# ). SALEM ADVOCATE BAR ASSOCIATION, TAMIL NADU v. UNION OF INDIA

- **Citation:** [2005] Supp. 1 S.C.R. 929
- **Court:** Supreme Court of India
- **Decided:** 2005-08-02
- **Bench:** Y.K. Sabharwal, D.M. Dharmadhikari, Tarun Chatterjee
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/salem-advocate-bar-association-tamil-nadu-v-union-of-india-20659
- **Pages:** 86

## Headnote

Code of Civil Procedure, I 908:
B
Section 26(2) and Order 6 Rules I 5(4) and 17-Pleadings-Affidavit in C
support of-Effect of-Held: Has the effect of fixing additional responsibility
on the deponent as to the truth of the facts stated in the pleadings-However,
such an affidavit would not be evidence for the purpose of the trial-Further,
on amendment of the pleadings, a fresh affidavit shall have to be filed in
consonance thereof
Order 18 Rule 4(1) and proviso (as amended by Act 22 of 2002 w.ej
1. 7.2002)-Examination-in-chief-To be on affidavit in every case-Validity
of-Held: Requirement is valid-In the light of 0.18 R. 4(1) proviso, there is
D
no question of inadmissible documents being read into evidence-Further, in
appropriate cases the trial Court can permit the examination-in-chief to be E
recorded in open Court.
Order 18 Rule 4(2) and proviso (as amended by Act 22 of 2002 w.ej
1. 7.2002) and Order 26 Rule 4-A (as inserted by Act 46 of 1999 w.ej
1. 7.2002)-Witnesses-Cross-examination or re-examination of-By the
Commissioner-Additional burden on the litigant~Validity-Held: The power F
is valid-However, in complex cases prayer for recording of evidence by the
Commissioner may be declined by the Court-The fee payable to the
Commissioner is likely to be less than the expenditure incurred towards
attending Court on various dates and, thus, there would be no additional
burden on the litigant.
G
Order 18 Rule 4 (as amended by Act 22 of 2002 w.e.f 1.7.2002)-
Recording of evidence-By Commissioner-Original documents-Safe custody
of-Held: Duties of Commissioner laid down-Jn this regard, High Courts
directed to frame necessary rules, regulations or issue practice directions.
929
II
930
SUPREME COURT REPORTS [2005) SUPP. 1 S.C.R.
A
Order 18 .Rule 4(4)-Recording of evidence-By CommissionerDemeanour of witnesses-Benefit of watching of-Held: Although the Court
is deprived of the benefit of watching the demeanour of the witnesses yet the
Court would have the benefit of the Commissioner's observations in this
regard-Hence, power of the Commissioner to record evidence valid
B
Order 18 Rule 4-Recording of evidence-By CommissionerEmpanelling of advocates for-On the basis of tests in the subjects of CPC
and Evidence Act-Validity-Held: It is a good practice-However, High
Courts to examine this aspect and decide to adopt or not such a procedure.
Order I 8 Rule 4-Recording of evidence-By Commissioner-Appelable
C cases-Power to appoint Commissioner-Held: In view of the overriding effect
of 0. 18 R. 19. fas inserted by Amendment Act 46 of 1999) the Court is
empowered to appoint a Commissioner in appealable case as well.
Order 18 Rule 4-Recording of evidence-By Commissioner-Hostile
D witness-Power of Commissioner to declare-Heid: The discretion to declare
a witness hostile has not been conferred on the Commissioner-Such a power
can be exercised by the Commissioner after obtaining permission from the
Court under S. 154 of the Evidence Act-Evidence Act, 1872, S. 154.
Order 18 Rule 17-A-Deletion of-By Amendment Act 46of1999 w.ef
E 1. 7.2002-Ejfect of-Production of evidence at a later stage-Held: Even
before insertion of 0. 18 R. 17-A, the Court had inherent power under S. 151
to permit parties to produce evidence not known to them earlier or which
could not be produced in spite of due diligence-Therefore, deletion of 0. 18
R. 17-A does not disentitle production of evidence at a later stage.
F
Order 8 Rule I and proviso--Written statement-Upper limit for filing
of-Maximum period of 90 days-Extension of-Permissibility-Held: The
provision is directory-Court is empowered to grant further time after expiry
of 90 days in accordance with 0. 8 R. JO-However, such extension of time
should be granted only in exceptionally hard cases and not in a routine
G manner.
Order 6 Rule 17 proviso--Amendment of pleadings-"At any stage"-
Power of Court-Curtailment of-Held: The provision to some extent curtails
absolute discretion to allow amendment at any stage-if amendment

## Text

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).
SALEM ADVOCATE BAR ASSOCIATION, TAMIL NADU
A
v.
UNION OF INDIA
AUGUST 2, 2005
[Y.K. SABHARWAL, D.M. DHARMADHIKARI AND
TARUN CHATTERJEE, JJ.]
Code of Civil Procedure, I 908:
B
Section 26(2) and Order 6 Rules I 5(4) and 17-Pleadings-Affidavit in C
support of-Effect of-Held: Has the effect of fixing additional responsibility
on the deponent as to the truth of the facts stated in the pleadings-However,
such an affidavit would not be evidence for the purpose of the trial-Further,
on amendment of the pleadings, a fresh affidavit shall have to be filed in
consonance thereof
Order 18 Rule 4(1) and proviso (as amended by Act 22 of 2002 w.ej
1. 7.2002)-Examination-in-chief-To be on affidavit in every case-Validity
of-Held: Requirement is valid-In the light of 0.18 R. 4(1) proviso, there is
D
no question of inadmissible documents being read into evidence-Further, in
appropriate cases the trial Court can permit the examination-in-chief to be E
recorded in open Court.
Order 18 Rule 4(2) and proviso (as amended by Act 22 of 2002 w.ej
1. 7.2002) and Order 26 Rule 4-A (as inserted by Act 46 of 1999 w.ej
1. 7.2002)-Witnesses-Cross-examination or re-examination of-By the
Commissioner-Additional burden on the litigant~Validity-Held: The power F
is valid-However, in complex cases prayer for recording of evidence by the
Commissioner may be declined by the Court-The fee payable to the
Commissioner is likely to be less than the expenditure incurred towards
attending Court on various dates and, thus, there would be no additional
burden on the litigant.
G
Order 18 Rule 4 (as amended by Act 22 of 2002 w.e.f 1.7.2002)-
Recording of evidence-By Commissioner-Original documents-Safe custody
of-Held: Duties of Commissioner laid down-Jn this regard, High Courts
directed to frame necessary rules, regulations or issue practice directions.
929
II
930
SUPREME COURT REPORTS [2005) SUPP. 1 S.C.R.
A
Order 18 .Rule 4(4)-Recording of evidence-By CommissionerDemeanour of witnesses-Benefit of watching of-Held: Although the Court
is deprived of the benefit of watching the demeanour of the witnesses yet the
Court would have the benefit of the Commissioner's observations in this
regard-Hence, power of the Commissioner to record evidence valid
B
Order 18 Rule 4-Recording of evidence-By CommissionerEmpanelling of advocates for-On the basis of tests in the subjects of CPC
and Evidence Act-Validity-Held: It is a good practice-However, High
Courts to examine this aspect and decide to adopt or not such a procedure.
Order I 8 Rule 4-Recording of evidence-By Commissioner-Appelable
C cases-Power to appoint Commissioner-Held: In view of the overriding effect
of 0. 18 R. 19. fas inserted by Amendment Act 46 of 1999) the Court is
empowered to appoint a Commissioner in appealable case as well.
Order 18 Rule 4-Recording of evidence-By Commissioner-Hostile
D witness-Power of Commissioner to declare-Heid: The discretion to declare
a witness hostile has not been conferred on the Commissioner-Such a power
can be exercised by the Commissioner after obtaining permission from the
Court under S. 154 of the Evidence Act-Evidence Act, 1872, S. 154.
Order 18 Rule 17-A-Deletion of-By Amendment Act 46of1999 w.ef
E 1. 7.2002-Ejfect of-Production of evidence at a later stage-Held: Even
before insertion of 0. 18 R. 17-A, the Court had inherent power under S. 151
to permit parties to produce evidence not known to them earlier or which
could not be produced in spite of due diligence-Therefore, deletion of 0. 18
R. 17-A does not disentitle production of evidence at a later stage.
F
Order 8 Rule I and proviso--Written statement-Upper limit for filing
of-Maximum period of 90 days-Extension of-Permissibility-Held: The
provision is directory-Court is empowered to grant further time after expiry
of 90 days in accordance with 0. 8 R. JO-However, such extension of time
should be granted only in exceptionally hard cases and not in a routine
G manner.
Order 6 Rule 17 proviso--Amendment of pleadings-"At any stage"-
Power of Court-Curtailment of-Held: The provision to some extent curtails
absolute discretion to allow amendment at any stage-if amendment is sought
after commencement of trial it has to be shown that in spite of due diligence,
H such amendment could not have been sought earlier-The object is to prevent
.,,.:·--~
SALEM ADV. BAR ASSON., TAMIL NADU v. U.0.1.
931
frivolous application which are filed to delay the trial-There is no illegality A
in the provision.
Order 5 Rules 9(3) and 9-A-Service of summons-Through courierValidity-Held: Provision valid and permissible-However, there is a danger
of false reports of service-High Courts directed to issue expeditiously requisite
guidelines to the trial Courts by framing appropriate rules, order, regulations B
or practice directions.
Order 17 Rule I (2)-Costs of adjournment-Mandat01y or directoryHeld: Awarding of costs is mandatory-However, the same should be realistic
and as far as possible actual cost incurred by the other party should be C
awarded where the adjournment is found to be avoidable.
Order I 7 Rule 1 (1) proviso-Number of adjournments-Upper limit of
three adjournments-Validity of-Held: It cannot be said that though
circumstances may be beyond the control of a party, further adjournment
cannot be granted because of restriction of three adjournments-In some D
extreme cases (natural calamities or hospitalization) adjournments beyond
three may be granted-Ultimately, it would depend upon the facts and
circumstances of each case-However, grant of adjournment is not a right of
a party-The grant of adjournment by a Court has to be on the party showing
special and extraordinary circumstances-It cannot be in routine-While
granting adjournment legislative intent to restrict number of adjournments to E
be kept in mind
Order 18 Rule 2(4)-Deletion of-By Amendment Act 46of1999 w.ej
I. 7.2002-Effect-Power of Court to call for any witness at any stage-Held:
Is not affected bv the deletion-Court has inherent power to call any witness
at any stage suo moto or on the prayer of a party.
F
Order 18 rule 2(3-A) to (3-D)-Written and oral arguments-Time limitFixing of-Held: Is fixed to save time of Court-The object is to help in
administering fair. and speedy justice. ·
Order 7 Rule 14-Production of documents-"Plaintiffs witnesses"- G
Held: The words "plaintiff's witnesses" have been mentioned as a result of,
mistake committed by the legislature-The words ought to be "defendant's
witnesses "-Till the mistake is corrected by the legislature, the words
"plaintiffs witnesses" would be read as "defendant's witnesses".
H
932
SUPREME COURT REPORTS [2005] SUPP. 1 S.C.R.
A
Order 9 Rule 5-Dismissal of suit after summons returned unservedPlaintiff to apply for fresh summons within seven days-Mandatory or
directory-Held: The period of seven days is clearly directory.
Order 11 Rule 15-Jnspection of documents-"At or before the settlement
of issues "-Held: This stipulation is directory-It does not mean that the
B inspection cannot be allowed after the settlement of issues.
Section 39(4) Order 21 Rules 3 and 48-Transfer of decree-Power of
Court to execute decree outside its jurisdiction-Held: S. 39( 4) does not dilute
the provisions of 0. 21 Rules 3 and 48, which allow such execution of decree
C subject to fulfilment of conditions mentioned therein.
Section 64(2)-Private transfer of property-After attachmentProhibition-Scope and validity of-Held: There is no ambiguity in S. 64(2).
Sections 35, 35-A, 35-B and 95--Costs-Held: When Section 35(2)
D provides for cost to follow the event, it is implicit that the costs have to be
those which are reasonably incurred by a successful party except in those
cases where the Court in its discretion may direct otherwise by recording
reasons therefor-The costs have to be actual reasonable costs like (i) cost of
time spent by the successful party; (ii) incidental cost, if any; (iii) payment of
Court fee; (iv) lawyer's fee; and (v) typing and other costs if! relation to the
E litigation-,.-High Courts to examine these aspects and, wherever necessary,
make requisite rules, regulations or practice direction so as to provide
appropriate guidelines for the subordinate Courts to follow.
Section 80-Notice-Two months' period under~bject of-Held: Notice
period of two months is provided for the Government to send a suitable
F reply-The object is to curtail delay-The practice of Government Officers
giving evasive and vague replies deprecated-All concerned Governments,
Central or. State or other authorities directed to nominate, within three months,
an Officer who should be made responsible to ensure that replies are sent
within the period stipulated after due application of mind-Despite such
G nomination, in case of failure to send proper replies, Court should ordinarily
award heavy cost against the Government and direct it to take appropriate
action against the concerned Officer including recovery of costs from him.
Section 115 (as amended by Act 46of1999 w.e.f 1. 7.2002)-Effect ofPower of revision-Held: The power of High Court under Arts. 226 and 227
H remains untrammeled by the amendment in S. 115 and is available to be
SALEM ADV. BAR ASSON., TAMIL NADUv. U.0.1.
933
,,,_.,,
exercised subject to rules of self-discipline and practice which are well settled A
Section 148-(as amended by Act 46 of 1999 w.e.f 1.7.2002)-
Enlargement of time-Upper limit of 30 days-Effect of-Held: Extension of
time beyond 30 days can be permitted where sufficient cause exists or events
are beyond the control of the party-However, S. 148 does not apply to cases
to which Limitation Act is applicable-Limitation Act, 1963.
B
Section 89 and Order JO Rule 1-A (as amended by Act 46of1999 w.ej
1. 7.2002)-Alternative Dispute Resolution (ADR)-Held: If there exists an
element of a settlement which may be acceptable to the parties, they should
be made to apply their minds so as to opt for one or the other of the four ADR C
methods mentioned in S. 89.
Section 89 and Order 10 Rules 1-A to 1-C-Resolution of disputes by
Lok Ada/at-Applicability of ADR Rules-Held: Rules framed under Part X of
CPC are applicable and not the Rules framed under the Arbitration and
Conciliation Act, 1996 or the Legal Services Authority Act, 1987-High Courts D
directed to examine Draft Civil Procedure ADR and Mediation Rules and
finalise the 'same expeditiously-The Registrar Generals, the Central
Government and the State/Union Territories shall file the progress reports in
regard to the action taken within a period of four months-Legal Services
Authority Act, 1987.
Section 89(2)(a) {inserted by Act 46of1999 w.ej 1. 7.2002)--Settlement
of disputes outside the Court-Arbitration and Conciliation Act, 1996Applicability of-To disputes referred to under S. 89(2)(a)-Held: Is applicable
only after the stage of reference to arbitration or conciliation and not before
the stage of reference-.lf.rbitration and Conciliation Act, 1996.
Section 89(2)(a)-Settlement of disputes outside the Court-Legal
Services Authority Act, 1987-Applicability of-To disputes referred to Lok
Ada/at under S. 89(2)(a)-Held: Is applicable only after the stage of reference
to Lok Ada/at and not before the stage of reference.
E
F
Section 89(2)(d) and Order JO Rule 1-C-Mediation--Compromise G
between the parties-Terms of-Fixation of-Held: If mediation succeeds Court
to effect the compromise and pass a decree in accordance with the terms of
settlement accepted by .the parties~But the Court is not involved in the actual
mediation/conciliation-However, where settlement is not arrived at the
referring Court is not debarred from hearing the matter afresh.
H
934
SUPREME COURT REPORTS [2005] SUPP. I S.C.R.
A
Section 89(2)-Settlement of disputes outside the Court-Nature of
....---.
proceedings-Held: The four alternatives, namely, arbitration, conciliation,
judicial settlement including settlement through Lok Ada/at and mediation are
meant to be actions of persons or institutions outside the Court and not before
the Court.
B
Section 89(2)(a) and (d)-Mediation and conciliation-Difference
between-Held: In 'conciliation' there is a little more latitude and conciliator
can suggest some terms of settlements too.
Section 89(2)(a) and (d)-Panel of mediators/conciliators-Ru/es
C regarding-Held: Where parties are unable to reach a consensus on an agreed
name, the Court may make a reference to panel of mediators/conciliatorsHigh Courts and district Courts directed to take appropriate steps in
preparation of the requisite panels.
Section 89(2)(a) and (d)-Compulsory reference to mediation!
D conciliation-Commission under-Expenditure on-Held: The Central
Government is directed to examine the suggestion that such expenditure be
borne by the Government and, if it is agreed, it should request the Planning
and Financial Commissions to make specific financial allocation for the
judicimy-Jn case Central Government has any reservations, the same should
be placed before Supreme Court within four months.
E
F
G
Section 89-ADR rules-Applicability of-To disputes arising under the
Family Courts Act-Held: The Family Court Act applies the CPC for all
proceedings before it and, therefore, ADR rules made under CPC could be
applied to supplement the rules made under the Family Court Act-Family
Court Act, 1984.
Section 89-Reference to ADR-Settlement of matter-Refund of Court
fee-Held: State Governments directed to amend the laws on the lines of the
amendment made in the Central Court Fee Act by Act 46 of 1999.
Constitution of India, 1950:
Article 247 Schedule VII List I-Courts subordinate to High CourtFunds for establishment of-Judicial impact assessment-Held: Financial
memorandum to be attached to each bill indicating the budgetary requirement
for meeting the expenses of the additional cases that may arise out of the new
H bill if it is passed by the legislature-Central Government directed to examine
}
SALEM ADV. BAR ASSON., TAMIL NADU v. U.0.1.
935
the above suggestion and submit a report to Supreme Court within four months. A
Article 21-F air, speedy and inexpensive justice-Right to-Model Case
Flow Management Rules-Adoption of-Held: High Courts directed to examine
the said Rules and consider the question of adopting the said Rules with or
without modification-The Registrar Generals, the Central Government and
the State/Union Territories shall file the progress reports in regard to the B
action taken within a period of four months.
Words & Phrases:
"Conciliation" and "mediation"-Meaning of-Jn the context of Section
89(J)(b) and (d) of the Code of Civil Procedure, 1908.
C
The challenge made to the constitutional validity Of amendments
ma.de to the Code of Civil Procedure, 1908 by Amendment Acts of 1999
and 2002 was rejected by this Court in Salem Advocates Bar Association,
TN. v. Union of India, (2003) 1 sec 49, but it was noticed in that judgment D
that modalities have to be formulated for the manner in which Section 89
of the Code and, for that matter, the other provisions which have been
introduced by way of amendments might have to be operated. For this
purpose, a Committee was constituted so as to ensure that the amendments
become effective and result in quicker dispensation of justice. It was
further observed that the Committee might consider devising a model case E
management formula as well as rules and regulations whieh should be
followed while taking recourse to the Alternate Dispute Resolution referred
to in Section 89.
Disposing of the petition, the Court
HELD: 1. The affidavit required to be filed under the amended
Section 26(2) and Order VI Rule 15(4) of the Code of Civil Procedure,
1908 has the effect of fixing additional responsibility on the deponent as
F
to the truth of the facts stated in the pleadings. It is, however, made clear
that such an affidavit would not be evidence for the purpose of the trial. G
Further, on amendment of the pleadings, a fresh affidavit shall have to
be filed in consonance thereof. (951-E]
2.1. The Court has already been vested with the power to permit
affidavits to be filed as evidence as provided in Order XIX Rules 1 and 2
of the Code. It has to be kept in view that the right of cross-examination H
936.
SUPREME COURT REPORTS [2005] SUPP. l S.C.R.
A and re-examination in open Court has not been disturbed by Order XVIII
Rule 4 inserted by amendment. It is true that after the amendment crossexainination can be before a Commissioner but no exception can be taken
in regard to the power of the legislature to amend the Code and provide
for the examination-in-chief to be on affidavit or cross-examination before
a Commissioner. The scope of Order XVIII Rule 4 had been examined
B and its validity upheld in Salem Advocates Bar Association's case. There is
also no question of inadmissible documents being read into evidence merely
on account of such documents being given exhibit numbers in the affidavit
filed by way of examination-in-chief. Further the trial Court in appropriate
cases can permit the examination-in-chief to be recorded in the Court. The
C proviso to Order XVIII Rule 4(2) clearly suggests that the Court has to
apply its mind to the facts of the case, nature of allegations, nature of
evidence and importance of the particular witness for determining whether
the witness shall be examined in Court or by the Commissioner appointed
by it. The power under Order XVIII Rule 4(2) is required to be exercised
with great circumspection having regard to the facts and circumstances
D of the case. It is not necessary to lay down hard and fast rules controlling
the 'discretion of the Court to appoint a Commissioner to record crossexamination and re-examination of witnesses. The purpose would be
served by noticing some illustrative cases which would serve as broad and
general guidelines for the exercise of discretion. For instance, a case may
E involve complex question of title, complex question in partition or suits
relating to partnership business or suits involving serious allegations of
fraud, forgery, and serious disputes as to the execution of the Will etc. In
such cases, as far as possible, the Court may prefer to itself record the
cross-examination of the material witnesses. (951-G-H; 952-A-D]
F
Salem Advocates Bar Association, T.N v. Union of India, [2003) I SCC
49, relied on.
2.2. Although when evidence is recorded by the Commissioner, the
Court would be deprived of the benefit of watching the demeanour of
G witnesses yet the will of the legislature, which has, by amending the Code,
provided for recording evidence by the Commissioner for saving Court's
time taken for the said purpose, cannot be defeated merely on the ground
that the Court would be deprived of watching the demeanour of the
witnesses. Further, in some cases, which are complex in nature, the prayer
for recording evidence by the Commissioner may be declined by the Court.
H In any case Order XVIII Rule 4, specifically provided that the
SALEM ADV. BAR ASSON., TAMIL NADU v. U.0.1.
937
...........
Commissioner may record such remarks as it thinks material in respect A
of the demeanour of any witness while under examination. The Court
would have the benefit of the observations if made by the Commissioner.
(952-E, F, G]
3.1. In some States, advocates are being required to pass a test B
conducted by the High Court in the subjects of Civil Procedure Code and
Evidence Act for the purpose of empanelling them on the panels of
Commissioners. It is a good practice. However, it is for the High Courts
<
to examine this aspect and decide to adopt or not such a procedure.
..
(952-H]
c
3.2. Regarding the apprehension that the payment of fee to the
Commissioner will add to the burden of the litigant, generally the expenses
incurred towards the fee payable to the Commissioner is likely to be less
than the expenditure incurred for attending the Courts on various dates
for recording of evidence besides the harassment and inconvenience to
attend the Court again and again for the same purpose and, therefore, in D
reality in most of the cases, there could be no additional burden.
(953-A,·B]
4. Order XVIII Rule 19 which was inserted by the Amendment Act
of 1999 overrides Order XVIII Rule 5 which provides the Court to record E
evidence in all appealable cases. The Court is, therefore, empowered to
appoint a Commissioner for recording of evidence in appealable cases as
well. (953-E]
5.1. The discretion to declare a witness hostile has not been conferred
on the Commissioner. The powers delegated to the Commissioner under F
Order XXVI Rules 16, 16-A, 17 and 18 do not include the discretion that
is vested in Court under Section 154 of the Evidence Act, 1872, to declare
a witness hostile. (954-B)
5.2. If a situation as to declaring a witness hostile arises before a
G
Commission recording evidence, the concerned party shall have to obtain
permission from the Court under Section 154 of the Evidence Act and it
is only after grant of such permission that the Commissioner can allow a
party to cross-examine his own witness. Having regard to the facts of the
case, the Court may either grant such permission or even consider to
,•
withdraw the Commission so as to itself record the remaining evidence H
938
SUPREME COURT REPORTS [2005] SUPP. I S.C.R.
A or impose heavy costs if it finds that permission was sought to delay the
r· ..
progress of the suit or harass the opposite party. [954-C-D)
6. Undoubtedly, the Commissioner has to take proper care of the
original documents handed over to him either by Court or filed before
B
him during recording of evidence. In this regard, the High Courts may
frame necessary rules, regulations or issue practice directions so as to
ensure safe and proper custody of the documents when the same are before
the Commissioner. It is the duty and obligation of the Commissioners to
keep the documents in safe custody and also not to give access of the record
~
to one party in absence of the opposite party or his counsel. The
....
c Commissioners can be required to redeposit the documents with the Court
in cases long adjournments are granted and for taking back the documents
before the adjourned date. [954-E, F]
7. Even before insertion of Order XVIII Rule 17-A, the Court had
inbuilt power to permit parties to produce evidence not known to them
D earlier or which could not be produced in spite of due diligence. Order
XVIII Rule 17-A did not create any new rights but only clarified the
position. Therefore, deletion of Order XVIII Rule 17-A does not disentitle
production of evidence at a later stage. On a party satisfying the Court
that after exercise of due diligence that evidence was not within his·
E knowledge or could not be produced at the time the party was leading
evidence, the Court may permit leading of such evidence at a later stage
on such terms as may appear to be just. [955-A, BJ
Salem Advocates Bar Association, TN. v. Union of India, [2003) 1 SCC
49, relied on.
F
8.1. The use of the word 'shall' in Order VIII Rule 1 by itself is not
conclusive to determine whether the provision is mandatory or directory.
The object which is required to be served by this provision and its design -
and context in which it is enacted has to be ascertained. The use of the
G
word 'shall' is ordinarily indicative of the mandatory nature of the
provision but having regard to the context in which is used or having
regard to the intention of the legislation, the same can be construed as
directory. The Rule in question has to advance the cause of justice and
not to defeat it. The rules of procedure are made to advance the cause of
justice and not to defeat it. Construction of the rule or procedure which
H promotes justice and prevents miscarriage has to be preferred. The rules
~ ...
SALEM ADV. BAR ASSON., TAMIL NADU v. U.O.I.
939
.........
or procedure are handmaid of justice and not its mistress. In the presen~ A
context, the strict interpretation would defeat justice. [959-B-C)
8.2. In construing Order VIII Rule 1, support can also be had from
Order VIII Rule 10 which provides that where any party from whom a
written statement is required under Rule 1 or Rule 9, fails to present the B
same within the time permitted or fixed by the Court, the Court shall
pronounce judgment against him, or make such other order in relation
to the suit as it thinks fit. On failure to file written statement under this
provision, the Court has been given the discretion either to pronounce
..
judgment against the defendant or make such other order in relation to
suit as it thinks fit. In the context of the provision, despite use of the word c
'shall', the Court has been given the discretion to pronounce or not to
pronounce the judgment against the defendant even if written statement
is not filed and instead pass such order as it may think fit in relation to
the suit. In construing the provision of Order VIII Rule 1 and Rule 10,
the doctrine of harmonious construction is required to be applied. The
D
effect would be that under Rule 10 of Order VIII, the Court in its
. discretion would have power to allow the defendant to file written
statement even after expiry of period of 90 days provided in Order VIII
Rule 1. There is no restriction in Order VIII Rule 10 that after expiry of
ninety days, further time cannot be granted. The Court has wide power
....
to 'make such order in relation to the suit as it thinks fit'. Clearly, E
,..._
therefore, the provision of Order VIII Rule 1 providing for upper limit
of 90 days to file written statement is directory. 1957-D, G]
8.3. However, it is made clear that the order extending time to file
the written statement cannot be made in routine. The time can be extended
only in exceptionally hard cases. While extending time, it has to be borne F
in mind that the legislature has fixed the upper time limit of 90 days. The
discretion of the Court to extend the time shall not be so frequently and
routinely exercised so as to nullify the period fixed by Order VIII Rule 1.
[957-H; 958-A)
·Raza Buland Sugar Co. Ltd. v. The Municipal Board, AIR (1965) SC G
895, Sangram Singh v. Election Tribunal, AIR (1955) SC 425 and Topline
Shoes Ltd v. Corporation Bank, [2002) 6 SCC 33, relied on.
9.1. Section 39 of the Code does not authorize the Court to execute
~~
the decree outside its jurisdiction but it does not dilute the other provisions H
'
940
SUPREME COURT REPORTS (2005] SUPP. I S.C.R.
A giving such power on compliance of conditions stipulated in those
provisions. Thus, the provisions, such as, Order XXI Rule 3 or Order XXI
Rule 48 which provide differently, would not be affected by Section 39(4)
of the Code. (958-F]
9.2. The concept of registration has been introduced in Section 64(2)
B of the Code to prevent false and frivolous cases of contracts being set up
with a view to defeating the attachments. If the contract is registered and
there is subsequent attachment, any sale deed executed after attachment
will be valid. If it is unregistered, the subsequent sale after attachment
would not be valid. Such sale would not be protected. There is no
C ambiguity in Section 64(2). (959-A, BJ
10. The proviso to Order VJ Rule 17, to some extent, curtails absolute
discretion to allow amendment at any stage. Now, if an application is filed
after commencement of trial, it has to be shown that in spite of due
diligence, such amendment could not have been sought earlier. The object
D is to prevent frivolous applications which are filed to delay the trial. There
is no illegality in the provision. (959-D]
11. The problem in respect of service of summons has been one of
the major causes of delay in the due progress of the case. It is common
E knowledge that the defendants have been avoiding to accept summons.
There have been serious problems in process-serving agencies in various
Courts. There can, thus, be no valid objection in giving opportunity to
the plaintiff to serve the summons on the defendant or get it served
through courier as provided in Order V Rule 9. There is, however, a
danger of false reports of service. It is required to be adequately guarded.
F The Courts shall have to be very careful while dealing with a case where
orders for deemed service are required to be made on the basis of
endorsement of such service or refusal. The High Courts can make
appropriate rules and regulations or issue practice directions to ensure
that such provisions of service are not abused so as to obtain false
G endorsements. Jn this regard, the High Courts can consider making a
provision for filing of affidavit setting out details of events at the time of
refusal of service. For instance, it can be provided that the affidavit of
person effecting service shall state as to who all were present at the time
and also that the affidavit shall be in the language known to the deponent.
It can also be provided that if the affidavit or any endorsement as to
H service is found to be false, the deponent can be summarily tried and
SALEM ADV. BAR ASSON., TAMIL NADU v. U.0.1.
941
--~
punished for perjury and the courier company can be black-listed. The A
guidelines as to the relevant details to be given can be issued by the High
Courts. The High Courts, it is hoped, would issue as expeditiously as
possible, requisite guidelines to the trial Courts by framing appropriate
rules, order, regulations or practice directions. [959-G, H; 960-A-D]
12.1. The awarding of cost under Order XVII Rule 1(2) has been B
made mandatory. Costs that can be awarded are of two types. First, cost
·~
occasioned by the adjournment and second such higher cost as the Court
deems fit The provision for costs and higher costs has been made becau~e
of practice having been developed to award only a nominal cost even then
adjournment on payment of costs is granted. Ordinarily, where the costs c
or higher costs are awarded, the same should be realistic and as far as
possible actual cost that had to be incurred by the other party shall be
awarded where the adjournment is found to be avoided but is being
granted on account of either negligence or casual approach of a party or
is being sought to delay the progress of the case or on any such reason. D
{960-E; 961-C-D]
12.2. The provisos to Order XVII Rule 1 and Order XVII Rule 2
have to be read together. So read, Order XVII does not forbid grant of
adjournment where the circumstances are beyond the control of the party.
E
In such a case, there is no restriction on the number of adjournments to
be granted. It cannot be said that even if the circumstances are beyond
the control of a party, after having obtained third adjournment, no further
adjournment would be granted. There may be cases beyond the control
of a party despite the party having obtained three adjournments. Fo-r
instance, a party may be suddenly hospitalized on account of some serious F
ailment or there may be serious accident or some act of God leading to
devastation. It cannot be said that though circumstances may be beyond
the control of a party, further adjournment cannot be granted because of
restriction of three adjournments as provided in proviso to Order XVII
Rule 1. In some extreme case, it may become necessary to grant a.
adjournment despite the fact that three adjournments have already been
granted (take the example of Bhopal Gas Tragedy, Gujarat earthquake
and riots, devastation on account of Tsunami). Ultimately, it would depend
upon the facts and circumstances of each case, on the basis whereof the
Court would decide to grant or refuse adjournment. (960-G-H; 961-A-Cl
. ./
f
942
SUPREME COURT REPORTS [2005] SUPP. I S.C.R.
A
13.1. Further, to save the proviso to Order XVII Rule l from the
''ice of Article 14 of the Constitution it is necessary to read it down so as
not to take away the discretion of the Court in the extreme hard cases as
noted above. The limitation of three adjournments would not apply where
adjournment is to be granted on account of circumstances beyond the
B control of a party. Even in cases which may not strictly come within the
category of circumstances beyond the control of a party, the Court by
resorting to the provision of higher cost which can also include punitive
cost in the discretion of the Court, adjournment beyond three can be
granted having regard to the injustice that may result on refusal thereof,
with reference to peculiar facts of a case. [961-D, E, F]
c
13.2. However, grant of any adjournment let alone first, second or
third adjournment is not a right of a party. The grant of adjournment by
a Court has to be on a party showing special and extraordinary
circumstances. It cannot be in routine. While considering the prayer for
D grant of adjournment, it is necessary to keep in mind the legislative intent
to restrict grant of adjournments. (961-G]
14.l. The omission of Order XVIII Rule 2(4) by the 1999 amendment
docs not take away the Court's inherent power to call for any witness at
any stage either suo moto or on the prayer of a party invoking the inherent
E powers of the Court. (962-B)
14.2. The object of filing written arguments or fixing time limit of
oral arguments as laid down in Order XVIII Rule 2 sub-rules (3-A) to (3D) is with a view to saving time of the Court. The adherence to the
p requirement of these rules is likely to help in administering fair and speedy
justice. (962-C)
15. In Order VII Rule 14(4) the words 'plaintiffs witnesses' have
been mentioned as a result of mistake seems to have been committed by
the legislature. The words ought to be 'defendant's witnesses'. Till the
G legislature corrects the mistake, the words 'plaintifPs witnesses' would be
read as 'defendant's witnesses' in Order VII Rule 14(4). [963-BJ
16. Sections 35, 35-A and 95 of the Code deal with three different
aspects of award of cost and compensation. Under Section 95 cost can be
H awarded up to Rs. 50,000 and under Section 35-A, the costs awardable
•
.)
SALEM ADV. BAR ASSON ., TAMIL NADU v. U.0.1.
943
are up to Rs. 3,000. The award of the cost of the suit is in the discretion A
of the Court. In Sections 35 and 35-B, there is no upper limit of amount
of cost awardable. (963-C, D, EJ
17. Judicial notice can be taken of the fact that many unscrupulous
parties take advantage of the fact that either the costs are not awarded B
or nominal costs are awarded on the unsuccessful party. Unfortunately,
it has become a practice to direct the parties to bear their own costs. In
large number of cases, such an order is passed despite Section 35(2) of
the Code. Such a practice also encourages filing of frivolous suits. It also
leads to taking up of frivolous defences. Further, wherever costs are
awarded, ordinarily the same are not realistic and are nominal. When C
Section 35(2) provides for cost to follow the event, it is implicit that the
costs have to be those which are reasonably incurred by a successful party
except in those cases where the Court in its discretion may direct otherwise
by recording reasons therefor. The costs have to be actual reasonable costs
including the cost of the time spent by the successful party, the D
transportation and lodging, if any, or any other incidental cost besides the
payment of the Court fee, lawyer's fee, typing and other cost in relation
to the litigation. It is for the High Courts to examine these aspects and
wherever necessary make requisite rules, regulations or practice direction
so as to provide appropriate guidelines for the subordinate Courts to
follow. [963-G, H; 964-A-B]
E
18.1. The two months' period mentioned in Section 80(1) of the Code
has been provided for so that the Government shall examine the claim
put up in the notice and has sufficient time to send a suitable reply. The
underlying object is to curtail the litigation. The object also is to curtail
the area of dispute and controversy. Similar provisions also exist in various
other legislations as well. Wherever the statutory provision requires the
service of notice as a condition precedent for filing of suit and prescribed
period therefor, it is not only necessary for the governments or
departments or other statutory bodies to send a reply to such a notice but
F
it is further necessary to properly deal with all material points and issues G
raised in the notice. The Gover.nments, Government departments or
statutory authorities are defendants in large number of suits pending in
various Courts in the country. Judicial notice can be taken of the fact that
in large number of cases either the notice is not replied or in a few cases
where reply is sent, it is generally vague and evasive. The result is that H
944
SUPREME COURT REPORTS [2005] SUPP. I S.C.R.
A the object underlying Section 80 of the Code and similar provisions gets
defeated. It not only gives rise to avoidable litigation but also results in
heavy expense and cost to the exchequer as well. Proper reply can result
in reduction of litigation between State and the citizens. In case proper
reply is sent either the claim in the notice may be admitted or area of
B controversy curtailed or the citizen may be satisfied on knowing the stand
of the State. There is no accountability in the Government, Central or State
or the statutory authorities in violating the spirit and object of Section
80. (964-D, E, F, G]
18.1. These provisions cast an implied duty on all concerned
C Governments and State and statutory authorities to send appropriate reply
to such notices. Having regnd to the existing state of affairs, it is directed
that all concerned Governments, Central or State or other authorities,
whenever any statute requires service of notice as a condition precedent
for filing of suit or other proceedings against it, to nominate, within a
D period of three months, an Officer who shall be made responsible to ensure
that replies to notices under Section 80 or similar provisions are sent within
the period stipulated in a particular legislation. The replies shall be sent
after due application of mind. Despites such nomination, if the Court finds
that either the notice has not been replied or reply is evasive and vague
and has been sent without proper application of mind, the Court shall
E ordinarily award heavy cost against the Government and direct it to take
appropriate action against the concerned Officer including recovery of
costs from him. (964-H; 965-A-C]
F
19. The power of the High Court under Articles 226 and 227 of the
Constitution is always in addition to the revisional jurisdiction conferred
on it. Curtailment of revisional jurisdiction of the High Court under
Section 115 of the Code as amended by Amendment Act 46 of 1999 does
not take away and could not have taken away the constitutional
jurisdiction of the High Court. The power exists, untrammeled by the
amendment in Section 115 and is available to be exercised subject to rules
G of self-discipline and practice which are well settled. [966-A, Bl
Surya Dev Rai v. Ram Chander Rai, [2003) 6 SCC 675, relied on.
20.1. The upper limit of 30 days fixed in Section 148 of the Code
H cannot take away the inherent power of the Court to pass orders as may
SALEM ADV. BAR ASSON., TAMIL NADU v. U.0.1.
945
be necessary for the ends of justice or to prevent abuse of process of Court. A
The rigid operation of the Section would lead to absurdity. Section 151
has, therefore, to be allowed to fully operate. Extension beyond the
maximum of 30 days, thus, can be permitted if the act could not be
performed within 30 days for the reasons beyond the control of the party.
However, Section 148 does not apply to cases to which the Limitation Act, B
1963 is applicable. (966-D, E)
20.2. There can be many cases where non-grant of extension beyond
30 days would amount to failure of justice. The object of the Code is not
to promote failure of justice. Section 148, therefore, deserves to be read
down to mean that where sufficient cause exists or events are beyond the C
control of a party, the Court would have inherent power to extend time
beyond 30 days. (967-C)
Mahanth Ram Das v.