CIVIL PROCEDURE CODE

ASSIGNMENT

1- Order 21
2- Pleadings (Order 6)

CASE STUDY

1- Forward Construction Co. & Ors. ... vs Prabhat Mandal (Regd.) Andheri & ... on 26 November,
1985
2- Salem Advocate Bar Association v UOI
Civil Procedure Code: Order 21
Execution of a Decree under Order 21, Code Of Civil Procedure

The litigation consists of three stages, initiation of litigation, adjudication of

litigation, and implementation of litigation. The last stage of litigation, that is the
implementation of litigation is known as an execution. Once a decree or judgment
is passed by the court, it is the obligation of the person against whom the
judgment is passed (judgment-debtor), to give effect to the decree so as to enable
the decree-holder to enjoy the benefits of the judgment.

By execution, a judgment-debtor is compelled to carry out the mandate of the

decree or order. Execution implies giving effect to an order or judgment of a court
of justice. When the decree-holder gets the thing granted to him by judgment,
decree or order, the execution is complete. 

The proceeding by which the decree-holder moves the court for satisfaction of
decree is called execution proceedings.

Execution is the medium by which a decree holder constrains the judgment-debtor

to do the command of the decree or order as the case may be. It empowers the
decree holder to recover the products of the judgment. The execution is finished
when the judgment-creditor or decree holder gets cash or other thing granted to
him by judgment, decree or order.

The term “execution” has not been defined in the code.  The expression
“execution” simply means the process for enforcing or giving effect to the
judgment of the court.  The principles governing execution of decree and orders
are dealt with in Sections 36 to 74 and Order 21 of the Civil Procedure Code.

 The classification of Order 21 is as follows-

 Applications for execution and the process to be applied.

 Stay of executions.
 Mode of executions.
 Sale of immovable property and movable property.
 Adjudication of the claims and objections.
 Resistance and delivery of possession.

Q.1) Who can make application for execution?

Ans: Application for execution can be made by

 The decree holder himself.

 His legal representative if the decree holder is dead.
 Any person claiming under the decree holder.
 Transferee of Decree holder who has given notice to transferor and
judgement debtor.
  Any one or more of the Decree holders where it is for benefit of all
and no contrary intention is indicated.

Q.2) Against whom the application for execution can be made?

Ans: Execution decree can be made only against the judgement debtor r if he is

alive or against legal representatives of judgement debtor.

Q.3) what are the decrees that may be executed?

 The decree of a court against which no appeal has been made shall be
executed after expiry of the limitation period.
 Where a decree is reversed, modified on appeal, the only decree
capable of the execution is the appellate decree, but exceptionally
where the appellate judgment simply dismisses the appeal. General
rule that the appellate decree alone is to be executed, does not apply
and the court should look at the later decree for the information of its
contents.

MODES OF EXECUTION

Q.4) What are the modes of execution of a decree?

Ans: The code sets down different methods of execution. After the decree holder
files an application for execution of decree, the executing court can implement
execution.

A decree can be enforced by:

 By delivery of any property specifically decreed.

 By attachment and sale or by sale without attachment of the property.
 By arrest and detention.
 By appointing a receiver.
 By effecting partition.
 Any such manner which the nature of relief requires.

Section 51 of C.P.C lays down the court may on the application of decree holder
subject to such conditions and limitation as may be prescribed, the court may on
the application of the decree holder order execution of the decree.

Q.5) How is decree related to payment executed?

Ans:  By going through Order 21 rule 30 of C.P.C, every decree for the payment of
money, including a decree for the payment of money as the alternative to some
other relief, may be executed by detention in the Civil Prison of the judgment
debtor or, by the attachment and sale of his property, or by both.

Q.6) How is decree related to Specific movable property executed?

Ans: According to Order 21 rule 31(1) of C.P.C, when the decree is for any specific
movable property, the execution can take place in any of the following made:
  By seizure and delivery of the property.
 By detention of the judgement debtor.
 By attachment of his properly.
 By attachment and detention both.

Q.7) What powers does the court have regarding the execution of Immovable
Property?

Ans: According to Order 21 rule 35 sub-rule-1 of C.P.C, A court executing a decree

has the power to attach the property and sell the property or portion thereof
which is sufficient to satisfy the decree. After such attachment the first step is
issuing proclamation of sale. Such a proclamation shall be prepared after notice to
both the sides and shall comprise of following details: -

 Time and place of sale.

 Details of property or part thereof to be sold.
 Revenue if any attached to property.
 Encumbrance to which the property is liable.
 Amount to be recovered under the decree.
 Such other particulars which court considers material.

Service of notice is a mandatory requirement and non-compliance will vitiate the

entire proceedings.

Q.8) How is decree for specific performance for restitution of conjugal rights or
for an injunction executed?

Ans:  According to Order (21) rule (32) of C.P.C, “Where the party against whom a
decree for the specific performance of a contract, or for restitution of conjugal
rights or for an injunction, stay has been passed, has had an opportunity of obeying
the decree and if he has wilfully failed to obey it, the decree may be enforced, in
the case of a decree for restitution of conjugal rights:

 By the attachment of his property, or in the case of a decree for

specific performance of a contract or for an injunction.
 By his detention in Civil Prison.
 By his detention in Civil Prison.
 By the attachment of his property.

STAY OF AN EXECUTION OF A DECREE OR AN ORDER

Q.9) What are the objectives and conditions preceding the stay of an
execution?

Rule 5 of CPC provides for the stay of an execution: Where the suit is pending in
any Court decree-holder and judgment-debtor in such circumstances if the Court is
found the rights of parties are required to be adjudicated by the Court where such
suit is pending and unless the rights are to be determined, the decree cannot be
executed in such circumstances, Court can stay the execution proceeding. Also,
when an appeal has been filed by either of the parties, the appellate court may
order stay of proceedings or stay on an execution of such decree.

The objective is: to protect the interest of both the parties i.e. the decree-holder
and the judgement-debtor. In case the order gets reversed by the appellate court,
the disputed subject matter will stay the same, thus protecting the interest if both
the parties.

The conditions preceding the court’s order regarding the stay on execution of
decree:

1. The application has been made without unreasonable delay.

2. The applicant might suffer from a substantial loss, unless such stay is
applied.
3. Security has been given by the applicant for the due performance of the
decree.

This decree is usually passed when both the parties are heard. However, under
Rule 5(3):  court have a power to make ex-parte orders in case of stay of an
execution.

EXECUTION OF CLAIM AND OJECTIONS

Q.10) When does the court adjudicates upon the claims to and objections with
respect to the property? 

The court adjudicates upon the claims to or objections in respect of attachment of

property in execution of decree. Such objections are raised by judgement debtors
or third parties on the ground that property is not liable to attachment. It is
necessary to observe and adjudicate upon these claims before ordering for the sale
of the property as there would be no claim if the property in dispute is already
sold off.

All questions (including questions relating to right, title or interest in the property
attached) arising between the parties to a proceeding or their representatives
under this rule and relating to adjudication of claim or objection shall be dealt
with by the court dealing with the claim and not by separate suit.

The court satisfy all the claims and objections raised, and further allow the
property to be:

1. Allow the claim or objection and release the property from attachment
either wholly or to such extent as it thinks fit, or
2. Disallow the claim or objection.
3. Continue the attachment subject to any mortgage, charge or other interest
in favour of any person, or
4. Pass such order, as in the circumstances of the case it deems fit.

RESISTENCE TO SALE

Q.11) Remedies provided if there is any resistance to sale.

Ans: Where the holder of a decree for possession of immovable property or
purchaser of any such property sold in execution of decree is resisted or
obstructed by any person in obtaining possession of property, he may make an
application complaining of such resistance or obstruction and the court shall
proceed to adjudicate upon the application in accordance with the provisions of
the Act. The person in possession cannot file application under this rule but can
defend his conduct when application is moved against him. The right to move such
application is conferred on decree holder or judgement purchaser

 
ORDER VI PLEADINGS GENERALLY -
RULE 1, 2, 3, 4, 5, 6 OF CODE OF CIVIL
PROCEDURE 1908
Pleadings form the foundation for any case in the court of law. It is a
statement in writing filed by the counsel of plaintiff stating his contentions on
the case, on the basis of which the defendant shall file the written statement
defending himself and explaining why the plaintiff’s contentions should not
prevail. Sometimes the plaintiff, having filed his plaint, may, with the leave
of the court, file a statement or the court may require him to file a written
statement. In such cases, the written statement forms part of the plaintiff’s
pleadings. Similarly, there are cases in which the defendant having filed his
written statement may, with the leave of the court, file an additional written
statement or the Court may require him to do so. In such cases the
additional written statement also forms part of the defendant’s pleadings.
[1] This is the first stage of a suit. Code of Civil Procedure (CPC) in order 6,
Rule 1 defines pleadings as a written statement or a plaint. The plaintiff’s
written statement and the defendant’s additional written statement are
termed supplemental pleadings.

Pleadings are the statements which are the backbone of every civil suit. No
civil suit will come into existence if there are no Pleadings. Pleadings have
been defined under Order 6 Rule 1 of CPC which states that Pleading shall be
Plaint or Written Statements. Plaint is the statements filed by the Plaintiff in
a Civil Court to prove his claim whereas Written statements are the
statements defined in Order 8 Rule 1 of CPC which states that defendant
should file written statements in 30 days from the date of issuance of the
summons. Written statements are filed by the defendant for his defense.
Plaint has not defined in CPC but it can be termed as pleadings of Plaintiff
from which civil suit is initiate  Pleadings should be properly drafted and it
should not contain any vague or unambiguous statements. Pleadings are
those material facts which helps plaintiff to define the cause of action and
defendant to establish his defense in a civil suit.

https://blog.ipleaders.in/amendment-of-pleadings/

What rules to be followed while drafting of pleadings?

 1. Pleading should contain the facts but no law should be applied in
pleadings. Only the court has the power to apply the law on the
basis of fact stated in the Pleadings. In the case of Gouri Dutt
Ganesh Lal Firm v. Madho Prasad,1 honorable court stated that
Pleadings should be defined in four words – “Plead Facts, not laws”.
2. Pleadings should contain material facts. Parties should avoid using
immaterial or irrelevant facts in the Pleadings. In the case
of Virender Nath v. Satpal Singh2, the court stated that material
facts are those facts which helps Plaintiff to define his cause of
action or defendant to strong his defense.
3. Parties should not give the evidence in the pleadings from which
facts are proved.
4. Pleadings should contain the material facts in the brief form. Parties
should avoid using irrelevant or immaterial statements while
drafting the Plaint.

Pleading, Pleading to state material facts and not evidence, Forms of pleading,
Particulars to be given where necessary, Further and better statement, or particulars
and Condition precedent are defined under Rule 1, 2, 3, 4, 5 and 6 of Order VI of
Code of Civil Procedure 1908. Provisions under these Rules are:

Rule 1 Order VI of Code of Civil Procedure 1908 "Pleading"

"Pleading" shall mean plaint or written statement.

Rule 2 Order VI of Code of Civil Procedure 1908 "Pleading to

state material facts and not evidence"

(1) Every pleading shall contain, and contain only a statement in a

concise form of the material facts on which the party pleading relies
for his claim or defence as the case may be, but not the evidence by
which they are to be proved.

(2) Every pleading shall, when necessary, be divided into

paragraphs, numbered consecutively, each allegation being, so far
as is convenient, contained in a separate paragraph.

(3) Dates, sums and numbers shall be expressed in a pleading in

figures as well as in words.

Rule 3 Order VI of Code of Civil Procedure 1908 "Forms of

pleading"
The forms in Appendix A when applicable, and where they are not
applicable forms of the like character, as nearly as may be, shall be
used for all pleadings.

*Rule 3A. Forms of pleading in Commercial Courts

In a commercial dispute, where forms of pleadings have been

prescribed under the High Court Rules or Practice Directions made
for the purposes of such commercial disputes, pleadings shall be in
such forms.

----------------------

* Shall be applicable to commercial disputes of a specified value by

Act 4 of 2016, s. 16 and the Sch. (w.e.f. 23-10-2015).

Rule 4 Order VI of Code of Civil Procedure 1908 "Particulars

to be given where necessary"

In all cases in which the party pleading relies on any

misrepresentation, fraud, breach of trust, willful default, or undue
influence, and in all other cases in which particulars may be
necessary beyond such as are exemplified in the forms aforesaid,
particulars (with dates and items if necessary) shall be stated in the
pleading.

Rule 5 Order VI of Code of Civil Procedure 1908 "Further and

better statement, or particulars"

A further and better statement of the nature of the claim or

defence, or further and better particulars of any matter stated in
any pleading, may in all cases be ordered, upon such terms, as to
costs and otherwise, as may be just.

Rule 6 Order VI of Code of Civil Procedure 1908 "Condition

precedent"
Any condition precedent, the performance or occurrence of which is
intended to be contested, shall be distinctly specified in his pleading
by the plaintiff or defendant, as the case may be; and, subject
thereto, an averment of the performance or occurrence of all
conditions precedent necessary for the case of the plaintiff or
defendant shall be implied in his pleading.
CASE STUDY – CPC

1- Forward Construction Co. & Ors. ... vs Prabhat Mandal (Regd.) Andheri & ... on 26 November,
1985

Supreme Court of India

Forward Construction Co. & Ors. ... vs Prabhat Mandal (Regd.) Andheri & ... on 26
November, 1985
Equivalent citations: 1986 AIR 391, 1985 SCR Supl. (3) 766
Author: R Misra
Bench: Misra, R.B. (J)

DATE OF JUDGMENT26/11/1985
BENCH: PATHAK, R.S. , REDDY, O. CHINNAPPA (J)

ACT:
Maharashtra Regional Town Planning Act & Building
Regulations - Regulation 3, Proviso - "Change of user"
-Meaning of.
Code of Civil Procedure, 1908, s.11, Explanations IV, VI and
s.91 - Principle of res-judicata - Applicability to public
interest litigation - "Public right" - Meaning of.
Public Interest Litigation - Res-judicata – Principle of
Applicability to such litigation.

Words & Phrases - "Change" and "Public right" – Meaning of -

S.11, Civil Procedure Code, 1908.

HEADNOTE:
Under the development plan for Bombay a plot of land
was reserved for a bus depot of the Bombay
Electricity Supply & Transport Undertaking. The BEST
Committee passed a Resolution on 18th January, 1982 approving
a proposal under which a part of the plot was to be used for
construction of two buildings that will augment the
income of the Corporation which could be used for
the purpose of construction of staff quarters. Under
the proposal the BEST would, on the one hand get a cash
amount of Rs.99.0 lacs in the forms of non-refundable
premium from the builder in addition to the regular
income from the tenants of the two buildings and on the other
hand it would not be required to make any capital expenditure
for the construction of the project. Thereafter, an
advertisement came to be published in newspapers inviting
offers from the interested parties to
develop the property. In addition to the said advertisement,
notices were also forwarded to 22 well-known builders out of
whom 12 builders purchased the tender forms. Pursuant to the
advertisement and the notices, two tenders were received out
of which one was sent by respondent 7, Forward Construction
Company and another by Deep Construction. The
tender of respondent 7 being higher than that of Deep
Construction,
was accepted by the BEST Committee on 31st March 1982.
One Mr. Thakkar filed writ petition before the Bombay
High Court challenging the right of the BEST to use the land
for a purpose different from the one for which it had been
reserved and designated under the development plan as
well as the town
planning scheme on the ground that it had no right to use it
for commercial purpose. The right of the BEST to enter
into
a contract with the builder was also challenged.

A single Judge dismissed the petition holding:

(1) that the

substantial portion of the acquired plot was being utilised
for a purpose for which it was acquired and the commercial
use to which the small portion was being put
would substantially augment the coffers of the Corporation
for the benefit of the public at large;

(2) that the value charged

by the BEST for allowing use of its property was not grossly
inadequate and that sufficient publicity was given
before
inviting offers; and after having rejected the various pleas
taken by the petitioner in the case, he observed that the
petitioner was not an independent-minded citizen
solely
inspired by the laudable motive of protecting public
interest and that the allegations in the petition indicated
that he had been set up by a disgruntled
builder who
purchased the tender document but did not give an offer. The
matter was taken up in appeal but the Division
Bench
dismissed the same after hearing all the parties.

After the dismissal of the aforesaid

appeal, respondents Nos. 1 to 6 in civil appeal no.
2311, filed a similar petition under Article 226 of the
Constitution. The
writ petition was summarily dismissed by a Single Judge.
However, the appeal filed by the respondents was allowed by
a Division Bench which issued a writ of mandamus
directing
appellants 1 to 4 in civil appeal No. 2311, not to use the
plot reserved for BEST bus depot for commercial
purpose or
for any purpose other than the purpose for which
the said
plot of land was reserved.

The plea of res judicata was

rejected for two reasons, namely (1) that in the
earlier
writ petition the validity of the permission granted under
Rule 4(a)(i) of the Development Control Rules was not in
issue; and (2) that the earlier writ petition filed
by
Thakkar was not a bona fide one insomuch as he was put up by
some disgruntled builder. The appellant's review
petition
also failed.
Allowing the appeals and dismissing the special
leave
petition,
^
HELD: 1(i) The High Court was not justified in allowing
the writ petition only on the basis of the
proviso to
Building Regulation No.3. The proviso to Building Regulation
No.3 requires that the change of user of the sanctioned plan
can be made only after the modification of the
development
plan. The key word in this regulation is 'change'. The
general meaning of the word
768
'change' is to make or become different, to
transform or
cover. If the user was to be completely or substantially
changed only then the prior modification of the development
plan was necessary.
In the instant case, the user of the plot has not been
changed. It has been used for a bus depot combined
with a
commercial use to augment the income of the Corporation
for
public purpose. In this view of the connotation of the
word
'change' the proviso has no application to the present case.
[784 D; 785 A-C]
1(ii) It cannot be said that the plot has been used for
a different purpose from the one for which it had been
acquired. All that can be said is that a part of the plot is
being used for constructing two buildings which
would
augment the income of Bombay Municipal Corporation that
could be utilised for the public purpose. The plot is being
substantially used for the purpose for which it had been
acquired. The additional use of the property will not make
the use of the property for altogether a different
purpose.
The purpose for which the plot was earmarked remains intact,
that is, for the construction of a bus depot. The other
public interest sought to be achieved by the construction of
the two buildings in addition to the bus depot is
equally
important. [781 D-E; G]
2(i) Explanation IV to s.11 C.P.C. provides that any
matter which might and ought to have been made
ground of
defence or attack in such former suit shall be deemed
to
have been a matter directly and substantially in issue in
such suit. An adjudication is conclusive and final not only
as to the actual matter determined but as to every other
matter which the parties might and ought to have litigated
and have had it decided as incidential to or essentially
connected with the subject matter of the litigation
and
every matter coming within the legitimate purview of the
original action both in respect of the matters of claim
or
defence. The principle underlying Explanation IV is that
where the parties have had an opportunity of controverting a
matter that should be taken to be the same thing as if the
matter had been actually controverted and decided. It is
true that where a matter has been constructively in issue,
it cannot be said to have been actually heard and decided.
It could only be deemed to have been heard and decided. The
High Court was therefore not right in holding that the
earlier judgment would not operate as res-judicata as one of
the ground taken in the present petition was conspicuous by
its absence in the earlier petition. [779 E-G]
769
2(ii) It is only when the conditions of Explanation VI
to s.11 are satisfied that a decision in the litigation will
bind all persons interested in the right litigated and the
onus of proving the want of bona fides in respect of
the
previous litigation is on the party seeking to avoid the
decision. The words "public right" have been added in
Explanation VI in view of the new s.91 C.P.C. and to prevent
multiplicity of litigation in respect of public right.
[780
C]
2(iii) It cannot be disputed that s.11 applies
to
public interest litigation as well in view of Explanation VI
but it must be proved that the previous litigation
was the
public interest litigation not by way of a
private
grievance. It has to be a bona fide litigation in respect of
a right which is common and is agitated in common with
others. [780 C-D]
In the instant case, the High Court in the earlier writ
petition had recorded a finding that it was not a bona fide
litigation and that the petitioner in that case had been put
up by a disgruntled builder. Therefore, this
finding,
excludes the application of s.11 C.P.C. [780 E]
3. Public interest law activities at times champion one
public interest which clashes with another public
interest
thus benefiting one segment of public at another's expense.
In the instant case, the avowed function of
the
Corporation is the improvement of Greater Bombay. The
plot
in question admittedly lies in a commercial zone and if any
facilities are given to the people of that
locality
providing for commercial offices those facilities would go
towards the improvement of Bombay. It cannot, therefore, be
said that the transaction was outside the Bombay Corporation
Act. [781 F; 782 C-D]
4. If commercial activities are to be pin-pointed in a
commercial zone and for that purpose the Municipal
Corporation takes a step to provide accommodation
for
commercial purposes it cannot be said that the
property of
the Corporation was being acquired or held for
purposes
other than the purposes of the Act. [783 B]
Collins English Dictionary and Oxford
Dictionary
referred to.
 2- Salem Advocate Bar Association v UOI

Supreme Court of India

Salem Advocate Bar ... vs Union Of India on 2 August, 2005
Author: Y Sabharwal
Bench: Y.K.Sabharwal, D.M.Dharmadikhari, Tarun Chatterjee

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 legislature in 1999 and 2002

came up with amendments to
the Civil Procedure Code, changing
the nature of the statute.
These amendments provided for
reforms which if uniformly
implemented could further the aim of
justice as envisaged by our
Constitution makers. However, the
practicability of the
amendments was questioned and a
report for the same was
drafted. This report was challenged
in the Supreme Court of India,
in the case of Salem Advocates Bar
Association v. Union of India.
The court affirmed the amendments
and upheld the report. The
decision was appreciated by both
academicians and scholars.
However, despite the judgment
bringing a change in civil litigation
in India, it also suffered from certain
flaws. Therefore, this paper
aims to analyze the said judgment,
focusing on both the pros and
cons. The paper will also throw light
on where the court went
wrong and the loopholes in the
judgment. It will also make a case
for the judgment, and highlight the
commendable aspects of the
judgment.
Case Analysis:
Name of the Case: - Salem Advocate
Bar Association, Tamil Nadu
v. Union of India1
Provisions Involved:-
• Section 26(2) of the Civil
Procedure Code
• Rule 15(4) and Order VI read
with Rule 15 of the Civil
Procedure Code
• Order XVIII, Rule 4 of the Civil
Procedure Code
• Order VIII, Rule 1 of the Civil
Procedure Code
• Order VI, Rule 17 of the Civil
Procedure Code
• Section 35 of the Civil Procedure
Code
The legislature in 1999 and 2002
came up with amendments to
the Civil Procedure Code, changing
the nature of the statute.
These amendments provided for
reforms which if uniformly
implemented could further the aim of
justice as envisaged by our
Constitution makers. However, the
practicability of the
amendments was questioned and a
report for the same was
drafted. This report was challenged
in the Supreme Court of India,
in the case of Salem Advocates Bar
Association v. Union of India.
The court affirmed the amendments
and upheld the report. The
decision was appreciated by both
academicians and scholars.
However, despite the judgment
bringing a change in civil litigation
in India, it also suffered from certain
flaws. Therefore, this paper
aims to analyze the said judgment,
focusing on both the pros and
cons. The paper will also throw light
on where the court went
wrong and the loopholes in the
judgment. It will also make a case
for the judgment, and highlight the
commendable aspects of the
judgment.
Case Analysis:
Name of the Case: - Salem Advocate
Bar Association, Tamil Nadu
v. Union of India1
Provisions Involved:-
• Section 26(2) of the Civil
Procedure Code
• Rule 15(4) and Order VI read
with Rule 15 of the Civil
Procedure Code
• Order XVIII, Rule 4 of the Civil
Procedure Code
• Order VIII, Rule 1 of the Civil
Procedure Code
• Order VI, Rule 17 of the Civil
Procedure Code
• Section 35 of the Civil Procedure
Code
The legislature in 1999 and 2002
came up with amendments to
the Civil Procedure Code, changing
the nature of the statute.
These amendments provided for
reforms which if uniformly
implemented could further the aim of
justice as envisaged by our
Constitution makers. However, the
practicability of the
amendments was questioned and a
report for the same was
drafted. This report was challenged
in the Supreme Court of India,
in the case of Salem Advocates Bar
Association v. Union of India.
The court affirmed the amendments
and upheld the report. The
decision was appreciated by both
academicians and scholars.
However, despite the judgment
bringing a change in civil litigation
in India, it also suffered from certain
flaws. Therefore, this paper
aims to analyze the said judgment,
focusing on both the pros and
cons. The paper will also throw light
on where the court went
wrong and the loopholes in the
judgment. It will also make a case
for the judgment, and highlight the
commendable aspects of the
judgment.
Case Analysis:
Name of the Case: - Salem Advocate
Bar Association, Tamil Nadu
v. Union of India1
Provisions Involved:-
• Section 26(2) of the Civil
Procedure Code
• Rule 15(4) and Order VI read
with Rule 15 of the Civil
Procedure Code
• Order XVIII, Rule 4 of the Civil
Procedure Code
• Order VIII, Rule 1 of the Civil
Procedure Code
• Order VI, Rule 17 of the Civil
Procedure Code
• Section 35 of the Civil Procedure
Code
The legislature in 1999 and 2002 came up with amendments to the Civil Procedure Code,
changing the nature of the statute. These amendments provided for reforms which if
uniformly implemented could further the aim of justice as envisaged by our Constitution
makers. However, the practicability of the amendments was questioned and a report for
the same was drafted. This report was challenged in the Supreme Court of India, in the
case of Salem Advocates Bar Association v. Union of India. The court affirmed the
amendments and upheld the report. The decision was appreciated by both academicians
and scholars. However, despite the judgment bringing a change in civil litigation in India,
it also suffered from certain flaws. Therefore, this paper aims to analyze the said
judgment, focusing on both the pros and cons. The paper will also throw light on where
the court went wrong and the loopholes in the judgment. It will also make a case for the
judgment, and highlight the commendable aspects of the judgment.

Case Analysis:

Name of the Case: - Salem Advocate Bar Association, Tamil Nadu v. Union of India
Provisions Involved:-

• Section 26(2) of the Civil Procedure Code

• Rule 15(4) and Order VI read with Rule 15 of the Civil Procedure Code

• Order XVIII, Rule 4 of the Civil Procedure Code

• Order VIII, Rule 1 of the Civil Procedure Code

• Order VI, Rule 17 of the Civil Procedure Code

• Section 35 of the Civil Procedure Code

• Section 80 of the Civil Procedure Code

• Section 148 of the Civil Procedure Code

• Section 89 of the Civil Procedure Code

Brief Facts-

I. A committee was formed to ensure that the 1999 and 2002 Amendments to the
Civil Procedure Code are effectively implemented and result in quicker
dispense of justice.

II. The report was submitted in three parts, (a) Consideration of various
grievances (b) Draft Rules for ADR and mediation (c) Case management
conferences

III. The validity of this report and the amendments was challenged before the
Court, in the matter.

Main Issue-

I. Whether the 1999 and 2002 Amendments to the Civil Procedure Code were
constitutionally valid?

Arguments/ Pleadings

The case in depth discussed the report put forward. The report was classified into three
parts, each one of them was discussed in great lengths.

Report One-

• The Report discussed Section 26(2) and Rule 15(4) to Order VI, wherein it was
contended that filing of an affidavit is illegal and unnecessary as there exists a
requirement of filing verification.
• Another contention by the parties was that there is a conflict between Order XVIII,
Rule 5(a) and (b) and Order XVIII, Rule 4. The conflict here, was that Order XVIII, Rule
5 provides for recording of evidence by the Court itself in appealable cases. However,
Rule 4 and 19 of the same order enable the commissioner to record the statements in any
case, notwithstanding any situation. Therefore, it appeared as if the latter provision
overrode the former.

• The report also discussed an ambiguity that existed in Order VIII, Rule 1 of the Civil
Procedure Code, with respect to time limit for filing of plaint.

• The report dealt with a very niche area in Court proceedings i.e. service of summons
through courier. It was contended that the courier’s report about the defendant’s refusal to
accept service is likely to lead to serious malpractice

• The parties also raised a contention with respect to the costs in a suit. It was contended
that unscrupulous parties take advantage of the fact that either there is no awarding of
costs by the Court or nominal costs are awarded on the unsuccessful parties. It was
submitted that only costs which are reasonably incurred by successful parties should be
granted.

• Section 80 of the Civil Procedure Code, was also brought into discussion wherein it
was contended that prior notice should be served to the government before filing of a suit
unless the matter is urgent and in need of an interim order.

• Section 148 of the Civil Procedure Code, was also mentioned wherein the power of
Court to enlarge time was discussed. Reliance was placed on the case of Mahanth
RamDas v. Ganga Das,2 and it was submitted that extension should be provided if the
act could not be provided within 30 days for reasons beyond the control of the party but
not for acts where the Limitation Act provides for limits.

Report Two-

• The main contention by the parties in this part of the repor,t was with respect to
Section 89 of the Code i.e. settlement of disputes outside Courts. The said Section
provides the discretion to the Court as to if it deems fit, that certain elements can be
settled between the parties, then the Court shall formulate those terms and send them for
observation by the parties. However, there existed an ambiguity with respect to the
applicability of the Arbitration and Conciliation Act3 and the CPC simultaneously.
Relying on the case of P Anand Gajapathi Raju v. P.V.G. Raju,4 it was contended that if
reference is made to arbitration under Section 89, the Arbitration Act will apply from the
stage after reference and not before. Further, it was also submitted that even if the
arbitration or any other proceeding is not successful, the Court would not be barred to try
the suit afterwards.

Report Three-
This report dealt with introduction of case flow management and model rules. Model high
court rules were provided for, which contained various regulations provided by the
Committee.

Analysis-

Salem Advocate Bar Association v. Union of India, is a landmark judgment of the

Supreme Court of India which has been relied by Courts and tribunals in over 700
judgments. The judgment is in furtherance to the aim of speedy justice and effective
functioning of the judiciary. The judgments amounts to a good law and is unlike the
usual kind, as it does not feature opinions of every judge as is witnessed in most of the
judgments. The judgment has its commendable features but also has certain
shortcomings, all of which are discussed in detail below. The judgment is commendable
for certain aspects which are discussed below-

1. No denial of justice on procedural grounds The judgment allowed for acceptance of

the proposal of adducing evidence at a later stage in trials mostly when certain evidence
not known to the parties earlier emerges. Such an act of the court furthers its aim of
justice instead of denying it on procedural grounds.

2. Deterrence from misuse of Court proceedings The judgment needs to be appreciated

for its stance on serving of summons. The court upheld the contention, that in cases of
summons being served through courier and not being delivered, both the parties have to
sign an undertaking that if such a claim by them is false then they will be charged for
perjury and contempt of court. This step, acts as a deterrent against misleading the Court,
as the parties are aware of the risk and have willingly signed it. Further, the concept of
awarding costs reasonably keeping in mind the position of the parties and the course of
litigation, is commendable in itself as the idea that the losing parties in every
circumstance have to bear the cost, will be negated. It will further lead to no frivolous
claims being raised by any party, as they will be aware that they will be penalized for the
same. The report has also taken into account various unforeseen circumstances that may
come up before a party, providing for various extensions in form of time, so as to prevent
denial of justice merely on procedural rigmaroles.

3. Case Flow Management This judgment has also been revered for its idea of
introduction of case management flow in the Indian judiciary. Case flow management
despite being a nascent concept in India, is of central focus in the administration of
judiciary in countries like the United States of America. Case flow management primarily
includes number of processes, starting from filing of disposition to the dismissal or trial.6
However, the judges keeping in mind the diversity and difference in the administration of
courts in India provided for a modified version of this feature. One such noteworthy
modification was the division of cases in three tracks i.e. track one, two and three. The
basis for such division seems to be the amount of time taken by the judge generally to
decide such cases, keeping in view the subject matter in each case. Further, the judgment
also provides the judges with discretion to categorise the matter accordingly and also
change the track keeping in view the status of the case. Such a modification provides for
speedy disposal of cases and also gives the litigant an assurance of his case status.
Further, it minimises the bureaucracy which the procedural rigmarole brings in with it.
4. Improvisation in Cause List of the Court : A common practice that prevails in the
courts is of listing the cases to be heard in the cause list of the court. However, not even
half of them are heard by the court on the allotted date. This problem is not just restricted
to India as a similar instance occurred in the Court of Hong Kong, where more than a
1000 cases were listed to be heard in a span of 3 days.7 In order to tackle such a
problem, the Court has accepted the proposal that listing of cases should be based on
reasonable estimate time i.e. the number of cases that can be reasonably heard in a day.
Further, another proposal put forward was that every cause list should be first listed
before a senior officer of the court, who shall review it before it is released.

Drawbacks in the Judgment

The judgment despite being one of its kind also suffers from certain flaws. The author has
listed these drawbacks in this part of the paper.

1. Contradictory Stance The judgment at various instances contradicts itself. For

instance, paragraph 4 of the judgment does not consider an affidavit as an evidence for
court purposes; however Order XIX Rules 1 and 2 of the code categorically provide the
contrary. Hence, despite being a one of a kind judgment it suffers from certain
contradictions in itself.

2. Departure from the doctrine of Generalia Specialibus Non Derogant Another flaw
in the judgment is its departure from settled doctrines. One such doctrine is that of
generalia specialibus non derogant. The rule of generalia specialibus non derogant, is a
settled doctrine and provides that in cases where two interpretations of a single law are
present, the Court should let the specific one prevail over the other.8 Order XVIII, Rule 5
of the Code provides for recording of evidence by the Court itself in appealable cases.
However, Rule 4 and 19 of the same order enables the commissioner to record the
statements in any case, notwithstanding any situation. Therefore, the former provision is
more specific in nature, as it deals with appealable cases alone. However, the Court in the
judgment by allowing the commission to record any statement even including appealable
cases has accepted the latter rule, hence overriding a specific interpretation over a more
general one.

3. Special Grounds for appointing Court commissioner not provided The judgment
acknowledges the need to appoint court commissioners for recording evidences, when
certain exceptional and special situations exist. However, the flaw here is that the Court
has not listed what these ground will be, therefore leaving it to the discretion of the
judges.

4. Anomaly between definitions of ‘mediation’ and ‘judicial settlement.’ Another flaw

with the judgment is that it creates an anomaly by mixing up the definitions of
‘mediation’ and ‘judicial settlement’ under Clause (c) and (d) of Section 89(2).9 Clause
(c) of the said Section states provides the Court with the power to refer a matter to a
person who is qualified and deemed to be a Lok Adalat. Further, on similar lines with
respect to compromises in mediation it uses a similar procedure. However, the above
stated view of the Court goes against the settled definition of mediation, wherein a neutral
third party assists the parties in dispute to reach an amicable solution without resorting to
trial.10Contradictorily, the stance of the court in the present case gives it the upper hand.
Further, the procedure for judicial settlement provided by the Court here is also twisted.
Judicial settlement primarily involves adjudication by a judge not assigned officially to
adjudicate on the matter.11 The Court, on the contrary here, provides for a person whose
qualifications and nature is nowhere specified, leaving lacunae again

5. Procedure envisaged goes against the basic premise of Alternative Dispute Resolution
Forum A plain reading of Section 89(1) provides that every judge before framing issues
is required to identify whether there exists any element of settlement which the parties
may accept. This procedure is then followed by the formulation of the term of settlement,
a reference to the parties and final handing over to the dispute resolution mechanism so
chosen. However, the problem this mechanism puts forward is that since, the entire
procedure of settlement is already handled by the Court, there is barely anything left to be
done by the arbitrator, mediator, or the adjudicator. Therefore, it allows for the judge to
step into the shoes of the above named.

Suggestions
• Revision of the deadline for filing
a plaint
The Court accepted the proposal of
the Report, that the judge has
the discretion to accept the plaint
after the expiry of 90 days or
not. The reason for the same was that
there might be certain
factors that might have not let the
plaintiff file the plaint on time.
However, a better suggestion to deal
with the delay of filing a
plaint, was provided by the 253rdLaw
Commission Report, 2015.12
The Commission provided for
acceptance of plaint only till 120
days and a blanket ban after that.
This recommendation of the
law commission seems to be a better
alternative, as four months
is a reasonable time which takes into
account all circumstances
that might arise and lead to a delay in
filing the plaint. In the
past, when the discretion to accept a
plaint or not was left with
the judges it has led to exorbitant
delays in the cases being filed
and reaching the trial.
• Institution of a Compliance
Committee
A major problem that the courts face
today despite having efficient
reforms is that of implementation. A
suggestion to tackle that
front is the constitution of a
Compliance Committee, which
checks
the implementation of the said
guidelines and ensures
Suggestions

• Revision of the deadline for filing a plaint The Court accepted the proposal of the
Report, that the judge has the discretion to accept the plaint after the expiry of 90 days or
not. The reason for the same was that there might be certain factors that might have not
let the plaintiff file the plaint on time. However, a better suggestion to deal with the delay
of filing a plaint, was provided by the 253rdLaw Commission Report, 2015.12 The
Commission provided for acceptance of plaint only till 120 days and a blanket ban after
that. This recommendation of the law commission seems to be a better alternative, as four
months is a reasonable time which takes into account all circumstances that might arise
and lead to a delay in filing the plaint. In the past, when the discretion to accept a plaint or
not was left with the judges it has led to exorbitant delays in the cases being filed and
reaching the trial.

• Institution of a Compliance Committee A major problem that the courts face today
despite having efficient reforms is that of implementation. A suggestion to tackle that
front is the constitution of a Compliance Committee, which checks the implementation of
the said guidelines and ensures compliance. Such a committee can be headed by the Chief
Judge of the Court. Such a committee will have a two-fold effect. First, it will ensure
that cases are being handled efficiently and being disposed off speedily and second since
the Chief Judge of the Court will be heading it, the working of the committee will be
effective and adherence to its commands will follow too.