SALEM ADVOCATE BAR ASSOCIATION, TAMIL NADU v. UNION OF INDIA (2)

Citation: [2005] SUPP. 1 S.C.R. 929

Court: Supreme Court of India

Bench: Y.K. SABHARWAL, D.M. DHARMADHIKARI, TARUN CHATTERJEE

Case summary

SALEM ADVOCATE BAR ASSOCIATION, TAMIL NADU v. UNION OF INDIA (2).pdf

Judgment text

SALEM ADVOCATE BAR ASSOCIATION, TAMIL NADU v. UNION OF INDIA AUGUST 2, 2005 [Y. K. SABHARWAL, D. M. DHARMADHIKARI AND TARUN CHATTERJEE, JJ. ] Code of Civil Procedure, I908: Section 26(2) and Order 6 Rules I5(4) and 17-Pleadings-Affidavit in support of-Effect of-Held: Has the effect offixing additional responsibility on the deponent as to the truth ofthe facts stated in the pleadings-However, such an affidavit would not be evidence for the purpose ofthe 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 of2002 w. ej 1. 7. 2002)-Examination-in-chief-To be on affidavit in every case-Validity of-Held: Requirement is valid-In the light of0. 18 R. 4(1) proviso, there is no question of inadmissible documents being read into evidence-Further, in appropriate cases the trial Court can permit the examination-in-chief to be recorded in open Court.

Order 18 Rule 4(2) and proviso (as amended by Act 22 of2002 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 is valid-However, in complex cases prayer for recording ofevidence 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. Order 18 Rule 4 (as amended by Act 22 of 2002 w. e. f 1. 7. 2002)- Recording ofevidence-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 Order 18 .

Rule 4(4)-Recording of evidence-By Commissioner- Demeanour ofwitnesses-Benefit ofwatching of-Held: Although the Court is deprived ofthe benefit ofwatching the demeanour ofthe 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 Order 18 Rule 4-Recording of evidence-By Commissioner- Empanelling 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 I8 Rule 4-Recording ofevidence-By Commissioner-Appelable cases-Power to appoint Commissioner-Held: In view ofthe 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 witness-Power ofCommissioner 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 1. 7. 2002-Ejfect of-Production of evidence at a later stage-Held: Even before insertion of0. 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 ofdue diligence-Therefore, deletion of0. 18 R. 17-A does not disentitle production ofevidence at a later stage.

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 of90 days in accordance with 0. 8 R. JO-However, such extension oftime should be granted only in exceptionally hard cases and not in a routine manner. Order 6 Rule 17 proviso--Amendment ofpleadings-"At any stage"- Power ofCourt-Curtailment of-Held: The provision to some extent curtails absolute discretion to allow amendment at any stage-ifamendment is sought after commencement oftrial it has to be shown that in spite ofdue diligence, such amendment could not have been sought earlier-The object is to prevent SALEM ADV. BAR ASSON. , TAMIL NADU v. U. 0. 1. . ,,. :·--~ frivolous application which are filed to delay the trial-There is no illegality in the provision.

Order 5 Rules 9(3) and 9-A-Service ofsummons-Through courier- Validity-Held: Provision valid and permissible-However, there is a danger offalse reports ofservice-High Courts directed to issue expeditiously requisite guidelines to the trial Courts by framing appropriate rules, order, regulations or practice directions. Order 17 Rule I(2)-Costs ofadjournment-Mandat01y or directory- Held: Awarding ofcosts is mandatory-However, the same should be realistic and as far as possible actual cost incurred by the other party should be awarded where the adjournment is found to be avoidable.

Order I7 Rule 1(1) proviso-Number ofadjournments-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 extreme cases (natural calamities or hospitalization) adjournments beyond three may be granted-Ultimately, it would depend upon the facts and circumstances ofeach case-However, grant ofadjournment is not a right of a party-The grant ofadjournment 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 ofadjournments to be kept in mind Order 18 Rule 2(4)-Deletion of-By Amendment Act 46of1999 w. ej I. 7. 2002-Effect-Power ofCourt 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 ofa party.

Order 18 rule 2(3-A) to (3-D)-Written and oral arguments-Time limit- Fixing 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 ofdocuments-"Plaintiffs witnesses"- 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". 932 SUPREME COURT REPORTS [2005] SUPP. 1 S. C. R. Order 9 Rule 5-Dismissal ofsuit after summons returned unserved- Plaintiff 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 ofdocuments-"At or before the settlement of issues"-Held: This stipulation is directory-It does not mean that the inspection cannot be allowed after the settlement of issues.

Section 39(4) Order 21 Rules 3 and 48-Transfer ofdecree-Power of Court to execute decree outside its jurisdiction-Held: S. 39(4) does not dilute the provisions of0. 21 Rules 3 and 48, which allow such execution ofdecree subject to fulfilment ofconditions mentioned therein. Section 64(2)-Private transfer of property-After attachment- Prohibition-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) 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, ifany; (iii) payment of Court fee; (iv) lawyer's fee; and (v) typing and other costs if! relation to the 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 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 nomination, in case offailure 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 of- Power ofrevision-Held: The power ofHigh Court under Arts. 226 and 227 remains untrammeled by the amendment in S. 115 and is available to be SALEM ADV. BAR ASSON. , TAMIL NADUv. U. 0. 1. ,,,_. ,, exercised subject to rules ofself-discipline and practice which are well settled Section 148-(as amended by Act 46 of 1999 w. e. f 1. 7. 2002)- Enlargement oftime-Upper limit of30 days-Effect of-Held: Extension of time beyond 30 days can be permitted where sufficient cause exists or events are beyond the control ofthe party-However, S. 148 does not apply to cases to which Limitation Act is applicable-Limitation Act, 1963. 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 ofa 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 ofthe four ADR methods mentioned in S. 89.

Section 89 and Order 10 Rules 1-A to 1-C-Resolution ofdisputes by Lok Ada/at-Applicability ofADR 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 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 offour 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, 1996- Applicability of-To disputes referred to under S. 89(2)(a)-Held: Is applicable only after the stage ofreference to arbitration or conciliation and not before the stage ofreference-. 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 ofreference to Lok Ada/at and not before the stage ofreference. Section 89(2)(d) and Order JO Rule 1-C-Mediation--Compromise between the parties-Terms of-Fixation of-Held: Ifmediation 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. 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 ofpersons or institutions outside the Court and not before the Court. 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 ofsettlements too. Section 89(2)(a) and (d)-Panel of mediators/conciliators-Ru/es regarding-Held: Where parties are unable to reach a consensus on an agreed name, the Court may make a reference to panel ofmediators/conciliators- High 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!

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. 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 ofmatter-Refund ofCourt fee-Held: State Governments directed to amend the laws on the lines ofthe 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 Court- Funds for establishment of-Judicial impact assessment-Held: Financial memorandum to be attached to each bill indicating the budgetary requirement for meeting the expenses ofthe additional cases that may arise out ofthe new bill ifit is passed by the legislature-Central Government directed to examine SALEM ADV. BAR ASSON. , TAMIL NADU v. U. 0. 1. the above suggestion and submit a report to Supreme Court within four months. Article 21-Fair, speedy and inexpensivejustice-Right to-Model Case Flow Management Rules-Adoption of-Held: High Courts directed to examine the said Rules and consider the question ofadopting 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 action taken within a period offour months.

Words & Phrases: "Conciliation" and "mediation"-Meaning of-Jn the context ofSection 89(J)(b) and (d) of the Code of Civil Procedure, 1908. 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 ofIndia, (2003) 1 sec 49, but it was noticed in that judgment 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 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 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. 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 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 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 ofexamination-in-chief. Further the trial Court in appropriate cases can permit the examination-in-chief to be recorded in the Court.

The 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 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 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] Salem Advocates Bar Association, T. N v. Union ofIndia, [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 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. In any case Order XVIII Rule 4, specifically provided that the SALEM ADV. BAR ASSON. , TAMIL NADU v. U. 0. 1. ........... Commissioner may record such remarks as it thinks material in respect 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 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. e listed before the Court (for examination ofparties under Order X ofthe Civil Procedure Code. A joint statement of admitted facts shall be filed before the said date.

) The Court shall thereafter, follow the procedure prescribed under the Alternative Dispute Resolution and Mediation Rules, 2002. 6. Procedure on the failure of Alternate Dispute Resolution : On the filing of report by the Mediator under the Mediation Rules that efforts at Mediation have failed, or a report by the Conciliator under the provisions of the Arbitration and Conciliation Act, 1996, or a report of no settlement in the Lok Adalat under the provisions of the Legal Services Authority Act, 1987 the suit shall be listed before the registry within a period of 14 days. At the said hearing before the registry, all the parties shall submit the draft issues proposed by them. The suit shall be listed before the Court within 14 days thereafter for framing of issues. When the. suit is listed after failure of the attempts at conciliation, arbitration or Lok Adalat, the Judge may merely inquire whether it is still possible for the parties to resolve the dispute.

This should invariably be done by the Judge at the first hearing when the matter comes back on failure of conciliation, mediation or Lok Adalat. If the parties are not keen about settlement, the Court shall frame the issues and direct the plaintiff to start examining his witnesses. The procedure of each witness filing his examination-in-chief and being examined in cross or re-examination will continue, one after the other. After completion of evidence on the plaintiff's side, the defendants shall lead evidence likewise, witness after witness, the chief examination of each witness being by affidavit and the witness being then cross-examined or re-examined. The parties shall keep he affidavit in chief-examination ready whenever the witness's examination is taken up. As far as possible, evidence must be taken up day by day as stated in clause (a) of proviso to Rule 2 of Order XVII.

The parties shall also indicate the likely duration for the evidence to be completed, and for the arguments to be thereafter heard. The Judge shall ascertain the availability of time of the Court and will list the matter for trial on a date when the trial can go on from day to day and conclude the evidence. The possibility of further negotiation and settlement should be kept open and if such a settlement takes place, it should be open to the parties to move the registry for getting the matter listed at an earlier date for disposal. 7. Referral to Commissioner for recordal of evidence : (a) The High Court shall conduct an examination on the subjects of the Code of Civil Procedure and Evidence Act. Only those advocates who have passed an examination conducted by the High Court on the subjects of 'Code of Civil Procedure' and Evidence Act, - shall be appointed as Commissioners for recording evidence. They shall be ranked according to the marks secured by them.

(b) It is not necessary that in every case the Court should appoint a Commissioner for recording evidence. Only ifthe recording of evidence is likely to take a long time, or there are any other special grounds, should the Court consider appointing a Commissioner for recording the. e¥idence. The Court should direct that the matter be listed for arguments fifteen days after the Commissioner files his report with the evidence.. · The Court may initially fix a spe. cific period. for the· completion of the recording of the evidence by the Commissioner and direct the matter to be listed on the date ofexpiry of the period, so that Court may know whether the parties are CO"Operating with the Commissioner and whether the recording of evidence is getting unnecessarily prolonged.

(c) Commissioners should file an undertaking in Court upon their appointment that they will keep the records handed over to them and those that may be filed before them, safe and shall not allow any party to inspect them in the absence of the opposite party/counsel. If there is delay of more than one month in the dates fixed for recording evidence, it is advisable for them to return the file to the Court and take it back on the eve of the adjourned date. 8. Costs : So far as awarding of costs at the time ofjudgment is concerned, awarding of costs must be treated generally as mandatory in as much as the liberal attitude of the Courts in directing the parties to bear their own costs had led parties to file a number of frivolous cases in the Courts or to raise frivolous and unnecessary issues. Costs should invariably follow the event. Where a party succeeds ultimately on one is.

sue or point but loses on number ofother issues or points which were unnecessarily raised, costs must be appropriately apportioned. Special reasons must be assigned if costs are not being awarded. Costs should be assessed according to rules in force. If any of the parties has unreasonably protracted the proceedings, the Judge should consider exercising discretion to impose exemplary costs after taking into account the expense incurred for the purpose of attendance on the adjourned dates. 9. Proceedings for Perjury : If the Trial Judge, while delivering the judgment, is of the view that any of the parties or witnesses have wilfully and deliberately uttered blatant falsehoods, he shall consider (at least in some grave cases) whether it is a fit case where prosecution should be initiated for perjury and order prosecution accordingly. 10. Adjournments : .

The amendments to the Code have restricted the number of adjournments to threein the course of hearing ofthe suit, on reasonable cause being shown. When a suit is listed before a Court and any party seeks adjournment, the Court shall have to verify whether the party is seeking adjournment due to circumstances beyond the control of the party, as required by clause (b) of proviso to Rule 2 of Order XVII. The Court shall impose costs as specified in Rule 2 of Order XVII. ' 11. Miscellaneous Applications : ,... . The proceedings in a suit shall not be stayed merely because of the filing of Miscellaneous Application in the course of suit unless the Court in its discretfoii expressly thinks it necessary to stay the proceedings in the suit III. First Appeals to Subordinate Courts 1.

Service of Notice of Appeal: First Appeals being appeals on question of fact and law, Courts are generally inclined to admit the appeal and it is only in exceptional cases that the appeal is rejected at the admission stage under Rule 11 of Order XLI. In view of the amended CPC, a copy of the memorandum of appeal is required to be filed in the subordinate Court. It has been clarified by the Supreme Court that the requirement of filing a copy of appeal memorandum in the sub-ordinate Court does not mean that appeal memorandum cannot be filed in the Appellate Court immediately for obtaining interim orders. Advance notice should simultaneously be given by the counsel for the party who is proposing to file the appeal, to the counsel for the opposite party who appeared in the sub-ordinate Court so as to enable the respondents to appear if they so choose, even at the first hearing stage. 2.

Essential Documents to be filed with the Memorandum ofAppeal: The Appellant shall, as far as possible, file, along with the appeal, copies of essential documents marked in the suit, for the purpose of enabling th. e appellate Court to understand the points raised or for purpose of passing interim orders. 3. Fixation of time limits in interlocutory matters : Whenever notice is issued by the appellate Court in interlocutory matters, the notice should indicate the date by which the reply should be filed. The rejoinder, if any, should be filed within four weeks of receipt of the reply. If there are more parties than one who are Respondents, each one of the Respondent should comply with this requirement within the time limit and the rejoinder may be filed within four weeks from the receipt of the last reply. 4.

Steps for completion ofall formalities/ (Call Work) (Hajri) : -~ The appeal shall be listed before the registry for completion of all formalities necessary before the appeal is taken up for final hearing. The procedure indicated above of listing the case before a senior officer of the appellate Court registry for giving dates in routine matters must be followed to reduce the 'call work' (Hajri) and only where judicial orders are necessary, such cases should be listed before Court. 5. Procedure on grant of interim orders : Ifan interim order is granted at the first hearing by the Court, the Respondents would have the option ofmoving appropriate applications for vacating the interim order even before the returnable date indicated in the notice and if such an application is filed, it shall be listed as soon as possible even before the returnable date. If the Court passes an ad-interim ex-parte order,.

and if the reply is filed by the Respondents and if, without good reason, the appellant . -fails to file the rejoinder, Court shall consider whether it is a fit case for vacating the stay or interim order and list the case for that purpose. This is intended to see that those who have obtained ad interim orders do not procrastinate in filing replies. The appellant may also waive his right to file the rejoinder. Such choice shall be conveyed to the registry on or before the date fixed for filing of rejoinder. Such communication of option by the applicant to the registry will be deemed to be completion of pleadings. 6. Filing of Written submissions : Both the appellants and the respondents shall be required to submit their written submissions two weeks before the commencement of the arguments in the appeal. The cause-list should indicate if written submissions have been filed or not.

Wherever they have not been filed, the Court must insist on their being filed within a particular period to be fixed by the Court and each party must serve a copy thereof on the opposite side before the date of commencement of arguments. There is no question of parties filing replies to each other's written submissions. The Court may consider having a Caution List/Alternative List to ... ,. take care of eventualities when a case does not go on before a court, . and those cases may be listed before a court where, for any reason, the scheduled cases are not taken up for hearing. 7. Costs : Awarding of costs must be treated generally as mandatory in as much as it is the liberal attitude if the Courts in not awarding costs that has led to frivolous points being raised in appeals or frivolous appeals being filed in the courts. Costs should invariably follow the event and reasons must be assigned by the appellate Court for not awarding costs.

Ifany of the parties have unreasonably protracted the proceedings, the Judge shall have the discretion to impose exemplary costs after taking into account the costs that may have been imposed - at the time of adjournments. IV. Application/Petition under Special Acts This chapter deals with applications/petitions filed under Special '• "' Acts like the Industrial Disputes Act, Hindu Marriage Act, Indian 1006 S. UPREME COURT REPORTS [2005] SUPP. I S. C. R. -- ; Succession Act etc. The Practise directions in regard to Original Suits should mutatis mutandis apply in respect of such applications/p~titions. V. Criminal Trials and Criminal Appeals to Subordinate Courts (a) Criminal Trials I. Criminal Trials should be classified based on offence, sentence and whether the accused is on bail or. in jail. Capital punishment, rape and cases involving sexual offences or dowry deaths should be kept in Track I.

Other cases where the accused is not granted bail and is in jail, should be kept in Track II. Cases which affect a large number of persons such as cases of mass cheating, economic offences, illicit liquor tragedy and food adulteration cases, etc. should be kept in Track III. Offences which are tried by special courts such as POTA, TADA, NDPS, Prevention of Corruption Act, etc. should be kept in Track IV. Track V all other offences. The endeavour should be to complete Track I cases within a period of nine months, Track II and Track III cases within twelve months and Track IV within fifteen months. 2. The High Court may classify criminal appeals pending before it into different tracks on the same lines mentioned above. (b) Criminal Appeals 3. Wherever an appeal is filed by a person in jail, and also when -' appeals are filed by State, as far as possible, the memorandum appeal may be accompanied by important documents, ifany, having a bearing on the question of bail. 4.

In respect of appeals filed against acquittals, steps for appointment of amicus curie or State Legal Aid counsel in respect of the accused who do not have a lawyer of their own should be undertaken by the registry/(State Legal Services Authority) iriimediately after completion of four weeks of service of notice. It shall be presumed that in such an event the accused is not in a position 10 appoint counsel. 5. Advance notice should simultaneously be given by the counsel for the party who is proposing to file the appeal, to the counsel for the SALEM ADV. BAR ASSON. , TAMIL NADU v. U. O. L [SABHARWAL, J. ] }007 opposite party in the subordinate Court, so as to enable the other party to appear if they so choose even at the first hearing stage. VI. Notice issued under S. 80 of Code of Civil Procedure : Every public authority shall appoint an officer responsible to take appropriate action on a notice issued under S. 80 of the Code of Civil Procedure.

Every such officer shall take appropriate action on receipt ofsuch notice. If the Court finds that the concerned officer, on receipt of the notice, failed to take necessary action or was negligent in taking the necessary steps, the Court shall hold such officer responsible and recommend appropriate disciplinary action by the concerned authority. . VII. Note Whenever there is any inconsistency between these rules and the provisions of either the Code of Civil Procedure, 1908 or the Code of Criminal Procedure 1973 or the High Courts Act or any other Statutes, the provisions of such Codes and Statutes shall prevail. (B) Model Case Flow Management Rules in High Court ............... High Court Rules, 2003 In exercise of the power conferred by Article 225 of the Constitution of India, and Chapter X of the Code of Civil Procedure, 1908 (5 of 1908) and Section...... of the....... High Court Act and all other powers enabling it, ....... the High Court hereby makes the following Rules: I.

Division of Cases into different tracks : 1. Writ Petitions : The High Court shall, at the stage of admission or issuing notice before admission categorise the Writ Petitions other than Writ of Habeas Corpus, into three categories depending on the urgency with which the matter should be dealt with : the Fast Track, the Normal Track and the Slow Track. The petitions in the Fast Track shall invariably be disposed of within a period not exceeding six months while the petitions in the Normal Track should not take longer than a year. The petitions in the Slow Track, subject to the pendency of other cases in the Court,. should ordinarily be disposed of within a period of two years. .. -- Where an interim order of stay or injunction is granted in respect of liability to tax or demolition or eviction from public premises etc. shall be put on the fast track. Similarly, all matters involving tenders would also be put on the Fast Track. These matters cannot brook delays in disposal. 2.

Senior officers of the High Court, nominated for the purpose, shall at intervals of every month, monitor the stage of each case likely to come up for hearing before each Bench (Division Bench or Single Judge) during that month which have been allocated to the different ... tracks. The details shall be placed before the Chief Justice or Committee nominated for that purpose as well as the concerned Judge dealing with cases. 3. The Judge or Judges referred to in Clause (2) above may shift the case from one track to another, depending upon the complexity, (urgency) and other circumstances of the case. 4. Where computerization is available, data will be fed into the computer in such a manner that the-court or judge or judges, referred to in Clause (2) above will be able to ascertain the position and stage of every case in every track from the computer screen. i ; : 5. Whenever the roster changes, the judge concerned who is dealing JI.

with final matters shall keep himself informed about the stage of the cases in various tracks listed before him during every week, with a view to see that the cases are taken up early. 6. Other matters : The High Court shall also divide Civil Appeals and other matters in the High Court into different tracks on the lines indicated in sub-clauses (2) to (5) above and the said clauses shall apply, mutatis mutandis, to the civil appeals filed in the High Court. The High Court shall make a subject-wise division of the appeals/ revision application for allocation into different tracks. .. i (Division of criminal petitions and appeals into different tracks is dealt with separately under the heading 'criminal petitions and .... appeals'. ) fl. Writ of Habeas Corpus : Notices in respect of Writ of Ffabeas Corpus where the person is ..

in custody under orders of a State Government or Central Government shall invariably be issued by the Court at the first listing and shall be made returnable within 48 hours. State Government or Central Government may file a brief return enclosing the relevant documents to justify the detention. The matter shall be listed after notice on the fourth working day after issuance of notice, and the Court shall consider whether a more detailed return to the Writ is necessary, and, if so required, shall give further time of a week and three days' time for filing a rejoinder. A Writ of Habeas Corpus shall invariably be disposed of within a period of fifteen days. It shall have preference over and above fast-track cases. III. Mode of Advance Service : ,. The Court rules will provide for mode of service of notice on the standing counsel for Respondents wherever available, against whom, interim orders are sought.

Such advance service shall generally relate to Governments or public sector undertakings who have Standing Counsel. FIRST APPEALS TO HIGH COURT 1. Service of Notice ofAppeal : '" First Appeals being appeals on questions of fact and law, Courts are generally inclined to admit the appeal and it is only in exceptional cases that the appeal is rejected under Order XLI Rule 11 at the 4 admission stage. In view of the amended CPC, a copy of the appeal is required to be filed in the Trial Court. It has been clarified by the Supreme Court that the requirement of filing of appeal in the Trial Court does not mean that the party cannot file the appeal in the appellate Court (High Court) immediately for obtaining interim orders. In addition to the process for normal service as per the Code of Civil Procedure, advance notice should simultaneously be given by the counsel.

for the party who is proposing to file the appeal, to the counsel for the opposite party in the Trial Court itself so as to enable them to inform the parties to appear if they so choose even at the first hearing stage. 2. Filing of Documents : ~ The Appellant shall, on the appeal being admitted, file all the --essential papers within such period as may be fixed by the High Court for the purpose the High Court understanding the scope of the , dispute and for the purpose of passing interlocutory orders. 3. Printing or typing of Paper Book : Printing and preparation of paper-books by the High Court should be done away with. After service of notice is effected, counsel for both sides should agree on the list of documents and evidence to be printed or typed and the same shall be made ready by the parties .. within the time to be fixed by the Court. Thereafter the paper book shall be got ready.

It must be assured that the paper books are ready at lease six months in advance before the appeal is taken up for arguments. (Cause lists must specify if paper books have been filed or not). 4. Filing of Written Submissions and time for oral arguments : Both the appellants and the respondents shall be required to submit their written submissions with all the relevant pages as per the Court paper-book marked therein within a month of preparation of such paper-books, referred to in para 3 above. Cause list may indicate if written submissions have been filed. If not, the Court must direct that they be filed immediately. After the written submissions are filed, (with due service of copy to the other side) the matter should be listed before the Registrar/ Master for the parties to indicate the time that will be taken for arguments in the appeal.

Alternatively, such matters may be listed before a judge in chambers for deciding the time duration and thereafter to fix a date of hearing on a clear date when the requisite extent of time will be available. In the event that the matter is likely to take a day or more, the High Court may consider having a Caution List/Alternative List to meet eventualities where a case gets adjourned due to u~avoidable reasons or does not go on before a court, and those cases may be listed before a court where, for one reason or another, the scheduled cases are not taken up for hearing. 5. Court may explore possibility ofsettlement : SALEM ADV. BAR ASSON. , TAMIL NADU v. U. 0. 1. [SABHARWAL, J. ] lQ11 At the first hearing of a First Appeal when both parties appear, the Court shall find out if there is a possibility of a settlement. If the parties are agreeable even at that stage for mediation or conciliation, the High Court could make a reference to mediation or conciliation for the said purpose.

lfnecessary, the process contemplated by Section 89 ofCPC may be resorted to by the Appel late Court so, however, that the hearing of the appeal is not unnecessarily delayed. Whichever is the ADR process adopted, the Court should fix a date for a report on the ADR two months from the date of reference. V. Appeals to Division Bench from judgment of Single Judge of High Court [Letter Patent Appeals (LPA) or similar appeals under High Courts Acts] : An appeal to a Division Bench from judgment of a Single Judge may lie in the following cases : (I) Appeals from interlocutory orders of the Single Judge in original jurisdiction matters including writs; (2) appeals from final judgments of a Single Judge in original jurisdiction; (3) other appeals permitted by any law to a Division Bench.

·11 Appeals against interlocutory orders falling under category (I) above should be invariably filed after advance notice to the opposite counsel (who has appeared before the Single Judge) so that both the sides will be represented at the very first hearing of the appeals. If both. parties appear at the first hearing, there is no need to serve the opposite side by normal process and at least in some cases, the appeals against interlocutory orders can be disposed ofeven at the first hearing. If, for any reason, this is not practicable, such appeals against interim orders should be disposed of within a period of a month. In cases referred to above, necessary documents should be kept ready by the counsel to enable the Court to dispose of the appeal against interlocutory matter at the first hearing itself. In ~II Appeals against interim orders in the High Court, in writs and civil. matters, the Court should endeavour to set down and observe a strict time limit in regard to oral arguments.

In case of Original Side Appeals/LPAs arising out of final orders in a Writ Petition or arising -- out of civil suits filed in the High Court, a flexible time schedule may be followed. The practice direction in regard to First Appeal should mutatis mutandis apply in respect ofLPAs/Original Side appeals against final judgments of the Single Judge. Writ Appeals/Letters Patent Appeals arising from orders of the Single Judge in a Writ Petition should be filed with simultaneous service on the counsel for the opposite party who had appeared before the Single Judge or on service of the opposite party. Writ Appeals against interim orders of the Single Judge should invariably be disposed of early and, at any rate, within a period of thiriy days from the first hearing. Before Writ Appeals against final orders in Writ Petitions are heard, brief written submissions must be filed by both parties within such time as ~ay be fixed by the Court. VJ.

Second Appeals : Even at the stage of admission, the questions of law with a brief synopsis and written submissions on each of the propositions should be filed so as to enable the Court to consider whether there is a substantial question of law. Wherever the Court is inclined to entertain the appeal, apart from normal procedure for service as per rules, advance notice shall be given to the counsel who had appeared in the first appeal letter Court. 'The notice ~. should require the respondents to file their written submissions ' within a period of eight weeks from service of notice. Efforts should be made to complete the hearing of the Second Appeals within a period of six months. VII. Civil Revision : A revision petition may be filed under Section 115 of the Code or under any special statute. In some High Courts, petitions under Article 227 of the Constitution of India are registered as civil revision petitions.

The practice direction in regard to LPAs and First Appeals to the High Courts, should mutatis mutandis apply in respect of revision petitions. . ... SALEM ADV. BAR ASSON. , TAMIL NADU v. U. 0. 1. [SABHARWAL, . l. ] ...... ,,_ VIII. Criminal Appeals : Criminal Appeals should be classified based on offence, sentence and whether the accused is on bail or in jail. Capital punishment cases, rape, sexual offences, dowry death cases should be kept in Track I. Other cases where the accused is not granted bail and is in jail, should be kept in Track II. Cases which affect a large number of persons such as cases of mass cheating, economic offences, illicit liquor tragedy, food adulteration cases, offences of sensitive nature should be kept in Track III. Offences which are tried by special courts such as POTA, TADA, NDPS, Prevention of Corruption Act, etc. should be kept in Track IV. Track V - all other offences.

The endeavour should be to complete Track I cases within a period of six months, Track II cases within nine months, Track III within a year, Track IV and Track V within fifteen months. Wherever an appeal is filed by a person in jail, and also when appeals are filed by State, the complete paper-books including the evidence, should be filed by the State within such period as may be fixed by Court. ..... In appeals against acquittals, steps for appointment of amicus curie or State Legal Aid counsel in respect of the accused who do not '-.. ' have a lawyer of their own should be undertaken by the Registry/ (State Legal Services Committee) immediately after completion of four weeks of service of notice. It shall be presumed that in such an event the accused is not in a position to appoint counsel, and within two weeks thereafter counsel shall be appointed and shall be furnished all the papers.

IX Note Wherever there is any inconsistency between these rules and the provisions of either the Code of Civil Procedure, 1908 or the Code of Criminal Procedure, 1973 or the High Court Act, or any other statute, the provisions of such Codes and statute, the provisions of such Codes and statutes shall prevail. " Before concluding, we wish to place on record our sincere gratitude and appreciation for the members of the Committee, in particular Hon'ble .. Mr. Justice M. Jagannadha Rao, Chairman of the Committee and Law ... ,-.... Commission of India who as usual has taken great pains in examining the whole issue in detail and going into depth of it and has filed the three Reports above referred which we hope will go a long way in dispensation of effective and meaningful administration of justice to the litigating public.

We hope that the High Courts in the country would be in a position to examine the aforesaid rules expeditiously and would be able to finalise the Rules within a period of four months. Further, we place on record our deep apprec1at10n for very useful .. assistance rendered by Senior Advocates Mr. K. Parasaran and Mr. Arun Mohan who on request from this court readily agreed to render assistance as Amicus Curie. We also record our appreciation for useful assistance rendered by Mr. Gulam Vahnavati, learned Solicitor General on behalf of Union of India and the Attorney General oflndia and Mr. T. L. V. Iyer, Senior Advocate on behalf of Bar Council of India. A copy of this judgment shall be sent to all the High Courts through Registrar Generals, Central Government through Cabinet Secretary and State Governments/Union Territories through Chief Secretaries so that expeditious follow up action can be taken by all concerned.

The Re&istrar Generals, Central Government and State/Union Territories shall file the progress repo~ y in regard to the action taken within a period of four months. .. v. s. s. Appeal partly allowed.