The Code of Civil Procedure, 1908

Its completeness and need for amendment^_*

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

Indian legal system is the product of history. Rooted in our soil, it is nurtured and nourished by our culture, languages and traditions, fostered and sharpened by the genius, the quest for social justice, and above all reinforced by the legacy. Our system is never a replica of the English Common Law. But it is inspired, strengthened, guided and enriched by the basic concepts of justice, equity and good conscience which are indeed the hallmark of Common Law.  

In M.C Setalvad’s words, “…….  the Common Law of England with its statutory modifications and the doctrines of the English Courts of equity has deeply coloured and influenced the laws and the system of judicial administration of a whole sub-continent inhabited by nearly four hundred million people. The law and the jurisprudence of this vast community and its pattern of judicial administration are in many matters different from those of England in which they had their roots and from which they were nurtured. Yet they bear the unmistakable impress of their origin” (Byram Pestonji Gariwala v. Union Bank of India (AIR 1991 SC 2234).).

Rights and obligations of the members of a civilized society are meaningless unless determined and enforced. Law ably classifies itself into two; substantive law and adjective or procedural law. Substantive law determines the rights and liabilities of the parties, confers legal status, imposes and defines the nature and extent of legal duties. Procedural law on the other hand, prescribes the practice, procedure and machinery for the enforcement or recognition of the legal rights and liabilities by a court of law or other recognised/constituted Tribunal.  Procedural law always remained as subservient to substantive law. Nothing can be given by a procedural law which is not sought to be given by a substantive law and nothing can be taken away by a procedural law, which is given by a substantive law (Sayad Mohamad Baker El Edroos v. Abdul Habib Hassan Arab(1998) 4 SCC 343 at 349.).

Procedural law is aimed to shorten litigation and grant expedient justice, its object is to grant final justice and not to weave spider web to entangle for immemorial time, the parties into litigation for occasioning proverbial delays. Procedural law is not a tool to refuse a just relief for a mere infraction of a rule of procedure which in no way cause prejudice to the complaining party. It cannot be allowed to occasion injustice or go against good conscience. Legal niceties cannot be permitted to hang the sword of uncertainty on the litigant’s rights(1993 Punj LJ 745(DB)).

Code of Civil Procedure, is an example of adjective law which forms an indispensable part of the legal mechanism. It operates as an essential tool for enforcing legal rights and claims, for redressing or preventing legal wrongs, for asserting legal defenses and also for the other ancillary purposes, with its inherent complexity and occasional technicalities. History of liberty has largely been the history of observance of procedural safe guards (Benjamin Mc Nbb v. United States of America  (1942) 318 US 332 : 87 Law Ed 819.).

Code of Civil Procedure represents the orderly, regular and public functioning of the legal mechanism, and also the operation of due process of law. It sustains and secures every person, his life, liberty, reputation, livelihood and property, and is keen to ensure that he does not suffer any deprivation of his rights, except in the due process of law.

In exercise of it’s remedial, protective, complimentary and practical approach, the Code deals with litigation in accordance with the well defined practice, procedure, modes and methods for the conduct of judicial process fairly to achieve its defined goal, ultimate justice.

Meaning and purport

“Civil Procedure” means, body of law concerned with the methods, procedures and practices used in civil litigation. – Black’s Law Dictionary, 6th Edn. 

The words, ‘civil’ and ‘procedure’ are words of classification. They define the residuary nature of civil procedure by demarcating it from other parts of law, which together with civil procedure, go to form the legal system of India. The word, ‘civil law’ would denote the whole law of the State governing the relations among its citizens inter se or between the State and its subjects. ‘Law of procedure’ may thus be defined as that branch of law which governs the process of litigation.

Century old CPC

The Code of Civil Procedure was first codified in 1859.  Till then, the law in this important branch was almost chaotic. There was no uniform enacted law applicable to the whole of India. Presidency and Provincial Courts were governed by different Regulations. An earnest attempt to consolidate the laws relating to civil procedure resulted in the legislation of the ‘Code of 1859’.  The subsequent Code of 1908 aimed at consolidating and amending the laws relating to the procedure of the Courts of Civil judicature in India. Since then it has been amended from time to time without affecting the basic features of the Code. On the basis of the 14th Report of the Law Commission, in 1976 some major amendments were made. Subsequently the Code underwent two major amendments, Act No.46 of 1999 and Act 22 of 2002 on the basis of the Malimath Committee recommendations. The objects behind such amendments were to ensure more expeditious disposal of civil suits and proceedings consistent with the accepted principles of natural justice and to simplify the procedure to a certain extent.

Objective of the Code, 1908

The Code of 1908 is aimed at consolidating and amending the laws relating to the procedures of the courts of civil judicature. To consolidate means, to collate all the laws relating to a particular subject under one Code and make it up-to-date, so that it can be applied to the circumstances.

The Code, being a consolidated one, incorporating all the laws relating to the procedure to be adopted by the civil courts, its provisions are to be construed as exhaustive with the matters dealt within it. But the reasonable view seems to be that since the legislature is incapable of contemplating all the possible circumstances that may arise in future and to provide a suitable procedure for them, in the absence of specific provisions to deal with such situations, courts must be guided by the principles of justice, equity and good conscience (Ravalu Subba Rao v. Commissioner of Income Tax, Madras(1956) SCR 577:  Manohar Lal Chopra v. Hiralal (AIR 1962 SC 527).). The Code reserves the court’s power to make such orders as may be necessary to do justice or to prevent the abuse of the process of court.

Applicability

The Code of Civil Procedure, 1908 applies to all proceedings in a Court of civil judicature. However, it does not affect any special or local law or any special form of procedure prescribed by or under any other law for the time being in force (Savitri Takurain v. Savi (AIR 1921 PC 80).). Code applies to the proceedings in the testamentary and intestate jurisdiction of the High Courts and Moffusil courts, except as otherwise provided by the Indian Succession Act, proceedings under the Hindu Marriage Act, subject further to the other provisions of that Act and to such Rules as may be framed by the High Courts, and the proceedings before the revenue courts.  Thus ‘Code’ is concerned almost wholly from the very institution of a suit in a civil court, the progress of its trial, ending with orders or a decree and its further stages, such as appeal, reference, review, revision till the execution of such decree/order and recording the satisfaction.

Scheme of the Code

Civil Procedure is both a science and an art governing resolution of civil disputes in the hierarchy of proceedings from the Trial Court up to the highest courts of appeal. A clear grasp and appreciation of the various contours of these procedural provisions enables both bench and the bar to get such proceedings decided effectively, appropriately and at the earliest for the benefit of the litigant public. Any entanglement in the processual provisions would lead to protracted litigation, pernicious effects and anguish.

The Code of Civil Procedure, 1908 is effectively divided into two parts, (a) body containing the principles spread in 158 Sections and (b) First Schedule containing 51 Orders along with the Rules framed there under. The Sections lay down the general principles of jurisdiction. The Orders and the Rules framed there under prescribe the method, manner and mode in which such jurisdiction be exercised. Both the sections and the rules must be read together, construed harmoniously and give an interpretation towards the achievement of ultimate objective of the ‘Code’ to do justice. Whenever there is an inconsistency felt in between the two, section supercedes and prevails. Sections can be amended only by the legislature, whereas the High Courts are bestowed with the power to frame and amend the Rules as it is so necessitated. The amendments made by the High Courts to the Rules become part of the Code for all purposes, as if enacted in the Code (Halsbury’s Laws of India, 7th Volume, Civil Procedure.). 

Civil proceedings in India do follow adversarial system. The modus of such procedure is guided by the principles of natural justice, and

(i)     a person should know the nature of the case set forth against him, before  any action involving civil consequence is taken against him.

(ii)    he should have a right to be heard, and

(iii)   the court should act in good faith, without bias or interests.

Keeping these guiding principles in mind, the legislators brought the Code of Civil Procedure, a self working, sufficient and time tested mechanism to secure the ends of justice. The whole procedure, from institution of suit till the satisfaction of the decree/order is provided in line and length but with precision. The whole procedure governing civil suit is chalked out in the Code, 1908.

‘Code’ – whether retrospective

A procedural law is retrospective in operation and its provisions apply to the proceedings pending at the time of its having come into force. If by a statutory change, the mode of procedure is altered, the parties are to proceed according to the altered mode, without exception, unless there is different stipulation(Shiv Shakthi Co-op Housing Society v. Swaraj Developers(AIR 2003 SC 2434).).   But the procedure correctly adopted and concluded under the previous law cannot be reopened for the purpose of applying a new procedure (Nani Gopal Mitra v. State of Bihar(AIR 1970 SC 1636).).

Significance of the Code

Code of Civil Procedure, 1908 withstood the test of time, worked well, did match the needs of the changing society, served the system admirably, protected the interests of both the suitor and the sued and remained as a truly admirable piece of legislation throughout the century. Those who pleaded for radical reforms in procedural aspects could suggest only peripheral changes. The ‘Code’ is considered to be the ‘bible’ among the legal fraternity.

Though the ‘Code’ stood the test of time, several aspects need further scrutiny and consideration.  Various Amendments kept the ‘Code’ in tact with time and changing needs of the litigant polity. Amendments aimed mainly at reduction of back logs, check on docket explosion and for speedy disposal of cases. Several other aspects were lost sight of by the legislators. They are, of course, simple in nature, but still keep the areas grey and require chiseling with architectural symphony. Conflicting judicial pronouncements by various High Courts made the situation more complex. Law Commission of India in its 144th Report sought to resolve the conflicts by various recommendations. It is sad to say that many of the recommendations were unaccepted and not implemented. Those recommendations were aiming at the removal of divergent interpretations to the very same provisions and to give the Code a color of uniformity.

The time tested ‘Code’ is not free from complexities and procedural hardships. Many provisions do require consideration afresh in the light of the changing circumstances. Many of them canvass divergent and conflicting views. Justice Jagannatha Rao’s recommendations for a thorough amendment to the provisions of the ‘Code’ still remain unheard for the legislators.

On the outset, one may conclude that the ‘Code’ is complete in itself. The various provisions spread over the Sections, Orders, Rules and Schedules seem to be self sufficient and working. But, in actual practice, the ‘Code’ is poor in performance due to ambiguities, shortfalls and omissions.  It is worthy to consider some of those aspects with an analytical approach.

a. ‘Dismissal for default’ in Sec.2 (2) is silent as to whether it is default of appearance or default of any kind like failure to furnish particulars etc. There shall be an explanation that, ‘default includes default of appearance as well as any other kind of default’. 

b. Whether, in case of a Hindu Undivided family, the surviving coparcener will become a legal representative. S.2 (11) is silent about this aspect. There ought to have been an Explanation to the effect that, when a coparcener in a Hindu Undivided family dies, a surviving coparcener shall be a legal representative.

c. S.10 C.P.C. stands for stay of suit. The words, “in India having jurisdiction to grant the relief claimed" is not free from divergent views. The words, “having jurisdiction to grant the relief” whether connotes the relief claimed in the second suit or in the first suit? There shall be a clarification in this aspect. It is recommended by the Committee that ‘after the words ‘relief claimed’, the words, ‘in the suit subsequently instituted’ be added.

d. S.20 C.P.C. stands for place of suing. Money suits can be filed, where the cause of action arose or the debtor resides or carries on business. The basic principle of law is that the debtor must seek the creditor. Can such a principle be imported to S.20 C.P.C. is the question. 

These are some of the recommendations by Justice Jagannatha Rao Commission on amendments to the Code of Civil Procedure, 1908. The above mentioned recommendations come well within the very first 20 Sections of the Code. More than 156 recommendations were made by Justice Jagannatha Rao.  It is very sad to see that none of his recommendations found place in the subsequent amendments, keeping the Code open for criticisms. Justice Rao’s recommendations were the reflections of a practical lawyer.  Majority of the provisions of the Code remains unamended and they need reconsideration. Some of the glaring infirmities in the Code, which arose in my mind, are described below.     

Two decrees in partition suits – Effect

The century old ‘Code’ provides a ‘pause’ between a decree and its execution. A ‘pause’ has also been developed by practice between preliminary decree and final decree. In fact, the ‘pause’ is to enable the defendant to voluntarily comply with the decree or declaration contained in the preliminary decree. In reality, the defendants normally do not comply with decrees without pursuance of an execution.  It is strange to note that the ‘Code’ is silent as to an application for final decree.

A litigant who comes to the court for seeking relief is not interested in receiving a paper decree, on his success. He wants the actual relief.  A party may exhaust his finances and energy by the time he secures the preliminary decree. There is absolutely no guarantee that the plaintiff himself will enjoy the fruits of the decree passed in his favour. The proverbial observation by the Privy Council is that the difficulties of a litigant begin when he obtains a decree. Success in a suit means nothing to a party unless he gets the relief. So as to make the provisions of the Code meaningful, there need be a conceptual change regarding civil litigation, so that the emphasis shall not be on disposal of suits, but on securing relief to the litigant as well. Supreme Court in a recent judgment has considered this aspect in detail.  Suggestions were also made to make the ‘Code’ comprehensive. The crux of the decision is reproduced below. 

“ ….. Because of the artificial division of suits by C.P.C. into preliminary decree proceedings, final decree proceedings and execution proceedings, many trial Judges tend to believe that adjudication of the right being the judicial fiction, they should concentrate on that part. Consequently, adequate importance is not given to the final decree proceedings and execution proceedings which are considered to be ministerial functions. The focus is on disposal of cases rather than ensuring that the litigant gets the relief. Focus should never be on early disposal of cases only, but on early and easy securing of relief for which the party approaches the court aslo. Consequently, in many cases where a suit is decreed or a preliminary decree is granted within a year or two, the final decree proceedings and execution takes decades for completion. This is an area which contributes to considerable delay and consequential loss of credibility of the civil justice system. It is hoped that the Law Commission and Parliament will bestow their attention on this issue and make appropriate recommendations/amendments so that the suit will be a continuous process from the stage of its initiation to the stage of securing actual relief. In money suits and other suits requiring a single decree, the process of suit should be a continuous process consisting of the first stage relating to determination of liability and then the second stage of execution and recovery, without any pause or stop or need for the plaintiff to initiate separate proceedings for execution. In suits for partition and other suits involving declaration of the right and ascertainment/quantification of the relief, the process of the suit should be continuous, consisting of the first stage of determination and declaration of the right, second stage of ascertainment/division/ quantification and the third stage of execution to give actual relief”(11.      Shub Karan Bubna v. Sita Saran Bubna & Ors. (2009) 9 SCC 689.).

Section 80 C.P.C. – What actually transpires?

S.80 serves as a measure of public policy. It ensures that, before a suit is instituted, against the Government/public officer, as the case may be, an opportunity be afforded to them to scrutinize the claim.  If it is found to be a just claim, immediate action is taken and thereby unnecessary litigation be avoided.  Public time and money can be saved by settling the claim, without driving the person who has issued the notice to institute the suit involving considerable expenditure and delay (Bihari Choudhary v. State of Bihar(AIR 1984 SC 1043).). The object of providing for a statutory notice under S.80 C.P.C., appears to be reasonable and laudable, to give the Government or the public officer concerned, an opportunity to reconsider the legal position and make amend or settle the claim, if so advised, without litigation(Raghunath Das v. Union of India(AIR 1969 SC 674).).

The objective in providing statutory notices to other body corporates, like, Electricity Board, FCI, Union or other Development Corporations etc. is also not that much different.  Though instrumentalities of the State under Art.12 of the Constitution, these body corporates are not answering the description of Government. Hence no notice is required to be given before instituting any suit against such bodies, except as stipulated in the respective enactments.  

Service of notice under S.80 is a condition precedent for institution of suits against State/public officer concerned. S.80 (2) is an exception which envisages provision for seeking urgent reliefs even without notice. In reality, there may not be a single instance where the Union or State Government or Public Officer as the case may be cared to consider the notice in its spirit, acknowledge its receipt and tried to settle the dispute amicably(Annual Survey of India 36 th Report provides for only three instances within a period of 3o years.). Gross inaction from the State/Union concerned was subjected to harsh criticism by Hon. Supreme Court in umpteen numbers of cases.

“ ….  Government must be made accountable by the Parliamentary Social Audit for wasteful legislative expenditure inflicted on the community by inaction. A statutory notice under S.80 is intended to alert the State to negotiate a just settlement or at least have the courtesy to tell the potential outsider why the claim is being resisted. S.80 now has become a ritual because the administration is often unresponsive and hardly lives up to the Parliament’s expectation in continuing S.80 in the Code, despite the Central Law Commission’s recommendations for its deletion(Law Commission of India 14th Report P.475; 27th Report Pp.21-22). A litigative policy for the State involves settlement of Governmental disputes with citizens in a sense of conciliation, rather than in a fighting mood. Indeed, it should be a directive on the part of the State to empower its law officers to take steps to compose disputes rather than to continue them in court. Much of the litigation in which Governments are involved adds to the case load accumulation in courts, for which there is public criticism……”(Behari Chaudhary v. State of Bihar (AIR 1984 SC 1043); Raghunath Das v. Union of India (AIR 1969 SC 674); Law Commission of India, 14th Report P. 475; 27th Report pp. 21-22; State of Punjab v. M/s. Geetha Iron and Brass (AIR 1978 SC 1608).).

S.80 C.P.C. needs a thorough reconsideration. “S.80 lays down a condition on the plaintiff before filing the suit, but it does not restrict the jurisdiction of the courts, and it does not say that no court shall entertain a suit, where notice under S.80 has not been served”(Mulla C.P.C.,15th Edn. P.587.). In sum and substance, service of notice is one not mandatory but can be interpreted as only a technicality. S.80 takes birth from the Indian Independence (Adaptation of Central Acts and Ordinances) Order, 1948 and Adaptation of Laws Order, 1950, the British period, wherein the King, the Supreme infallible cannot be sued without notice, how glaring the injustice be. Free India keeps on enjoying the legacy with the very same idiotism. No State/public officer will respond to the so called ‘statutory notice’ nor will amend or settle the disputes out of court, and will merrily waste the public money, suffer the plight and “discharges his official duty” duly and diligently.

S.80 C.P.C. has to be redrafted. An effective mechanism which guarantees the effect of compliance and non compliance with the provisions of S.80 should be provided.  The State/public officer shall be made answerable to the notice without fail. Apart from the question of compliance, the true account of amends transpired in furtherance of the notice also shall form part of the records. The State/public officer shall be answerable for the non-settlement of the dispute within the statutory period of two months or at least the reasons for such inability should come out. It is not harsh but necessary that the pleadings of the State/public officer at fault have to be struck off. The mandate under O.6 R.6 should be pressed into service. Failure to respond to S.80 notice shall result in serious consequences. O.12 R.9 shall be invoked in appropriate cases.  Courts shall treat the State/public officer too in the very same status as that of an ordinary litigant. No need to say that Courts are bound to see that efforts are made to settle the issues amicably even at the first instance itself (Order 10 C.P.C.). No suit shall fail for want of S.80 CPC notice, if the grievance is prima facie found to be genuine. A majority of civil disputes with the State/public officer is the outcome of absence of due amends or conciliation. If the provisions of S.80 are made effective, it would definitely bring better results. 

S.80 of the Code poses another serious issue for consideration.  In a multifarious suit, the prime relief of injunction is pressed at the admission stage, with an exemption petition under S.80 (2) C.P.C. Court fee paid is Rs. 10 for the injunction relief and the other relief claims Rs. 1000/- or above as court fees.  Upon admission hearing the Court refuses urgent relief and returns the plaint for proper presentation after service of statutory notice. Suit is not numbered. Civil Rules of Practice mandates the ministerial officer to put his initial and court seal on each and every paper filed in the court. After sixty days whether the plaintiff has to file a fresh suit with fresh stamps or whether he can use the very same plaint with an inserted paragraph as to the compliance of O.6 R.4? Can the Court order refund of court fee paid unless the case comes under S.69, 70 or 71 of the Court Fees and Suits Valuation Act?  Since the suit is not numbered, can the Court order refund and if so from which account/head. In theory, principle and effect, the plaintiff is penalized for the absence of an enabling provision either in S.80, O.7 R.10, Court Fees Act or other enactments.

After decree, no compromise

A decree conclusively determines the rights of the parties and cannot be varied except under certain situations. Otherwise, a decree has to be executed as such and the Code assures a ring of certainty. Code is silent as to post decretal stage compromises. The execution courts will ‘close’ the EP as ‘fully satisfied’ or dismiss it for non-prosecution. C.P.C. do not permit the Courts to ‘close’ the EPs. Though in effect, the compromise in execution stage will never be a substitution for the original decree, yet such a situation cannot be overlooked. O.23 R.4 needs reconsideration. 

Examination of witnesses

Order 18 has been in the lime light for a considerable length of time since its recent amendments. Whether affidavit is admissible as evidence or not is the prominent issue for debate.  The new amendments, in script were aimed for the good of law and justice, but in spirit did yet another mishap to the legal profession. Lamenting on the degradation of the bench and the bar is a current fashion. Advocates Act provides for several ‘yes’ and ‘no’s for the Senior counsel. A ‘senior counsel’ shall not draft pleadings but only settle them,  never meet the clients but get instructions from the instructing counsel, he will address the court on legal issues only and act as an aid in deciding the issue just like ‘queen’s counsel’. The legislature is wise enough to visualize the inbuilt mechanism in developing the second round lawyers to the forefront.

What actually happened after the recent amendments to Order 18? It is trite that a lawyer should know what shall not be asked to a witness than what shall be. Young generation of lawyers lost their chance to hear the art of chief examination and the tiring cross examination. Even the arguments are through notes.  If the Judge does not want to imbibe from the arguments in open courts, parrot like reproduction of the arguments note in the judgment makes the justice a casualty. The degradation in the standards of advocacy is the obvious result of the recent amendments in O.18.  So far no rules are seen framed with regard to the appointment of Commissioners for examination of witnesses.  An experienced, clever lawyer is much able to trouble a junior lawyer sitting as the Commissioner to whom the demeanor of the witness, line and length of examination etc. are far from his stretches of imagination.  Reconsideration is necessary in these aspects and S.122 shall be effectively exercised by the High Courts to lay down guidelines with respect to the appointment of commissioners. Special Rules should be framed as to qualification, appointment, powers, duties, responsibilities and the conduct as well of the Commissioners.  The interesting aspect is that, concept of examination of witnesses on Commission is to expedite the trial and to avoid delay. O.18 R.4(5) gives the Commissioner 60 days time to submit the report. Scope for extension of time is also visualized. If it is so, how can trial of a suit be continued day-to day as envisaged in the proviso (a) to O.18 R. 2?   In many cases, the efficacy and purpose of examination of parties and witnesses in open court will be defeated if the evidence is recorded by the Commissioner. It denies the court a golden chance to watch the witness and note their demeanor. If it is taken on the financial aspects, no doubt, the examination of witness on Commission is an additional burden to the litigant.      

It is high time to reconsider Order 18 Rule 4(5). Speedy justice shall never result in injustice to the needy, because the whole judicial system rests on trust, faith and confidence.

Interrogatories

S.30 and O.11 is yet another provision which needs reconsideration. Only a few States in India employs interrogatories as an indispensable tool to show the frivolous suitor the Court’s corridors even at the threshold. There is no other provision in the Code as powerful as O.11 but unfortunately remains as dead letters.  Answering in affidavit form is absolutely a check on the ‘court birds’ and an easy way for the Courts to concentrate on the issues for trial.  Striking off pleadings, actions for perjury, contempt of lawful proceedings are not alien to interrogatories.  

Costs for causing delay

S.35B stands for ordering costs for causing delay in the proceedings. When hearing of a case is adjourned for reasons of the default of the party or at the request of the parties, S.35B provides for imposing costs on the defaulter. It is seen that the Courts are slow to invoke the powers under Sec.35B. Reason is clear that ‘reasons should be recorded’. If S.35B provides also for the non-suiting of the defaulter for non-prosecution, there will be splendid results. No petty adjournments will be entertained and the fourth adjournment automatically results in a verdict. The way to realize the costs ordered under S.35B is a yeoman’s task. Instead of execution proceedings, if deposit of costs awarded under S.35B is made a condition precedent for the reconsideration of the verdict, only genuine claims will stand. 

Section 26 (2), Order 6 Rule 15(4)

In every plaint the facts should be proved by affidavit.  The person verifying the pleading shall also furnish an affidavit in support of his pleadings. The Code is silent with regard to the purpose for which such an affidavit is necessitated. The affidavit filed along with the plaint only makes the bundle bulky. If necessary amendments are introduced, the affidavit filed along with the plaint can be taken in lieu of evidence and the court can pass an ex parte decree on its basis. The summons issued to the defendant shall contain the stipulation that his absence on the hearing date without sufficient reason will entitle the plaintiff a decree on the basis of the affidavit filed along with the plaint.  Court can decree the suit at once adopting the affidavit filed along with the plaint, under O.7 R. 15 as evidence of the plaintiff invoking the power under O.8 R.10 CPC. No posting or adjournment will be needed for ex parte evidence and only genuine applications will be there to set the ex parte decree aside. This will probably give the affidavit filed along with the plaint a meaning and statutory recognition. The litigants also will be more vigilant. S.35B is a most effective provision which helps the courts to a great extent to extirpate delay. 

Order 8 Rules 1 and 10

 Order 8 Rule 1 C.P.C., as amended up to date fixes an outer limit of 90 days for filing the written statement. It is not an authority for a judicial machinery to decree the suit in terms of R.10 on the expiry of 90 days or 120 days of appearance as the case may be. It will definitely be harsh in substantial litigations where a substantial defence is available. Even if the Trial Court passes a decree in terms of R.10, no appellate court will interfere with a ‘legal’ finding. The amendment has not ensured the rendering of substantial justice but has only curtailed the judicial discretion of the courts which in fact results in miscarriage of justice.

ADRFs

S.89 of the Code provides for the Alternative Disputes Redressal Forums like Arbitration, Mediation, Judicial settlements etc. Courts are mandated to ascertain and record admissions and denials from each party at the very first hearing and thereafter, the court shall direct the parties to settle the matter outside Court through any one of the Forums provided under S.89(Order 10 Rule 1A CPC). Even in cases wherein the State or a Public Officer is a party to the suit, the Courts are duty bound to make in the first instance itself every endeavor to assist the parties to arrive at a settlement (Order 27 Rule 5B CPC).

It is strange to see that Courts have paid little attention to these aspects. If a case is posted to Adalath, what actually happens to it is truly alien to the referring Courts. Except in money suits, that too for saving court fees, the parties seldom come to a settlement, unless they are ‘tired’ and not ‘satisfied’.   Chances are not a few wherein the request for posting a case to Adalaths itself proves to be a pretext for adjourning a case.  Absence of detailed provisions as to the procedure to be followed in the Adalaths made the process more cumbersome.      

Each and every provision which needs further consideration is not discussed above. Only certain glaring and glittering infirmities which are thought provoking alone mentioned. The absence of provisions for establishment of various Civil courts , hierarchy of Courts,  powers, jurisdiction and limitations of Civil courts, removal of the existing arduous procedure for executing a decree satisfactorily etc. are areas which need further researches and clarifications.  It is worthy to go through Justice Jagannatha Rao’s recommendations to resolve the effect of conflicting judicial interpretations in the various provisions of the Code along with the 140th Report of the Law Commission of India. Those would reflect the ticklish issues faced by a practicing lawyer and not an academician.

Conclusion

Amendments to the Code of Civil Procedure, 1859 till date made it an elegant piece of legislation.  It worked satisfactorily and smoothly for one and a half century(27th  Law Commission Report, Page 6). Reason for the delay in disposal of cases is not solely due to the pitfalls in CPC. In one way or the other, a client and his counsel is also merrily merited because of the delayed process. The Code should ensure that such prolongation shall never result in deprivation of another’s rights.  To a considerable extent, the Code succeeded in achieving its projected objectives. The Code is one of the best pieces of legislation which secures a uniform procedure for the country which protects the rights, equality and liberty to its citizens. An equal procedure for the rich and the poor who approaches the civil court is provided therein. It is true that for the neo rich class who claims preferential treatment even in holy temples by a special track may find C.P.C. an inconvenient procedure. The procedure exists for the sake of something else, which is for the sake of substantive law. This is the primary objective, but procedure has too many secondary objectives. Parties should be given a feeling that they are being dealt with fairly. An orderly and expeditious processing of litigation is a right; each one is entitled to, no matter what is one’s status in life or resources as the case may be.

 We shall keep in mind the words of a great jurist, who remained as an icon for social justice. “The entire legal profession- lawyers, Judges, law professors and jurists – has become so mesmerized with the stimulation of the courtroom that we tend to forget that ‘ we ought to be the healers of human conflicts’. For many claims, trial by adversarial contests must in time, go the way of the ancient trial by battle and blood, but shall avoid the tiring processual handicaps………… Our system is too costly, too painful…. As healers of human conflicts,the obligation of the legal profession is to provide mechanism that can produce an acceptable result in the shortest possible time, with the shortest possible expense and within a minimum of stress on the participants. That is what justice is all about”(Chief Justice Warren E.Burger, Supreme Court of the United States of America.). Let us hope that these words will govern the legislators while enacting or amending legislation.     

 Privy Council once observed that, there is nothing wrong with the provisions of the Code, but the fault lay in its inadequate or improper implementation.

Law shall never be static. It should welcome changes in all spheres and cope up with the changing demands. Code 1859 underwent the amendments to suit the needs. Changes are inevitable to simplify the legal mechanism which makes it more adaptable to the needs of changing times. Expedition and cost effectiveness to the community and litigant are important factors which should be taken into consideration in modifying the Code.  Needless to say that the ‘Code’ has achieved its objective positively.

* 1st Prize winning essay in the State Level Essay Writing Competition on celebrating 100 years of C.P.C.  conducted by Ottappalam Bar Association. N.Ajith ranked 1st and secured the Gold Medal and Rs. 10,000/- cash prize.  

Judicial Activism and the Evolution of the Fundamental Right to a

Clean & Healthy Environment in India

(By Laxmy R. Nambiar & Altdus Ray Frank, Semester 9, NUALS)

From a Constitution that saw no need to define the word ‘environment’¹ to the inalienable, fundamental right a clean and healthy environment has come to be today, awareness of the dangers posed by damage to the environment has finally gained the notice of the country. It is possible to fully understand the change in our attitudes towards the plight of the environment by tracing the route of judicial activism and the legislations they caused to be enacted within the realm of pro environmental laws.

Pre Constitutional Laws - A History

Prior to the enactment of the Constitution, environmental law was dealt with under the law of Torts. Public nuisance for unreasonable interference of a general right of the public, negligence, right to easement to keep one’s land to be free from air, water or noise pollution, strict liability for inherently dangerous substances that bring harm to the public & subsequently [through judicial pronouncement] absolute liability were the provisions in the Penal² and Civil³ Codes that were used to take cognizance of environmental issues.

It is hardly necessary to say that were sparingly used or that they were effective in any way. Where it came to the question of ‘development’ the environment was often overlooked or even blatantly exploited. In the case of State of Kerala v. Gwalior Rayons (AIR 1973 SC 2734), it was held by the Supreme Court that the State exercised monopoly when it came to forested areas under the Constitution and in the particular case, the assignment of private forest was constitutional and the severe deforestation that followed was justified as an agrarian reform.

The 42nd Amendment

The 42nd amendment that came into force in January 1977 introduced two Articles in the Constitution to protect the environment. The Directive Principles of State Policy was amended to include Art.48A that states that the State shall endeavor to protect and improve the environment and to safeguard the forest and wildlife of the country. Art.51(g) inserted into the Fundamental duties of citizens required every citizen to protect and improve the natural environment including forests, lakes, rivers and wild life, and to have compassion for living creatures.

A Change in Perspective

A change in perspectives began when the Supreme Court overruled the 1950’s landmark A.K. Gopalan judgment in 1978 with Maneka Gandhi v. Union of India. This change that substituted Lex with Jus saw the shift from the stress being laid on ‘law’ to ‘justice.’ This judgment opened up the scope of Art.21 of the Indian Constitution to include the concept of the due process of law.

The case of Municipal Council, Ratlam v. Vardhichand(AIR 1980 SC 2734) it was held that municipal bodies have a paramount duty to protect the life of its people. The court stated that they were thus bound to maintain clean roads and drains and lack of funds could not be an excuse to not do so. In 1985, the right to life was for the first time used to tackle an environmental hazard in the case of RL & E Kendra, Dehradun v. State of U.P.(AIR 1985 SC 652). Though Art.21 was not directly invoked, this case, which arose from indiscriminate lime stone quarrying in Mussoorie was referred to the Supreme Court under Art.32 of the Constitution and a purely environmental hazard was referred to a court as a violation of a fundamental right.

The Water and Air Pollution Acts

The Water (Prevention and Control of Pollution) Act and Air (Prevention and Control of Pollution) Act of 1974 and 1981 tried to control the pollution and minimize damage to the environment. The Act made it imperative for industries to get consent or no objection certificates from the Pollution Control Boards that were set up under them. The Air Control Act among other things set up ‘air Pollution Control areas’ as areas to be specially controlled against air pollution. The Environment Protection Act (EPA) that followed made the Central Government the guardian of the environment and gave special powers for legislation to be delegated to central government officers, State Governments, State Officials and the Pollution Control Boards. The Hazardous wastes’ and bio-medical wastes’ Rules are examples of important delegated legislation formed under the EPA.

Right to a Clean, Healthy Environment - A Fundamental Right

In M.C. Mehta v. Union of India(AIR 1987 SC 982) the case concerning the oleum gas leak that injured several persons and resulted in one death, the Supreme Court for the first time examined the ambit of Art.21 and 32 and the its relationship to hazardous activities and environmental issues.

The 73rd and 74th amendments introduced in 1993 to the Constitution extended powers to protect the environment to the grassroots of the legislative mechanism by empowering the panchayath and municipality to take environmental matters into their hands. The 73rd constitutional Amendment inserted the 11th Schedule comprising of 29 entries along with Art.243(g) to spell out the powers and responsibilities of the Panchayats and the 74th amendment inserted the 12th Schedule and Art.243(w) to deal with the powers and provisions of the municipalities.

The Polluter Pays Principle

In the 1987 the Supreme Court pronounced the landmark decision of M.C. Mehta v. Union of India(AIR 1987 SC 1087) where the court formulated the ‘polluter pays’ principle for causing environmental harm held that enterprises engaged in hazardous and inherently dangerous activities would be absolutely liable for any damage caused to the environment. The court further held that the exceptions laid down in the case of Rylands v. Fletcher case would not apply to India and that compensation awarded would be proportionate to the capacity of the industry. The most significance achievement of this judgement however is that the court held that directions for environmental issues could be henceforth issued as a violation of the fundamental rights of the people under Art.32 of the Constitution.

Precautionary Principle

In the well known 1997 case of M.C. Mehta v. Union Of India(AIR 1997 SC 734  ) better known as the Taj Trapezium case, the court held that industries in Delhi, more specifically Agra that emitted noxious gases had to move away as the damage caused by the poisonous gases to the Taj Mahal - a world heritage site could not be condoned. It was in this case that the court laid down the ‘precautionary principle’ stating thus; “where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost effective measures to prevent environmental degradation.”

The Public Trust Doctrine

This doctrine was devised by the courts to protect the environment and states that the environment belongs to all humanity and is therefore in a public trust for their benefit. The doctrine of ‘Public trust’ was used to great effect to protect and prevent contamination of underground water in the case of M.P. Ramababu v. Divisional Forest Officer(AIR 2002 A.P. 256) as well as in earlier cases such as M.C. Mehta v. Kamal Nath((1997) 1 SCC 388) and M. I. Builders v. Radhe Shyam Sahu  (AIR 1999 SC 2468)

Right to Employment v. The Environment

In the case of M.C. Mehta v. Union Of India the supporting Judge referred to the life, health and ecology of Indo-Gangetic plane for closure of polluting tanneries. Life, health and ecology stated the court gets far greater importance than unemployment and loss of revenue. The tanneries were thus asked to relocate. In the 1997 case of Ivory Traders and Manufacturers Association v Union of India(AIR 1997 Del. 267), the court in regard to killing of elephants for ivory held that any pernicious trade can be totally banned and went on to state that the killing of elephants to procure ivory was a ‘pernicious trade’ and thus was not protected under Art.19(1)(g) of the Constitution. This decision was upheld by the Supreme Court in 2003 in the case of Indian Handicrafts Emporium v. Union of India(AIR 2003 SC 3240) which held that the total prohibition of the import of African ivory was constitutional as a necessary measure to eliminate the killing of Indian elephants and trafficking Indian ivory under the pretext of dealing in imported ivory.

Right to Development v. The Environment

Both the right to development as well as the right to a clean and healthy environment stem from the right to life. However, where these two concepts come in conflict with each other, it is the concept of sustainable development that resolves the issue. The concept of sustainable development is to adapt and control development to meet the needs and aspirations of the present without compromising the ability to meet those of the future. In the case of Narmada Bachao Andolan v. Union of India(AIR 2000 SC 3751) the Supreme Court held that rehabilitation of the displaced people had to be carried out completely before any further increase in the dam is to be effected. Furthermore, in the case of Susetha v. State of Tamil Nadu(AIR 2006 SC 2893), where a disused temple tank was used as a dumping ground for sewage, the Supreme Court specifically stated that sustainable development was not an empty slogan and it is the need of the day to implement a pragmatic view of the concept. The court directed the panchayath to look into the matter saying that they had a duty to take care of tanks and water bodies in their locality.

Right to Religion v. The Environment

In the case of Moulana Mufti Syed Md Noorur Rehman Barkati v. State of West Bengal(AIR 1999 Cal. 15) the court held that restrictions placed on loudspeakers for azan do not violate the right to equality and religion and that the use of loudspeakers before 7 a.m. disturbs right to sleep. The court further stated that there is no question of ‘collective rights of religious denominations’ and stated that though Azan is an integral part of Islam, the use of microphones is not. This decision was upheld by the Supreme Court in the case of Church of God (Full Gospel) in India v. KKR Majestic Colony Welfare Association(2000 (3) KLT 651 (SC) = AIR 2000 SC 2773) where the court upheld every person’s inherent right to quietness.

Exception -  In the case of Forum, Prevention of Environmental & Sound Pollution v. Union of India,( AIR 2006 SC 348 pp 350, 351) taking into consideration the diverse religious and culture in India, the court upheld the right to use loud speakers in public until 12 a.m. for a period that may extend up to 15 days for religious festivals.

Other Personal Rights v. The Environment

In the 2002 landmark judgment of Murali S.Deora v. Union of India(AIR 2002 SC 40) the Supreme Court held that the inherent right to clean air could be extended to ban public smoking. The court stated that a passive smoker’s right to clean air was far greater than the personal right to smoke.

Conclusion

In the callous pursuit of wealth man has alienated nature and equated her destruction with progress. Global warming, the increase in the percentage of green house emissions, the hole in the ozone layer, floods, droughts, tornados and hurricanes hitting different parts of the world with increasing ferocity - the first signs of a worldwide climatic change are all here to stay. Even with all our scientific progress another climate change as the one that the world witnessed so many million years ago will be inevitable at this rate. It will wipe us out completely. While progress is required, the need of the hour is self sustaining progress - a fact that was emphasized by the United Nations when they declared the right to a clean and healthy environment as a third generation human right.

In the wake of such harm caused to the environment and the extreme threat it poses to ourselves as well as the future generations, the Supreme Court in India has in these cases detailed above and in several others worked tirelessly towards changing the State’s attitude towards the environment. The doctrines and principles evolved in this process have helped secure the environment and minimize damage and over exploitation of resources in India and spearhead legislation in this regard. The Supreme Court’s position on sustainable development as the only acceptable form of progress is the kind of attitude that is the need of the day. Our only hope is sustainable development and planning that looks into the future and not the present.

1.  The word ‘environment’ was first defined under the Environmental Protection Act. S.2(a) of the Act lays down an inclusive definition stating that “Environment includes water, air and land and the inter-relationship which exists among and between water, air, land and human beings, other living creatures, plants, micro-organisms and property”

2. Ss.143 & 144 of the Cr.P.C. provide remedies for public nuisance, S.144 empowers a 1st class Magistrate to remove public nuisance and S. 268 provides for criminal prosecution.

3.   S.191 provides for the civil action of injunction which may be taken up by the Advocate General on behalf of the State, or two or more members of the public. The spirit of the provisions of O.1 R.8 of the CPC was employed by the Supreme Court in allowing a Public Interest Litigation against the pollution of the Ganges in the case of M.C. Mehta v. Union of India –1992

President's Rule*

(By T.P. Kelu Nambiar, Sr. Advocate, High Court of Kerala)

Dear  Mr.President,

 I do not believe in enveloped wishes. Pardon me, ifyou please. I should hope you will make it a ‘Good Year'  for ‘we, the members of the Association’.

Deviating from the usual method, I shall not begin by conveying congratulation for your win in the election to the office of President of the Kerala High Court Advocates Association, (thus, the Head of the ‘House of Lawyers’), for the year 2010. Pardon me for venturing the view that you could, perhaps, be considered to be the best of the three contestants, but not the fittest of the members of the Association to fill the office, because all the members did not contest the election. I see no reason now to venture an optimistic assessment of your success. We do not marry after conducting a virginity test. I am guided by, past experience with the functioning of the Presidents. On a look back, I have no comfortable and contented memories, and I find that welfare of the advocates was not on the Association’s radar. Which is why it is a tough road ahead for you.

You may be ecstatic over your win. By winning, I do not know whether you have become a hero. The question is whether you have become a ‘bravo’. It does not require a Henry Allingham to remember that there were brave Presidents at the head of the Association once upon a time.

I am not asking you to become a revolting President; but a revolutionary President. You have asubstantial duty to the Association. Let me, for a while, function as an advocate of education.

Something has gone terribly wrong with our Association. If this be the state of affairs, very soon Red Corner Notice (RCN) would be issued against the legal profession. Try to repair the damage and uphold the prestige of the Association. Please ensure that lawyers live a life of dignity. Try to upgrade the welfare of junior lawyers. Otherwise they may be tempted to practise the ‘other’ legal profession and end up as ‘cold-calling’ juniors. Pull out all stops to encourage juniors. I know you know, the bar is a mix of young and old. And, it should be remembered that a junior is not a mere ‘runner’ for a senior. Every junior lawyer can be considered to be a ‘super-star’ on the block. There are no nonentities in the bar. The bar is not a job market. These are the issues on the front burner. Your job: it is an opportunity and an obligation. Uphold the dignity of the Association. Guard the esteem of the High Court. Help the High Court grow. You will certainly get the ‘dividend’.

The President of the High Court Advocates Association is not appointed by anybody; but elected by the bar. This fact, you have to remember even in your bed room.

Please pay fair and quick response to the bar’s needs and requests. The President’s promise is not just a form of words. Make no promises. You may not be able to fulfil them. Consult sagacious seniors. Others’ envy should be your pride.

Always remember, you hold a powerful office, being the President of the High Court Advocates Association. You are the custodian of the powers of the entire bar. You have the full backing of the lawyer community. Your opinions are entitled to great weight. Do not be the puppet of politics or the powerful. Reinvent yourself periodically. The Association should be a vibrant body. Unity is vital for the bar.

Please do not spend energy and money for any ‘gold dust’ ‘Annual Luxury’. Hold legal knowledge carnivals only. Do not present a “Trillion Dollar Budget” to hold food court and present cheap ‘bamboo symphony’ entertainment. Spend only for legal enrichment functions; and, avoid over-draft. The Advocates Association should not indulge in the business of luxury. The funds of the Association should be considered, treated and handled as ‘mutual funds’. The funds’ flow management should be rationalised with appropriate criteria and norms. Do not spend money to travel to the ‘No-go areas’ for lawyers.

This letter is not a hate mail. By your bold, positive actions, (not at all in ‘Rambo style’), to uphold the dignity of the Association, you should prove the prophets of doom wrong. You should not be a President with a poet’s heart. Your term should not end as a case of missed opportunities. Do not end up as ‘blame boy’. Meet the challenge. Several great lawyers, now no more, but still living in the court halls they practised, would, sure, be watching your performance as President. Several pairs of piercing eyes are looking at you. Try to prove that you deserve ‘Four Cheers’ by the bar at the end of the year. Present a ‘photo-essay’ of your achievements for a ‘welcome back’. Do not put the bar to the trouble of celebrating your failure.

My good wishes.

Remember how that great advocate David Pannick concluded his book ‘Advocates’:

“Advocates have not been persuasive in the cause of their own profession, but they have a very strong case”.

It is time for you to begin from the beginning, bearing in mind, with me, what somebody said: ‘That which does not kill me, makes me stronger’.

[I would request you to put up this letter on the Notice Board of the Association for the information of all members. I reserve my right to publish this letter through the esteemed Law Journal ‘The Kerala Law Times’.]

* Letter, dated 1.1.2010, addressed to Advocate V.V.Sidharthan, the newly-elected President, Kerala High Court Advocates Association, on his assumption of office.

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s]-®p-th-sd- sI-«n-t¸m-bn....- Ip-«n-IÄ- F-{X-bm-bn...- B-thm....- A-hÄ- h-cpw...- h-cm-Xn-cn-¡nÃ....- Hm-tcm-tcm- {]-Xo-£-I-fm-W-tÃm- Po-hn-Xw.-

"IÀ-¯m-sh- \n-s¶- ]q-Pn-¡m³- th-In-bm-W-tÃm- R-§-fn-§-s\- ^-b-em-bXv....- F-s¶- ^-b-em-¡n-b- h-¡o-epw- XoÀ-¶p.....- Sn-bm-sâ- Pq-\n-b-dpw- XoÀ-¶p....-.........F¶n«pw- F-sâ- Pleadings complete B-bn-Ã-tÃm-' H-cp- ]-Ån-tI-kv- ---^-bÂ- Ip-¼-km-cn-¨p.-

"]n-Xm-sh- C-hÀ- sN-¿p-¶-sX-s´-¶v- C-h-c-dn-bp-¶n-Ã-....- C-h-tcm-Sp- s]m-dp-¡-W-ta....-'-

^-b-ep-IÄ- X-§-fp-sS- P-·-tZ-i-am-b- ^-b-en-Mv- sk-£³- k-µÀ-in-¡p-I-bmbn....- F-{X-sb-{X- ^-b-Â- Ip-ªp-§-fm-W-hn-sS.- F-{X- hÀ-j-§-sf-Sp-¯m-Wv- Nn-e- ^-b-ep-IÄ¡v-- Po-h³-sh-¡p-¶-Xv....- B-Zyw- docket am-{Xw....- ]n-s¶- Xn-cn-s¨-Sp-¯v- kvtä-äv-sa³-dv...- ]n-s¶-bpw- defect.... ]n-s¶- order .... A-§-s\- A-§-s\- ]-cn-W-m-a-{]-{In-bbn-eq-sS- re-presentation delay h-gn- Po-h-nX-¯n-te-¡v- I-S-¶p-h-cp-¶-hÀ....- 

H-¶pw- t\m-¡-I...- t]-¸À- ssI-¿nÂ- In-«n-bmÂ- Criminal B-sW-¦nÂ- 482 ^-b-em-¡p-I....- Civil B-sW-¦nÂ- 227 ^-b-em-¡p-I.-....- H-cp-- ]n-Sn-bpw- In-«n-bn-sÃ-¦nÂ- 226 B-¡n- H-ä-¯-«v....- _©nÂ- h-cp-t¼mÄ- F´mWv- Proper remedy sb-¶v- P-Uv-Pn-b-t±-lw- ]-d-ªp-X-cpw....- A-§-s\- sslt¡m-S-Xn-bn-eq-sS- P-\n-¨v- a-cn-¨v- ho-Ipw- ^-b-ep-I-fm-bn- tem-hÀ- tIm-S-Xn-I-fnepw- Competent Authority- I-fn-epw- ]p\À-P-\n-¡mw... -

P-·-tZ-iw- k-µÀ-in-¨v- ^-b-ep-IÄ- Xn-cn-¨p-\-S-¡p-I-bm-Wv....- C-\n-bpw- a-cn-¨n-«n-Ãm-¯-hÀ-- A-h-cp-sS- a-\-Ê-dn-bp-¶- tbm-Ky-cm-b- ]-cn-IÀ-½n-I-fp-sS-bpw- ]p-tcm-ln-X-cp-sS-bpw- b-Ym-hn-[n-bp-Å- {In-bm-IÀ-½-§Ä- e-`n-¨v- H-cp- Decent burial am-{Xw- {]Xo-£n-¨v- hn-[n-Im-¯p-In-S-¶p.-

]n-tä-¶pw-- ]-Xn-hp-t]m-se- ssl-t¡m-S-Xn-¡v- ap-I-fnÂ- kq-cy-\p-Zn-¨p.-

ip`w