CPC Amendment 2002

A Note on the Civil Procedure Code Amendment Act 2002 A kick-start to our online efforts at making the Judiciary more accessible and also “demystifying“ the law. If procedure is the handmaiden to justice than understanding the Civil Procedure Code which lays down procedures for the Civil court s including the High court is important. The note given below attempts to simplify the latest amendment to the Code, for litigants and hopefully (!) any lay person having an interest in the justice delivery system of our country.

A Note on the Civil Procedure Code Amendment Act 2002
A kick-start to our online efforts at making the Judiciary more accessible and also “demystifying“ the law. If procedure is the handmaiden to justice than understanding the Civil Procedure Code which lays down procedures for the Civil court s including the High court is important. The note given below attempts to simplify the latest amendment to the Code, for litigants and hopefully (!) any lay person having an interest in the justice delivery system of our country.

THE CIVIL PROCEDURE CODE (AMENDMENT) ACT 2002

The 2002 amendment to the Civil procedure Code, 1908 (“CPC“ in common usage), is the latest Parliamentary effort at making litigation in the country more effective and speedy. The Code is a consolidation of procedural laws that prescribe for civil courts, the practice, procedure and machinery for the enforcement of substantive law (- i.e. Rights and liabilities of parties to a dispute.). It extends to the whole of India barring the States of Jammu and Kashmir; (2) Nagaland and the tribal areas.

The Amendment of 2002 comes in the wake of the Amendment act of 1999, which was enacted to reduce the delays, experienced by litigants at various levels. It seeks to address those provisions introduced by the Act of 1999 that have been criticized as causing hardships to litigants and also other proposals to reduce delays faced

Litigation consists of the following stages, broadly categorised as pre-trial and trial proceedings. For the sake of clarity, the amendments are presented in conjunction with the stage of litigation they correspond to..

Sl. No. Stages of Litigation Corresponding Amendments made by the Act of 2002.
I)

PRE-TRIAL PROCEEDINGS

(a)

Institution of plaint, along with documents relied on

Under the amended Order, Rules 17 & 18 of the CPC Any documents that the plaintiff wants to rely on which have not been either attached along with the plaint or stated in the list can’t be subsequently introduced without the leave of the court. This provision would lead to greater efficiency if followed strictly. The position under the amendment introduced in 1999 was that new documents could only be introduced for the purpose of cross examination or to refresh the witness’s memory

In cases where there’s delay in production of documents due to no fault of the client, the Court may consider that as a sufficient reason and allow the subsequent production of documents.

(b)

Service of summons to the opposite party (defendant) to submit their written statement.

Amendment to Rule 9, Order V: Summons shall be delivered by the proper officer of the court in the ordinary course, as opposed to the pre- amendment position, where in some cases, the plaintiff or her agent could deliver the summons. Now the plaintiff only has to provide the required number of copies of the plaint and to pay the costs of delivery. If this is not done within the stipulated period of 7 days then the suit shall be dismissed (Amended Rule 2 of the first schedule of Order IX ),

Rule 2 of Order IX as amended. However, on application to the court, the plaintiff may be allowed to issue summons herself. (Rule 9-A)

Summons may now be delivered through Fax, or email also.

In cases where the defendant resides outside the jurisdiction of the court where the suit is filed, such court can direct service of summons through any one of the courier services approved by it. An improvement over the 1999 Act insofar as the local court has now got power to approve the courier service, whereas earlier only the HC had the power to do so. The decentralisation should speed up the litigation. However all this is subject to the Rules made by the High Court. what kind of rules are made by the High Court are yet to be sseen and only then can the efficacy of this provision be commented on. .

If the Defendant. refuses to accept summons (which is till now a common problem), whether it is served personally by the proper officer through any of the new modes introduced, the court on being intimated, can issue a declaration to the effect that the summons have been duly served. Rule 9 (5) (what is the effect of such a declaration? – contempt of court?)

(c )

Filing of Defendants written statement

The defendant has to submit the written statement within 30 days of the service of summons. This may be extended upon an application to the court, up to a maximum of 90 days Reasons for granting extension to be recorded in writing (as per amended Rule 1 sub rule (i), Schedule I of Order V,).

Regarding the introduction of additional. documents at a later stage the similar rule applies to the defendant. as to the plaintiff mentioned above.

If the defendantt. fails to file the written statement within the given time the court may pass any order against the erring party or a judgment / decree. Amended Order VIII Rule

This provision would definitely further the cause of speedy justice..

II

TRIAL PROCEEDINGS

a)

Hearings in Court

ADJOURNMENTS !

Once the hearing is commenced both the plaintiff and defendant shall not be given leave by the court to amend the suit unless the court is decides that in spite of due diligence being exercised the party could not have raised the matter. Rule 17 of Order VI Further if the party does not amend the suit within the given time then she shall not be allowed to unless the court extends the time. Rule 18 Of Order Vi

The Act of 2002 has reintroduced the power of the Court to amend /strike out issues for the purpose of determining the matter in controversy between the parties. (Rule V of Order XIV). This power was taken away by the 1999 amendment.

The court shall not grant more than three adjournments to either party to the suit. Any adjournment shall only be granted after the party requesting time shows sufficient cause. In each adjournment, the court shall make an order as to costs faced by the other party as a result of the adjournment. The court may also award higher costs if its thinks fit. Possibly a punitive measure

i)

Presentation of oral arguments

The court may fix a time limit for oral arguments of either of the parties as it thinks fit. (Sub Rule 3- D Rule 2, Order XVIII, First Schedule)

Sometimes oral arguments tend to drag on for hours together. However there is also a provision by which written arguments can be submitted. This is a useful provision, because it offsets any possible injustice owing to the refusal of the Court to hear the arguments.

ii)

Examination in chief cross – examination by the other side. of both parties witnesses.

The examination in chief of the witnesses of both parties shall be rendered via affidavit and furnished to the court. The evidence (re-examination and Cross examination) may be taken by a commissioner appointed by the court for this purpose, on the same day. However usually (even after the new act, time is granted for cross examination)

b)

Pronouncement of Judgment and Decree/Order

Judgement to be ordinarily pronounced within 30 days subject to a maximum time limit of 60 days ( for extraordinary reasons) But this is also not absolute….( per amended Order XX)

In cases where the court orders sale of the defendants property in pursuance of the claim awarded to the plaintiffs. As per the amendment, the defendant now has 60 days (as opposed to the earlier 30 days) for depositing the suit money in court. The amendment removes the anomaly between the Code and the limitation act, which granted 60 days to the defendant before making the sale absolute. The amendment is particularly beneficial for poorer litigants who now have additional time to come up with the funds.

c)

Revision of Lower courts Order

Section 115 has been amended to the disadvantage of litigants. Under the amended provision, when a party files a Civil Revision Petition aggrieved by the Order of a lower Court, the High Court cannot reverse such Order except where the Order, if it had been made in favour of the Revisioner, would have had the effect of finally disposing of the proceedings. For example, if a Plaintiff in a suit wishes to make an amendment to the Plaint and the Trial Court rejects the application, the High Court cannot reverse this order, as it would not have finally disposed of the case if the Order had been in favour of the Plaintiff

d).

Appeal

The appeal process has been limited so that hence forth no appeal shall lie from the judgment of a single judge of a High court and no second appeal in any suit (irrespective of whether it comes up before the high court or a lower court) where the subject value of the original suit is up to Rs. 25,000/- (Substituted new section 102)

III.

SETTLEMENT OF DISPUTES OUTSIDE OF COURT

The Act of 1999, has introduced a new provision (S.89) where the court may by itself, proactively refer a dispute for alternative dispute resolution methods if it appears that elements of a settlement exist, which may be acceptable to the parties to the dispute. The Provision is a good one provided that it does not in any way prevent the parties themselves withdrawing the case so that they may settle through any mode of alternate dispute resolution that is acceptable to both parties.

To summarise…..

The space for the exercise of judicial discretion allows for unnecessary delays. However, the several mandatory time limits imposed on the plaintiff and defendant, at each stage of the litigation, should help in speeding up the litigation process. The introduction of evidences via affidavits as well as the introduction of the court appointed commissioner will also further this objective. The bane of the judicial system- unnecessary adjournment can be dealt with effectively with the limit imposed as also the provision as to costs including punitive costs.

By: Anuja Mirchandaney

With Inputs from Members of ALF.