<b>XIII LOK SABHA DEBATES, <i> Session II (Winter Session) </i> </b>
XIII LOK SABHA DEBATES, Session II (Winter Session) Thursday, December 16, 1999/Agrahayana 25, 1921 (Saka )

Title: Discussion regarding Code of Civil Procedure (Amendment) Bill, 1999 (Not concluded).

1434 hours

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THE MINISTER OF LAW, JUSTICE AND COMPANY AFFAIRS (SHRI RAM JETHMALANI): Sir, I do not think this will require two hours. It may be finished much before that.


SHRI RAM JETHMALANI: With the cooperation of this House, I think there should be no problem.

Sir, I beg to move:

"That the Bill further to amend the Code of Civil

Procedure, 1908, the Limitation Act, 1963 and the

Court Fees Act, 1870, as passed by Rajya Sabha, be

taken into consideration."

Sir, I might mention and all hon. Members of this House will agree and the entire people of India will agree - except the dishonest litigants who will have a different opinion - that the greatest blot today on the face of our judicial system is the law delays. Everybody has agreed that some drastic steps have to be taken to remove or eliminate the law delays.

A lot of steps are contemplated. The amendment to the Civil Procedure Code is only one of those steps. I do not pretend that this will solve the problem. It is not a complete solution of the problem. But, Sir, it is one good step forward in the direction of the objective which we all hold dear.

I might briefly explain first the sources of wisdom on which this Bill is based. One is that there was a Law Ministers' Conference held in June-July, 1997. This draft paper was considered by them and there was the unanimous support of the Law Ministers' Conference of 1997. Then the Law Commission applied its mind to it and made a comprehensive 129th Report of the Law Commission which suggested some slight amendments and so on. Those were respectfully considered and incorporated. Then we had a Committee of the Parliament on Subordinate Legislation which considered this problem and some of the suggestions they made have also been incorporated.

Then, there was the Justice Mallimath Committee which also had made a very in-depth study of the problems of arrears in courts. The amendments which were suggested by them also find a reflection in this.

So, this is the application of mind of experts which has taken place in the drafting of this Bill. I claim no credit for it. This is one of those Bills which I have inherited. I wish to pay a tribute to the previous Law Minister who brought this Bill before the House but it could not be passed because of the dissolution of the Lok Sabha. Now, it has been passed by the Rajya Sabha and it is here for consideration.

We have reduced the timeframe for service of summons and return of the response of the parties. We have insisted on filing of Affidavit so that anybody who makes a false claim or a false defence is liable to prosecution, for perjuries. This will discourage false defences. Then we have provided for quick service and quick written statement and defence being filed.

The most important part of this amendment is that a part of it is really a sequel to the new arbitration law, modernised arbitration law which is in accordance with the international standards of arbitration which was passed by Parliament in 1996 and some consequential provisions have to be made. We have almost made it now compulsory for the courts before trying a suit, to refer it out for conciliation, mediation and arbitration. This is the

latest philosophy of settlement of disputes or the alternative dispute-settlement mechanism. We have incorporated it in the Civil Procedure Code.

Then, there is a facility for recording evidence. We have borrowed this from the English and American practices. The courts have really no time these days particularly in view of the number of courts which we require. The Law Commission has said that we have to increase the number of Judges by five times. For every one Judge today, there have to be five Judges which means four more Judges have to be appointed. Allowing most of the evidence to be produced in the form of Affidavit first of all and then the other side can always cross-examine that shortens delays and if there is to be recording of evidence, it can take place before the Commissioners rather than the court. So, this is really increasing the number of courts without technically increasing them and that also will be a very, very serious step.

A complaint was made the other day in this House that people obtain injunctions or interim orders from the court ex parte and then try to delay the proceedings so that the courts have no time to consider these things and injustice is perpetrated and sometimes serious damage is caused. We have provided that he who asks for interim relief will give security for compensating the other side if his application turns out to be frivolous or he does not wish to prosecute it.

Then we have disposed of one tier of appeal. In the High Court if an appeal is decided by a single Judge of the Court, then appeal will directly lie to the Supreme Court.

We are abolishing the intermediate appeal in the High Court, to two judges of the Court. The High Courts, by their rule-making power, can insist that writ matters can come before a Division Bench so that the first decision itself is by two judges, by which way the appeal will go to the Supreme Court.

Sir, we have provided an incentive to settlement that if you really settle a dispute and do not trouble the court, there will be full refund of the court fees which you have paid so that this is going to be some kind of an incentive to the parties to settle the dispute.

I submit that this is a very non-controversial measure. If any hon. Member has further suggestions to make, they will be respectfully considered. We are prepared to incorporate them in a further amendment to the Civil Procedure Code. But this Bill, as passed by the Rajya Sabha, may now be passed by this House so that it does not have to go back and we waste time. Sir, we have a very little time left. I am most anxious that this law should come into force. Of course, it will come into force in some cases with retrospective effect, but wherever the prospective operation is insisted upon, that is expressly provided.

So, I commend this Bill for consideration and passing.


MR. CHAIRMAN : Motion moved:

"That the Bill further to amend the Code of Civil Procedure, 1908, the Limitation Act, 1963 and the Court Fees Act, 1870, as passed by Rajya Sabha, be taken into consideration."

SHRI PAWAN KUMAR BANSAL (CHANDIGARH): Mr. Chairman Sir, during the last 30 years, there has been an incredible increase in the volume of litigation that the courts of our country have had to deal with. It may be because of the rise in population, the rise in level of awareness among the people about their rights and the increasing complexities and dimensions of the laws that we are enacting over the years and also the complexity and dimensions of the human activity, but the fact remains that all these factors have contributed significantly in flooding the courts with new cases while the old ones continue to be stacked in the shabby shelves which, as we experienced in Chandigarh, are exposed to the risks like that of a fire.

Sir, with over two crore of cases pending in all the courts, the justice-delivery system - the hon. Minister would agree with me - itself is under severe strain. Only the other day, he informed us, in reply to a question, that at present, there are 32 lakh cases pending in the various High Courts alone and over 20,000 cases are pending in the Supreme Court itself. Sir, imagine the plight of a litigant who wastes away, who melts away his entire life-span in pursuing a case right from the lower court up to the Supreme Court and then, has to suffer a remand, a situation where the case actually takes over 40 years in culmination. These exasperating delays, coupled with the expense involved, are sheer back-breaking.

I am happy that the hon. Minister has taken cognizance of that and has brought forward this Bill for discussion in this House at the earliest possible opportunity which aims at cutting the proverbial "laws' delays", which in fact leads to denial of justice, as we have often experienced. Sir, the situation, we all agree, is very grave. It is not finding fault with the hon. Minister. I am convinced with his determination to see that, as I said the other day also, the laws of the country really work; we all owe an explanation to the poor litigants that our response to the gravity of the situation has not been commensurate with the problem.

The hon. Minister while piloting the Bill referred to the need to increase the strength of the judges five-fold.

Well, Sir, maybe, there are constraints, like resources, which should not come in the way, when the question of delivery of justice comes. But I have a point to make and I would expect something immediate even from the hon. Minister, who is a legal luminary and who has a long experience in these things himself. Why do we take inordinately long time in filling the vacancies? We know always in advance that a particular judge of the High Court has to retire on such and such a date. In normal course, if you really mean business, the procedure for filling that vacancy should start, at least, six months before the vacancy arises. But what really happens is that the judge retires, no steps are taken to fill in the vacancy, or if steps are taken, there is a lot of procedural wrangling or the files keep shuffling from the court to the Chief Minister, to the Law Ministry, to the Home Ministry, and it goes on. We are faced with situation where the High Courts have to function with greatly depleted strength of judges, and if that happens, the result would be only what we have before. Sir, the cases keep piling up, new cases are filed without any decision, and more and more access of cases pile up. Today, we are facing a situation where even those regular second appeals, which, of course, he is doing away with now - I would welcome that - even those paltry matters take over 20 years to mature for hearing in the High Courts. The appeals filed in the early 1980s have yet not been taken up. That is the situation which we have, and that would only lead to frustration amongst the litigants.

Sir, when the hon. Minister referred to the need of increasing judges, I was reading somewhere that, perhaps, there was a recommendation or a demand by the Chief Justice of India that, at least, 5,000 judges in the lower courts should be appointed. Only then, we will be able to cope with the volume of work which we presently have to face. Besides, as I was trying to make that point, creation of new posts is one thing, filling of the existing vacancies is another thing. If we do not really come up to that, I think, we have to blame ourselves for a situation like that. When I was talking of the High Court judges, that there are always inordinate delays in filling vacancies there. The hon. Minister would also appreciate that even in the courts below, at present, there are over a thousand vacancies. If I am not mistaken, if my information is not incorrect, there are over 1,000 vacancies even in the lower judiciary.

Sir, today, when we boast of the strides that we have made in the field of science and technology - when we have a new Ministry carved out, that is - Information Technology - which has revolutionised our action, thought and vision, despite the fact that there are certain amendments now suggested which would cut delays here and there, everywhere in the procedure involved in the decision of cases, the picture which the courts below present today is that of utter chaos. We all talk of information technology, as I was saying, but go to any of the courts below, go to any moffusil court you will have typewriters of Adam's days, which are 50 years or 60 years or 70 years or 80 years old. Those are the gadgets on which the poor judgment writer has to type out the judgment and hand it over to the litigant. If the litigant makes photocopies of that, the judges of the High Court would throw them away because those are not comprehensible or are illegible altogether. So, when we make provisions like this, when we provide in this present Bill - I again commend that - that the copies of the judgments have to be delivered immediately on pronouncement I think, at the same time, greater emphasis should be there on providing the necessary infrastructure to all the courts.

Sir, it is a pity that our investment on Judiciary, all inclusive, is a meagre 0.2 per cent of our GNP. Justice has to be delivered; justice has to be imparted to the people; it is not to be sold. I am against the increase in the Court fees. We already have very high Court fees. It is the responsibility of the State. This is one of the basic functions which the State must undertake to perform; and equip all the Courts, all over the country, with the latest gadgets.

Sir, there is a provision being made for issuing and service of summons through couriers, E-mail and Fax. I welcome that. But where is the infrastructure? I think, all these things -- these would not cost much -should be provided for in all the Courts. The earlier practice of handing over the summons to the litigants and asking them to send them by registered post and then deliver the copy of the receipt to the Registry of the Courts should not really be adhered to again. But I find something like that again, that a man at his own cost, besides depositing the summons fee in the Registry, would be called upon to ensure that it is delivered at his expense. I think that would leave some room for manipulation and other things, as it often happens that some fraud is played some time. All these E-mail and Fax facilities should be provided for in the Courts so that immediately when the judges order the issuance of summons, those are sent from the Courts itself.

Sir, I referred to certain demands made by the Head of the Judiciary, that is, the Chief Justice of India. I think, he is right when he bemoans or perceives some sort of an apathy on the part of the Government towards the judicial administration. These are matters with which he is concerned. We do expect the Judiciary to deliver goods. But at the same time, all the necessary basic infrastructure has got to be provided to them without any loss of time. That is my humble submission.

Sir, I referred to the various contributory factors which have led to this barrage or flood of litigation in the Courts. This has, as I said earlier, something to do with the radical changes in the pattern of litigation. What we can do now is to have a comprehensive exercise in doing away with the archaic laws that we have. Only the other day, the hon. Minister was informing us here that, perhaps, there are over a thousand such laws which do need amendment or complete abrogation. I know, it is a very stupendous task. It cannot be carried out overnight. But this has to be done on a war-footing. It should not be that a small cell is created which would take up one law from time to time, then we would take years to do that. One major exercise has to be carried out immediately.

Sir, I find that while we are concerned about this, at the same time, when we are framing new laws, we are referring to the provisions of the old laws. The other day we were discussing the prevention of Money Laundering Bill. There, we were referring to some laws, like the FERA which was replaced by FEMA that very day. This is, of course, a very minor thing. I should not take the time of the House by mentioning that. What I mean to say is that we have got to carry out an in-depth study of all the laws and wherever there is a need to amend or do away with a particular provision we must do it at the earliest.

Sir, without any reservation I commend this present exercise which is aimed at doing the same thing. The Code of Civil Procedure has had so far many in-built provisions which have led to delay in delivering judgements in the cases. The procedure, as it is being simplified now, is the right step in the right direction. It meets, to a certain extent, a long-felt need to simplify the procedural law. I think, when these amendments are brought into force there will be some gearing up of the courts and picking up of speed in deciding the cases.

I feel that these amendments would certainly knock down certain devices being presently used by the unscrupulous litigants, the section of the society which hon. Minister referred to as perhaps the only one section which may not like these present amendments. Over the years what we have seen is that amendments were being sought on frivolous grounds. Now, the mandate would be, "no more amendments of pleadings than three in all and for a total period of not exceeding one month." I think that is fair enough.

Recording of evidence which would now be drastically changed is a welcome step. The evidence would initially be recorded through affidavits, thereafter before the Commissioners who could be lawyers of that court. In any case, the judge trying the matter would refer to one of the persons on a panel prepared for that purpose. That would certainly save time and expense. Evidence would be recorded outside, transmitted to the file and the matter thereafter would be decided by the court.

Experience has shown us that amendment of pleading has also been in the past resorted to on quite a few occasions by the litigants to delay the proceedings. But, Sir, permit me to say that despite that this is one invaluable right which should be retained with the litigants. I do not have much difficulty with present amendments as such. But, I have suggested one amendment to the provision which seeks to omit Rules 17 and 18 of Order VI which relate to the amendment of pleadings. I know that Section 153 is the substantive provision in the Code of Civil Procedure which gives the right to the litigant to move for an amendment. But, I think, if we go by the wording of Section 153 as also these two Rules 17 and 18, these later provisions are more elaborate, more explicit and more clear. Therefore, Sir, I thought that while we should be concerned with this being used as a device by people to delay the proceedings, at the same time this right has to be retained. Therefore, I thought that Order VI, Rule 17 should be retained and there should be an amendment to only Order VI Rule 18 whereunder we could limit or restrict this right of amendment. At the moment this takes inordinately long time. Against the Order permitting or refusing to file or to make an amendment, a person goes to the High Court to file a revision petition and when interlocutory proceedings begin a lot of time is again taken. I think that could be restricted. But this provision as such should be retained for the benefit of the public.