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CASE NO.:

Writ Petition (civil) 496 of 2002

PETITIONER:

Salem Advocate Bar Association,Tamil Nadu

RESPONDENT:

Union of India

DATE OF JUDGMENT: 02/08/2005

BENCH:

Y.K.Sabharwal, D.M.Dharmadikhari & Tarun Chatterjee

JUDGMENT:

J U D G M E N T

[With Writ Petition (Civil) No.570 of 2002]

Y.K. Sabharwal, J.

The challenge made to the constitutional validity of amendments

made to the Code of Civil Procedure (for short, 'the Code') by Amendment

Acts of 1999 and 2002 was rejected by this Court {Salem Advocates Bar

Association, T.N. v. Union of India [(2003) 1 SCC 49]}, but it was

noticed in the judgment that modalities have to be formulated for the

manner in which Section 89 of the Code and, for that matter, the other

provisions which have been introduced by way of amendments, may have

to be operated. For this purpose, a Committee headed by a former Judge

of this Court and Chairman, Law Commission of India (Justice M.

Jagannadha Rao) was constituted so as to ensure that the amendments

become effective and result in quicker dispensation of justice. It was

further observed that the Committee may consider devising a model case

management formula as well as rules and regulations which should be

followed while taking recourse to the Alternate Disputes Resolution (ADR)

referred to in Section 89. It was also observed that the model rules, with or

without modification, which are formulated may be adopted by the High

Courts concerned for giving effect to Section 89(2)(d) of the Code.

Further, it was observed that if any difficulties are felt in the working of the

amendments, the same can be placed before the Committee which would

consider the same and make necessary suggestions in its report. The

Committee has filed the report.

The report is in three parts. Report 1 contains the consideration of

the various grievances relating to amendments to the Code and the

recommendations of the Committee. Report 2 contains the consideration

of various points raised in connection with draft rules for ADR and

mediation as envisaged by Section 89 of the Code read with Order X Rule

1A, 1B and 1C. It also contains model Rules. Report 3 contains a

conceptual appraisal of case management. It also contains the model

rules of case management.

First, we will consider Report 1 which deals with the amendments

made to the Code.

Report No.1

Amendment inserting sub-section (2) to Section 26 and Rule

15(4) to Order VI Rule 15.

Prior to insertion of aforesaid provisions, there was no requirement

of filing affidavit with the pleadings. These provisions now require the

plaint to be accompanied by an affidavit as provided in Section 26(2) and

the person verifying the pleadings to furnish an affidavit in support of the

pleading [Order VI Rule 15(4)]. It was sought to be contended that the

requirement of filing an affidavit is illegal and unnecessary in view of the

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existing requirement of verification of the pleadings. We are unable to

agree. The affidavit required to be filed under amended Section 26(2) and

Order VI Rule 15(4) of the Code has the effect of fixing additional

responsibility on the deponent as to the truth of the facts stated in the

pleadings. It is, however, made clear that such an affidavit would not be

evidence for the purpose of the trial. Further, on amendment of the

pleadings, a fresh affidavit shall have to be filed in consonance thereof.

Amendment of Order XVIII Rule 4

The amendment provides that in every case, the examination-in-

chief of a witness shall be on affidavit. The Court has already been vested

with power to permit affidavits to be filed as evidence as provided in Order

XIX Rules 1 and 2 of the Code. It has to be kept in view that the right of

cross-examination and re-examination in open court has not been

disturbed by Order XVIII Rule 4 inserted by amendment. It is true that

after the amendment cross-examination can be before a Commissioner but

we feel that no exception can be taken in regard to the power of the

legislature to amend the Code and provide for the examination-in-chief to

be on affidavit or cross-examination before a Commissioner. The scope of

Order XVIII Rule 4 has been examined and its validity upheld in Salem

Advocates Bar Association's case. There is also no question of

inadmissible documents being read into evidence merely on account of

such documents being given exhibit numbers in the affidavit filed by way of

examination-in-chief. Further, in Salem Advocates Bar Association's

case, it has been held that the trial court in appropriate cases can permit

the examination-in-chief to be recorded in the Court. Proviso to sub-rule

(2) of Rule 4 of Order XVIII clearly suggests that the court has to apply its

mind to the facts of the case, nature of allegations, nature of evidence and

importance of the particular witness for determining whether the witness

shall be examined in court or by the Commissioner appointed by it. The

power under Order XVIII Rule 4(2) is required to be exercised with great

circumspection having regard to the facts and circumstances of the case.

It is not necessary to lay down hard and fast rules controlling the discretion

of the court to appoint Commissioner to record cross-examination and re-

examination of witnesses. The purpose would be served by noticing some

illustrative cases which would serve as broad and general guidelines for

the exercise of discretion. For instance, a case may involve complex

question of title, complex question in partition or suits relating to

partnership business or suits involving serious allegations of fraud, forgery,

serious disputes as to the execution of the will etc. In such cases, as far

as possible, the court may prefer to itself record the cross-examination of

the material witnesses. Another contention raised is that when evidence is

recorded by the Commissioner, the Court would be deprived of the benefit

of watching the demeanour of witness. That may be so but, In our view,

the will of the legislature, which has by amending the Code provided for

recording evidence by the Commissioner for saving Court's time taken for

the said purpose, cannot be defeated merely on the ground that the Court

would be deprived of watching the demeanour of the witnesses. Further,

as noticed above, in some cases, which are complex in nature, the prayer

for recording evidence by the Commissioner may be declined by the Court.

It may also be noted that Order XVIII Rule 4, specifically provides that the

Commissioner may record such remarks as it thinks material in respect of

the demeanour of any witness while under examination. The Court would

have the benefit of the observations if made by the Commissioner.

The report notices that in some States, advocates are being required

to pass a test conducted by the High Court in the subjects of Civil

Procedure Code and Evidence Act for the purpose of empanelling them on

the panels of Commissioners. It is a good practice. We would, however,

leave it to the High Courts to examine this aspect and decide to adopt or

not such a procedure. Regarding the apprehension that the payment of

fee to the Commissioner will add to the burden of the litigant, we feel that

generally the expenses incurred towards the fee payable to the

Commissioner is likely to be less than expenditure incurred for attending

the Courts on various dates for recording evidence besides the

harassment and inconvenience to attend the Court again and again for the

same purpose and, therefore, in reality in most of the cases, there could be

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no additional burden.

Amendment to Order XVIII Rule 5(a) and (b) was made in 1976

whereby it was provided that in all appealable cases evidence shall be

recorded by the Court. Order XVIII Rule 4 was amended by Amendment

Act of 1999 and again by Amendment Act of 2002. Order XVIII Rule 4(3)

enables the commissioners to record evidence in all type of cases

including appealable cases. The contention urged is that there is conflict

between these provisions.

To examine the contention, it is also necessary to keep in view

Order XVIII Rule 19 which was inserted by Amendment Act of 1999. It

reads as under:

"Power to get statements recorded on

commission.\027Notwithstanding anything

contained in these rules, the Court may, instead

of examining witnesses in open Court, direct their

statements to be recorded on commission under

rule 4A of the Order XXVI."

The aforesaid provision contains a non-obstante clause. It overrides

Order XVIII Rule 5 which provides the court to record evidence in all

appealable cases. The Court is, therefore, empowered to appoint a

Commissioner for recording of evidence in appealable cases as well.

Further, Order XXVI Rule 4-A inserted by Amendment Act of 1999

provides that notwithstanding anything contained in the Rules, any court

may in the interest of justice or for the expeditious disposal of the case or

for any other reason, issue Commission in any suit for the examination of

any person resident within the local limits of the court's jurisdiction. Order

XVIII Rule 19 and Order XXVI Rule 4-A, in our view, would override Order

XVIII Rule 5(a) and (b). There is, thus, no conflict.

The next question that has been raised is about the power of the

Commissioner to declare a witness hostile. Order XVIII Rule 4(4) requires

that any objection raised during the recording of evidence before the

Commissioner shall be recorded by him and decided by the Court at the

stage of arguments. Order XVIII Rule 4(8) stipulates that the provisions of

Rules 16, 16-A, 17 and 18 of Order XXVI, in so far as they are applicable,

shall apply to the issue, execution and return of such commission

thereunder. The discretion to declare a witness hostile has not been

conferred on the Commissioner. Under Section 154 of the Evidence Act, it

is the Court which has to grant permission, in its discretion, to a person

who calls a witness, to put any question to that witness which might be put

in cross-examination by the adverse party. The powers delegated to the

Commissioner under Order XXVI Rules 16, 16-A, 17 and 18 do not include

the discretion that is vested in Court under Section 154 of the Evidence Act

to declare a witness hostile.

If a situation as to declaring a witness hostile arises before a

Commission recording evidence, the concerned party shall have to obtain

permission from the Court under Section 154 of the Evidence Act and it is

only after grant of such permission that the Commissioner can allow a

party to cross-examine his own witness. Having regard to the facts of the

case, the Court may either grant such permission or even consider to

withdraw the commission so as to itself record remaining evidence or

impose heavy costs if it finds that permission was sought to delay the

progress of the suit or harass the opposite party.

Another aspect is about proper care to be taken by the Commission

of the original documents. Undoubtedly, the Commission has to take

proper care of the original documents handed over to him either by Court

or filed before him during recording of evidence. In this regard, the High

Courts may frame necessary rules, regulations or issue practice directions

so as to ensure safe and proper custody of the documents when the same

are before the Commissioner. It is the duty and obligation of the

Commissioners to keep the documents in safe custody and also not to give

access of the record to one party in absence of the opposite party or his

counsel. The Commissioners can be required to redeposit the documents

with the Court in case long adjournments are granted and for taking back

the documents before the adjourned date.

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Additional Evidence

In Salem Advocates Bar Association's case, it has been clarified

that on deletion of Order XVIII Rule 17-A which provided for leading of

additional evidence, the law existing before the introduction of the

amendment, i.e., 1st July, 2002, would stand restored. The Rule was

deleted by Amendment Act of 2002. Even before insertion of Order XVIII

Rule 17-A, the Court had inbuilt power to permit parties to produce

evidence not known to them earlier or which could not be produced in spite

of due diligence. Order XVIII Rule 17-A did not create any new right but

only clarified the position. Therefore, deletion of Order XVIII Rule 17-A

does not disentitle production of evidence at a later stage. On a party

satisfying the Court that after exercise of due diligence that evidence was

not within his knowledge or could not be produced at the time the party

was leading evidence, the Court may permit leading of such evidence at a

later stage on such terms as may appear to be just.

Order VIII Rule 1

Order VIII Rule 1, as amended by Act 46 of 1999 provides that the

defendant shall within 30 days from the date of service of summons on

him, present a written statement of his defence. The rigour of this

provision was reduced by Amendment Act 22 of 2002 which enables the

Court to extend time for filing written statement, on recording sufficient

reasons therefor, but the extension can be maximum for 90 days.

The question is whether the Court has any power or jurisdiction to

extend the period beyond 90 days. The maximum period of 90 days to file

written statement has been provided but the consequences on failure to

file written statement within the said period have not been provided for in

Order VIII Rule 1. The point for consideration is whether the provision

providing for maximum period of ninety days is mandatory and, therefore,

the Court is altogether powerless to extend the time even in an

exceptionally hard case.

It has been common practice for the parties to take long

adjournments for filing written statements. The legislature with a view to

curb this practice and to avoid unnecessary delay and adjournments, has

provided for the maximum period within which the written statement is

required to be filed. The mandatory or directory nature of Order VIII Rule 1

shall have to be determined by having regard to the object sought to be

achieved by the amendment. It is, thus, necessary to find out the intention

of the legislature. The consequences which may follow and whether the

same were intended by the legislature have also to be kept in view.

In Raza Buland Sugar Co. Ltd., Rampur v. The Municipal Board,

Rampur [AIR 1965 SC 895], a Constitution Bench of this Court held that

the question whether a particular provision is mandatory or directory

cannot be resolved by laying down any general rule and it would depend

upon the facts of each case and for that purpose the object of the statute in

making out the provision is the determining factor. The purpose for which

the provision has been made and its nature, the intention of the legislature

in making the provision, the serious general inconvenience or injustice to

persons resulting from whether the provision is read one way or the other,

the relation of the particular provision to other provisions dealing with the

same subject and other considerations which may arise on the facts of a

particular case including the language of the provision, have all to be taken

into account in arriving at the conclusion whether a particular provision is

mandatory or directory.

In Sangram Singh v. Election Tribunal Kotah & Anr. [AIR 1955

SC 425], considering the provisions of the Code dealing with the trial of the

suits, it was opined that:

"Now a code of procedure must be regarded as

such. It is procedure, something designed to

facilitate justice and further its ends: not a Penal

enactment for punishment and penalties; not a

thing designed to trip people up. Too technical

construction of sections that leaves no room for

reasonable elasticity of interpretation should

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therefore be guarded against (provided always

that justice is done to both sides) lest the very

means designed for the furtherance of justice be

used to frustrate it.

Next, there must be ever present to the mind the

fact that our laws of procedure are grounded on a

principle of natural justice which requires that

men should not be condemned unheard, that

decisions should not be reached behind their

backs, that proceedings that affect their lives and

property should not continue in their absence and

that they should not be precluded from

participating in them. Of course, there must be

exceptions and where they are clearly defined

they must be given effect to. But taken by and

large, and subject to that proviso, our laws of

procedure should be construed, wherever that is

reasonably possible, in the light of that principle. "

In Topline Shoes Ltd. v. Corporation Bank [(2002) 6 SCC 33], the

question for consideration was whether the State Consumer Disputes

Redressal Commission could grant time to the respondent to file reply

beyond total period of 45 days in view of Section 13(2) of the Consumer

Protection Act, 1986. It was held that the intention to provide time frame to

file reply is really made to expedite the hearing of such matters and avoid

unnecessary adjournments. It was noticed that no penal consequences

had been prescribed if the reply is not filed in the prescribed time. The

provision was held to be directory. It was observed that the provision is

more by way of procedure to achieve the object of speedy disposal of the

case.

The use of the word 'shall' in Order VIII Rule 1 by itself is not

conclusive to determine whether the provision is mandatory or directory.

We have to ascertain the object which is required to be served by this

provision and its design and context in which it is enacted. The use of the

word 'shall' is ordinarily indicative of mandatory nature of the provision but

having regard to the context in which it is used or having regard to the

intention of the legislation, the same can be construed as directory. The

rule in question has to advance the cause of justice and not to defeat it.

The rules of procedure are made to advance the cause of justice and not

to defeat it. Construction of the rule or procedure which promotes justice

and prevents miscarriage has to be preferred. The rules or procedure are

handmaid of justice and not its mistress. In the present context, the strict

interpretation would defeat justice.

In construing this provision, support can also be had from Order VIII

Rule 10 which provides 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, the Court shall pronounce

judgment against him, or make such other order in relation to the suit as it

thinks fit. On failure to file written statement under this provision, the Court

has been given the discretion either to pronounce judgment against the

defendant or make such other order in relation to suit as it thinks fit. In the

context of the provision, despite use of the word 'shall', the court has been

given the discretion to pronounce or not to pronounce the judgment

against the defendant even if written statement is not filed and instead

pass such order as it may think fit in relation to the suit. In construing the

provision of Order VIII Rule 1 and Rule 10, the doctrine of harmonious

construction is required to be applied. The effect would be that under Rule

10 of Order VIII, the court in its discretion would have power to allow the

defendant to file written statement even after expiry of period of 90 days

provided in Order VIII Rule 1. There is no restriction in Order VIII Rule 10

that after expiry of ninety days, further time cannot be granted. The Court

has wide power to 'make such order in relation to the suit as it thinks fit'.

Clearly, therefore, the provision of Order VIII Rule 1 providing for upper

limit of 90 days to file written statement is directory. Having said so, we

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wish to make it clear that the order extending time to file written statement

cannot be made in routine. The time can be extended only in exceptionally

hard cases. While extending time, it has to be borne in mind that the

legislature has fixed the upper time limit of 90 days. The discretion of the

Court to extend the time shall not be so frequently and routinely exercised

so as to nullify the period fixed by Order VIII Rule 1.

Section 39

Section 39(1) of the Code provides that the Court which passed a

decree may, on the application of the decree-holder send it for execution to

another court of competent jurisdiction. By Act 22 of 2002, Section 39(4)

has been inserted providing that nothing in the section shall be deemed to

authorise the Court which passed a decree to execute such decree against

any person or property outside the local limits of its jurisdiction. The

question is whether this newly added provision prohibits the executing

court from executing a decree against a person or property outside its

jurisdiction and whether this provision overrides Order XXI Rule 3 and

Order XXI Rule 48 or whether these provisions continue to be an exception

to Section 39(4) as was the legal position before the amendment.

Order XXI Rule 3 provides that where immoveable property forms

one estate or tenure situate within the local limits of the jurisdiction of two

or more courts, any one of such courts may attach and sell the entire

estate or tenure. Likewise, under Order XXI Rule 48, attachment of salary

of a Government servant, Railway servant or servant of local authority can

be made by the court whether the judgment-debtor or the disbursing officer

is or is not within the local limits of the court's jurisdiction.

Section 39 does not authorise the Court to execute the decree

outside its jurisdiction but it does not dilute the other provisions giving such

power on compliance of conditions stipulated in those provisions. Thus,

the provisions, such as, Order XXI Rule 3 or Order XXI Rule 48 which

provide differently, would not be effected by Section 39(4) of the Code.

Section 64(2)

Section 64(2) in the Code has been inserted by Amendment Act 22

of 2002. Section 64, as it originally stood, has been renumbered as

Section 64(1). Section 64(1), inter alia, provides that where an attachment

has been made, any private transfer or delivery of property attached or of

any interest therein contrary to such attachment shall be void as against all

claims enforceable under the attachment. Sub-section (2) protects the

aforesaid acts if made in pursuance of any contract for such transfer or

delivery entered into and registered before the attachment. The concept of

registration has been introduced to prevent false and frivolous cases of

contracts being set up with a view to defeat the attachments. If the

contract is registered and there is subsequent attachment, any sale deed

executed after attachment will be valid. If it is unregistered, the

subsequent sale after attachment would not be valid. Such sale would not

be protected. There is no ambiguity in sub-section (2) of Section 64.

Order VI Rule 17

Order VI Rule 17 of the Code deals with amendment of pleadings.

By Amendment Act 46 of 1999, this provision was deleted. It has again

been restored by Amendment Act 22 of 2002 but with an added proviso to

prevent application for amendment being allowed after the trial has

commenced, unless 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 proviso, to some extent, curtails absolute

discretion to allow amendment at any stage. Now, if application is filed

after commencement of trial, it has to be shown that in spite of due

diligence, such amendment could not have been sought earlier. The

object is to prevent frivolous applications which are filed to delay the trial.

There is no illegality in the provision.

Service through Courier

Order V Rule 9, inter alia, permits service of summons by party or

through courier. Order V Rule 9(3) and Order V Rule 9-A permit service of

summons by courier or by the plaintiff. Order V Rule 9(5) requires the

court to declare that the summons had been duly served on the defendant

on the contingencies mentioned in the provision. It is in the nature of

deemed service. The apprehension expressed is that service outside the

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normal procedure is likely to lead to false reports of service and passing of

ex parte decrees. It is further urged that courier's report about defendant's

refusal to accept service is also likely to lead to serious malpractice and

abuse.

While considering the submissions of learned counsel, it has to be

borne in mind that problem in respect of service of summons has been one

of the major causes of delay in the due progress of the case. It is common

knowledge that the defendants have been avoiding to accept summons.

There have been serious problems in process serving agencies in various

courts. There can, thus, be no valid objection in giving opportunity to the

plaintiff to serve the summons on the defendant or get it served through

courier. There is, however, danger of false reports of service. It is

required to be adequately guarded. The courts shall have to be very

careful while dealing with a case where orders for deemed service are

required to be made on the basis of endorsement of such service or

refusal. The High Courts can make appropriate rules and regulations or

issue practice directions to ensure that such provisions of service are not

abused so as to obtain false endorsements. In this regard, the High

Courts can consider making a provision for filing of affidavit setting out

details of events at the time of refusal of service. For instance, it can be

provided that the affidavit of person effecting service shall state as to who

all were present at that time and also that the affidavit shall be in the

language known to the deponent. It can also be provided that if affidavit or

any endorsement as to service is found to be false, the deponent can be

summarily tried and punished for perjury and the courier company can be

black-listed. The guidelines as to the relevant details to be given can be

issued by the High Courts. The High Courts, it is hoped, would issue as

expeditiously as possible, requisite guidelines to the trial courts by framing

appropriate rules, order, regulations or practice directions.

Adjournments

Order XVII of the Code relates to grant of adjournments. Two

amendments have been made therein. One that adjournment shall not be

granted to a party more than three times during hearing of the suit. The

other relates to cost of adjournment. The awarding of cost has been made

mandatory. Costs that can be awarded are of two types. First, cost

occasioned by the adjournment and second such higher cost as the court

deems fit.

While examining the scope of proviso to Order XVII Rule 1 that more

than three adjournments shall not be granted, it is to be kept in view that

proviso to Order XVII Rule 2 incorporating clauses (a) to (e) by Act 104 of

1976 has been retained. Clause (b) stipulates that no adjournment shall

be granted at the request of a party, except where the circumstances are

beyond the control of that party. The proviso to Order XVII Rule 1 and

Order XVII Rule 2 have to be read together. So read, Order XVII does not

forbid grant of adjournment where the circumstances are beyond the

control of the party. In such a case, there is no restriction on number of

adjournments to be granted. It cannot be said that even if the

circumstances are beyond the control of a party, after having obtained third

adjournment, no further adjournment would be granted. There may be

cases beyond the control of a party despite the party having obtained three

adjournments. For instance, a party may be suddenly hospitalized on

account of some serious ailment or there may be serious accident or some

act of God leading to devastation. It cannot be said that though

circumstances may be beyond the control of a party, further adjournment

cannot be granted because of restriction of three adjournments as

provided in proviso to Order XVII Rule 1.

In some extreme cases, it may become necessary to grant

adjournment despite the fact that three adjournments have already been

granted (Take the example of Bhopal Gas Tragedy, Gujarat earthquake

and riots, devastation on account of Tsunami). Ultimately, it would depend

upon the facts and circumstances of each case, on the basis whereof the

Court would decide to grant or refuse adjournment. The provision for costs

and higher costs has been made because of practice having been

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developed to award only a nominal cost even when adjournment on

payment of costs is granted. Ordinarily, where the costs or higher costs

are awarded, the same should be realistic and as far as possible actual

cost that had to be incurred by the other party shall be awarded where the

adjournment is found to be avoidable but is being granted on account of

either negligence or casual approach of a party or is being sought to delay

the progress of the case or on any such reason. Further, to save proviso

to Order XVII Rule 1 from the vice of Article 14 of the Constitution of India,

it is necessary to read it down so as not to take away the discretion of the

Court in the extreme hard cases noted above. The limitation of three

adjournments would not apply where adjournment is to be granted on

account of circumstances which are beyond the control of a party. Even in

cases which may not strictly come within the category of circumstances

beyond the control of a party, the Court by resorting to the provision of

higher cost which can also include punitive cost in the discretion of the

Court, adjournment beyond three can be granted having regard to the

injustice that may result on refusal thereof, with reference to peculiar facts

of a case. We may, however, add that grant of any adjournment let alone

first, second or third adjournment is not a right of a party. The grant of

adjournment by a court has to be on a party showing special and extra-

ordinary circumstances. It cannot be in routine. While considering prayer

for grant of adjournment, it is necessary to keep in mind the legislative

intent to restrict grant of adjournments.

Order XVIII Rule 2

Order XVIII Rule 2(4) which was inserted by Act 104 of 1976 has

been omitted by Act 46 of 1999. Under the said Rule, the Court could

direct or permit any party, to examine any party or any witness at any

stage. The effect of deletion is the restoration of the status quo ante. This

means that law that was prevalent prior to 1976 amendment, would

govern. The principles as noticed hereinbefore in regard to deletion of

Order XVIII Rule 17(a) would apply to the deletion of this provision as well.

Even prior to insertion of Order XVIII Rule 2(4), such a permission could be

granted by the Court in its discretion. The provision was inserted in 1976

by way of caution. The omission of Order XVIII Rule 2(4) by 1999

amendment does not take away Court's inherent power to call for any

witness at any stage either suo moto or on the prayer of a party invoking

the inherent powers of the Court.

In Order XVIII Rule 2 sub-rules (3A) to 3(D) have been inserted by

Act 22 of 2002. The object of filing written arguments or fixing time limit of

oral arguments is with a view to save time of court. The adherence to the

requirement of these rules is likely to help in administering fair and speedy

justice.

Order VII Rule 14

Order VII Rule 14 deals with production of documents which are the

basis of the suit or the documents in plaintiff's possession or power.

These documents are to be entered in the list of documents and produced

in the Court with plaint. Order VII Rule 14(3) requires leave of Court to be

obtained for production of the documents later. Order VII Rule 14(4) reads

as under:

"Nothing in this rule shall apply to document

produced for the cross examination of the

plaintiff's witnesses, or, handed over to a witness

merely to refresh his memory."

In the aforesaid Rule, it is evident that the words 'plaintiff's

witnesses' have been mentioned as a result of mistake seems to have

been committed by the legislature. The words ought to be 'defendant's

witnesses'. There is a similar provision in Order VIII Rule 1A(4) which

applies to a defendant. It reads as under:

"Nothing in this rule shall apply to documents \026

(a) produced for the cross-examination of the

plaintiff's witnesses, or

(b) handed over to a witness merely to refresh

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his memory."

Order VII relates to the production of documents by the plaintiff

whereas Order VIII relates to production of documents by the defendant.

Under Order VIII Rule 1A(4) a document not produced by defendant can

be confronted to the plaintiff's witness during cross-examination. Similarly,

the plaintiff can also confront the defendant's witness with a document

during cross-examination. By mistake, instead of 'defendant's witnesses',

the words 'plaintiff's witnesses' have been mentioned in Order VII Rule (4).

To avoid any confusion, we direct that till the legislature corrects the

mistake, the words 'plaintiff's witnesses, would be read as 'defendant's

witnesses' in Order VII Rule 4. We, however, hope that the mistake would

be expeditiously corrected by the legislature.

Costs

Section 35 of the Code deals with the award of cost and Section 35A

with award of compensatory costs in respect of false or vexatious claims or

defences. Section 95 deals with grant of compensation for obtaining

arrest, attachment or injunction on insufficient grounds. These three

sections deal with three different aspects of award of cost and

compensation. Under Section 95 cost can be awarded upto Rs.50,000/-

and under Section 35A, the costs awardable are upto Rs.3,000/-. Section

35B provides for award of cost for causing delay where a party fails to take

the step which he was required by or under the Code to take or obtains an

adjournment for taking such step or for producing evidence or on any other

ground. In circumstances mentioned in Section 35-B an order may be

made requiring the defaulting party to pay to other party such costs as

would, in the opinion of the court, be reasonably sufficient to reimburse the

other party in respect of the expenses incurred by him in attending the

court on that date, and payment of such costs, on the date next following

the date of such order, shall be a condition precedent to the further

prosecution of the suit or the defence. Section 35 postulates that the cost

shall follow the event and if not, reasons thereof shall be stated. The

award of the cost of the suit is in the discretion of the Court. In Sections 35

and 35B, there is no upper limit of amount of cost awardable.

Judicial notice can be taken of the fact that many unscrupulous

parties take advantage of the fact that either the costs are not awarded or

nominal costs are awarded on the unsuccessful party. Unfortunately, it

has become a practice to direct parties to bear their own costs. In large

number of cases, such an order is passed despite Section 35(2) of the

Code. Such a practice also encourages filing of frivolous suits. It also

leads to taking up of frivolous defences. Further wherever costs are

awarded, ordinarily the same are not realistic and are nominal. When

Section 35(2) provides for cost to follow the event, it is implicit that the

costs have to be those which are reasonably incurred by a successful

party except in those cases where the Court in its discretion may direct

otherwise by recording reasons thereof. The costs have to be actual

reasonable costs including the cost of the time spent by the successful

party, the transportation and lodging, if any, or any other incidental cost

besides the payment of the court fee, lawyer's fee, typing and other cost in

relation to the litigation. It is for the High Courts to examine these aspects

and wherever necessary make requisite rules, regulations or practice

direction so as to provide appropriate guidelines for the subordinate courts

to follow.

Section 80

Section 80(1) of the Code requires prior notice of two months to be

served on the Government as a condition for filing a suit except when there

is urgency for interim order in which case the Court may not insist on the

rigid rule of prior notice. The two months period has been provided for so

that the Government shall examine the claim put up in the notice and has

sufficient time to send a suitable reply. The underlying object is to curtail

the litigation. The object also is to curtail the area of dispute and

controversy. Similar provisions also exist in various other legislations as

well. Wherever the statutory provision requires service of notice as a

condition precedent for filing of suit and prescribed period therefore, it is

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not only necessary for the governments or departments or other statutory

bodies to send a reply to such a notice but it is further necessary to

properly deal with all material points and issues raised in the notice. The

Governments, Government departments or statutory authorities are

defendants in large number of suits pending in various courts in the

country. Judicial notice can be taken of the fact that in large number of

cases either the notice is not replied or in few cases where reply is sent, it

is generally vague and evasive. The result is that the object underlying

Section 80 of the Code and similar provisions gets defeated. It not only

gives rise to avoidable litigation but also results in heavy expense and cost

to the exchequer as well. Proper reply can result in reduction of litigation

between State and the citizens. In case proper reply is sent either the

claim in the notice may be admitted or area of controversy curtailed or the

citizen may be satisfied on knowing the stand of the State. There is no

accountability in the Government, Central or State or the statutory

authorities in violating the spirit and object of Section 80.

These provisions cast an implied duty on all concerned governments

and States and statutory authorities to send appropriate reply to such

notices. Having regard to the existing state of affairs, we direct all

concerned governments, Central or State or other authorities, whenever

any statute requires service of notice as a condition precedent for filing of

suit or other proceedings against it, to nominate, within a period of three

months, an officer who shall be made responsible to ensure that replies to

notices under Section 80 or similar provisions are sent within the period

stipulated in a particular legislation. The replies shall be sent after due

application of mind. Despite such nomination, if the Court finds that either

the notice has not been replied or reply is evasive and vague and has

been sent without proper application of mind, the Court shall ordinarily

award heavy cost against the Government and direct it to take appropriate

action against the concerned Officer including recovery of costs from him.

Section 115 of the Code vests power of revision in the High Court

over courts subordinate to it. Proviso to Section 115(1) of the Code before

the amendment by Act 46 of 1999 read as under :

"Provided that the High Court shall not, under this

section vary or reverse any order made, or may

order deciding an issue, in the course of a suit or

other proceeding except where \026

(a) the order, if it had been made in favour of

the party applying for revision, would have

finally disposed of the suit or other

proceeding; or

(b) the order, if allowed to stand, would

occasion a failure of justice or cause

irreparable injury to the party against whom

it was made."

Now, the aforesaid proviso has been substituted by the following

proviso. :

"Provided that the High Court shall not, under this

section, vary or reverse any order made, or any

order deciding an issue, in the course of a suit or

other proceeding, except where the order, if it had

been made in favour of the party applying for

revision, would have finally disposed of the suit or

other proceedings."

The aforesaid clause (b) stands omitted. The question is about the

constitutional powers of the High Courts under Article 227 on account of

omission made in Section 115 of the Code. The question stands settled by

a decision of this Court in Surya Dev Rai v. Ram Chander Rai & Ors.

[2003 (6) SCC 675] holding that the power of the High Court under Articles

226 and 227 of the Constitution is always in addition to the revisional

jurisdiction conferred on it. Curtailment of revisional jurisdiction of the High

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Court under Section 115 of the Code does not take away and could not

have taken away the constitutional jurisdiction of the High Court. The

power exists, untrammeled by the amendment in Section 115 and is

available to be exercised subject to rules of self-discipline and practice

which are as well settled.

Section 148

The amendment made in Section 148 affects the power of the Court

to enlarge time that may have been fixed or granted by the Court for the

doing of any act prescribed or allowed by the Code. The amendment

provides that the period shall not exceed 30 days in total. Before

amendment, there was no such restriction of time. Whether the Court has

no inherent power to extend the time beyond 30 days is the question. We

have no doubt that the upper limit fixed in Section 148 cannot take away

the inherent power of the Court to pass orders as may be necessary for

the ends of justice or to prevent abuse of process of Court. The rigid

operation of the section would lead to absurdity. Section 151 has,

therefore, to be allowed to fully operate. Extension beyond maximum of 30

days, thus, can be permitted if the act could not be performed within 30

days for the reasons beyond the control of the party. We are not dealing

with a case where time for doing an act has been prescribed under the

provisions of the Limitation Act which cannot be extended either under

Section 148 or Section 151. We are dealing with a case where the time is

fixed or granted by the Court for performance of an act prescribed or

allowed by the Court.

In Mahanth Ram Das v. Ganga Das [AIR 1961 SC 882], this Court

considered a case where an order was passed by the Court that if the

Court fee was not paid by a particular day, the suit shall stand dismissed.

It was a self-operating order leading to dismissal of the suit. The party's

application filed under Sections 148 and 151 of the Code for extension of

time was dismissed. Allowing the appeal, it was observed:

"How undesirable it is to fix time peremptorily for

a future happening which leaves the Court

powerless to deal with events that might arise in

between, it is not necessary to decide in this

appeal. These orders turn out, often enough to

be inexpedient. Such procedural orders, though

peremptory (conditional decree apart), are, in

essence, in terrorem, so that dilatory litigants

might put themselves in order and avoid delay.

They do not, however, completely estop a Court

from taking note of events and circumstances

which happen within the time fixed. For example,

it cannot be said that, if the appellant had started

with the full money ordered to be paid and came

well in time, but was set upon and robbed by

thieves the day previous, he could not ask for

extension of time or that the Court was powerless

to extend it. Such orders are not like the law of

the Medes and the Persians."

There can be many cases where non-grant of extension beyond 30

days would amount to failure of justice. The object of the Code is not to

promote failure of justice. Section 148, therefore, deserves to be read

down to mean that where sufficient cause exists or events are beyond the

control of a party, the Court would have inherent power to extend time

beyond 30 days.

Order IX Rule 5

The period of seven days mentioned in Order IX Rule 5 is clearly

directory.

Order XI Rule 15

The stipulation in Rule 15 of Order XI confining the inspection of

documents 'at or before the settlement of issues' instead of 'at any time' is

also nothing but directory. It does not mean that the inspection cannot be

allowed after the settlement of issues.

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Judicial Impact Assessment

The Committee has taken note of para 7.8.2 of Volume I of the

Report of the National Commission to Review the Working of the

Constitution which reads as follows :

"7.8.2 Government of India should not throw the

entire burden of establishing the subordinate

courts and maintaining the subordinate judiciary

on the State Governments. There is a concurrent

obligation on the Union Government to meet the

expenditure for subordinate courts. Therefore,

the Planning Commission and the Finance

Commission must allocate sufficient funds from

national resources to meet the demands of the

State Judiciary in each of the States."

The Committee has further noticed that :

"33.3 As pointed out by the Constitution Review

Commission, the laws which are being

administered by the Courts which are subordinate

to the High Court are laws which have been made

by,

(a) parliament on subjects which fall under the

Entries in List I and List III of Schedule 7 to

the Constitution, or

(b) State legislatures on subjects which fall

under the Entries in List II and List III of

Schedule 7 to the Constitution.

But, the bulk of the cases (civil, criminal) in the

subordinate Courts concern the Law of Contract,

Transfer of Property Act, Sale of Goods Act,

Negotiable Instruments Act, Indian Penal Code,

Code of Civil Procedure, Code of Criminal

Procedure etc., which are all Central Laws made

under List III. In addition, the subordinate Courts

adjudicate cases (in civil, criminal) arising under

Central Laws made under List I.

33.4 The central Government has, therefore, to

bear a substantial portion of the expenditure on

subordinate Courts which are now being

established/maintained by the States. (The

Central Government has only recently given

monies for the fast track courts but these courts

are a small fraction of the required number).

33.5 Under Article 247, Central Government

could establish Courts for the purpose of

administering Central Laws in List I. Except a few

Tribunals, no such Courts have been established

commensurate with the number of cases arising

out of subjects in List I."

The Committee has suggested that the Central Government has to

provide substantial funds for establishing courts which are subordinate to

the High Court and the Planning Commission and the Finance must make

adequate provisions therefore, noticing that it has been so recommended

by the Constitution Review Committee.

The Committee has also suggested that :

"Further, there must be 'judicial impact

assessment', as done in the United States,

whenever any legislation is introduced either in

Parliament or in the State Legislatures. The

financial memorandum attached to each Bill must

estimate not only the budgetary requirement of

other staff but also the budgetary requirement for

meeting the expenses of the additional cases that

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may arise out of the new Bill when it is passed by

the legislature. The said budget must mention

the number of civil and criminal cases likely to be

generated by the new Act, how many Courts are

necessary, how many Judges and staff are

necessary and what is the infrastructure

necessary. So far in the last fifty years such a

judicial impact assessment has never been made

by any legislature or by Parliament in our

country."

Having regard to the constitutional obligation to provide fair, quick

and speedy justice, we direct the Central Government to examine the

aforesaid suggestions and submit a report on this Court within four

months.

Report No.2

We will now take up Report No.2 dealing with model Alternative

Dispute Resolution and Mediation Rules.

Part X of the Code (Sections 121 to 131) contains provisions in

respect of the Rules. Sections 122 and 125 enable the High Courts to

make Rules. Section 128 deals with matters for which rules may provide.

It, inter alia, states that the rules which are not inconsistent with the

provisions in the body of the Code, but, subject thereto, may provide for

any matters relating to the procedure of Civil Courts.

The question for consideration is about framing of the rules for the

purposes of Section 89 and Order X Rules 1A, 1B and 1C. These

provisions read as under:

"89.Settlement of disputes outside the Court\027

(1) Where it appears to the Court that there exist

elements of a settlement which may be

acceptable to the parties, the Court shall

formulate the terms of settlement and given them

to the parties for their observations and after

receiving the observations of the parties, the

Court may reformulate the terms of a possible

settlement and refer the same for\027

(a) arbitration;

(b) conciliation;

(c) judicial settlement including

settlement through Lok Adalat; or

(d) mediation.

(2) Where a dispute has been referred\027

(a) for arbitration or conciliation, the provisions

of the Arbitration and Conciliation Act, 1996

(26 of 1996) shall apply as if the

proceedings for arbitration or conciliation

were referred for settlement under the

provisions of that Act;

(b) to Lok Adalat, the Court shall refer the

same to the Lok Adalat in accordance with

the provisions of sub-section (1) of section

20 of the Legal Services Authority Act,

1987 (39 of 1987) and all other provisions

of that Act shall apply in respect of the

dispute so referred to the Lok Adalat;

(c) for judicial settlement, the Court shall refer

the same to a suitable institution or person

and such institution or person shall be

deemed to be a Lok Adalat and all the

provisions of the Legal Services Authority

Act, 1987 (39 of 1987) shall apply as if the

dispute were referred to a Lok Adalat under

the provisions of that Act;

(d) for mediation, the Court shall effect a

compromise between the parties and shall

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follow such procedure as may be

prescribed.

1A. Direction of the court to opt for any

one mode of alternative dispute

resolution.\027After recording the admissions

and denials, the Court shall direct the

parties to the suit to opt either mode of the

settlement outside the Court as specified in

sub-section (1) of section 89. On the

option of the parties, the Court shall fix the

date of appearance before such forum or

authority as may be opted by the parties.

1B. Appearance before the conciliatory

forum or authority\027Where a suit is referred

under rule 1A, the parties shall appear

before such forum or authority for

conciliation of the suit.

1C. Appearance before the Court

consequent to the failure of efforts of

conciliation\027Where a suit is referred under

rule 1A and the presiding officer of

conciliation forum or authority is satisfied

that it would not be proper in the interest of

justice to proceed with the matter further,

then, it shall refer the matter again to the

Court and direct the parties to appear

before the Court on the date fixed by it."

Some doubt as to a possible conflict has been expressed in view of

use of the word 'may' in Section 89 when it stipulates that 'the Court may

reformulate the terms of a possible settlement and refer the same for' and

use of the word 'shall' in Order X, Rule 1A when it states that 'the Court

shall direct the parties to the suit to opt either mode of settlements outside

the Court as specified in sub-section (1) of Section 89'.

As can be seen from Section 89, its first part uses the word 'shall'

when it stipulates that the 'court shall formulate terms of settlement'. The

use of the word 'may' in later part of Section 89 only relates to the aspect

of reformulating the terms of a possible settlement. The intention of the

legislature behind enacting Section 89 is that where it appears to the Court

that there exists element of a settlement which may be acceptable to the

parties, they, at the instance of the court, shall be made to apply their mind

so as to opt for one or the other of the four ADR methods mentioned in the

Section and if the parties do not agree, the court shall refer them to one or

other of the said modes. Section 89 uses both the word 'shall' and 'may'

whereas Order X, Rule 1A uses the word 'shall' but on harmonious reading

of these provisions it becomes clear that the use of the word 'may' in

Section 89 only governs the aspect of reformulation of the terms of a

possible settlement and its reference to one of ADR methods. There is no

conflict. It is evident that what is referred to one of the ADR modes is the

dispute which is summarized in the terms of settlement formulated or

reformulated in terms of Section 89.

One of the modes to which the dispute can be referred is

'Arbitration'. Section 89 (2) provides that where a dispute has been

referred for Arbitration or Conciliation, the provisions of the Arbitration and

Conciliation Act, 1996 (for short '1996 Act') shall apply as if the

proceedings for Arbitration or Conciliation were referred for settlement

under the provisions of 1996 Act. Section 8 of the 1996 Act deals with the

power to refer parties to Arbitration where there is arbitration agreement.

As held in P.Anand Gajapathi Raju and Others v. P.V.G.Raju (Dead)

and Others [(2000) 4 SCC 539], 1996 Act governs a case where

arbitration is agreed upon before or pending a suit by all the parties. The

1996 Act, however, does not contemplate a situation as in Section 89 of

the Code where the Court asks the parties to choose one or other ADRs

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including Arbitration and the parties choose Arbitration as their option. Of

course, the parties have to agree for Arbitration. Section 82 of 1996 Act

enables the High Court to make Rules consistent with this Act as to all

proceedings before the Court under 1996 Act. Section 84 enables the

Central Government to make rules for carrying out the provisions of the

Act. The procedure for option to Arbitration among four ADRs is not

contemplated by the 1996 Act and, therefore, Section 82 or 84 has no

applicability where parties agree to go for arbitration under Section 89 of

the Code. As already noticed, for the purposes of Section 89 and Order X,

Rule 1A, 1B and 1C, the relevant Sections in Part X of the Code enable

the High Court to frame rules. If reference is made to Arbitration under

Section 89 of the Code, 1996 Act would apply only from the stage after

reference and not before the stage of reference when options under

Section 89 are given by the Court and chosen by the parties. On the

same analogy, 1996 Act in relation to Conciliation would apply only after

the stage of reference to Conciliation. The 1996 Act does not deal with a

situation where after suit is filed, the court requires a party to choose one

or other ADRs including Conciliation. Thus, for Conciliation also rules can

be made under Part X of the Code for purposes of procedure for opting for

'Conciliation' and upto the stage of reference to Conciliation. Thus, there

is no impediment in the ADR rules being framed in relation to Civil Court as

contemplated in Section 89 upto the stage of reference to ADR. The 1996

Act comes into play only after the stage of reference upto the award.

Applying the same analogy, the Legal Services Authority Act, 1987 (for

short '1987 Act') or the Rules framed thereunder by the State

Governments cannot act as impediment in the High Court making rules

under Part X of the Code covering the manner in which option to Lok

Adalat can be made being one of the modes provided in Section 89. The

1987 Act also does not deal with the aspect of exercising option to one of

four ADR methods mentioned in Section 89. Section 89 makes applicable

1996 Act and 1987 Act from the stage after exercise of options and making

of reference.

A doubt has been expressed in relation to clause (d) of Section 89

(2) of the Code on the question as to finalisation of the terms of the

compromise. The question is whether the terms of compromise are to be

finalised by or before the mediator or by or before the court. It is evident

that all the four alternatives, namely, Arbitration, Conciliation, judicial

settlement including settlement through Lok Adalat and mediation are

meant to be the action of persons or institutions outside the Court and not

before the Court. Order X, Rule 1C speaks of the 'Conciliation forum'

referring back the dispute to the Court. In fact, the court is not involved in

the actual mediation/conciliation. Clause (d) of Section 89(2) only means

that when mediation succeeds and parties agree to the terms of

settlement, the mediator will report to the court and the court, after giving

notice and hearing the parties, 'effect' the compromise and pass a decree

in accordance with the terms of settlement accepted by the parties.

Further, in this view, there is no question of the Court which refers the

matter to mediation/conciliation being debarred from hearing the matter

where settlement is not arrived at. The Judge who makes the reference

only considers the limited question as to whether there are reasonable

grounds to expect that there will be settlement and on that ground he

cannot be treated to be disqualified to try the suit afterwards if no

settlement is arrived at between the parties.

The question also is about the payment made and expenses to be

incurred where the court compulsorily refers a matter for

conciliation/mediation. Considering large number of responses received

by the Committee to the draft rules it has suggested that in the event of

such compulsory reference to conciliation/mediation procedures if

expenditure on conciliation/mediation is borne by the government, it may

encourage parties to come forward and make attempts at

conciliation/mediation. On the other hand, if the parties feel that they have

to incur extra expenditure for resorting to such ADR modes, it is likely to

act as a deterrent for adopting these methods. The suggestion is laudable.

The Central Government is directed to examine it and if agreed, it shall

request the Planning Commission and Finance Commission to make

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specific financial allocation for the judiciary for including the expenses

involved for mediation/conciliation under Section 89 of the Code. In case,

Central Government has any reservations, the same shall be placed

before the court within four months. In such event, the government shall

consider provisionally releasing adequate funds for these purposes also

having regard to what we have earlier noticed about many statutes that are

being administered and litigations pending in the Courts in various States

are central legislations concerning the subjects in List I and List III of

Schedule VII to the Constitution of India.

With a view to enable the Court to refer the parties to

conciliation/mediation, where parties are unable to reach a consensus on

an agreed name, there should be a panel of well trained

conciliators/mediators to which it may be possible for the Court to make a

reference. It would be necessary for the High Courts and district courts to

take appropriate steps in the direction of preparing the requisite panels.

A doubt was expressed about the applicability of ADR rules for

dispute arising under the Family Courts Act since that Act also

contemplates rules to be made. It is, however, to be borne in mind that the

Family Courts Act applies the Code for all proceedings before it. In this

view, ADR rules made under the Code can be applied to supplement the

rules made under the Family Courts Act and provide for ADR insofar as

conciliation/mediation is concerned.

It seems clear from the report that while drafting the model rules,

after examining the mediation rules in various countries, a fine distinction is

tried to be maintained between conciliation and mediation, accepting the

views expressed by British author Mr.Brown in his work on India that in

'conciliation' there is little more latitude and conciliator can suggest some

terms of settlements too.

When the parties come to a settlement upon a reference made by

the Court for mediation, as suggested by the Committee that there has to

be some public record of the manner in which the suit is disposed of and,

therefore, the Court has to first record the settlement and pass a decree in

terms thereof and if necessary proceed to execute it in accordance with

law. It cannot be accepted that such a procedure would be unnecessary.

If the settlement is not filed in the Court for the purpose of passing of a

decree, there will be no public record of the settlement. It is, however, a

different matter if the parties do not want the court to record a settlement

and pass a decree and feel that the settlement can be implemented even

without decree. In such eventuality, nothing prevents them in informing the

Court that the suit may be dismissed as a dispute has been settled

between the parties outside the Court.

Regarding refund of the court fee where the matter is settled by the

reference to one of the modes provided in Section 89 of the Act, it is for the

State Governments to amend the laws on the lines of amendment made in

Central Court Fee Act by 1999 Amendment to the Code. The State

Governments can consider making similar amendments in the State Court

Fee legislations.

The draft rules have been finalised by the Committee. Prior to

finalisation, the same were circulated to the High Courts, subordinate

courts, the Bar Council of India, State Bar Councils and the Bar

Associations, seeking their responses. Now, it is for the respective High

Courts to take appropriate steps for making rules in exercise of rule

making power subject to modifications, if any, which may be considered

relevant.

The draft Civil Procedure-Alternative Dispute Resolution and

Mediation Rules as framed by the Committee read as under:

"Civil Procedure ADR and Mediation Rules

(These Rules are the final Rules framed by the

Committee, in modification of the Draft Rules

circulated earlier, after considering the responses

to the Consultation paper)

Civil Procedure Alternative Dispute Resolution

and Mediation Rules, 2003

In exercise of the rule making power under

Part X of the Code of Civil Procedure, 1908 (5 of

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1908) and clause (d) of sub-section (2) of Section

89 of the said Code, the High Court of

\005\005\005\005\005.., is hereby issuing the following

Rules:

Part I

Alternative Dispute Resolution Rules

Rule 1: Title

These Rules in Part I shall be called the

'Civil Procedure \026 Alternative Dispute Resolution

Rules 2003'.

Rule 2: Procedure for directing parties to opt

for alternative modes of settlement

(a) The Court shall, after recording admissions

and denials at the first hearing of the suit

under Rule 1 of Order X, and where it

appears to the Court that there exist

elements of a settlement which may be

acceptable to the parties, formulate the

terms of settlement and give them to the

parties for their observations under sub-

section (1) of Section 89, and the parties

shall submit to the Court their responses

within thirty days of the first hearing.

(b) At the next hearing, which shall be not later

than thirty days of the receipt of responses,

the Court may reformulate the terms of a

possible settlement and shall direct the

parties to opt for one of the modes of

settlement of disputes outside the Court as

specified in clauses (a) to (d) of sub-section

(1) of Section 89 read with Rule 1A of

Order X, in the manner stated hereunder,

Provided that the Court, in the

exercise of such power, shall not refer any

dispute to arbitration or to judicial

settlement by a person or institution without

the written consent of all the parties to the

suit.

Rule 3: Persons authorized to take decision

for the Union of India, State

Governments and others:

(1) For the purpose of Rule 2, the Union of

India or the Government of a State or

Union Territory, all local authorities, all

Public Sector Undertakings, all statutory

corporations and all public authorities shall

nominate a person or persons or group of

persons who are authorized to take a final

decision as to the mode of Alternative

Dispute Resolution in which it proposes to

opt in the event of direction by the Court

under Section 89 and such nomination

shall be communicated to the High Court

within the period of three months from the

date of commencement of these Rules and

the High Court shall notify all the

subordinate courts in this behalf as soon as

such nomination is received from such

Government or authorities.

(2) Where such person or persons or group of

persons have not been nominated as

aforesaid, such party as referred to in

clause (1) shall, if it is a plaintiff, file along

with the plaint or if it is a defendant file,

along with or before the filing of the written

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statement, a memo into the Court,

nominating a person or persons or group of

persons who is or are authorized to take a

final decision as to the mode of alternative

dispute resolution, which the party prefers

to adopt in the event of the Court directing

the party to opt for one or other mode of

Alternative Dispute Resolution.

Rule 4: Court to give guidance to parties

while giving direction to opt

(a) Before directing the parties to exercise

option under clause (b) of Rule 2, the Court

shall give such guidance as it deems fit to

the parties, by drawing their attention to the

relevant factors which parties will have to

take into account, before they exercise their

option as to the particular mode of

settlement, namely :

(i) that it will be to the advantage of the

parties, so far as time and expense

are concerned, to opt for one or other

of these modes of settlement

referred to in section 89 rather than

seek a trial on the disputes arising in

the suit;

(ii) that, where there is no relationship

between the parties which requires to

be preserved, it may be in the

interest of the parties to seek

reference of the matter of arbitration

as envisaged in clause (a) of sub-

section (1) of section 89.

(iii) that, where there is a relationship

between the parties which requires to

be preserved, it may be in the

interest of parties to seek reference

of the matter to conciliation or

mediation, as envisaged in clauses

(b) or (d) of sub-section (1) of section

89.

Explanation : Disputes arising in

matrimonial, maintenance and child

custody matters shall, among

others, be treated as cases where a

relationship between the parties

has to be preserved.

(iv) that, where parties are interested in a

final settlement which may lead to a

compromise, it will be in the interests

of the parties to seek reference of the

matter to Lok Adalat or to judicial

settlement as envisaged in clause (c)

of sub-section (1) of section 89.

(v) the difference between the different

modes of settlement, namely,

arbitration, conciliation, mediation

and judicial settlement as explained

below :

Settlement by 'Arbitration' means the

process by which an arbitrator

appointed by parties or by the Court,

as the case may be, adjudicates the

disputes between the parties to the

suit and passes an award by the

application of the provisions of the

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Arbitration and Conciliation Act, 1996

(26 of 1996), in so far as they refer to

arbitration.

Settlement by 'Conciliation' means

the process by which a conciliator

who is appointed by parties or by the

Court, as the case may be,

conciliates the disputes between the

parties to the suit by the application

of the provisions of the Arbitration

and Conciliation Act, 1996 (26 of

1996) in so far as they relate to

conciliation, and in particular, in

exercise of his powers under

sections 67 and 73 of that Act, by

making proposals for a settlement of

the dispute and by formulating or

reformulating the terms of a possible

settlement; and has a greater role

than a mediator.

Settlement by 'Mediation' means the

process by which a mediator

appointed by parties or by the Court,

as the case may be, mediates the

dispute between the parties to the

suit by the application of the

provisions of the Mediation Rules,

2003 in Part II, and in particular, by

facilitating discussion between

parties directly or by communicating

with each other through the mediator,

by assisting parties in identifying

issues, reducing misunderstandings,

clarifying priorities, exploring areas of

compromise, generating options in

an attempt to solve the dispute and

emphasizing that it is the parties own

responsibility for making decisions

which affect them.

Settlement in Lok Adalat means

settlement by Lok Adalat as

contemplated by the Legal Services

Authority Act, 1987.

'Judicial settlement' means a final

settlement by way of compromise

entered into before a suitable

institution or person to which the

Court has referred the dispute and

which institution or person are

deemed to be the Lok Adalats under

the provisions of the Legal Service

Authority Act, 1987 (39 of 1987) and

where after such reference, the

provisions of the said Act apply as if

the dispute was referred to a Lok

Adalat under the provisions of that

Act.

Rule 5 : Procedure for reference by the Court

to the different modes of settlement :

(a) Where all parties to the suit decide to

exercise their option and to agree for

settlement by arbitration, they shall apply to

the Court, within thirty days of the direction

of the Court under clause (b) of Rule 2 and

the Court shall, within thirty days of the said

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application, refer the matter to arbitration

and thereafter the provisions of the

Arbitration and Conciliation Act, 1996 (26 of

1996) which are applicable after the stage

of making of the reference to arbitration

under that Act, shall apply as if the

proceedings were referred for settlement by

way of arbitration under the provisions of

that Act;

(b) Where all the parties to the suit decide to

exercise their option and to agree for

settlement by the Lok Adalat or where one

of the parties applies for reference to Lok

Adalat, the procedure envisaged under the

Legal Services Act, 1987 and in particular

by section 20 of that Act, shall apply.

(c) Where all the parties to the suit decide to

exercise their option and to agree for

judicial settlement, they shall apply to the

Court within thirty days of the direction

under clause (b) of Rule 2 and then the

Court shall, within thirty days of the

application, refer the matter to a suitable

institution or person and such institution or

person shall be deemed to be a Lok Adalat

and thereafter the provisions of the Legal

Services Authority Act, 1987 (39 of 1987)

which are applicable after the stage of

making of the reference to Lok Adalat

under that Act, shall apply as if the

proceedings were referred for settlement

under the provisions of that Act;

(d) Where none of the parties are willing to

agree to opt or agree to refer the dispute to

arbitration, or Lok Adalat, or to judicial

settlement, within thirty days of the

direction of the Court under clause (b) of

Rule 2, they shall consider if they could

agree for reference to conciliation or

mediation, within the same period.

(e)(i) Where all the parties opt and agree for

conciliation, they shall apply to the Court,

within thirty days of the direction under

clause (b) of Rule 2 and the Court shall,

within thirty days of the application refer the

matter to conciliation and thereafter the

provisions of the Arbitration and

Conciliation Act, 1996 (26 of 1996) which

are applicable after the stage of making of

the reference to conciliation under that Act,

shall apply, as if the proceedings were

referred for settlement by way of

conciliation under the provisions of that Act;

(ii) Where all the parties opt and agree for

mediation, they shall apply to the Court,

within thirty days of the direction under

clause (b) of Rule 2 and the Court shall,

within thirty days of the application, refer

the matter to mediation and then the

Mediation Rules, 2003 in Part II shall apply.

(f) Where under clause (d), all the parties are

not able to opt and agree for conciliation or

mediation, one or more parties may apply

to the Court within thirty days of the

direction under clause (b) of Rule 2,

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seeking settlement through conciliation or

mediation, as the case may be, and in that

event, the Court shall, within a further

period of thirty days issue notice to the

other parties to respond to the application,

and

(i) in case all the parties agree for

conciliation, the Court shall refer the

matter to conciliation and thereafter,

the provisions of the Arbitration and

Conciliation Act, 1996 which are

applicable after the stage of making

of the reference to conciliation under

that Act, shall apply.

(ii) in case all the parties agree for

mediation, the Court shall refer the

matter to mediation in accordance

with the Civil Procedure \026 Mediation

Rules, 2003 in Part II shall apply.

(iii) in case all the parties do not agree

and where it appears to the Court

that there exist elements of a

settlement which may be acceptable

to the parties and that there is a

relationship between the parties

which has to be preserved, the Court

shall refer the matter to conciliation

or mediation, as the case may be. In

case the dispute is referred to

Conciliation, the provisions of the

Arbitration and Conciliation Act, 1996

which are applicable after the stage

of making of the reference to

Conciliation under that Act shall and

in case the dispute is referred to

mediation, the provisions of the Civil

Procedure-Mediation Rules, 2003,

shall apply.

(g)(i) Where none of the parties apply for

reference either to arbitration, or Lok

Adalat, or judicial settlement, or for

conciliation or mediation, within thirty days

of the direction under clause (b) of Rule 2,

the Court shall, within a further period of

thirty days, issue notices to the parties or

their representatives fixing the matter for

hearing on the question of making a

reference either to conciliation or

mediation.

(ii) After hearing the parties or their

representatives on the day so fixed the

Court shall, if there exist elements of a

settlement which may be acceptable to the

parties and there is a relationship between

the parties which has to be preserved, refer

the matter to conciliation or mediation. In

case the dispute is referred to Conciliation,

the provisions of the Arbitration and

Conciliation Act, 1996 which are applicable

after the stage of making of the reference

to Conciliation under that Act shall and in

case the dispute is referred to mediation,

the provisions of the Civil Procedure \026

Mediation Rules, 2003, shall apply.

(h)(i) No next friend or guardian for the suit shall,

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without the leave of the Court, expressly

recorded in the proceedings of the Court,

opt for any one of the modes of alternative

dispute resolution nor shall enter into any

settlement on behalf of a minor or person

under disability with reference to the suit in

which he acts as mere friend or guardian.

(ii) Where an application is made to the Court

for leave to enter into a settlement initiated

into in the alternative dispute resolution

proceedings on behalf of a minor or other

person under disability and such minor or

other person under disability is represented

by Counsel or pleader, the counsel or

pleader shall file a certificate along with the

said application to the effect that the

settlement is, in his opinion, for the benefit

of the minor or other person under

disability. The decree of the Court based

on the settlement to which the minor or

other person under disability is a party,

shall refer to the sanction of the Court

thereto and shall set out the terms of the

settlement.

Rule 6 : Referral to the Court and appearance

before the Court upon failure of

attempts to settle disputes by

conciliation or judicial settlement or

mediation :

(1) Where a suit has been referred for

settlement for conciliation, mediation or

judicial settlement and has not been settled

or where it is felt that it would not be proper

in the interests of justice to proceed further

with the matter, the suit shall be referred

back again to the Court with a direction to

the parties to appear before the Court on a

specific date.

(2) Upon the reference of the matter back to

the Court under sub-rule (1) or under sub-

section (5) of section 20 of the Legal

Services Authority Act, 1987, the Court

shall proceed with the suit in accordance

with law.

Rule 7 : Training in alternative methods of

resolution of disputes, and

preparation of manual :

(a) The High Court shall take steps to have

training courses conducted in places where

the High Court and the District Courts or

Courts of equal status are located, by

requesting bodies recognized by the High

Court or the Universities imparting legal

education or retired Faculty Members or

other persons who, according to the High

Court are well versed in the techniques of

alternative methods of resolution of dispute,

to conduct training courses for lawyers and

judicial officers.

(b)(i) The High Court shall nominate a committee

of judges, faculty members including retired

persons belonging to the above categories,

senior members of the Bar, other members

of the Bar specially qualified in the

techniques of alternative dispute resolution,

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for the purpose referred to in clause (a) and

for the purpose of preparing a detailed

manual of procedure for alternative dispute

resolution to be used by the Courts in the

State as well as by the arbitrators, or

authority or person in the case of judicial

settlement or conciliators or mediators.

(ii) The said manual shall describe the various

methods of alternative dispute resolution,

the manner in which any one of the said

methods is to be opted for, the suitability of

any particular method for any particular

type of dispute and shall specifically deal

with the role of the above persons in

disputes which are commercial or domestic

in nature or which relate to matrimonial,

maintenance and child custody matters.

(c) The High Court and the District Courts shall

periodically conduct seminars and

workshops on the subject of alternative

dispute resolution procedures throughout

the State or States over which the High

Court has jurisdiction with a view to bring

awareness of such procedures and to

impart training to lawyers and judicial

officers.

(d) Persons who have experience in the matter

of alternative dispute resolution

procedures, and in particular in regard to

conciliation and mediation, shall be given

preference in the matter of empanelment

for purposes of conciliation or mediation.

Rule 8 : Applicability to other proceedings :

The provisions of these Rules may be

applied to proceedings before the Courts,

including Family Courts constituted under

the Family Courts Act (66 of 1984), while

dealing with matrimonial, maintenance and

child custody disputes, wherever

necessary, in addition to the rules framed

under the Family Courts Act, (66 of 1984).

PART II

CIVIL PROCEDURE MEDIATION RULES

Rule 1 : Title :

These Rules in Part II shall be called the

Civil Procedure Mediation Rules, 2003.

Rule 2 : Appointment of mediator :

(a) Parties to a suit may all agree on the name

of the sole mediator for mediating between

them.

(b) Where, there are two sets of parties and

are unable to agree on a sole mediator,

each set of parties shall nominate a

mediator.

(c) Where parties agree on a sole mediator

under clause (a) or where parties nominate

more than one mediator under clause (b),

the mediator need not necessarily be from

the panel of mediators referred to in Rule 3

nor bear the qualifications referred to in

Rule 4 but should not be a person who

suffers from the disqualifications referred to

in Rule 5.

(d) Where there are more than two sets of

parties having diverse interests, each set

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shall nominate a person on its behalf and

the said nominees shall select the sole

mediator and failing unanimity in that

behalf, the Court shall appoint a sole

mediator.

Rule 3 : Panel of mediators :

(a) The High Court shall, for the purpose of

appointing mediators between parties in

suits filed on its original side, prepare a

panel of mediators and publish the same

on its Notice Board, within thirty days of the

coming into force of these Rules, with copy

to the Bar Association attached to the

original side of the High Court.

(b)(i) The Courts of the Principal District and

Sessions Judge in each District or the

Courts of the Principal Judge of the City

Civil Court or Courts of equal status shall,

for the purposes of appointing mediators to

mediate between parties in suits filed on

their original side, prepare a panel of

mediators, within a period of sixty days of

the commencement of these Rules, after

obtaining the approval of the High Court to

the names included in the panel, and shall

publish the same on their respective Notice

Board.

(ii) Copies of the said panels referred to in

clause (i) shall be forwarded to all the

Courts of equivalent jurisdiction or Courts

subordinate to the Courts referred to in

sub-clause (i) and to the Bar associations

attached to each of the Courts :

(c) The consent of the persons whose names

are included in the panel shall be obtained

before empanelling them.

(d) The panel of names shall contain a detailed

Annexure giving details of the qualifications

of the mediators and their professional or

technical experience in different fields.

Rule 4 : Qualifications of persons to be

empanelled under Rule 3 :

The following persons shall be treated as

qualified and eligible for being enlisted in

the panel of mediators under Rule 3,

namely :

(a) (i) Retired Judges of the Supreme

Court of India;

(ii) Retired Judges of the High Court;

(iii) Retired District and Sessions Judges

or retired Judges of the City Civil

Court or Courts of equivalent status.

(b) Legal practitioners with at least fifteen

years standing at the Bar at the level of

the Supreme Court or the High Court; or

the District Courts or Courts of equivalent

status.

(c) Experts or other professionals with at least

fifteen years standing; or retired senior

bureaucrats or retired senior executives;

(d) Institutions which are themselves experts in

mediation and have been recognized as

such by the High Court, provided the

names of its members are approved by the

High Court initially or whenever there is

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change in membership.

Rule 5 : Disqualifications of persons :

The following persons shall be

deemed to be disqualified for being

empanelled as mediators :

(i) any person who has been adjudged as

insolvent or is declared of unsound mind.

(ii) or any person against whom criminal

charges involving moral turpitude are

framed by a criminal court and are pending,

or

(iii) any person who has been convicted by a

criminal court for any offence involving

moral turpitude;

(iv) any person against whom disciplinary

proceedings or charges relating to moral

turpitude have been initiated by the

appropriate disciplinary authority which are

pending or have resulted in a punishment.

(v) any person who is interested or connected

with the subject-matter of dispute or is

related to any one of the parties or to those

who represent them, unless such objection

is waived by all the parties in writing.

(vi) any legal practitioner who has or is

appearing for any of the parties in the suit

or in any other suit or proceedings.

(vii) such other categories of persons as may

be notified by the High Court.

Rule 6 : Venue for conducting mediation :

The mediator shall conduct the mediation

at one or other of the following places:

(i) Venue of the Lok Adalar or permanent Lok

Adalat.

(ii) Any place identified by the District Judge

within the Court precincts for the purpose of

conducting mediation.

(iii) Any place identified by the Bar Association

or State Bar Council for the purpose of

mediation, within the premises of the Bar

Association or State Bar Council, as the

case may be.

(iv) Any other place as may be agreed upon by

the parties subject to the approval of the

Court.

Rule 7: Preference:

The Court shall, while nominating any

person from the panel of mediators referred to in

Rule 3, consider his suitability for resolving the

particular class of dispute involved in the suit and

shall give preference to those who have proven

record of successful mediation or who have

special qualification or experience in mediation.

Rule 8: Duty of mediator to disclose certain

facts :

(a) When a person is approached in

connection with his possible appointment

as a mediator, the person shall disclose in

writing to the parties, any circumstances

likely to give rise to a justifiable doubt as to

his independence or impartiality.

(b) Every mediator shall, from the time of his

appointment and throughout the

continuance of the mediation proceedings,

without delay, disclose to the parties in

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writing, about the existence of any of the

circumstances referred to in clause (a).

Rule 9 : Cancellation of appointment :

Upon information furnished by the mediator

under Rule 8 or upon any other information

received from the parties or other persons, if the

Court, in which the suit is filed, is satisfied, after

conducting such inquiry as it deems fit, and after

giving a hearing to the mediator, that the said

information has raised a justifiable doubt as to the

mediator's independence or impartiality, it shall

cancel the appointment by a reasoned order and

replace him by another mediator.

Rule 10 : Removal or deletion from panel :

A person whose name is placed in the

panel referred to in Rule 3 may be removed or his

name be deleted from the said panel, by the

Court which empanelled him, if :

(i) he resigns or withdraws his name from the

panel for any reason;

(ii) he is declared insolvent or is declared of

unsound mind;

(iii) he is a person against whom criminal

charges involving moral turpitude are

framed by a criminal court and are pending;

(iv) he is a person who has been convicted by

a criminal court for any offence involving

moral turpitude;

(v) he is a person against whom disciplinary

proceedings on charges relating to moral

turpitude have been initiated by appropriate

disciplinary authority which are pending or

have resulted in a punishment;

(vi) he exhibits or displays conduct, during the

continuance of the mediation proceedings,

which is unbecoming of a mediator;

(vii) the Court which empanelled, upon receipt

of information, if it is satisfied, after

conducting such inquiry as it deem fit, is of

the view, that it is not possible or desirable

to continue the name of that person in the

panel,

Provided that, before removing or

deleting his name, under clause (vi) and

(vii), the Court shall hear the mediator

whose name is proposed to be removed or

deleted from the panel and shall pass a

reasoned order.

Rule 11 : Procedure of mediation :

(a) The parties may agree on the procedure to

be followed by the mediator in the conduct

of the mediation proceedings.

(b) Where the parties do not agree on any

particular procedure to be followed by the

mediator, the mediator shall follow the

procedure hereinafter mentioned, namely :

(i) he shall fix, in consultation with the

parties, a time schedule, the dates

and the time of each mediation

session, where all parties have to be

present;

(ii) he shall hold the mediation

conference in accordance with the

provisions of Rule 6;

(iii) he may conduct joint or separate

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meetings with the parties;

(iv) each party shall, ten days before a

session, provide to the mediator a

brief memorandum setting forth the

issues, which according to it, need to

be resolved, and its position in

respect to those issues and all

information reasonably required for

the mediator to understand the issue;

such memoranda shall also be

mutually exchanged between the

parties;

(v) each party shall furnish to the

mediator, copies of pleadings or

documents or such other information

as may be required by him in

connection with the issues to be

resolved.

Provided that where the mediator is

of the opinion that he should look into

any original document, the Court

may permit him to look into the

original document before such officer

of the Court and on such date or time

as the Court may fix.

(vi) each party shall furnish to the

mediator such other information as

may be required by him in

connection with the issues to be

resolved.

(c) Where there is more than one mediator, the

mediator nominated by each party shall first

confer with the party that nominated him

and shall thereafter interact with the other

mediators, with a view to resolving the

disputes.

Rule 12 : Mediator not bound by Evidence Act,

1872 or Code of Civil Procedure,

1908 :

The mediator shall not be bound by the

Code of Civil Procedure 1908 or the Evidence

Act, 1872, but shall be guided by principles of

fairness and justice, have regard to the rights and

obligations of the parties, usages of trade, if any,

and the nature of the dispute.

Rule 13 : Non-attendance of parties at

sessions or meetings on due dates :

(a) The parties shall be present personally or

may be represented by their counsel or

power of attorney holders at the meetings

or sessions notified by the mediator.

(b) If a party fails to attend a session or a

meeting notified by the mediator, other

parties or the mediator can apply to the

Court in which the suit is filed, to issue

appropriate directions to that party to attend

before the mediator and if the Court finds

that a party is absenting himself before the

mediator without sufficient reason, the

Court may take action against the said

party by imposition of costs.

(c) The parties not resident in India, may be

represented by their counsel or power of

attorney holders at the sessions or

meetings.

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Rule 14 : Administrative assistance :

In order to facilitate the conduct of

mediation proceedings, the parties, or the

mediator with the consent of the parties, may

arrange for administrative assistance by a

suitable institution or person.

Rule 15 : Offer of settlement by parties :

(a) Any party to the suit may, 'without

prejudice', offer a settlement to the other

party at any stage of the proceedings, with

notice to the mediator.

(b) Any party to the suit may make a, 'with

prejudice' offer, to the other party at any

stage of the proceedings, with notice to the

mediator.

Rule 16 : Role of mediator :

The mediator shall attempt to facilitate

voluntary resolution of the dispute by the parties,

and communicate the view of each party to the

other, assist them in identifying issues, reducing

misunderstandings, clarifying priorities, exploring

areas of compromise and generating options in

an attempt to solve the dispute, emphasizing that

it is the responsibility of the parties to take

decision which effect them; he shall not impose

any terms of settlement on the parties.

Rule 17 : Parties alone responsible for taking

decision :

The parties must understand that the

mediator only facilitates in arriving at a decision to

resolve disputes and that he will not and cannot

impose any settlement nor does the mediator give

any warranty that the mediation will result in a

settlement. The mediator shall not impose any

decision on the parties.

Rule 18 : Time limit for completion of mediation :

On the expiry of sixty days from the date

fixed for the first appearance of the parties before

the mediator, the mediation shall stand

terminated, unless the Court, which referred the

matter, either suo moto, or upon request by the

mediator or any of the parties, and upon hearing

all the parties, is of the view that extension of time

is necessary or may be useful; but such extension

shall not be beyond a further period of thirty days.

Rule 19 : Parties to act in good faith :

While no one can be compelled to commit

to settle his case in advance of mediation, all

parties shall commit to participate in the

proceedings in good faith with the intention to

settle the dispute, if possible.

Rule 20 : Confidentiality, disclosure and

inadmissibility of information :

(1) When a mediator receives confidential

information concerning the dispute from

any party, he shall disclose the substance

of that information to the other party, if

permitted in writing by the first party.

(2) when a party gives information to the

mediator subject to a specific condition that

it be kept confidential, the mediator shall

not disclose that information to the other

party, nor shall the mediator voluntarily

divulge any information regarding the

documents or what is conveyed to him

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orally as to what transpired during the

mediation.

(3) Receipt or perusal, or preparation of

records, reports or other documents by the

mediator, or receipt of information orally by

the mediator while serving in that capacity,

shall be confidential and the mediator shall

not be compelled to divulge information

regarding the documents nor in regard to

the oral information nor as to what

transpired during the mediation.

(4) Parties shall maintain confidentiality in

respect of events that transpired during

mediation and shall not rely on or introduce

the said information in any other

proceedings as to :

(a) views expressed by a party in the

course of the mediation proceedings;

(b) documents obtained during the

mediation which were expressly

required to be treated as confidential

or other notes, drafts or information

given by parties or mediators;

(c) proposals made or views expressed

by the mediator;

(d) admission made by a party in the

course of mediation proceedings;

(e) the fact that a party had or had not

indicated willingness to accept a

proposal;

(5) There shall be no stenographic or audio or

video recording of the mediation

proceedings.

Rule 21 : Privacy

Mediation sessions and meetings are

private; only the concerned parties or their

counsel or power of attorney holders can attend.

Other persons may attend only with the

permission of the parties or with the consent of

the mediator.

Rule 22 : Immunity :

No mediator shall be held liable for

anything bona fide done or omitted to be done by

him during the mediation proceedings for civil or

criminal action nor shall he be summoned by any

party to the suit to appear in a Court of law to

testify in regard to information received by him or

action taken by him or in respect of drafts or

records prepared by him or shown to him during

the mediation proceedings.

Rule 23 : Communication between mediator

and the Court :

(a) In order to preserve the confidence of

parties in the Court and the neutrality of the

mediator, there should be no

communication between the mediator and

the Court, except as stated in clauses (b)

and (c) of this Rule.

(b) If any communication between the mediator

and the Court is necessary, it shall be in

writing and copies of the same shall be

given to the parties or their counsel or

power of attorney.

(c) Communication between the mediator and

the Court shall be limited to communication

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by the mediator :

(i) with the Court about the failure of

party to attend;

(ii) with the Court with the consent of the

parties;

(iii) regarding his assessment that the

case is not suited for settlement

through mediation;

(iv) that the parties have settled the

dispute or disputes.

Rule 24 : Settlement Agreement :

(1) Where an agreement is reached between

the parties in regard to all the issues in the

suit or some of the issues, the same shall

be reduced to writing and signed by the

parties or their power of attorney holder. If

any counsel have represented the parties,

they shall attest the signature of their

respective clients.

(2) The agreement of the parties so signed and

attested shall be submitted to the mediator

who shall, with a covering letter signed by

him, forward the same to the Court in which

the suit is pending.

(3) Where no agreement is arrived at between

the parties, before the time limit stated in

Rule 18 or where, the mediator is of the

view that no settlement is possible, he shall

report the same to the said Court in writing.

Rule 25 : Court to fix a date for recording

settlement and passing decree :

(1) Within seven days of the receipt of any

settlement, the Court shall issue notice to

the parties fixing a day for recording the

settlement, such date not being beyond a

further period of fourteen days from the

date of receipt of settlement, and the Court

shall record the settlement, if it is not

collusive.

(2) The Court shall then pass a decree in

accordance with the settlement so

recorded, if the settlement disposes of all

the issues in the suit.

(3) If the settlement disposes of only certain

issues arising in the suit, the Court shall

record the settlement on the date fixed for

recording the settlement and (i) if the

issues are servable from other issues and if

a decree could be passed to the extent of

the settlement covered by those issues, the

Court may pass a decree straightaway in

accordance with the settlement on those

issues without waiting for a decision of the

Court on the other issues which are not

settled.

(ii) if the issues are not servable, the Court

shall wait for a decision of the Court on the

other issues which are not settled.

Rule 26 : Fee of mediator and costs :

(1) At the time of referring the disputes to

mediation, the Court shall, after consulting

the mediator and the parties, fix the fee of

the mediator.,

(2) As far as possible a consolidated sum may

be fixed rather than for each session or

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meeting.

(3) Where there are two mediators as in clause

(b) of Rule 2, the Court shall fix the fee

payable to the mediators which shall be

shared equally by the two sets of parties.

(4) The expense of the mediation including the

fee of the mediator, costs of administrative

assistance, and other ancillary expenses

concerned, shall be borne equally by the

various contesting parties or as may be

otherwise directed by the Court.

(5) Each party shall bear the costs for

production of witnesses on his side

including experts, or for production of

documents.

(6) The mediator may, before the

commencement of mediation, direct the

parties to deposit equal sums, tentatively,

to the extent of 40% of the probable costs

of the mediation, as referred to in clauses

(1), (3) and (4). The remaining 60% shall

be deposited with the mediator, after the

conclusion of mediation. For the amount of

cost paid to the mediator, he shall issue the

necessary receipts and a statement of

account shall be filed, by the mediator in

the Court.

(7) The expense of mediation including fee, if

not paid by the parties, the Court shall, on

the application of the mediator or parties,

direct the concerned parties to pay, and if

they do not pay, the Court shall recover the

said amounts as if there was a decree for

the said amount.

(8) Where a party is entitled to legal aid under

section 12 of the Legal Services Authority

Act, 1987, the amount of fee payable to the

mediator and costs shall be paid by the

concerned Legal Services Authority under

that Act.

Rule 27 : Ethics to be followed by mediator :

The mediator shall :

(1) follow and observe these Rules strictly and

with due diligence;

(2) not carry on any activity or conduct which

could reasonably be considered as conduct

unbecoming of a mediator;

(3) uphold the integrity and fairness of the

mediation process;

(4) ensure that the parties involved in the

mediation and fairly informed and have an

adequate understanding of the procedural

aspects of the process;

(5) satisfy himself/herself that he/she is

qualified to undertake and complete the

assignment in a professional manner;

(6) disclose any interest or relationship likely to

affect impartiality or which might seek an

appearance of partiality or bias;

(7) avoid, while communicating with the

parties, any impropriety or appearance of

impropriety;

(8) be faithful to the relationship of trust and

confidentiality imposed in the office of

mediator;

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(9) conduct all proceedings related to the

resolutions of a dispute, in accordance with

the applicable law;

(10) recognize that mediation is based on

principles of self-determination by the

parties and that mediation process relies

upon the ability of parties to reach a

voluntary, undisclosed agreement;

(11) maintain the reasonable expectations of the

parties as to confidentiality;

(12) refrain from promises or guarantees of

results.

Rule 28 : Transitory provisions :

Until a panel of arbitrators is prepared by

the High Court and the District Court, the Courts

referred to in Rule 3, may nominate a mediator of

their choice if the mediator belongs to the various

classes of persons referred to in Rule 4 and is

duly qualified and is not disqualified, taking into

account the suitability of the mediator for

resolving the particular dispute."

Report No.3

Report No.3 deals with the Case Flow Management and Model

Rules. The case management policy can yield remarkable results in

achieving more disposal of the cases. Its mandate is for the Judge or an

officer of the court to set a time-table and monitor a case from its initiation

to its disposal. The Committee on survey of the progress made in other

countries has come to a conclusion that the case management system has

yielded exceedingly good results.

Model Case Flow Management Rules have been separately dealt

with for trial courts and first appellate subordinate courts and for High

Courts. These draft Rules extensively deal with the various stages of the

litigation. The High Courts can examine these Rules, discuss the matter

and consider the question of adopting or making case law management

and model rules with or without modification, so that a step forward is

taken to provide to the litigating public a fair, speedy and inexpensive

justice.

The Model Case Flow Management Rules read as under:

"MODEL CASE FLOW MANAGEMENT RULES

(A) Model Case Management Rules for Trial

Courts and First Appellate Subordinate

Courts

I. Division of Civil Suits and Appeals into

Tracks

II. Original Suits

1. Fixation of time limits while issuing

notice

2. Service of Summons/notice and

completion of pleadings

3. Calling of Cases (Hajri or Call Work

or Roll Call)

4. Procedure on the grant of interim

orders

5. Referral to Alternate Dispute

Resolution

6. Procedure on the failure of Alternate

Dispute Resolution

7. Referral to Commissioner for

recordal of evidence

8. Costs

9. Proceedings for Perjury

10. Adjournments

11. miscellaneous Applications.

III. First Appeals to Subordinate Courts

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1. Service of Notice of Appeal

2. Essential Documents to be filed with

the Memorandum of Appeal

3. Fixation of time limits in interlocutory

matters

4. Steps for completion of all formalities

(Call Work Hajri)

5. Procedure on grant of interim-orders

6. Filing of Written submissions

7. Costs

IV. Application/Petition under Special Acts

V. Criminal Trial and Criminal Appeals to

Subordinate Courts

(a) Criminal Trials

(b) Criminal Appeals

VI. Notice under section 80 of Code of Civil

Procedure

VII. Note

(B) Model Case Flow Management Rules in

High Court

I. Division of Cases into Tracks

II. Writ of Habeas Corpus

III. Mode of Advance Service

IV. First Appeals to High Court

V. Appeals to Division Bench

VI. Second Appeals.

VII. Civil Revisions

VIII. Criminal Appeals

IX. Note.

\005\005..High Court Rules, 2003

In exercise of the power conferred by Part X of

the Code of Civil Procedure 1908, (5 of 1908) and

\005.. High Court Act, \005\005 and all other powers

enabling, the \005. High Court hereby makes the

following Rules, in regard to case flow

management in the subordinate courts.

(A) Model Rules for Trial Courts and First

Appellate Subordinate Courts

I. Division of Civil Suits and Appeals into

Tracks

1. Based on the nature of dispute, the

quantum of evidence to be recorded and the time

likely to be taken for the completion of suit, the

suits shall be channeled into different tracks.

Track I may include suits for maintenance,

divorce and child custody and visitation rights,

grant of letters of administration and succession

certificate and simple suits for rent or for eviction

(upon notice under Section 106 of Transfer of

Property Act). Track 2 may consist of money

suits and suits based solely on negotiable

instruments. Track 3 may include suits

concerning partition and like property disputes,

trademarks, copyrights and other intellectual

property matters. Track 4 may relate to other

matters. All efforts shall be taken to complete the

suits in track 1 within a period of 9 months, track

2 within 12 months and suits in track 3 and 4

within 24 months.

This categorization is illustrative and it will

be for the High Court to make appropriate

categorization. It will be for the judge concerned

to make an appropriate assessment as to which

track any case can be assigned.

2. Once in a month, the registry/administrative

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staff of each Court will prepare a report as to the

stage and progress of cases which are proposed

to be listed in next month and place the report

before the Court. When the matters are listed on

each day, the judge concerned may take such

decision as he may deem fit in the presence of

counsel/parties in regard to each case for

removing any obstacles in service of summons,

completion of pleadings etc. with a view to make

the case ready for disposal.

3. The judge referred to in clause (2) above,

may shift a case from one track to another,

depending upon the complexity and other

circumstances of the case.

4. Where computerization is available, the

monthly data will be fed into the computer in such

a manner that the judge referred to in clause (2)

above, will be able to ascertain the position and

the stage of every case in every track from the

computer screen. Over a period, all cases

pending in his Court will be covered. Where

computerization is not available, the monitoring

must be done manually.

5. The judge referred to in clause (2) above,

shall monitor and control the flow or progress of

every case, either from the computer or from the

register or data placed before him in the above

manner or in some other manner he may

innovate.

II. Original Suit :

1. Fixation of time limits while issuing

notice :

(a) Wherever notice is issued in a suit, the

notice should indicate that the Code

prescribes a maximum of 30 days for filing

written statement (which for special

reasons may be extended upto 90 days)

and, therefore, the defendants may prepare

the written statement expeditiously and that

the matter will be listed for that purpose on

the expiry of eight weeks from the date of

issue of notice (so that it can be a definite

date). After the written statement is filed,

the replication (if any, proposed and

permitted), should be filed within six weeks

of receipt of the written statement. If there

are more than one defendant, each one of

the defendant should comply with this

requirement within the time-limit.

(b) The notice referred to in clause (a) shall be

accompanied by a complete copy of the

plaint and all its annexure/enclosures and

copies of the interlocutory applications, if

any.

(c) If interlocutory applications are filed along

with the plaint, and if an ex-parte interim

order is not passed and the Court is

desirous of hearing the respondent, it may,

while sending the notice along with the

plaint, fix an earlier date for the hearing of

the application (than the date for filing

written statement) depending upon the

urgency for interim relief.

2. Service of Summons/notice and

completion of pleadings :

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(a) Summons may be served as indicated in

clause (3) of Rule 9 of Order V.

(b) In the case of service of summons by the

plaintiff or a courier where a return is filed

that the defendant has refused notice, the

return will be accompanied by an

undertaking that the plaintiff or the courier,

as the case may be, is aware that if the

return is found to be false, he can be

punished for perjury or summarily dealt with

for contempt of Court for abuse of the

provisions of the Code. Where the plaintiff

comes forward with a return of 'refusal', the

provisions of Order 9A Rule (4) will be

followed by re-issue of summons through

Court.

(c) If it has not been possible to effect service

of summons under Rule 9 of Order V, the

provisions of Rule 17 of Order V shall apply

and the plaintiff shall within 7 days from the

date of its inability to serve the summons,

to request the Court to permit substituted

service. The dates for filing the written

statement and replication, if any, shall

accordingly stand extended.

3. Calling of Cases (Hajri or Call Work or

Roll Call) :

The present practice of the Court-master or

Bench-clerk calling all the cases listed on a

particular day at the beginning of the day in order

to confirm whether counsel are ready, whether

parties are present or whether various steps in

the suit or proceeding has been taken, is

consuming a lot of time of the Court, sometimes

almost two hours of the best part of the day when

the judge is fresh. After such work, the Court is

left with very limited time to deal with cases listed

before it. Formal listing should be first before a

nominated senior officer of the registry, one or

two days before the listing in Court. He may give

dates in routine matters for compliance with

earlier orders of Court. Cases will be listed

before Court only where an order of the Court is

necessary or where an order prescribing the

consequences of default or where a peremptory

order or an order as to costs is required to be

passed on the judicial side. Cases which have to

be adjourned as a matter of routine for taking

steps in the suit or proceeding should not be

unnecessarily listed before Court. Where

parties/counsel are not attending before the

Court-officer or are defiant or negligent, their

cases may be placed before the Court. Listing of

cases on any day before a Court should be based

on a reasonable estimate of time and number of

cases that can be disposed of by the Court in a

particular day. The Courts shall, therefore,

dispense with the practice of calling all the cases

listed adjourned to any particular day. Cases will

be first listed before a nominated senior officer of

the Court, nominated for the purpose.

4. Procedure on the grant of interim

orders:

(a) If an interim order is granted at the first

hearing by the Court, the defendants would

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have the option of moving appropriate

applications for vacating the interim order

even before the returnable date indicated in

the notice and if such an application is filed,

it shall be listed as soon as possible even

before the returnable date.

(b) If the Court passes an ad-interim ex-parte

order in an interlocutory application, and

the reply by the defendants is filed, and if,

thereafter, the plaintiff fails to file the

rejoinder (if any) without good reason for

the delay, the Court has to consider

whether the stay or interim order passed by

the Court should be vacated and shall list

the case with that purpose. This is meant

to prevent parties taking adjournment with

a view to have undue benefit of the ad

interim orders. The plaintiff may, if he so

chooses, also waive his right to file a

rejoinder. A communication of option by

the plaintiff not to file a rejoinder, made to

the registry will be deemed to be the

completion of pleadings in the interlocutory

application.

5. Referral to Alternate Dispute Resolution:

(In the hearing before the Court, after

completion of pleadings, time limit for discovery

and inspection, and admission and denials, of

documents shall be fixed, preferably restricted to

4 weeks each)

After the completion of admission and

denial of documents by the parties, the suit shall

be listed before the Court (for examination of

parties under Order X of the Civil Procedure

Code. A joint statement of admitted facts shall be

filed before the said date.) The Court shall

thereafter, follow the procedure prescribed under

the Alternative Dispute Resolution and Mediation

Rules, 2002.

6. Procedure on the failure of Alternate

Dispute Resolution :

On the filing of report by the Mediator under

the Mediation Rules that efforts at Mediation have

failed, or a report by the Conciliator under the

provisions of the Arbitration and Conciliation Act,

1996, or a report of no settlement in the Lok

Adalat under the provisions of the Legal Services

Authority Act, 1987 the suit shall be listed before

the registry within a period of 14 days. At the said

hearing before the registry, all the parties shall

submit the draft issues proposed by them. The

suit shall be listed before the Court within 14 days

thereafter for framing of issues.

When the suit is listed after failure of the

attempts at conciliation, arbitration or Lok Adalat,

the Judge may merely inquire whether it is still

possible for the parties to resolve the dispute.

This should invariably be done by the Judge at

the first hearing when the matter comes back on

failure of conciliation, mediation or Lok Adalt.

If the parties are not keen about settlement,

the Court shall frame the issues and direct the

plaintiff to start examining his witnesses. The

procedure of each witness filing his examination-

in-chief and being examined in cross or re-

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examination will continue, one after the other.

After completion of evidence on the plaintiff's

side, the defendants shall lead evidence likewise,

witness after witness, the chief examination of

each witness being by affidavit and the witness

being then cross-examined or re-examined. The

parties shall keep he affidavit in chief-examination

ready whenever the witness's examination is

taken up. As far as possible, evidence must be

taken up day by day as stated in clause (a) of

proviso to Rule 2 of Order XVII. The parties shall

also indicate the likely duration for the evidence to

be completed, and for the arguments to be

thereafter heard. The Judge shall ascertain the

availability of time of the Court and will list the

matter for trial on a date when the trial can go on

from day to day and conclude the evidence. The

possibility of further negotiation and settlement

should be kept open and if such a settlement

takes place, it should be open to the parties to

move the registry for getting the matter listed at

an earlier date for disposal.

7. Referral to Commissioner for recordal of

evidence :

(a) The High Court shall conduct an

examination on the subjects of the Code of

Civil Procedure and Evidence Act. Only

those advocates who have passed an

examination conducted by the High Court

on the subjects of 'Code of Civil Procedure'

and Evidence Act, - shall be appointed as

Commissioners for recording evidence.

They shall be ranked according to the

marks secured by them.

(b) It is not necessary that in every case the

Court should appoint a Commissioner for

recording evidence. Only if the recording of

evidence is likely to take a long time, or

there are any other special grounds, should

the Court consider appointing a

Commissioner for recording the evidence.

The Court should direct that the matter be

listed for arguments fifteen days after the

Commissioner files his report with the

evidence.

The Court may initially fix a specific period

for the completion of the recording of the

evidence by the Commissioner and direct

the matter to be listed on the date of expiry

of the period, so that Court may know

whether the parties are co-operating with

the Commissioner and whether the

recording of evidence is getting

unnecessarily prolonged.

(c) Commissioners should file an undertaking

in Court upon their appointment that they

will keep the records handed over to them

and those that may be filed before them,

safe and shall not allow any party to inspect

them in the absence of the opposite

party/counsel. If there is delay of more

than one month in the dates fixed for

recording evidence, it is advisable for them

to return the file to the Court and take it

back on the eve of the adjourned date.

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8. Costs :

So far as awarding of costs at the time of

judgment is concerned, awarding of costs must

be treated generally as mandatory in as much as

the liberal attitude of the Courts in directing the

parties to bear their own costs had led parties to

file a number of frivolous cases in the Courts or to

raise frivolous and unnecessary issues. Costs

should invariably follow the event. Where a party

succeeds ultimately on one issue or point but

loses on number of other issues or points which

were unnecessarily raised, costs must be

appropriately apportioned. Special reasons must

be assigned if costs are not being awarded.

Costs should be assessed according to rules in

force. If any of the parties has unreasonably

protracted the proceedings, the Judge should

consider exercising discretion to impose

exemplary costs after taking into account the

expense incurred for the purpose of attendance

on the adjourned dates.

9. Proceedings for Perjury :

If the Trial Judge, while delivering the

judgment, is of the view that any of the parties or

witnesses have willfully and deliberately uttered

blatant falsehoods, he shall consider (at least in

some grave cases) whether it is a fit case where

prosecution should be initiated for perjury and

order prosecution accordingly.

10. Adjournments :

The amendments to the Code have

restricted the number of adjournments to three in

the course of hearing of the suit, on reasonable

cause being shown. When a suit is listed before

a Court and any party seeks adjournment, the

Court shall have to verify whether the party is

seeking adjournment due to circumstances

beyond the control of the party, as required by

clause (b) of proviso to Rule 2 of Order XVII. The

Court shall impose costs as specified in Rule 2 of

Order XVII.

11. Miscellaneous Applications :

The proceedings in a suit shall not be

stayed merely because of the filing of

Miscellaneous Application in the course of suit

unless the Court in its discretion expressly thinks

it necessary to stay the proceedings in the suit.

III. First Appeals to Subordinate Courts

1. Service of Notice of Appeal :

First Appeals being appeals on question of

fact and law, Courts are generally inclined to

admit the appeal and it is only in exceptional

cases that the appeal is rejected at the admission

stage under Rule 11 of Order XLI. In view of the

amended CPC, a copy of the memorandum of

appeal is required to be filed in the subordinate

Court. It has been clarified by the Supreme Court

that the requirement of filing a copy of appeal

memorandum in the sub-ordinate Court does not

mean that appeal memorandum cannot be filed in

the Appellate Court immediately for obtaining

interim orders.

Advance notice should simultaneously be

given by the counsel for the party who is

proposing to file the appeal, to the counsel for the

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opposite party who appeared in the sub-ordinate

Court so as to enable the respondents to appear

if they so choose, even at the first hearing stage.

2. Essential Documents to be filed with the

Memorandum of Appeal :

The Appellant shall, as far as possible, file,

along with the appeal, copies of essential

documents marked in the suit, for the purpose of

enabling the appellate Court to understand the

points raised or for purpose of passing interim

orders.

3. Fixation of time limits in interlocutory

matters :

Whenever notice is issued by the appellate

Court in interlocutory matters, the notice should

indicate the date by which the reply should be

filed. The rejoinder, if any, should be filed within

four weeks of receipt of the reply. If there are

more parties than one who are Respondents,

each one of the Respondent should comply with

this requirement within the time limit and the

rejoinder may be filed within four weeks from the

receipt of the last reply.

4. Steps for completion of all formalities/

(Call Work) (Hajri) :

The appeal shall be listed before the

registry for completion of all formalities necessary

before the appeal is taken up for final hearing.

The procedure indicated above of listing the case

before a senior officer of the appellate Court

registry for giving dates in routine matters must

be followed to reduce the 'call work' (Hajri) and

only where judicial orders are necessary, such

cases should be listed before Court.

5. Procedure on grant of interim-orders :

If an interim order is granted at the first

hearing by the Court, the Respondents would

have the option of moving appropriate

applications for vacating the interim order even

before the returnable date indicated in the notice

and if such an application is filed, it shall be listed

as soon as possible even before the returnable

date.

If the Court passes an ad-interim ex-parte

order, and if the reply is filed by the Respondents

and if, without good reason, the appellant fails to

file the rejoinder, Court shall consider whether it is

a fit case for vacating the stay or interim order

and list the case for that purpose. This is

intended to see that those who have obtained ad

interim orders do not procrastinate in filing replies.

The appellant may also waive his right to file the

rejoinder. Such choice shall be conveyed to the

registry on or before the date fixed for filing of

rejoinder. Such communication of option by the

applicant to the registry will be deemed to be

completion of pleadings.

6. Filing of Written submissions :

Both the appellants and the respondents

shall be required to submit their written

submissions two weeks before the

commencement of the arguments in the appeal.

The cause-list should indicate if written

submissions have been filed or not. Wherever

they have not been filed, the Court must insist on

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their being filed within a particular period to be

fixed by the Court and each party must serve a

copy thereof on the opposite side before the date

of commencement of arguments. There is no

question of parties filing replies to each other's

written submissions.

The Court may consider having a Caution

List/Alternative List to take care of eventualities

when a case does not go on before a court, and

those cases may be listed before a court where,

for any reason, the scheduled cases are not

taken up for hearing.

7. Costs :

Awarding of costs must be treated

generally as mandatory in as much as it is the

liberal attitude if the Courts in not awarding costs

that has led to frivolous points being raised in

appeals or frivolous appeals being filed in the

courts. Costs should invariably follow the event

and reasons must be assigned by the appellate

Court for not awarding costs. If any of the parties

have unreasonably protracted the proceedings,

the Judge shall have the discretion to impose

exemplary costs after taking into account the

costs that may have been imposed at the time of

adjournments.

IV. Application/Petition under Special Acts

This chapter deals with

applications/petitions filed under Special Acts like

the Industrial Disputes Act, Hindu Marriage Act,

Indian Succession Act etc.

The Practise directions in regard to Original

Suits should mutatis mutandis apply in respect of

such applications/petitions.

V. Criminal Trials and Criminal Appeals to

Subordinate Courts

(a) Criminal Trials

1. Criminal Trials should be classified based

on offence, sentence and whether the accused is

on bail or in jail. Capital punishment, rape and

cases involving sexual offences or dowry deaths

should be kept in Track I. Other cases where the

accused is not granted bail and is in jail, should

be kept in Track II. Cases which affect a large

number of persons such as cases of mass

cheating, economic offences, illicit liquor tragedy

and food adulteration cases, etc. should be kept

in Track III. Offences which are tried by special

courts such as POTA, TADA, NDPS, Prevention

of Corruption Act, etc. should be kept in Track IV.

Track V \026 all other offences.

The endeavour should be to complete

Track I cases within a period of nine months,

Track II and Track III cases within twelve months

and Track IV within fifteen months.

2. The High Court may classify criminal

appeals pending before it into different tracks on

the same lines mentioned above.

(b) Criminal Appeals

3. Wherever an appeal is filed by a person in

jail, and also when appeals are filed by State, as

far as possible, the memorandum appeal may be

accompanied by important documents, if any,

having a bearing on the question of bail.

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4. In respect of appeals filed against

acquittals, steps for appointment of amicus curie

or State Legal Aid counsel in respect of the

accused who do not have a lawyer of their own

should be undertaken by the registry/(State Legal

Services Authority) immediately after completion

of four weeks of service of notice. It shall be

presumed that in such an event the accused is

not in a position to appoint counsel.

5. Advance notice should simultaneously be

given by the counsel for the party who is

proposing to file the appeal, to the counsel for the

opposite party in the subordinate Court, so as to

enable the other party to appear if they so choose

even at the first hearing stage.

VI. Notice issued under S.80 of Code of

Civil Procedure :

Every public authority shall appoint an

officer responsible to take appropriate action on a

notice issued under S.80 of the Code of Civil

Procedure. Every such officer shall take

appropriate action on receipt of such notice. If

the Court finds that the concerned officer, on

receipt of the notice, failed to take necessary

action or was negligent in taking the necessary

steps, the Court shall hold such officer

responsible and recommend appropriate

disciplinary action by the concerned authority.

VII. Note

Whenever there is any inconsistency

between these rules and the provisions of either

the Code of Civil Procedure, 1908 or the Code of

Criminal Procedure 1973 or the High Courts Act

or any other Statutes, the provisions of such

Codes and Statutes shall prevail.

(B) Model Case Flow Management Rules in

High Court

\005..High Court Rules, 2003

In exercise of the power conferred by

Article 225 of the Constitution of India, and

Chapter X of the Code of Civil Procedure, 1908 (5

of 1908) and Section \005.. of the \005.. High Court

Act and all other powers enabling it, the \005\005 High

Court hereby makes the following Rules :

I. Division of Cases into different tracks :

1. Writ Petitions : The High Court shall, at the

stage of admission or issuing notice before

admission categorise the Writ Petitions other than

Writ of Habeas Corpus, into three categories

depending on the urgency with which the matter

should be dealt with : the Fast Track, the Normal

Track and the Slow Track. The petitions in the

Fast Track shall invariably be disposed of within a

period not exceeding six months while the

petitions in the Normal Track should not take

longer than a year. The petitions in the Slow

Track, subject to the pendency of other cases in

the Court, should ordinarily be disposed of within

a period of two years.

Where an interim order of stay or injunction

is granted in respect of liability to tax or demolition

or eviction from public premises etc. shall be put

on the fast track. Similarly, all matters involving

tenders would also be put on the Fast Track.

These matters cannot brook delays in disposal.

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2. Senior officers of the High Court,

nominated for the purpose, shall at intervals of

every month, monitor the stage of each case

likely to come up for hearing before each Bench

(Division Bench or Single Judge) during that

month which have been allocated to the different

tracks. The details shall be placed before the

Chief Justice or Committee nominated for that

purpose as well as the concerned Judge dealing

with cases.

3. The Judge or Judges referred to in Clause

(2) above may shift the case from one track to

another, depending upon the complexity,

(urgency) and other circumstances of the case.

4. Where computerization is available, data

will be fed into the computer in such a manner

that the court or judge or judges, referred to in

Clause (2) above will be able to ascertain the

position and stage of every case in every track

from the computer screen.

5. Whenever the roster changes, the judge

concerned who is dealing with final matters shall

keep himself informed about the stage of the

cases in various tracks listed before him during

every week, with a view to see that the cases are

taken up early.

6. Other matters : The High Court shall also

divide Civil Appeals and other matters in the High

Court into different tracks on the lines indicated in

sub-clauses (2) to (5) above and the said clauses

shall apply, mutatis mutandis, to the civil appeals

filed in the High Court. The High Court shall

make a subject-wise division of the

appeals/revision application for allocation into

different tracks.

(Division of criminal petitions and appeals into

different tracks is dealt with separately under the

heading 'criminal petitions and appeals'.)

II. Writ of Habeas Corpus :

Notices in respect of Writ of Habeas

Corpus where the person is in custody under

orders of a State Government or Central

Government shall invariably be issued by the

Court at the first listing and shall be made

returnable within 48 hours. State Government or

Central Government may file a brief return

enclosing the relevant documents to justify the

detention. The matter shall be listed after notice

on the fourth working day after issuance of notice,

and the Court shall consider whether a more

detailed return to the Writ is necessary, and, if so

required, shall give further time of a week and

three days' time for filing a rejoinder. A Writ of

Habeas Corpus shall invariably be disposed of

within a period of fifteen days. It shall have

preference over and above fast-track cases.

III. Mode of Advance Service :

The Court rules will provide for mode of

service of notice on the standing counsel for

Respondents wherever available, against whom,

interim orders are sought. Such advance service

shall generally relate to Governments or public

sector undertakings who have Standing Counsel.

FIRST APPEALS TO HIGH COURT

1. Service of Notice of Appeal :

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First Appeals being appeals on questions

of fact and law, Courts are generally inclined to

admit the appeal and it is only in exceptional

cases that the appeal is rejected under Order XLI

Rule 11 at the admission stage. In view of the

amended CPC, a copy of the appeal is required

to be filed in the Trial Court. It has been clarified

by the Supreme Court that the requirement of

filing of appeal in the Trial Court does not mean

that the party cannot file the appeal in the

appellate Court (High Court) immediately for

obtaining interim orders.

In addition to the process for normal

service as per the Code of Civil Procedure,

advance notice should simultaneously be given

by the counsel for the party who is proposing to

file the appeal, to the counsel for the opposite

party in the Trial Court itself so as to enable them

to inform the parties to appear if they so choose

even at the first hearing stage.

2. Filing of Documents :

The Appellant shall, on the appeal being

admitted, file all the essential papers within such

period as may be fixed by the High Court for the

purpose the High Court understanding the scope

of the dispute and for the purpose of passing

interlocutory orders.

3. Printing or typing of Paper Book :

Printing and preparation of paper-books by

the High Court should be done away with. After

service of notice is effected, counsel for both

sides should agree on the list of documents and

evidence to be printed or typed and the same

shall be made ready by the parties within the time

to be fixed by the Court. Thereafter the paper

book shall be got ready. It must be assured that

the paper books are ready at lease six months in

advance before the appeal is taken up for

arguments. (Cause lists must specify if paper

books have been filed or not).

4. Filing of Written Submissions and time

for oral arguments :

Both the appellants and the respondents shall be

required to submit their written submissions with

all the relevant pages as per the Court paper-

book marked therein within a month of

preparation of such paper-books, referred to in

para 3 above.

Cause list may indicate if written

submissions have been filed. If not, the Court

must direct that they be filed immediately.

After the written submissions are filed, (with

due service of copy to the other side) the matter

should be listed before the Registrar/Master for

the parties to indicate the time that will be taken

for arguments in the appeal. Alternatively, such

matters may be listed before a judge in chambers

for deciding the time duration and thereafter to fix

a date of hearing on a clear date when the

requisite extent of time will be available.

In the event that the matter is likely to take

a day or more, the High Court may consider

having a Caution List/Alternative List to meet

eventualities where a case gets adjourned due to

unavoidable reasons or does not go on before a

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court, and those cases may be listed before a

court where, for one reason or another, the

scheduled cases are not taken up for hearing.

5. Court may explore possibility of

settlement :

At the first hearing of a First Appeal when

both parties appear, the Court shall find out if

there is a possibility of a settlement. If the parties

are agreeable even at that stage for mediation or

conciliation, the High Court could make a

reference to mediation or conciliation for the said

purpose.

If necessary, the process contemplated by

Section 89 of CPC may be resorted to by the

Appellate Court so, however, that the hearing of

the appeal is not unnecessarily delayed.

Whichever is the ADR process adopted, the Court

should fix a date for a report on the ADR two

months from the date of reference.

V. Appeals to Division Bench from

judgment of Single Judge of High Court

[Letter Patent Appeals (LPA) or similar

appeals under High Courts Acts] :

An appeal to a Division Bench from

judgment of a Single Judge may lie in the

following cases :

(1) Appeals from interlocutory orders of the

Single Judge in original jurisdiction matters

including writs; (2) appeals from final

judgments of a Single Judge in original

jurisdiction; (3) other appeals permitted by

any law to a Division Bench.

Appeals against interlocutory orders falling

under category (1) above should be invariably

filed after advance notice to the opposite counsel

(who has appeared before the Single Judge) so

that both the sides will be represented at the very

first hearing of the appeals. If both parties appear

at the first hearing, there is no need to serve the

opposite side by normal process and at least in

some cases, the appeals against interlocutory

orders can be disposed of even at the first

hearing. If, for any reason, this is not practicable,

such appeals against interim orders should be

disposed of within a period of a month.

In cases referred to above, necessary

documents should be kept ready by the counsel

to enable the Court to dispose of the appeal

against interlocutory matter at the first hearing

itself.

In all Appeals against interim orders in the

High Court, in writs and civil matters, the Court

should endeavour to set down and observe a

strict time limit in regard to oral arguments. In

case of Original Side appeals/LPAs arising out of

final orders in a Writ Petition or arising out of civil

suits filed in the High Court, a flexible time

schedule may be followed.

The practice direction in regard to First

Appeal should mutatis mutandis apply in respect

of LPAs/Original Side appeals against final

judgments of the Single Judge.

Writ Appeals/Letters Patent Appeals arising

from orders of the Single Judge in a Writ Petition

should be filed with simultaneous service on the

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counsel for the opposite party who had appeared

before the Single Judge or on service of the

opposite party.

Writ Appeals against interim orders of the

Single Judge should invariably be disposed of

early and, at any rate, within a period of thirty

days from the first hearing. Before Writ Appeals

against final orders in Writ Petitions are heard,

brief written submissions must be filed by both

parties within such time as may be fixed by the

Court.

VI. Second Appeals :

Even at the stage of admission, the

questions of law with a brief synopsis and written

submissions on each of the propositions should

be filed so as to enable the Court to consider

whether there is a substantial question of law.

Wherever the Court is inclined to entertain the

appeal, apart from normal procedure for service

as per rules, advance notice shall be given to the

counsel who had appeared in the first appeal

letter Court. The notice should require the

respondents to file their written submissions

within a period of eight weeks from service of

notice. Efforts should be made to complete the

hearing of the Second Appeals within a period of

six months.

VII. Civil Revision :

A revision petition may be filed under

Section 115 of the Code or under any special

statute. In some High Courts, petitions under

Article 227 of the Constitution of India are

registered as civil revision petitions. The practise

direction in regard to LPAs and First Appeals to

the High Courts, should mutatis mutandis apply in

respect of revision petitions.

VIII. Criminal Appeals :

Criminal Appeals should be classified

based on offence, sentence and whether the

accused is on bail or in jail. Capital punishment

cases, rape, sexual offences, dowry death cases

should be kept in Track I. Other cases where the

accused is not granted bail and is in jail, should

be kept in Track II. Cases which affect a large

number of persons such as cases of mass

cheating, economic offences, illicit liquor tragedy,

food adulteration cases, offences of sensitive

nature should be kept in Track III. Offences

which are tried by special courts such as POTA,

TADA, NDPS, Prevention of Corruption Act, etc.

should be kept in Track IV. Track V \026 all other

offences.

The endeavour should be to complete

Track I cases within a period of six months, Track

II cases within nine months, Track III within a

year, Track IV and Track V within fifteen months.

Wherever an appeal is filed by a person in

jail, and also when appeals are filed by State, the

complete paper-books including the evidence,

should be filed by the State within such period as

may be fixed by Court.

In appeals against acquittals, steps for

appointment of amicus curie or State Legal Aid

counsel in respect of the accused who do not

have a lawyer of their own should be undertaken

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by the Registry/(State Legal Services Committee)

immediately after completion of four weeks of

service of notice. It shall be presumed that in

such an event the accused is not in a position to

appoint counsel, and within two weeks thereafter

counsel shall be appointed and shall be furnished

all the papers.

IX. Note

Wherever there is any inconsistency

between these rules and the provisions of either

the Code of Civil Procedure, 1908 or the Code of

Criminal Procedure, 1973 or the High Court Act,

or any other statute, the provisions of such Codes

and statute, the provisions of such Codes and

statutes shall prevail."

Before concluding, we wish to place on record our sincere gratitude

and appreciation for the members of the Committee, in particular Hon'ble

Mr.Justice M. Jagannadha Rao, Chairman of the Committee and Law

Commission of India who as usual has taken great pains in examining the

whole issue in detail and going into depth of it and has filed the three

Reports above referred which we hope will go a long way in dispensation

of effective and meaningful administration of justice to the litigating public.

We hope that the High Courts in the country would be in a position to

examine the aforesaid rules expeditiously and would be able to finalise the

Rules within a period of four months.

Further, we place on record our deep appreciation for very useful

assistance rendered by Senior Advocates Mr.K.Parasaran and Mr.Arun

Mohan who on request from this court readily agreed to render assistance

as Amicus Curie. We also record our appreciation for useful assistance

rendered by Mr.Gulam Vahnavati, learned Solicitor General on behalf of

Union of India and the Attorney General of India and Mr.T.L.V. Iyer, Senior

Advocate on behalf of Bar Council of India.

A copy of this judgment shall be sent to all the High Courts through

Registrar Generals, Central Government through Cabinet Secretary and

State Governments/Union Territories through Chief Secretaries so that

expeditious follow up action can be taken by all concerned. The Registrar

Generals, Central Government and State/Union Territories shall file the

progress report in regard to the action taken within a period of four months.