Transcript Amendments to the Code of Civil Procedure, 1908

27.07.2006
National Judicial Academy, New Delhi
AMENDMENTS
TO
CODE OF CIVIL PROCEDURE
Purpose & Perspectives
Dr. Justice G.C. Bharuka
Chairman, E-Committee
Former Judge, High Courts of Patna & Karnataka
Amendments to CPC
The purpose of recent amendments made by Code of Civil
Procedure (Amendment) Act, 1999 (46 of 1999) and Code
of Civil Procedure (Amendment) Act, 2002 (22 of 2002)
(w.e.f. from 01.07.2002) is accelerate the progression of
civil cases from one stage to another within a set/expected
time frame, reduce adjournments, and help in reduction of
congestion and delays in the courts. The legislative
scheme is in consonance with the core principles of
caseflow management which requires the movement of
cases from one stage to another with in the desired time
frame under effective direction and control of the Court.
Institution of Suit
Section 26. Institution of suits.-
(1) Every suit shall be instituted by the
presentation of a plaint or in such other
manner as may be prescribed.
(2) In every plaint, facts shall be proved by
affidavit.
Order IV, Rule 1. Suit to be commenced by plaint.(1) Every suit shall be instituted by presenting a plaint in
duplicate to the Court or such officer as it appoints in this
behalf.
(2) Every plaint shall comply with the rules contained in Orders
VI and VII, so far as they are applicable.
(3) The plaint shall not be deemed to be duly instituted unless it
complies with the requirements specified in sub-rules (1) and
(2).
Order VI, Rule 15. Verification of Pleadings.(4) The person verifying the pleading shall also furnish affidavit
in support of his pleadings.
Issue of Summons
Section 27. 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 manner prescribed on such day not
beyond thirty days from date of the
institution of the suit.
Order V, Rule 1. Summons.(1) When a suit has been duly instituted, a summons may be issued to the
defendant to appear and answer the claim and to file the written
statement of his defence, if any, with in thirty days from the date of
service of summons of the defendant:
Provided that no such summons shall be issued when the defendant has
appeared at the presentation of the plaint and admitted the plaintiff's
claim:
Provided further that where the defendant fails to file the written
statement within the said period of thirty days, he shall be allowed to file
the same on such other day as may be specified by the court, for reasons
to be recorded in writing, but which not shall not be later that ninety
days from the date of service of summons.
Order VII, Rule 9. Procedure on admitting
plaint.Where the Court orders that the summons
be served on the defendants in the manner
provided in Rule 9 of Order V, it will direct
the plaintiff to present as many copies of
the plaint on plain paper as there are
defendants within seven days from the date
of such order along with requisite fee for
service of summons on the defendants.
Order VII, Rule 11. Rejection of plaint.-
The plaint shall be rejected in the following
cases:(e) where it is not filed in duplicate;
(f) where the plaintiff fails to comply with the
provisions of rule 9
Delivery of Summons
Order V, Rule 9. Delivery of summons by Court.(1) Where the defendant resides within the jurisdiction of the Court in
which the suit is instituted, or has an agent resident within that
jurisdiction who is empowered to accept the service of the summons,
the summons shall, unless the Court otherwise directs, be delivered or
sent either to the proper officer to be served by him or one of his
subordinates or to such courier services as are approved by the Court.
(2) The proper officer may be an officer of a Court other than that in which
the suit is instituted, and, where he is such an officer, the summons may
be sent to him in such manner as the Court may direct.
(3) The services of summons may be made by delivering or transmitting a
copy thereof by registered post acknowledgement due, addressed to the
defendant or his agent empowered to accept the service or by speed post
or by such courier services as are approved by the High Court or by the
Court referred to in sub-rule (1) or by any other means of transmission of
documents (including fax message or electronic mail service) provided
by the rules made by the High Court:
Provided that the service of summons under this sub-rule shall be
made at the expenses of the plaintiff.
(4) … … …
(5) … … …
(6) The High Court or the District Judge, as the case may be, shall
prepare a panel of courier agencies for the purposes of sub-rule (1).
9-A. Summons given to the plaintiff for service :The Court may, in addition to the service of summons under Rule 9,
on the application of the plaintiff for the issue of a summons for the
appearance of the defendant, permit such plaintiff to effect service of
such summons on such defendant and shall, in such a case, deliver
the summons to such plaintiff for service.
(1) … … …
(2) … … …
(3) … … …
Section 19-A. Simultaneous issue of summons for service
by post in addition to personal service
Deleted by the 1999 Amendment
Order IX, Rule 2.Dismissal of suit where summons not served
in consequence of plaintiff's failure to pay costs.Where on the day so fixed it is found that the
summons has not been served upon the defendant
in consequence of their failure of the plaintiff to pay
the Court-fee or postal charges, if any, chargeable
for such service, or failure to present copies of the
plaint required by Rule 9 of Order VII, the Court
may make an order that the suit be dismissed:
Provided that no such order shall be made if,
notwithstanding such failure, the defendant attends
in person or by agent when he is allowed to appear
by agent on the day fixed for him to appear and
answer.
Order IX, Rule 5. Dismissal of suit where plaintiff, after
summons returned unserved, fails for seven days to apply for
fresh summons.
(1) Where, after a summons has been issued to the defendant, or to one of several
defendants, and returned unserved, the plaintiff fails, for a period of seven days
from the date of the return made to the Court by the officer ordinarily certifying
to the Court returns made by the serving officers to apply for the issue of a fresh
summons, the Court shall make an order that the suit be dismissed as against
such defendant, unless the plaintiff has within the said period satisfied the Court
that
(a) he has failed using his best endeavors to discover the residence of the
defendant, who has not been served, or
(b) such defendant is avoiding service of process, or
(c) there is any other sufficient cause for extending the time,
in which case the Court may extend the time for making such application for
such period as it thinks fit.
(2) In such case the plaintiff may (subject to the law of limitation) bring a fresh
suit.
Written Statement
Order VIII, Rule 1. Written Statement
The defendant shall, within thirty days from the date of service of
summons on him, present a written statement of his defence:
Provided that where the defendant fails to file the written statement
within the said period of thirty days, he shall be allowed to file the
same on such other day, as may be specified by the Court, for
reasons to be recorded in writing, but which shall not be later than
ninety days from the date of service of summons.
(Also refer Order V, Rule 1)
Order VI, Rule 15. Verification of Pleadings.(4) The person verifying the pleading shall also furnish affidavit in support
of his pleadings.
Order VIII, Rule 9. Subsequent pleadings.No pleading subsequent to the written statement of a defendant other than by
way of defence to set-off or counter claim shall be presented except by the
leave of the Court and upon such terms as the Court thinks fit; but the Court
may at any time require a written statement or additional written statement
from any of the parties and fix a time of not more than thirty days for
presenting the same.
Order VIII, Rule 10. Procedure when party fails to present
written statement called for by Court.Where any party from whom a written statement is required under Rule 1 or
Rule 9 fails to present the same within the time permitted or fixed by the
Court, as the case may be, the Court shall pronounce judgment against him, or
make such order in relation to the suit as it thinks fit and on the
pronouncement of such judgment a decree shall be drawn up.
Amendment of Pleading
Order VI, Rule 17. Amendment of pleadings.The Court may at any stage of the proceedings allow either party to
alter or amend his pleadings in such manner and on such terms as
may be just, and all such amendments shall be made as may be
necessary for the purpose of determining the real questions in
controversy between the parties:
Provided that no application for amendment shall be allowed
after the trial has commenced, unless the Court comes to the
conclusion that in spite of due diligence, the party could not have
raised the matter before the commencement of trial.
Order VI, Rule 18. Failure to amend after Order.If a party who has obtained an order for leave to amend does not
amend accordingly within the time limited for the purpose by the
order, or if no time is thereby limited then within fourteen days from
the date of the order, he shall not be permitted to amend after the
expiration of such limited time as aforesaid or of such fourteen days,
as the case may be, unless the time is extended by the Court.
Documents
Order VII, Rule 14. Production of document on which
plaintiff sues or relies.(1) Where a plaintiff sues upon a document or relies upon document in his
possession or power in support of his claim, he shall enter such documents
in a list, and shall produce it in Court when the plaint is presented by him
and shall, at the same time deliver the document and a copy thereof, to be
filed with the plaint.
(2) Where any such document is not in the possession or power of the
plaintiff, he shall, wherever possible, state in whose possession or power it
is.
(3) A document which ought to be produced in Court by the plaintiff when
the plaint is presented, or to be entered in the list to be added or annexed
to the plaint but is not produced or entered accordingly, shall not, without
the leave of the Court, be received in evidence on his behalf at the hearing
of the suit.
(4) Nothing in this rule shall apply to document produced for the cross
examination of the plaintiffs witnesses, or, handed over to a witness
merely to refresh his memory.
Order VIII
1A. Duty of defendant to produce documents upon which relief is claimed
or relied upon by him.—(1) Where the defendant bases his defence upon a
document or relies upon any document in his possession or power, in support
of his defence or claim for set off or counter claim, he shall enter such
document in a list, and shall produce it in Court when the written statement is
presented by him and shall, at the same time, deliver the document and a copy
thereof, to be filed with the written statement.
(2) Where any such document is not in the possession or power of the
defendant, he shall, wherever possible, state in whose possession or power it
is.
(3) A document which ought to be produced in Court by the defendant under
this rule, but, is not so produced shall not, without the leave of the Court, be
received in evidence on his behalf at the hearing of the suit;
(4) Nothing in this rule shall apply to documents—
(a) produced for the cross-examination of the plaintiff's witnesses, or
(b) handed over to a witness merely to refresh his memory.;
Order XIII, Rule 1. Documentary evidence to be
produced at or before the settlement of issues.(1) The parties or their pleader shall produce on or before
the settlement of issues, all the documentary evidence in
original where the copies thereof have been filed along
with plaint or written statement.
(2) The Court shall receive the documents so produced:
Provided that they are accompanied by an accurate list
thereof prepared in such form as the High Court directs.
(3) Nothing in sub-rule (1) shall apply to documents—
(a) produced for the cross-examination of the witnesses of
the other party; or
(b) handed over to a witness merely to refresh his
memory.
Adjournments
Order XVII, Rule 1. Court may grant time and adjourn
hearing.(1) The Court may, if sufficient cause is shown, at any stage
of the suit, grant time to the parties or to any of them, and
may from time to time adjourn the hearing of the suit for
reasons to be recorded in writing:
Provided that no such adjournment shall be granted more
than three times to a party during hearing of the suit.
(2) Costs of adjournment.In every such case the Court shall fix a day for the further
hearing of the suit, and shall make such orders as to costs
occasioned by the adjournment or such higher costs as the
court deems fit :
Examination of Parties
by Court
Order X, Rule 4. Consequence of refusal or inability of
pleader to answer.(1) Where the pleader of any party who appears by a pleader
or any such person accompanying a pleader as is referred to
in rule 2, refuses or is unable to answer any material question
relating to the suit which the Court is of opinion that the party
whom he represents ought to answer, and is likely to be able
to answer if interrogated in person, the Court may postpone
the hearing of the suit to a day not later than seven days from
the day of first hearing and direct that such party a shall
appear in person on such day.
(2) If such party fails without lawful excuse to appear in
person on the day so appointed, the Court may pronounce
Judgment against him, or make such order in relation to the
suit as it thinks fit.
Order XI, Rule 2. Particular interrogatories to be
submitted.On an application for leave to deliver interrogatories' the
particular interrogatories proposed to be delivered shall be
submitted to the Court and that Court shall decide within
seven days from the day of filing of the same return. In
deciding upon such application, the Court shall take into
account any offer, which may be made by the party sought to
be interrogated to deliver particulars, or to make admissions,
or to produce documents relating to the matters in question, or
any of them, and leave shall be given as to such only of the
interrogatories submitted as the Court shall consider
necessary either for disposing fairly of the suit or for saving
costs.
Alternative Dispute Resolution
89.Arbitration.[Repealed by the Arbitration Act, 1940 (10 of 1940), sec. 49 and Sch.III
Settlement of disputes outside the Court.—(1) Where it appears to the Court
that there exist elements of a settlement 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 observations of the
parties, the Court may reformulate the terms of a possible settlement and
refer the same for—
(a) arbitration;
(b) conciliation;
(c) judicial settlement including settlement through Lok Adalat; or
(d) mediation.
(2) Where a dispute has been referred—
(a) for arbitration or conciliation, the provisions of the Arbitration and
Conciliation Act, 1996 (26 of 1996) shall apply as if the proceedings for
arbitration or conciliation were referred for settlement under the provisions of
that Act;
(b) to Lok Adalat, the Court shall refer the same to the Lok
Adalat in accordance with the provisions of sub-section (1) of
section 20 of the Legal Services Authority Act, 1987 (39 of
1987) and all other provisions of that Act shall apply in
respect of the dispute so referred to the Lok Adalat;
(c) for judicial settlement, the Court shall refer the same to a
suitable institution or person and such institution or person
shall be deemed to be a Lok Adalat and all the provisions of
the Legal Services Authority Act, 1987 (39 of 1987) shall
apply as if the dispute were referred to a Lok Adalat under the
provisions of that Act;
(d) for mediation, the Court shall effect a compromise
between the parties and shall follow such procedure as may
be prescribed.
Order X
1A. Direction of the Court to opt for any one mode of alternative dispute
resolution.—After recording the admissions and denials, the Court shall direct
the parties to the suit to opt either mode of the settlement outside the Court as
specified in sub-section (1) of section 89. On the option of the parties, the
Court shall fix the date of appearance before such forum or authority as may
be opted by the parties.
1B. Appearance before the conciliatory forum or authority.—Where a suit
is referred under rule 1A, the parties shall appear before such forum or
authority for conciliation of the suit.
1C. Appearance before the Court consequent to the failure of efforts of
conciliation.—Where a suit is referred under rule 1A and the presiding officer
of conciliation forum or authority is satisfied that it would not be proper in the
interest of justice to proceed with the matter further, then, it shall refer the
matter again to the Court and direct the parties to appear before the Court on
the date fixed by it.
Examination of Witnesses
Order XVIII, Rule 4. Recording of evidence
(1)
In every case, the examination in chief of a witness shall be on affidavit and
copies thereof shall be supplied to the opposite party by the party who calls him for
evidence.
Provided that where documents are filed and the parties rely upon the
documents, the proof and admissibility of such documents which are filed along with
affidavit shall be subject to the orders of the Court.
(2)
The evidence (cross-examination and re-examination) of the witness in
attendance, whose evidence (examination-in-chief) by affidavit has been furnished to
the Court shall be taken either by the Court or by the Commissioner appointed by it:
Provided that the Court may, while appointing a commission under this sub-rule,
consider taking into account such relevant factors as it thinks fit:
(3)
The Court or the Commissioner, as the case may be, shall record evidence
either in writing or mechanically in the present of the Judge or of the Commissioner, as
the case may be, and where such evidence is recorded by the Commissioner he shall
return such evidence together with his report in writing signed by him to the Court
appointing him and the evidence taken under it shall form part of the record of the suit.
Order XVIII, Rule 4. Recording of evidence
(4) The Commissioner may record such remarks as it thinks material respecting the
demeanor of any witness while under examination:
Provided that any objection raised during the recording of evidence before
the Commissioner shall be recorded by him and decided by the Court at the stage of
arguments.
(5) The report of the Commissioner shall be submitted to the Court appointing the
commission within sixty days from the date of issue of the commission unless the
Court for reasons to be recorded in writing extends the time.
(6) The High Court or the District Judge, as the case may be, shall prepare a panel of
Commissioners to record the evidence under this rule.
(7) The Court may by general or special order fix the amount to be paid as
remuneration for the services of the Commissioner.
(8) The provisions of Rules 16, 16-A, 17 and 18 of Order XXVI, in so far as they
are applicable, shall apply to the issue, execution and return of such commissions
under this rule.
Arguments in the Suit
Order XVIII
(3-A) Any party may address oral arguments in a case, and shall, before he
concludes the oral arguments, if any, submit if the Court so permits
concisely and under distinct headings written arguments in support of his
case to the Court and such written arguments shall form part of the
record.
(3-B) A copy of such written arguments shall be simultaneously furnished
to the opposite party.
(3-C) No adjournment shall be granted for the purpose of filing the
written arguments unless the Court, for reasons to be recorded in writing,
considers it necessary to grant such adjournment.
(3-D) The Court shall fix such time-limits for the oral arguments by either
of the parties in a case, as it thinks fit
Judgment and Decrees
Order XX, Rule 1.Judgment when pronounced.(1) The Court, after the case has been heard, shall pronounce judgment in an
open court, either at once, or as soon thereafter as may be practicable and
when the judgment is to be pronounced on some future day, the Court shall fix
a day for that purpose, of which due notice shall be given to the parties or
their pleader:
Provided that where the judgment is not pronounced at once, every
endeavor shall be made by the Court to pronounce the judgment within thirty
days from the date on which the hearing of the case was concluded but,
where it is not practicable so to do on the ground of the exceptional and
extraordinary circumstances of the case, the Court shall fix a future day for
the pronouncement of the judgment, and such day shall not ordinarily be a day
beyond sixty days from the date on which the hearing of the case was
concluded, and due notice of the day so fixed shall be given to the parties or
their pleaders
(2) Where a written judgment is to be pronounced, it shall be sufficient if the
findings of the Court on each issue and the final order passed in the case are
read out and it shall not be necessary for the Court to read out the whole
judgment. [ *** ]
Order XX
6A. Preparation of decree.— (1) Every endeavour shall be made to ensure
that the decree is drawn up as expeditiously as possible and, in any case,
within fifteen days from the date on which the judgment is pronounced.
(2) An appeal may be preferred against the decree without filing a copy of
the decree and in such a case the copy made available to the party by the
Court shall for the purposes of rule 1 of Order XLI be treated as the decree.
But as soon as the decree is drawn, the judgment shall cease to have the
effect of a decree for the purposes of execution or for any other purpose.
6B. Copies of judgments when to be made available.— Where the
judgment is pronounced, copies of the judgment shall be made available to
the parties immediately after the pronouncement of the judgment for
preferring an appeal on payment of such charges as may be specified in the
rule made by the High Court.
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