2008 (4) KLT 16 -- Jain Babu v. Joseph -- Wale or Wane?
By P. Rajan, Advocate, Thalasserry
09/02/2009
2008 (4) KLT 16 -- Jain Babu v. Joseph -- Wale or Wane?
(By P.Rajan, Advocate, Thalassery)
The recent judgment of the Kerala High Court (reported in 2008 (4) KLT 16 - Jain Babu v. Joseph) rendered regarding appearance of the accused person in cases under S.138 of the Negotiable Instruments Act, right from the preliminary stage, seems to be extending absolute immunity to the accused till judgment is pronounced, unless court directs for appearance by exercising discretionary power, at the first instance or mid-way of the trial. Absence all along seems to be the rule - appearance is an exemption. The judgment became the axiom to be followed and adhered to, by all the Magistrate Courts, as the High Court also considered scope of S.205 Cr.P.C. in favour of the accused.
The two sections - Ss.205 and 317 Cr.P.C. are beneficial to the accused persons, meant to dispense with personal attendance of the accused, by allowing to appear and represent by the pleader. To invoke these provisions court must see satisfactory reasons, thus the relief is discretionary and cannot be extended on a mere request, generally, as the wordings show. Scope and ambit of such power bestowed with the court is considered by our High Court sometime back in not a verbose but in the ruling, with imitable brevity reported in 1986 KLT 128 (Mathew v. State of Kerala). In this judgment court has taken exception to judicial sadism regarding directions for appearance of accused persons when presence of the accused is not necessary for the progress of trial, when insistence for attendance is purposeless.
In Jain Babu’s case (supra) his Lordship has given directions to give exemption all along, unless the Trial Court feels otherwise, due to the reason that offence under S.138 of the N.I. Act is a technical offence and such offence doesn’t even invite the vice of involvement of moral turpitude. The change to century and more old Negotiable Instruments Act, 1881, as its Preamble to the 1988 amendment says, is to enhance the acceptability of cheques in settlement of liabilities and also to check indiscriminate issuance of cheques knowing well by the drawer, on presentment the instrument will meet the fate of return; causing hardship even to banking business. In many matters under the new sections, technique of the accused is writ large-putting different signature, giving someone’s cheque, closure of account etc. which are due to deliberate designs coupled with requisite intention, anticipating legal action. But the law as such is favouring the payee and holders; use and abuse for personal gain, is a proven fact, after the advent of the amendments. The enactment is dogged by different rulings on vital points, of the High Courts even after its infancy, but the paramount issue of jurisdiction to launch prosecution; final verdict is yet to be declared by the Apex Court as the judgments are varying (1999 (3) KLT 440 (SC) - Bhaskaran v. Balan -- 2008 (3) KLT 461 - Santhosh Kumar v. Mohanan). The present judgment permits accused from not appearing even on the judgment date, thus the duty of the trial court lawyer becomes onerous and directs for presence, sentence is presumable. Framing of charge, questioning of the accused, on conclusion of trial, are procedures meant for the trial courts and are not replicate, as the practice before the higher courts. Trial in absence, thus being the rule, despite proper conduct of the matter, errant if the party is, gives chance to challenge the steps of the Trial Court, even during intermediary stage.
In another ruling also this point was considered, while giving certain directions to the criminal courts, by the High Court (2003 (1) KLT 339 - Alice George v. Deputy Superintendent of Police). Rare phraseology and salutary nature of that verdict made welcome change to the procedures in criminal cases thereafter, but greater attention is needed in certain vital aspects also. Daily list system in Magistrate courts, attending to matters if several are the accused to avoid lawyers jostling with accused in court halls; prior intimation to official witnesses atleast, if the presiding officer is on long leave, informing time of sitting to the bar by the court, if not possible to commence work at the usual time as per the rules, in forenoon and afternoon, providing certified copies of documents and depositions without much delay, so also pronouncing judgments of cases on the date of posting itself if the matter has attracted public attention, besides media and police presence, if permitted. Let the practice be, bite what one can chew, to avoid public reproach and infamy to the system of justice delivery. The observation made in 2008 (4) KLT SN 65 (C.No. 61) is worth repeating as the bar has legitimate interest in the sublimity and the claims for the sublimity of the judicial process. It is here that the corrective dimension of advocacy assumes importance.
Procedure or provision may be vintage like and simplification in summary way is the answer; quick culmination of litigation being the goal, absolute privilege to a specified class generally, appears to be undeserving judicial protection.
Many provisions of law and related procedures deserve overhauling but as no man is above law, and not under it also, total immunity to the maximum level, to categorized few is detrimental to the interests of the complainants also. State owned Financial institutions also approach courts with complaints u/S.138; regular Adalat considers those complaints for mediation and settlement. How far a lawyer can assure the presence of his client when needed, is a matter of inference, as many accused do the act of cheating also by handing over cheques, with false representation, for personal gain. Gender difference, distant abode or age of the accused seem as genuine grounds for exemption, but when everybody can avail the advantage of non-appearance unless Magistrate directs, will lead to delay in disposal of cases or can stall the proceeding by resorting to remedies before higher forums, basing on this ruling, besides continuous absence, if no bond of any nature is executed.
EXECUTION SALE PENDING APPEAL FROM DECREE -- NEED FOR AMENDMENT OF THE CODE OF CIVIL PROCEDURE -- SOME THOUGHTS
By K.T. Sankaran, Judge, High Court of Kerala
26/01/2009
EXECUTION SALE PENDING APPEAL FROM DECREE --
NEED FOR AMENDMENT OF THE CODE OF CIVIL PROCEDURE -- SOME THOUGHTS
(By Hon'ble Mr. Justice K.T.Sankaran, Judge, High Court of Kerala)
A vexed question often arises before executing courts; the question is what is to be done if, after the execution sale, the decree on the basis of which the sale took place is reversed or set aside ? Would the judgment debtor get back his property by restitution or otherwise ? Or should the auction purchaser be protected ? If the sale was not confirmed when the decree was set aside or reversed, should the sale be confirmed?
2. The difficulty arises when the execution sale takes place pending appeal from the decree or an application for setting aside the ex parte decree. The appellate court may reverse the decree under which the sale took place. Sometimes, the appellate court may set aside the decree and remand the case to the trial court for fresh disposal. In some other cases, the decree may be modified. If the decree was passed ex parte, it may be set aside on the application of the defendant. When the very substratum on which the sale took place vanishes, what would happen to the execution sale ? Would it make any difference if the auction purchaser is not a stranger but the decree holder himself ?
3. Different views were expressed by various High Courts. The Supreme Court has rendered several judgments touching upon the point. Still there are grey areas.
4. In this context, it is relevant to advert to the relevant provisions in the Code of Civil Procedure 1908 and in the erstwhile Codes.
5. Under the 1859 Code, no sale of immovable property would become absolute until confirmation of the sale by the Court. S.316 of the Code of 1877 was amended in 1879. The proviso to S.316 as amended was to the effect that the purchaser would get title to the property from the date of confirmation of sale only if the decree under which the sale took place was subsisting on that date. S.316 with the proviso was re-enacted in the Code of 1882. In the Code of 1908, S.316 was split up into S.65 and O.XXI R.94 but the proviso was not included either in S.65 or in R.94 of O.XXI.
6. S.65 of the Code of 1908 provides that where immovable property is sold in execution of a decree and such sale has become absolute, the property shall be deemed to have vested in the purchaser from the time when the property is sold and not from the time when the sale becomes absolute. R.92 (1) of O.XXI states that where no application is made under R.89, R.90 or R.91, or where such application is made and disallowed, the court shall make an order confirming the sale, and thereupon the sale shall become absolute. The proviso therein provides that where any property is sold in execution of a decree pending the final disposal of any claim to, or any objection to the attachment of, such property, the court shall not confirm such sale until the final disposal of such claim or objection. Where sale of immovable property has become absolute, the Court shall grant a certificate to the purchaser, under R.94 of O.XXI, which is usually called the ‘sale certificate’. There is no provision in the Code of 1908 which makes any provision for safeguarding the interests of the judgment debtor in case the decree under which the sale took place is varied, set aside or reversed. A provision similar to the proviso to S.316 of the Code of 1877 as amended in 1879 is absent in the 1908 Code.
7. In Sorimuthu v. Muthukrishna (AIR 1933 Mad. 598), Justice Madhavan Nair made a comparative study of the relevant provisions in the Code of 1859 and the subsequent Codes upto 1908. The Supreme Court in Janak Raj v. Gurdial Singh (1967 KLT SN 5 (C.No.10) SC = AIR 1967 SC 608) referred with approval the decision of Justice Madhavan Nair.
8. In Binayak Swain v. Ramesh Chandra Panigrahi and Anr. (AIR 1966 SC 948), a money suit was decreed ex parte by the appellate court. In Second Appeal, the High Court set aside the decree and remanded the case to the trial court. After remand, though the trial court dismissed the suit, the appellate court decreed the suit and it was confirmed in Second Appeal. Before remand of the suit, the properties of the judgment debtor were sold in Court auction and purchased by the decree holder. The judgment debtor filed an application for restitution. It was resisted on all grounds including the ground that after remand, the suit was decreed. The matter went up to the Supreme Court. The Supreme Court held that the judgment debtor was entitled to restitution. It was held:
“We are of the opinion that the appellant is entitled to restitution notwithstanding anything which happened subsequently as the right to claim restitution is based upon the existence or otherwise of a decree in favour of the plaintiff at the time when the application for restitution was made. The principle of the doctrine of restitution is that on the reversal of a decree, the law imposes an obligation on the party to the suit who received the benefit of the erroneous decree to make restitution to the other party for what he has lost. This obligation arises automatically on the reversal or modification of the decree and necessarily carries with it the right to restitution of all that has been done under the erroneous decree; and the Court in making restitution is bound to restore the parties, so far as they can be restored, to the same position they were in at the time when the Court by its erroneous action had displaced them from. It should be noticed, in the present case, that the properties were purchased by the decree holder himself in execution of the ex parte decree and not by a stranger auction purchaser. After the ex parte decree was set aside in appeal and after a fresh decree was passed on remand, the sale held in execution of the ex parte decree becomes invalid and the decree holder who purchased the properties in execution of the invalid decree is bound to restore to the judgment debtor what he had gained under the decree which was subsequently set aside.”
9. In Janak Raj’s case (1967 KLT SN 5 (C.No.10) SC = AIR 1967 SC 608), an ex parte decree for money was passed. In execution of the decree, immovable property belonging to the judgment debtor was sold in auction and it was purchased by a stranger. Later, the ex parte decree was set aside. The question arose for consideration was whether sale could be confirmed. The Supreme Court held in the affirmative. It was held:
“Ordinarily, if no application for setting aside a sale is made under any of the provisions of Rr. 89 to 91 of O.XXI, or when any application under any of these rules is made and disallowed, the Court has no choice in the matter of confirming the sale and the sale must be made absolute. If it was the intention of the Legislature that the sale was not to be made absolute because the decree had ceased to exist, we should have expected a provision to that effect either in O.XXI or in Part II of the Code of Civil Procedure of 1908 which contains Ss. 36 to 74 (inclusive).”
However, the question whether restitution can be asked for against a stranger auction purchaser at a sale in execution of a decree, invoking S.144 C.P.C., was left open.
10. In Sardar Govindrao Mahadik and Anr. v. Devi Sahai and Or. (AIR 1982 SC 989), the money decree passed by the Trial Court was set aside in Appeal and the suit was dismissed. In Second Appeal, a decree for a lesser amount was passed. Pending first appeal, the property belonging to the judgment debtor was sold in court auction and it was purchased by the decree holder for a paltry amount. The decree holder- auction purchaser later sought to get himself impleaded in an Appeal from a suit for redemption of mortgage filed by the judgment debtor and his assignee. The High Court held that the auction purchaser was entitled to get only the balance decree amount and interest. The Supreme Court, after holding that the High Court was right, only enhanced the amount to be paid to the auction purchaser. It was held (in paragraph 61) thus:
“But what happens if the auction purchaser is the decree holder himself ? In our opinion, the situation would materially alter and this decree holder-auction purchaser should not be entitled to any protection. At any rate, when he proceeds with the execution he is aware of the fact that an appeal against the original decree is pending. He is aware of the fact the resultant situation may emerge where the appeal may be allowed and the decree which he seeks to execute may be set aside. He cannot force the pace by executing the decree taking advantage of the economic disability of a judgment debtor in a money decree and make the situation irreversible to the utter disadvantage of the judgment debtor who wins the battle and loses the war”.
11. In Chinnammal v. P. Arumugham and Anr. (AIR 1990 SC 1828), a suit on promissory note was decreed. Pending appeal by the defendant, the decree was put in execution and large extent of property belonging to the judgment debtor was sold. The properties were purchased for a low price by a stranger, but who is a “sambandhi” of the decree holder. The appellate court set aside the judgment and decree and dismissed the suit. The judgment debtor moved the executing court for setting aside the sale contending that the sale was vitiated by material irregularity, fraud and collusion. He also contended that the sale should be nullified and restitution should be ordered. The Supreme Court allowed the prayer. It was held:
“10. There is thus a distinction maintained between the decree holder who purchased the property in execution of his own decree which is afterwards modified or reversed, and an auction purchaser who is not party to the decree. Where the purchaser is the decree holder, he is bound to restore the property to the judgment debtor by way of restitution but not a stranger auction purchaser. The latter remains unaffected and does not lose title to the property by subsequent reversal or modification of the decree. The Courts have held that he could retain the property since he is a bona fide purchaser. This principle is also based on the premise that he is not bound to enquire into correctness of the judgment or decree sought to be executed. He is thus distinguished from an eo nomine party to the litigation.
11. There cannot be any dispute on this proposition and it is indeed based on a fair and proper classification. The innocent purchaser whether in voluntary transfer or judicial sale by or in execution of a decree or order would not be penalised. The property bona fide purchased ignorant of the litigation should be protected. The judicial sales in particular would not be robbed of all their sanctity. It is a sound rule based on legal and equitable considerations. But it is difficult to appreciate why such protection should be extended to a purchaser who knows about the pending litigation relating to the decree. If a person ventures to purchase the property being fully aware of the controversy between the decree holder and judgment debtor, it is difficult to regard him as a bona fide purchaser. The true question in each case, therefore, is whether the stranger auction purchaser had knowledge of the pending litigation about the decree under execution. If the evidence indicates that he had no such knowledge he would be entitled to retain the property purchased being a bona fide purchaser and his title to the property remains unaffected by subsequent reversal of the decree. The court by all means should protect his purchase. But if it is shown by evidence that he was aware of the pending appeal against the decree when he purchased the property, it would be inappropriate to term him as a bona fide purchaser. In such a case the Court also cannot assume that he was a bona fide or innocent purchaser for giving him protection against restitution. No assumption could be made contrary to the facts and circumstances of the case and any such assumption would be wrong and uncalled for.”
12. In Chinnammal’s case, the Supreme Court referred to Janak Raj’s case and Sardar Govindrao Mahadik’s case. It was also held in Chinnammal’s case that the knowledge of the auction purchaser about the pending litigation would make all the difference. If he is a speculative purchaser, he is in no better position than the decree holder. Such a person need not be protected against restitution.
13. In Kumar Sudhendu Narain Deb v. Renuka Biswas and Ors. (AIR 1992 SC 385), pending appeal from the preliminary decree in a mortgage suit, final decree was passed, as no stay was granted by the appellate court. The final decree was put in execution. The mortgaged properties were sold. Strangers purchased the properties in auction. In the appeal against the preliminary decree, a compromise was arrived at between the parties. The auction purchaser was not a party to the appeal. The appellate court passed a substituted preliminary decree. The judgment debtor filed an application under S.47 C.P.C. and another application under R.90 of O.XXI. The executing court rejected the contentions of the judgment debtors and the order was confirmed in Appeal. The Supreme Court allowed the Appeal and set aside the sale. It was held that the auction sale and the confirmation of sale became non est on the passing of the substituted preliminary decree.
14. In Sudhendu Narain’s case, the Supreme Court referred to Janak Raj’s case and Sardar Govindrao Mahadik’s case. Janak Raj’s case was distinguished holding thus: “In that case the relief in the suit was unconnected with the property sold in execution of the decree. Here the relief in the suit is inextricably connected with the property sold.” It is interesting to note that Chinnammal’s case was not cited before the Supreme Court in Sudhendu Narain’s case.
15. In Padanathil Rugmini Amma v. P.K.Abdulla (AIR 1996 SC 1204), the question which arose for consideration was whether an assignee from a lessee, who got lease from the auction purchaser decree holder, could claim protection from restitution in the event of ex parte decree being set aside. The Kerala High Court held that an assignee from the decree holder- auction purchaser would be protected. The decision of the Kerala High Court (1986 KLT 769) was reversed by the Supreme Court. It was held:
“15. The distinction between a stranger who purchases at an auction sale and an assignee from a decree-holder purchaser at an auction sale is quite clear. Persons who purchase at a Court auction who are strangers to the decree are afforded protection by the Court because they are not in any way connected with the decree. Unless they are assured of title, the Court auction would not fetch a good price and would be detrimental to the decree-holder. The policy, therefore, is to protect such purchasers. This policy cannot extend to those outsiders who do not purchase at a Court auction. When outsiders purchase from a decree-holder who is an auction purchaser clearly their title is dependent upon the title of the decree holder auction purchaser. It is a defeasible title liable to be defeated if the decree is set aside. A person who takes an assignment of the property from such a purchaser is expected to be aware of the defeasibility of the title of his assignor. He has not purchased the property through the Court at all. There is, therefore, no question of the Court extending any protection to him. The doctrine of a bona fide purchaser for value also cannot extend to such an outsider who derives this title through a decree holder auction purchaser. He is aware or is expected to be aware of the nature of the title derived by his seller who is a decree holder auction purchaser.”
16. It is interesting to note that the four Judge Bench decision in Binayak Swain was not referred to in any of the aforesaid decisions except in Rugmini Amma’s case. In Rugmini Amma’s case, reliance was placed on Binayak Swain’s case, but the other decisions referred to above were not cited.
17. On a careful analysis of the decisions of the Supreme Court referred to above, to my mind, still there are several questions which arise for consideration. They are the following:
(a) In so far as the judgment debtor is concerned, what is the distinction between a money decree and a mortgage decree, in the matter of protection of his property ?
Is not the case of the judgment debtor to get back his property by restitution, stronger and justifiable in the case of a simple money decree when compared to cases in which the property is involved ?
(b) What is the nature of the enquiry to be made by the executing court to arrive at a finding that the stranger auction purchaser is a bona fide purchaser or a person set up by the decree holder ?
(c) Does not the enquiry on the question of bona fide nature of the purchase really prolong the litigation ?
(d) On whom the burden of proof lies on the question whether the auction purchaser is a bona fide purchaser and not one set up by the decree holder ?
(e) What are the safeguards a stranger auction purchaser expected to take?
(f) Is it not better if the stranger auction purchaser is told by law that his rights under the auction purchase are defeasible in case the appeal against the decree is allowed or the ex parte decree is set aside ?
(g) What difference it would make if the appeal against the decree is allowed before confirmation of sale or after confirmation of sale ?
I think it is necessary to consider whether appropriate amendment to the Code of Civil Procedure, 1908 is necessary, to deal with a century long confusion, which existed even before the enactment of the 1908 Code.
Speedy Tria - Fair Trial
By R.D. Shenoy, Sr, Advocate, HC
26/01/2009
SPEEDY TRIAL -- FAIR TRIAL
(By R.D. Shenoy, Sr.Advocate, High Court of Kerala)
Without a rigmarole, it is thought proper to straightaway enter the subject namely, how much expeditiously a Trial Judge can try a suit and deliver the judgment as the law of procedure now stands. For the first time when a plaint comes up before a Trial Court for consideration, the learned judge, unless there is reason to reject the plaint under O.VII R.11 of Code of Civil Procedure (CPC for short) orders summons to be issued to the defendant and posts the case for return of summons after taking care to fix the date so as to give sufficient time to the defendant to appear in court either directly or through counsel. (O. V C.P.C. operates). Once the summons is served, the rule of ninety days under O.VIII R. 1 is reckoned from the date of service of summons to file the written statement. The rule of ninety days was introduced in 2002. Many a Judge in the Trial Court, without taking into consideration the ground reality of reluctance of the members of the bar to change the mind-set, dispose of suits by invoking the provisions of O.VIII R.10 of C.P.C. for the sole reason that written statement is not filed. This course of action often hits the concept of fair trial. As the law now stands, grant of time to file written statement, beyond ninety days is an exception. Will it not be a desirable situation if a Trial Judge, grants one long adjournment and two short adjournments within the stipulated period of ninety days so as to comply with the rule of ninety days to complete pleadings? Sometimes it so happens that, the defendant does not file the written statement within the time when the Trial Judge sets him at ex parte the legality of which course of action one has to consider in the light of the proposition that a case can be defended even without filing a written statement. So much so instead of setting the defendant at ex parte it will be open to the Trial Judge to post the suit for evidence giving a short time to enable the plaintiff to adduce evidence either by affidavit or other wise in which case the defendant can avail of an opportunity to cross examine the plaintiff. In this scenario, the suit is likely to be disposed of within, say, four months from the date of service of summons.
It may so happen that the defendant will be alerted to file his written statement during the period beyond ninety days and the date on which the plaintiff is supposed to give evidence, in which event, guided by the concept that the delivery of justice, though must be speedy, should be fair, the learned Trial Judge should think of accepting the written statement without insisting on filing a petition to receive the written statement on file and proceed to the next stage without losing time.
It is not unusual that the written statement contains a counter claim. If the written statement contains counter claim, the trial court invariably does not fail to grant time to the plaintiff to file his defence to the counter claim. It is desirable that the Trial Judge grants sufficient but reasonable time to enable the plaintiff to file his defence to the counter claim. Trial courts are expected to be vigilant enough to probe whether in suits like partition or recovery of possession on the strength of title, defence of impartibility or dispute as regards shares or as regards title is set up on the basis of a Will, gift, tenancy etc. Though it will be an ideal situation if the defence counsel brings to the notice of the court that such a defence is taken in the written statement, the Trial Judge, of his own, may advert to the nature of the defence immediately after the written statement is filed lest at the time when the suit is listed for trial, an application for reference to Land Tribunal or an application to receive a replication by way of answer to the defence based on Will, Gift etc. set up in the written statement may arrest the progress of the trial thereby disturbing the time frame. In cases where the written statement contains a cross claim or a defence based on Will, Gift or tenancy the trial court may alert and permit the plaintiff to file replication (subsequent pleading under O.VIII R. 9) and to make this opportunity effective post the case for the said purpose bearing in mind that O.VIII R. 9 provides for an optimum time of 30 days therefor.
Occasions, though rare, arise where the trial Court is called upon to invoke Third party procedure under O.VIII-A of CPC. Invocation of the powers under O.VIII-A of CPC arises when the defendant claims to be entitled to contribution or indemnity against any person not already a party to the suit. One instance where Third party procedure is invoked is where a suit is filed by the endorsee of a promissory note against the endorser alone. In that suit the defendant (the endorser) can apply to bring the maker of the promissory note on record as defendant by invoking third party procedure.
Though rarely, a situation arises, when written statement filed by one of the defendants contain a claim of contribution from or indemnify against any other defendant in the suit. In this event also provisions of O.VIII-A (Third party procedure) will come into play.
Once the operation of O.V to O.VIII-A of C.P.C. is completed, the suit is pushed forward to the next stage, generally, to the stage of raising issues, skipping the operation of O.X to XIII of C.P.C. By this tame, the trial court must have spent, on a fair estimation, a period of 6 to 7 months reckoned from the date of service of summons on the defendant. In this context, it has to be stated that a trial Judge, if is theoretically familiar and accustomed to the type of suits and general defences thereto as contained in Appendix A to C.P.C., will find it easy to comprehend the possible issues in the type of suit before the trial court. With that understanding, the issues can be raised with the help of the counsel on both sides and bearing in mind the relevant matters stipulated in O.XIV of C.P.C. based on which issues are to be raised. It is desirable that the issues are settled in open court in the presence of the counsel on both sides. If this is done, the Trial Court as also the counsel on both sides will be alerted of the necessity of issuance of a commission for the purposes mentioned in O.XXVI of C.P.C. particularly in property disputes where identity of the property may be in dispute. As far as possible, adjournment of suit for the purpose of raising issues may be avoided. At the time of settling the issues, the Trial Court may enquire whether the requirements of procedure regarding production of documents is complied with by the parties to the suit as envisaged by O.VII R. 14, O.VII R. 17, O.VIII R. 1A and O.XIII R. 1. If there is any lapse in this regard either on the part of the plaintiff or the defendant, an opportunity to bridge the lapse may be given by posting the case for pre-trial steps specifically mentioning in the proceedings sheet “For pre-trial steps. Cure lapses regarding production of documents on time and file list of witnesses”. Time given need not exceed two weeks (vide O.XVI R. 1 C.P.C.). In case the plaintiff and/or the defendant fail to bridge the lapse and/or fail to file list of witnesses, the trial court may grant further time not exceeding ten days if prayed for. (O.XVII of C.P.C. operates). The important thing to note is that there has to be an interaction between the Trial Judge on the one hand and the counsel on both sides on the other hand at the time of raising issues. Thus the trial court makes the suit to enter into the portals of O.XVIII of C.P.C. within a period of eight months reckoned from the date of service of summons on the defendant. It may be possible for the trial court to take suits which do not involve counter claim, defences warranting filing of replication by the plaintiff and/or third party procedure, to the portals of O.XVIII of C.P.C. even before the expiry of eight months aforesaid.
In the wake of the special list system, as prevalent now, the suits, after entering the portals of O.XVIII C.P.C., have to wait till they are included in the special list for examination of witnesses and hearing of the suit. One has to think aloud whether the progress of the suit should be allowed to be arrested because of the special list system as prevalent at present. One is prone to think that utility of O.XVIII R. 4 and O.XXVI R. 4-A C.P.C. dealing with the recording of the evidence in the suit as substituted by amendment with effect from 1.7.2002 is not properly tapped by trial courts. This aspect, it is thought, requires to be dilated.
O.XVIII R. 4 C.P.C., states that examination in chief of a witness shall be on affidavit and that cross examination and re-examination of the said witness shall be taken either by the court or by the commissioner appointed by it. O.XVIII R. 6 states that the High Court or the District Judge, as the case may be, shall prepare a panel of commissioners to record the evidence under O.XVIII R.4 of C.P.C. O.XVIII R. 19 states that notwithstanding any thing contained in the rules in O.XVIII C.P.C, the court may, instead of examining witnesses in open court, direct their statements to be recorded on commission under R. 4A of O.XXVI C.P.C. O.XXVI R. 4A states that notwithstanding any thing contained in the rules, any court may in the interest of justice or for expeditious disposal of the case issue commission in any suit for examination of any person resident within the local limits of jurisdiction and the evidence so recorded shall be read in evidence. The cumulative effect of the aforesaid provisions is that recording of the evidence of witnesses by Advocate Commissioner is quite legal. However, doubts arose whether evidence in cases in which an appeal is allowed can be recorded by the commissioner appointed by court by recourse to O.XVIII R. 4 of C.P.C. The basis of this doubt is because of O.XVIII R. 5 which provides that in cases in which appeal is allowed evidence of witnesses shall be taken down by or in the presence of the Judge. The said doubt stands cleared by the Apex Court in Salem Advocate Bar Association (2005 (4) KLT SN 32 (C.No.43) SC = AIR 2005 SC 3353). The Apex Court held that O.XVIII R. 19 and O.XXVI R. 4A would override O.XVIIII R. 5(a) and (b) C.P.C.
Law being thus settled, the Trial Court, after taking the case to the portals of O.XVIII, is empowered to appoint advocate commissioner from the panel of commissioners prepared in terms of O.XVIII R. 6 to record evidence of witnesses, irrespective of the fact whether an appeal is allowed or not in the case before it. It is provided in O.XVIII R. 5 that the commissioner shall submit the report within sixty days from the date of issue of commission. No doubt care must be taken in preparing panel of commissioners so that advocates having enough experience are included in the panel. Depending upon the nature and volume of evidence likely to be adduced, the trial court will have no difficulty in fixing the time frame for submission of the report by the commissioner, in almost all cases, within sixty days. The court may direct the commissioner to submit biweekly interim report disclosing the progress in recording the evidence.
Taking into consideration the time frame provided in O.VIII R.1 and R. 9, O.XVI R. 1, O.XVIII R. 4(5) and also the time that can be granted for filing written statement in answer to counter claim or replication or to complete third party procedure, the trial court will be able to take the case to the stage of hearing the arguments within an estimated period of eleven months from the date of service of summons on the defendant.
On receipt of the report of the commissioner after recording the evidence, trial court may fix a date for hearing the arguments. As far as possible the court should make an endeavour to complete the arguments within thirty from the receipt of the report from the commissioner.
Thus judgment in the case can be pronounced within a period of thirteen/fourteen months reckoned from the date of service of summons on the defendant or even earlier depending upon the nature of the suit.
By virtue of the amended provisions in the C.P.C., progress of cases before courts is expected to be managed by the Trial Judge. Formerly it was, to a large extent, in the hands of legal practitioners or litigants. Power of the High Court was used to be invoked by challenging interlocutory orders passed by trial courts. Obtaining of an interim order of stay of further proceedings, often, arrested the progress of the case. S.115 C.P.C. was amended to achieve the goal of divesting a litigant or a legal practitioner of controlling the progress of the suit in the trial court. No doubt O.XLIII R. 1 provides for appeal from orders. As far as the trial court is concerned, a reading of O.XLIII reveals that appeal is provided against such orders, wherein there is no scope for passing an interlocutory order affecting the progress of a suit. So much so a party to the suit can invoke the visitorial jurisdiction under Art.227 of the Constitution of India challenging interlocutory orders passed by the Trial Court, which challenge will not be sustainable under S.115 C.P.C. Depending upon the nature of interlocutory orders passed by High Courts in such proceedings, at times, the progress of the suit may be arrested.
As far as Kerala is concerned, Kerala Court Fees and Suits Valuation Act contemplates twenty seven types of suit (See Ss.22 to 48 of Court Fees Act). S.50 of the Act is residuary. Of these type of suits, by and large, some of them will be of simple nature eg. Suits for money instituted by Banks having valuation less than rupees ten lakhs, suits based on promissory notes and the like. There will be suits which are complicated. There may be suits which cannot be stated to be very much complicated but at the same time are not simple. It will be desirable for a Trial Judge to categorise the total number of suits on his file into three categories namely, (a) simple, (b) not very complicated and (c) complicated. If the Judge of the High Court who is in charge of the District permits the Trial Judge to ear mark four days a month to deal with and dispose of simple suits, the cases in the (a) category need not wait in the queue to take chance after disposal of older complicated cases in (b) or (c) category. While dealing with suits arising out of partnership or commercial contracts, it will be apposite to insist on production of the partnership deed or the agreement, at the threshold, to find out whether there is arbitration agreement incorporated therein. This will enable the court to alert the defendant to invoke S.8 of the Arbitration and Conciliation Act 1996. In that event the court can dispose of the suit invoking its powers under S.8 of the Act.
Dealing with S.89 of C,P.C. which provides for settlement outside the court to reduce the burden of courts by resort to ADR Forums is left out, for the reason that the purpose of this article is confined to expeditious disposal of cases in courts under the provisions contained in O.V to O.XX of C.P.C.
No case law except Salem Advocates Bar Association is cited nor have I quoted from thought provoking literature on the subject. This is for the reason that I desired to provoke the thought of Trial Judges in the lower courts by adverting to the provisions of Civil Procedure Code with which they are familiar. To facilitate delivery of justice — which must be speedy but should be fair—what can be done immediately in the circumstances existing and without waiting for desired better facilities and/or tools necessary for better case management or court management, made me to confine to the provisions of C.P.C. I am conscious that I did it in a cursory way and many errors might have, therefore, entered my thought process reflected in this article. I am sure that this in turn will provide a ground for others to point out them and in that process the purpose of this article will be achieved. However, I assure that I will only be glad if I am criticised.
CELEBRATING 100 YEARS OF THE CODE OF CIVIL PROCEDURE, 1908
By P.K. Balasubramanyan, Chairman, E-committee, SC
12/01/2009
CELEBRATING 100 YEARS OF THE CODE OF CIVIL PROCEDURE, 1908
(By P.K.Balasubramanyan, Chairman, E-Committee, Supreme Court of India &
Former Judge, Supreme Court of India)
Almost every right has a remedy. There is a mode or manner of seeking the remedy and that is by invoking the procedural laws. Procedural laws do form the conduit through which rights are enforced. That conduit takes care of requirements consistent with the rule of law. Fairness of procedure makes for substantial justice.
A law of procedure is enacted to ensure procedural fairness. It is to ensure the upholding of the principles of natural justice. Courts often say that substantial justice should prevail over procedural requirements since law of procedure is only the handmaid of justice and not its mistress. I think these statements should be taken with caution. This is really over simplification of the problem. If you carry these concepts to the end that will create judicial chaos since there would be no proper regulation of the manner of one enforcing one’s civil rights. Procedural compliance ensures procedural justice and in turn justice according to law.
The litigant has a right. He wants to enforce it. He comes to a professional for help for enforcing it. The litigant is entitled to assume that his right will be got enforced by resort to the appropriate forum in the appropriate manner. It is the duty of the professional to set in motion the process for working out of the right of the litigant in an appropriate manner. If the litigant wants a right to be enforced against the Government, it is for the professional helper to first send a notice, in terms of S.80 of the Code, wait for the requisite period and then file the suit if it becomes necessary. If the suit is for specific performance of a contract, it is for the professional to ensure that the litigant pleads his readiness and willingness in terms of S.16(c) of the Specific Relief Act. These requirements of a notice under S.80 of the Code or a plea under S.16 (c) of Specific Relief Act can be called a procedural requirement, though, of course, in one case, the Supreme Court has said that the requirement of S. 80 of the Code is not a mere procedural one and compliance with it is mandatory. Can we leave out these requirements by saying that in the altar of substantial justice these requirements need not be emphasized? By over-emphasising the theory of procedure being a handmaid of justice we may be ushering in professional incompetence which will ultimately result in disservice to the system, to the litigant public and bring about confusion in the field of administration of justice. Justice is rendered according to law and law includes procedural law. We have, therefore, to draw a line somewhere for retaining the certainty attached to working out one’s right in a court of law.
The Civil Procedural law in India was codified for the first time in the year 1859.That Code was replaced by the Code of 1877. That Code was again replaced by the Code of Civil Procedure, 1882. Based on the experiences gained by implementing the 1882 Code, the Code of Civil Procedure, 1908 was brought in. Subject to some minor amendments it has stood the test of time. What the Codes have sought to achieve, is justice according to law. It is not justice in the absolute sense. It is to ensure that justice according to law is administered, that the law of procedure is resorted to as a means. It is in that context, we must look at the Code of 1908.
During my student days, the Code of Civil Procedure was not taught in the law colleges. We made its acquaintance only when we underwent apprenticeship after graduating in law. Even then there was no real acquaintance with the Code until we entered the Bar on enrolment. Today things are different as students are taught procedural laws even in law colleges.I joined an office specialising in civil litigation. I remember my senior telling me that I must thoroughly acquaint myself with the provisions of the Code of Civil Procedure. According to him, the Code was the Bible for civil lawyers. The earlier generation of lawyers tended to look at the Code with veneration.To some extent, I followed his advice.I became better acquainted with the code of 1908 over the years. The more acquainted I became, the more I was fascinated by its exhaustiveness, precision and usefulness. The Code was being revised on the basis of experience and I must say that astonishingly good results were achieved by enacting the Code of 1908.
The Code was tinkered with in the year 1976, 1999 and 2002. I must say with respect to everyone concerned that the amendments brought in are found to be imprecise and inadequate to fill the lacunae, if any, and have helped only in creating confusion. Take for example the concept of “substantial question of law” introduced in S.100 of the Code. No one is sure what a ‘substantial question of law’ in a given case is. If you are going to understand the expression, “substantial question of law” in the vacuum, all that a second appellate court has to do or can do is to dismiss at the admission stage almost all the second appeals. Surely, that would not have been the intention of the authors of the amendment, especially when we recall the view of the Supreme Court that whether a substantial question of law arises, has to be judged with reference to the particular case and the factual and legal situation arising therefrom. Similar is the amendment brought to S.115 of the Code which precludes the High Court from exercising its jurisdiction even if there is going to be failure of justice. What is wrong if the High Court is given the power to correct an error whether of law or of procedure, even at the inception rather than leave the whole thing to the final stage and then interfere, invariably sending the litigant back to the original court for a fresh round of litigation. The adage “a stitch in time saves nine” is apparently forgotten.
O. VIII R.1 as it stood, gave the Court adequate discretion to give time to a defendant to file a written statement. The Courts misused that discretion by allowing a defendant to file his written statement even two or three years after his appearance. This abuse of discretion is sought to be met by amending R.1 and fixing an outer limit of 90 days for filing a written statement and curtailing the power of extension under S.148. Does it mean that it would be substantial justice for a Court to decree a suit in terms of O. VIII R.10 on the expiry of 90 days of appearance or 120 days of appearance? Will it not be a harsh consequence especially in a substantial litigation where a substantial defence is available? If the Trial Court passes such a decree, following the proper procedure, can any appellate court interfere with it? If yes, on what ground? For following the Code strictly? The amendment has not ensured the rendering of substantial justice but has only curtailed the discretion of the Court which might really result in injustice. Such amendments have not improved the Code. The obsession with ensuring a quick end to litigation has only harmed the code.The Privy Council said long ago that there was nothing wrong with the provisions of the Code, but the fault lay in the inadequate or improper implementation of its provisions. The amendments made in 1976 and 2002 have sought to deal with the implementation part and that too with limited success. The amendments have only added impetuous to the faulty implementation that has pervaded our system.
The failure to amend the provisions relating to execution of decrees in a meaningful manner has harmed the code. The provisions dealing with execution or enforcement of the right declared by the decree has faced criticism. It was suggested that O.XXI should be made less cumbersome and the process should be made quicker. But there has been no attempt by the lawmakers to do this. Some amendments brought to O.XXI in the year 1976 have only further contributed to protraction. We still do not have an answer to the observation of the Privy Council that the travail of a litigant in India starts on his obtaining a decree.
It is not necessary in this article to detail the provisions of the Code or to notice the exhaustiveness of the provisions. It is enough to emphasis that the procedure, starting from the inception of a litigation to its end is taken care of. The various stages of the litigation are dealt with in detail and procedural safeguards are provided at every stage.Procedural safeguards ensure that justice in a cause is rendered according to law and in conformity with principles of natural justice. The Code makes enforcement of rights non-arbitrary and consistent with natural justice and the rule of law. One defending is given a fair opportunity to defend. One criticism of the Code is that it has given undue leeway to the one defending the proceeding at least to delay it, if not to thwart the working out of the rights itself.
On the whole, the Code has served us well for the last 100 years. The courts must be conscious of the defects in implementation and tighten up commitment to the implementation of the provisions of the Code in letter and spirit. This alone will ensure speedy and fair justice to the litigants.
100 Years of CPC, 1908
By Siby Mathew, Cheif Editor, KLT
12/01/2009
100 Years of Civil Procedure Code, 1908
The Code of Civil Procedure came into force for the first time as Act 8 of 1859. This was amended by Acts 18 of 1878 and 12 of 1879 and then superseded by the Code of 1882 (Act 14 of 1882). This was further amended by Acts 15 of 1882, 14 of 1885, 4 of 1886, 10 of 1886, 7 of 1887, 6 of 1888, 10 of 1888, 13 of 1889, 8 of 1890, 6 of 1892, 5 of 1894, 7 of 1895, 13 of 1895 and later superseded by Code of 1908. Though embellished through subsequent amendments such as Act 104 of 1976, Act 46 of 1999 and Act 22 of 2002, the present Code of Civil Procedure, 1908, which came into force w.e.f. 1.1.1909 has withstood the test of time for over a century. The more one delves into it, the more fascinated does one get by its depth and exhaustiveness.
Starting from the current issue, Kerala Law Times, is proud to bring out a series of scholarly articles on the Code of Civil Procedure, 1908, written by eminent Judges and other learned legal luminaries. The articles will throw more light on the intricacies of this amazing Code, and will whet your appetite for more. The articles will mark the centenary of the Code coming into force, while coinciding with KLT’s 60th Year of committed service to the legal fraternity.
Chief Editor