Impact  of  GST  on  Kerala  Revenue

(By Liju V. Stephen, Advocate, High Court of Kerala)

Whether it is a State or a Nation, Fiscal Policies do matter. Finance is an essential pre-requisite for a good Government. In a Federal structure where two sets of Governments have functions to discharge, it is essential for the effective working of each Government that it be empowered to raise financial resources of its own. This necessitates an apportionment of taxing power between the Centre and States. In a Federation, therefore along with division of function there is also a division of Taxing Powers between the Centre and the State Governments and it touches the very heart of modern Federalism and it affects the working of a Federal Polity. In a Federal Constitution transgression of power by a Legislature should be avoided.

The State Government should have its own source of money to finance its activities and for which State should have liberty to generate the Revenue from the respective domain allotted by the Indian Constitution. The specific bifurcation of the State and Union List is with a purposive Legislative intent that there is no overlapping of power by the State and Union and there should be no encroachment in the respective field allotted to the Governments as envisaged under Article 246 of the Indian Constitution.

Our Constitution by Entry 82,83and 84 in the Union List of the Seventh Schedule has allotted Income Tax, Customs Duties and Excise, among others as the source of generating revenue for the Union Government, and by Entry 52 and 54 in the State List in the Seventh Schedule for levying of entry tax and sales and purchase tax among others within the domain of the State Governments.

By the 122nd Constitution Amendment Bill 2014, the Indian Parliament has proposed to incorporate Article 246A, 269A, 279A and also to amend Article 286,366 and the Seventh Schedule in the Indian Constitution to introduce "The Goods and Services Tax" (GST) and thereby to subsume the Central and State Indirect Taxes.

Under the Constitutional 122nd Amendment, Article 246A (2) is being incorporated by which exclusive power to make laws with regard to indirect Tax on “Goods and Service” are proposed to be bestowed on the Parliament and the power of the State Government by Article 246A (1) is made subject to 246A(2). At present under Entry 54 of the State List in the Seventh schedule it is the right of the State to Levy and Collect Tax on any Goods other than News Paper subject to Entry 92A of Union List. But by the proposed 122nd Amendment Bill of 2014, the States would be empowered to levy and collect their own Tax only on “Petroleum products and Human Consumed Liquor”. Moreover Entry 52 on Entry Tax in the State List in the Seventh Schedule is also proposed to be omitted. Hence the right of the State Government over any other “Goods” is proposed to be taken away and moreover the incidence of taxation is presumed to be the supply point. Thus if a manufacturer supplies goods to a dealer in Kerala and the incidence of taxation is the supply point, the transfer being an Inter State transaction it is only the Central Government or the respective Industrial State that can impose the whole tax. Moreover if there is no corresponding Entry proposed by the Authority of Law the respective State is precluded by Article 265 to levy and collect their own tax.

The Revenue Receipt of the State Government comprises mainly of Tax Revenue, Non Tax Revenue and State's share from the central taxes and grants from the Union Government. The Tax Revenue of the Government is the major source of revenue, and in it the major chunk is from the Sales Tax. Hence States like Kerala which are not Industrial States but consumer States would be terribly affected by the implementation of GST. Thus by the amendment being brought to Entry 54 and the omission of Entry 52; State Governments would have to mainly depend on the apportionment to be made by the Union Government for its revenue. It is evident that the Parliament has visualized such a scenario by the proposed implementation of GST, hence by Clause 19 of the 122nd Amendment Bill it is proposed to compensate the States for the Revenue loss caused to them up to a period of 5 years.

The question to be considered is what after the said 5 year support period after the implementation of GST in the State of Kerala. The State of Kerala is with the highest per Capita debt ratio in the country and with a soaring public debt of Rupees 87,063/- crores.

The proposed amendment to the Seventh Schedule limits the States Tax field to petroleum products and human consumed Liquor. Presently out of the Tax Revenue Receipt of State of Kerala the sales tax on human consumed liquor contributes 22%. But with the State's policy to ban liquor in a phased manner in the State keeping in mind of the avowed Constitutional Directive Principle under Article 47 and also considering the social impact of liquor in the State it is justifiable for the State to go on with the policy of ban on liquor. Resultantly the State of Kerala cannot expect or plan its future from the Revenue Receipt of Tax on Human consumed Liquor. And the other tax field proposed to the State is the tax on petroleum products, but considering the political impact on an unjustifiable hike in price from that of the neighboring States will prompt the State to limit the tax rate on petroleum products. Hence the two commodities in which State can levy its own tax may not be of much relevance or would not support the future Revenue structure for the State of Kerala.

The advantage claimed by the Union Government to implement the GST over the State Value Added Tax regime is that the consumers would get a reduced tax burden. But at the same time the Union Government should also consider and keep in mind the difficulties that are to be faced by the State Governments like Kerala, that has to perform their Governmental duties and also to carryout welfare legislative schemes. Hence unless the State like Kerala makes appropriate demand for a better share in the apportionment of Revenue from the Central Government on a progressive basis the State’s Revenue structure would be terribly affected and would be putting the people of the State at the mercy of the Union Government. And the Union Government should ensure that States like Kerala receives their share of GST proportional to the turnover of goods consumed by the State. This will ensure increase in revenue in proportion to the progressive consumption of goods in the course of time.

Order 18 Rule 4, C.P.C. -- Affidavit of Evidence -- 

Some Salient Points to be Noted in Drafting the Examination-in-Chief  by

Affidavit and the Legal effect of Introducing Certain Matters in such effect

-- Powers  of  Court

(By N. Subramaniam, Advocate, High Court of Kerala, Ernakulam)

1. In the Trial Courts examination-in-chief of parties is done by affidavit under Rule 4 of Order 18. Rule 4 was substituted by Act 46 of 197 (Section 27) and again by Act 22 of 2002 (Section 12) with effect from 1.7.2002.

2. Invariably, now-a-days in majority of chief affidavits, some matters which are of irrelevant evidence; irrelevant to the issues in question, some evidence which are beyond the scope of pleadings, some evidence for which there are no pleadings and some evidence which are not necessary to decide to issue involved in the dispute, are also included; ignoring the legal concept that only relevant matters touching the pleadings and issues and pertaining the relevant and admissible documents alone has to put in examination-in-chief.

3. A commissioner is appointed for examination of parties and witnesses, who have filed affidavit evidence. Some of the commissioners taken down the depositions of the parties and witnesses, as they are being deposed by them. Some of the Commissioners may not note objection raised by the opposite side.

4. It is noticed by the Court in large number of matters that, in view of the Court Commissioner having no power to decide any objection about the irrelevancy of the evidence, large number of irrelevant questions on inadmissible documents and irrelevant issues are asked to the witness. The Court Commissioner simpliciter, records all the objections raised by the parties through advocate and keeps on recording the evidence whether it is relevant or irrelevant. This process of recording evidence, in the absence of the Court deciding the issue of relevancy of the evidence in examination-in-chief and more particularly when deposition in examination-in-chief is ex facie irrelevant, beyond the pleadings and beyond the powers of Court to adjudicate upon, cross examination becomes very lengthy on the irrelevant issues causing tremendous loss of time and money to the litigants. It becomes very difficult for the Court also to segregate the irrelevant part of evidence or to segregate examination-in-chief and cross - examination on the irrelevant issues or which are beyond the pleadings or issues, the evidence being common. A party who does not choose to cross-examine the witness on the deposition made in the affidavit, always has an apprehension of being faced with an argument of waiver and/or evidence having remained uncontroverted.

5. In cases wherein the chief affidavit evidence, which are irrelevant, unnecessary matters, and questions which are not based on any pleadings etc. it has been laid down that such evidence is to be ignored. Opposite side need not cross examine such witness in respect of ignored parts.

6. Court can also exclude inadmissible evidence whether or not objected to by a party. The above legal aspect has been pointed out by Bombay High Court in AIR 2015 (NOC - Notes on Cases) Case No. 766 (Mrs. MahabanooBavroz Kotwal v. Piloo Fair Bomanji) decided on 10.6.2014. Full text of judgment is reported in 2015(3) ABR 151.

7. In the decision reported in 17 (1980) DLT 225 (Amarjit Kaur v. Kishan Chand) decided on 14.11.1979, it has been held “an erroneous omission to object to evidence, not admissible on relevant under the Evidence Act, does not make it admissible. It is the duty of Court to exclude all irrelevant or inadmissible by the parties. (Para 19).

AIR 1936 Lahore 114 (Nanak v. Mian).

AIR 1929 Lahore 583 (Lachhu v. Mela).

(2007) 10 SCC 21 (Kishore Kirtilal Mehta v. Kiritilal Mehta Medical Trust).

8. The above legal principles, if followed in drafting the affidavit for examination -in- chief, it can avoid wastage of time for all.

9. It is worthy to note and remember the following rulings rendered by courts in this regard.

a) 2013(6) Maharashtra Law Journal 802 (Bom. H.C.) (Rajendra Singh Chharasal Singh (deceased) v. Jitendra Singh Rajendra Sing Kushwaha) (para 13) which rules that part of evidence which is irrelevant to the issues framed by Court is to be ignored.

b) 2010(6) Bom. C.R. 379 (Bom. H.C) (Harakchand Gulabchand Dhoka v. Kasinath Narsingh Marathe).

c)  2007 (3) KLT 878 : 2007(3) KLJ 174 : ILR 2007 Kerala 293 (T.K. Gangan Menon v. Bright Credit and Real Estate).

Extracted para. 32 of judgment in Amir Trading Corporation case which runs as follows.

"32 The matter may be considered from another angle. Presence of a party during examination-in-chief is not imperative. If any objection is taken to any statement made in the affidavit, as for example, that a statement has been made beyond the pleadings, such as objection can always be taken before the Court in writing and in any event, the attention of the witness can always be drawn while cross examining him. The defendant would not be prejudiced in any manner whatsoever the examination-in-chief is taken on an affidavit and in the event, he desires to cross examine the said witness he would be permitted to do so in the open Court. There may be cases where a party may not feel the necessity of cross examining a witness, examined on behalf of the other side. The time of the Court would not be wasted in examining such witness in open Court.'

10. There is yet another aspect involved. If the party is giving evidence in chief, three contingencies can happen.

i. The opposite party may object to some questions asked in chief on some legal or technical ground and the court in order to give continuity to the examination may close the evidence.

ii. In some case, as in the case where evidence in chief is given and the opposite party is to be cross examined before the commissioner, and if objection is raised, he will note the objections.

iii. In some cases opposite party may not raise any objections.

11. In all these cases it is the duty of the Court to decide the objections raised and pass a judgment. It has been held that a judgment passed without deciding the objections is not legal or proper  (AIR 1978 SC 1393).

12. Even if the objection in writing is not filed, while cross examining the witness, the attention of the witness can be drawn to the objectionable portion of the affidavit. This is the second mode of raising an objection to any part of the affidavit.

13. The very object of amending Rule 4 of Order XVIII of the said Code is to ensure that there is a speedy trial. The object is to ensure that the time of the Court is not wasted in recording the lengthy examination-in-chief. Consistent with the said object, it is obvious that the objection raised to any part of the affidavit in lieu of examination-in-chief will have to be considered at the time of final hearing of the suit or proceeding. The party raising objection cannot insist upon the Court considering the said objection before cross examination of the witness starts. In a given case, rival party may not raise objection in writing. As stated earlier, the party can cross examine the witness by inviting attention of the witness to the statements which according to the rival party are objectionable. Even in such a case, at the time of final hearing, objection will have to be considered by the Court though there may not be any specific objection in writing. It is always the duty of the Court to decide as to how much evidentiary value should be given to a particular piece of evidence. If a portion of the affidavit is found to be not relevant or if it is found that the portion has no foundation in the pleadings, the Court can always discard itwhile deciding the suit.

14. Objection of party about alleged irrelevancy of the portion of evidence can be kept in abeyance till the matter is finally heard.

Bipin Shantilal Panchal v. State of Gujarat (2001 (1) KLT SN 86 (C.No.106) SC = AIR 2001 SC 1158) (paras 12 to 14).

15.  The Bombay High Court in an unreported judgment (W.P. No. 9033 of 2012 dated 5.11.2012) has ruled that the relevancy of the evidence and the weightage given to such evidence can be considered by Court at the time of final adjudication.

16. Once an affidavit in lieu of examination -in- chief is filed, it partakes character of examination-in-chief. There is no provision in Code to enable Court to order its deletion. In case statement is irrelevant or beyond scope of pleadings an objection can always be taken in writing and Court can discard such portion while finally deciding suit. Harakchand Dhoka v. Kasinath Narsingh Marathe (2004(3) Bom. C.R. 583 SC) (para 5)

17. In the Full Bench decision rendered in Hemendra Rasiklal Ghia v. Subodh Mody (2008) 6 Bom. C.R. 519 F.B.), has decided the issue at which stage, the objection to the admissibility and/or proof of document which may be produced or tendered should be raised, considered and decided by the Court and at which stage, an objection to the admissibility or relevancy of evidence contained in the affidavit filed under Order XVIII, Rule 4 of Civil Procedure Code should be considered and decided by the Court. It is held that if any objection is to be taken to any statement made in the affidavit, such an objection should always be taken before the Court in writing and an attention of the witness should always be drawn while cross examining him. It is held that a determination or decision thereon can be deferred to a later stage of a suit, however, final decision must be recorded before the court proceeds to judgment. It is also held that irrelevant evidence brought on record can always be excluded as the question of admissibility of evidence is a question of law. It is held that if the evidence is irrelevant, consent of parties cannot make it relevant. Convenient mode to objection in the first instance, is reserving question of law as to its admissibility until final judgment in the case. The objection to the admissibility or relevancy of the evidence contained in the affidavit can be admitted at any stage reserving its resolution until final judgment.

18. Division Bench of Bombay High Court in the decision reported in 2013 (1) Bom. C.R. 599(Ayushakti Ayurved Pvt. Ltd. v. Hindustan Uniliver) speaking through Hon. Justice Dr. D.Y. Chandrachud has held that “A commissioner has no power to decide the objection as to admissibility and has to merely record the objection. It is held that judicial experience of proceedings before Commissioners appointed by the trial Judges of this Court on the Original Side shows only results in enlarging the scope of cross examination before the Commissioner. Commissioners charge fees for every session of recording evidence or part thereof. It is held that the ambit of the cross examination can be restricted by dealing with the question of admissibility of documents before recording of evidence before the Commissioner begins. Division Bench also considered the fact that if a decision on admissibility is deferred to final hearing of the suit and evidence is recorded without reference to a document of which admissibility is in dispute, segregation of that part of the evidence which relates to the document in question becomes a serious bone of contention at the final hearing of the suit. Cross examinations are rarely compartmentalized. Segregation of the evidence may not in every case were not to cross examine a witness with reference to a document in relation to which an objection as to admissibility has been raised, it would run the risk of not having conducted the cross examination at all with reference to the document, should it eventually be held to be admissible in evidence. In other words if a document is produced and referred to in chief examination and if the opposite party is disputing the correctness of that document, it is the duty of opposite party to cross examine the deponent in chief examination regarding the disputed document.”

19. The learned Judge has also added the following. “It is noticed by the Court in large number of matters that in view of the Court Commissioner having no power to decide any objection about the irrelevancy of the evidence, large number of irrelevant questions on inadmissible documents and irrelevant issues are asked to the witness. The Court Commissioner simpliciter records all the objections raised by the parties through advocate and keeps on recording the evidence whether it is relevant or irrelevant. This process of recording evidence in the absence of the Court deciding the issue of relevancy of the evidence in examination-in-chief and more particularly when deposition in examination-in-chief is ex facie irrelevant, beyond the pleadings and beyond the powers of Court to adjudicate upon, cross examination becomes very lengthy on the irrelevant issues causing tremendous loss of time and money to the litigants. It becomes very difficult for the Court also to segregate the irrelevant part of evidence or to segregate examination-in-chief and cross - examination on the irrelevant issues or which are beyond the pleadings or issues, the evidence being common. A party who does not choose to cross-examine the witness on the deposition made in the affidavit, always has an apprehension of being faced with an argument of waiver and/or evidence having remained uncontroverted.”

20. Option is given to the party to file Chief Affidavit or to be examined in Court. (Govindji Padamshi v. Bhawanji Hansraj - 2006 (3) KLT 1009 = 2006 (3) KLJ 210 = ILR 2006 (3) Ker. 800).

21.  Karnataka High Court in the decision reported in 2005 (3) KLT SN 11 has ruled that Order 18 Rule 1 is mandatory (Drakshayi v. Gagavva).

This article is intended to enlighten the budding Advocates regarding drafting of evidence in examination in chief as ordained in Order 18 Rule 4.

Whether Document Executed before Filing of a Suit but Registered after Registration of the Suit in Court will be Affected by Principle of Lis Pendensu/S.52 of T.P. Act.

(By N. Subramaniam, Advocate, High Court of Kerala, Ernakulam)

Transfer of Property Act. S.52. Lis pendens. Document executed before filing of a suit but registered after registration of the suit in the court.

Question is whether execution of such a document is affected by principle of lis pendens?

Ans. Sale deed is not affected by lis pendens since registration of a document relates back to the date of the document.

(1921) 41 MLJ 399 (D.B.) (Venkitarama Reddy v. Rangiah Chetty) Judges Sadasiva Iyer andSpencer JJ.

(1925) 1 MLJ 496 (Akki Guru Basappa v. Veluvathi Setra Shaulappa), 1991 (1) KLT SN 2 (C.No.2) SC = (1991) 2 MLJ 52 (Hamda Ammal v. Avadiappa Pather), 2011(1) Law Weekly 949 (Perumal v. V. Balasubramanian), (2006) 10 SCC 96 (A Jitendra Nath v. Jubilee Hills Co-operative House Building Society), (2000) 9 SCC 214 = (2000) 3 MLJ 199 (Boramma v. Krishna Gouda), AIR 2010 SC 2994 = (2010) 8 SCC 612 = (2010) 8 MLJ 1098 (Ittanam & Ors. v. Cherichi @ Padmini).

The above decisions are followed in (2015) 5 MLJ 529 (Pandia Nadar v. Sivakama Sundari).

When  there  is  Already  an  Agreement  of  Sale,  Whether  the Execution  of  Another  Sale  Agreement  and  Sale  Deed  Thereto Will  Bind  the  Earlier  Agreement  Holder

(By N. Subramaniam, Advocate,  High Court of Kerala, Ernakulam)

Specific Relief Act.

Question : When there is already an agreement of sale, the execution of another sale agreement and sale deed, will it bind the plaintiff, the earlier agreement holder?

Ans. No. It will not bind the earlier agreement holder.

1995 (2) CTC 313 (Valiya Perumal Nadar v. Santhana, Chettiar), AIR 1999 SC 2213 = (1999) 3 SCC 722 (Kondiba Dagudu Kadam v. Savithribai Sopan Gujjar), AIR 2008 SC 1541 = (2008) 4 SCC 530 = (2008) 2 MLJ 1115 (Thiruvenkidam Pillai v. Navinit Animal), AIR 2007 SC 1332 = (2006) 13 SCC 608 = (2007) 3 MLJ 377 (Sanjay Varma v. Manikroy), (2010) 13 SCC 128 = (2011) 1 MLJ 723 (Harnarayan (Dead) by LRs v. Mamchand (Dead) by LRs), 2001(1) CTC 5 (Guruswamy Nadar v. P. Laxmi Ammal (Dead) and 13 others), 2008 (3) KLT Suppl. 1221 (SC) = AIR 2008 SC 2025 = (2008) 4 SCC 219 (Chokalinga Swamy (idol) through its hereditary Trustee R.N. Pillai v. Jnanaprakasam (Dead) by LRs.), 2008 (2) KLT Suppl. 13 (SC) = AIR 2008 SC 2560 = (2008) 5 SCC 976 (Guruswamy Nadar. v. P. Laxmi Ammal (dead) through LRs).

Amendment of Civil Procedure Code - To Pace with

Time

(By V.K. Babu Prakash, Judicial I Class Magistrate, Karunagappally)

The Code of Civil Procedure is going to have a major change. The amendment Bill No. L of 1997 which was introduced on the 14th August 1997 in the Upper House of Indian Parliament (Rajya Sabha) has passed it on. There after it went up in the floor of the Lower House (Lok Sabha) which has also passed it on 29.11.1998. Thus the amendment Bill met the touch stone of the warp and woof of legislation. The name of the Bill is called the Code of Civil Procedure (Amendment) Bill 1997. The law relating to the procedure in Civil Suits and proceedings in India (Except in the State of Jammu and Kashmir, Nagaland and Tribal areas of Assam and certain other areas) is contained in the Code of Civil Procedure 1908. The Code has been amended from time to time and the major change swept into it was by the Amendment Act 104 of 1976. The Code is mainly divided into two parts namely sections and orders while the main principles are contained in the sections, the detailed procedures with regard to the matters dealt with by the sections are specified in the orders. Under S.122 High Courts have powers to amend by rules the procedure laid down in the orders.

In the Law Ministers Conference held in New Delhi on 30.6.1997 and 1.7.1997 resolved to introduce the amendment proposal recommended by the 129th Law Commission report headed by Justice Malimath. Thus the Bill was drafted and after necessary changes it was introduced in the Rajya Sabha. After passing the fire test in both the Houses of parliament, the President of India affixed his seal on it. Yet the amended Act awaits to have a formal declaration of its commencement date.

The major proposals of amendment can be looked at by a birds' view. It can be catalogued as follows:-

Clause2:- In S. 26 of the Code, a suit is instituted by presentation of a plaint or in such other manner as may be prescribed by rules made by High Court. Since these rules are different with different High Courts, the requirements for institution of suit are not uniform. The rules made by some High Courts require plaint to be supported by an affidavit stating the genuineness of the claim of the plaintiff and of the documents on which he relies upon while no such affidavit is required under the rules made by some High Courts. With a view to bring uniformity and lay down simple procedure to complete the pleadings, CI.2 amends S.26 of the Code and provides that facts must be proved by affidavit in every plaint.

Clause 3:- Amends S.27 of the Code with a view to lay down a fixed time frame to send summons to defendants. It seeks to provide 30 days from the institution of suit within which summons should be sent to defendants.

Clause 4:- In CI.(c) of S.32 of the Code, the Court is empowered to impose a fine not exceeding five hundred rupees for the purpose of compelling the attendance of any person in the court. CI.4 substitutes "five thousand rupees" in place of "five hundred rupees" in the said section for the reason of decrease in the money value since the time provision was made.

Clause 5:- S.58 of the Code provides for the detention and release of a person from civil prison in execution of a decree. Since the time provisions of S.58 were made, the value of money has decreased considerably. In this view, CI.5 seeks to amend S.58 and it substitutes for the words "one thousand rupees" and "five hundred rupees" the words "five thousand rupees" and "two thousand rupees" respectively.

Clause 6:- S.60 of the code provides for attachment and sale of properties in execution of a decree. CI.6 seeks to amend S.60 by substituting "one thousand rupees" in place of "four hundred rupees" for the reason of decrease in the money value since the time provisions were made.

Clause 7:- Provides for the settlement of disputes outside the court. The provisions of CI.7 are based on the recommendations made by Law Commission of India and Malimath Committee. It was suggested by Law Commission of India that the Court may require attendance of any party to the suit or proceedings to appear in person with a view to arriving at an amicable settlement of dispute between the parties and make an attempt to settle the dispute between the parties amicably. Malimath Committee recommended to make it obligatory for the court to refer the dispute, after issues are framed, for settlement either by way of arbitration, conciliation, mediation, judicial settlement or through Lok Adalat. It is only when the parties fail to get their disputes settled through any of the alternate dispute resolution method that the suit could proceed further. In view of the above, CI.7 seeks to insert a new S.89 in the Code in order to provide for alternate dispute resolution.

Clause 8:- In S.95 of Code, the Court may award compensation not exceeding one thousand rupees in case it appears to the court that an arrest, attachment or injunction has been effected and such arrest, attachment or injunction was applied for insufficient ground or that there was no reasonable ground for instituting the suit. Sub-cl.(2) of the said section bars a suit for compensation in respect of such arrest, attachment or injunction if an order has been passed by the court on an application for compensation under sub-s.(1). In this circumstance CI.8 seeks to substitute "fifty thousand rupees" in place of "one thousand rupees".

Clause 9:- S.96 of the Code provides for an appeal from original decree. Since , the time provisions were made the value of money has considerably decreased and the pecuniary limits of "three thousand rupees" require to be revised. CI.9 therefore seeks to substitute. "Twenty-five thousand rupees" in place of "three thousand rupees" in S.96.

Clause 10:- Justice Malimath Committee examined the issue of further appeal against the judgment of Single Judge exercising even a first appellate jurisdiction. The Committee recommended for suitable amendments to S.100A of the Code with a view to provide that further appeal in this regard shall not lie. The Committee also recommended for suitable enactment by Parliament for abolition of appeal to a Division Bench against the decision and order rendered by a Single Judge of the High Court in a proceeding under Arts.226 or 227 of the Constitution. CI.10 seeks to substitute a new S.100A with a view to provide for no further appeal in the above cases.

Clause 11:- S.102 of the Code bars record appeal when the amount or value of the subject matter of the suit does not exceed one thousand rupees. Justice Malimath Committee recommended the amendments in S.102 in order to substitute a limit of twenty-five thousand rupees in place of one thousand rupees for the reasons of decrease in the value of money since the time provisions were made CI.11 seeks to bring in a limit of twenty-five thousand rupees to bar record appeal.

Clause 12:- S.115 of the Code provides for revision by the High Court of an order or decision of any court subordinate to such High Court. The Malimath Committee noticed that when the records of the lower courts are sent to the High Court in the revisional proceedings, it is imperative that records of proceedings pending in the subordinate court should not be sent unless High Court so desires and revision should not operate as stay of proceedings before the trial court. The Committee while agreeing in principle that scope of interference against interlocutory orders should be restricted, felt that the object can-be achieved more effectively without demanding the High Court of the power of revision. CI.12 seeks to achieve the above object by suitable amendments to S.115.

Clause 13:- S.148 of the Code provides for enlargement of time by the court. Where any period is fixed or granted by the court for any act prescribed or allowed by the Code, court has discretion to enlarge such period. CI.13 seeks to put a limit on enlargement of such period by inserting the words "not exceeding thirty days in total" in S.148 with a view to minimise the procedural delay at the instance of either party to a suit.

Clause 14:- O.IV if the code provides for the institution of suits. Sub-r.(1) of R.1 of O.IV states that every suit shall be instituted by presenting a plaint to the court. Since a copy of plaint is sent before court and a duplicate copy of plaint is needed for records, suitable amendments are made in this regard by CI.14 which requires institution of a suit by presenting plaint in duplicate to the court. Sub-r.(2) of R.1 of the said order requires compliance of certain formalities by the registry of court. With a view to dispel the doubts when a suit is regarded to have been instituted, CI.14 inserts a new sub-r.(3) to provide that the plaint shall not be deemed to be duly instituted unless it complies with the requirements specified in sub-rr.(1) and (2).

Clause 15:- O.V of the Code provides for issue and service of summons. The Malimath Committee looked into the problem of arrears of cases in the courts and recommended amendments to the Code with a view to lay down a fixed time frame within which pleadings are to be completed. CI.15 seeks to substitute sub-r.(1) of R.1 of O.V to provide for filing written statements within thirty day from the day of institution of the suit except in few situations. CI.15 amends Rr.2, 6 and 7 to ensure that copy of plaint along with all documents on which plaintiff relies upon are delivered with summons to the defendant. This clause substitutes R.9 to provide for delivery of summons by speed post, courier service, fax message or by electronic mail, service as the High Court may prescribe by rules. It makes the Code up-to-date with the changing needs of the time.

Clause 16:- O.VI of the Code provides for pleadings generally. CI.16 seeks to provide that person verifying the pleading shall furnish an affidavit in support of the pleadings. This clause omits Rr.5, 17 and 18 of O.VI to bring in consistency with new changes in the Code.

Clause 17:- In O.VII of the Code, R.14 provides for production of documents on which plaintiff sues. CI.17 seeks to substitute R.14 to provide where a plaintiff sues upon a document in his possession, he shall enter such documents in a list and shall produce it in court when plaint is presented by him and shall deliver document and a copy thereof to be filed with the plaint. The new rule further provides in case a document or copy thereof is not filed with the plaint, it shall not be allowed to be received in evidence on behalf of plaintiff at the hearing of the suit.

Clause 18:- O.VIII of the Code provides for written statement and set-off. CI.18 seeks to substitute R.1 of O.VIII to provide a fixed time frame within which pleadings are to be completed. The new provisions required the defendant to present a written statement within thirty days from the date of service of summons on the defendant. CI.18 inserts R.1A to provide it a duty of defendant to produce documents upon which relief is claimed or relied upon by him. R.1A requires the defendant to produce documents in his possession in the court and deliver the document and a copy thereof when the written statement is presented by him. R.1A further requires in case a document or copy thereof is not filed with the written statement. It shall not be allowed to be received in evidence on behalf of defendant of the hearing of the suit.

Clause 19:- R.2 of O.IX is being substituted so as to provide that where there is default on the part of plaintiff to deliver summons to the defendant, the suit shall be dismissed by the court. This is in addition to non-payment of cost by the plaintiff as a ground of dismissal of suit.

It is proposed by amending R.5 of O.IX so as to reduce the period from one month to seven days within which the plaintiff is required to apply for fresh summons where summons earlier issued remain unserved.

Clause 20:- O.X is proposed to be amended by inserting Rr.1A, IB and 1C in the said order. This amendment is consequential to the insertion of new S.89 vide CI.7 of the Bill.

Clause 21:- Rr.2 and 15 of O.XI are proposed to be amended by fixing time limit to decide an application for leave to deliver interrogatories and to provide that an application for inspection of documents by the parties can be made only before the settlement of issues.

Clause 22:- R.2 of O.XII is proposed to be amended for reducing the time from fifteen days to seven days which notice to admit a document may be given by any party to the suit.

Further the second proviso to R.4 of the said order is being omitted so as to curtail the discretion of the court in the matter of allowing any party to amend or withdraw admission made by him.

Clause 23:- Rr.1 and 2 of O.XIII are proposed to be substituted so as to provide that the original of documents of which copies have been filed with the plaint and written statement shall be submitted before the settlement of issues is made by the court.

It is also proposed to omit R.5 so that issues are framed within time and no application for amendments are striking out the issue is entertained by the court.

Clause 25:- O.XVI is proposed to be amended so as to fix a time limit within which can application may be made for summoning of witness. Further it is proposed to provide that a party applying for summons shall pay fee towards calling the summons within a period not later than seven days from the date of making application.

Clause 26:- O.XVII lays down the procedure for granting adjournments. The Committee on Subordinate Legislation (Eleventh Lok Sabha) recommended that it should be made obligatory in the judgment to record reasons for adjournment of cases as well as award of actual and not merely notional cost against the party seeking adjournment in favour of the opposite party. It is proposed to make it obligatory for the Judges to record the reasons in writing where the court grants adjournment and to award the actual cost to the opposite party. Further limit up to three adjournments has also been fixed in a case.

Clause 27:- O.XVIII provides for manner of recording the evidence. It is proposed to confer the power of recording of evidence by the commissioner to be appointed by the court.

Clause 28:- O.XX makes it compulsory for a party filing appeal to annex the certified copy of the decree to the Memorandum of Appeal. Justice Malimath Committee has pointed out that it takes a long time for obtaining certified copy of the decree and thus filing of appeal takes a long time. It is proposed to dispense with annexing certified copy of the decree along with Memorandum of Appeal and it is also proposed that the whole judgment shall be made available to the parties immediately after the judgment pronounced.

Clause 29:- O.XXVI enables the court to issue commission only in cases where witness resides outside the local limits of the jurisdiction of the court. It is proposed to amend O.XXVI by inserting a new R.4A so as to enable the court to issue commission in any case where the interest of justice so demands.

Clause 30:- It has been observed that after obtaining temporary injunction the party in whose favour injunction has been granted caused delay in disposal of cases on flimsy and unreasonable grounds. To curb this practice it is proposed to amend O.XXXIX so as to provide that the party who applies for obtaining injunction shall also furnish security so that it may not adopt delaying tactics during the trial of the case.

Clause 31:- Seeks to interest a new O.XXXIXA. Under the existing provisions of the Code of Civil Procedure, 1908 no application for interim injunction can be moved unless the suit is filed first in the court having competent jurisdiction. In matters relating to property disputes particularly it may help a person if such a person can make an application to be court of competent jurisdiction for appointment of a commission to ascertain the factual status of the property so that at the time of filing of the regular suit the report of the Commissioner is available relating to the factual status of the property.

Clause 32:- Proposes to amend O.XLI of the First Schedule so as to provide for filing of appeal on the basis of the copy of the judgment, to avoid delay as obtaining copy of decree takes considerable time. Further to avoid delay it is proposed that an appeal may be filed in the same court which passed the judgment and that court shall direct the parties to appear before appellate court.