Statement of Objects and Reasons
Statement of Objects and Reasons
The Bill is sufficiently explained in the Report of the Special Committee printed below.
Simla, 3rd September, 1901 H. ERLE RICHARADS.
Report of the Special Committee appointed consider the amendment of the Civil Procedure Code.
The Hon’ble Mr. Erle Richards, K.C., Chairman,
The Hon’ble the Chief Justice of Bengal, K.C.I.E.
The Hon’ble the Chief Justice of Bombay, K.C.I.E.
The Hon’ble Mr. Ismay, C.S.1.
The Hon’ble Dr. Rashbehari Ghose, C.L.E.
We have the honour to present this report on the proposals to amend the Code of Civil Procedure which have been submitted for our consideration by the Government of India and, annexed to it, a draft Bill amended by us. A detailed account of the alterations introduced in the Bill will be found in the notes on clauses which form the second part of this Report, but we desire by way of preface to make some observations of a general character on the defects in the existing law which appear to us to call for reform and on the more important of those alternations
1. The Code of Civil Procedure of 1882 has been in force for 25 years and the experience of those years had shown that the general lines on which it proceeds are sound. The matters in which it has proved defective are for the most part matters of detail and they arise, as it seems to us, mainly from the fact that it is impossible to frame a fixed and rigid Code in such a manner as to sufficiently meet the varying needs of an area so diversified as that to which the Code applies. In our opinion it is essential that there should be some machinery to enable variations to be introduced in procedure to meet the different requirements of different localities as well as to enable defects to be remedied as they are discovered without resort to the tardy process of legislation. We propose to make provisions for these purposes by a rearrangement of the Code. We recommend that matters of mere machinery should be relegated to rules capable of alteration by each High Court subject to certain check, and that those provisions only should be retained in the body of the Code in which some degree of permanence and uniformity is desirable. This rearrangement is in accordance with precedent and possesses advantages so obvious that it is needless to enlarge upon them.
2. The objection-and as it appears to us the only objection of substance—that can be urged against this proposal is that until the scheme of distribution has become familiar to those who have to administer the Act the change may cause some confusion and familiar numerical references to the present sections will no longer apply. We are sensible that some inconvenience must arise from this cause in the first instance, but this is but a small disadvantage in comparison with the advantages to be obtained by the change, and we cannot think that anyone will seriously contened that such a slight and temporary drawback should stand in the way of a reform which appears to us in other respects to be wholly beneficial.
3. The adoption of this principle has necessarily involved a departure from the arrangement of the present Code, but in other respects we have advisedly adhered as closely as possible to the existing language, the meaning of which is now well understood by Courts and by practitioners. Speaking generally, it may be said that we have only departed from the phraseology of the Code where experience has suggested improvements or competent authority has called for some change. We have refrained from altering the wording merely because it might be capable of improvement: for in any change, even of a verbal character, there is a risk of opening a door to fresh litigation. In the amendments that we have introduced we have endeavoured to state general rules of procedure rather than to provide in detail for every possible contingency; for we hold it to be a sound view that excessive elaboration of details of procedure tends to cramp the actions of the Court and in consequence to encourage technicalities. For this reason we have made no attempt to embody in the Code a digest of the very numerous decisions on the existing sections we have made amendments to meet case law only on points on which there is conflict of authority. And in this connection we desire to point out that at the present time there is even less justification for the enactment of elaborate provisions in regard to procedure than at the time when the code of 1882 was passed. Since then the standard of legal efficiency in the mofussil has been materially raised, and the Principles of procedure are now so well understood that the Courts may be trusted to apply them intelligently in cases for which no provision may be made in terms.
But although we have made the present Code the basis of our draft we have carefully examined the Bill settled by the Select Committee in 1903, and we desire to express our acknowledgements to that Committee for the store of information it contains, and for the materials collected in there Report. Apart from the rearrangement to which reference has been made we have not introduced many changes of a radical character into the Code.
4. The general nature of some of the amendments we recommend may be conveniently illustrated by a brief examination of the extent to which the various stages of a suit will be affected by them. A. To begin with it is hoped that the multiplicity of suits will be further curtailed by the new provisions we have inserted to remove limitations which we regard as needless on the comprehensiveness of a suit, and by the wider powers of amendment vested in the courts under the Bill. An adequate check is provided by the power of a Court to interfere where embarrassment is likely to result.
B. Increased facilities have been given for the service of process to which further reference is made in the Notes of Clauses. It is hoped that in the gradual introduction of service by post may be found a solution of one of the principal defects in our legal system.
C. In our opinion it is most necessary that litigants in this country should come to trial with all issues clearly defined, and that cases should not be expanded or grounds shifted without reference to the true facts. For this purpose we think that the present system of pleadings in the mofussil, which is notoriously lax, should be improved, and we have incorporated in the rules an Order on pleadings, which it is hoped will lead to sounder and fairer methods of arriving at the real points in dispute. The forms have been revised and we hope that they will be brought into more general use in the mofussil.
We have not been able within the time at our disposal to make these forms, or the other forms in the Appendix to Schedule I complete: but this is a matter of detail which can be further considered before the Bill is passed into law.
D. It is not possible to secure expedition in the disposal of suits, unless the questions of fact on which there is a real contest are narrowed down as far as possible. As a step towards this, we have incorporated in the rules an Order in which provision is made for the admission not only of documents, but also of facts. It must be left to litigants and their advisers to make adequate use of this Order: but it is hoped that the Courts will encourage the use of it, since it certainly affords a means whereby the two principal evils of litigation, delay and expense, can be materially diminished.
E. We attach much importance to a proper use being made by Courts in the mofussil of the procedure prescribed for the first hearing. The Code as it stands makes provision for the examination of parties by the Court, and we have altered the language so as to compel the production of documents at the first hearing. In our opinion this will act as a substantial check on the fabrication of documentary evidence. F. The provisions relating to the hearing of suits do not call for material alteration, but we have thought it well to provide expressly for the cases where a party dies between conclusion of the hearing and delivery of judgement. It would obviously be wrong that such an accident should in any way interfere with the disposal of the case, and we have therefore inserted a provision to enable judgment to be pronounced notwithstanding the death.
G. A change of importance has been made in regard to decrees. In the first place, we have inserted an express provision recognizing the distinction between preliminary and final decrees. We hope in this way to afford facilities for checking the delay that now results from the objectionable practice of leaving for determination in execution questions which should be decided by decree. This change should ensure the more expeditious disposal of a class of suits which at present are conspicuous for the delay to which they give rise. Another amendment of importance which we have introduced is in regard to mortgage suits. These are very numerous and involve complicated questions of law. Hitherto some confusion has been occasioned by the co-existence of the provisions of the Transfer of Property Act and of the Code in regard to execution in mortgage-suits. We think that the provisions regulating this matter should be dealt with in their entirety in the Code and we have therefore introduced rules in Order XXXIV to give effect to our view. We propose that the sections of the Transfer of Property Act affected by this change should be repealed. We desire to call the attention of those Provinces to which that Act does not apply to the effect of these changes.
In our opinion it is expedient to give greater assistance to the Courts in the framing of decrees. The importance of this branch of procedure cannot be overrated; it is surrounded by difficulties which are a fruitful source of error and consequently of litigation. We have amplified the provisions of the Code to meet this defect, and have introduced some forms which can be adapted to meet the requirements of individual cases. We think that further forms might be added with advantage before the Bill becomes law. H. Amongst other matters we have removed limitations which at present exist on the power of appointing Receivers, and have conferred a power to appoint Receivers on Subordinate Courts.
5. Execution.—The subject of execution is, perhaps, one of the most difficult with which we have had to deal. The present system, in the mofussil at any rate, tends to excessive delay and affords facilities for defeating the claims of creditors. At the same time the creditor often has only himself to blame, owing to his own laches in prosecuting his rights. In the Presidency Towns the same objections cannot be fairly raised; the system works well; whilst, in the mofussil, the difficulties arise not so much from the machinery itself, as from the defective manner in which it is worked. One of the most fruitful sources of litigation is the setting aside of execution sales, on the ground of irregularity in the publication of the sale proclamation. It is notorious that in many of these cases the Court’s officer, either through negligence or dishonesty, has not duly published the proclamation, but it is impossible to deal with such cases by any provision in a Code. After a most careful consideration of the Subject, we have not seen our way to any very drastic changes in the present system. We have found ourselves unable to accept the somewhat far reaching proposal of the Committee of 1902 in relation to the execution of decrees by precept: but we are so far in accord with the view expressed by the Committee as to have been able to insert in the Bill, a clause which enables the Court which passed the decree to issue precept to any other Court to attach property of the judgment-debtor, pending execution in the ordinary course. Beyond this we have felt we could not safely go.
We anticipate that there will be a substantial saving of time, and consequent expense, from the provision requiring that mesne profits shall be ascertained by the Court under the decree itself, and not, as now in execution proceedings.
Clause 53 has been introduced to settle a long mooted point upon which there is much diversity to judicial opinion, as to whether or not questions as to the liability of ancestral property in the hands of a son or other descendant to whom it has come otherwise than by descent for the payment of the debt for which the decree was passed, can be determined under clause 47 of the present Bill, corresponding with section 244, of the existing Code. We think they should be.
Other amendments deserving notice relate to (1) the power to break open the outer door the judgment- debtor’s dwelling house; (2) the date from which the purchaser’s title accrues; (3) oral application for immediate execution; (4) the discretion of the Court in the execution of decrees for the restitution of conjugal rights; (5) execution against partnership property; (6) extended facilities for attaching salaries, and (7) powers to decree-holders to carry decrees in to effect at the expense of the judgment-debtor. We regard the changes made in relation to execution as calculated to materially assist the judgment- creditor in recovering the fruits of his judgment.
6. Arbitration.—Two questions of importance have arisen in connection with this subject: (1) should any of the sections of the Arbitration Act of 1899 be incorporated into the Code: (2) should the right of appeal, as now existing, be altered and, if so, in what direction? We are of opinion that the best course would undoubtedly be to eliminate from the Code all the clauses as to arbitration, and insert them in a new and comprehensive Arbitration Act. There are, perhaps, difficulties as to this at present. We have determined therefore to leave the arbitration clauses much as they are in the present Code: but we have placed them in a Schedule in the hope that at no distant date they may be transferred into a comprehensive Arbitration Act.
In regard to appeals, some change has been made. Upon this question, adopting the view of the Judicial Committee as expressed in Ghulam’s case (I.L.R., 29 Cal., 167) we are strongly in favour of finality in cases of arbitration. If rights of appeal be given, the disappointed party will take advantage of every such right. To meet the difficulty expressed in the case reported in I.L.R., 25 Cal., 141, (which followed many other cases in the Calcutta High Court) we have inserted the words “or being othewise invalid” in sub-section (c) of section 521 of the present Code. If, therefore, either party considers the award is invalid on any ground he can apply to have it set aside. We have thought it right to give one appeal from the opinion expressed by the Court on a special case under section 517, and to allow one appeal as from order under sections 521, 523 and 526. And having regard to the rather wide language of the Judicial Committee in Ghulam's case, we have further thought it advisable to make it clear that an order granting an application either under section 523 or 526 is not be deemed a decree within the meaning of the Code; otherwise there would be a wider right to appeal from orders under these sections than from a decree under section 522. The other alterations deal with the text, rather than with any question of policy, or principle.
7. Suits relating to public matters:—We have inserted a clause to enable actions for public nuisances to be brought, with the consent of the Advocate General irrespective of special damage. It has been represented to us that such a power is needed and we concur in that view.
8. Public charities.—The suggestion has been made on high authority that some express reference should be made in the Code to the power of the Court to apply the Cy-pres doctrine in the settling of schemes. But this power would appear to exist already within its proper limits (Mayor of Lyon’s case, L.R. 3 I.A. 32) and we do not think it necessary to make express reference to it.
It has been represented to us by more than one gentleman whose opinion is entitled to weight, that the power to enquire into the affairs of public charities should be made more extensive. The clause, as it stands, gives sufficient powers to the Courts to direct accounts and to frame schemes when once a suit has been instituted, but it is said that members of the public interested in any public charity ought to have the means of calling for and inspecting accounts without undertaking the burden of a suit, at least in the first instance. We are told that revenues derived from charitable trusts are in some cases very large in amount: that no accounts of their expenditure are ordinarily rendered, and that there is good ground for believing that a considerable portion is misspent or squandered on unless objects.
The Hon’ble Dr. Rashbebari Ghose supports these views and has submitted a clause to give effect to them. It is in the following terms:-
93-A. (1) The Court may also, upon an application by any two or more persons having the like interest and having obtained the like consent, direct any trustee of such charity to cause to be prepared and filed in the Court, within such times as may be with specified in the order, a detailed account of the receipt and disbursements in connection with the trust-property for a period not exceeding three years next preceding the date of the application.
(2) Such accounts, when filed in Court, shall be open to inspection by the public.
(3) A trustee who fails to comply with any such direction shall be removed if a suit for that purpose be instituted, unless he can show good cause for such failure.”
We have given to the subject our best consideration and desire to record our sympathy with the motives of the proposers. But we have not inserted the clause in the Bill because we think that the question is one of policy on which the public opinion of the communities interested should first be obtained. It affects primarily, as we understand, the Hindu and to a less extent, the Muhammadan community. And we should not feel justified in recommending an amendment of the law on such a subject as this unless the leaders of those communities were to express their support of the proposal in unequivocal terms. If it is eventually decided to adopt the amendment then we think that the clause proposed by Dr. Ghose may be accepted.
9. Suits by or against firms.—Attention is directed to the new provision in regard to suits by or against firms, (Order XXX) which will, we hope, prove acceptable to the commercial community.
10. New procedure.—We have given power to provide by Rules for Counter-claims, Third Party Procedure, Summary Procedure in suits for debt or liquidated demands as for instance, rent, or any other definite sum payable under a contract and Originating summons. We are of opinion that these forms of proceeding may usefully be adopted in some areas but that this is a matter which should be left for each High Court to decide.
11. Appeals.—As regards appeals from original decree we have departed but slightly from the existing Code. We have thought it advisable to give legislative sanction to the view that no appeal shall lie from a consent decree, or as to costs except by leave of the Court: but the most important change is that incorporated in clause 97 which renders it obligatory upon a party, who considers himself aggrieved by a preliminary decree, to appeal from that decree, at the risk of being precluded from disputing its correctness on an appeal from the final decree. We feel strongly that this is a most useful provision, as tending to that which is so desirable, viz., finality in litigation.
As regards appeals from appellate decrees the only substantial departure from the existing Code is the insertion of clause 103. Experience has shown the desirability of this clause, the effect of which will be to avoid remands, with their consequent delay and expense.
As regards appeals from orders a comparison of clause 104 of the Bill with section 588 of the existing Code would support a prima facie inference that the right of appeal from Orders had been materially curtailed. But this inference is dispelled on looking at sub-clause (h) of clause 104 which allows an appeal from any Order made under Rules from which an appeal is expressly allowed by Rules. We have gone carefully into the question of the cases in which an appeal should be allowed from these Orders and our conclusion is expressed in the Rules themselves.
12. Rules.—The distribution of the provisions of the Code between the body of the Bill and the Rules is a matter on which opinions may well differ. The general principle on which we have proceeded has been to keep in the body of the Bill those provisions which appear to us to be fundamental and those provisions which confer powers operating outside the Province in which the Court is situated. In some case we have adopted the plan of inserting leading provisions in the bill, stating in general terms the powers of the Court, and of leaving the details to Rules; The result this rearrangement is to reduce the Act, as distinct from Schedules, to 155 clauses. The existing order of sequence has, speaking generally, been maintained but the reduced bulk of the bill has rendered it no longer necessary to reproduce the division into Chapters.
It is Proposed to vest the Power of making Rules in High courts, subject to the control of Local Governments (or in the case of the Calcutta High Court of the Government of India), but we think it most desirable that in exercising this power the Courts should have the advice of representatives of the various branches of the legal profession, and we have accordingly provided that in the case of chartered High Courts and of Chief Courts, Rules shall only be made after those Courts have taken the opinion of the Rule Committee on which there will be representatives of the Bar, of Vakeels or Pleaders and in Presidency Towns of Attornies. In the case of other High Courts power has been given to establish such Rule Committees as the Governor-General in Council may determine. It is believed that Standing Committees of this kind will be of great value. We have thought it better to require the same sanction as is required by the Indian High Courts Act of 1861, in order that the rule making power should correspond with the power conferred under that Act; but we are of opinion that in the interest of uniformity, it is expedient that all amendments of Rules should be communicated to the Government of India and to other High Courts before sanction is given to them. This, we understand, can be effected by executive order. If our proposal is adopted it will probably be useful to publish annually in every Province some manual corresponding to the English “Annual Practice” containing:-
(1) the Act;
(2) all rules of procedure made under it or under other Acts in the Province;
(3) notes of decisions on the Act and Rules.
13. We are sensible that there may be defects and flaws in the Bill which we appena to this Report. The subject is complicated and technical and the time at our disposal has been limited. We do not doubt therefore that much improvement may be made in the Bill before it is finally passed in to law. But in our opinion it is framed on the right lines. We believe for the reasons we have stated that in any reform of civil Procedure it is essential to introduce some elasticity to give wider powers of control to the High Courts, and to invest them with a larger discretion in regard to the conduct of cases which come before them. Mr. Dikshit, Subordinate Judge from Bombay, has been present throughout our deliberations, and we take this opportunity of acknowledging the help we have derived from his experience of the working of the Code in the mofussil. We desire also to record our acknowledgements of the services of Mr. Law of the Legislative Department who has attended to the clerical and press work to our entire satisfaction
Simla;
August, 31st, 1907. H. ERLE RICHARDS.