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2002(8) Supreme 55
SUPREME COURT OF INDIA
(Under Art. 32 of the Constitution of India)
B.N. Kirpal, CJI., Y.K. Sabharwal & Arijit Pasayat, JJ.
Salem Advocate Bar Association, Tamil Nadu -Petitioner
versus
Union of India -Respondent
Writ Petition (C) No. 496 of 2002
With
Writ Petition (C) No. 570 of 2002
Decided on 25-10-2002
Counsel for the Parties :
For the Appearing Parties : Soli J. Sorabjee, Attorney General, Mukul Rohtagi, Additional Solicitor General, C.S. Vaidyanathan, (AC), R. Sundaravardan, Kapil Sibal, M.N. Krishnamani, G.L. Sanghi, Sr. Advocates, K.V. Vishwanathan, (AC), T. Raja, P.N. Puri, Dhruv Mehta, Shreekant, N. Terdol, Sanjeev Sachdeva, Adish Agarwala, S.K. Karvendan, Ms. Shalini Gupta, Advocates.
(ii) Civil Procedure Code (Amendment) Act, 2002-Writ petition filed under Article 32 to challenge its constitutional validity-Whether sustainable? (No).
Held : In the petitions, the amendments which were sought to be made by the aforesaid Amendment Acts, have been challenged, but we do not find that the said provisions are in any way ultra vires the Constitution. Neither Mr. Vaidyanathan nor any other learned counsel made any submissions to the effect that any of the amendments made were without legislative competence or violative of any of the provisions of the Constitution. We have also gone through the provisions by which amendments have been made and do not find any constitutional infirmity in the same. (Para 4)
(iii) Civil Procedure Code (Amendment) Act, 2002-Amendment to Section 27-Summons to defendant-Meaning of "on such day not beyond thirty days from the date of the institution of suit".
Held : 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. In other words, if the suit is instituted, for example, on 1st January, 2002, then the correct addresses of the defendants and the process fee must be filed in the court within thirty days so that summons be issued by the court not beyond thirty days from the date of the institution of the suit. The object is to avoid long delay in issue of summons for want of steps by the plaintiff. (Para 7)
(iv) Civil Procedure Code (Amendment) Act, 2002-Amendment to Section 89-Settlement of disputes outside the Court-Some practical difficulties in implementing the Alternate Dispute Resolution Mechanism laid down in this section-Modalities have to be formulated-Suggestion to constitute an appropriate committee to work it out-Whether merits a favourable consideration? (Yes) (see paras 7 to 11).
(v) Civil Procedure Code (Amendment) Act, 2002-Addition to Section 100A-No further appeal in certain cases-Suggestion that where the original decree is reversed by a Single Judge of the High Court there should be a provision of LPA-Rules can solve this problem.
Held : 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 provision Section 100A. (Para 15)
(vi) Civil Procedure Code (Amendment) Act, 2002-Addition of clauses (e) and (f) to Order 7 Rule 11-Said clauses are procedural and would not require automatic rejection where plaint is not filed in duplicate or where the plaintiff fails to comply with provisions of Order 7 Rule 9 CPC-The Court should ordinarily give an opportunity before rejecting plaint on these grounds? (Para 15)
(vii) Civil Procedure Code (Amendment) Act, 2002-Order 18 Rule 4(1) substituted-Examination in Chief to be by affidavits-Practical difficulty-Solutions (see paras 16 to 18).
Held : Reading the provisions of Order 16 and Order 18 together, it appears to us that Order 18 Rule 4(1) will necessarily apply to a case contemplated by Order 16 Rule 1A, 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. (Para 17)
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. (Para 18)
We do not think that this is the correct interpretation of sub-rule 4(2). 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. For example, if the plaintiff wants to examine 10 witnesses, then the court may direct that in respect of five witnesses evidence will be recorded by the Commissioner while in the case of other five witnesses evidence will be recorded in court. In this connection, we may refer to Order 18 Rule 4(3) which provides that the evidence may be recorded either in writing or mechanically in the presence of the Judge or the Commissioner. The use of the word mechanically indicates that the evidence can be recorded even with the help of the 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. (Para 19)
(viii) Civil Procedure Code (Amendment) Act, 2002-Deletion of Rule 17A in Order 18 which was inserted in 1976-Whether would cause hardship? (No).
Held : 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. (Para 21)
(ix) Civil Procedure Code (Amendment) Act, 2002-Amendments in Order 41 Rule 9-Registry of memo of appeal-It is to be filed in the court-It is maintainable under Order 41 Rule 1 and not in the Court from whose decree the appeal is sought to be filed (see paras 21 and 22).
(x) Solution when any difficulties are felt in implementing amendments.
Held finally : No other contentions were raised. As already observed, if any difficulties are felt, these can be placed before the Committee constituted hereinabove. The Committee would consider the said difficulties and make necessary suggestions in its report. It is hoped that the amendments now made in the Code of Civil Procedure would help in expeditious disposal of cases in the trial courts and the appellate courts. It would be open to the Committee to seek directions. The Committee is requested to file its report within a period of four months. To consider the report, list these petitions after four months. Copies of this judgment be sent to the Registrars of all the High Courts so that necessary action can be taken by the respective High Courts and any writ petition pending in those High Courts can be formally disposed of. (Paras 24 and 25)
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JUDGMENT
Kirpal, CJI.-Rule.
2. These writ petitions have been filed seeking to challenge amendments made to the Code of Civil Procedure by the Amendment Act 46 of 1999 and Amendment Act 22 of 2002.
3. Writ Petition (C) No. 496 of 2002 was filed by the Salem Advocate Bar Association and after notice was issued the petitioner sought leave of this Court to withdraw the writ petition. By order dated 16th September, 2002, the prayer to withdraw the writ petition was declined, as the petition had been filed in public interest. At the request of the Court, Shri C.S. Vaidyanathan, Sr. Adv. assisted by Shri K.V. Vishwanathan, Advocate agreed to assist the Court as Amicus Curiae and they have rendered assistance to the Court for dealing with the case. The Court records its appreciation for the assistance given.
4. In the petitions, the amendments which were sought to be made by the aforesaid Amendment Acts, have been challenged, but we do not find that the said provisions are in any way ultra vires the Constitution. Neither Mr. Vaidyanathan nor any other learned counsel made any submissions to the effect that any of the amendments made were without legislative competence or violative of any of the provisions of the Constitution. We have also gone through the provisions by which amendments have been made and do not find any constitutional infirmity in the same.
5. Mr. Vaidyanathan, however, drew our attention to some of the amendments which have been made with a view to show that there may be some practical difficulties in implementing the same. He also contended that some clarifications may be necessary. We shall deal with the said provisions presently.
6. Amendment has been made to Section 27 dealing with summons to the defendant which, after the amendment, reads as follows:
"Summons to Defendants - Where a suit has been duly instituted, a summons may be issued to the defendant to appear and answer the claim and may be served in the manner prescribed on such day not beyond thirty days from the date of the institution of the suit."
7. It was submitted by Mr. Vaidyanathan that the words "on such day not beyond thirty days from the date of the institution of the suit" seem to indicate that the summons must be served within thirty days of the date of the institution of the suit. In our opinion, the said provisions read as a whole will not be susceptible to that meaning. 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. In other words, if the suit is instituted, for example, on 1st January, 2002, then the correct addresses of the defendants and the process fee must be filed in the court within thirty days so that summons be issued by the court not beyond thirty days from the date of the institution of the suit. The object is to avoid long delay in issue of summons for want of steps by the plaintiff. It is quite evident that if all that is required to be done by a party, has been performed within the period of thirty days, then no fault can be attributed to the party. If for any reason, the court is not in a position or is unable to or does not issue summons within thirty days, there will, in our opinion, compliance with the provisions of Section 27 once within thirty days of the issue of the summons the party concerned has taken steps to file the process fee along with completing the other formalities which are required to enable the court to issue the summons.
8. Our attention was then drawn to a new Section 89 which has been introduced in the Code of Civil Procedure. This provides for settlement of disputes, etc., and reads as under:
"89. Settlement of disputes outside the Court.-(1) Where it appears to the Court that there exist elements which may be acceptable to the parties, the Court shall formulate the terms of settlement and give them to the parties for their observations and after receiving the observa
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