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V. S. Deshpande*
Revised by Dr. V. Sudesh''"1'
The key to the understanding of this subject lies in the very name "Civil
P r o c e d u r e . " Both the words "civil" and "procedure" are words of
classification. They define the residuary nature of civil procedure by
demarcating it from the other parts of law, which together with civil
procedure go to form the legal system of India. In the legal context, the
word "civil" is used in contradistinction to such words as "military,"
'criminal" and "revenue". The procedure with which we are concerned
relates to civil proceedings as distinguished from some other kinds of
proceedings such as military proceeding or a criminal proceeding or a
revenue proceeding. By and large, civil, military, criminal and revenue
procedures would fall into different compartments of law, which may be
called civil law, military law, criminal law and revenue law. In a wide sense,
the term "civil law" would denote the whole law of the state governing the
relations among its citizens inter se or between the state and the citizens as
distinguished from international law which operates among states inter se.
But in a narrower sense, civil law is only a part, though the most important
one, of the law of a state as distinguished from other parts of the law of the
state which relate to armed forces, crimes and land revenue. It is only when
revenue law is administered by separate tribunals that it retains its
distinction from civil law. But whenever it is administered by civil courts it
would be indistinguishable from civil law. This would be apparent from the
law relating to land revenue which is administered by revenue officers and
which excludes the jurisdiction of the civil courts contrasted with certain
other taxation laws which either expressly give jurisdiction to civil courts to
hear appeals etc., from the orders of the.taxing officers or which are brought
into civil courts collaterally such as by way of writ petitions under article 226
of the Constitution.
The word "procedure" as used in law is contrasted with substantive law.
The classification cuts across another classification, which is made according
to the sources of the law, namely, the division of law between statute law
and case law. For, both substantive law and the law of procedure may be
contained in statutes as well as precedents. It is not always easy to define
* Formerly Chief Justice, Delhi High Court.
'·'''■' Associate Research Professor, Indian Law Institute, New Delhi.
180 INDIAN LEGAL SYSTEM
as practicable. It was not mandatory because the food inspector may not be
able to comply with it in a particular case. It could not be the intention of
the legislature to completely defeat the exercise of the power of seizure by
the food inspector by requiring him to comply with the impossible.
The difference between the power to amend the Constitution and the
procedure to be followed in amending the C o n s t i t u t i o n assumed an
unexpected importance in the construction of article 368 of the Constitution
in /. C. Golak Nath v. State of Punjab10. According to the analysis of the
decision made by Gajendragadkar P.Bin his Tagore Law Lectures on "The
Indian Parliament and the Fundamental Rights" 11 the following three views
havr been expressed:
1. Wanchoo J., and four of his colleagues agreed with the previous
decisions of the Supreme Court in Sankari Prasad v. Union of India12
and Sajjan Singh v. State ofRajasthan1* that article 368 conferred
power on Parliament to amend the Constitution and also prescribed
the procedure in that behalf.
2. Hidayatullah J held that article 368 was sui generis and conferred
power on Parliament to amend the Constitution and also prescribed
the procedure for it. H e , however, t h o u g h t that the p o w e r
conferred by article 368 was a legislative p o w e r and not a
constituent one.
3. According to Subba Rao CJ and his four colleagues, article 368 dealt
with merely the procedure for amending the Constitution and did
not confer power in that behalf.
Substantive rights have, however, often sprung out of procedure. For,
the most important quality of a right is its enforceability. Therefore, if
procedure exists for the enforcement of a right the effect is that the right
itself has been conferred on a person who can put the machinery of
enforcement into action. It would be possible, therefore, to infer the
existence of a power or a right even without an express conferment of the
same if the procedure prescribed by the statute is sufficient for the
enforcement of such right or power. Unless, therefore, there was anything
to the contrary in the Constitution, it was possible to argue that the
existence of the power of amendment could be inferred from the availability
of the procedure for amendment in article 368. "Because", as observed by
H . M. Seervai in his Chimanlal Setalvad Lectures on the position of the
judiciary under the Constitution 1 4 "in a sense the distinction between
18 Ashoka Marketing Limited v. Sh. B. D. Gupta and another ILK 1975 (2) Delhi 659.
19. Spencer Bower and Turner, The Doctrine ofResjudicata, pp. 32-33.
20. 1962 (1) SCR 574.
188 INDIAN LEGAL SYSTEM
1. Pleadings
Amendment of pleadings
Since the purpose of a pleading is to state the materials facts out of which
issue arise for decision, parties should have full freedom to state and restate
their precise positions, so that only the relevant issues arise and they are also
sharply defined. This is why section 153 of the Code of Civil Procedure as
also order 6, rule 17 of the first schedule to the Code, enables the court to
allow the pleading to be amended at any stage of the proceedings for the
purpose of "determining the real question or issue raised by or depending
on such proceeding" or "the real questions in controversy between the
parties".
Rule 17 was omitted by the Civil Procedure Code (Amendment) Act,
1999 (not enforced). The CPC (Amendment) Act, 2002 has restored the
provision w.e.f 1-7-2002 with certain limitations. A new proviso has been
added to the rule, namely that n o application for amendment of the
pleadings shall be allowed after the trial has commenced, unless the court
comes to the conclusion that in spite of due diligence, the party could not
have raised the matter before the commencement of trial.
After reviewing the relevant case law including the Supreme Court
decisions in Nair Service Society Ltd v. Rev. Father K. C. Alexander,25 Jai Ram
Manohar Lai v. National Building Material Supply, Gurgaon,2b and Pirgonda
Hongonda Paúl v. Kolgonda Shidgonda Patil,17 a full Bench of the Delhi High
Court laid down the following propositions regarding amendments of
pleadings in Smt. Abnash Kaur v. Dr. Avinash Nayyar and others.2*
(a) Not only the whole of the claim based on a cause of action must be
pleaded but all causes of action against the same defendant may also
be pleaded in the same plaint. Indeed, if they are in the nature of
different grounds to prove the case of the plaintiff and to obtain the
proper relief, then they must be pleaded inasmuch as contructive res
judicata would bar t h e m from being raised in a subsequent
proceeding (order 2, rules 2 and 3 and section 11, explanation 4,
Code of Civil Procedure, and Rajdeo Singh v. Royal Studios).2"*
(b) Ordinarily, the plaintiff's case is restricted to the original cause of
action pleaded. But to avoid a multiplicity of suits and also in view
of the considerations enumerated in (a) above, subsequent events
may also be allowed to be pleaded during the pendency of a
proceeding by an amendment of the plaint.
Section 148 and 149 of the Code of Civil Procedure give the courts an
equally large or even a larger discretion to extend time to the parties for
doing any act prescribed or allowed by the court or by some other statute or
by an order of the court. Section 148 has since been modified by the CPC
(Amendment) Act, 1999 by introducing a period of limitation not exceeding
30 days in total for which courts in its discretion can enlarge time for doing
any act prescribed or allowed by the Code. The words "not exceeding thirty
days in total" have been inserted with a view to curtail procedural delay
caused by any party to the suit or proceeding. Enlargement of time, whether
one-time or phased, cannot exceed 30 days. Even if a compliance of a
condition precedent is stipulated by the court before a party can get the
benefit of such extension, the court is not deprived of a further discretion to
relax the manner of compliance with the condition precedent by a party. A
suit cannot be dismissed, therefore, merely on the ground that the court
cannot excuse the non-compliance of the condition precedent. 30 Of course,
when a period for doing any act is prescribed by a statute, such as the
Limitation Act, then the court has to apply the statute and has no discretion
to relax its terms, e.g. section 55 (4), order 21, rule 85, order 21, rule 92, and
Section 141 of the Code states that the procedure provided in the Code in
regard to suits shall be followed, as far as it can be made applicable, in all
proceedings in any court of civil jurisdiction. Similarly, certain statutes
contain provisions that the provisions of the Code of Civil Procedures
would apply to the proceedings under those statutes, e.g., section 53 of the
Land Acquisition Act and section 41 of the Arbitration Act. The following
guidelines may be mentioned in construing these provisions:
1. The distinction between a court and persona designate is to be borne
in mind. Section 141 of the Code of Civil Procedure applied the
provisions of the Code only to courts but not to apersona designata.
When a statute mentions that the adjudication has to be by a court
or by the presiding officer of a court stating his judicial designation,
etc., then the provisions of the Code would apply to the proceedings
in the particular court. 3 2 O n the other hand, when a person is
named to adjudicated u p o n a matter, in view of his special
qualifications but not as a court or the presiding officer of a court,
he would be acting as a persona designata.
2. Provisions of the Limitations Act are applicable to proceedings
which are conducted under the Code of Civil Procedure, because
the Limitation Act refers to the proceedings in suits, appeals and
applications. The Supreme Court has held that the provisions of the
Limitations Act are meant to apply only to suits proper in civil
courts and to appeals and revisions which arise out of them under
the Code. 33 On the other hand, when the provisions of the Code
are applied to a proceeding by virtue of section 141 or statutory
provisions making them applicable, such application must be
restricted to the provisions of the Code. The provision of the
Limitation Act applying to proceedings under the Code are not
31. See Hukum Chand v. Bansilal and others (1967) 3 SCR 695.
32. Municipal Corporation ofDelhi v. Kuldiplal Bhandari ILR 1969 Delhi 497 F.B.
3 3. Nityanand M. Joshi v. Life Insurance Corporation AIR 1970 SC 209.
CIVIL PROCEDURE 193
34. R. P. Conduit Manufacturing Co. v. Union ofIndia C.R.s 167,168 & 169 of 1974 and 410
of 1972 decided by a Division Bench of the Delhi High Court on 2.11.77.
35. Perm v. Baltimore (1750) 1 Vas. Sen. 444.
36. See Sardar Guráial Singh v. Raja ofFaridkot 1894 LR 21 LA. 171 and Andbra Bank v. R.
Srinivasam 1962 (3) S C R 391.
37. Cheshire, Private International Law, 79 et seq. and 652, 7th ed.; Graupner in 12
International and Comparative Law Quarteny 367, (1963); In reDtdles, 1951 Ch. D. 842 at
851, per Lord Denning and In re Trepca Mines Limited 1960 (1) WLR 1273.
38. AIR 1970 SC 1475.
194 INDIAN LEGAL SYSTEM
The essence of a hearing is that the defendant against whom the suit is filed
is served with a copy of the plaint so that he knows the allegations made and
the relief sought against him by the plaintiff. The summons is ordinarily
served on him through the process server of the court. To avoid delay, it
may also be served on him by registered post. An endorsement by the
process server or by the postman that the defendant has refused to accept
service may persuade the court to hold that the service is valid. But the
defendant can always show to the court that he was not served or that he
was prevented from appearance by sufficient cause. An ex parte decree
passed against him would be liable to be set aside under order 9 rule 13, on
that being done. If the plaintiff himself remains absent on a date of hearing,
his suit is liable to be dismissed and he would be precluded from filing
another suit on the same cause of action. He can also get the suit restored
under order 9 rule 4 if he shows to the court that he was prevented from
At the conclusion of the hearing of the suit, the court shall pronounce
judgment in open court. The reasons for the decision are called a judgment
while the operative part of the judgment is called a decree.
A judgment may be arrived at after the discussion of the merits of the
case or in accordance with the agreement arrived at between the parties. If
such an agreement is legal and adjusts the suit wholly or in part, the court
shall order such agreement to be recorded and shall pass a decree in
accordance therewith so far as it relates to the suit. The decree based on
such a compromise has two facts. On the one hand, it is essentially an
agreement between the parties on which the imprimatur of the court has
been put. In this respect it is liable to be challenged on any ground on which
agreement itself could be challenged, namely, fraud, misrepresentation,
undue influence, illegality, want of consideration, etc. If the agreement is
invalidated by such a challenge, the decree would also be invalidated. O n the
other hand, so long as the compromise underlying the decree is not set aside
and stands valid, the decree passed on it would also stand valid. Such a
decree has the same effect as a decree on merits in respect of res judicata.*6
Any matter which is necessarily decided by such a decree would be res
judicata between the parties and cannot be re agitated in a subsequent suit
between them.
In passing a decree, the court has a discretion in granting appropriate
relief to the plaintiff to suit the findings made in his favour by the court.
The plaintiff may move the court to take into account events happening
subsequent to the filing of the suit through ordinary rule is that the relief is
to be given in respect of the allegations made in the plaint as it stood on the
date of the filing of the plaint. Subsequent events may also be made the
subject-matter of adjudication by amendments of pleadings.
under article 136 of the Constitution may also grant special leave to appeal
against the judgment of any court or tribunal. But this is not to be regarded
as a provision conferring right of appeal.
The letters patent of the various high courts provide for appeals to
Division Benches against judgments of the single judges of the high court in
exercise of ordinary civil jurisdiction as distinguished from decisions given
in exercise of special jurisdiction, the appealability of which is determined by
the special statute. The decisions appealable under the letters patent include
those which were given by the single judge of the High Court in the exercise
of the ordinary original civil jurisdiction which was conferred on the
Bombay, Calcutta and Madras High Courts by their respective letters patent.
Much of this ordinary original civil jurisdiction has since then been
transferred to city civil courts now working in Bombay and Madras. A
reverse process took place in Delhi. The Lahore High Court and thereafter
the Punjab High C o u r t had no ordinary original civil jurisdiction.
Consequently, the High Court of Delhi did not inherit any ordinary original
civil jurisdiction from the Punjab High Court when it was constituted in
1966 by the Delhi High Court Act, 1966, section 10(1) of which conferred
on it the same jurisdiction which the Punjab High Court enjoyed under the
letters patent. But by section 10(2) of the Act, the High Court of Delhi was
given ordinary original civil jurisdiction to entertain suits involving subject-
matter of the value of Rs. 25,000 (later raised to Rs. 50,000). Therefore, the
letters patent applied to only those judgments of the Delhi High Court
which are given in the exercise of a jurisdiction inherited from the Punjab
High Court but not to the jurisdiction which was taken for the first time by
the Delhi High Court under section 10 (2) of the Delhi High Court Act
from the subordinate courts and which was not possessed by the Punjab
High Court. Therefore, appeals against judgments by single judges in
exercise of ordinary original civil jurisdiction conferred on the Delhi High
Court by section 10 (2) of the Delhi High Court Act would continue to be
governed by the Code of Civil Procedure. Therefore, just as an appeal lay
there-under only against a decree or an appealable order passed by a
subordinate court, similarly an appeal would lie even against the judgment or
an order of a single judge or the High Court only under the Code of Civil
Procedure. N o difference to appealibility has been made by the enactment
of the Delhi High Court Act.47
W h e r e no appeal lies, the order of a subordinate c o u r t may be
canvassed in a revision filed in the high court on the ground that the
subordinate court exercised the jurisdiction not vested in it by law or that it
failed to exercise the jurisdiction so vested or that it acted in the exercise of
its jurisdiction illegally or with material irregularity. Any decree or order
47. See University of Delhi v. Hafiz Mobd. Said AIR 1972 Delhi 102.
CIVIL PROCEDURE 199
from which no appeal has been preferred may be reviewed by the court
which passed it on the ground that new and important matter or evidence
which, after the exercise of due diligence, could not be produced by the
party concerned at the time when the decree was passed or order was made,
has been discovered thereafter. A mistake or error apparent on the face of
the record or any other sufficient reason may justify a review or an
amendment or a correction of the decree or judgment so as to prevent an
abuse of the process of the court. But an order or a decree cannot be
reconsidered on merits simply because the court is of the view that it was
wrong on merits.
Though it is for the plaintiff to ask for the appropriate relief in the plaint,
the court has the discretion to grant him such relief as would be suitable in
the light of the findings arrived at by the court. Such a relief may be of
various kinds such as payment of money, delivery of possession, injunctions,
specific performance, restoration of conjugal rights, declarations of various
kinds, etc. A merely declaratory decree is not capable of being executed. For,
the only relief granted thereby is the declaration. But whenever other reliefs
are granted by the court and the judgment-debtor does not of himself act
according to the decree, the decree-holder is entitled to move the court to
compel the judgment-debtor to carry out the directions made by the court
against him in the decree. This is called the execution of the decree. As the
appropriate relief in each case is conditioned to the particular facts and
circumstances of the case, the various forms in which decrees may be passed
and various modes in which they are to be executed need not be considered
to be exhaustive. For instance, a compromised decree may have its own
special terms. It would have to be executed according to its tenor even
though no specific provision or form in the Code of Civil Procedure would
apply to it. A decree for payment of money may be executed by
(1) attachment and sale of the movable and immovable property of the
judgment-debtor,
(2) attachment of the money payable to the judgment-debtor by his
debtors, namely, garnishes, who may be ordered to pay the money
to the decree-holder, and
(3) by arrest and detention of the judgment-debtor in civil prison if he
is able to pay the decretal amount but refuses to pay the same.
A decree for delivery of possession of a specific movable or immovable
property would be executed by the physical delivery of possession to the
decree-holder by removing the judgment-debtor from possession. A decree
for specific performance of a contract of sale or for execution of a
document or endorsement of a negotiable instrument would be executed by
200 INDIAN LEGAL SYSTEM
the decree itself and the decree-holder has a right to the help of the court to
work out his rights exactly in accordance with the terms of the decree.
If a plaintiff proves to the satisfaction of the court that he does not
have the means to pay the court fees he may be allowed to sue informa
pauperis if the plaint discloses a cause of action. If the memorandum of
appeal discloses a prima facie case, he may be allowed to appeal informa
pauperis.
The Code of Civil Procedure provides a norm of procedure fair to the
parties. Though it is applicable in terms only to civil suits and courts proper,
section 141 of the Code makes applicable, as far as possible, the procedure
provided by the Code to all proceedings in any court of civil jurisdiction.
That is to say, to all proceedings of a civil nature which come before the
courts under different statutes even though the provisions of the Code may
not have been expressly made applicable to such proceedings by the statutes
concerned. Further, provisions of the Code, as far as may be, are often made
applicable by special statutes to proceedings which take place under those
statutes. Lastly, where the civil proceedings under a statute are not expressly
governed by any procedure whatever, the basic procedure laid down in the
Code is made applicable by way of analogy to such proceedings. The reason
why the procedure laid down in the Code is invoked whenever no other
procedure has been expressly made applicable is that the provisions of the
Code are based on general principles of fairness to the parties and as such
are usually found suitable for application to any adversary proceeding before
a court or a tribunal. The very nature of an adversary proceeding, however,
is such that the parties are at liberty to take advantage of all procedural
provisions. The court generally feels bound to allow such advantage to a
party who insists on having it. In the nature of things in every adversary
proceeding either both the parties have their strong and weak points or one
of the parties has more of the strong points and the other more of the weak
points. There is a temptation, therefore, for the parties to exploit the
technicalities of procedure for covering up the substantive weaknesses of
the merits of their sides in a judicial or a quasi-judicial proceeding. This
results in delaying the proceedings. The causes of such delays which
sometimes amount to an abuse of the judicial process are numerous. Some
of them relating to procedure may be mentioned as below:
(1) Objections to pecuniary or territorial jurisdiction: When a suit is to
be valued according to the value of the subject-matter, there may be
a tendency for the plaintiff to under-value it to save on court fees.
The plaintiff may also prefer to file a suit not where the defendant
resides but where the cause of action wholly or partly arises
particularly if the plaintiff resides there. Objections to the pecuniary
jurisdiction should be quickly decided bearing in mind that the
decision on such an objection does not really go to the merits of
202 INDIAN LEGAL SYSTEM
the case but is concerned mainly to see that the state is not deprived
of legitimate court fee by deliberate under-valuation. Objections to
territorial jurisdiction are also not concerned with the merits of the
case. Section 21 of the Code, therefore, requires that they must be
raised in the court of first instance at the earliest opportunity and
before the issues are settled. They would not be allowed to be
raised at a subsequent stage. A decision on pecuniary or territorial
jurisdiction will not be a ground for reversal of the decision of the
trial court by an appellate or revisional court unless it has led to
failure of justice.
(2) Applications for transfer of a suit made under section 24 of the
Code: The High Court or the district court deciding upon such
transfer applications has to see on the one hand that justice is not
only done but is shown to be done. Therefore, a plausible fear in
the mind of a party that he may not receive impartial justice at the
hands of a particular judge may provide a ground for transfer even
though the mind of the judge may not be in fact prejudiced or is
able to rise above the possible prejudice. O n the other hand, the
zeal of the court in expediting the trial of the case and the brushing
aside of the dilatory tactics of a party by the court should not be
allowed to be stultified by such a transfer application.
(3) Pleas of facts raised by the parties should be carefully scrutinised.
The tendency to raise obviously false pleas should be curbed by
making the other party apply for special costs under section 35-A of
the Code.
(4) Framing of issue is an attempt by the court to p i n p o i n t the
controversy between the parties. The court should invite the parties
to scrutinize the issues and to suggest amendments so as to ensure
that every point in controversy is made a subject-matter of the
issue. If a point on which the judgment is based was not made an
issue, the appellate court may have to consider whether the parties
were prejudiced in leading evidence because of the absence of an
express issue or whether the point has in fact been tried though an
issue was not framed.
(5) Decrees should be prepared in accordance with the judgments in
good time. The judge should himself scrutinize the decree before
signing it. Even if the drawing up of a decree is left entirely to the
office, the judge should insist on seeing it himself. N o b o d y
understands the case better than the judge who has decided it. He is
responsible to see that the decree correctly expresses the operative
portion of the judgment. Time taken in drawing up the decree will
not prejudice the limitation available for filing an appeal against the
decree.
CIVIL PROCEDURE 203
(10) One of the reasons for the dilatoriness of the procedure of the
courts in India is the multiplicity of appeals. A contributory
feature of it is that appeals may be directly admitted by the
Supreme Court under article 136 of the Constitution from the
decision of any court or even a tribunal. The docket of the
Supreme Court is clogged by numerous such appeals. Time has
now come to ensure that the highest court in the land is relieved
of the necessity of doing justice in each individual case brought
before it. The mere fact that the decisions of a court or a tribunal
is wrong should not be sufficient ground for an appeal to the
Supreme Court. It is unfair to expect that the Supreme Court
should be able to deal with all the appeals brought to it under
articles 133, 134 and 136 and also with writ petitions filed under
article 32 of the Constitution. The Supreme Court of the United
States has evolved the practice that it would not give a reasoned
decision in a case brought before it unless it is necessary to do so
in the interest of the development of the law. There, the court
gives reasoned decisions in only about a fraction of the cases
brought before it, e.g., in only 126 cases out of about three
thousand cases in 1970-71. The rest of the cases are dismissed
without giving reasons not because they had been rightly decided
by the courts below but because it is not necessary that they
should be decided by the Supreme Court. The amendment of
article 133 of the Constitution now ensures that a high court
would not be able to certify a case to be fit for appeal to the
Supreme Court unless it involves a substantial question of general
importance which needs to be decided by the Supreme Court.
This amendment has considerably reduced the n u m b e r of
certificates granted by the high courts. The Supreme Court is also
becoming more strict in granting special leave to appeal. This
should gradually ensure that our Supreme Court entertains only
those cases in which reasoned decisions are required to be given in
the interest of the development of the law.
The Code of Civil Procedure (Amendment) Act, 1976 has also amended
section 100 of the Code to restrict the number of cases in which second
appeals may be filed in the high courts. Firstly, the memorandum of appeal
must precisely state the substantial question of law involved in the appeal.
Secondly, it is only if the high court is satisfied that the case involves a
substantial question of law that it will have jurisdiction to entertain the
appeal. Thirdly, the high court is required to formulate specifically the said
substantial question of law, and lastly, the hearing of the appeal is normally
restricted to such a question unless the high court for reasons to be
recorded deems it necessary to hear and decide any other questions for the
disposal of the appeal.
206 INDIAN LEGAL SYSTEM
are broadly observed in practice. A civil servant trying to pick holes in the
procedure followed against him is, therefore, restricted to pettifogging. His
real grievance however, may be one of substance. This is to say, he may not
have got a fair deal from his superiors. This is a matter which cannot be
redressed by civil courts. O n the other hand, a tribunal of superior civil
servants can look into such grievances and can give relief. The civil servant
who is unable to pull on with a particular boss can be transferred to serve
under some other boss. The confidential reports of a civil servant can be
ordered to be written by different persons so as to ensure that his entire
career is not prejudiced by being accessed only by one person who may not
think highly of him. Litigation by civil servants should, therefore, be taken
away from the civil courts and should be sent to service tribunals. This will
relieve the congestion of cases in the civil courts and will also ensure more
satisfactory remedies to the civil servants.
Pursuant to the provision of article 323A of the Constitution, the Ad
ministrative Tribunal Act, 1985 was enacted by Parliament to set up Admin
istrative Tribunal for adjudication of disputes and complaints with regard to
recruitment and condition of services of persons appointed to public ser
vices and posts in connection with the affairs of the Union and the States.
Administrative adjudication, which is quasi-judicial in nature, is the main
function of Administrative Tribunals. The basic objective of enacting the
Administrative Tribunal Act was:
(i) To relieve congestion in the ordinary set of courts; and
(ii) To provide for speedy disposal of disputes relating to service
matters.
The Central Administrative Tribunals Act, 1985 provides that the Tribu
nal shall not be bound by the procedure laid down in the Code of Civil Pro
cedure, 1908 but shall be guided by the principle of natural justice and sub
ject to the other provisions of Administrative Tribunals Act and rules made
by the Central Government. The Tribunal shall have power to regulate its
own procedure including the fixing of places and times of enquiry. As a re
sult of the judgement of the Supreme Court in the case of L. Chandra Kumar
v. Union of India49 the appeals against the orders of an Administrative Tribu
nals lie before the Division Bench of the concerned high court. Administra
tive Tribunals are distinguishable from the ordinary courts with regard to
their jurisdiction and procedure. They are free from the shackles of many of
the technicalities of the ordinary courts. The aggrieved person can appeal
before the court personally. Government can also present its case through
its department officers or legal practitioners. The Tribunal consists of a
Chairman, Vice-Chairman and Members. The Members are drawn from
hearing the other side. Thus, all the three principles have been
harmonized, viz., (1) to give due notice as a rule before a suit is
filed, (2) to ensure that urgent and immediate relief is not denied by
insistence on such a long notice, and (3) that even for urgent relief
no ex parte order is passed.
(iv) Since the amendment of Civil Procedure Code in 1999, the
minimum pecuniary limit for appeal from original decree of courts
of small causes has been raised from rupees three thousand to
rupees ten thousand by section 9.
A c o m m i t t e e appointed by the Government of India u n d e r the
chairmanship of Krishna Iyer, J., has also made a report as to the legal aid to
be given to poor litigants. It is hoped that the state governments and the
central government would soon be able to implement this report by passing
adequate legislation. Article 39 A of the Constitution provides that the State
shall, provide free legal aid, by suitable legislation or schemes or in any other
way to ensure that opportunities for securing justice are not denied to any
citizen by reason of economic or other disabilities. In order to fulfil this
promise the Government has enacted the Legal Services Authorities Act,
1987.The Act constitutes legal service authorities at the National, State and
District level to provide free and competent legal services to the weaker
sections of the society.
In addition to the above the institution of Lok Adalats are functioning
as a voluntary and conciliatory agency which have proved to be very popular
in providing for speedier system of administration of justice. Every Lok
Adalat is deemed to be a civil court and for the purposes of holding any
determination, have the same powers as are vested in a civil court under the
Code of Civil Procedure, 1908. The award of the Lok Adalat shall be
deemed to be decree of a Civil Court.
The primary purpose of the Code of Civil Procedure has so far been to
be fair to the litigants. Over and above this purpose it is also necessary to
ensure that the procedure is not dilatory and expensive. The new reforms
would ensure that the procedure is not only fair but is also expeditious and
inexpensive. It would then be a true handmaid of justice. For, the end of all
law, including the law of procedure, is justice. The success of a legal system,
especially civil procedure depends on the achievement of these aims. Let us
hope that the civil procedure in India will soon achieve them.
Suggested Readings
1. A.N. Saha's, The Code of Civil Procedure, 6 th ed., Premier Pub. Co.,
Allahabad, 2004.
2. Expert Committee on Legal Aid, Processual Justice to the People.
3. Field's Law of Evidence, 12th ed., 2001.
210 INDIAN LEGAL SYSTEM