Report No. 129

Chapter V

Miscellaneous Suggestions

5.1. Viewing the court procedure as at present in vague in courts at close quarters, two things emerge which can be said to be time consuming, contributing, to the delay in disposal of cases pushing up arrears in courts. The maximum consumption of time takes place in recording oral evidence and listening to arguments both at the interim and final stage.

5.2. Dealing with the consumption of time in recording evidence, subject to few exceptions which are of a marginal nature, it is time to relive the courts from the boredom of doing this work and investing its precious time in this otherwise avoidable exercise.

5.3. Order XVIII, rule 4 of the Code of Civil Procedure, 1908, provides that the evidence of witnesses in attendance shall be taken orally in open Court in the presence and under the personal direction and superintendence of the Judge. Rule 5 provides that in cases in which an appeal is allowed, the evidence of each witness shall be:

(a) taken down in the language of the court;

(i) in writing by, or in the presence and under the personal direction and superintendence of, the Judge; or

(ii) from the dictation of the Judge directly on a typewriter; or

(b) if the Judge, for reasons to be recorded, so, directs, recorded mechanically in the language of the Court in the presence of the Judge.

Rule 8 provides that where the evidence is not taken down in writing by the Judge of from his dictation in the open Court, or recorded mechanically in his presence; he shall be bound, as the examination of each witness proceeds, to make a memorandum of the substance of what each witness deposes and such memorandum shall be written and signed by the Judge and shall forms part of the record. It may be mentioned that the expressions "the Judge directly on a typewriter" or "may be mechanically recorded" were introduced by the amending Act of 1976.

This amendment authorised the court to use a tape recorder which was frowned upon earlier. However, even if the tape recorder is to be used, the proceedings shall take place in the presence of the Judge. Therefore, even if the tape recorder is used, the time of the Judge is not spared for other work. Consequently, the pressure on the court's time is not reduced even though mechanical device can be used in recording evidence. However, permitting the evidence to be mechanically recorded is a step in good direction and deserves to be approbated.

5.4. Section 75 of the Code of Civil Procedure confers power on the court to issue a commission, amongst others, to examine any witness. The power is not hedged in by any conditions. However, Order XXVI of the Code of Civil Procedure, 1908, prescribes conditions under which a commission can be issued. Rule 1 of Order XXVI provides that a commission may be issued to examine a person as witness resident within the local limits of the jurisdiction of the Court in which the suit is pending if the person is exempted in the Code of Civil Procedure from attending the Court or is, from sickness of infirmity, unable to attend. Rule 4 prescribes conditions for the exercise of power conferred by section 75 to issue commission by providing that a commission for examination may be issued if-

(a) he is resident beyond the local limits of his jurisdiction; or

(b) any person who is about to leave such limits before the date on which he is required to be examined in Court; and

(c) any person in the service of the Government who cannot, in the opinion of the Court, attend without detriment to the public service.

The power to issue commission for examination of a person as a witness is hedged in by the conditions thus specified in rules 1 and 4 of Order XXVI. These provisions would hardly help in dealing with the issue of saving the Judges' precious time in recording evidence.

5.5. The power conferred by section 75 and the provisions of Order XVIII will have to be expanded to a certain extant as to help the court in appointing a Commissioner suo motu to record evidence of witnesses present in the court.

5.6. If on a given day more than one suit is fixed for recording evidence and witnesses are present in all the suits, the distinct possibility is that the court would not be able to record evidence of all witnesses and some witnesses will have to go back for is fault of theirs. And the court would be occupied for the whole day in recording evidence - a function which can be best left to a Commissioner. If a Commissioner is appointed to record evidence of witnesses, it would save a lot of time of the court and would assist it in concentrating on disposal of suits. This appears to be the purpose underlying the amendments made by the Allahabad High Court to various rules comprised in Order XXVI of the Code of Civil Procedure.

Rule 1 of Order XXVI of the Code of Civil Procedure, as amended by the Allahabad High Court, widens the power of the court to issue commission, the only condition imposed being that the court thinks it necessary so to do in the interest of justice or expedition. Rule 2 as it stands enables the court to exercise the power suo motu. Rule 4, as pointed out earlier, permits the court to issue commission only in the circumstances specified therein. As far as U.P. is concerned, rule 4 has been deleted, implying that the power of widest amplitude conferred by amended rule 1 can be exercised without being hedged in by any conditions.

Any evidence recorded on commission cannot be used in evidence without the consent of the party against whom the same is offered, as provided in rule 8, and the embargo would be lifted only in the circumstances set out in clauses (a) and (b) of rule 8. By the amendment made by Allahabad High Court, rule 8 has been deleted and while so doing, the expression 'subject to the provisions of rule 8' in rule 7 of Order XXVI have also been deleted and in its place the words 'evidence in the suit' have been added.1 The cumulative effect of these amendments would enable the court to issue commission when it is expedient in the interest of justice or expedition to examine any witness.

Properly construed, in the situation hereinbefore set out, the court may issue commission to examine witnesses in the court. To make the provision effective, it would be advantageous for each court, with the prior approval of the High Court, to draw up a panel of lawyers willing to work as Commissioners for recording evidence. On the commencement of the work of the court on a given day, the presiding Judge will enquire as to how many witnesses are present in all the suits fixed for recording evidence and then immediately appoint available lawyers as Commissioners and they will record evidence. This would leave the presiding Judge time to deal with all suits without spending his time in the mechanical exercise of recording evidence. This would considerably save court's time and expedite disposal of cases.

1. B.V. Viswanathe Aiyer The Code of Civil Procedure, 4th Edn., Vol. II, pp. 1048-1052 under Order XXVI, rules 4, 7 and 8.

5.7. It needs hardly to be stated that the cost of Commission in the circumstances herein discussed shall be borne by the State for obvious reasons. Ordinarily the Code of Civil Procedure expects the presiding Judge to record evidence. He is relieved of this duty so that he can concentrate his attention on disposal of cases. On his behalf, the Commissioner would record evidence, not at the request of the parties to the suit but at the instance of the Judge exercising his suo motu powers. Therefore, the State must bear the cost of Commission.

5.8. Long, unending and repetitive arguments is the bane of the present day justice system. Illustrations of long drawn out arguments spreading over months have already been noticed and it is unnecessary to repeat them here.1 If the superior courts could hardly control and condone this undesirable feature of court procedure, it would be sheer travesty to expect Judges of the subordinate courts to deal effectively with local lawyers in this behalf.

And in the course of a trial, oral arguments are offered at various stages, including also when an adjournment is moved and opposed. Every application under the Code of Civil Procedure is hotly contested. But the two most important stages where arguments consume avoidable long time are at the stage of confirming or vacating interim relief and at the stage of final submissions after evidence is recorded. Both stages may be examined.

1. LCI, 124th Report on The High Court Arrears - A fresh Look, paras. 4.12 to 4.17; and LCI, 125th Report on The Supreme Court - A Fresh Look, paras. 2.18 and 4.18.

5.9. Order XXXIX, rules 1 and 2 of the Code of Civil Procedure, 1908, as amended in 1976, confer power on the court to grant interim relief of the nature set out therein and in the circumstances prescribed therein. It is an unfortunate experience of the Judges in the subordinate trial courts to hear arguments for and against granting interim relief spread over days and months. Long arguments have the tendency to end in longer orders because the order granting or refusing relief is appealable1 and if the arguments advanced are not dealt with, the order is vigorously attacked in the appellate court. Therefore, the Judge tries to cover all arguments and in the process writes an unusually long order.

The Law Commission came across a recent case in which the City Civil Court at Ahmedabad wrote an order extending over hundred pages refusing to grant interim relief. The experience generally is that by the plaintiff moving for relief under Order XXXIX, rules 1 and 2 of the Code of Civil Procedure, 1908, an ex parte order is snatched and then there is total reluctance to get it heard to determine where the rule nisi should be confirmed or discharged. This resistance leads to various ancillary applications diverting the court's attention from the main issue. The arguments generally spread over a wide canvass and are heard for a number of days.

Now this situation can be taken care of by the court itself by granting ex parte order limited to certain days, say about a fortnight, and if the plaintiff thereafter fails either to serve the same to the other side or shows reluctance to proceed in the matter, the rule nisi should get discharged automatically by the efflux of time this will put a pressure on the plaintiff to proceed with the matter. If, on the other hand, the defendant shows reluctance to proceed with the matter, the rule can be confirmed without further arguments. This will put a pressure on both sides to get the interim relief application disposed of in a short time.

The time limited to one hour at best may be fixed for either side. Equally the consuming is the final arguments. As a rule, it is never heard from day-to-day. The hearing spreads over months. This evil can be put a stop to by insisting upon written submissions and the pointed attention to some aspects can be made in the court by limiting the time granted to each side. With regard to the High Court and Supreme Court, a suggestion to this effect has been made by the Law Commission already.2

It is time to extend this method to courts subordinate to the High Court. For the weighty consideration therein mentioned, the Law Commission is of the opinion that the courts must be empowered to limit oral arguments to specific time after written submissions have been furnished to the court. This would also assist the subordinate courts in writing effective judgments because written submissions would be handy.

1. See Code of Civil Procedure, Order XLIII, rule 1(r).

2. LCI, 99th Report on Oral and Written Arguments in the Higher Courts.

5.10. The adversorial system now prevalent in our courts provides a place of pre-eminence to the members of legal profession. One can hardly think of a successful working of adversorial system in the absence of legal experts assisting the parties in search of justice. This is the first and primary role of the members of the legal profession. But there is a more important and more ethical role which the members of the legal profession have to play and that is as officers of the court. Their role is as important as, if not more than, the role of the Judge who would ultimately render his opinion.

In this sense lawyers are called the officers of the court. They assist in search of truth, in rendering justice and in imparting a healing touch to the parties. They are performing this dual role. The Law Commission, however, feels, that this is a narrow and imperfect view of the role of the lawyers participating in adversorial system. It is, therefore, time to add a third dimension to their role namely, accountability of the legal profession to the society.