Holding

The amendments to the CPC are constitutionally valid, the affidavit under Section 26(2) is not evidence at trial, Order XVIII Rule 4 is valid and may be exercised with discretion, Commissioners cannot declare witnesses hostile without court order, deletion of Order XVIII Rule 17‑A does not preclude later evidence, the 90‑day limit for written statements is directory, adjournment limits are flexible in exceptional cases, and the Court endorsed the Committee’s ADR, mediation and case‑flow management recommendations.

Summary

The Supreme Court examined the constitutional validity and practical effect of numerous amendments to the Code of Civil Procedure (CPC) made by the 1999 and 2002 Amendment Acts. It held that the requirement of filing an affidavit under Section 26(2) and Order VI Rule 15(4) imposes additional responsibility on deponents but does not make the affidavit evidence at trial, and fresh affidavits are required on amendment of pleadings. The Court upheld the validity of Order XVIII Rule 4 allowing examination‑in‑chief on affidavit and cross‑examination before a Commissioner, while emphasizing that the Court may still record evidence in open court where necessary. It clarified that the power to appoint Commissioners extends to appealable cases, that Commissioners cannot declare witnesses hostile without court permission under Section 154 of the Evidence Act, and that deletion of Order XVIII Rule 17‑A does not bar later production of evidence. The judgment also addressed procedural issues such as the directory nature of the 90‑day limit for filing written statements, the limited but flexible rule on adjournments, service of summons by courier, and the scope of Sections 39, 64, 148, 115, 80 and cost provisions. Finally, the Court endorsed the Committee’s recommendations on Alternate Dispute Resolution, model ADR and mediation rules, case‑flow management, and judicial impact assessment, directing the Central Government to report on implementation within four months.

Issues considered

The constitutionality of the amendments to the CPC introduced by the 1999 and 2002 Amendment Acts
Whether the affidavit required under Section 26(2) and Order VI Rule 15(4) is evidence at trial
The validity and scope of Order XVIII Rule 4 permitting examination‑in‑chief on affidavit and cross‑examination before a Commissioner
The power of the Court to appoint a Commissioner in appealable cases and the effect of Order XVIII Rule 19 and Order XXVI Rule 4‑A
Whether a Commissioner can declare a witness hostile without court permission under Section 154 of the Evidence Act
The impact of deleting Order XVIII Rule 17‑A on the production of additional evidence
The mandatory or directory nature of Order VIII Rule 1’s 90‑day limit for filing a written statement
The permissible number of adjournments and the discretion to extend time beyond the statutory limits
The validity of service of summons by courier under Order V Rule 9 and related safeguards
The interpretation of Sections 39(4), 64(2), 148, 115, 80 and cost provisions (Sections 35, 35A, 35B, 95)
The applicability and implementation of Section 89 ADR provisions and the need for model ADR and mediation rules
The role of the Committee’s recommendations on case‑flow management and judicial impact assessment

Legislation cited

Arbitration and Conciliation Act, 1996
Code of Civil Procedure, 1908s. 115, s. 148, s. 17‑A, s. 17 Rule 1, s. 17 Rule 19, s. 17 Rule 2, s. 17 Rule 5, s. 18 Rule 4, s. 21 Rule 3, s. 21 Rule 48, s. 26(2), s. 26 Rule 4‑A, s. 35, s. 35A, s. 35B, s. 39(4), s. 5 Rule 9, s. 5 Rule 9A, s. 64(2), s. 6 Rule 17, s. 80, s. 8 Rule 1, s. 8 Rule 10, s. 95
Constitution of Indias. Article 21, s. Article 226, s. Article 227, s. Article 247
Indian Evidence Act, 1872s. 154
Legal Services Authority Act, 1987
Limitation Act, 1963

Subjects

CPC amendmentsSection 26 affidavitOrder XVIII Rule 4Commissioner for evidenceHostile witnessSection 154 Evidence ActOrder XVIII Rule 17‑AWritten statement deadlineAdjournment limitsService of summons by courierSection 39 execution of decreeSection 64 registration of saleSection 148 time extensionSection 115 revision jurisdictionSection 80 government noticeCost provisions Sections 35‑95Section 89 Alternate Dispute ResolutionArbitrationConciliationMediationLok AdalatCase‑flow managementJudicial impact assessmentConstitutional validity

Judgment

SALEM ADVOCATE BAR ASSOCIATION, TAMIL NADU A
v.
UNION OF INDIA

AUGUST 2, 2005

[Y.K. SABHARWAL, D.M. DHARMADHIKARI AND B
TARUN CHATTERJEE, JJ.]

Code of Civil Procedure, I 908:

Section 26(2) and Order 6 Rules I 5(4) and 17-Pleadings-Affidavit in C
support of-Effect of-Held: Has the effect offixing additional responsibility
on the deponent as to the truth of the facts stated in the pleadings-However,
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 D
Order 18 Rule 4(1) and proviso (as amended by Act 22 of 2002 w.ej
1. 7.2002)-Examination-in-chief-To be on affidavit in every case-Validity
of-Held: Requirement is valid-In the light of 0.18 R. 4(1) proviso, there is
no question of inadmissible documents being read into evidence-Further, in
appropriate cases the trial Court can permit the examination-in-chief to be E
recorded in open Court.

Order 18 Rule 4(2) and proviso (as amended by Act 22 of 2002 w.ej
1. 7.2002) and Order 26 Rule 4-A (as inserted by Act 46 of 1999 w.ej
1. 7.2002)-Witnesses-Cross-examination or re-examination of-By the
Commissioner-Additional burden on the litigant~Validity-Held: The power F
is valid-However, in complex cases prayer for recording of evidence by the
Commissioner may be declined by the Court-The fee payable to the
Commissioner is likely to be less than the expenditure incurred towards
attending Court on various dates and, thus, there would be no additional
burden on the litigant. G
Order 18 Rule 4 (as amended by Act 22 of 2002 w.e.f 1.7.2002)-
Recording ofevidence-By Commissioner-Original documents-Safe custody
of-Held: Duties of Commissioner laid down-Jn this regard, High Courts
).
directed to frame necessary rules, regulations or issue practice directions.
929 II
930 SUPREME COURT REPORTS [2005) SUPP. 1 S.C.R.

A Order 18 .Rule 4(4)-Recording of evidence-By Commissioner-
Demeanour of witnesses-Benefit of watching of-Held: Although the Court
is deprived of the benefit of watching the demeanour of the witnesses yet the
Court would have the benefit of the Commissioner's observations in this
regard-Hence, power of the Commissioner to record evidence valid

B Order 18 Rule 4-Recording of evidence-By Commissioner-
Empanelling of advocates for-On the basis of tests in the subjects of CPC
and Evidence Act-Validity-Held: It is a good practice-However, High
Courts to examine this aspect and decide to adopt or not such a procedure.

Order I 8 Rule 4-Recording ofevidence-By Commissioner-Appelable
C cases-Power to appoint Commissioner-Held: In view of the overriding effect
of 0. 18 R. 19. fas inserted by Amendment Act 46 of 1999) the Court is
empowered to appoint a Commissioner in appealable case as well.

Order 18 Rule 4-Recording of evidence-By Commissioner-Hostile
D witness-Power of Commissioner to declare-Heid: The discretion to declare
a witness hostile has not been conferred on the Commissioner-Such a power
can be exercised by the Commissioner after obtaining permission from the
Court under S. 154 of the Evidence Act-Evidence Act, 1872, S. 154.

Order 18 Rule 17-A-Deletion of-By Amendment Act 46of1999 w.ef
E 1. 7.2002-Ejfect of-Production of evidence at a later stage-Held: Even
before insertion of 0. 18 R. 17-A, the Court had inherent power under S. 151
to permit parties to produce evidence not known to them earlier or which
could not be produced in spite of due diligence-Therefore, deletion of 0. 18
R. 17-A does not disentitle production of evidence at a later stage.

F Order 8 Rule I and proviso--Written statement-Upper limit for filing
of-Maximum period of 90 days-Extension of-Permissibility-Held: The
provision is directory-Court is empowered to grant further time after expiry
of 90 days in accordance with 0. 8 R. JO-However, such extension of time
should be granted only in exceptionally hard cases and not in a routine
G manner.

Order 6 Rule 17 proviso--Amendment of pleadings-"At any stage"-
Power of Court-Curtailment of-Held: The provision to some extent curtails
absolute discretion to allow amendment at any stage-if amendment is sought
after commencement of trial it has to be shown that in spite of due diligence,
H such amendment could not have been sought earlier-The object is to prevent
SALEM ADV. BAR ASSON., TAMIL NADU v. U.0.1. 931
.,,.:·--~

frivolous application which are filed to delay the trial-There is no illegality A
in the provision.

Order 5 Rules 9(3) and 9-A-Service of summons-Through courier-
Validity-Held: Provision valid and permissible-However, there is a danger
offalse reports ofservice-High Courts directed to issue expeditiously requisite
guidelines to the trial Courts by framing appropriate rules, order, regulations B
or practice directions.

Order 17 Rule I (2)-Costs of adjournment-Mandat01y or directory-
Held: Awarding of costs is mandatory-However, the same should be realistic
and as far as possible actual cost incurred by the other party should be C
awarded where the adjournment is found to be avoidable.

Order I 7 Rule 1(1) proviso-Number of adjournments-Upper limit of
three adjournments-Validity of-Held: 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-In some D
extreme cases (natural calamities or hospitalization) adjournments beyond
three may be granted-Ultimately, it would depend upon the facts and
circumstances of each case-However, grant of adjournment is not a right of
a party-The grant of adjournment by a Court has to be on the party showing
special and extraordinary circumstances-It cannot be in routine-While
granting adjournment legislative intent to restrict number of adjournments to E
be kept in mind

Order 18 Rule 2(4)-Deletion of-By Amendment Act 46of1999 w.ej
I. 7.2002-Effect-Power of Court to call for any witness at any stage-Held:
Is not affected bv the deletion-Court has inherent power to call any witness
at any stage suo moto or on the prayer of a party. F
Order 18 rule 2(3-A) to (3-D)-Written and oral arguments-Time limit-
Fixing of-Held: Is fixed to save time of Court-The object is to help in
administering fair. and speedy justice. ·

Order 7 Rule 14-Production of documents-"Plaintiffs witnesses"- G
Held: The words "plaintiff's witnesses" have been mentioned as a result of,
mistake committed by the legislature-The words ought to be "defendant's
witnesses "-Till the mistake is corrected by the legislature, the words
"plaintiffs witnesses" would be read as "defendant's witnesses".
H
932 SUPREME COURT REPORTS [2005] SUPP. 1 S.C.R.

A Order 9 Rule 5-Dismissal of suit after summons returned unserved-
Plaintiff to apply for fresh summons within seven days-Mandatory or
directory-Held: The period of seven days is clearly directory.

Order 11 Rule 15-Jnspection ofdocuments- "At or before the settlement
of issues "-Held: This stipulation is directory-It does not mean that the
B inspection cannot be allowed after the settlement of issues.

Section 39(4) Order 21 Rules 3 and 48-Transfer of decree-Power of
Court to execute decree outside its jurisdiction-Held: S. 39(4) does not dilute
the provisions of 0. 21 Rules 3 and 48, which allow such execution of decree
C subject to fulfilment of conditions mentioned therein.

Section 64(2)-Private transfer of property-After attachment-
Prohibition-Scope and validity of-Held: There is no ambiguity in S. 64(2).

Sections 35, 35-A, 35-B and 95--Costs-Held: When Section 35(2)
D 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 therefor-The costs have to be actual reasonable costs like (i) cost of
time spent by the successful party; (ii) incidental cost, if any; (iii) payment of
Court fee; (iv) lawyer's fee; and (v) typing and other costs if! relation to the
E litigation-,.-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-Notice-Two months' period under~bject of-Held: Notice
period of two months is provided for the Government to send a suitable
F reply-The object is to curtail delay-The practice of Government Officers
giving evasive and vague replies deprecated-All concerned Governments,
Central or. State or other authorities directed to nominate, within three months,
an Officer who should be made responsible to ensure that replies are sent
within the period stipulated after due application of mind-Despite such
G nomination, in case offailure to send proper replies, Court should 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 (as amended by Act 46of1999 w.e.f 1. 7.2002)-Effect of-
Power of revision-Held: The power of High Court under Arts. 226 and 227
H remains untrammeled by the amendment in S. 115 and is available to be
SALEM ADV. BAR ASSON., TAMIL NADUv. U.0.1. 933
,,,_.,, exercised subject to rules ofself-discipline and practice which are well settled A
Section 148-(as amended by Act 46 of 1999 w.e.f 1.7.2002)-
Enlargement of time-Upper limit of 30 days-Effect of-Held: Extension of
time beyond 30 days can be permitted where sufficient cause exists or events
are beyond the control of the party-However, S. 148 does not apply to cases
to which Limitation Act is applicable-Limitation Act, 1963. B
Section 89 and Order JO Rule 1-A (as amended by Act 46of1999 w.ej
1. 7.2002)-Alternative Dispute Resolution (ADR)-Held: If there exists an
element of a settlement which may be acceptable to the parties, they should
be made to apply their minds so as to opt for one or the other of the four ADR C
methods mentioned in S. 89.

Section 89 and Order 10 Rules 1-A to 1-C-Resolution of disputes by
Lok Ada/at-Applicability ofADR Rules-Held: Rules framed under Part X of
CPC are applicable and not the Rules framed under the Arbitration and
Conciliation Act, 1996 or the Legal Services Authority Act, 1987-High Courts D
directed to examine Draft Civil Procedure ADR and Mediation Rules and
finalise the 'same expeditiously-The Registrar Generals, the Central
Government and the State/Union Territories shall file the progress reports in
regard to the action taken within a period of four months-Legal Services
Authority Act, 1987.
E
Section 89(2)(a) {inserted by Act 46of1999 w.ej 1. 7.2002)--Settlement
of disputes outside the Court-Arbitration and Conciliation Act, 1996-
Applicability of-To disputes referred to under S. 89(2)(a)-Held: Is applicable
only after the stage of reference to arbitration or conciliation and not before
the stage of reference-.lf.rbitration and Conciliation Act, 1996.
F
Section 89(2)(a)-Settlement of disputes outside the Court-Legal
Services Authority Act, 1987-Applicability of-To disputes referred to Lok
Ada/at under S. 89(2)(a)-Held: Is applicable only after the stage ofreference
to Lok Ada/at and not before the stage of reference.

Section 89(2)(d) and Order JO Rule 1-C-Mediation--Compromise G
between the parties-Terms of-Fixation of-Held: If mediation succeeds Court
to effect the compromise and pass a decree in accordance with the terms of
settlement accepted by .the parties~But the Court is not involved in the actual
mediation/conciliation-However, where settlement is not arrived at the
referring Court is not debarred from hearing the matter afresh. H
934 SUPREME COURT REPORTS [2005] SUPP. I S.C.R.

A Section 89(2)-Settlement of disputes outside the Court-Nature of ....---.
proceedings-Held: The four alternatives, namely, arbitration, conciliation,
judicial settlement including settlement through Lok Ada/at and mediation are
meant to be actions ofpersons or institutions outside the Court and not before
the Court.

B Section 89(2)(a) and (d)-Mediation and conciliation-Difference
between-Held: In 'conciliation' there is a little more latitude and conciliator
can suggest some terms of settlements too.

Section 89(2)(a) and (d)-Panel of mediators/conciliators-Ru/es
C regarding-Held: Where parties are unable to reach a consensus on an agreed
name, the Court may make a reference to panel of mediators/conciliators-
High Courts and district Courts directed to take appropriate steps in
preparation of the requisite panels.

Section 89(2)(a) and (d)-Compulsory reference to mediation!
D conciliation-Commission under-Expenditure on-Held: The Central
Government is directed to examine the suggestion that such expenditure be
borne by the Government and, if it is agreed, it should request the Planning
and Financial Commissions to make specific financial allocation for the
judicimy-Jn case Central Government has any reservations, the same should
be placed before Supreme Court within four months.
E
Section 89-ADR rules-Applicability of-To disputes arising under the
Family Courts Act-Held: The Family Court Act applies the CPC for all
proceedings before it and, therefore, ADR rules made under CPC could be
applied to supplement the rules made under the Family Court Act-Family
Court Act, 1984.
F
Section 89-Reference to ADR-Settlement of matter-Refund of Court
fee-Held: State Governments directed to amend the laws on the lines of the
amendment made in the Central Court Fee Act by Act 46 of 1999.

Constitution of India, 1950:
G
Article 247 Schedule VII List I-Courts subordinate to High Court-
Funds for establishment of-Judicial impact assessment-Held: Financial
memorandum to be attached to each bill indicating the budgetary requirement
for meeting the expenses of the additional cases that may arise out of the new
H bill if it is passed by the legislature-Central Government directed to examine
SALEM ADV. BAR ASSON., TAMIL NADU v. U.0.1. 935
the above suggestion and submit a report to Supreme Court within four months. A
Article 21-Fair, speedy and inexpensive justice-Right to-Model Case
Flow Management Rules-Adoption of-Held: High Courts directed to examine
the said Rules and consider the question of adopting the said Rules with or
without modification-The Registrar Generals, the Central Government and
the State/Union Territories shall file the progress reports in regard to the B
action taken within a period of four months.

Words & Phrases:

"Conciliation" and "mediation"-Meaning of-Jn the context ofSection
89(J)(b) and (d) of the Code of Civil Procedure, 1908. C
The challenge made to the constitutional validity Of amendments
ma.de to the Code of Civil Procedure, 1908 by Amendment Acts of 1999
and 2002 was rejected by this Court in Salem Advocates Bar Association,
TN. v. Union of India, (2003) 1 sec 49, but it was noticed in that judgment D
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 might have to be operated. For this
purpose, a Committee 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 might consider devising a model case E
management formula as well as rules and regulations whieh should be
followed while taking recourse to the Alternate Dispute Resolution referred
to in Section 89.

Disposing of the petition, the Court
F
HELD: 1. The affidavit required to be filed under the amended
Section 26(2) and Order VI Rule 15(4) of the Code of Civil Procedure,
1908 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. G
Further, on amendment of the pleadings, a fresh affidavit shall have to
be filed in consonance thereof. (951-E]

2.1. The Court has already been vested with the 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 H
936. SUPREME COURT REPORTS [2005] SUPP. l S.C.R.

A 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-
exainination can be before a Commissioner but 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 had been examined
B 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 the trial Court in appropriate
cases can permit the examination-in-chief to be recorded in the Court. The
C proviso to Order XVIII Rule 4(2) 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
D of the case. It is not necessary to lay down hard and fast rules controlling
the 'discretion of the Court to appoint a 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
E involve complex question of title, complex question in partition or suits
relating to partnership business or suits involving serious allegations of
fraud, forgery, and 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. (951-G-H; 952-A-D]

F Salem Advocates Bar Association, T.N v. Union of India, [2003) I SCC
49, relied on.

2.2. Although when evidence is recorded by the Commissioner, the
Court would be deprived of the benefit of watching the demeanour of
G witnesses yet 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, in some cases, which are complex in nature, the prayer
for recording evidence by the Commissioner may be declined by the Court.
H In any case Order XVIII Rule 4, specifically provided that the
SALEM ADV. BAR ASSON., TAMIL NADU v. U.0.1. 937
...........
Commissioner may record such remarks as it thinks material in respect A
of the demeanour of any witness while under examination. The Court
would have the benefit of the observations if made by the Commissioner.
(952-E, F, G]

3.1. In some States, advocates are being required to pass a test
conducted by the High Court in the subjects of Civil Procedure Code and B
Evidence Act for the purpose of empanelling them on the panels of
Commissioners. It is a good practice. However, it is for the High Courts

..
<
to examine this aspect and decide to adopt or not such a procedure.
(952-H]
c
3.2. Regarding the apprehension that the payment of fee to the
Commissioner will add to the burden of the litigant, generally the expenses
incurred towards the fee payable to the Commissioner is likely to be less
than the expenditure incurred for attending the Courts on various dates
for recording of evidence besides the harassment and inconvenience to
attend the Court again and again for the same purpose and, therefore, in D
reality in most of the cases, there could be no additional burden.
(953-A,·B]

4. Order XVIII Rule 19 which was inserted by the Amendment Act
of 1999 overrides Order XVIII Rule 5 which provides the Court to record
evidence in all appealable cases. The Court is, therefore, empowered to
E
appoint a Commissioner for recording of evidence in appealable cases as
well. (953-E]

5.1. The discretion to declare a witness hostile has not been conferred
on the Commissioner. The powers delegated to the Commissioner under F
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, 1872, to declare
a witness hostile. (954-B)

5.2. If a situation as to declaring a witness hostile arises before a
Commission recording evidence, the concerned party shall have to obtain G
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 the remaining evidence H
938 SUPREME COURT REPORTS [2005] SUPP. I S.C.R.

A or impose heavy costs if it finds that permission was sought to delay the r· ..
progress of the suit or harass the opposite party. [954-C-D)

6. Undoubtedly, the Commissioner 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
B 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 ....
~

c Commissioners can be required to redeposit the documents with the Court
in cases long adjournments are granted and for taking back the documents
before the adjourned date. [954-E, F]

7. Even before insertion of Order XVIII Rule 17-A, the Court had
inbuilt power to permit parties to produce evidence not known to them
D earlier or which could not be produced in spite of due diligence. Order
XVIII Rule 17-A did not create any new rights 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
E
evidence, the Court may permit leading of such evidence at a later stage
on such terms as may appear to be just. [955-A, BJ

Salem Advocates Bar Association, TN. v. Union ofIndia, [2003) 1 SCC
49, relied on.
F
8.1. 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.
The object which is required to be served by this provision and its design -
and context in which it is enacted has to be ascertained. The use of the
word 'shall' is ordinarily indicative of the mandatory nature of the
G provision but having regard to the context in which 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
~ ...
H promotes justice and prevents miscarriage has to be preferred. The rules
SALEM ADV. BAR ASSON., TAMIL NADU v. U.O.I. 939

......... or procedure are handmaid of justice and not its mistress. In the presen~ A
context, the strict interpretation would defeat justice. [959-B-C)

8.2. In construing Order VIII Rule 1, 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 B
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 c
'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 D
. 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,
....
,..._ E
therefore, the provision of Order VIII Rule 1 providing for upper limit
of 90 days to file written statement is directory. 1957-D, G]

8.3. However, it is made clear that the order extending time to file
the 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 F
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.
[957-H; 958-A)

·Raza Buland Sugar Co. Ltd. v. The Municipal Board, AIR (1965) SC
G
895, Sangram Singh v. Election Tribunal, AIR (1955) SC 425 and Topline
Shoes Ltd v. Corporation Bank, [2002) 6 SCC 33, relied on.

9.1. Section 39 of the Code does not authorize the Court to execute
~~ the decree outside its jurisdiction but it does not dilute the other provisions H
'
940 SUPREME COURT REPORTS (2005] SUPP. I S.C.R.

A 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 affected by Section 39(4)
of the Code. (958-F]

9.2. The concept of registration has been introduced in Section 64(2)
B of the Code to prevent false and frivolous cases of contracts being set up
with a view to defeating 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
C ambiguity in Section 64(2). (959-A, BJ

10. The proviso to Order VJ Rule 17, to some extent, curtails absolute
discretion to allow amendment at any stage. Now, if an 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
D is to prevent frivolous applications which are filed to delay the trial. There
is no illegality in the provision. (959-D]

11. The 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
E 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 as provided in Order V Rule 9. There is, however, a
danger of false reports of service. It is required to be adequately guarded.
F 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
G endorsements. Jn 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 the time
and also that the affidavit shall be in the language known to the deponent.
It can also be provided that if the affidavit or any endorsement as to
H service is found to be false, the deponent can be summarily tried and
SALEM ADV. BAR ASSON., TAMIL NADU v. U.0.1. 941
--~
punished for perjury and the courier company can be black-listed. The A
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. [959-G, H; 960-A-D]

12.1. The awarding of cost under Order XVII Rule 1(2) has been
B
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 The provision for costs and higher costs has been made becau~e
of practice having been developed to award only a nominal cost even then
adjournment on payment of costs is granted. Ordinarily, where the costs c
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 avoided 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. D
{960-E; 961-C-D]

12.2. The provisos 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 the number of adjournments to E
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. Fo-r
instance, a party may be suddenly hospitalized on account of some serious F
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 case, it may become necessary to grant
adjournment despite the fact that three adjournments have already been
a.
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. (960-G-H; 961-A-Cl
../ f
942 SUPREME COURT REPORTS [2005] SUPP. I S.C.R.

A 13.1. Further, to save the proviso to Order XVII Rule l from the
''ice of Article 14 of the Constitution it is necessary to read it down so as
not to take away the discretion of the Court in the extreme hard cases as
noted above. The limitation of three adjournments would not apply where
adjournment is to be granted on account of circumstances beyond the
B 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. [961-D, E, F]
c
13.2. However, 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 extraordinary
circumstances. It cannot be in routine. While considering the prayer for
D grant of adjournment, it is necessary to keep in mind the legislative intent
to restrict grant of adjournments. (961-G]

14.l. The omission of Order XVIII Rule 2(4) by the 1999 amendment
docs not take away the 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
E powers of the Court. (962-B)

14.2. The object of filing written arguments or fixing time limit of
oral arguments as laid down in Order XVIII Rule 2 sub-rules (3-A) to (3-
D) is with a view to saving time of the Court. The adherence to the
p requirement of these rules is likely to help in administering fair and speedy
justice. (962-C)

15. In Order VII Rule 14(4) the words 'plaintiffs 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'. Till the
G legislature corrects the mistake, the words 'plaintifPs witnesses' would be
read as 'defendant's witnesses' in Order VII Rule 14(4). [963-BJ

16. Sections 35, 35-A and 95 of the Code deal with three different
aspects of award of cost and compensation. Under Section 95 cost can be
H awarded up to Rs. 50,000 and under Section 35-A, the costs awardable
SALEM ADV. BAR ASSON ., TAMIL NADU v. U.0.1. 943
are up to Rs. 3,000. The award of the cost of the suit is in the discretion A
of the Court. In Sections 35 and 35-B, there is no upper limit of amount
of cost awardable. (963-C, D, EJ

17. Judicial notice can be taken of the fact that many unscrupulous
parties take advantage of the fact that either the costs are not awarded B
or nominal costs are awarded on the unsuccessful party. Unfortunately,
it has become a practice to direct the 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 C
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 therefor. The costs have to be actual reasonable costs
including the cost of the time spent by the successful party, the D
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. [963-G, H; 964-A-B] E
18.1. The two months' period mentioned in Section 80(1) of the Code
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
F
other legislations as well. Wherever the statutory provision requires the
service of notice as a condition precedent for filing of suit and prescribed
period therefor, it is 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 G
raised in the notice. The Gover.nments, 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 a few cases
where reply is sent, it is generally vague and evasive. The result is that H
944 SUPREME COURT REPORTS [2005] SUPP. I S.C.R.

A 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
B 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. (964-D, E, F, G]

18.1. These provisions cast an implied duty on all concerned
C Governments and State and statutory authorities to send appropriate reply
to such notices. Having regnd to the existing state of affairs, it is directed
that 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
D 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. Despites 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
E ordinarily award heavy cost against the Government and direct it to take
appropriate action against the concerned Officer including recovery of
costs from him. (964-H; 965-A-C]

19. The power of the High Court under Articles 226 and 227 of the
Constitution is always in addition to the revisional jurisdiction conferred
F on it. Curtailment of revisional jurisdiction of the High Court under
Section 115 of the Code as amended by Amendment Act 46 of 1999 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
G of self-discipline and practice which are well settled. [966-A, Bl

Surya Dev Rai v. Ram Chander Rai, [2003) 6 SCC 675, relied on.

20.1. The upper limit of 30 days fixed in Section 148 of the Code
H cannot take away the inherent power of the Court to pass orders as may
SALEM ADV. BAR ASSON., TAMIL NADU v. U.0.1. 945
be necessary for the ends of justice or to prevent abuse of process of Court. A
The rigid operation of the Section would lead to absurdity. Section 151
has, therefore, to be allowed to fully operate. Extension beyond the
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.
However, Section 148 does not apply to cases to which the Limitation Act, B
1963 is applicable. (966-D, E)

20.2. 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 C
control of a party, the Court would have inherent power to extend time
beyond 30 days. (967-C)

Mahanth Ram Das v. Ganga Das, AIR (1961) SC 882, relied on.
D
21.1. The period of seven days mentioned in Order IX Rule 5 is
clearly directory. [967-D]

21.2. The stipulation in Rule 15 of Order XI confining the inspection
of documents 'at or before the settlement of issues' instead of 'at any ti.me'
is also nothing but directory. It does not mean that the inspection cannot E
be allowed after the settlement of issues. (967-E]

22.1. 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 F
.Commission must make adequate provisions therefor. [968-F]

22.2. The Committee has also suggested that there must be 'judicial
impact assessment', as done in the United States, whenever any legislation
is introduced either in Parliament or State Legislatures. The financial
memorandum attached to each Bill must estimate not only the budgetary G
requirement of other staff but also the budgetary requirement for meeting
the expenses of the additional cases that 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 H
946 SUPREME COURT REPORTS [2005] SUPP. l S.C.R.

A 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. (968-G, H; 969-A-B]

22.3. Having regard to the constitutional obligation to provide fair,
B quick and speedy justice, the Central Government is directed to examine
the aforesaid suggestions and submit a report to this Court within four
months. (969-C]

23. As can be seen from Section 89 of the Code, its first part uses
the word 'shall' when it stipulates that the 'Court shall formulate terms
C of settlement'. The use of the word 'may' in the 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 an element of a
settlement which may be acceptable to the parties, they, at the inst1,1nce
D of the Court, shall be made to apply their minds so as to opt for one or
the other of the four Alternative Dispute Resolution methods mentioned
in the Section and if the parties do not agree, the Court shall refer them
to one or the other of the said modes. Section 89 uses both the word 'shall'
and 'may' whereas Order X Rule 1-A uses the word 'shall' but on
harmonious reading of these provisions it becomes clear that the use of
E 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 the 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. [971-B-E]
F
24.1. The Arbitration and Conciliation Act, 1996 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 a·s in Section 89
of the Code where the· Coui:t asks the parties to choose one or the other
G ADRs including Arbitration ana the parties choose Arbitration as their
option. Of course, the parties have to agree for Arbitration. Section 82 of
the 1996 Act enables the High Court to make Rules consistent with this
Act as to all proceedings before the Court under the 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 the
H four ADRs is not contemplated by the 1996 Act and, therefore, Sections
SALEM ADV. BAR ASSON., TAMIL NADU v. U.0.1. 947
82 or 84 has no applicability where the parties agree to go for arbitration A
under Section 89 of the Code. For the purposes of Section 89 and Order
X, Rules 1-A, 1-B and 1-C, the relevant Section 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, the 1996 Act would apply only from the
stage after reference and not before the stage of reference when options B
under Section 89 are given by the Court and chosen by the parties. On
the same analogy, the 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 the suit is filed, the Court requires a party
to choose one or the other ADRs including Conciliation. Thus, for
Conciliation also rules can be made under Part X of the Code for the C
purposes of procedure for opting for 'Conciliation' and up to 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 up
to the stage of reference to ADR. The 1996 Act comes into play only after
the stage of reference up to the award. [971-F-H; 972-A-D] D
P. Anand Gajapathi Raju v. P. V.G. Raju, [2000] 4 SCC 539, relied on.

24.2. Applying the same analogy, the Legal Services Authority Act,
1987 or the Rules framed thereunder by the State Govern'ments cannot
act as impediment in the High Court making rules under Part X of the E
Code covering the manner in which the 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 the four ADR
methods mentioned in Section 89. Section 89 makes applicable the 1996
Act and the 1987 Act from the stage after the exercis·e of options and F
making of n:ference. (972-D-E]

25. 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 actions of persons or institutions outside G
the Court and not before the Court. Order X, Rule 1-C speaks of the
'Conciliation forum' referring back the dispute to the Court. In fact, the
Court is not involved in the actual mediation/conciliation. Section 89(2)(d)
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 H
948 . SUPREME COURT REPORT~ (2005] SUPP. I S'.C.R.

A decree in accordance with the terms of settlement accepted by the parties.
Further, 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
B 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. [972-F, G, H; 973-A-B]

26.1. The Central Government is directed to examine the suggestion
that expenditure on compulsory reference to conciliation/mediation be
C borne by the Government and if it is agreed, it shall request the Planning
Commission and the Finance Commission to make specific financial
allocation for the judiciary for including the expenses involved for
mediation/conciliation under Section 89 of the Code. In case, the Central
Government has any reservations, the same shall be placed before this
D Court within four months. [973-D]

26.2. With a view to enabling the Court to refer the parties to
conciliation/mediation, where the parties are unable to reach a consensus
on an agreed name, there should be a panel of well trained conciliat.?rs/
mediators to which it may be possible for the Court to make a reference.
E It would be necessary for the High Courts and district Courts to take
appropriate steps in the direction of preparing the requite panels.
(973-F, G]

27. The Family Courts Act, 1984 applies the Code for all proceedings
F before it. Therefore, 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. [973-H; 974-AJ

28. There is a fine distinction between conciliation and mediation.
Jn 'conciliation' there is a little more latitude and conciliator can suggest
G some terms of settlements too. (974-B)

29. When the parties come to a settlement upon a reference made
by the Court for mediation, as suggested by the Committee there has to
be some public record of the manner in which the suit is disposed of and,
H therefore the Court has to first record the settlement and pass a decree
SALEM ADV. BAR ASSON., TAMIL NADU v. U.0.1. 949
in terms thereof and if necessary proceed to execute it in accordance with A .
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 ifthe parties do not want the Court to record a settlement
and pass a decree and feel that the settlement can be implemented even B
without a decree. In such an eventuality, nothing prevents them from
informing the Court that the suit may be dismissed as the dispute has been
settled between the parties outside the Court. (974-C, DJ

30. Regarding the refimd of the Court fee where the matter is settled
by the reference to one of the modes provided in Section 89 of the Code, C
it is for the State Governments to amend the laws on the lines of the
~- amendment made in the Central Court Fee Act by Act 46 of the 1999
Amendment to the Code. The State Governments can consider making
similar amendments in the State Court Fee legislations. (974-E, F)
D
31.1. The draft ADR and Mediation Rules have been finalised by the
L.. Committee and now it is for the respective High Courts to take appropriate
steps for making rules in exercise of the rule-making power subject to
modifications, if any, which may be considered relevant. [974-F, G]

31.2. The High Courts can examine the Model Case Flow E
Management 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. (995-B)
F
32. It is hoped 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. The Registrar
Generals, the Central Government and the State/Union Territories shall
file the progress reports in regard to the action taken within a period of G
four months. (1014-B, DJ

CIVIL ORIGINAL JURISDICTION : Writ Petition (C) No. 496 of
2002.

(Under Article 32 of the Constitution of India.)
H
950 SUPREME COURT REPORTS [2005] SUPP. I S.C.R.

A WITH ~

W.P. (C) No. 570 of 2002.

K. Parasaran (NP), C.S. Vaidyanathan (NP), Arun Mohan (NP) and
K.V. Viswanathan with them for the Petitioner.
B
T. Raja, for the Petitioner in W.P.(C) No. 496/02.

P.N. Puri, for the Petitioner in W.P.(C) No. 570/02.

Dev Datt Kamat for Attorney General, Shreekant N. Terdal, T.L.V.lyer,
c Ms. Priya Puri and Sanjeev Sachdeva with him for B.C.I.

Mrs. Kiran Suri, Himanshu Buttan and Mali Santosh for Intervenor in
W.P.(C) No. 496/02.

The Judgment of the Court was delivered by
D
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 ofIndia, [2003] 1 SCC 49),.
but it was noticed in the judgment that modalities have to be formulated for
E 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 oflndia (Justice M. Jagannadha Rao)
was constituted so as to ensure that the amendments become effective and
F 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
G
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.

H The report is in three parts. Report 1 contains the consideration of the
-4
-
SALEM ADV. BAR ASSON., TAMIL NADU v. U.0.1. [SABHARWAL, J.] 951

various grievances relating to amendments to the Code and the A
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.
B
First, we will consider Report 1 which deals with the amendments
made to the Code.

Report No.I

Amendment inserting sub-section (2) to Section 26 and Rule 15(4) to Order C
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 D
[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 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 E
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
F
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 G
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 H
952 SUPREME COURT REPORTS [2005] SUPP. I S.C.R.

A 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
B can pennit the examination-in-chief to be recorded in the Court. Proviso to
sub-rule (2) of Rule 4 of Order XVHI 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
C 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 ..
D 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. iln such cases, as far as possible, the court may
prefer to itselfrecord the cross-examination of the material witnesses. Another
contention raised is that when evidence is recorded by the Commissioner, the
E 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 com pie~
F 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
G 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
H High Courts to examine this aspect and~ecide to adopt or not such a procedure.
SALEM ADV. BAR ASSON., TAMIL NADU v. U.0.1. [SABHARWAL, J.] 953

Regarding the apprehension that the payment of fee to the Commissioner will A
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, B
there could be 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 C
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: D/
"Power to get statements recorded on commission-Notwithstanding
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."
E
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 F
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. G

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 H
954 SUPREME COURT REPORTS [2005) SUPP. I S.C.R.

A 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
B 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.

C If a situation as to declaring a witness hostile arises before a Commission
recording evidence, the concerned party shall have to obtain pennission from
the Court under Section 154 of the Evidence Act and it is only after grant of
such pennission 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
D 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
I
E care of the original documents handed over to him either by Court or filed A

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
p 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.

G 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., lst
July, 2002, would stand restored. The Rule was deleted by Amendment Act
H
SALEM ADV. BAR ASSON., TAMIL NADU v. U.0.1. (SABHARWAL, J.] 955

of 2002. Even before insertion of Order XVIII Rule 17-A, the Court had A
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 B
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 I

Order VIII Rule l, as amended by Act 46 of 1999 provides that the C
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. D
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 E
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 F
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 G
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 H
956 SUPREME COURT REPORTS (2005) SUPP. I S.C.R.

. A 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
B 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 .concll.lsion whether a particular proviSion is mandatory or directory~

InS~ngram Singhv: Election Tribunaf1(otah rind Anr., AIR (1955) SC
C. 425, consider.ing 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
D to trip people up. Too technical construction of sections that leaves
no room for.reasonable elasticity of interpretation should 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.

E 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 Jives and property should not continue in their absence and that
they should not be precluded from participating in them. Of course,
F 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 [opline Shoes Ltd. v. Corporation Bank, [2002] 6 .SCC 33, the
G question f6rfonsideratioh was"wliether the State Consumer Disputes Redressal .·
Commissi(m could grant tiine to the respondent to file ~eply beyond total
period of4S 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
H adjournments. It was noticed that no penal consequences had been prescribed
~

SALEM ADV. BAR ASSON., TAMIL NADU v. U.0.1. [SABHARWAL, J.]. 957

- 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
A

achieve the object of speedy disposal of the case.

The use of the word 'shall' in Order VIII Rule I 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 B
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 C
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 D
Rule l 0 which provides that where any party from whom a written statement
is required under Rule l 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 E
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 I and p
Rule I 0, the doctrine of harmonious construction is required to be applied.
The effect would be that under Rule I 0 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 I. There is no
restriction in Order VIII Rule I 0 that after expiry of ninety days, further time
cannot be granted. The Court has wide power to 'make such order in relation G
to the suit as it thinks fit'. C.learly, therefore, the provision of Order VIII Rule
I providing for upper limit of 90 days to file written statement is directory.
Having said so, we 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 H
958 SUPREME COURT REPORTS (2005) SUPP. 1 S.C.R.

A 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

B 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
C 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.
D
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
E 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_
F provisions, such as, Order XXI Rule 3 or Order XXI Rule 48 which provide
differently, would not be effectea by Sect.ion 39(4) of the Code.

Section 64(2)

Section 64(2) in the Code has been inserted by Amendment Act 22 of
G 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
H if made in pursuance of any contract for such transfer or delivery entered into
SALEM ADV. BAR ASSON., TAMIL NADU v. U.0.1. [SABHARWAL, J.] 959
/
and registered before the attachment. The concept of registration has been A
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. B

Order VI Rule I 7

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
c
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 D
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
E
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 normal procedure is F
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
G
borne in mind that problem in respect of service of summons has been one
of the major causes of delay ip 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. H
960 SUPREME COURT REPORTS [2005) SUPP. 1 S.C.R.

A 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.
B 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
C 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.
D
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
E 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 I that more
F 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
I 976 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
G 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
H party despite the party having obtained three adjournments. For instance, a
SALEM ADV. BAR ASSON., TAMIL NADU v. U.0.1. [SABHARWAL, J.] 961

party may be suddenly hospitalized on account of some serious ailment or A
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 I.

In some extreme cases, it may become necessary to grant adjournment B
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 C
been made because of practice having been 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 sh(\!!
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 D
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 I 4 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 E
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. F
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 extraordinary 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. G
Order XVI/J Rule 2

Order XVIII Rule 2(4) which was inserted by Act l 04 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 H
962 SUPREME COURT REPORTS [2005] SUPP. I S.C.R.

A effect of deletion is the restoration of the status quo ante. This means that Jaw
that was prevalent prior to 1976 amendment, would govern. The principles
as noticed hereinbefore in regard to deletion of Order XVIII Rule l 7(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
B 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
C 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

D Order VII Rule 14 deals with production of documents which are the
basis of the suit or the documents in plaintiffs 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:

E "Nothing in this rule shall apply to document produced for the cross
examination of the plaintiffs witnesses, or, handed over to a witness
merely to refresh his memory."

In the aforesaid Rule, it is evident that the words 'plaintiffs witnesses'
have been mentioned as a result of mistake seems to have been committed
F 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 -

G (a) produced for the cross-examination of the plaintiffs witnesses,
or
(b) handed over to a witness merely to refresh his memory."

Order VII relates to the production of documents by the plaintiff whereas
H Order VIII relates to production of documents by the defendant. Under Order
SALEM ADV. BAR ASSON:, TAMIL NADU v. U.0.1. [SABHARWAL, J.] 963

VIII Rule 1A(4) a document not produced by defendant can be confronted A
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 B
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 C
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 D
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 E
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 F

..
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 G
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 H
964 SUPREME COURT REPORTS [2005) SUPP. I S.C.R.

A 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
B 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
c 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
D 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 not only necessary for the
governments or departriients or other statutory bodies to send a reply to such
E 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
F 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
G 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. ,. , ,r ,

These provisions cast an implied duty on all concerned governments
H and States and statutory authorities to send appropriate reply to such notices.
SALEM ADV. BAR ASSON., TAMIL NADU v. U.OJ. (SABHARWAL, J.] 965

Having regard to the existing state of affairs, we direct all concerned A
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. B
Despite such nomination, ifthe 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 . • approprfate .actipn against the concerned
Officer including recovery of costs from. him. C
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 D
reverse any order made, or may order deciding an issue, in the course
of a suit or other proceeding except where -

(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 E
(b) the order, if allowed to stand, would occasion a failure ofjustice
or cause irreparable injury to the party against whom it was
made."

Now, the aforesaid proviso has been substituted· by the following
proviso.: F

"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 G
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 and Ors., H
966 SUPREME COURT REPORTS [2005] SUPP. I S.C.R.

A [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
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,
B untrammeled by the amendment in Section 115 and is ~vailable 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
C 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
D 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
E 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.

F 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:
G
"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
tum out, often enough to be inexpedient. Such procedural orders,
though peremptory (conditional decree apart), are, in essence, in
H terrorem, so that dilatory litigants might put themselves in order and
SALEM ADV. BAR ASSON., TAMIL NADU v. U.O.L [SABHARWAL, l] 967

avoid delay. They do not, however, completely estop a Court from A
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 B
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 C
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 D
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 E
also nothing but directory. It does not mean that the inspection cannot be
allowed after the settlement of issues.

Judicial Impact Assessment

The Committee has taken note of para 7 .8.2 of Volume I of the Report F
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 G
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."

H
968 SUPREME COURT REPORTS [2005] SUPP. 1 S.C.R.

A The Committee has further noticed that :

"33.3. As pointed out by the Constitution Review Commission, the
Jaws which are being administered by the Courts which are subordinate
to the High Court are Jaws which h&.ve been made by,

(a) parliament on subjects which fall under the Entries in List I and
B
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 ..
c 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.
D
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
E 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."
F 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.
G 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
H
SALEM ADV. BAR ASSON., TAMIL NADU v. U.0.1. (SABHARWAL, J] 969

of other staff but also the budgetary requirement for meeting the A
expenses of the additional cases that 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 B
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 justi1;:e, we direct .the Central Government to examine the aforesaid
suggestions 'and submit a report on this Court within four months.
c
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 D
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. E
The question forconsideration is about framing of the rules for the
purposes of Section 89 and Order X Rules I A, 18 and IC. These provisions
read as under:

"89 .Settlement of disputes outside the Court-{ I) Where it appears to F
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
G
(a) arbitration;

(b) conciliation;

(c) judicial settlement including settlement through Lok Adalat;
or
H
970 SUPREME COURT REPORTS [2005] SUPP. 1 S.C.R.

A (d) mediation. rr

(2) Where a dispute has been referred

(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
B 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 I 987) and
all other provisions of that Act shall apply in respect of the
c dispute so referred to the Lok Adalat;
(c) for judicial settlement, the Court shall refer the same to a suitab1e
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 I 987) shall apply as if the dispute
D 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 sh.all follow such procedure as may be prescribed.

IA. Direction of the court to opt for any one mode of alternative
E dispute resolution. - After 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.
F
IB. Appearance before the conciliatory forum or authority. - Where
a suit is referred under rule IA, the parties shall appear before such
forum or authority for conciliation of the suit.

I C._Appearance before the Court consequent to the failure of efforts
G of conciliation. - Where a suit is referred under rule IA 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."

H
SALEM ADV. BAR ASSON., TAMIL NADU v. UO.I. [SABHARWAL, J.] 971

Some doubt as to a possible conflict has been expressed in view of use A
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 IA 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 (I) of Section 89'.
B
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 C
exists element 0f 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 IA uses the word 'shall' but on harmonious reading of these provisions D
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.
E
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. p
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 Ors. v. P. V.G.Raju (Dead) and Ors., [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 AD Rs G
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 H
972 SUPREME COURT REPORTS [2005) SUPP. I S.C.R.

A 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 IA, lB and IC,
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
B 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 requites _a-''
C party to choose one or other ADRs inciuding -Concili~tion.' 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 ofreference
to ADR. The 1996 Act comes into play only after the stage of reference upto
D 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 I 987 Act also 'I
E does not deal with the aspect of exercising option to one of four ADR methods
mentioned in Section 89. Section 89 makes applicable I 996 Act and I 987
Act from the stage after exercise of options and making ofreference.

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.
F 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 IC speaks of the 'Conciliation forum' referring back the dispute to the
G 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
H accepted by the parties. Further, in this view, there is no question of the
SALEM ADV. BAR ASSON., TAMIL NADU v. U.0.l. [SABHARWAL, J.] 973

Court which refers the matter to mediation/conciliation being debarred from A
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.
B
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 C
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 D
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 E
·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/ p
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.
G
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
H
974 SUPREME COURT REPORTS [2005] SUPP. I S.C.R.

A Courts Act and provide for ADR insofar as conciliation/mediation is concerned. ,---
It seems clear from the report that while drafting the model rules, afa~r
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
B 'conciliation' there is little more latitude and conciliator can suggest some
tenns 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
C 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 differentmatter if the parties
D 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
E 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.

F 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
G 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:
.
'
H
SALEM ADV. BAR ASSON., TAMIL NADU v. U.0.1. [SABHARWAL, J.] 975

"Civil Procedure ADR and Mediation Rules A
(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, B
2003

In exercise of the rule making power under Part X of the Code
of Civil Procedure, )908 (5of1908) and clause (d) of sub-section (2)
of Section 89 of the said Code, the High Court of..... .is hereby issuing
the following Rules: c
Part I

Alternative Dispute Resolution Rules·

Rule 1: Title
D
These Rules in Part I shall be called the 'Civil Procedure
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 E
first hearing of the suit under Rule I 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 (I) of Section 89, and the parties shall submit F
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 mode~ ofsettlement of disputes outside the Court as
specified in clauses (a) to (d) of sub-section (I) of Section 89
G
read with Rule IA 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. H
976 SUPREME COURT REPORTS t2005] SUPP. l S.C.R.

A 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
B 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 Sec_tion 89 and such
nomination shall be communicated ,to the High Court within the
period of three months from the date of commencement of these
c 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 (I) shall,
D 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 statement, a memo into
the Court, nominating a person or persons or group of persons who
is or are authorized to take a fmal decision as to the mode of alternative
dispute resolution, whiCh, the party prefers to ad~pt in the event of the
E Court directing the party to opt fot 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)
F of Rule 2, the Court shall give such guidance as it deems fit to
the parties, by drawing their attention io 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
G 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
H
SALEM ADV. BAR ASSON., TAMIL NADU v. U.0.1. [SABHARWAL, J.] 977
'""""' parties to seek reference of the matter of arbitration as A
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 B
89.

Explanation : Disputes arising in matrimonial, mai,ntenance
and child custody matters shall, among others, be treated as
cases where a relationship between the parties has to be
preserved. c
(iv) that, where parties are interested in a final settlement which
may lead to a compromise, it will be in the interests of the
partie.s 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. D
(v) the difference between the different modes of settlement,
namely, arbitration, conciliation, mediation and judicial
settlement as explained below : Settlement by 'Arbitration'
means ~e process by which an arbitrator appointed by parties
or by the Court, as the case may be, adjudicates the disputes E
between the parties to the suit and passes an award by the
applic"ation of the provisions of the 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 F
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 G
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 H
978 SUPREME COURT REPORTS [2005] SUPP. l S.C.R.

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 qfthe provisions of the Medi~tion Rules,
.· 2003 in Part II; ~11,d.in particular, by facilitating discussion
. between parties:dii~tly orbycommunicating:with each other
throughthe mediator, by assisting parties iil identifying issues,
B 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 Ada/at means settlement by Lok Adalat as
c contemplated by the Le~al 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
D
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
E
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 ofthe Court under
clause (b) of Rule and th~ Couit shall, within thirty days of the
i
F
said 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
G 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 Leg~I Services Act, 1987 and in particular
H by section 20 of that Act, ·sha,11 apply.
SALEM ADV. BAR ASSON., TAMIL NADU '" U.0.1. [SABHARWAL, J.] 979

(c) Where all the parties to the suit decide to exercise their option A
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, with-in 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 B
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 C
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 D
' 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 E
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 F
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 G
apply to the Court within thirty days of the direction under clause
(b) of Rule 2, 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
H
980 SUPREME COURT REPORTS [2005] SUPP. I S.C.R.

A (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.

B (ii) in case all the parties agree for mediation, the Court shall
refer the matter to mediation in accordance with the Civil
Procedure - 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
c 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
D
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 '
E 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.
F (ii) After hearing the parties or their representatives on the day
so fixed the Court shall, ifthere 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
G 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.
H
SALEM ADV. BAR ASSON., TAMIL NADU v. U.0.1. [SABHARWAL, J.) 981
....... . (h)(i) A.
No next friend or guardian for the suit shall, 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.
B
(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 c
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 D
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 :
(I) Where a suit has been referred for settlement for conciliation,
E
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. F
(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, G
I
-I 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 H
982 SUPREME COURT REPORTS [2005] SUPP. I S.C.R.

A 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 (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, for the purpose referred to in clause (a) and for the
purpose of preparing a detailed manual of procedure for alternative
c 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
D 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. ..
E (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 S~tes 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.
F
(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.

G 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 (66of1984), while dealing with matrimonial, maintenance
and child custody disputes, wherever necessary, in addition to the
H
SALEM ADV. BAR ASSON., TAMIL NADU v. U.0.1. [SABHARWAL, J.] 983

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

PART II

CIVIL PROCEDURE MEDIATION RULES
B
Rule I : Title :

These Rules in Part II shall be-called the Civil Procedure Mediation
Rules, 2003.

Rule 2 :
Appointment of mediator :
c
(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. D
(c) Where parties agree on a sole mediator under clause (a) or where
parties nominate more than one mediator under clause (b), the
'mediat&r 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 E
disqualifications referred to in Rule 5.
(d) Where there are more than two sets of parties having diverse
interests, each set 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. F
Rule 3 : Panel of mediators :

(a} · The High Court shall, fof 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 G
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
H
984 SUPREME COURT REPORTS [2005] SUPP. I S.C.R.

A 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.
B
(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 (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.
D 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;
E (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
F 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
G 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 change in membership.

Rule 5 : Disqualifications of persons :

The following persons shall be deemed to be disqualified for
H
SALEM ADV. BAR ASSON., TAMIL NADU v. U.0.1. [SABHARWAL, J.] 985
.....
being empanelled as mediators : A
(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
B
(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 c
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.
D
(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.
E
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 Adalat or permanent Lok Adalat.
F
(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.
G
(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 ·H
986 SUPREME COURT REPORTS [2005] SUPP. I S.C.R.

A 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 :
B
(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
c throughout the continuance of the mediation proceedings, without
delay, disclose to the parties in writing, about the existence of
any of the circumstances referred to in clause (a).

Rule 9 : Cancellation of.appointment :

D 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
E
by a reasoned order and replace him by another mediator.

Rule I 0 : 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
F 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
G 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
H
SALEM ADV. BAR ASSON., TAMIL NADU v. U.0.1. [SABHARWAL, J.] 987

disciplinary authority which are pending or have resulted in a 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 B
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 C
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. D
(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, E
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 meetings with the parties; F
(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 G
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.
H
988 SUPREME COURT REPORTS [2005] SUPP. 1 S.C.R.

A '
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
B 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
c 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
D
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:
E
(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
F 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.
G
(c) The parties not resident in India, may be represented by their
counsel or power of attorney holders at the sessions or meetings.

Rule 14 : Administrative assistance :

In order to facilitate the conduct of mediation proceedings, the
H
SALEM ADV. BAR ASSON., TAMIL NADU v. U.0.1. [SABHARWAL, J.] 989

parties, or the mediator with the consent of the parties, may arrange A
for administrative assistance by a suitable institution or person.

Rule I 5 : 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 B
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 I 6 : Role of mediator : c
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 D
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 E
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 : F
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 G
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 H
990 SUPREME COURT REPORTS [2005] SUPP. I S.C.R.

A 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 ofinformation:

(I) When a mediator receives confidential information concerning
B 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
c 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 orally as to what transpired
during the mediation.
(3) Receipt or perusal, or preparation of records, reports or other
D 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. r
E (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;
F
(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;
G
(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

H
accept a proposal; ~

-
SALEM ADV. BAR ASSON., TAMIL NADU v. U.0.1. [SABHARWAL, J.] 991

(5) There shall be no stenographic or audio or video recording of the A
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 B
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 c
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 : D
(a) In order to preserve the confidence Qf 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.
E
(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 counse.I or power of attorney.

(c) Communication between the mediator and. the Court shall be
limited to communication. by the mediator :
F
(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; G
(iv) that the parties have settled the dispute or disputes.

Rule 24 : Settlement Agreement :

..... (I) Where an agreement is reached between the parties in regard to
H

-~-
992 SUPREME COURT REPORTS [2005] SUPP. I S.C.R.

A 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
B 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
c 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
D 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 /IC
E 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
F 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
T-
which are not settled.
(ii) if the issues are not servable, the Court shall wait for a decision
'
G of the Court on the other issues which are not settled.

Rule 26 : Fee of mediator and costs :

(I) 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. -'
H --::t
SALEM ADV. BAR ASSON., TAMIL NADU v. U.0.1 [SABHARWAL, J.] 993 .
.......
(2) As far as possible a consolidated sum may be fixed rather than A
for each session or 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, B
....
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. c
(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 (!), (3) and (4). The remaining 60% shall be deposited
with the mediator, after the conclusion of mediation. For the D
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 part'ies,
the Court shall, on the application of the mediator or parties, E
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 F
to the mediator and costs shall be paid by the concerned Legal
Services Authority under that Act.
--1 •
Rule 27 : Ethics to be followed by mediator :

The mediator shall :
G
(1) follow and observe these Rules strictly and with due diligence;
-i (2) not carry on any activity or conduct which could reasonably be
I
considered as conduct unbecoming of a mediator;
~

(3) uphold the integrity and fairness of the mediation process;
H
994 SUPREME COURT REPORTS [2005] SUPP. I S.C.R.

A (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;
B (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;
C (8) be faithful to the relationship of trust and confidentiality imposed
in the office of mediator;
(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-
D 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;
E (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
F mediator of their choice if the mediator belongs to the various ~_lasses
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
G
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
H Committee on survey of the progress made in other countries has come to a
SALEM ADV. BAR ASSON., TAMIL NADU v. U.0.1. [SABHARWAL, J.) 995

conclusion that the case management system has yielded exceedingly good A
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 B
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:
c
"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 D
II. Original Suits

I. 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) E
4. Procedure on the grant of interim orders

5. Referral to Alternate Dispute Resolution
6. Procedure on the failure of Alternate Dispute Resolution F
7. Referral to Commissioner for recordal of evidence

8. Costs
9. Proceedings for Perjury
G
10. Adjournments

11. miscellaneous Applications.

III. First Appeals to Subordinate Courts

l. Service of Notice of Appeal H
996 SUPREME COURT REPORTS [2005] SUPP. I S.C.R.

A 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)
B 5. Procedure on grant of interim-orders

6. Filing of Written submissions

7. Costs

IV. Application/Petition under Special Acts
c
V. Criminal Trial and Criminal Appeals to Subordinate Courts

(a) Criminal Trials

(b) Criminal Appeals

D 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
E
II. Writ of Habeas Corpus

III. Mode of Advance Service

IV. First Appeals to High Court

F V. Appeals to Division Bench

VI. Second Appeals.

VII. Civil Revisions

VIII. Criminal Appeals
G
IX. Note.

............ .High Court Rules, 2003

In exercise of the power conferred by Part X of the Code of Civil
Procedure 1908, (5 of 1908) and ........ High Court Act, ...... and all other
H
SALEM ADV. BAR ASSON., TAMIL NADU v. U.O.L [SABHARWAL, J.] 997

powers enabling the ........ High Court hereby makes the following Rules, A
in regard fo 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
B
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 C
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 I within a period D
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 E
assigned.

2. Once in a month, the registry/administrative 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 F
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 G
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
H
998 SUPREME COURT REPORTS [2005] SUPP. I S.C.R.

A 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
B 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 :
c
(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
D 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
E 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.
F
(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
G statement) depending upon the urgency for interim relief.

2. Service of Summons/notice and completion of pleadings :

(a) Summons may be served as indicated in clause (3) of Rule
9 of Order V.

H
SALEM ADV. BAR ASSON., TAMIL NADU v. U.0.1. [SABHARWAL, J.) 999
, ......
(b) In the case of service of summons by the plaintiff or a courier A
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
B
with a return of 'refusal', the provisjons of Order 9A Rule
(4) will be follow~ 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
c
date of its inability to serve the summons, to request the
Court to iJermit 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) :
D

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
E
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. F
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 G
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 H
1000 SUPREME COURT REPORTS [2005] SUPP. 1 S.C.R.
......
A 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 mder is granted at the first hearing by the
B Court, the defendants 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. '
c (b) If the Court passes an ad-interim ex-parte order in an
interlocutory application, ~nd 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
D 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
E 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,
F 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 {>e listed before the Court (for examination
of parties under Order X of the Civil Procedure Code. A joint statement
G 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 :

H On the filing of report by the Mediator under the Mediation Rules
SALEM ADV BAR ASSON., TAMIL NADU v. U.0.1. [SABHARWAL, J.] 100}

that efforts at Mediation have failed, or a report by the Conciliator A
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. B
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 C
invariably be done by the Judge at the first hearing when the matter
comes back on failure of conciliation, mediation or Lok Adalat.

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 D
being examined in cross or re-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 E
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 F
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 :
G

(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 H
1002 SUPREME COURT REPORTS [2005] SUPP. l S.C.R.

A 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 ifthe recording
B 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. e¥idence. The Court should
direct that the matter be listed for arguments fifteen days
after the Commissioner files his report with the evidence ..·

c The Court may initially fix a spe.cific 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.
D
(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
E
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.

8. Costs :
F 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
G
one is.sue 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
H
SALEM ADV. BAR ASSON., TAMIL NADU v. U.0.1. [SABHARWAL, J.] } 003

consider exercising discretion to impose exemplary costs after taking A
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 B
that any of the parties or witnesses have wilfully 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 : . c
The amendments to the Code have restricted the number of
adjournments to threein 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 D
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 E
the filing of Miscellaneous Application in the course of suit unless
the Court in its discretfoii expressly thinks it necessary to stay the
proceedings in the suit

III. First Appeals to Subordinate Courts
F
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 G
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.
H
1004 SUPREME COURT REPORTS [2005] SUPP. I S.C.R.

A 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 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.

B 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 th.e appellate Court to understand the points raised or for
purpose of passing interim orders.
c
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
D 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) :
E 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
F 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
G
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
H
. -- SALEM ADV. BAR ASSON., TAMIL NADU v. U.0.1. [SABHARWAL, J.) 1005

fails to file the rejoinder, Court shall consider whether it is a fit case A
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 B
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 C
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 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 D
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,
E
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 F
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 G
- 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
H
A
1006 S.UPREME COURT REPORTS [2005] SUPP. I S.C.R.

Succession Act etc.
-- ;

The Practise directions in regard to Original Suits should mutatis
mutandis apply in respect of such applications/p~titions.

V. Criminal Trials and Criminal Appeals to Subordinate Courts

B (a) Criminal Trials

I. 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
c 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
D Track IV. Track V 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
E 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
F may be accompanied by important documents, if any, having a bearing
on the question of bail.

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
G registry/(State Legal Services Authority) iriimediately 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 10 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
H
SALEM ADV. BAR ASSON., TAMIL NADU v. U.O.L [SABHARWAL, J.] } 007

opposite party in the subordinate Court, so as to enable the other A
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 B
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. C
. 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 D
Statutes, the provisions of such Codes and Statutes shall prevail.

(B) Model Case Flow Management Rules in High Court

............... High Court Rules, 2003

In exercise of the power conferred by Article 225 of the E
Constitution of India, and Chapter X of the Code of Civil Procedure,
1908 (5 of 1908) and Section ...... of the ....... High Court Act and all
other powers enabling it, ....... the High Court hereby makes the
following Rules:

I. Division of Cases into different tracks : F
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 G
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. H
.

1008 SUPREME COURT REPORTS [2005] SUPP. I S.C.R.

A 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.

B 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
c 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.

D 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.
i
; :
5. Whenever the roster changes, the judge concerned who is dealing JI.
E 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
F 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. . i

(Division of criminal petitions and appeals into different tracks is
G dealt with separately under the heading 'criminal petitions and
appeals'.) ....

fl. Writ of Habeas Corpus :

H
Notices in respect of Writ of Ffabeas Corpus where the person is ..
SALEM ADV. BAR ASSON., TAMIL NADU v. U.0.1. [SABHARWAL, J.] 1009

in custody under orders of a State Government or Central Government A
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, B
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 :
c
,. 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. D
FIRST APPEALS TO HIGH COURT

1. Service of Notice of Appeal :
'" First Appeals being appeals on questions of fact and law, Courts
are generally inclined to admit the appeal and it is only in exceptional E
cases that the appeal is rejected under Order XLI Rule 11 at the
4 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 F
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 G
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 H
A
1010 SUPREME COURT REPORTS [2005] SUPP. I S.C.R. _

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 :

B 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
c 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 :

D 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
E 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
F 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
G meet eventualities where a case gets adjourned due to u~avoidable
reasons or does not go on before a 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 :
H
SALEM ADV. BAR ASSON., TAMIL NADU v. U.0.1. [SABHARWAL, J.] l Q 11

At the first hearing of a First Appeal when both parties appear, A
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.

lfnecessary, the process contemplated by Section 89 ofCPC may B
be resorted to by the Appel late 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 C
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 :
D
(I) 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.
·11
Appeals against interlocutory orders falling under category (I) E
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. F
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. G
In ~II 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
H
1012 SUPREME COURT REPORTS [2005] SUPP. 1 S.C.R.

-- A 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 ofLPAs/Original Side appeals against final
judgments of the Single Judge.
B
Writ Appeals/Letters Patent Appeals arising from orders of the
Single Judge in a Writ Petition should be filed with simultaneous
service on the counsel for the opposite party who had appeared before
the Single Judge or on service of the opposite party.

C Writ Appeals against interim orders of the Single Judge should
invariably be disposed of early and, at any rate, within a period of
thiriy 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 ~ay be fixed by the Court.

D VJ. 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
E
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
F 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
G petitions. The practice direction in regard to LPAs and First Appeals
to the High Courts, should mutatis mutandis apply in respect of revision
petitions.

. ...
SALEM ADV. BAR ASSON., TAMIL NADU v. U.0.1. [SABHARWAL, .l.] 1013
......,,_
VIII. Criminal Appeals : A
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 B
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 - all other offences.
c
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 D
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 by the Registry/ E
(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. F
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 G
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
H
1014 SUPREME COURT REPORTS [2005) SUPP. I S.C.R.
...,- ....

A 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
B a period of four months.

Further, we place on record our deep apprec1at10n 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
c 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 oflndia 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
D 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 Re&istrar Generals,
Central Government and State/Union Territories shall file the progress repo~
in regard to the action taken within a period of four months. y

.
E v.s.s. Appeal partly allowed.