g LAW COMMISSION OF INDIA FIFTY-FOURTH REPORT ON THE CODE OF CIVIL PROCEDURE, 1908 FEBRUARY, 1973D.O. No. F.2(1)/71-L.C. P. B, GAJENDRAGADKAR (CHAIRMAN EAW COMMISSION Shastri Bhavan New Dethi—1 10001 February 6, 1978 My dear Minister, 1am forwarding herewith the Fifty-fourth Report of the Law Commission on the Code of Civil Procedure, 1908. The circum- stances in which the subject was taken up by the Commission and the procedure adopted by it are described in the first few para- graphs of the Report. With kind regards, Yours sincerely, P, B. GAJENDRAGADKAR Hon'ble Shri H. R. Gokhale, ; Minister of Law & Justice, Government of India, Shastri Bhavan, New Delhi. LppyyesomotlTebA—20)CONTENTS Chapter Itutmductory + Tae Chater 1-AMin Objectives of the Reform ea (Chapter L-—-Our approseh and prinelpal rocammendations (Chapter 1-C--Extent of und application of the Code ad ther preliminery (haptoe 1oD—Suitain general eee Chaptsr 1R—Rrecution See i (Chaptor LP —Invideatal Proceedings «ss Pe Chapter 1b Suite in pationlar oun (Chapter 1-H—Speoil proceedings Captor LtSuyplemnatal proosedings em Chapter 1.3—Appeale Rint and wood appeal eee ‘Chaptor 1-K—Appesh—Mitellenecue EEE eee ee naptor 4-Roference, Review and Bovition ve ve Ohno 1 pe si ovine ago toon being te Cont Chapter -N—Bulea ‘Shapter1-0—Missalaneoue Ohaptor I-P—Partios toa aut | : oer Chapter 2-Frame ofthe rit eee Chapter $—Recugnid Agents snd Plonders (Chaptée 4—Intitaton of suits een eee Chapter les and wrvon ofrommone 7 Chapter &—Pleadings Cuapter TPs Chapter 8-Written statomestandwtof we Chapter 9~Appearnnoe of parties and eonsequamees of non-appearanse (Chopter 10_Hixamination of portice by the Court i Chapter 11—Disoovery sadinspeotion se m4 ne ia 128 135 126 he 136 ua ua usChaptar 13 —Production of Documents EEE eee Chapter M—taeues EEE ep EE Ese ELE s EEE bese EEE ‘Chapter 15. -Dispons of tho ult at the Fist hearing eee Chaptor 16 Sammoning oud attendance of artaeenes eee Onepier TaAdjonrumente eee ‘Chapier 18 Hearing of she aut and examination of witnesses. hsp IMAmdawits ae apier 20—Tudymemt and Deore. coe 7 Oveptor 21-—Exeestion ESE eee ee iaee eee Chapter 22-—Death, marsinge and insolvency afpartion 2 eee (Chapter 23--Withirawal and adjustment of euibs ReceEEee iets Chapter 24—Paymant into Court EEE ESE REE Chapter 26—Seewit for oma Cnapter26-Commaiasions insmod by Coutts se sae Captor Sait by or against Gprommat as Chapter 2TA-itanvoriageubspantistquecas of law ss to the interpreta ‘om af theCockutbon | Nnnee, 210 Ge teres Chapter 28—Saia by or seni SAIC, ae Oraplor 89-Suits by and aguinat Goxporsiions 5 rapier 90-Suite by or agalash Bas eee Chapter 31—Suite by and ognnat Prumtensland uosutom.. (Gaaptae 32—Suite by and aganat igor ew Chapter 2.4 Suits ononening Wbfamiy as hoptor 8Suite by indigent ponbse os Choptor MSuitwon Mortgpes (caspter36-—Interplendor salts Chapter 36-Statement of oaee Ohaptor 37—Suamary prosedure Caoptor 391 Paoxs ry 10 1s 180 mm 193, Bry 28 2 235 2m am a4 am Ms co = 8 70Prone uaptor$2—Appesi from appoints desreet ss me (Chapter 42_-Appeate froma ones Hee me uoptersh—Appeate by fadigent perms nen Chapter AS Appeal othe SupromeGour nS Caper mine Cape Rerie a oper $8 Mintncc aD Onapier s2-arterod Hh Courts (Cuapre Provincial Gourte of Sal Contos hapte 5L—Peaideney Corts of Sal Comes = Ghapter Fores ee 8 unptes 89 Now for Notional Academy for Sudidel Trvning RT Geapter Coven a APPENDIE Appeadi—-Quottivensice ieued by the Law inal : 390Cuapren 1 INTRODUCTION LL This Report deals with some aspects of revision of the Code of Civil Procedure, 1908, The subject was considered at length by one of the previous Commissions, which duly forwarded to Govern- ment a detailed Report on the cote." In that Report,’ the Commission considered the Code at length, andthe mass of caselaw that had accumulated atound the previous Code during half a century of its life, the local amendments made in various provisions of the Code, as well as the reforms introduced in other Countries,—including, in particular, the changes made in England in 1962 by way of revision of the Rules of the Supreme Court. It also took into accotint the re¢ommendations relevant to the Code made in the Report on the Reforms of Judicial Administration.* 12, A Bill intended to implemant this Report was duly intro- duced in Parliament but the Bill lapsed. When the question of re- introduction of the Bill arose, the it proper to request the present Commission to examine afresh from the “basic angle of minimising costs and avoiding de- lays in litigation and taking into account its revised terms of refe- rence”, Scope of the Report ‘ 1.3, Accordingly, in this Report, we propose tp examine the Code from the angle of— ¥e , y (2) minimising costs; (2) avoiding delays in litigatipn; and (8) the revised terms of reference of this Commission, the most important of such térms being the implementation of the directive pringiples. 14. In this Report, we have not considered it necessary to deal again with the matters dealt within the earlier Report, except where we disagreed with the ree4mmendations in the earlier Report or considered it necessary to reiterate and emphasise particular re- commendations made therein. Ap djmatter of fact even the ques, tion of costs and delayawag_con: by the Commission at that time also; however. as that Report as given long ago," we shall— as we have been specifically reqyested--consider what amendments, are needed to avold délay ‘and fo minimise costs in civil proceed- ings, ! 1. 2th Report of the Law Gommileion, 2. Tes hoeeafor referred tna th caer code, ith Report of the Lay Comp . Lae Minster incor Mo. AMO/TI, dated 4-2-1972 to the Charman of the Law Commision ete 164Radleal amendments needed 15. At the outset, we should make it clear that in our view, at Jeast in certain respects, radical changes are required in the Code in principle. 7 In the earlier Report,’ it has been mentioned that, on the whole, the Code has worked smoothly ‘and satisfactorily, and, the Commission there had added that it had been ‘very cautious’ in proposing radical changes. No doubt, daution has to be exercised before disturbing statutory provistons of long standing, But we think that caution should not ‘act as a constraint where the expen ses of procedure and the necessities of the times require radical changes. Litigation when causing burden 1.6, As the Supreme Court has obstived’— “The principal function of courts ind tribunals is to settle the dispute between the parties add thereby give a quietus to the social frictions generated by the unresolved disputes. As long as a litigation lasts, the tension continues and useful energies will be wasted. This is not all. Every litigation means heavy financial burden to the parties.” Obviously, an expensive phocedural system is @ self-defeating instrument of justice. Reforms needed to be cons}derbd 1.7. If, therefore, reforms ip appear to be needed to reduce the burden on parties, a bbdy Hbtrusted with the business of law reform need not hesitate ta r their suitability. Course adopted with reference ito eatitdd-Code 1.8. The course which we have’ qdojtted with reference to the recommendations made in the earlier rt may be stated here. First, where we ‘agree with the fecot tions made in the earlier Report, we have not consideredjit nkdesddry to deal with the matter, except as stated below. Secondly, wheret we agree with the eaflier recommendations, and also pongider' i etary to emphasise it, we il Boport. Thirdly, where we have made a brief reterench to 8 ied disagree with an earls . ior e with it subject to [ith Report an inde « "ecomnfe a modification, we have natbrall cated our own recommendatiog, if, gny Fourthly, on matters not considered in the earlier Report wi ired to be discussed, we have expressed our views an sdditionat amendments wherever we thought necessary, poe. 1. B70 Report, page 4, para 6. 2 Probhavati x. Pritam Kaur, 4.1.8, 1972 8,0. 4920, F012, (Hegde 3.1,19. Thus the position is that on matters falling within, the first ‘and second categories referred to above, the recommendations, in the earlier Report should be consulted. On matiers falling within the third category, the earlier recommendations shorld be taken as superseded or modified (as the case may require) by our recom inendations, And, on matters falling within the fourth category, our recommendations should be taken as supplementing those made in the earlier Report. Questionnaire 1.10, We may mention here that when the subject was referred to us, we had, in order to élicit opinion on some of. the important questions which required consideration, issued a questionnaire, we are grateful to all those who have favoured us with their views in Tesponse to the questionnaire, We have, wherever we consider it necessaty, referred in this Report: to the views expressed on the relevant questions; but it is needles to add that the replies on every question have received our mopt careful consideration,Cuarrer 1-A, MAIN OBSECTIVES OF REFORM Introductory 1-A.. We deal in this Chapter with the main objectives af re- form of the Code as envisaged in this Report 7 Stages of procedure and cases of delay 1.A2. We refer first to delay, Therstages of procedure as provide ed im the Code are not numerous. But deley could occur because— () the interval between the stages becomes very long in a particular case, or (4) a particular stage of procedure itself consumes excessive time, or Gi) extraneous factors prevent a particular stage irom being reached—for example, where the suit has to await its turn for a long period because of the heavy file of the court. 1.4.3, Examples of all these three types of delay’ could be fur- nished, For example, if, between the issue of a summons to the de- fendant and his actual appearance in Court an interval of two months elapses because of obstacles in the service'of summons, delay of the first type occurs. Same is the case where frequent adjournments are granted without justification. Delay of the second type is illustrated by. the parties producing too many witHesses, or counsels unduly prolong- ing the cross-examination of a particulan witness. An illustration of the third type of delay is furnfshed by the familiar situation of a revision against an interlocutory! ordet, whereby the next stage in the logical sequence of the case is prevehted from being reached. 1.A.4 It will be our endeavour to bear in mind these three as- pects, while making concrete recommdndations for amendment of ul le. Expenses 1.A.5. We refer next to expense. The principal expenses of a civil litigant in India are made up af— (1) court fees; (2) counsel's fee; (3) expenses on witnesses; (4) expenses for obtaining copies of: documents, (5) personal expenses for attending court consulting counsel, and the like; (6) costs, when directed to be pald to the opposite party.Various heads of expense LAG, None of these items is governed’ by the Code of Civil Pro- cedure, The first of them—court fees—is regulated by the Court Fees Act, (or by the corresponding State law where a full-fledged state law’ has been enacted). ‘The second item is not, as between party and counsel, regulat- ed by law. ‘The Third and fourth items are regulated by rules made. by the High Courts, ‘The fifth is, in its very nature, elastic. So also is the sixth. * Court fees LA. These items of expenditure are, thus, outside the Code, bout we think it proper to-deal bere with the frst item--Court fees— since the matter is of great importance, This we have chdsen to do notwithstanding the fact that Payliament’s legislative competence to legislate on court fees, is. limited to Union Termiteries, as the subject falls in the State List 1.47. We may in this connection mention that in one of the Regorts of a previous Commistion, the question of court fees has been considered at length. KA8."The recommendatiore id- that Report regarding court fees may be summarised as follows.” (4) It is one of the primary dhities of the State to provide the machinery for the administration bf justice and on, prineiple it is not proper for the Slate to charge fees from suitors in courts, (2) Bven if court fees are charged, the revenue derived from them should not exceed and cost of the administration of eivil justice. (2) The making of a profit by the State from the administration of justice is not justified (4) Steps should be taken +o réduce court fees so that the reve- nue from it is sufficient to cover the cost of the civil judicial estab. lishment. Principles analogous to those applied in England should be applied to measure the cost of such establishment. ‘The salaries Of judicial officers should be a charge on the general tax-payer. ) There should be » broad measure of equality in the scales of court fees all ever the country, There should also. be a Axed maximum 10 the fee chargeable. (6) The rates of court fees on petitions under Articles $2 and 226 of the Constitution should be very low, if not nominal the The fees which are now levied at vartovs sages such os ¢ siamp to be affixed on certified copies and exhibi ik should be abolished. 2 ee ‘ulitution, Seventh Schedules, Stare List, Item 3“. thesuproms ome ‘ 2°14 Raper, Vl, pap pam pt fos taken ip alleourisezoeph6 (8), When a case is disposed of or is compromised before the actual "hearing, half the court flee should be refunded to the plaintiff, (9) The Court fee payable in en appeal should be half the amount levied in the trial court, 1.A.8, We would like to express here our broad agreement with the approach adopted in the Report in respect of court fees, and with the recommendations set out above. Directive principles 1,A.40. Our revised terms of reference require us to consider the changes needed to bring laws in harmony with directive prine\ ples. Of the articles in the Constitution dealing with directive prin- ciples, the article most relevant to the sphere of civil procedure is that relating to social order,’ which is as follows:— “a8, Stace to secure a socal order for the promotion of welfare of the people—The State shall strive to promote the wel- fare of the people by securing and protecting as effec- tively as it may, a social order in which justice, social, economic and political, shall inform all the institutions of the national life.” We have kept this in mind in making qur recommendations in this Report, 1. Atle $8 of tho Constitution.Chapter 1-B OUR APPROACH AND PRINCIPAL RECOMMENDATIONS Main objectives 1-B.l, Our main objectives in this Report, as already stated, will be two-fold— (a) to consider the need for such major changes as could cut down the delay; and expense of civil procedure, of course, to the extent to which the delay or expense could be attributed to defects in or deficiencies of the provisions in the Code of Civil Procedure, (b) to consider the need for such changes as are desirable in order io implement the directive prineiples in Part 4 of the Con- stitution. Procedure, 2 means to justice 1,B.2, Any system of procedure must subserve the ends of Jus- tice, Procedure is a means, and not an end. When the means assume undue prominence, and the end is lost sight of. or even sometimes apt to be defeated in the process, citizens affected have a legitimate right to complain. And it is the’ duty of the State to see that its legal system does not leave scope for processes which ate likely to hinder or defeat justice. : Overhauling of entire procedure mot required 1,B.3. This does not, of course, mean that a total replacement of the existing system of ‘procedure 'by a new one, or such a radical overhaul 9s would change: its face entirely, is necessarily required, 1-B4, As Lord Kilbrandon has. observed— “The ship is well designed, fundamentally sound, and is for most of the time on a correct course; what is wanted is an overhaul and modernisation of the navigational instru- ments, so that she is more!easily kept on that course. And some of the officers are getting a bit elderly—This will always be trve" Means must be effective 1-B5. Since procedure is a meané, and justice the end, the ‘means must be effective for realising the end. This requires that the procedure must be simple. fair, effective, specdy and inexpensive To spell out these requirements, we need; (a) an adequate organi sation of the courts for the efficient distribution and despatch of business; (requirements off effectiveness): (}) freedom from mere 1. Soe Chapter 1, Supre. 7 2, Lord Kilbrundon, other People's Law, (1088) pagos 3-4,8 technicalities at all stages (xequitement of simplicity and speed); (c) clear definition of issues (requirement of fairness); (d) wherever possible, the elimination of any element of surprise at the trial (re- Quirement of fairness): (e) control and supervision by the court of ihe progress of the proceedings (effectiveness of the trial); (g) effective methods of execution (ultimate effectiveness of the trial); and (h) a speedy and authoritative system of appeal (requirement of fairness, and substantial justice in the end). Impediments to justice not te be multiplied 1-B8. As Cardozo observed,’ “a. system of procedure is pervert- ed from its proper function when it multiplies impediments to justice without the Warrant of clear necessity.” ‘The same idea has been expressed more recently by Chief Jus- tice Warren,’ who aptly stated that— “the orderly and expeditious processing of litigation is a right which each of us should be able to ask of our judicial system, no matter what. our status in life or how meagre for nonexistent our resources may be. In the name of human dignity we can ask no less, yet, we must admit that we are falling far short of our goal.” Secondary objectives of procedure 1B. Procedure, thus, exists for the sake of something else, for the sake of the substantive law.’ This is its primary objective. But procedure has many secondary objectives. It must give the parties a feeling that they are being dealt with fairly, It must serve the cause of efficiency. And it must yield fital and lasting adjudication Ideal system of procedure ° 1-B8, These objectives may sometimes come into conflict with each other." In an imperfect world, limits have to be put on the Tength and amplitude of an inquiry into truth. An ideal system of procedure would be one which could achieve these objectives to the maximum extent practicable, and harmonise them to the extent possible. Importance of procedure to ordinary citizen 1-B9, The importance of procedure to the ordinary man must als? be pointed out. As has been observed,'— “It is from the practice and procedure of the courts—that is, the way in which a case is conducted, the facis discovered from examination and crossexamination and the like— that the ordinary citizen, as litigant, witness, or even 1. Cardoco J, dinsenting in Read v Aten, (1082) 286 U.S, 191, 209. 2! Quoted in Satherland, The Path of tho Law from 1967 (1958). page 216. 4. Hepburn, The Historia! Development of Code Plata, (1897), pazes 19.20, ited ta Fleming, Givd Procedure (1965) Pogo 2 Proseure, (1085) pe. 2. 4. Fleming, Civ 8, 10 6. Final Report ofthe Eversbed Commitiew on Proctice wad Proosare, (1959), pars 1! g spectator, obtains his experience of our legal system; and on that evidence he is likely to form his judgment on the claim commonly made by Englishmen to excellence in the administration of Justice.” Importance of Procedure 1-B40. Long ago, a writer, emphasising the importance of ad- jective law, observed.'— “Procedure should always be indeed the “handmaiden of justice”, its motto should be that of the Prince of Wales, ch diet, This cardinal fact is widely: admitted, but has often been overlooked in practice.” But, to recognize that procedure exists primarily to implement substantive right, does not detract from its importance. In an Ideal world witere every one obeyed implicitly the commands of substantive law, procedure would possess no” importance.” Nor would it be of much value where the time and the means and eae get the bottom of every dispute and grievance were all unlimited, I-B-ll. At the same time, as an American writer has observed’— of life, and limitations on'the amount of buman energy worth spending on this one phase of human activity, all conspire to make procedure of very great importance and also to give it functions beyond that of serving substantive law"* Need for improvement 1:BAL. At the same time, as an American writer has bserved’— “The need for procedural improvement in, the civil courts is ‘a subject of much current interest and effort on the part of the orgenised American bar, as well a5 of the judicial and other official agencies. It is fair to state thet a steady progress in the improvenient in civil procedure is being made, It is doubtful, however, whether any efforts af reform, no matter how sincere or bow long continued, reduce’ our civil procedure to that degree of simplicity ‘which the layman is likely to think it ought to have. ‘The situations which rules of procedure are designed to meet are in many cases rather complicated; and the framing of ‘simple’ rules to control complicated’ situations too results not in simplicity, but rather in uncertainty and ambiguity, the resolving of which in turn entails the exercise of uncontrolled, and in procedural matters vir- tually, unreviewable, discretion by the judge.” 1.B12. These are the principles which have guided our ap- proach. 1 Konto sel Perea os Glo Pong, 50, Cee Henig, Gat Feeds (85 oes 2 2, Seo Fleming, Cisll Procedure, (1966) page 2. 1. Mayers, the American Legal Bysiem, (1968), page 242. 1/022 9M0of LTA —3 t ito Important recommendation 1-B.13, We shal] now refer to some of the important matters in respect of which we have recommended an amendment of the law. Res Judicata ' 1-B.14. One of the significant provisions of the Code’ relates to res judicata, The provision in the Code on subject is, however, not comprehensive enough to cover a few proceedings, and we have considered it necessary to suggest an amendment in order to extend its scope by aii express provision to certain proceedings. Further, the present requirement that the court whose judg- ment is sought to be sct up es res judiceta in the later suit should have been competent to try the subsequent suit, creates difficulties when a question which was decided by the previous court comes Up for decision before a later court of higher jurisdiction. We are therefore recommending an amendment in the procedure in this regard, under which a court of lower jurisdiction will, when such fa question comes up incidentally, be expected to refer the matter to the District Court, so that the trial of the entire litigation before a more competent court can be arranged. These amendments should not be regarded as merely technical, because it is well-known that the doctrine of res judicats is twased on the principles that there ought to be « finality in litigation and that a person ought not to be vexed with the same controversy twice, Suits relating to public matters 1-B.15, While our recommendation regarding res judicata and certain other matters is intended to feduce delay, there is another ‘object of law reform which we have sought to'achieve, namely, modernisation and simplification af the law, in proposing expansion of the scope of suits relating to publle matters, In the Code, there are, at present, two main provisions covering suits relating to publie matters, namely, section 91 which deals with suits relating to public nuisances, and section 92 which deals with suits’relating to public trusts. As society advances and the life of the community becomes more complex, the importance of injuties to the public (as contrasted with injuries’ to private individuals) increases, The relevance of these phenomena is seen not only in the criminal law—we had ‘occasion to deal with this aspect in the fleld of criminal law in one of our Reports,—but also in the field of civil law, Public nuisances are familiar and well understood types of injuries to the public; but there are other injuries to the public, and there ought to exist a provision for enabling responsible persons to file suits for the ze moval of public injuries of other kinds. It is from this point of view that we are recommending an amendment of section 91, which will widen its scope so as to cover all injuries to the public. 1-B-16, We need not deal elaborately with the scope of injuries to the public that will be.eovered by the amended section, but we may state, by way of illustration, that in the case of big frauds on 1. Section 1. 2. Sections 91-92. : 3. ATeh Raport (Social nd Koonomic Osta).AL consumers, whether they be consumers of goods, services or other ‘objects of consumption, it will be possible, under the amended section, to bring @ suit on behalf of the consuming body. Such a Suit could appropriately be for declaration or for injunction. It is exiomatic that the existence of a suitable procedure facilitates the pursuit of appropriate remedies, and this, in turn, also helps in the Clarification of substantive rules of lew relating to the | matters which are the subject-matter of the remedies pursued, It could even pave the way for legislative action, As an American writer’ has pointed out, constitutional litigation, even where unsucc In the courls, may stimulate, the legislature to action. “All the major soci] changes which have made America a finer place to live have their basis in fundamental constitutional litigation. Somebody had to sue somebody before the legislature took long overdue action”. 1-B.I7. In respect of the right of second appeal, we recommend an amendment which will reduce both expense and delay. The ine creasing number of second appeals in the High Courts kas added to the arrears of the High Courts, with the result that appeals whieh are more than five years old, come up for hearing today; but quite apart from this aspect, the jurisdiction of the High Courts in second appeal has, to Iarge ‘extent, been wrongly invoked in order to seek interference at the hands of the High Courts in respect of questions which arc really questions of fact. Questions of law are the only questions which ought to be dealt with in second appeal. The role Of the High Court, as we conceive it, is not that of correetin errors of fact in matters which come before it. Its proper role is of maintaining and reestablishing uniformity in matters of law, and reintroducing certrainty, where neces and of keeping the con- tent of the law intelligible and le by means of a binding precedent, This is our approach, and consistently with this approach, we are recommending en amendment of section 100 whiea will Permit second appeals only on substantial questions of law. We have dealt with the broad features of our approach in the relevant chapter, where we consider the question of amending section 100. Revision 1-B.18. Analogous to the topic of second appeals is that of tevi- sional jurisdiction of the High Court under section 115 of the Code. Controversies galore have, from time to time, arisen as to the exact seope of this jurisdiction; ‘and it is well-known that some of the exe pressions which occur in'the section,’ such as “case decided”, “mate- rial irregularity” and the like, have offered a fertile field’ for the exercise of legal ingenuity, But these expressions have also been the cause of considerable delay in the administration of justice, and of avoidable suffering to litigants. : hepa! eee De es RCS Sew Si RRS I yg ef le aye le, St eb, 3100, 2 oted mt tho New Pe Kaern Lawyers" 070) Lala Law Sours nie tec L/WDYA20BfofE-Te aA ~2(0)a 1-B-19. As Rangnekar, J, observed! with reference to section 115— “Here a professional lawyer is sorely perplexed and bewildered by the conflict of judicial decisions as io what is thc meaning of the expression “case which has been decided” in S. 115, Civil P. C. and what is the meaning of Cl, (c) in that section when it is said that the Court has acted in the exercise of fis jurisdiction “legally ot with material irregularity", and one can only express a pious hope that the legislature may’ slep in and say precisely what it means and fix the limits of revisional jurisdiction of the High Courts, in @ manner intelligible even to a layman.” The first two clauses (a) and (b) of S. 115 do not present any difficulty; it is the last clause that ‘does, 1-B20, We have, after careful consideration, come to the con- clusion ‘that revisional jurisdiction exists solely for the purpose of correcting manifest and serious injustice; and the correction of such injustice ig amply taken care of by the powers of High Courts under section 227 of the Constitution. Any other matters decided by lower couris—even though the decision may appear to be erroneous— Should not be taken to the High Court in revision. On this principle, we are recommending the deletion of section 115 Written Statements 1-B.21, Litigation cannot be properly conducted if the points for determination are not properly presented to the Court, And, the points for determination cannot be properly presented if the court Bas not, before i, the case of cach Barty ina precise and concise form, If is on this philosophy that procedural codes require the parties to file pleadings, and lay down claborate requirements as to the form and contents’ of pleadings, This may sound elementary: but we are constrained to refer to these aspects, because wo find that the rule which deals with the written statement (defence) of the defendant,’ leaves it to the discretion of the court to require the defendant to ‘ile his defence. We are of the view that it should, in every case, be obligatory for the defendant to file a written state- ment, and that failure to do so should empower the court to pro- ounce judgement against him. There are provisions on the subject in the Code—0.8, r. 1 to 08, r. 10, but they are either incomplete in their scope or defective in their expression. We axe recommend- ing amendments to remove these defects Disposal of case on preliminary issnes 4-B22, Considerable sdelay is often caused by the ten of courts to avoid the decision of all the matters in tue ina ae, on the ground that the suit could be disposed of on a preliminary point. Tm such cases, when the decision of the trial court on the pre- iminary point is reversed in appeal, the matter has ordinatily t0 be remitted to the trial court again, with the result that the inquiry 1, Bai Chandos v. Ohlolal, ALB, 1999 Bominy 084, 686. 2 Onder §, Role 1,1B into other issues commences after the expiry of a long period of time, when documents might have been lost, the memory of witnesses might have faded, and, in general, the ‘grip of the judge over the litigation would have been lessened. ‘We think this should be avoided, and we are, therefore recom- mending an amendment of the relevant rules, under which it would be obligatory for the court to decide all issues, subject to certain specified exceptions relating to jurisdiction and bar of suit. Suits concerning the family 1-B.23, Litigation in the past, in India, has revolved mainly round questions of property, Even where questions concerning personal law and allied branches ef the law were at issue, the inditect objec- tive of the litigation was, in many cases, the esiablishment of pro- pristary rights, for example, in suits for adoption and proceedi as to guardianship. Litigation in future, is, however, likely to gain new dimension. By way of this illustration, we may state that dis- putes concerning the family will be brought with increasing fre- queney into the arena of Litigation, 1-B.24, In her remarkable work, The Century of the Child, Ellen Key’ quotes a dramatic work called The Lion's Whelp: “The next century will be the century, of the child, just as this century has been the woman's century. When the child gets his rights, morality will be perfected. ‘Then every man will know that he is bound to the life which be has produced with other bounds, than those imposed by society and the laws. You understand that man can- not be released from his duty as father even if he travels around the world; 2 kingdom can be given and taken away, but not fatherhood”. 1-B25. We do not, in this Report, pause to consider whether the traditional judicial machinery is an ideal system for the resolu- tion of such disputes; but, so long as it remains the only machinery available for the purpose, it should be so mowed as t enable ang encourage the judge, to perform more satisfactorily the duty of adjudicating on these new types of disputes. This basic considera tion has encouraged us in recommending the insertion of a set of new provisions* to deal with litigation involving matters concerning the family. J:B25. When courts encounter, problems concerning the family in the context of conventional litigation, they tend, to deal wit them in a conventional way. This is understandable, “The judge is, above all, a skilled lawyer: a lifetime lived in the law has inculcated in his its promises, its analytical techniques, its principles” To correct this attitude in so far as litigation concerning the family is concerned, a few amendments would, we think, be: desirable. 1-B27, The law is never more nobly applied then when ft is for the alleviation of the economic suffering of those who approach EL Elln Key, The Gontary ofthe Chl, (160), page A ited in Grahams Parker, Fie FOR ke oe 2.” Order B2-A (propee). 3, TLSW. Asthes, "Developing TndortcalGiticoushp, (1007) 26 Ga Bac Ber. 786, 61,“4 its portals. The Code has a Chapter' dealing with suits by paupers. ‘We are recommending certain changes in this respect, which wi we hope, improye its utility as a weapon in the fight against pover' We may add that the question of the impact of law on poverty deserves to be considered in a comprehensive manner. 1-B.28. A few other matters relevant to poverty—the question of legal aid and the question of court fees—are ouitside the scope of the Code, The former is being considered by a separate Com- mittee." We have not, therefore, gots into these two aspects at length, but even so, wherever a point concerning legal aid or court fees required serious attention, we have thought it appropriate to refer. to it, and are making appropriate recommendations in the matter, in the hope that the Union Government will be able to persuade the State Governments to adopt these recommendations. 1-B-28-A. At present, in suits on mortgages, the Code makes It compulsory to have two decrees—preliminary and final—whether the suit be for foreclosure, redemption or sale. This makes the proce- dure cumbersome, and almost invariably if two appeals are filed against two decreés in the same suit, We think that the procedure could be made simpler by substituting one decree (corresponding, broadly, to the present preliminary decree), and the rest of the proceedings could be relegated to execution.” Following this ap- Proach, wa are recommending a recasting of the relevant provision of order 34 Summary procedure 1-B.26-B. To prevent unreasonable obstruction of a suit by a defendant who has no defence the Code* has a Chapter providing for summary procedure, The utility of this Chapter is obvious. The ap- Diication of this Chapter is, however, Kimited to certain specified Courts and to particular classes of syits. In order that greater use may be made of this useful chapter, we are recommending certain amendments in the relevant rules. Delay caused by stay orders 148-29, The chronology of ltigatjon under the Code is, im its pare essentials, fairly simple. But it gets clogged by a variety of hindrances, Examples of such hingratfees are furnished, at the stage of trial of a sult, by appeals and revisions ageinst what have, cme to be known as ‘interlocutory orders’. At the stage of execution, obstacles abound owing to stay ordtts obtained on one or another by taking recourse fo miscel ‘appeals or appeals from ‘orders or revisional applications. 'To pnlnimise the delay caused by Such obstacles, we arc recomamending certain amendments in the relevant rules.’ We hope, that they. fill advance the cause of expe dition, without unduc hardship to Ii 1 Orda 39. 2. Legal Aid Committe, 8. Order 54. 4, Oxdee 37. . (a) Onda 4, rule 6 B) Ontor 21, ralo 24, (6) Ordee'83, culo L.15 1-B.30. In one of the Chapters appearing towards the end of our Report we have thought it necessary to discuss the problem of training our junior judicial officers and to make some important and radical suggestions in thet behalf, We ought to add that, though the subject-matter of this Chapter is technically outside the scope of our present inquiry and report, we ate satisfied that it is our duty with all the emphasis we can command, to carnestly appeal to the Union Government to request the State Governments to take imme- diate and suitable action in terms of our recommendations. We are quite clear in our minds that the terms of service under which junior judicial officers are employed and the fringe benefits and general amenities which are made available tu them are wholly unsatisfactory and meagre to a degree, and that they need to be immediately improved if competent and capgble lawyers haye to be attracted to the judicial cereer, It must be borne in mind that the work which these junior judicial officers discharge in _ their respec tive courts in smal] taluk towns is, in substance the foundation of what is described as the Rule of Law. As Justice Holmes once ob- served, the basis of the rule of law is laid down not necessarily in important and sensational constitutional cases, but in small “and humble disputes between litigants who bring’ their causes to the courts, 1-BS1. For efficient, satisfactory and expeditious _ administra. tion of justice which “would command public ‘gonfidence and enjos lic respect, an el ned, speedy, fair and | pro- Giaedive procediise “Is “no doubt, "essential; and that” is what we have attempted to do in ur present ‘report, But pro- cedure alone will not solve the problem of accumulating arrears which haye assumed alarming proportions in all the courts in our country. Procedure can hope to sueceed in attacking this problem, provided the Judges who preside over the courts are conscious of their obligations to the community at large and exercise their po- wers and discharge their functions determined to remove from the administration of justice the widely spread and somewhat justified omblaint of delay” costs and unpredletaility, Tt i6 our confident, be- lief that, in the context of today, and having regard to the hopes and aspirations of the common men and women in this country, the fadi- lary can no longer be content to play merely the role of an umpire ang allow the adversary character of our litigation to proceed unin- terrupted by the wise and judicious interventions from the judges from time to time, Since, in our view, the junior judiciary has to pley a major role in the conduct of the causes which aré filed be- fore them, we think it is of utmost importance to initiate them into the philosophy of law and its major role in relation to the changing Society. Besides, itis hardly necessaty, to emphasise that, in course of time, Distriet Judges and some of the High Court Judges are drawn from this class of junior judicial officers. ‘That is why we have set out our thoughts in the last chapter and made recommen: dations which we think might serve the purpose we have in mind. 1, Gee Chapter 58.6 1-B.32. “Training” has been deseribed' as the “process of develop- ing skills, habits, knowledge and attitudes in employees for the pur- pose of increasing the effectiveness of employees in their present Positions, as well as preparing employees for future Govern- ment positions”, Judicial officers have responsible and varied func- tions to perform, and should receive adequate training before they enter on their office, We have not in mind merely the inculeation of professional skill end knowledge. Training must also aim at broaden- ing the mental horizons, values and atitides' of the ofcers, by in- stilling the right mental attitudes on the question of judicial conduct. ‘This becomes relevant because the judge holds a pivotal position, and has a vast variety of discretionary funetions waich are vital in the effective working of the law as an instrument of social justice. 13.33. In every: organisation, the training of employees, which sets the tone and quality of the organisation, is useful, It is more 50 in a career service,’ with opportunities for successive promotions to higher grades. 1-B34. The detailed recommendations on the subject* will show that when we speak of “training” we do not have in mind the organi. sation of mere lectures. What we have in mind is the introduction of judicial taining at the initial stage, Case studies on particular events in the life of litigation, which illustrate typical situations, would be eminently suitable, because “a generalised understanding must emerge from experience of the particular.” 2, William @, Torpey, Pablio Personnel Management, New York, (D. Van Nostrand Con pany, Inc) (1050) page 16. 7 2. CLHLY. Kamath Prncpegand Teckniqns of Adminstration, Binet Vidya Bhavan, ‘Bombsy-7- (1971) poge 19. 8, Avasthi snd Mehosbwari, Publio Adnisiatratign (1000), Chapter 17, Edueation and ‘Training, pagee 31316. 4. Bee Chapter 63, 6) CM. Chadwick, "“AdminitrotiveTeaining: Notes of Syllabus”. Journal of Administra: ion, rman (London), Vol, No.3, duly 1066 paewe 7176, Abarat fn Ind Tpstitute of Public Administration, New Dolli, Fublio Adisinisration Abstracts (Gamary 1067), page 6