and adjourns cases should be taken into account in assessing his efficiency.

(41) The methods of arranging cause lists and fixing of dates prevalent in Madhya Pradesh may be adopted and its observance strictly enforced. If there are difficulties in working it, the methods adopted in Madras and Bombay and described in paragraphs 59 to 61 ante may be adopted.

(42) The hearing of contested cases once begun should continue from day to day in strict conformity with the provisions of Order XVII, rule 1.

(43) Efforts should be made to distribute work among judicial officers in a systematic fashion.

(44) When an officer is required to do both original civil and sessions work, sessions cases should be transferred to him immediately on receipt of the committal order and it should be for the judge trying the case to fix the date of hearing having regard to the state of his file.

(45) Adjournments should not be granted merely to suit the convenience of the parties or their advocates.

(46) An opening need not be insisted upon in every case but only in complicated cases when the court feels the need for it.

(47) If parties to a suit wish to give evidence they should do so before their other evidence is led.

(48) The courts should encourage the larger use of affidavit evidence for proof of simple and incontrovertible facts.

(49) Judges should be enabled to dictate the evidence of witnesses to a typist in court instead of recording it in their own hand. A provision similar to section 356 of the Code of Criminal Procedure as amended should be made in the Code of Civil Procedure.

(50) Arguments should, as far as possible, be heard immediately on the conclusion of the evidence or in complicated cases within a short time thereafter.

(51) The High Courts should frame and enforce rules for. judgment to be delivered promptly or within two weeks of the close of the hearing except for good reasons to be explained by the presiding officer.

(52) Whenever the court reserves judgment in a case it should, at the time of adjournment for consideration, specify the date on which the judgment will be delivered.

(53) All judicial officers should be furnished with stenographers as in the States of Andhra Pradesh and Madras.

(54) It is not necessary to read out the full judgment in open court. It is sufficient if the findings on the issues and the final orders are read.

(55) Order XXXII, rule 2 should be amended so as to empower the court at any stage of the suit to order the next friend of a minor plaintiff to give security or the defendant's costs if the suit appears to have been instituted by the next friend improperly or unreasonably.

(56) When there is a minor defendant a guardianship notice should be issued in the first instance to (1) a guardian appointed by a competent authority or (2) a natural guardian or (3) the de facto guardian, that is, a person in whose custody the minor is.

(57) If none of them can be appointed, the court should immediately appoint one of its officers as guardian for the suit, till a suitable relative willing to accept the guardianship is discovered.

(58) The costs of the official guardian should come out of the estate of the minor.

(59) Order XXXII, rule 3, sub-rule (4) should be amended so as to leave it to the court's discretion to determine whether notice should be issued to the minor defendant.

(60) A commissioner appointed by a court for any purpose should be imperatively required to finish his work within the time fixed and in case of delay his fees should be reduced.

(61) Commissions for recording the evidence of parties or witnesses should be entrusted to junior lawyers not having much work. A list of suitable junior lawyers willing to work as commissioner should be maintained in each court.

(62) If any question is objected to and the commissioner for recording evidence considers the objection valid but the other party insists on the question being permitted, the commissioner should record both the question and the answer thereto, but the same should not be admitted as evidence except by the order of the judge before whom the deposition is tendered as evidence.

(63) Commissions for local investigation like preparing a plan or map may be entrusted to ministerial officers of the Court.

(64) Superior courts should submit appeals and revisions from interlocutory orders to a close scrutiny and admit them or grant a stay only in proper cases.

(65) Superior courts should dispose of proceedings in which stay orders have been issued expeditiously.

(66) Subordinate courts should indicate in their returns the cases and proceedings which have been held up owing to the stay orders.

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