Trial and execution

The CPC (Amendment) Act, 2002 marks several changes in the original Act in order to expedite the trial of cases, but uncertainties with regard to the execution of court decrees remain.

THE Code of Civil Procedure (CPC) dates back to 1908. Since its enactment and after Independence, it has been amended several times to improve the dispute resolution process that it is concerned with. It has many provisions that have, while seeking to meet the ends of justice, often caused endless delays, thus shaking the confidence of the public in the justice delivery system. In order to reduce the huge backlog of cases, there have been suggestions to amend the CPC. These amendments would cut down the number of permissible appeals against a decree by a lower court and adjournments that a court can grant, and reduce the time spent on oral arguments by counsel. About 2.03 crore cases are pending in the subordinate courts.

The Code of Civil Procedure (Amendment) Bill, 1999, had even secured presidential assent. However, lawyers who opposed certain provisions of the Bill resisted its notification in February 2000 by resorting to a country-wide strike. In Tamil Nadu, the functioning of courts was paralysed for more than 10 days. The lawyers argued that the amendments would not only increase the cost of litigation, but also result in delays. In New Delhi, lawyers were lathi-charged during a protest demonstration. As a result of the protests, Ram Jethmalani, Union Law Minister at that time, decided to keep the Act in abeyance.

Jethmalani's successor, Arun Jaitley, introduced a fresh amendment Bill later in 2000, taking into account the suggestions made by bar representatives, political parties and the Law Commission. Some more changes were made in the Bill to incorporate the recommendations of a Parliamentary Standing Committee. The new Bill was adopted by both the Houses of Parliament in May this year. Following presidential assent, the CPC (Amendment) Act, 2002 was notified and came into effect on July 1. The Act, which has made several amendments to the CPC, has met with little resistance.

The 1999 Act invited protests mainly because Jethmalani showed little sensitivity to objections raised by lawyers to the various provisions. Although the law had been in the making for several years, there was hardly any pre-enactment debate on the specific proposals of the Bill, and as a result Parliament passed the legislation oblivious to concerns expressed by the legal community.

A major criticism of the 1999 Bill was that it facilitated "privatisation of justice" by amending Rule 4 of Order 18 to replace in every case the examination of witnesses in open court with "recording of evidence by commissioners". The power and function of examining witnesses is precisely what distinguishes the trial court from appellate courts. The CPC permitted the delegation of this power in exceptional cases under Order 26 where a witness is unable to attend court owing to illness or otherwise. But, the 1999 Act permitted this delegation in every case.

While this was objectionable, Sub-rule 7 of Rule 4 of Order 18 in the 1999 Act said that "where any question put to a witness is objected by a party or his pleader and the commissioner allows the same to be put, the Commissioner shall take down the question together with his decision." There was nothing in the Act to suggest that the "decision" of a Commissioner disposing of an objection and disallowing or allowing a question is subject to confirmation or rejection by the court. The Commissioner could be anyone, a retired judicial officer or a practising lawyer; the 1999 Act did not identify who could qualify for it.

The 2002 Act restores the discretion of a trial Judge, although some apprehensions about the role of the Commissioners remain. It adds a proviso to Sub-rule 4 of Rule 4 of Order 18 - any objection raised during the recording of evidence before a Commissioner shall be recorded by him and be taken into account by the court at the stage of arguments. The Act also provides that where documents are filed and the parties rely upon them, the proof and admissibility of such documents, filed along with the affidavit, shall be subject to the orders of the court. The High Court or the District Judge shall prepare a panel of Commissioners to record evidence.

Congress(I), member of Parliament Kapil Sibal, himself a lawyer, said during the debate on the Bill in the Rajya Sabha on May 8: "What goes on record in evidence is vital for the purposes of determination of the case. That is why the cross-examination should always be before the Judge because the Judge really monitors it. He ensures that irrelevant questions are not put. The fate of the case can change if the Commissioner does not record what is stated by the witness." Sibal warned that the Commissioner's office would succumb to manipulations by clients, destroying the credibility of the judicial system.

The substitution of a new section for Section 100 A of the CPC by the 1999 Act had raised serious misgivings because it disallowed further appeal in cases where any order is issued on an application under Article 226 or Article 227 of the Constitution, by a single Judge of the High Court. The latest amendment disallows further appeal only in cases where any appeal from an original or appellate decree is heard and decided by a single Judge of a High Court. The option of appealing to a Division Bench against an order of a single Judge under Article 226 or 227 still remains with the litigant.

Similarly, the 1999 Act substituted Section 102 of the CPC to provide that no second appeal shall lie from any decree, when the amount or value of the subject-matter of the original suit did not exceed Rs.25,000. Critics had then pointed out that it would foreclose second appeals even in cases where a substantive question of law was involved. It was argued that the revenue being nominal, the jurisdictional value of all suits, arising out of the rural areas and agricultural land, prescribed as a certain multiple thereof (generally 30) would never reach Rs.25,000. This would have created an unfair distinction between two classes of litigants with the right to second appeal available only for the moneyed classes. The 2002 Act has corrected this distortion by specifying that no second appeal shall lie from any decree, when the subject-matter of the original suit is for the recovery of an amount not exceeding Rs.25,000.

The 2002 Act has been welcomed for reducing delays during the trial of civil suits. The means of serving summons on defendants have been expanded with the addition of more options such as e-mail, fax and private courier. The 1999 Act had imposed a 30-day limit on the defendant to file reply to the summons, which was objected to by the lawyers. The 2002 Act provides three months for reasons to be recorded in writing by the court.

The report of the Commissioner who records evidence has to be submitted to the court that appointed the Commission within 60 days from the date of issue of the Commission unless the court, for reasons to be recorded in writing, extends the time. The Act empowers the court to fix time-limits for oral arguments by either party, and gives it the discretion to disallow adjournments for the purpose of filing written arguments. The Act makes it mandatory for the court to pronounce judgments within 30 days (which can be extended up to 60 days under extraordinary circumstances) of the conclusion of hearing.

While all these steps will speed up the process of trial, they are far from sufficient to expedite the execution of a decree. The procedure and pace of execution need overhaul, as many of the 106 Rules under Order 21 in the First Schedule of the CPC, dealing with execution, are frivolous, time-consuming and cumbersome. The outdated rules deny the fruits of justice to the successful litigant. To speed up trial without speeding up execution is to kindle false hopes in the litigant public, notes legal commentator Anupam Gupta. He says that not one of the more than 60 amendments made to the CPC touches on Order 21. Almost 40 provisions in the main body of the CPC deal with execution, but only two of them had been amended in the past. It is not surprising then that a decree remaining unexecuted even years after its pronouncement is a common experience.