civil case
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In this article, Palak Goes discusses the key highlights of Civil Procedure Code (Amendment) Act, 2002.

Overview

There are two types of law on the basis of nature, substantive laws and procedural laws. Substantive laws are the laws which define the principles related to the rights and liabilities (for instance, Indian Penal Code, 1860 lays down the offences of punishable nature). On the contrary, Procedural laws provide for the mechanism for the regulation and enforcement of these rights and liabilities. They lay down the procedure for the machinery in compliance with the enforcement of the rights and liabilities (for instance, Code of Civil Procedure, 1908).

Law is dynamic. This means that law is subjected to the changes to meet the demanding needs of the society to which it concerns. It is subjected to changes to redress the balance. Though the law is subjected to changes, the paramount principle of law on which it lies upon is based on the Latin maxim “salus populi suprema lex esto” which means “the good of the people shall be the supreme law”.

Code of Civil Procedure (Amendment) Act, 2002

The Code of Civil Procedure dates back to 1908 which governs the entire spectrum of civil fraternity suits. From the date of its enforcement, it has been amended many times for the speedy and expeditious trial of the suits. Despite the radical changes in due course of time, the society still faced the delaying issues due to humongous pending lawsuits in the court. The Central Government initiated a step ahead to curtail down the future situations and thus, introduced certain amendments to the Code.

Because of the delay in delivering justice experienced by the litigants at various levels, the Parliament introduced the Code of Civil Procedure (Amendment) Act, 2002.

The failure of the objective of The Amendment Act of 1999, i.e., speedy and expeditious trial resulted in The Amendment Act of 2002 which was enacted to reduce the delays faced at the different levels of the litigation. It is one of the Parliamentary efforts at making litigation in our country more effective and speedy. In the light of the Amendment Act of 1999 came the Amendment Act of 2002 which became effective from 1st July, 2002. After the long wait, the Parliament made some radical changes for the effective enforcement of the provisions of the Code.

Arun Jaitley, introduced a new amendment Bill in 2002, taking into account the suggestions made by bar representatives, political parties and the Law Commissions. The Parliamentary Standing Committee recommended the other changes. The new Bill was adopted by both the Houses of Parliament in May, 2002. Following Presidential assent, the Code of Civil Procedure (Amendment) Act,2002 was notified and came into effect.

Key Highlights of the Amendment Act, 2002

Transfer of Decree (Section: 39)

  • Section 39 lays down the conditions under which a decree can be sent.
  • In dealing with an application for transfer of a decree to another Court for execution two aspects must be kept in view, first, that a decree-holder has a legal, not merely an equitable right to have his decree transferred for execution, and secondly, at the same time, that the section is not mandatory.
  • But the Court is given a judicial discretion in the matter, as is shown from the word “may” in the section. Thus if the demand for transfer is lawful, the fact that the motive for the application for transfer is to put pressure on one of the judgment-debtors is no ground for refusing the application for transfer.
  • The Government of India requested the Law Commission to take a comprehensive revision of the Code of Civil Procedure, 1908. In January, 1998, the Commission took up the subject and decided to do the exercise in two phases. In the first phase, the Commission reviewed the amendments suggested by the Code of Civil Procedure (Amendment) Bill, 1997. In the second phase of the work, the Commission took up the revision of the entire Code as a comprehensive revision of Code as the whole would take longer time.
  • On the recommendations of Law Commission made in 163rd Report, headed by B.P. Jeevan Reddy, the present sub-section (4) has been added to Section 39 to clarify that nothing in the section shall be construed as authority the Court to execute a decree against a person or property outside the local limits of its jurisdiction.
  • The question of consideration was that “the Section uses the word “may” which led to a debate whether the Court sending the decree to another Court is discretionary?”.
  • It was recommended by the Law Commission that “the use of “may” in Section 39 does not mean that the Court, which passed the decree, can execute the decrees irrespective of territorial limitations. The word “may” is meant for cases where there are circumstances in which execution as such is considered illegal. Another view would upset the entire scheme of the Code as to jurisdiction. It seems desirable to clarify the position by inserting an Explanation below Section 39 to provide that nothing in the section shall be construed as an authority in the Court to execute a decree against a person or property outside the local limits of its jurisdiction. We recommend accordingly”.

Private alienation of property after attachment to be void (Section: 64)

  • Sub-section (2) has been added on the recommendations of the Law Commission made in 54th Report, pages 51-52. As a result of the amendment, a transfer made in pursuance of a registered agreement shall override the attachment if the agreement precedes the attachment.
  • The Law Commission recommended that the following exception should be added below Section 64:

“Exception – Nothing in this section applies to any private transfer or delivery of the property attached or of any interest therein, made in execution of any contract for such transfer or delivery entered into and registered before the attachment”.

  • By the Amendment Act of 2002, the Section was renumbered as sub-section (1) and sub-section (2) and the following shall be inserted namely :

“(2) Nothing in this section shall apply to any private transfer or delivery of the property attached or of any interest therein, made in pursuance of any contract for such transfer or delivery entered into and registered before the attachment”.

  • The legal spirit that lies behind this section is to prevent fraud on the part of the decree-holders and secure the rights of the attaching creditor against the attached property by prohibiting private alienations pending attachments.
  • It enacts the rule that a private alienation of property after attachment is void as against claims enforceable under the attachment.
  • This section makes no distinction between attachment of property before judgment is given and an attachment in execution of a decree.

No further appeal in certain cases (Section 100A)

  • The Section was substituted by the Amendment Act of 1999 for the following:

“Notwithstanding anything contained in any Letters Patent for any High Court or in any other instrument having the force of law or in any other law for the time being in force, where any appeal from an appellate decree or order is heard and decided by a single Judge of a High Court, no further appeal shall lie from the judgment, decision or order of such Single Judge in such appeal or from any decree passed in such appeal”.

  • The present section has been substituted for the substituted Section 100A, by the Code of Civil Procedure (Amendment) Act,2002.
  • As a result of the 2002 Act, appeals to division Bench of the High Courts in writs under Articles 226 and 227 of the Constitution have been restored.
  • The net result of the 1999 and 2002 Amendment is that where any appeal from an original or appellate decree or order is heard and decided by a single Judge of a High Court, no further appeal shall lie from the judgment and decree of such single Judge; appeals to Division Bench of the High Court in such cases has been abolished.
  • Though this substitution raised many prenotions, it widened the scope of Section 100A so far as a restriction on the right of further appeal is concerned.

No second appeal in certain cases (Section 102)

  • The Amendment Act of 1999 substituted the section for the following:

“No second appeal lies in any suit of the nature cognizable by Courts of Small Causes, when the amount or value of the subject-matter of the original suit does not exceed three thousand rupees”.

  • Though the critics had been pointed out that it would foreclose second appeals where a substantive question of law was involved.
  • The Amendment Act of 2002 has corrected this distortion and the present section has been substituted for the following:

“No second appeal shall lie from any decree, when the subject-matter of the original suit is for recovery of money not exceeding twenty-five thousand rupees”.

  • Prior to both the Amendment Acts, the second appeal in every suit of the cognizable nature was barred by Courts of Small Causes, when the amount or value of the subject-matter of the original suit did not exceed three thousand rupees.
  • The second appeal was abolished by the Code of Civil Procedure (Amendment) Act, 1999 in all cases where the value of the subject matter in the suit does not exceed rupees twenty-five thousand.
  • The Amendment Act of 2002 has changed the scenario and now no second appeal lie in money suits where the subject matter of the suit does not exceed rupees twenty-five thousand.

Issue and Service of Summons (Order V)

  • Order V of the Code provides for issue and service of summons. The Malimath Committee looked into the problem of the shortfall of cases in the Courts and recommended amendments to the Code intending to lay down a fixed time frame within which pleadings can be completed.
  • The Amendment Act of 2002 amended Rule 1 [Summons], Rule 9 [Delivery of summons by Court] and Rule 9A [Summons given to the plaintiff for service] of Order V .
  • The effect of substituted sub-rule (1) of Rule 1 is that summons are required to be issued to the defendant for appearance and answering the claim of the plaintiff on institution of a suit by the plaintiff set out in the plaint by filing written statement of his defence within 30 days from the day of the institution of the suit except in a few situations.
  • The first proviso to the sub-rule (1) of Rule 1 provides that no summons are required to be issued when the defendant has appeared at the presentation of the plaint and admitted the plaintiff’s claim.
  • The second proviso to the substituted sub-rule (1) of Rule 1 provides that if the defendant does not file the written statement within 30 days of the presentation of the plaint, he may be allowed to file the same, for reasons to be recorded in writing, which shall not exceed ninety days from the date of service of summons.
  • Rule 9 of Order V was substituted by Rules 9 and 9A of the Amendment Act of 2002.
  • Sub-rule (1) and sub-rule (4) of Rule 9 prescribes two different situations as to the delivery of the summons to the defendant. Firstly, if the defendant resides within the jurisdiction of the Courtin which the suit is instituted or his agent, the summon shall be delivered by the proper officer or such courier services as are approved by the Court. Secondly, if the defendant resides outside the jurisdiction of the Court in which the suit is instituted , the Court may direct the service of summon by delivering the copy by speed post or by such courier services as are approved by the High Court or by any other means of transmission of documents including fax message or electronic mail service, which shall be made at the expenses of the plaintiff (Proviso to sub-rule (3).
  • Sometimes, the defendant or his agent refuses or intentionally neglects the delivery of the summon which leads to delay in service of summons. Sub-rule (5) of Rule 9 curbs this situation and states that if the Court receives an acknowledgement or any other receipt purporting to be signed by the defendant or his agent endorsed by the postal employee that defendant or his agent has refused to take the delivery of the postal or had refused to take accept the summon when tendered to him, the Court issuing the summons shall declare that the summons had been duly served on the defendant.
  • The Registered Post Acknowledgement Due can also make the service of summon.
  • Rule 9 empowers the High Court or the District Court to prepare a panel of the courier agencies for service of summons.
  • To avoid the delay in delivery of summons, the Court empowered the plaintiff for the service of summons under Rule 9A. It states that the Court, in addition to Rule 9, on an application of plaintiff may allow him service of summon for the appearance of the defendant.
  • Such service of summon by the plaintiff shall be effected by delivery of summon to the defendant personally a copy signed by the Judge and sealed with the seal of the Court or any mode of service prescribed in sub-rule (3) of Rule 9.

Pleading Generally (Order VI)

  • Rule 17 [Amendment of pleadings] and Rule 18 [Failure to amend after order] were substituted by Code Of Civil Procedure (Amendment) Act, 2002.
  • By the Amendment Act of 2002, the provision has been restored in Rule 17. The provision for the amendment has been given back to the Court with certain limitations. A new provision has been added to the rule, namely that no application for amendment of the pleadings shall be allowed after the trial has commenced unless the Court concludes that in spite of due diligence, the party could not have raised the matter before the commencement of trial.
  • Thus, after the trial of the case has been commenced, no application for amendment of the pleadings shall be allowed 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.
  • The principal object of the rule is that the Courts should get at and try the merits of the case that comes before them and should consequently allow all the amendments that may be necessary for determining the real question in controversy between the parties without causing injustice to the other side.
  • By the Code Of Civil Procedure (Amendment) Act, 1999, Rule 18 was omitted. By Code Of Civil Procedure (Amendment) Act, 2002, the old Rule 18 verbatim has been restored.
  • Rule 18 states that 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 period or of such fourteen days, unless the time is extended by the Court.

Plaint (Order VII)

  • By Code Of Civil Procedure (Amendment) Act, 2002, Rule 9 [Procedure on admitting plaint], Rule 11 [Rejection of plaint] and Rule 14 [Production of document on which plaintiff sues or relies of Order VII were amended and Rule 18 [Inadmissibility of document not produced when plaint filed] was omitted.
  • Unde the new rule 9, the Court will direct the plaintiff to present copies of the plaint within a period of seven days from the date of the order along with the requisite process fee for service on the defendant(s). Under the old rule, no time limit was prescribed.
  • The new rule intended to expedite the delay, which the plaintiff often caused in taking steps for the service of summons on the defendant. Further under the old rule, there was provision requiring the plaintiff to endorse on the plaint or to annex thereto, the list of the documents which he had filed along with the plaint, or instead of copy of the plaint could file concise statements of the nature of the claim made or the relief claimed in the suit with the prior of the Court, which the Court would permit by reason of the length of the plaint or the number of the defendants or for any other sufficient reasons.
  • Under the new rule 9, both these provisions have been omitted as found unnecessary just to cut short the delays in the trail of the cases.
  • In Rule 11, for sub-clause (f) and (g) as inserted by Amendment Act of 1999 was substituted, namely-

“(f) where the plaintiff fails to comply with the provisions of Rule 9”.

  • The clause (f) enabled the court to reject the plaint where the plaintiff fails to comply with the provisions of Rule 9 of Order VII.
  • Sub-rule (3) of Rule 14 was substituted meaning thereby that the documents may be produced by the plaintiff which ought to be produced during the presentation of a plaint or to be entered in the list or annexed to the plaint, with the leave of the Court, at the time of the hearing of the suit.
  • The Amendment Act of 2002 omitted Rule 18.

Written Statement, Set-Off and Counter-Claim (Order VIII)

  • Rule 1 [Written Statement], Rule 1A [Duty of defendant to produce documents upon which relief is claimed or relied upon by him], Rule 9 [Subsequent pleadings] and Rule 10 [Procedure when party fails to present written statement called for by Court] were amended.
  • In Rule 1, the defendant shall present the written statement within thirty days from the date of service of summon. By 2002 Amendment Act, the defendant may file written statement thereafter with the permission of the Court but not beyond ninety days where the Court for the reasons to be recorded in writing has extended this period.
  • Thus, now a defendant can file a written statement within thirty days from the date of service of summon but such time period can be extended upto ninety days by the Court for the reasons to be recorded in writing.
  • Sub-rule (3) of Rule 1A was substituted by the Amendment Act, 2002. Rule 1A was added by the Amendment Act of 1999 and further amended by Amendment Act, 2002.
  • It states that 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. Nothing in this rule shall apply to documents – (a) produced for the cross-examination of the plaintiff’s witness, or (b) handed over a witness merely to refresh his memory.
  • Rule 9 was restored by the Code of Civil Procedure (Amendment) Act, 2002 in the same form verbatim except for the addition of the words “of not more than thirty days” after the words “and fix a time” and before the words “for presenting the same” appearing at the end of the rule. The effect of the change is that subsequent pleadings shall be continued to be filed and the Court shall fix the time for presenting the same, which shall be not more than thirty days.
  • Rule 10 which was omitted by the Code of Civil Procedure (Amendment) Act, 1999 was substituted by the Code of Civil Procedure (Amendment) Act, 2002. It states that 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 pronouncement of such judgment a decree shall be drawn up.

Appearance of Parties and Consequence of Non-Appearance (Order IX)

  • Rule 2 [Dismissal of suit where summons not served in consequences of plaintiff’s failure to pay costs] was substituted by Code of Civil Procedure (Amendment) Act, 2002.
  • It states that where on the day fixed it is found that the summons has not been served upon the defendant in consequence of the 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 as required by Rule 9 of Order VII, the Court may make an order that the suit be dismissed.
  • The proviso to the rule states 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.

Settlement of Issues and Determination of Suit on Issues of Law or on Issues agreed upon (Order XIV)

  • Rule 5 [Power to amend, and strike out issues] was substituted by Code of Civil Procedure (Amendment) Act, 2002.
  • Rule 5 was omitted by the Code of Civil Procedure (Amendment) Act, 1999 which was restored verbatim by the Code of Civil Procedure (Amendment) Act, 2002.
  • Rule 5 lays down provisions for amending the issues, framing additional issues, and striking out issues in the course of the trial of a suit.
  • It states that the Court may at any time before the passing a decree amend the issues or frame additional issues on such terms as it thinks fit, and all such amendments or additional issues as may be necessary for determining the matters in controversy between the parties shall be so made or framed. It further states that the Court may also, at any time before passing a decree, strike out any issues that appear to it to be wrongly framed or introduced.
  • A court trying a civil suit has inherent power to take cognizance of questions going to the root of the subject-matter in controversy between the parties at any stage of the trial. But before doing so, the Court must frame and record issues on such questions.
  • The power of the Court is subject to Rule 3 of this Order. Thus the rule does not enable the re-opening of issues already closed.

Hearing of the Suit and Examination of Witness (Order XVIII)

  • Rule 2 [Statement and production of evidence] and Rule 4 [Recording of evidence] were amended by the Code of Civil Procedure (Amendment) Act, 2002.
  • Sub-rule 3A, 3B, 3C, 3D of Rule 2 were inserted by Code of Civil Procedure (Amendment) Act, 2002.
  • Sub-rule 3A of Rule 2 states that 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.
  • Sub-rule 3B of Rule 2 states that a copy of written arguments shall be simultaneously furnished to the opposite party.
  • Sub-rule 3C of Rule 2 states that 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.
  • Sub-rule 3D of Rule 2 states that the Court shall fix such limits for the oral arguments by either of the parties in a case, as it thinks fit.
  • Thus a time limit for oral arguments may be fixed by the Court and with the leave of the Court, the parties may be required to submit written arguments before concluding the oral arguments in the case. Ordinarily, no adjournments shall be granted for the purpose of submitting written arguments, unless the Court for the reasons to be recorded in writing considers it necessary to do so.
  • Rule 4 was substituted by Code of Civil Procedure (Amendment) Act, 2002.
  • In nutshell, Rule 4 states that the examination-in-chief of a witness shall be recorded on an affidavit. The Commissioner can conduct and record cross-examination and re-examination of a witness in the High Courts having original jurisdiction and in Courts subordinate to the High Court. Such evidence shall be recorded either by the Court or by the Commissioner appointed by it.
  • The Commissioner also possesses the power of recording the demeanor of a witness and any objection made in regard to such matter shall be decided by the Court at the time of arguments of the case.
  • A commissioner is under the obligation of submitting his report within six months from the date of the issue of the Commission.
  • The court may fix the amount to be paid as remuneration for the services of the Commissioner.

Judgment and Decree (Order XX)

  • Rule 1 was amended by the Code of Civil Procedure (Amendment) Act, 2002.
  • Sub-rule (1) of Rule 1 was substituted by the Code of Civil Procedure (Amendment) Act, 2002.
  • It states that 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 pleaders.
  • The proviso to the sub-rule states 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 to fixed shall be given to the parties or their pleaders.
  • In other words, there is a definite time frame for the pronouncement of the judgments after a case has been heard. The general rule is that a judgment is to be pronounced at once and where it is not practicable to do so, the Court shall make an endeavor to pronounce judgment within thirty days from the date on which the hearing of the case was concluded.
  • Where it is not practicable for the Court to pronounce judgment within thirty days because of exceptional and extraordinary circumstances of the case, the Court shall fix a day for the pronouncement of judgment which should not be beyond sixty days from the date on which the case was heard.

Execution of Decrees and Orders (Order XXI)

  • Rule 32 and Rule 92 were amended by the Code of Civil Procedure (Amendment) Act, 2002.
  • An Explanation was inserted under sub-rule (5) of Rule 32. It states that “For the removal of doubts, the expression “the act required to be done” covers both prohibitory as well as mandatory injunctions.
  • A controversy arose as to the meaning of the words “required to be done” in sub-rule (5) of Rule 32. Do these words covered the situation where a prohibitory injunction has been incorporated in the decree, or are they confined to cases where the decree is a mandatory one. Different High courts have expressed different views on the subject. The controversy has been resolved by the present explanation added which adopts a wider view.
  • In sub-rule (2) of Rule 92, the words “thirty days” was substituted by “sixty days”.
  • After the first proviso to sub-rule (2) of Rule 92, the following proviso was inserted :

Provided further that the deposit under this sub-rule may be made within sixty days in all such cases where the period of thirty days, within which the deposit had to be made, has not expired before the commencement of the Code of Civil Procedure (Amendment) Act, 2002.

  • The amendment in Rule 92 has been made on the recommendations of the Law Commission made in the 139th Report (Page No. 08) to bring harmony between sub-rule (2) of Rule 92 and Article 127 of The Indian Limitation Act, 1963. The period for making deposit under sub-rule (2) of Rule 92 before the present amendment was thirty days, while under Article 127 of the Limitation Act, 1963, the limitation period for making the application to set aside an execution sale (which has to be accompanied by the deposit in Court of requisite amount) is sixty days.

Constitutional Validity of Code Of Civil Procedure (Amendment) Act, 2002

  • In Salem Advocate Bar Association v. Union of India, the writ petition had been filed by Advocate T.Raja seeking to challenge the Amendments made to the Code of Civil Procedure, 1908 by Amendment Act, 2002.
  • A three-judge bench comprising the Chief Justice B.N.Kirpal, Justice Y.K. Sabharwal and Justice Arijit Pasayat held that “We do not find that the amended provisions are in any way ultra vires the Constitution’”.
  • The judges attention was drawn to the various provisions of the amended Sections and Orders of the Code of Civil Procedure (Amendment) Act, 2002.
  • It was observed that “In court’s opinion amendments are constitutionally valid and if any difficulties are still faced, these can be placed before the Committee. The Committee would consider the said difficulties and make important suggestions in its report.
  • The Bench said that keeping in mind the increasing number of litigation and the limited number of judges, the amendments are imperative in resolving the litigation at an early date.

Conclusion

  • The power of judicial discretion comes along with the action of arbitrariness”.
  • These judicial decisions result in the unnecessary delays. The Amendment Act of 2002 laid down several time limits that bounds the plaintiff as well as the defendant at each stage of the litigation. These limitations resulted in speeding up the litigation process.
  • The conceptualisation of the idea of evidence via affidavits as well as the introduction of the court-appointed commissioner also resulted achieving the objectivity of this Amendment Act, i.e., speedy and expeditious justice.
  • The lagging behind of the judicial system due to unnecessary adjournments now can be dealt adequately with the limit imposed and by the provision of imposing costs including punitive costs.
  • The failure on the part of courts for providing adequate and easily accessible to justice is one of the principal causes of widespread dissatisfaction with the administration of justice.
  • The concept of “access to justice’ has undergone significant transformation. The Code of Civil Procedure (Amendment) Act, 2002 aims to provide for speedy and effectual justice.

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