Reference:

Hon’ble Supreme court referred to the following cases in reaching the conclusion laid in the judgement:

1. Mahanth Ram Das v. Ganga Das, (1961) 3 S.C.R. 763 (India)
2. Arbitration and Conciliation Act, 1996 (India)
3. P Anand Gajapathi Raju v. P.V.G. Raju, (2000) 4 S.C.C. 539 (India)
4. Raza Buland Sugar Co. Ltd., Rampur v. The Municipal Board, Rampur

Disputed legal provision:

Where it appears to the court that there exist elements of a settlement which may be acceptable to the parties, the court shall formulate the terms of settlement and give them to the parties for their observations and after receiving the observation of the parties, the court may reformulate the terms of a possible settlement and refer the same for-

a) Arbitration;

b) Conciliation

c) Judicial settlement including settlement through Lok Adalat; or

d) Mediation

Provisions Involved:

• Section 26(2) of the Civil Procedure Code
• Rule 15(4) and Order VI read with Rule 15 of the Civil Procedure Code
• Order XVIII, Rule 4 of the Civil Procedure Code
• Order VIII, Rule 1 of the Civil Procedure Code
• Order VI, Rule 17 of the Civil Procedure Code
• Section 35 of the Civil Procedure Code

Brief Facts:

1. A committee was formed to ensure that the 1999 and 2002 Amendments to the Civil Procedure Code are effectively implemented and result in quicker dispense of justice.
2. The report was submitted in three parts, (a) Consideration of various grievances (b) Draft Rules for ADR and mediation (c) Case management conferences
3. The validity of this report and the amendments was challenged before the Court, in the matter.

Main Issue:

• Whether the 1999 and 2002 Amendments to the Civil Procedure Code were constitutionally valid?

Arguments and pleadings:

(i) In Section 26(2) and Order 6 Rule 15(4) of Code of Civil Procedure, 1908 in this the affidavit filed under Section 26(2) and Order 6 Rule 15(4) would not beevidence for purpose of trial.

(ii) Written statement: Order 8 Rules 1 and 10 of Code of Civil Procedure, 1908: There was a limitation for filing written statement.

There was restriction regarding extension of time for filing written statement. It was held that the limitation provided under Rule 1 is only directory and finally Court empowered to extend time limit in exceptional cases.

(iii) Execution of decree: Section 39 (4) and Order 21 Rules 3 and 48:Section 39 does not authorize the Court to execute decree outside its jurisdiction but it does not dilute other provisions giving such power on compliance of conditions stipulated therein. Order 21 Rules 3 and 48 would not be affected by Section 39(4).

(iv) Sale of attached property - Sections 64 (1) and 64 (2) of Code of Civil Procedure, 1908: Sale of attached property on basis of registered contract such a sale is protected under Section 64(2). But the protection is available only to sale affected in pursuance of contract entered prior to attachment. Sale on basis of unregistered contract not protected under Section 64(2).

(v) Notice: Section 80 of Code of Civil Procedure, 1908 Central and State Governments directed to appoint an Officer in charge of replying notices received by it under Section 80 or under other similar provisions. In case notice has not been replied or reply is evasive and vague and has been sent without proper application of mind. Court shall ordinarily award heavy cost against Government and direct it to take appropriate action against concerned Officer including recovery of costs from him.

Judgement and Principle laid down:

The report is in three parts.

• Report 1 contains the consideration of the various grievances relating to amendments to the Code and the recommendations of the Committee.
• Report 2 contains the consideration of various points raised in connection with draft rules for ADR and mediation as envisaged by section 89 of the Code read with Order X Rule 1A, 1B and 1C.
• Report 3 contains a conceptual appraisal of case management.

Report One:

• The Report discussed Section 26(2) and Rule 15(4) to Order VI, wherein it was contended that filing of an affidavit is illegal and unnecessary as there exists a requirement of filing verification.
• Another contention by the parties was that there is a conflict between Order XVIII, Rule 5(a) and (b) and Order XVIII, Rule 4. The conflict here, was that Order XVIII, Rule 5 provides for recording of evidence by the Court itself in appealable cases. However, Rule 4 and 19 of the same order enable the commissioner to record the statements in any case, notwithstanding any situation. Therefore, it appeared as if the latter provision overrode the former.
• The report also discussed an ambiguity that existed in Order VIII, Rule 1 of the Civil Procedure Code, with respect to time limit for filing of plaint.
• The report dealt with a very niche area in Court proceedings i.e. service of summons through courier. It was contended that the courier’s report about the defendant’s refusal to accept service is likely to lead to serious malpractice
• The parties also raised a contention with respect to the costs in a suit. It was contended that unscrupulous parties take advantage of the fact that either there is no awarding of costs by the Court or nominal costs are awarded on the unsuccessful parties. It was submitted that only costs which are reasonably incurred by successful parties should be granted.
• Section 80 of the Civil Procedure Code, was also brought into discussion wherein it was contended that prior notice should be served to the government before filing of a suit unless the matter is urgent and in need of an interim order.
• Section 148 of the Civil Procedure Code, was also mentioned wherein the power of Court to enlarge time was discussed. Reliance was placed on the case of Mahanth RamDas v. Ganga Das,2 and it was submitted that extension should be provided if the act could not be provided within 30 days for reasons beyond the control of the party but not for acts where the Limitation Act provides for limits.

Report Two:

The main contention by the parties in this part of the repor,t was with respect to Section 89 of the Code i.e. settlement of disputes outside Courts. The said Section provides the discretion to the Court as to if it deems fit, that certain elements can be settled between the parties, then the Court shall formulate those terms and send them for observation by the parties. However, there existed an ambiguity with respect to the applicability of the Arbitration and Conciliation Act and the CPC simultaneously. Relying on the case of P Anand Gajapathi Raju v. P.V.G. Raju,4 it was contended that if reference is made to arbitration under Section 89, the Arbitration Act will apply from the stage after reference and not before. Further, it was also submitted that even if the arbitration or any other proceeding is not successful, the Court would not be barred to try the suit afterwards. Report Three- This report dealt with introduction of case flow management and model rules. Model high court rules were provided for, which contained various regulations provided by the Committee. Further, it was also submitted that even if the arbitration or any other proceeding is not successful, the Court would not be barred to try the suit afterwards.

Report Three:

This report dealt with introduction of cash flow management and model rules. Model high court rules were provided for, which contained various regulations provided by the Committee.

Further, it was also submitted that even if the arbitration or any other proceeding is not successful, the Court would not be barred to try the suit afterwards.

Conclusion:

This case is a landmark case in the history of Indian Judiciary. This set of two cases, former one, laying down the amendments and the latter one providing a report on the amendment's feasibility have laid down the foundation of providing quick, financially accessible and proper justice. This basically intends to reduce the number of suits filed in the courts every year. The case has been referred to in numerous cases of civil nature after the amendments by the Act of 1999 and 2002. Moreover, the model provided to be followed by the trial court is an easily practicable model and does show the 'bright light of proper and speedy justice in the darkness of innumerable cases; The rules provided in the model are appropriate for the system of Indian Judiciary and hence should be properly followed.

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