- Code of Civil Procedure, 1908 (CPC) – Sections 27, 89, 100A, Order 7, Rule 11 (e) and (f), Order 18 Rule 4(1), 4(2), Order 18, Rule 17A, Order 41 Rule 9 (as amended by Amendment Act 46 of 1999 and Amendment Act 22 of 2002)
- Writ Petition in Supreme Court challenging the amendments. During hearing Constitutional validity of amendments not challenged and clarification sought. Appropriateness of the amended provisions clarified.
- Direction to constitute a Committee so as to ensure the amendments become effective. Committee to consider the difficulties and make necessary suggestions in its report and file the report in Supreme Court.
- This case Salem Advocate Bar Association Vs. Union of India was reported in AIR 2003 SC 189 : (2003) 1 SCC 49 : JT 2002 (9) SC 175 : 2002 (3) Suppl.SCR 353 : 2002 (8) SCALE 146 : 2003 (1) ALLMR (SC) 391 : 2002 (6) ALT 1 (SC) : 2003 (3) AWC 2238 (SC) : 100 (2002) DLT 691 (SC) : I (2003) DMC 73 SC : (2003) 1 GLR 148 : RLW 2007 (3) SC 2531 : 2003 (1) UJ 1 (SC) : 2003 (2) WLN 665.
- A bench comprising of Chief Justice B.N. Kirpal, Justice Y.K. Sabharwal and Justice Arijit Pasayat heard the matter.
The Present writ petitions were filed by petitioner Bar Association challenging the amendment to Code of Civil Procedure, 1908 by way of Amendment Act 46 of 1999 and Amendment Act 22 of 2002.
Petitioner’s prayer to withdraw the petition was declined as the petition was filed in public interest and amicus curiae was appointed to assist the Court.
The counsel did not challenge the Constitutional validity of the amendments, but submitted that there might be some practical difficulties in implementing some of the amendments, where clarification by the Court was required.
Section 27 CPC
While issuing certain clarifications and directions, the Apex Court held that if Section 27 CPC is read as a whole the words “on such day not beyond thirty day from the day of institution of the suit” would not be susceptible to the meaning that summons must be served within thirty days of the date of institution of the suit.
Section 100A CPC
The words added by amendment, it appears, fix outer time frame, by providing that steps must be taken within thirty days from the date of the institution of the suit to issue summons. The object is to avoid long delay in issue of summons for want of steps by the plaintiff. Section 100A deals with two types of cases which are decided by a Single Judge. One is where the Single Judge hears an appeal from an appellate decree or order.
The question of there being any further appeal in such a case cannot and should not be contemplated. Where, however, an appeal is filed before the High Court against the decree of a trial court, a question may arise whether any further appeal should be permitted or not. Even at present depending upon the value of the case, the appeal from the original decree is either heard by a Single Judge or by a Division Bench of the High Court.
Where the regular first appeal so filed is heard by a division Bench, the question of there being an intra-court appeal does not arise. It is only in cases where the value is not substantial that the rules of the High Court may provide for the regular first appeal to be heard by a Single Judge. In such a case to give a further right of appeal where the amount involved is nominal to a Division Bench will really be increasing the workload unnecessarily.
No prejudice would be caused to the litigants by not providing for intra-court appeal, even where the value involved is large. In such a case, the High Court by Rules, can provide that the Division Bench will hear the regular first appeal. No fault can, thus, be found with the amended Section 100 A.
Order 7 Rule 11 CPC
Clauses (e) and (f) to Order 7 Rule 11 being procedural would not require the automatic rejection of the plaint at the first instance. If there is any defect as contemplated by Rule 11(e) or non-compliance as referred to in Rule 11(f), the court should ordinarily give an opportunity for rectifying the defects and in the event of the same not being done the Court will have the liberty or the right to reject the plaint.
Order 16 and Order 18 CPC
Reading the provisions of Order 16 and Order 18 together, Order 18 Rule 4(1) will necessarily apply to a case contemplated by Order 16 Rule IA, i.e. where any party to a suit, without applying for summoning under Rule 1 brings any witness to give evidence or produce any document. In such a case, examination-in-Chief is not to be recorded in Court but shall be in the form of an affidavit.
In cases where the summons have to be issued under Order 16, Rule 1, the stringent provision of Order 18 Rule 4 may not apply. When summons are issued, the Court can give an option to the witness summoned either to file an affidavit by way of examination-in-chief or to be present in Court for his examination. In appropriate cases, the Court can direct the summoned witness to file an affidavit by way of examination- in-chief.
In other words, with regard to the summoned witnesses the principle incorporated in Order 18 Rule 4 can be waived. Whether a witness shall be directed to file affidavit or be required to be present in Court for recording of his evidence is a matter to be decided by the Court in its discretion having regard to the facts of each case.
It is not the correct interpretation of Order 18 Rule 4(2) that once the Court decides that the evidence will be recorded by the Commissioner, then evidence of other witnesses cannot be recorded in Court. Under the said sub-rule the Court has the power to direct either all the evidence being recorded in Court or all the evidence being recorded by the Commissioner or the evidence being recorded partly by the Commissioner and partly by the Court.
The use of the word `mechanically’ in Order 18 Rule 4(3) indicates that the evidence can be recorded even with the help of electronic media, audio or audio-visual, and in fact whenever the evidence is recorded by the Commissioner it will be advisable that there should be simultaneously at least an audio recording of the statement of the witnesses so as to obviate any controversy at a later stage.
In the Code of Civil Procedure, 1908, a provision similar to Rule 17A did not exist. This provision was inserted in 1976. The effect of the deletion of this provision in 2002 is merely to restore status quo ante, that is to say, the position which existed prior to the insertion of Rule 17A in 1976. The remedy, if any, that was available to a litigant with regard to adducing additional evidence prior to 1976 would be available now and no more. It is quite evident that Rule 17A has been deleted with a view that unnecessarily applications are not filed primarily with a view to prolong the trial.
Order 41 Rule 9 CPC
The apprehension that Rule 9 to Order 41 requires the appeal to be filed in the Court from whose decree the appeal is sought to be filed, is not correct. The appeal is to be filed under Order 41 Rule 1 in the Court in which it is maintainable. All that Order 41 Rule 9 requires is that a copy of memorandum of appeal which has been filed in the appellate Court should also be presented before the Court against whose decree the appeal has been filed and endorsement thereof shall be made by the decreeing Court in a book called the Register of Appeals.
Perhaps, the intention of the Legislature was that the Court against whose decree an appeal has been filed should be made aware of the factum of the filing of the appeal which may or may not be relevant at a future date. Merely because a memorandum of appeal is not filed under Order 41 Rule 9 will not make the appeal filed in the appellate Court as a defective one.
Court directed that if any difficulties are felt, these can be placed before the Committee; The Committee would consider the said difficulties and make necessary suggestions in its report; It would be open to the Committee to seek directions, the Committee has to file its report within a period of four months.