The report was upheld by the court and the revisions were confirmed. Scholars and intellectuals agreed with the outcome. Nevertheless, even if the ruling changed civil litigation in India, it had certain drawbacks.
salem advocate bar association v union of india Case Facts
- The Court dismissed the challenge over the constitutional validity of the CPC modifications made by the Amendment Acts of 1999 and 2002.
- However, the ruling made clear that procedures need to be developed for how section 89 of the civil procedure code and the other provisions, which have been added through amendments, may need to be implemented.
- Three sections made up the Committee’s report:
- Report 1: Examining different complaints
- Report 2: Draft ADR and Mediation Rules
- Report 3: Conferences on case management
salem advocate bar association v union of india Issues
In salem advocate bar association v union of india, the following issues were brought up:
- Whether the 1999 and 2002 Amendment Acts’ modifications to the CPC were lawful under the constitution.
- Is it necessary to develop the procedures for how section 89 of the civil procedure code and other provisions brought about by the changes will operate?
Report 1: Examining different complaints
Amendment adding Rule 15(4) to Order VI Rule 15 and Subsection (2) to Section 26.
It was argued that the affidavit mandated by Order VI, Rule 15(4) and Section 26(2) of the Code places additional burdens on the deponent regarding the veracity of the facts included in the pleadings.
Order XVIII Rule 4 Amendment
- The parties further argued that Order XVIII, Rule 5(a) and (b), and Order VIII, Rule 4, are in conflict with one another.
- The controversy in this case stemmed from Order XVIII, Rule 5, which allows the Court to record evidence in matters that are subject to appeal.
- Nonetheless, the commissioner is permitted to record the remarks under Rule 4 and 19 of the same order, regardless of the circumstances.
- Order XVIII Rule 4(4) stipulates that the Commissioner must document any objections made throughout the evidence recording process. The Court will then address these objections during the arguments stage.
- Order XVIII Rule 4(8) states that the issue, execution, and return of such a commission under Order XXVI shall be governed, to the extent that applicable, by the requirements of Rules 16, 16-A, 17 and 18.
- The commissioner has not been given the authority to label a witness unfriendly.
Additional Evidence
- In the Salem Advocates Bar Association case, it was made clear that the law that was in place prior to the amendment’s introduction would be reinstated upon the removal of Order XVIII Rule 17-A, which allowed for the leading of further evidence.
- The Amendment Act of 2002 repealed the Rule.
- The Court is automatically empowered to allow the parties to present evidence that was previously unknown to them or that, despite their best efforts, could not be produced.
- Consequently, the removal of Order XVIII Rule 17-A does not preclude the later submission of evidence.
Order VIII Rule 1
- Order VIII Rule 1, as revised by Act 46 of 1999, stipulates that the defendant must give a written statement in support of his case within 30 days of the day the summons was served to him.
- Order VIII Rule 1’s inclusion of the word “shall” does not, by itself, establish whether the clause is directory or obligatory.
- It was argued that the purpose of procedural rules is to promote justice, not to thwart it.
- It is preferable to construct a rule or system that upholds justice and discourages miscarriages.
- Rather than being the mistress of justice, the rules or process are its handmaid.
Section 39
- The non-authorizing Court may carry out a decree outside of its purview under Section 39(4).
- However, it does not lessen the authority granted by other laws in accordance with the guidelines set forth in such provisions.
- Therefore, Section 39 (4) has no bearing on Order XXI, Rule 3, or Rule 48, which establish separate provisions.
Section 64(2)
- The Code now has Section 64(2) thanks to the Amendment Act, 22 of 2002.
- The original version of Section 64 has been renumbered as Section 64(1).
- If the aforementioned actions are carried out in accordance with a contract for such transfer or delivery that was signed and registered prior to the attachment, they are protected by subsection (2).
- In order to stop fraudulent and pointless examples of contracts being created with the intention of defeating the attachments, the registration idea was introduced.
- Any sale deed performed after attachment will be deemed lawful if the contract is recorded; otherwise, the subsequent sale after attachment will be deemed invalid. These kinds of sales wouldn’t be covered.
- Section 64, Subsection (2) is clear and unambiguous.
Costs
- The parties’ claim about the lawsuit asserted that numerous unscrupulous parties’ profit from the fact that the losing party either receives no fees or only modest costs.
- Unfortunately, requiring parties to cover their own expenses has become standard procedure.
- Such an order is issued in many instances in spite of Section 35(2) of the Code.
- This kind of behaviour also promotes the filing of pointless lawsuits.
- It also results in the raising of pointless defenses.
Section 80
- It was argued that, with the exception of situations in which an interim injunction is urgently needed, Section 80 (1) necessitates serving the government with two months’ notice before launching a lawsuit.
- A two-month interval is allowed so that the Government can review the allegation made in the notice and have the time to respond appropriately.
- The main goal is to reduce litigation, however in many instances, either notice is not answered, or the answer is typically ambiguous and evasive.
Report 2: Draft ADR and Mediation Rules
- While “shall” is used in Order X, Rule 1A, both “may” and “shall” are used in Section 89 of the C.P.C.
- When these clauses are taken as a whole, however, it becomes evident that the word “may” in Section 89 refers exclusively to the possible settlement’s rewording and its mention of one of the ADR techniques.
- There isn’t any resistance.
- It is clear that when one of the ADR modalities is mentioned, the disagreement that is encapsulated in the terms of settlement adopted or changed in compliance with Section 89 is indicated.
Report 3: Conferences on case management
- Report No. 3’s subjects include Model Rules and Case Flow Management. The number of cases that have been resolved could rise dramatically as a result of the case management policy.
- Its goal is to help the judge or another court official establish a schedule and monitor a case from start to finish.
- A distinct set of Model Case Flow Management Regulations has been provided to trial courts, first appellate subordinate courts, and supreme courts.
- These proposed regulations go into extensive depth about each stage of the case. The High Courts may examine these Rules, deliberate on the matter, and choose whether to adopt or reject case law management and model rules, with or without modification, in order to advance the goal of providing the litigating public with fair, prompt, and reasonably priced justice.
salem advocate bar association v union of india Judgment
In Salem Advocate Bar Association v. Union of India, the Supreme Court affirmed the constitutionality of the CPC modifications enacted by the Amendment Acts of 1999 and 2002. The Court further pointed out that procedures for implementing section 89 of the civil procedure code and other provisions added by the amendments must be developed.
- The modifications made it clearer how decrees are carried out, when written statements can be filed, and how affidavits can be used as evidence.
- The modifications also covered notification requirements, alternative dispute resolution procedures, and the protection of attached property sales under specific circumstances.
- A committee led by Justice M. Jagannadha Rao was established by the Court to recommend ways to implement the modifications.
- The Court emphasized the role that procedural norms play in furthering the interests of justice and guarding against injustices.
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