marathi“Amendment in the Code of Civil Procedure and use thereof for early disposal of Civil Cases”
First of all I take an opportunity to welcome the Amendment in the Code of Civil Procedure came into effect from 1st July, 2002, which is comprising of two acts namely, Code of Civil Procedure ( Amendment ) Act, 1999 ( 46 of 1999 ) and Code of Civil Procedure ( Amendment ) Act, 2002 ( 22 of 2002 ). The Bill for Code of Civil Procedure ( Amendment ) was passed in the year 1997, which was enacted later on as the Code of Civil Procedure ( Amendment ) Act, 1999. After its enactment a large number of representations were received both for and against its enforcement. Before action could be initiated for enforcement of the said Act, the Bar Council of India and certain local Bar Associations asked the Government to relook into certain provisions which could cause hardship to the litigants. Accordingly, the suggestions and the recommendations were discussed with the legal luminaries and thereafter in order to curtail the delays at various level, Code of Civil Procedure ( Amendment ) Act ( 46 of 1999 ) and ( 22 of 2002 ) was enacted by the Parliament and brought into effect from
While dealing with the amendment act it is pertinent to note here that this final product of the amended act was placed into our hands after thorough discussions with the Bar Council of India and other Bar Associations. Now it is having binding effect on the members of the Bar at large. By enacting this act, a duty is cast upon the Bar and Bench to serve the purpose and intention of legislature. It is now obligatory on the part of Bar and Bench to honour the intention of legislature by interpreting the provisions in its literal meaning. After the enactment number of Journals and articles were published in All India Reporter and Maharashtra Law Journals written by various legal luminaries. Most of the authors have criticized the amendment in the Code of Civil Procedure. Much hue and cry was made by the members of bar at the various courts. Thereafter series of interpretations were carried out before the bench by the members of the bar. Even the amendments were challenged before Hon’ble Supreme Court of India.
In the first judgment after the amendment in the code, Hon’ble Supreme Court in case of Salem Bar Association, Tamil Nadu –versus- Union of India, reported in A.I.R. 2003 Supreme Court page 189, has held that,
“ Amendments made by 99 and 2002 acts do not suffer from any constitutional infirmity ”.
Thereafter the judgments of various high courts have given guidelines to reach to the true intention of legislature. Even after these judgments most of the lawyers and litigants got annoyed. In the amended code most pinching provisions are in respect of section 89, Order 8, 17 and 18, which has made the lawyers and the litigants to think about their duty to the courts. These pinching provisions were interpreted by the large members of the bar and litigants as per their own convenience and forgot the purpose of legislature behind amending the code. But
Hon’ble Apex Court while discussing on Judicial Activism in case of Rupa Ashok –versus- Ashok Hurra reported in (2002) Volume 4 Supreme Court Cases 388 has held that,
“ Function of judiciary is held no longer limited to interpretation and declaration of law. Courts can mould and lay down law formulating principles and guidelines to adopt and adjust to the changing conditions of the society with the object to dispense justice”.
“Any group of Doctors will have the same opinion on the same diagnosis”,
“Any group of Engineers will have the same opinion on the same principles”,
“But no two advocates will have the same opinion on any of the issues”.
Similarly on the same principles, “Two judges rather all judges must have the same opinion on the plain and unambiguous provision”.
In the inaugural speech on the auspicious occasion of the Workshop for Case/Court Management held on
(a) There should not be individual approach but there should be collective approach.
(b) Solution has to be institutional and not individual.
(c) Speedy disposal is a must but not at the cost of Justice and not at the cost of compromising on the justice.
(d) There should be consistency in approach of all the Judges.
(e) All the Judges should have uniform attitude in adjourning the matters and consistent in their approach.
(f) There should be change of mindset and change of attitude.
(g) All of us are leaders in our own way but it is a collective approach so as to bring about some change and consequently speedy Justice.
In the light of the above observation the undersigned has prepared a time frame programmed for the civil suit. Normally a civil suit has to travel through 17 main stages from institution of the suit till its judgment, they are as under :-
Sr. Stage Provision Time Option 1. Institution of Suit Order 4, 6 and 7
2. Issue of Summons Order 5 30 M
3. Filing of Written Statement Order 8 30 M
4. Examination of Parties Order 10 10 D
5. Settlement of Dispute Section 89 15 D
6. Discovery & Inspection Order 11 30 M
7. Admission Order 12 15 M
8. Production of Documents Order 13 07 D
9. Framing of Issues Order 14 15 M
10. List of Witness Order 16 15 M
11. Summons to Witnesses Order 16 R 1 (4) 05 M
12. Settling Date Order 16 07 M
13. Evidence of Parties Order 18 R 4
r/w Order 17 --- M
14. Exhibiting of Documents Order 18 R 4 (1)
proviso 07 D
15. Cross-exam by parties Order 18 R 4 (2) --- M
16. Arguments Order 18 R 2 (3A) --- D
17. Judgment Order 20 30 M
Out of these 17 main stages the amended code does not speak about any time limit for Examination of Parties - Order 10, Settlement of Disputes - Section 89, Production of Documents - Order 13, Exhibiting of Documents - Order 18 R 4 (1) proviso and Arguments - Order 18 R 2 (3A), but in the rest of the provisions the amended code has given time limits in the provisions itself and we cannot ignore them so easily and without any rare and exceptional circumstances.
Now once a party has filed the suit then he has to comply all the provisions one by one within the stipulated time. If the table shown as above is effectively implemented then no prejudice is likely to be caused to either of the parties and it will be a milestone in disposing off the civil suit in a stipulated time and that too within the framework of law, respecting the intention of the legislature. Now it is for us to decide whether to follow the provisions or the practice while interpreting and implementing the provisions of amended code.
In the amended code most of the provisions contains time limits for a particular stage. Maximum of the provisions are mandatory in nature and in very few of them the discretion lies with the court.
1. Plaintiff has to file the plaint complying the provisions in all respect as contemplated under Order 4 r/w Order 6 and 7 of the code.
2. Plaintiff has to issue summons within 30 days from the institution of suit.
3. After the service of summons defendant has to file his written statement within 30 days from the receipt of summons as per Order 8 R 1 of the code
4. No further time exceeding 90 days after date of service of summons be extended for filing written statement as per proviso to Order 8 R 1 of the code.
5. Within 10 days from the filing of written statement court has to examine the parties so as to explore the possibilities of compromise in between the parties and to refer the matter of settlement under section 89 of the code.
6. If parties fail to compromise the matter then court has to keep the matter for discovery and inspection within the time span of 7 – 10 – 10 – 3 days, as per Order 11 of the code.
7. Then to adjourn the matter for admission within the time span of 15 days as per Order 12 of the code.
8. Then parties have to file the original documents prior to framing of issues within the time span of 7 days, as per Order 13 of the code.
9. Court has to frame the issues within 15 days as per Order 14 of the code.
10. Parties have to file the list of witnesses within 15 days from the date of framing of issues as per Order 16 of the code.
11. Plaintiff has to issue summons to the witnesses either for adducing evidence or for production of documents within 5 days of filing of list as per Order 16 R 1 (4) of the code.
12. Parties have to settle the date of evidence as per Order 16 of the code.
13. Plaintiff has to file the affidavits of all his witnesses within 3 adjournments as per Order 18 R 4 r/w Order 17 of the code.
14. Court has to exhibit the documents considering their proof and admissibility with a reasoned order as per proviso to Order 18 R 4 (1) of the code.
15. Cross examination of the plaintiff and his witnesses on day to day until all the witnesses in attendance have been examined as per Order 18 R 4 (2) r/w Order 17 R 2 (a) of the code.
16. Defendant has to issue summons to the witnesses either for adducing evidence or for production of documents as per Order 16 R 1 (4) of the code.
17. Defendant has to file the affidavits of all his witnesses within 3 adjournments as per Order 18 R 4 r/w Order 17 of the code.
18. Court has to exhibit the documents considering their proof and admissibility with a reasoned order as per proviso to Order 18 R 4 (1) of the code.
19. Cross examination of the defendant and his witnesses on day to day until all the witnesses in attendance have been examined as per Order 18 R 4 (2) r/w Order 17 R 2 (a) of the code.
20. Parties have to conclude their arguments within 15 days from the completion of their respective evidence as per Order 18 R 2 (3A) of the code.
21. Court has to delivered judgment forthwith or on or before 30 days and not exceeding 60 days from the date of conclusion of the arguments as per Order 20 R 1 of the code.
In such a manner a Judicial Officer can dispense justice after implementing the above 21 point program with a strict time frame schedule. In this process the assistance of Bar has to be there. Therefore a short term training be imparted to the members of Bar so as to made them aware about the changes of law, its true interpretation and particularly about their duties to the court and client.
After perusing the judgment delivered by Hon’ble High Court in case of Iridium India Telecom Ltd., -versus- Motorola INC reported in 2004 (1) Mh.L.J. page 532, Their Lordships Mr. Justice A.P. Shah and Mr. Justice Dr. D.Y. Chandrachud, have categorically held that,
“ the prescribed outer limit of 90 days for filing written statement cannot be extended further with the aid of section “.
In case of Shailaja –versus- Sayajirao reported in 2004 (2) Mh.L.J. page 419, his Lordship Mr. Justice D.B. Bhosale has held that,
“ Provisions of Order 8 R 1 are directory in nature. Court however while extending time to file written statement should not exercise discretion arbitrarily. Time can be extended only in exceptional cases after recording reasons in writing”.
Their Lordships Mr. Justice A.P. Shah and Mr. Justice S.U. Kamdar in case of Chintaman –versus Shivaji reported in 2004 (4) Mh.L.J. page 739, has held that,
“ Time limit prescribed in Order 8 R 1 of the code for filing written statement cannot be construed as mandatory. In exceptional extraordinary circumstances, the court has discretion to permit the defendant to file written statement beyond the period of 90 days. However, order extending time to file written statement cannot be granted casually unmindful of the provisions of Order 8 R 1 of the code”.
In one exciting case of Prabhakar –versus- Bhagwan reported in 2004 (2) Mh.L.J. 1058, His Lordship Mr. Justice B.B. Vagyani has held that,
“ Time limit fixed for filing under Order 8 R 1 is mandatory. Latter part of Rule 9 of Order 8 does not absolve defendant from filing written statement within a period of 30 days “.
In the judgments mentioned hereinabove, it is observed that these were delivered as per the facts and circumstances of each case pleaded before the respective bench. But the sum and substance of the above referred judgments is that now defendant can not take chances as per his own whims and fancies. He has to respect the intent of legislature behind amending the code.
Due to the amended provisions code in respect of recording of evidence by way of affidavit there was some ambiguity arose while dealing with the production of documents and exhibiting the documents during the evidence of parties. On this point His Lordship Mr. Justice R.M.S. Khandeparkar in case of Durgashankar –versus- Babubhai reported in 2003 (2) Mh.L.J. page 576 has held that,
“ the documents which are produced by the parties alongwith his affidavit do not ipso facto form part of evidence. It is necessary for court to decide about the admissibility of the documents before they are exhibited in evidence”.
In case of Saifuddin –versus- Smt. Habjabai, reported in 2003 (2) Mh.L.J. page 610, His Mr. Justice R.M.S. Khandeparkar has further given the guidelines in respect of documents and their exhibition in the evidence, it was further held that,
“ Where the document is admitted and exhibited under Rule 4 of Order 13 of the code, then the same cannot be rejected in terms of Rule 6 of the code. Party has to entered into the witness box and state about the contents of the documents”.
In another case of Bama –versus- Rohidas reported in 2004 (2) Mh.L.J. page 752 His Lordship Mr. Justice D.G. Karnik has held that,
“Exhibiting of document in court is an administrative act. It has nothing to do with the proof. Documents are required to be proved in accordance with the provisions of Evidence Act”.
The exact opposite view is taken by Hon’ble Rajasthan High Court. In case Chitter Mal –versus- Addl. Civil Judge (Sr.Dn.) reported in A.I.R. 2004 NOC 426, His Lordship Mr. Justice Sunil Kumar Garg, has held that,
“ If unregistered and improperly stamped document are tendered in evidence and objection is raised as to its admissibility in evidence. Then it should be decided first before proceeding with the case and order permitting to exhibit document subject to final decision on that objection is improper”.
While dealing with the most popular provision of the Bar i.e. Adjournment, His Lordship Mr. Justice S.T. Kharche, in case of Bank of Maharashtra –versus- M/s. Chintamani Oil Industries reported in A.I.R. 2003 Bombay page 347 has held that,
“ Once hearing commences in suit evidence has to be recorded on day to day basis. Liberally granting adjournments to both sides on their applications is improper as it ignores mandate of Order 17 of the code”.
Similarly there were number of judgments delivered under Order 18 R 4 of the code. They are discussed as follows -
In case of Salem Bar Association Tamil Nadu –versus- Union of India, reported in A.I.R. 2003 Supreme Court page 189, the Apex court has laid down the ratio in all most all the amended provisions and thereby kept the positive indication of the intent of legislature.
“It has also given the discretion to the Judicial Officer while recording the evidence of the parties as contemplated under Order 18 R 4 of the code”.
In case of F.D.C. Limited –versus- Federation of Medical Representatives Association
“ the provisions of Order 18 R 4 of the code does not differentiate between appealable and non-appealable cases. Provision applies not only to witnesses but parties also who are examined.. Hence the copies of the affidavits to be furnished to opposite party well in advance”.
The same view is also taken in case of Madhur Industries Ltd., -versus- m.v. Orient Commerce reported in 2003 (3) Mh.L.J. page 841, His Lordships Mr. Justice F.I. Rebello has specifically held that,
“Considering the intention of the Parliament in substituting Order 18 R 4 of the code, it will have to be read to mean in all cases and not restricted to those cases where an appeal lies.”.
The judgment of F.D.C. Limited –versus- FMRAI reported in 2003 (3) Mh.L.J. page 327, is further approved by Apex Court in case of Ameer Trading Corporation –versus- Shapoorji Data Processing Ltd., reported in A.I.R. 2004 Supreme Court page 355,
On the point of recording of evidence of the parties by way of affidavit Hon’ble Karnataka High Court has maintained the order of trial court which asks the defendant to file his evidence by way of affidavit after the plaintiff filed his evidence. In case of Hanmanthe Gowda –versus- A. Nagaraju reported in A.I.R. 2003 NOC, 308, His Lordship Mr. Justice V. Gopala Gowda has held that,
“ Order by trial court setting down case for evidence of defendants after plaintiff filed affidavits of evidence and closed his side, cannot be challenged on ground that before cross-examination of plaintiff’s evidence, defendants cannot be called upon to produce their evidence”.
After going through the various authorities cited in the foregoing paras it only states that the litigants and the lawyers not cannot take the provisions as granted. They have to travel within the ambit of the provisions as mentioned in the code. They cannot jump over the provisions. It is just like a Train. In train the engine is always at the beginning and the wagon of guard is always at the last. Similar is the case with the Code of Civil Procedure. Since the institution of the suit under Order 4 of the code a parties have to visit each of the provisions as the junction station and try to reach the destination of judgment. Now party can not sought time to amend the pleadings on the third chance of producing evidence. Similarly a party can not invoke the provisions of Order 11 or Order 12 to avoid the orders of dismissal, when the case is adjourned for evidence as a last chance
By virtue of the amended code a duty is cast upon the trial court which commonly known as fact finding court and the appellate court which is commonly known as final court of fact to implement the time bound program given in the code so as to curtail the huge pendency of litigations. If the fact finding court implement the amended code in the true letter and spirit then it automatically withheld the hands of final court of fact from remanding the matters to the fact finding court under Order 41 R 23 of the code in order to facilitate the parties to agitate the fresh trial before the fact finding court and to fill up the lacuna remained before the fact finding court. If any party fails to contest the suit on merits within the framework of the provisions of the code before the fact finding court then he must be estopped from making hue and cry before the final court of fact in order to remand the matter to the trial court which results in causing harassment to the opposite parties. On this point Hon’ble Bombay High Court, in case of Sk. Ibrahim –versus- Sk. Mehmood reported in A.I.R. 2003 Bombay page 357 and in case of Krishna Bhatkar –versus- Vitthal Athavale reported in A.I.R. 2004 Bombay page 418 has laid down certain guidelines under Order 41 R 23 of Code.
Already Hon’ble Bombay High Court in its various judgments have reduced the scope of revision under section 115 of the code. Now a party cannot revised the order of the trial court on every spur of moment unless it is required by the law as discussed in case of Chandrakant –versus- M.K. Associates reported in 2003 (1) Mh.L.J. page 1011, Municipal Council Tiroda –versus- K. Ravindra and Co. reported in 2003 (2) Mh.L.J. page 987, Rajabhau –versus- Dinkar reported in 2002 (3) Mh.L.J. page 921.
Now with the great arms and ammunition in respect of the authorities cited supra there is a great need to bring the uniformity amongst the Judicial Officers of various places to interpret the code in its literal meaning so as to respect the intent of the Parliament while amending the code of Civil Procedure. When the provisions are simple and unambiguous then there is no need to invoke the principles of artificial construction. If the object of amendment was to reduce time of litigation, it is not possible to defeat that objective by adopting lenient view. Whenever the mandatory provisions came across, it is incumbent upon the court to implement them more stringently and rigidly on the parties and of course when the discretion lies with the court the parties should be benefited.
While concluding it is necessary to mention here that if the judicial officer has succeeded in implementing the time frame program then the civil matters can be disposed off within a shorter time and the rest of the time can be very well utilized in disposing off the criminal matters and other judicial and administrative work. Then and then only it can be said that the scheme of case/court management stands worth resulting in early disposal of civil matters. If the provisions of amended code are implemented stringently and rigidly then one will be surprised to see the result of it within a year irrespective of complexity of any civil suit. Now the time has come to unite our hands to give the best of our efforts to build the strong nation by planning, organizing, directing, coordinating, controlling and to achieve the object of speedy justice.
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