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Key Highlights of Civil

Procedure Code (Amendment)
Act, 2002

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In this article, Palak Goes discusses the key highlights of Civil Procedure Code
(Amendment) Act, 2002.

Overview
There are two types of law on the basis of nature, substantive laws and procedural laws.
Substantive laws are the laws which define the principles related to the rights and
liabilities (for instance, Indian Penal Code, 1860 lays down the offences of punishable
nature). On the contrary, Procedural laws provide for the mechanism for the regulation
and enforcement of these rights and liabilities. They lay down the procedure for the
machinery in compliance with the enforcement of the rights and liabilities (for instance,
Code of Civil Procedure, 1908).

Law is dynamic. This means that law is subjected to the changes to meet the demanding
needs of the society to which it concerns. It is subjected to changes to redress the
balance. Though the law is subjected to changes, the paramount principle of law on
which it lies upon is based on the Latin maxim “salus populi suprema lex esto” which
means “the good of the people shall be the supreme law”.

Code of Civil Procedure (Amendment) Act, 2002

The Code of Civil Procedure dates back to 1908 which governs the entire spectrum of
civil fraternity suits. From the date of its enforcement, it has been amended many times
for the speedy and expeditious trial of the suits. Despite the radical changes in due
course of time, the society still faced the delaying issues due to humongous pending
lawsuits in the court. The Central Government initiated a step ahead to curtail down the
future situations and thus, introduced certain amendments to the Code.

Because of the delay in delivering justice experienced by the litigants at various levels,
the Parliament introduced the Code of Civil Procedure (Amendment) Act, 2002.
The failure of the objective of The Amendment Act of 1999, i.e., speedy and expeditious
trial resulted in The Amendment Act of 2002 which was enacted to reduce the delays
faced at the different levels of the litigation. It is one of the Parliamentary efforts at
making litigation in our country more effective and speedy. In the light of the
Amendment Act of 1999 came the Amendment Act of 2002 which became effective from
1st July, 2002. After the long wait, the Parliament made some radical changes for the
effective enforcement of the provisions of the Code.

Arun Jaitley, introduced a new amendment Bill in 2002, taking into account the
suggestions made by bar representatives, political parties and the Law Commissions.
The Parliamentary Standing Committee recommended the other changes. The new Bill
was adopted by both the Houses of Parliament in May,  2002. Following Presidential
assent, the Code of Civil Procedure (Amendment) Act,2002 was notified and came into
effect.

Key Highlights of the Amendment Act, 2002

Transfer of Decree (Section: 39)

Section 39 lays down the conditions under which a decree can be sent.
In dealing with an application for transfer of a decree to another Court for
execution two aspects must be kept in view, first, that a decree-holder has a legal,
not merely an equitable right to have his decree transferred for execution, and
secondly, at the same time, that the section is not mandatory.
But the Court is given a judicial discretion in the matter, as is shown from the word
“may” in the section. Thus if the demand for transfer is lawful, the fact that the
motive for the application for transfer is to put pressure on one of the judgment-
debtors is no ground for refusing the application for transfer.
The Government of India requested the Law Commission to take a comprehensive
revision of the Code of Civil Procedure, 1908. In January, 1998, the Commission
took up the subject and decided to do the exercise in two phases. In the first phase,
the Commission reviewed the amendments suggested by the Code of Civil
Procedure (Amendment) Bill, 1997. In the second phase of the work, the
 Commission took up the revision of the entire Code as a comprehensive revision of
Code as the whole would take longer time.
On the recommendations of Law Commission made in 163rd Report, headed by B.P.
Jeevan Reddy, the present sub-section (4) has been added to Section 39 to clarify
that nothing in the section shall be construed as authority the Court to execute a
decree against a person or property outside the local limits of its jurisdiction.
The question of consideration was that “the Section uses the word “may” which led
to a debate whether the Court sending the decree to another Court is
discretionary?”.
It was recommended by the Law Commission that “the use of “may” in Section 39
does not mean that the Court, which passed the decree, can execute the decrees
irrespective of territorial limitations. The word “may” is meant for cases where
there are circumstances in which execution as such is considered illegal. Another
view would upset the entire scheme of the Code as to jurisdiction. It seems
desirable to clarify the position by inserting an Explanation below Section 39 to
provide that nothing in the section shall be construed as an authority in the Court
to execute a decree against a person or property outside the local limits of its
jurisdiction. We recommend accordingly”.

Private alienation of property after attachment to be void (Section: 64)

Sub-section (2) has been added on the recommendations of the Law Commission
made in 54th Report, pages 51-52. As a result of the amendment, a transfer made
in pursuance of a registered agreement shall override the attachment if the
agreement precedes the attachment.
The Law Commission recommended that the following exception should be added
below Section 64:

“Exception – Nothing in this section applies to any private transfer or delivery of the
property attached or of any interest therein, made in execution of any contract for such
transfer or delivery entered into and registered before the attachment”.

By the Amendment Act of 2002, the Section was renumbered as sub-section (1) and
sub-section (2) and the following shall be inserted namely :
“(2) Nothing in this section shall apply to any private transfer or delivery of the property
attached or of any interest therein, made in pursuance of any contract for such transfer
or delivery entered into and registered before the attachment”.

The legal spirit that lies behind this section is to prevent fraud on the part of the
decree-holders and secure the rights of the attaching creditor against the attached
property by prohibiting private alienations pending attachments.
It enacts the rule that a private alienation of property after attachment is void as
against claims enforceable under the attachment.
This section makes no distinction between attachment of property before judgment
is given and an attachment in execution of a decree.

No further appeal in certain cases (Section 100A)

The Section was substituted by the Amendment Act of 1999 for the following:

“Notwithstanding anything contained in any Letters Patent for any High Court or in any
other instrument having the force of law or in any other law for the time being in force,
where any appeal from an appellate decree or order is heard and decided by a single
Judge of a High Court, no further appeal shall lie from the judgment, decision or order of
such Single Judge in such appeal or from any decree passed in such appeal”.

The present section has been substituted for the substituted Section 100A, by the
Code of Civil Procedure (Amendment) Act,2002.
As a result of the 2002 Act, appeals to division Bench of the High Courts in writs
under Articles 226 and 227 of the Constitution have been restored.
The net result of the 1999 and 2002 Amendment is that where any appeal from an
original or appellate decree or order is heard and decided by a single Judge of a
High Court, no further appeal shall lie from the judgment and decree of such single
Judge; appeals to Division Bench of the High Court in such cases has been
abolished.
Though this substitution raised many prenotions, it widened the scope of Section
100A so far as a restriction on the right of further appeal is concerned.

No second appeal in certain cases (Section 102)

 The Amendment Act of 1999 substituted the section for the following:

“No second appeal lies in any suit of the nature cognizable by Courts of Small Causes,
when the amount or value of the subject-matter of the original suit does not exceed
three thousand rupees”.

Though the critics had been pointed out that it would foreclose second appeals
where a substantive question of law was involved.
The Amendment Act of 2002 has corrected this distortion and the present section
has been substituted for the following:

“No second appeal shall lie from any decree, when the subject-matter of the original suit
is for recovery of money not exceeding twenty-five thousand rupees”.

Prior to both the Amendment Acts, the second appeal in every suit of the
cognizable nature was barred by Courts of Small Causes, when the amount or value
of the subject-matter of the original suit did not exceed three thousand rupees.
The second appeal was abolished by the Code of Civil Procedure (Amendment) Act,
1999 in all cases where the value of the subject matter in the suit does not exceed
rupees twenty-five thousand.
The Amendment Act of 2002 has changed the scenario and now no second appeal
lie in money suits where the subject matter of the suit does not exceed rupees
twenty-five thousand.

Issue and Service of Summons (Order V)

Order V of the Code provides for issue and service of summons. The Malimath
Committee looked into the problem of the shortfall of cases in the Courts and
recommended amendments to the Code intending to lay down a fixed time frame
within which pleadings can be completed.
The Amendment Act of 2002 amended Rule 1 [Summons], Rule 9 [Delivery of
summons by Court] and Rule 9A [Summons given to the plaintiff for service] of
Order V .
The effect of substituted sub-rule (1) of Rule 1 is that summons are required to be
issued to the defendant for appearance and answering the claim of the plaintiff on
institution of a suit by the plaintiff set out in the plaint by filing written statement
of his defence within 30 days from the day of the institution of the suit except in a
few situations.
The first proviso to the sub-rule (1) of Rule 1 provides that no summons are
required to be issued when the defendant has appeared at the presentation of the
plaint and admitted the plaintiff’s claim.
The second proviso to the substituted sub-rule (1) of Rule 1 provides that if the
defendant does not file the written statement within 30 days of the presentation of
the plaint, he may be allowed to file the same, for reasons to be recorded in writing,
which shall not exceed ninety days from the date of service of summons.
Rule 9 of Order V was substituted by Rules 9 and 9A of the Amendment Act of 2002.
Sub-rule (1) and sub-rule (4) of Rule 9 prescribes two different situations as to the
delivery of the summons to the defendant. Firstly, if the defendant resides within
the jurisdiction of the Courtin which the suit is instituted or his agent, the summon
shall be delivered by the proper officer or such courier services as are approved by
the Court. Secondly, if the defendant resides outside the jurisdiction of the Court in
which the suit is instituted , the Court may direct the service of summon by
delivering the copy by speed post or by such courier services as are approved by the
High Court or by any other means of transmission of documents including fax
message or electronic mail service, which shall be made at the expenses of the
plaintiff (Proviso to sub-rule (3).
Sometimes, the defendant or his agent refuses or intentionally neglects the
delivery of the summon which leads to delay in service of summons. Sub-rule (5) of
Rule 9 curbs this situation and states that if the Court receives an
acknowledgement or any other receipt purporting to be signed by the defendant or
his agent endorsed by the postal employee that defendant or his agent has refused
to take the delivery of the postal or had refused to take accept the summon when
tendered to him, the Court issuing the summons shall declare that the summons
had been duly served on the defendant.
The Registered Post Acknowledgement Due can also make the service of summon.
Rule 9 empowers the High Court or the District Court to prepare a panel of the
courier agencies for service of summons.
 To avoid the delay in delivery of summons, the Court empowered the plaintiff for
the service of summons under Rule 9A. It states that the Court, in addition to Rule
9, on an application of plaintiff may allow him service of summon for the
appearance of the defendant.
Such service of summon by the plaintiff shall be effected by delivery of summon to
the defendant personally a copy signed by the Judge and sealed with the seal of the
Court or any mode of service prescribed in sub-rule (3) of Rule 9.

Pleading Generally (Order VI)

Rule 17 [Amendment of pleadings] and Rule 18 [Failure to amend after order] were
substituted by Code Of Civil Procedure (Amendment) Act, 2002.
By the Amendment Act of 2002, the provision has been restored in Rule 17. The
provision for the amendment has been given back to the Court with certain
limitations. A new provision has been added to the rule, namely that no application
for amendment of the pleadings shall be allowed after the trial has commenced
unless the Court concludes that in spite of due diligence, the party could not have
raised the matter before the commencement of trial.
Thus, after the trial of the case has been commenced, no application for
amendment of the pleadings shall be allowed 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.
The principal object of the rule is that the Courts should get at and try the merits of
the case that comes before them and should consequently allow all the
amendments that may be necessary for determining the real question in
controversy between the parties without causing injustice to the other side.
By the Code Of Civil Procedure (Amendment) Act, 1999, Rule 18 was omitted. By
Code Of Civil Procedure (Amendment) Act, 2002, the old Rule 18 verbatim has been
restored.
Rule 18 states that if a party who has obtained an order for leave to amend does not
amend accordingly within the time limited for the purpose by the order, or if no
time is thereby limited then within fourteen days from the date of the order, he
shall not be permitted to amend after the expiration of such limited period or of
such fourteen days, unless the time is extended by the Court.
Plaint (Order VII)

By Code Of Civil Procedure (Amendment) Act, 2002, Rule 9 [Procedure on

admitting plaint], Rule 11 [Rejection of plaint] and Rule 14 [Production of
document on which plaintiff sues or relies of Order VII were amended and Rule 18
[Inadmissibility of document not produced when plaint filed] was omitted.
Unde the new rule 9, the Court will direct the plaintiff to present copies of the
plaint within a period of seven days from the date of the order along with the
requisite process fee for service on the defendant(s). Under the old rule, no time
limit was prescribed.
The new rule intended to expedite the delay, which the plaintiff often caused in
taking steps for the service of summons on the defendant. Further under the old
rule, there was provision requiring the plaintiff to endorse on the plaint or to annex
thereto, the list of the documents which he had filed along with the plaint, or
instead of copy of the plaint could file concise statements of the nature of the claim
made or the relief claimed in the suit with the prior of the Court, which the Court
would permit by reason of the length of the plaint or the number of the defendants
or for any other sufficient reasons.
Under the new rule 9, both these provisions have been omitted as found
unnecessary just to cut short the delays in the trail of the cases.
In Rule 11, for sub-clause (f) and (g) as inserted by Amendment Act of 1999 was
substituted, namely-

“(f) where the plaintiff fails to comply with the provisions of Rule 9”.

The clause (f) enabled the court to reject the plaint where the plaintiff fails to
comply with the provisions of Rule 9 of Order VII.
Sub-rule (3) of Rule 14 was substituted meaning thereby that the documents may
be produced by the plaintiff which ought to be produced during the presentation of
a plaint or to be entered in the list or annexed to the plaint, with the leave of the
Court, at the time of the hearing of the suit.
The Amendment Act of 2002 omitted Rule 18.

Written Statement, Set-Off and Counter-Claim (Order VIII)

Rule 1 [Written Statement], Rule 1A [Duty of defendant to produce documents
upon which relief is claimed or relied upon by him], Rule 9 [Subsequent pleadings]
and Rule 10 [Procedure when party fails to present written statement called for by
Court] were amended.
In Rule 1, the defendant shall present the written statement within thirty days
from the date of service of summon. By 2002 Amendment Act, the defendant may
file written statement thereafter with the permission of the Court but not beyond
ninety days where the Court for the reasons to be recorded in writing has extended
this period.
Thus, now a defendant can file a written statement within thirty days from the date
of service of summon but such time period can be extended upto ninety days by the
Court for the reasons to be recorded in writing.
Sub-rule (3) of Rule 1A was substituted by the Amendment Act, 2002. Rule 1A was
added by the Amendment Act of 1999 and further amended by Amendment Act,
2002.
It states that a document which ought to be produced in Court by the defendant
under this rule, but, is not so produced shall not, without the leave of the Court, be
received in evidence on his behalf at the hearing of the suit. Nothing in this rule
shall apply to documents – (a) produced for the cross-examination of the plaintiff’s
witness, or (b) handed over a witness merely to refresh his memory.
Rule 9 was restored by the Code of Civil Procedure (Amendment) Act, 2002 in the
same form verbatim except for the addition of the words “of not more than thirty
days” after the words “and fix a time” and before the words “for presenting the
same” appearing at the end of the rule. The effect of the change is that subsequent
pleadings shall be continued to be filed and the Court shall fix the time for
presenting the same, which shall be not more than thirty days.
Rule 10 which was omitted by the Code of Civil Procedure (Amendment) Act, 1999
was substituted by the Code of Civil Procedure (Amendment) Act, 2002. It states
that where any party from whom a written statement is required under Rule 1 or
Rule 9 fails to present the same within the time permitted or fixed by the Court, as
the case may be, the Court shall pronounce judgment against him, or make such
order in relation to the suit as it thinks fit and on pronouncement of such judgment
a decree shall be drawn up.
Appearance of Parties and Consequence of Non-Appearance (Order IX)

Rule 2 [Dismissal of suit where summons not served in consequences of plaintiff’s

failure to pay costs] was substituted by Code of Civil Procedure (Amendment) Act,
2002.
It states that where on the day fixed it is found that the summons has not been
served upon the defendant in consequence of the failure of the plaintiff to pay the
Court-fee or postal charges, if any, chargeable for such service or failure to present
copies of the plaint as required by Rule 9 of Order VII, the Court may make an order
that the suit be dismissed.
The proviso to the rule states that no such order shall be made, if notwithstanding
such failure, the defendant attends in person or by agent when he is allowed to
appear by agent on the day fixed for him to appear and answer.

Settlement of Issues and Determination of Suit on Issues of Law or on

Issues agreed upon (Order XIV)

Rule 5 [Power to amend, and strike out issues] was substituted by Code of Civil
Procedure (Amendment) Act, 2002.
Rule 5 was omitted by the Code of Civil Procedure (Amendment) Act, 1999 which
was restored verbatim by the Code of Civil Procedure (Amendment) Act, 2002.
Rule 5 lays down provisions for amending the issues, framing additional issues, and
striking out issues in the course of the trial of a suit.
It states that the Court may at any time before the passing a decree amend the
issues or frame additional issues on such terms as it thinks fit, and all such
amendments or additional issues as may be necessary for determining the matters
in controversy between the parties shall be so made or framed. It further states that
the Court may also, at any time before passing a decree, strike out any issues that
appear to it to be wrongly framed or introduced.
A court trying a civil suit has inherent power to take cognizance of questions going
to the root of the subject-matter in controversy between the parties at any stage of
the trial. But before doing so, the Court must frame and record issues on such
questions.
 The power of the Court is subject to Rule 3 of this Order. Thus the rule does not
enable the re-opening of issues already closed.

Hearing of the Suit and Examination of Witness (Order XVIII)

Rule 2 [Statement and production of evidence] and Rule 4 [Recording of evidence]

were amended by the Code of Civil Procedure (Amendment) Act, 2002.
Sub-rule 3A, 3B, 3C, 3D of Rule 2 were inserted by Code of Civil Procedure
(Amendment) Act, 2002.
Sub-rule 3A of Rule 2 states that any party may address oral arguments in a case,
and shall, before he concludes the oral arguments, if any, submit if the Court so
permits concisely and under distinct headings written arguments in support of his
case to the Court and such written arguments shall form part of the record.
Sub-rule 3B of Rule 2 states that a copy of written arguments shall be
simultaneously furnished to the opposite party.
Sub-rule 3C of Rule 2 states that no adjournment shall be granted for the purpose
of filing the written arguments unless the Court, for reasons to be recorded in
writing, considers it necessary to grant such adjournment.
Sub-rule 3D of Rule 2 states that the Court shall fix such limits for the oral
arguments by either of the parties in a case, as it thinks fit.
Thus a time limit for oral arguments may be fixed by the Court and with the leave
of the Court, the parties may be required to submit written arguments before
concluding the oral arguments in the case. Ordinarily, no adjournments shall be
granted for the purpose of submitting written arguments, unless the Court for the
reasons to be recorded in writing considers it necessary to do so.
Rule 4 was substituted by Code of Civil Procedure (Amendment) Act, 2002.
In nutshell, Rule 4 states that the examination-in-chief of a witness shall be
recorded on an affidavit. The Commissioner can conduct and record cross-
examination and re-examination of a witness in the High Courts having original
jurisdiction and in Courts subordinate to the High Court. Such evidence shall be
recorded either by the Court or by the Commissioner appointed by it.
The Commissioner also possesses the power of recording the demeanor of a witness
and any objection made in regard to such matter shall be decided by the Court at
the time of arguments of the case.
 A commissioner is under the obligation of submitting his report within six months
from the date of the issue of the Commission.
The court may fix the amount to be paid as remuneration for the services of the
Commissioner.

Judgment and Decree (Order XX)

Rule 1 was amended by the Code of Civil Procedure (Amendment) Act, 2002.
Sub-rule (1) of Rule 1 was substituted by the Code of Civil Procedure (Amendment)
Act, 2002.
It states that the Court, after the case has been heard, shall pronounce judgment in
an open Court, either at once, or as soon thereafter as may be practicable and when
the judgment is to be pronounced on some future day, the Court shall fix a day for
that purpose, of which due notice shall be given to the parties or their pleaders.
The proviso to the sub-rule states that where the judgment is not pronounced at
once, every endeavor shall be made by the Court to pronounce the judgment within
thirty days from the date on which the hearing of the case was concluded but,
where it is not practicable so to do on the ground of the exceptional and
extraordinary circumstances of the case, the Court shall fix a future day for the
pronouncement of the judgment, and such day shall not ordinarily be a day beyond
sixty days from the date on which the hearing of the case was concluded, and due
notice of the day to fixed shall be given to the parties or their pleaders.
In other words, there is a definite time frame for the pronouncement of the
judgments after a case has been heard. The general rule is that a judgment is to be
pronounced at once and where it is not practicable to do so, the Court shall make
an endeavor to pronounce judgment within thirty days from the date on which the
hearing of the case was concluded.
Where it is not practicable for the Court to pronounce judgment within thirty days
because of exceptional and extraordinary circumstances of the case, the Court shall
fix a day for the pronouncement of judgment which should not be beyond sixty
days from the date on which the case was heard.

Execution of Decrees and Orders (Order XXI)

 Rule 32 and Rule 92 were amended by the Code of Civil Procedure (Amendment)
Act, 2002.
An Explanation was inserted under sub-rule (5) of Rule 32. It states that “For the
removal of doubts, the expression “the act required to be done” covers both
prohibitory as well as mandatory injunctions.
A controversy arose as to the meaning of the words “required to be done” in sub-
rule (5) of Rule 32. Do these words covered the situation where a prohibitory
injunction has been incorporated in the decree, or are they confined to cases where
the decree is a mandatory one. Different High courts have expressed different views
on the subject. The controversy has been resolved by the present explanation added
which adopts a wider view.
In sub-rule (2) of Rule 92, the words “thirty days” was substituted by “sixty days”.
After the first proviso to sub-rule (2) of Rule 92, the following proviso was inserted
:

“Provided further that the deposit under this sub-rule may be made within sixty days in
all such cases where the period of thirty days, within which the deposit had to be made,
has not expired before the commencement of the Code of Civil Procedure (Amendment)
Act, 2002.

The amendment in Rule 92 has been made on the recommendations of the Law
Commission made in the 139th Report (Page No. 08) to bring harmony between
sub-rule (2) of Rule 92 and Article 127 of The Indian Limitation Act, 1963. The
period for making deposit under sub-rule (2) of Rule 92 before the present
amendment was thirty days, while under Article 127 of the Limitation Act, 1963,
the limitation period for making the application to set aside an execution sale
(which has to be accompanied by the deposit in Court of requisite amount) is sixty
days.

Constitutional Validity of Code Of Civil Procedure

(Amendment) Act, 2002
 In Salem Advocate Bar Association v. Union of India, the writ petition had been
filed by Advocate T.Raja seeking to challenge the Amendments made to the Code of
Civil Procedure, 1908 by Amendment Act, 2002.
A three-judge bench comprising the Chief Justice B.N.Kirpal, Justice Y.K. Sabharwal
and Justice Arijit Pasayat held that “We do not find that the amended provisions
are in any way ultra vires the Constitution’”.
The judges attention was drawn to the various provisions of the amended Sections
and Orders of the Code of Civil Procedure (Amendment) Act, 2002.
It was observed that “In court’s opinion amendments are constitutionally valid and
if any difficulties are still faced, these can be placed before the Committee. The
Committee would consider the said difficulties and make important suggestions in
its report.
The Bench said that keeping in mind the increasing number of litigation and the
limited number of judges, the amendments are imperative in resolving the
litigation at an early date.

Conclusion
“The power of judicial discretion comes along with the action of arbitrariness”.
These judicial decisions result in the unnecessary delays. The Amendment Act of
2002 laid down several time limits that bounds the plaintiff as well as the
defendant at each stage of the litigation. These limitations resulted in speeding up
the litigation process.
The conceptualisation of the idea of evidence via affidavits as well as the
introduction of the court-appointed commissioner also resulted achieving the
objectivity of this Amendment Act, i.e., speedy and expeditious justice.
The lagging behind of the judicial system due to unnecessary adjournments now
can be dealt adequately with the limit imposed and by the provision of imposing
costs including punitive costs.
The failure on the part of courts for providing adequate and easily accessible to
justice is one of the principal causes of widespread dissatisfaction with the
administration of justice.
The concept of “access to justice’ has undergone significant transformation. The
Code of Civil Procedure (Amendment) Act, 2002 aims to provide for speedy and
 effectual justice.

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