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CASE NO.: Writ Petition (civil)  496 of 2002

PETITIONER: Salem Advocate Bar Association,Tamil Nadu

RESPONDENT: Union of India

DATE OF JUDGMENT: 02/08/2005

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

JUDGMENT: J U D G M E N T

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

Y.K. Sabharwal, J.

The challenge made to the constitutional validity of amendments  made to the Code of Civil Procedure (for short, ’the Code’) by Amendment  Acts of 1999 and 2002 was rejected by this Court {Salem Advocates Bar  Association, T.N. v. Union of India [(2003) 1 SCC 49]}, but it was  noticed in the judgment that modalities have to be formulated for the  manner in which Section 89 of the Code and, for that matter, the other  provisions which have been introduced by way of amendments, may have  to be operated.  For this purpose, a Committee headed by a former Judge  of this Court and Chairman, Law Commission of India (Justice M.  Jagannadha Rao) was constituted so as to ensure that the amendments  become effective and result in quicker dispensation of justice.  It was  further observed that the Committee may consider devising a model case  management formula as well as rules and regulations which should be  followed while taking recourse to the Alternate Disputes Resolution (ADR)  referred to in Section 89.  It was also observed that the model rules, with or  without modification, which are formulated may be adopted by the High  Courts concerned for giving effect to Section 89(2)(d) of the Code.   Further, it was observed that if any difficulties are felt in the working of the  amendments, the same can be placed before the Committee which would  consider the same and make necessary suggestions in its report.  The  Committee has filed the report.          The report is in three parts.  Report 1 contains the consideration of  the various grievances relating to amendments to the Code and the  recommendations of the Committee.  Report 2 contains the consideration  of various points raised in connection with draft rules for ADR and  mediation as envisaged by Section 89 of the Code read with Order X Rule  1A, 1B and 1C.  It also contains model Rules.  Report 3 contains a  conceptual appraisal of case management.  It also contains the model  rules of case management. First, we will consider Report 1 which deals with the amendments  made to the Code. Report No.1         Amendment inserting sub-section (2) to Section 26 and Rule  15(4) to Order VI Rule 15.   

Prior to insertion of aforesaid provisions, there was no requirement  of filing affidavit with the pleadings.  These provisions now require the  plaint to be accompanied by an affidavit as provided in Section 26(2) and  the person verifying the pleadings to furnish an affidavit in support of the  pleading [Order VI Rule 15(4)].  It was sought to be contended that the  requirement of filing an affidavit is illegal and unnecessary in view of the

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existing requirement of verification of the pleadings.  We are unable to  agree.  The affidavit required to be filed under amended Section 26(2) and  Order VI Rule 15(4) of the Code has the effect of fixing additional  responsibility on the deponent as to the truth of the facts stated in the  pleadings.  It is, however, made clear that such an affidavit would not be  evidence for the purpose of the trial.  Further, on amendment of the  pleadings, a fresh affidavit shall have to be filed in consonance thereof.  Amendment of Order XVIII Rule 4 The amendment provides that in every case, the examination-in- chief of a witness shall be on affidavit.  The Court has already been vested  with power to permit affidavits to be filed as evidence as provided in Order  XIX Rules 1 and 2 of the Code.  It has to be kept in view that the right of  cross-examination and re-examination in open court has not been  disturbed by Order XVIII Rule 4 inserted by amendment.  It is true that  after the amendment cross-examination can be before a Commissioner but  we feel that no exception can be taken in regard to the power of the  legislature to amend the Code and provide for the examination-in-chief to  be on affidavit or cross-examination before a Commissioner.  The scope of  Order XVIII Rule 4 has been examined and its validity upheld in Salem  Advocates Bar Association’s case.  There is also no question of  inadmissible documents being read into evidence merely on account of  such documents being given exhibit numbers in the affidavit filed by way of  examination-in-chief.  Further, in Salem Advocates Bar Association’s  case, it has been held that the trial court in appropriate cases can permit  the examination-in-chief to be recorded in the Court.  Proviso to sub-rule  (2) of Rule 4 of Order XVIII clearly suggests that the court has to apply its  mind to the facts of the case, nature of allegations, nature of evidence and  importance of the particular witness for determining whether the witness  shall be examined in court or by the Commissioner appointed by it.  The  power under Order XVIII Rule 4(2) is required to be exercised with great  circumspection having regard to the facts and circumstances of the case.   It is not necessary to lay down hard and fast rules controlling the discretion  of the court to appoint Commissioner to record cross-examination and re- examination of witnesses.  The purpose would be served by noticing some  illustrative cases which would serve as broad and general guidelines for  the exercise of discretion.  For instance, a case may involve complex  question of title, complex question in partition or suits relating to  partnership business or suits involving serious allegations of fraud, forgery,  serious disputes as to the execution of the will etc.  In such cases, as far  as possible, the court may prefer to itself record the cross-examination of  the material witnesses.  Another contention raised is that when evidence is  recorded by the Commissioner, the Court would be deprived of the benefit  of watching the demeanour of witness.  That may be so but, In our view,  the will of the legislature, which has by amending the Code provided for  recording evidence by the Commissioner for saving Court’s time taken for  the said purpose, cannot be defeated merely on the ground that the Court  would be deprived of watching the demeanour of the witnesses.  Further,  as noticed above, in some cases, which are complex in nature, the prayer  for recording evidence by the Commissioner may be declined by the Court.   It may also be noted that Order XVIII Rule 4, specifically provides that the  Commissioner may record such remarks as it thinks material in respect of  the demeanour of any witness while under examination.  The Court would  have the benefit of the observations if made by the Commissioner.          The report notices that in some States, advocates are being required  to pass a test conducted by the High Court in the subjects of Civil  Procedure Code and Evidence Act for the purpose of empanelling them on  the panels of Commissioners.  It is a good practice.  We would, however,  leave it to the High Courts to examine this aspect and decide to adopt or  not such a procedure.  Regarding the apprehension that the payment of  fee to the Commissioner will add to the burden of the litigant, we feel that  generally the expenses incurred towards the fee payable to the  Commissioner is likely to be less than expenditure incurred for attending  the Courts on various dates for recording evidence besides the  harassment and inconvenience to attend the Court again and again for the  same purpose and, therefore, in reality in most of the cases, there could be

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no additional burden.         Amendment to Order XVIII Rule 5(a) and (b) was made in 1976  whereby it was provided that in all appealable cases evidence shall be  recorded by the Court.  Order XVIII Rule 4 was amended by Amendment  Act of 1999 and again by Amendment Act of 2002.  Order XVIII Rule 4(3)  enables the commissioners to record evidence in all type of cases  including appealable cases.  The contention urged is that there is conflict  between these provisions.   To examine the contention, it is also necessary to keep in view  Order XVIII Rule 19 which was inserted by Amendment Act of 1999.  It  reads as under:  "Power to get statements recorded on  commission.\027Notwithstanding anything  contained in these rules, the Court may, instead  of examining witnesses in open Court, direct their  statements to be recorded on commission under  rule 4A of the Order XXVI."

       The aforesaid provision contains a non-obstante clause.  It overrides  Order XVIII Rule 5 which provides the court to record evidence in all  appealable cases.  The Court is, therefore, empowered to appoint a  Commissioner for recording of evidence in appealable cases as well. Further, Order XXVI Rule 4-A inserted by Amendment Act of 1999  provides that notwithstanding anything contained in the Rules, any court  may in the interest of justice or for the expeditious disposal of the case or  for any other reason, issue Commission in any suit for the examination of  any person resident within the local limits of the court’s jurisdiction.  Order  XVIII Rule 19 and Order XXVI Rule 4-A, in our view, would override Order  XVIII Rule 5(a) and (b).  There is, thus, no conflict.         The next question that has been raised is about the power of the  Commissioner to declare a witness hostile.  Order XVIII Rule 4(4) requires  that any objection raised during the recording of evidence before the  Commissioner shall be recorded by him and decided by the Court at the  stage of arguments.  Order XVIII Rule 4(8) stipulates that the provisions of  Rules 16, 16-A, 17 and 18 of Order XXVI, in so far as they are applicable,  shall apply to the issue, execution and return of such commission  thereunder.  The discretion to declare a witness hostile has not been  conferred on the Commissioner.  Under Section 154 of the Evidence Act, it  is the Court which has to grant permission, in its discretion, to a person  who calls a witness, to put any question to that witness which might be put  in cross-examination by the adverse party.  The powers delegated to the  Commissioner under Order XXVI Rules 16, 16-A, 17 and 18 do not include  the discretion that is vested in Court under Section 154 of the Evidence Act  to declare a witness hostile.   If a situation as to declaring a witness hostile arises before a  Commission recording evidence, the concerned party shall have to obtain  permission from the Court under Section 154 of the Evidence Act and it is  only after grant of such permission that the Commissioner can allow a  party to cross-examine his own witness.  Having regard to the facts of the  case, the Court may either grant such permission or even consider to  withdraw the commission so as to itself record remaining evidence or  impose heavy costs if it finds that permission was sought to delay the  progress of the suit or harass the opposite party.         Another aspect is about proper care to be taken by the Commission  of the original documents.  Undoubtedly, the Commission has to take  proper care of the original documents handed over to him either by Court  or filed before him during recording of evidence.  In this regard, the High  Courts may frame necessary rules, regulations or issue practice directions  so as to ensure safe and proper custody of the documents when the same  are before the Commissioner.  It is the duty and obligation of the  Commissioners to keep the documents in safe custody and also not to give  access of the record to one party in absence of the opposite party or his  counsel.   The Commissioners can be required to redeposit the documents  with the Court in case long adjournments are granted and for taking back  the documents before the adjourned date.

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       Additional Evidence         In Salem Advocates Bar Association’s case, it has been clarified  that on deletion of Order XVIII Rule 17-A which provided for leading of  additional evidence, the law existing before the introduction of the  amendment, i.e., 1st July, 2002, would stand restored.  The Rule was  deleted by Amendment Act of 2002.  Even before insertion of Order XVIII  Rule 17-A, the Court had inbuilt power to permit parties to produce  evidence not known to them earlier or which could not be produced in spite  of due diligence.  Order XVIII Rule 17-A did not create any new right but  only clarified the position.  Therefore, deletion of Order XVIII Rule 17-A  does not disentitle production of evidence at a later stage.  On a party  satisfying the Court that after exercise of due diligence that evidence was  not within his knowledge or could not be produced at the time the party  was leading evidence, the Court may permit leading of such evidence at a  later stage on such terms as may appear to be just. Order VIII Rule 1         Order VIII Rule 1, as amended by Act 46 of 1999 provides that the  defendant shall within 30 days from the date of service of summons on  him, present a written statement of his defence.  The rigour of this  provision was reduced by Amendment Act 22 of 2002 which enables the  Court to extend time for filing written statement, on recording sufficient  reasons therefor, but the extension can be maximum for 90 days.         The question is whether the Court has any power or jurisdiction to  extend the period beyond 90 days.  The maximum period of 90 days to file  written statement has been provided but the consequences on failure to  file written statement within the said period have not been provided for in  Order VIII Rule 1.  The point for consideration is whether the provision  providing for maximum period of ninety days is mandatory and, therefore,  the Court is altogether powerless to extend the time even in an  exceptionally hard case.   It has been common practice for the parties to take long  adjournments for filing written statements.  The legislature with a view to  curb this practice and to avoid unnecessary delay and adjournments, has  provided for the maximum period within which the written statement is  required to be filed.  The mandatory or directory nature of Order VIII Rule 1  shall have to be determined by having regard to the object sought to be  achieved by the amendment.  It is, thus, necessary to find out the intention  of the legislature.  The consequences which may follow and whether the  same were intended by the legislature have also to be kept in view.   In Raza Buland Sugar Co. Ltd., Rampur v. The Municipal Board,  Rampur [AIR 1965 SC 895], a Constitution Bench of this Court held that  the question whether a particular provision is mandatory or directory  cannot be resolved by laying down any general rule and it would depend  upon the facts of each case and for that purpose the object of the statute in  making out the provision is the determining factor.  The purpose for which  the provision has been made and its nature, the intention of the legislature  in making the provision, the serious general inconvenience or injustice to  persons resulting from whether the provision is read one way or the other,  the relation of the particular provision to other provisions dealing with the  same subject and other considerations which may arise on the facts of a  particular case including the language of the provision, have all to be taken  into account in arriving at the conclusion whether a particular provision is  mandatory or directory.   In Sangram Singh v. Election Tribunal Kotah & Anr. [AIR 1955  SC 425], considering the provisions of the Code dealing with the trial of the  suits, it was opined that:

"Now a code of procedure must be regarded as  such. It is procedure, something designed to  facilitate justice and further its ends: not a Penal  enactment for punishment and penalties; not a  thing designed to trip people up. Too technical  construction of sections that leaves no room for  reasonable elasticity of interpretation should

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therefore be guarded against (provided always  that justice is done to both sides) lest the very  means designed for the furtherance of justice be  used to frustrate it.  

Next, there must be ever present to the mind the  fact that our laws of procedure are grounded on a  principle of natural justice which requires that  men should not be condemned unheard, that  decisions should not be reached behind their  backs, that proceedings that affect their lives and  property should not continue in their absence and  that they should not be precluded from  participating in them. Of course, there must be  exceptions and where they are clearly defined  they must be given effect to. But taken by and  large, and subject to that proviso, our laws of  procedure should be construed, wherever that is  reasonably possible, in the light of that principle. "

       In Topline Shoes Ltd. v. Corporation Bank [(2002) 6 SCC 33], the  question for consideration was whether the State Consumer Disputes  Redressal Commission could grant time to the respondent to file reply  beyond total period of 45 days in view of Section 13(2) of the Consumer  Protection Act, 1986.  It was held that the intention to provide time frame to  file reply is really made to expedite the hearing of such matters and avoid  unnecessary adjournments.  It was noticed that no penal consequences  had been prescribed if the reply is not filed in the prescribed time.  The  provision was held to be directory.  It was observed that the provision is  more by way of procedure to achieve the object of speedy disposal of the  case.         The use of the word ’shall’ in Order VIII Rule 1 by itself is not  conclusive to determine whether the provision is mandatory or directory.   We have to ascertain the object which is required to be served by this  provision and its design and context in which it is enacted.  The use of the  word ’shall’ is ordinarily indicative of mandatory nature of the provision but  having regard to the context in which it is used or having regard to the  intention of the legislation, the same can be construed as directory.  The  rule in question has to advance the cause of justice and not to defeat it.   The rules of procedure are made to advance the cause of justice and not  to defeat it.  Construction of the rule or procedure which promotes justice  and prevents miscarriage has to be preferred.  The rules or procedure are  handmaid of justice and not its mistress.  In the present context, the strict  interpretation would defeat justice.           In construing this provision, support can also be had from Order VIII  Rule 10 which provides that where any party from whom a written  statement is required under Rule 1 or Rule 9, fails to present the same  within the time permitted or fixed by the Court, the Court shall pronounce  judgment against him, or make such other order in relation to the suit as it  thinks fit.  On failure to file written statement under this provision, the Court  has been given the discretion either to pronounce judgment against the  defendant or make such other order in relation to suit as it thinks fit.  In the  context of the provision, despite use of the word ’shall’, the court has been  given the discretion to pronounce or not to pronounce the judgment  against the defendant even if written statement is not filed and instead  pass such order as it may think fit in relation to the suit.  In construing the  provision of Order VIII Rule 1 and Rule 10, the doctrine of harmonious  construction is required to be applied.  The effect would be that under Rule  10 of Order VIII, the court in its discretion would have power to allow the  defendant to file written statement even after expiry of period of 90 days  provided in Order VIII Rule 1.  There is no restriction in Order VIII Rule 10  that after expiry of ninety days, further time cannot be granted.  The Court  has wide power to ’make such order in relation to the suit as it thinks fit’.   Clearly, therefore, the provision of Order VIII Rule 1 providing for upper  limit of 90 days to file written statement is directory.  Having said so, we

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wish to make it clear that the order extending time to file written statement  cannot be made in routine.  The time can be extended only in exceptionally  hard cases.  While extending time, it has to be borne in mind that the  legislature has fixed the upper time limit of 90 days.  The discretion of the  Court to extend the time shall not be so frequently and routinely exercised  so as to nullify the period fixed by Order VIII Rule 1.         Section 39         Section 39(1) of the Code provides that the Court which passed a  decree may, on the application of the decree-holder send it for execution to  another court of competent jurisdiction.  By Act 22 of 2002, Section 39(4)  has been inserted providing that nothing in the section shall be deemed to  authorise the Court which passed a decree to execute such decree against  any person or property outside the local limits of its jurisdiction.  The  question is whether this newly added provision prohibits the executing  court from executing a decree against a person or property outside its  jurisdiction and whether this provision overrides Order XXI Rule 3 and  Order XXI Rule 48 or whether these provisions continue to be an exception  to Section 39(4) as was the legal position before the amendment.         Order XXI Rule 3 provides that where immoveable property forms  one estate or tenure situate within the local limits of the jurisdiction of two  or more courts, any one of such courts may attach and sell the entire  estate or tenure.  Likewise, under Order XXI Rule 48, attachment of salary  of a Government servant, Railway servant or servant of local authority can  be made by the court whether the judgment-debtor or the disbursing officer  is or is not within the local limits of the court’s jurisdiction.         Section 39 does not authorise the Court to execute the decree  outside its jurisdiction but it does not dilute the other provisions giving such  power on compliance of conditions stipulated in those provisions.  Thus,  the provisions, such as, Order XXI Rule 3 or Order XXI Rule 48 which  provide differently, would not be effected by Section 39(4) of the Code.         Section 64(2)         Section 64(2) in the Code has been inserted by Amendment Act 22  of 2002.  Section 64, as it originally stood, has been renumbered as  Section 64(1).  Section 64(1), inter alia, provides that where an attachment  has been made, any private transfer or delivery of property attached or of  any interest therein contrary to such attachment shall be void as against all  claims enforceable under the attachment.  Sub-section (2) protects the  aforesaid acts if made in pursuance of any contract for such transfer or  delivery entered into and registered before the attachment.  The concept of  registration has been introduced to prevent false and frivolous cases of  contracts being set up with a view to defeat the attachments.  If the  contract is registered and there is subsequent attachment, any sale deed  executed after attachment will be valid.  If it is unregistered, the  subsequent sale after attachment would not be valid.  Such sale would not  be protected.  There is no ambiguity in sub-section (2) of Section 64.         Order VI Rule 17         Order VI Rule 17 of the Code deals with amendment of pleadings.   By Amendment Act 46 of 1999, this provision was deleted.  It has again  been restored by Amendment Act 22 of 2002 but with an added proviso to  prevent application for amendment being allowed after the trial has  commenced, unless court comes to the conclusion that in spite of due  diligence, the party could not have raised the matter before the  commencement of trial.  The proviso, to some extent, curtails absolute  discretion to allow amendment at any stage.  Now, if application is filed  after commencement of trial, it has to be shown that in spite of due  diligence, such amendment could not have been sought earlier.  The  object is to prevent frivolous applications which are filed to delay the trial.   There is no illegality in the provision.         Service through Courier         Order V Rule 9, inter alia, permits service of summons by party or  through courier.  Order V Rule 9(3) and Order V Rule 9-A permit service of  summons by courier or by the plaintiff.  Order V Rule 9(5) requires the  court to declare that the summons had been duly served on the defendant  on the contingencies mentioned in the provision.  It is in the nature of  deemed service.  The apprehension expressed is that service outside the

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normal procedure is likely to lead to false reports of service and passing of  ex parte decrees.  It is further urged that courier’s report about defendant’s  refusal to accept service is also likely to lead to serious malpractice and  abuse.   While considering the submissions of learned counsel, it has to be  borne in mind that problem in respect of service of summons has been one  of the major causes of delay in the due progress of the case.  It is common  knowledge that the defendants have been avoiding to accept summons.   There have been serious problems in process serving agencies in various  courts.  There can, thus, be no valid objection in giving opportunity to the  plaintiff to serve the summons on the defendant or get it served through  courier.  There is, however, danger of false reports of service.  It is  required to be adequately guarded.  The courts shall have to be very  careful while dealing with a case where orders for deemed service are  required to be made on the basis of endorsement of such service or  refusal.  The High Courts can make appropriate rules and regulations or  issue practice directions to ensure that such provisions of service are not  abused so as to obtain false endorsements.  In this regard, the High  Courts can consider making a provision for filing of affidavit setting out  details of events at the time of refusal of service.  For instance, it can be  provided that the affidavit of person effecting service shall state as to who  all were present at that time and also that the affidavit shall be in the  language known to the deponent.  It can also be provided that if affidavit or  any endorsement as to service is found to be false, the deponent can be  summarily tried and punished for perjury and the courier company can be  black-listed.  The guidelines as to the relevant details to be given can be  issued by the High Courts.  The High Courts, it is hoped, would issue as  expeditiously as possible, requisite guidelines to the trial courts by framing  appropriate rules, order, regulations or practice directions.

       Adjournments         Order XVII of the Code relates to grant of adjournments.  Two  amendments have been made therein.  One that adjournment shall not be  granted to a party more than three times during hearing of the suit.  The  other relates to cost of adjournment.  The awarding of cost has been made  mandatory.  Costs that can be awarded are of two types.  First, cost  occasioned by the adjournment and second such higher cost as the court  deems fit.   While examining the scope of proviso to Order XVII Rule 1 that more  than three adjournments shall not be granted, it is to be kept in view that  proviso to Order XVII Rule 2 incorporating clauses (a) to (e) by Act 104 of  1976 has been retained.  Clause (b) stipulates that no adjournment shall  be granted at the request of a party, except where the circumstances are  beyond the control of that party.  The proviso to Order XVII Rule 1 and  Order XVII Rule 2 have to be read together.  So read, Order XVII does not  forbid grant of adjournment where the circumstances are beyond the  control of the party.  In such a case, there is no restriction on number of  adjournments to be granted.  It cannot be said that even if the  circumstances are beyond the control of a party, after having obtained third  adjournment, no further adjournment would be granted.  There may be  cases beyond the control of a party despite the party having obtained three  adjournments.  For instance, a party may be suddenly hospitalized on  account of some serious ailment or there may be serious accident or some  act of God leading to devastation.  It cannot be said that though  circumstances may be beyond the control of a party, further adjournment  cannot be granted because of restriction of three adjournments as  provided in proviso to Order XVII Rule 1.          In some extreme cases, it may become necessary to grant  adjournment despite the fact that three adjournments have already been  granted (Take the example of Bhopal Gas Tragedy, Gujarat earthquake  and riots, devastation on account of Tsunami).  Ultimately, it would depend  upon the facts and circumstances of each case, on the basis whereof the  Court would decide to grant or refuse adjournment.  The provision for costs  and higher costs has been made because of practice having been

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developed to award only a nominal cost even when adjournment on  payment of costs is granted.  Ordinarily, where the costs or higher costs  are awarded, the same should be realistic and as far as possible actual  cost that had to be incurred by the other party shall be awarded where the  adjournment is found to be avoidable but is being granted on account of  either negligence or casual approach of a party or is being sought to delay  the progress of the case or on any such reason.  Further, to save proviso  to Order XVII Rule 1 from the vice of Article 14 of the Constitution of India,  it is necessary to read it down so as not to take away the discretion of the  Court in the extreme hard cases noted above. The limitation of three  adjournments would not apply where adjournment is to be granted on  account of circumstances which are beyond the control of a party.  Even in  cases which may not strictly come within the category of circumstances  beyond the control of a party, the Court by resorting to the provision of  higher cost which can also include punitive cost in the discretion of the  Court, adjournment beyond three can be granted having regard to the  injustice that may result on refusal thereof, with reference to peculiar facts  of a case.  We may, however, add that grant of any adjournment let alone  first, second or third adjournment is not a right of a party.  The grant of  adjournment by a court has to be on a party showing special and extra- ordinary circumstances.  It cannot be in routine.  While considering prayer  for grant of adjournment, it is necessary to keep in mind the legislative  intent to restrict grant of adjournments.         Order XVIII Rule 2         Order XVIII Rule 2(4) which was inserted by Act 104 of 1976 has  been omitted by Act 46 of 1999.  Under the said Rule, the Court could  direct or permit any party, to examine any party or any witness at any  stage.  The effect of deletion is the restoration of the status quo ante.  This  means that law that was prevalent prior to 1976 amendment, would  govern.  The principles as noticed hereinbefore in regard to deletion of  Order XVIII Rule 17(a) would apply to the deletion of this provision as well.   Even prior to insertion of Order XVIII Rule 2(4), such a permission could be  granted by the Court in its discretion.  The provision was inserted in 1976  by way of caution.  The omission of Order XVIII Rule 2(4) by 1999  amendment does not take away Court’s inherent power to call for any  witness at any stage either suo moto or on the prayer of a party invoking  the inherent powers of the Court.         In Order XVIII Rule 2 sub-rules (3A) to 3(D) have been inserted by  Act 22 of 2002.  The object of filing written arguments or fixing time limit of  oral arguments is with a view to save time of court.  The adherence to the  requirement of these rules is likely to help in administering fair and speedy  justice.

       Order VII Rule 14         Order VII Rule 14 deals with production of documents which are the  basis of the suit or the documents in plaintiff’s possession or power.   These documents are to be entered in the list of documents and produced  in the Court with plaint.  Order VII Rule 14(3) requires leave of Court to be  obtained for production of the documents later.  Order VII Rule 14(4) reads  as under: "Nothing in this rule shall apply to document  produced for the cross examination of the  plaintiff’s witnesses, or, handed over to a witness  merely to refresh his memory."

       In the aforesaid Rule, it is evident that the words ’plaintiff’s  witnesses’ have been mentioned as a result of mistake seems to have  been committed by the legislature.  The words ought to be ’defendant’s  witnesses’.  There is a similar provision in Order VIII Rule 1A(4) which  applies to a defendant.  It reads as under: "Nothing in this rule shall apply to documents \026 (a)     produced for the cross-examination of the  plaintiff’s witnesses, or  (b)     handed over to a witness merely to refresh

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his memory."

       Order VII relates to the production of documents by the plaintiff  whereas Order VIII relates to production of documents by the defendant.   Under Order VIII Rule 1A(4) a document not produced by defendant can  be confronted to the plaintiff’s witness during cross-examination.  Similarly,  the plaintiff can also confront the defendant’s witness with a document  during cross-examination.  By mistake, instead of ’defendant’s witnesses’,  the words ’plaintiff’s witnesses’ have been mentioned in Order VII Rule (4).   To avoid any confusion, we direct that till the legislature corrects the  mistake, the words ’plaintiff’s witnesses, would be read as ’defendant’s  witnesses’ in Order VII Rule 4.  We, however, hope that the mistake would  be expeditiously corrected by the legislature.         Costs Section 35 of the Code deals with the award of cost and Section 35A  with award of compensatory costs in respect of false or vexatious claims or  defences.  Section 95 deals with grant of compensation for obtaining  arrest, attachment or injunction on insufficient grounds.  These three  sections deal with three different aspects of award of cost and  compensation.  Under Section 95 cost can be awarded upto Rs.50,000/-  and under Section 35A, the costs awardable are upto Rs.3,000/-.  Section  35B provides for award of cost for causing delay where a party fails to take  the step which he was required by or under the Code to take or obtains an  adjournment for taking such step or for producing evidence or on any other  ground.  In circumstances mentioned in Section 35-B an order may be  made requiring the defaulting party to pay to other party such costs as  would, in the opinion of the court, be reasonably sufficient to reimburse the  other party in respect of the expenses incurred by him in attending the  court on that date, and payment of such costs, on the date next following  the date of such order, shall be a condition precedent to the further  prosecution of the suit or the defence.  Section 35 postulates that the cost  shall follow the event and if not, reasons thereof shall be stated.  The  award of the cost of the suit is in the discretion of the Court.  In Sections 35  and 35B, there is no upper limit of amount of cost awardable.   Judicial notice can be taken of the fact that many unscrupulous  parties take advantage of the fact that either the costs are not awarded or  nominal costs are awarded on the unsuccessful party.  Unfortunately, it  has become a practice to direct parties to bear their own costs.  In large  number of cases, such an order is passed despite Section 35(2) of the  Code.  Such a practice also encourages filing of frivolous suits.  It also  leads to taking up of frivolous defences.  Further wherever costs are  awarded, ordinarily the same are not realistic and are nominal.  When  Section 35(2) provides for cost to follow the event, it is implicit that the  costs have to be those which are reasonably incurred by a successful  party except in those cases where the Court in its discretion may direct  otherwise by recording reasons thereof.  The costs have to be actual  reasonable costs including the cost of the time spent by the successful  party, the transportation and lodging, if any, or any other incidental cost  besides the payment of the court fee, lawyer’s fee, typing and other cost in  relation to the litigation.  It is for the High Courts to examine these aspects  and wherever necessary make requisite rules, regulations or practice  direction so as to provide appropriate guidelines for the subordinate courts  to follow.  Section 80         Section 80(1) of the Code requires prior notice of two months to be  served on the Government as a condition for filing a suit except when there  is urgency for interim order in which case the Court may not insist on the  rigid rule of prior notice.  The two months period has been provided for so  that the Government shall examine the claim put up in the notice and has  sufficient time to send a suitable reply.  The underlying object is to curtail  the litigation.  The object also is to curtail the area of dispute and  controversy.  Similar provisions also exist in various other legislations as  well.  Wherever the statutory provision requires service of notice as a  condition precedent for filing of suit and prescribed period therefore, it is

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not only necessary for the governments or departments or other statutory  bodies to send a reply to such a notice but it is further necessary to  properly deal with all material points and issues raised in the notice.  The  Governments, Government departments or statutory authorities are  defendants in large number of suits pending in various courts in the  country.  Judicial notice can be taken of the fact that in large number of  cases either the notice is not replied or in few cases where reply is sent, it  is generally vague and evasive.  The result is that the object underlying  Section 80 of the Code and similar provisions gets defeated.  It not only  gives rise to avoidable litigation but also results in heavy expense and cost  to the exchequer as well.  Proper reply can result in reduction of litigation  between State and the citizens.  In case proper reply is sent either the  claim in the notice may be admitted or area of controversy curtailed or the  citizen may be satisfied on knowing the stand of the State.  There is no  accountability in the Government, Central or State or the statutory  authorities in violating the spirit and object of Section 80.         These provisions cast an implied duty on all concerned governments  and States and statutory authorities to send appropriate reply to such  notices.  Having regard to the existing state of affairs, we direct all  concerned governments, Central or State or other authorities, whenever  any statute requires service of notice as a condition precedent for filing of  suit or other proceedings against it, to nominate, within a period of three  months, an officer who shall be made responsible to ensure that replies to  notices under Section 80 or similar provisions are sent within the period  stipulated in a particular legislation.  The replies shall be sent after due  application of mind.  Despite such nomination, if the Court finds that either  the notice has not been replied or reply is evasive and vague and has  been sent without proper application of mind, the Court shall ordinarily  award heavy cost against the Government and direct it to take appropriate  action against the concerned Officer including recovery of costs from him.           Section 115 of the Code vests power of revision in the High Court  over courts subordinate to it.  Proviso to Section 115(1) of the Code before  the amendment by Act 46 of 1999 read as under : "Provided that the High Court shall not, under this  section vary or reverse any order made, or may  order deciding an issue, in the course of a suit or  other proceeding except where \026 (a)     the order, if it had been made in favour of  the party applying for revision, would have  finally disposed of the suit or other  proceeding; or (b)     the order, if allowed to stand, would  occasion a failure of justice or cause  irreparable injury to the party against whom  it was made."

       Now, the aforesaid proviso has been substituted by the following  proviso. : "Provided that the High Court shall not, under this  section, vary or reverse any order made, or any  order deciding an issue, in the course of a suit or  other proceeding, except where the order, if it had  been made in favour of the party applying for  revision, would have finally disposed of the suit or  other proceedings."

       The aforesaid clause (b) stands omitted.  The question is about the  constitutional powers of the High Courts under Article 227 on account of  omission made in Section 115 of the Code.  The question stands settled by  a decision of this Court in Surya Dev Rai v. Ram Chander Rai & Ors.  [2003 (6) SCC 675] holding that the power of the High Court under Articles  226 and 227 of the Constitution is always in addition to the revisional  jurisdiction conferred on it.  Curtailment of revisional jurisdiction of the High

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Court under Section 115 of the Code does not take away and could not  have taken away the constitutional jurisdiction of the High Court.  The  power exists, untrammeled by the amendment in Section 115 and is  available to be exercised subject to rules of self-discipline and practice  which are as well settled.   Section 148         The amendment made in Section 148 affects the power of the Court  to enlarge time that may have been fixed or granted by the Court for the  doing of any act prescribed or allowed by the Code.  The amendment  provides that the period shall not exceed 30 days in total.  Before  amendment, there was no such restriction of time.  Whether the Court has  no inherent power to extend the time beyond 30 days is the question.  We  have no doubt that the upper limit fixed in Section 148 cannot take away  the inherent power of the Court to pass orders as may be necessary for  the ends of justice or to prevent abuse of process of Court.  The rigid  operation of the section would lead to absurdity.  Section 151 has,  therefore, to be allowed to fully operate.  Extension beyond maximum of 30  days, thus, can be permitted if the act could not be performed within 30  days for the reasons beyond the control of the party.  We are not dealing  with a case where time for doing an act has been prescribed under the  provisions of the Limitation Act which cannot be extended either under  Section 148 or Section 151.  We are dealing with a case where the time is  fixed or granted by the Court for performance of an act prescribed or  allowed by the Court.   In Mahanth Ram Das v. Ganga Das [AIR 1961 SC 882], this Court  considered a case where an order was passed by the Court that if the  Court fee was not paid by a particular day, the suit shall stand dismissed.   It was a self-operating order leading to dismissal of the suit.  The party’s  application filed under Sections 148 and 151 of the Code for extension of  time was dismissed.  Allowing the appeal, it was observed: "How undesirable it is to fix time peremptorily for  a future happening which leaves the Court  powerless to deal with events that might arise in  between, it is not necessary to decide in this  appeal.  These orders turn out, often enough to  be inexpedient.  Such procedural orders, though  peremptory (conditional decree apart), are, in  essence, in terrorem, so that dilatory litigants  might put themselves in order and avoid delay.   They do not, however, completely estop a Court  from taking note of events and circumstances  which happen within the time fixed.  For example,  it cannot be said that, if the appellant had started  with the full money ordered to be paid and came  well in time, but was set upon and robbed by  thieves the day previous, he could not ask for  extension of time or that the Court was powerless  to extend it.  Such orders are not like the law of  the Medes and the Persians."

       There can be many cases where non-grant of extension beyond 30  days would amount to failure of justice.  The object of the Code is not to  promote failure of justice.  Section 148, therefore, deserves to be read  down to mean that where sufficient cause exists or events are beyond the  control of a party, the Court would have inherent power to extend time  beyond 30 days.         Order IX Rule 5         The period of seven days mentioned in Order IX Rule 5 is clearly  directory.           Order XI Rule 15 The stipulation in Rule 15 of Order XI confining the inspection of  documents ’at or before the settlement of issues’ instead of ’at any time’ is  also nothing but directory.  It does not mean that the inspection cannot be  allowed after the settlement of issues.

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       Judicial Impact Assessment The Committee has taken note of para 7.8.2 of Volume I of the  Report of the National Commission to Review the Working of the  Constitution which reads as follows : "7.8.2 Government of India should not throw the  entire burden of establishing the subordinate  courts and maintaining the subordinate judiciary  on the State Governments.  There is a concurrent  obligation on the Union Government to meet the  expenditure for subordinate courts.  Therefore,  the Planning Commission and the Finance  Commission must allocate sufficient funds from  national resources to meet the demands of the  State Judiciary in each of the States."

       The Committee has further noticed that : "33.3   As pointed out by the Constitution Review  Commission, the laws which are being  administered by the Courts which are subordinate  to the High Court are laws which have been made  by, (a)     parliament on subjects which fall under the  Entries in List I and List III of Schedule 7 to  the Constitution, or  (b)     State legislatures on subjects which fall  under the Entries in List II and List III of  Schedule 7 to the Constitution. But, the bulk of the cases (civil, criminal) in the  subordinate Courts concern the Law of Contract,  Transfer of Property Act, Sale of Goods Act,  Negotiable Instruments Act, Indian Penal Code,  Code of Civil Procedure, Code of Criminal  Procedure etc., which are all Central Laws made  under List III.  In addition, the subordinate Courts  adjudicate cases (in civil, criminal) arising under  Central Laws made under List I. 33.4    The central Government has, therefore, to  bear a substantial portion of the expenditure on  subordinate Courts which are now being  established/maintained by the States.  (The  Central Government has only recently given  monies for the fast track courts but these courts  are a small fraction of the required number). 33.5    Under Article 247, Central Government  could establish Courts for the purpose of  administering Central Laws in List I.  Except a few  Tribunals, no such Courts have been established  commensurate with the number of cases arising  out of subjects in List I."

       The Committee has suggested that the Central Government has to  provide substantial funds for establishing courts which are subordinate to  the High Court and the Planning Commission and the Finance must make  adequate provisions therefore, noticing that it has been so recommended  by the Constitution Review Committee.         The Committee has also suggested that : "Further, there must be ’judicial impact  assessment’, as done in the United States,  whenever any legislation is introduced either in  Parliament or in the State Legislatures.  The  financial memorandum attached to each Bill must  estimate not only the budgetary requirement of  other staff but also the budgetary requirement for  meeting the expenses of the additional cases that

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may arise out of the new Bill when it is passed by  the legislature.  The said budget must mention  the number of civil and criminal cases likely to be  generated by the new Act, how many Courts are  necessary, how many Judges and staff are  necessary and what is the infrastructure  necessary.  So far in the last fifty years such a  judicial impact assessment has never been made  by any legislature or by Parliament in our  country."

       Having regard to the constitutional obligation to provide fair, quick  and speedy justice, we direct the Central Government to examine the  aforesaid suggestions and submit a report on this Court within four  months. Report No.2         We will now take up Report No.2 dealing with model Alternative  Dispute Resolution and Mediation Rules. Part X of the Code (Sections 121 to 131) contains provisions in  respect of the Rules.  Sections 122 and 125 enable the High Courts to  make Rules.  Section 128 deals with matters for which rules may provide.   It, inter alia, states that the rules which are not inconsistent with the  provisions in the body of the Code, but, subject thereto, may provide for  any matters relating to the procedure of Civil Courts.           The question for consideration is about framing of the rules for the  purposes of Section 89 and Order X Rules 1A, 1B and 1C.  These  provisions read as under: "89.Settlement of disputes outside the Court\027 (1) Where it appears to the Court that there exist  elements of a settlement which may be  acceptable to the parties, the Court shall  formulate the terms of settlement and given them  to the parties for their observations and after  receiving the observations of the parties, the  Court may reformulate the terms of a possible  settlement and refer the same for\027 (a)     arbitration; (b)     conciliation; (c)     judicial settlement including  settlement through Lok Adalat; or                         (d)     mediation. (2)     Where a dispute has been referred\027 (a)     for arbitration or conciliation, the provisions  of the Arbitration and Conciliation Act, 1996  (26 of 1996) shall apply as if the  proceedings for arbitration or conciliation  were referred for settlement under the  provisions of that Act; (b)     to Lok Adalat, the Court shall refer the  same to the Lok Adalat in accordance with  the provisions of sub-section (1) of section  20 of the Legal Services Authority Act,  1987 (39 of 1987) and all other provisions  of that Act shall apply in respect of the  dispute so referred to the Lok Adalat; (c)     for judicial settlement, the Court shall refer  the same to a suitable institution  or person  and such institution or person shall be  deemed to be a Lok Adalat and all the  provisions of the Legal Services Authority  Act, 1987 (39 of 1987) shall apply as if the  dispute were referred to a Lok Adalat under  the provisions of that Act; (d)     for mediation, the Court shall effect a  compromise between the parties and shall

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follow such procedure as may be  prescribed.

1A.     Direction of the court to opt for any  one mode of alternative dispute  resolution.\027After recording the admissions  and denials, the Court shall direct the  parties  to the suit to opt either mode of the  settlement outside the Court as specified in  sub-section (1) of section 89.  On the  option of the parties, the Court shall fix the  date of appearance before such forum or  authority as may be opted by the parties. 1B.  Appearance before the conciliatory  forum or authority\027Where a suit is referred  under rule 1A, the parties shall appear  before such forum or authority for  conciliation of the suit. 1C.     Appearance before the Court  consequent to the failure of efforts of  conciliation\027Where a suit is referred under  rule 1A and the presiding officer of  conciliation forum or authority is satisfied  that it would not be proper in the interest of  justice to proceed with the matter further,  then, it shall refer the matter again to the  Court and direct the parties to appear  before the Court on the date fixed by it."          

       Some doubt as to a possible conflict has been expressed in view of  use of the word ’may’ in Section 89 when it stipulates that ’the Court may  reformulate the terms of a possible settlement and refer the same for’ and  use of the word ’shall’ in Order X, Rule 1A when it states that ’the Court  shall direct the parties to the suit to opt either mode of settlements outside  the Court as specified in sub-section (1) of Section 89’. As can be seen from Section 89, its first part uses the word ’shall’  when it stipulates that the ’court shall formulate terms of settlement’.  The  use of the word ’may’ in later part of Section 89 only relates to the aspect  of reformulating the terms of a possible settlement.  The intention of the  legislature behind enacting Section 89 is that where it appears to the Court  that there exists element of a settlement which may be acceptable to the  parties, they, at the instance of the court, shall be made to apply their mind  so as to opt for one or the other of the four ADR methods mentioned in the  Section and if the parties do not agree, the court shall refer them to one or  other of the said modes.  Section 89 uses both the word ’shall’ and ’may’  whereas Order X, Rule 1A uses the word ’shall’ but on harmonious reading  of these provisions it becomes clear that the use of the word ’may’ in  Section 89 only governs the aspect of reformulation of the terms of a  possible settlement and its reference to one of ADR methods.  There is no  conflict.  It is evident that what is referred to one of the ADR modes is the  dispute which is summarized in the terms of settlement formulated or  reformulated in terms of Section 89.         One of the modes to which the dispute can be referred is  ’Arbitration’.  Section 89 (2) provides that where a dispute has been  referred for Arbitration or Conciliation, the provisions of the Arbitration and  Conciliation Act, 1996 (for short ’1996 Act’) shall apply as if the  proceedings for Arbitration or Conciliation were referred for settlement  under the provisions of 1996 Act.  Section 8 of the 1996 Act deals with the  power to refer parties to Arbitration where there is arbitration agreement.   As held in P.Anand Gajapathi Raju and Others v. P.V.G.Raju (Dead)  and Others [(2000) 4 SCC 539], 1996 Act governs a case where  arbitration is agreed upon before or pending a suit by all the parties. The  1996 Act, however, does not contemplate a situation as in Section 89 of  the Code where the Court asks the parties to choose one or other ADRs

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including Arbitration and the parties choose Arbitration as their option.  Of  course, the parties have to agree for Arbitration.  Section 82 of 1996 Act  enables the High Court to make Rules consistent with this Act as to all  proceedings before the Court under 1996 Act.  Section 84 enables the  Central Government to make rules for carrying out the provisions of the  Act.  The procedure for option to Arbitration among four ADRs is not  contemplated by the 1996 Act and, therefore, Section 82 or 84 has no  applicability where parties agree to go for arbitration under Section 89 of  the Code.  As already noticed, for the purposes of Section 89 and Order X,  Rule 1A, 1B and 1C, the relevant Sections in Part X of the Code enable  the High Court to frame rules.  If reference is made to Arbitration under  Section 89 of the Code, 1996 Act would apply only from the stage after  reference and not before the stage of reference when options under  Section 89 are given by the Court and chosen by the parties.    On the  same analogy, 1996 Act in relation to Conciliation would apply only after  the stage of reference to Conciliation. The 1996 Act does not deal with a  situation where after suit is filed, the court requires a party to choose one  or other ADRs including Conciliation.  Thus, for Conciliation also rules can  be made under Part X of the Code for purposes of procedure for opting for  ’Conciliation’ and upto the stage of reference to Conciliation.  Thus, there  is no impediment in the ADR rules being framed in relation to Civil Court as  contemplated in Section 89 upto the stage of reference to ADR.  The 1996  Act comes into play only after the stage of reference upto the award.   Applying the same analogy, the Legal Services Authority Act, 1987 (for  short ’1987 Act’) or the Rules framed thereunder by the State  Governments cannot act as impediment in the High Court making rules  under Part X of the Code covering the manner in which option to Lok  Adalat can be made being one of the modes provided in Section 89.  The  1987 Act also does not deal with the aspect of exercising option to one of  four ADR methods mentioned in Section 89.  Section 89 makes applicable  1996 Act and 1987 Act from the stage after exercise of options and making  of reference.         A doubt has been expressed in relation to clause (d) of Section 89  (2) of the Code on the question as to finalisation of the terms of the  compromise.  The question is whether the terms of compromise are to be  finalised by or before the mediator or by or before the court.  It is evident  that all the four alternatives, namely, Arbitration, Conciliation, judicial  settlement including settlement through Lok Adalat and mediation are  meant to be the action of persons or institutions outside the Court and not  before the Court.  Order X, Rule 1C speaks of the ’Conciliation forum’  referring back the dispute to the Court.  In fact, the court is not involved in  the actual mediation/conciliation.  Clause (d) of Section 89(2) only means  that when mediation succeeds and parties agree to the terms of  settlement, the mediator will report to the court and the court, after giving  notice and hearing the parties, ’effect’ the compromise and pass a decree  in accordance with the terms of settlement accepted by the parties.   Further, in this view, there is no question of the Court which refers the  matter to mediation/conciliation being debarred from hearing the matter  where settlement is not arrived at.  The Judge who makes the reference  only considers the limited question as to whether there are reasonable  grounds to expect that there will be settlement and on that ground he  cannot be treated to be disqualified to try the suit afterwards if no  settlement is arrived at between the parties.         The question also is about the payment made and expenses to be  incurred where the court compulsorily refers a matter for  conciliation/mediation.  Considering large number of responses received  by the Committee to the draft rules it has suggested that in the event of  such compulsory reference to conciliation/mediation procedures if  expenditure on conciliation/mediation is borne by the government, it may  encourage parties to come forward and make attempts at  conciliation/mediation.  On the other hand, if the parties feel that they have  to incur extra expenditure for resorting to such ADR modes, it is likely to  act as a deterrent for adopting these methods.  The suggestion is laudable.   The Central Government is directed to examine it and if agreed, it shall  request the Planning Commission and Finance Commission to make

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specific financial allocation for the judiciary for including the expenses  involved for mediation/conciliation under Section 89 of the Code.  In case,  Central Government has any reservations, the same shall be placed  before the court within four months.  In such event, the government shall  consider provisionally releasing adequate funds for these purposes also  having regard to what we have earlier noticed about many statutes that are  being administered and litigations pending in the Courts in various States  are central legislations concerning the subjects in List I and List III of  Schedule VII to the Constitution of India. With a view to enable the Court to refer the parties to  conciliation/mediation, where parties are unable to reach a consensus on  an agreed name, there should be a panel of well trained  conciliators/mediators to which it may be possible for the Court to make a  reference.  It would be necessary for the High Courts and district courts to  take appropriate steps in the direction of preparing the requisite panels. A doubt was expressed about the applicability of ADR rules for  dispute arising under the Family Courts Act since that Act also  contemplates rules to be made.  It is, however, to be borne in mind that the  Family Courts Act applies the Code for all proceedings before it.  In this  view, ADR rules made under the Code can be applied to supplement the  rules made under the Family Courts Act and provide for ADR insofar as  conciliation/mediation is concerned.   It seems clear from the report that while drafting the model rules,  after examining the mediation rules in various countries, a fine distinction is  tried to be maintained between conciliation and mediation, accepting the  views expressed by British author Mr.Brown in his work on India that in  ’conciliation’ there is little more latitude and conciliator can suggest some  terms of settlements too.  When the parties come to a settlement upon a reference made by  the Court for mediation, as suggested by the Committee that there has to  be some public record of the manner in which the suit is disposed of and,  therefore, the Court has to first record the settlement and pass a decree in  terms thereof and if necessary proceed to execute it in accordance with  law.  It cannot be accepted that such a procedure would be unnecessary.   If the settlement is not filed in the Court for the purpose of passing of a  decree, there will be no public record of the settlement.  It is, however, a  different matter if the parties do not want the court to record a settlement  and pass a decree and feel that the settlement can be implemented even  without decree.  In such eventuality, nothing prevents them in informing the  Court that the suit may be dismissed as a dispute has been settled  between the parties outside the Court.         Regarding refund of the court fee where the matter is settled by the  reference to one of the modes provided in Section 89 of the Act, it is for the  State Governments to amend the laws on the lines of amendment made in  Central Court Fee Act by 1999 Amendment to the Code.  The State  Governments can consider making similar amendments in the State Court  Fee legislations.         The draft rules have been finalised by the Committee.  Prior to  finalisation, the same were circulated to the High Courts, subordinate  courts, the Bar Council of India, State Bar Councils and the Bar  Associations, seeking their responses.  Now, it is for the respective High  Courts to take appropriate steps for making rules in exercise of rule  making power subject to modifications, if any, which may be considered  relevant.   The draft Civil Procedure-Alternative Dispute Resolution and  Mediation Rules as framed by the Committee read as under: "Civil Procedure ADR and Mediation Rules (These Rules are the final Rules framed by the  Committee, in modification of the Draft Rules  circulated earlier, after considering the responses  to the Consultation paper) Civil Procedure Alternative Dispute Resolution  and Mediation Rules, 2003         In exercise of the rule making power under  Part X of the Code of Civil Procedure, 1908 (5 of

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1908) and clause (d) of sub-section (2) of Section  89 of the said Code, the High Court of  \005\005\005\005\005.., is hereby issuing the following  Rules: Part I Alternative Dispute Resolution Rules Rule 1: Title         These Rules in Part I shall be called the  ’Civil Procedure \026 Alternative Dispute Resolution  Rules 2003’. Rule 2: Procedure for directing parties to opt  for alternative modes of settlement (a)     The Court shall, after recording admissions  and denials at the first hearing of the suit  under Rule 1 of Order X, and where it  appears to the Court that there exist  elements of a settlement which may be  acceptable to the parties, formulate the  terms of settlement and give them to the  parties for their observations under sub- section (1) of Section 89, and the parties  shall submit to the Court their responses  within thirty days of the first hearing. (b)     At the next hearing, which shall be not later  than thirty days of the receipt of responses,  the Court may reformulate the terms of  a  possible settlement and shall direct the  parties to opt for one of the modes of  settlement of disputes outside the Court as  specified in clauses (a) to (d) of sub-section  (1) of Section 89 read with Rule 1A of  Order X, in the manner stated hereunder,                 Provided that the Court, in the  exercise of such power, shall not refer any  dispute to arbitration or to judicial  settlement by a person or institution without  the written consent of all the parties to the  suit. Rule 3: Persons authorized to take decision  for the Union of India, State  Governments and others: (1)     For the purpose of Rule 2, the Union of  India or the Government of a State or  Union Territory, all local authorities, all  Public Sector Undertakings, all statutory  corporations and all public authorities shall  nominate a person or persons or group of  persons who are authorized to take a final  decision as to the mode of Alternative  Dispute Resolution in which it proposes to  opt in the event of direction by the Court  under Section 89 and such nomination  shall be communicated to the High Court  within the period of three months from the  date of commencement of these Rules and  the High Court shall notify all the  subordinate courts in this behalf as soon as  such nomination is received from such  Government or authorities. (2)     Where such person or persons or group of  persons have not been nominated as  aforesaid, such party as referred to in  clause (1) shall, if it is a plaintiff, file along  with the plaint or if it is a defendant file,  along with or before the filing of the written

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statement, a memo into the Court,  nominating a person or persons or group of   persons who is or are authorized to take a  final decision as to the mode of alternative  dispute resolution, which the party prefers  to adopt in the event of the Court directing  the party to opt for one or other mode of  Alternative Dispute Resolution. Rule 4: Court to give guidance to parties  while giving direction to opt (a)     Before directing the parties to exercise  option under clause (b) of Rule 2, the Court  shall give such guidance as it deems fit to  the parties, by drawing their attention to the  relevant factors which parties will have to  take into account, before they exercise their  option as to the particular mode of  settlement, namely : (i)     that it will be to the advantage of the  parties, so far as time and expense  are concerned, to opt for one or other  of these modes of settlement  referred to in section 89 rather than  seek a trial on the disputes arising in  the suit; (ii)    that, where there is no relationship  between the parties which requires to  be preserved, it may be in the  interest of the parties to seek  reference of the matter of arbitration  as envisaged in clause (a) of sub- section (1) of section 89. (iii)   that, where there is a relationship  between the parties which requires to  be preserved, it may be in the  interest of parties to seek reference  of the matter to conciliation or  mediation, as envisaged in clauses  (b) or (d) of sub-section (1) of section  89.         Explanation : Disputes arising in  matrimonial, maintenance and child  custody matters shall, among  others, be treated as cases where a  relationship between the parties  has to be preserved. (iv)    that, where parties are interested in a  final settlement which may lead to a  compromise, it will be in the interests  of the parties to seek reference of the  matter to Lok Adalat or to judicial  settlement as envisaged in clause (c)  of sub-section (1) of section 89. (v)     the difference between the different  modes of settlement, namely,  arbitration, conciliation, mediation  and judicial settlement as explained  below : Settlement by ’Arbitration’ means the  process by which an arbitrator  appointed by parties or by the Court,  as the case may be, adjudicates the  disputes between the parties to the  suit and passes an award by the  application of the provisions of the

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Arbitration and Conciliation Act, 1996  (26 of 1996), in so far as they refer to  arbitration. Settlement by ’Conciliation’ means  the process by which a conciliator  who is appointed by parties or by the  Court, as the case may be,  conciliates the disputes between the  parties to the suit by the application  of the provisions of the Arbitration  and Conciliation Act, 1996 (26 of  1996) in so far as they relate to  conciliation, and in particular, in  exercise of his powers under  sections 67 and 73 of that Act, by  making proposals for a settlement of  the dispute and by formulating or  reformulating the terms of a possible  settlement; and has a greater role  than a mediator. Settlement by ’Mediation’ means the  process by which a mediator  appointed by parties or by the Court,  as the case may be, mediates the  dispute between the parties to the  suit by the application of the  provisions of the Mediation Rules,  2003 in Part II, and in particular, by  facilitating discussion between  parties directly or by communicating  with each other through the mediator,  by assisting parties in identifying  issues, reducing misunderstandings,  clarifying priorities, exploring areas of  compromise, generating options in  an attempt to solve the dispute and  emphasizing that it is the parties own  responsibility for making decisions  which affect them. Settlement in Lok Adalat means  settlement by Lok Adalat as  contemplated by the Legal Services  Authority Act, 1987. ’Judicial settlement’ means a final  settlement by way of compromise  entered into before a suitable  institution or person to which the  Court has referred the dispute and  which institution or person are  deemed to be the Lok Adalats under  the provisions of the Legal Service  Authority Act, 1987 (39 of 1987) and  where after such reference, the  provisions of the said Act apply as if  the dispute was referred to a Lok  Adalat under the provisions of that  Act. Rule 5 :        Procedure for reference by the Court  to the different modes of settlement : (a)     Where all parties to the suit decide to  exercise their option and to agree for  settlement by arbitration, they shall apply to  the Court, within thirty days of the direction  of the Court under clause (b) of Rule 2 and  the Court shall, within thirty days of the said

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application, refer the matter to arbitration  and thereafter the provisions of the  Arbitration and Conciliation Act, 1996 (26 of  1996) which are applicable after the stage  of making of the reference to arbitration  under that Act, shall apply as if the  proceedings were referred for settlement by  way of arbitration under the provisions of  that Act; (b)     Where all the parties to the suit decide to  exercise their option and to agree for  settlement by the Lok Adalat or where one  of the parties applies for reference to Lok  Adalat, the procedure envisaged under the  Legal Services Act, 1987 and in particular  by section 20 of that Act, shall apply. (c)     Where all the parties to the suit decide to  exercise their option and to agree for  judicial settlement, they shall apply to the  Court within thirty days of the direction  under clause (b) of Rule 2 and then the  Court shall, within thirty days of the  application, refer the matter to a suitable  institution or person and such institution or  person shall be deemed to be a Lok Adalat  and thereafter the provisions of the Legal  Services Authority Act, 1987 (39 of 1987)  which are applicable after the stage of  making of the reference to Lok Adalat  under that Act, shall apply as if the  proceedings were referred for settlement  under the provisions of that Act; (d)     Where none of the parties are willing to  agree to opt or agree to refer the dispute to  arbitration, or Lok Adalat, or to judicial  settlement, within thirty days of the  direction of the Court under clause (b) of  Rule 2, they shall consider if they could  agree for reference to conciliation or  mediation, within the same period. (e)(i)  Where all the parties opt and agree for  conciliation, they shall apply to the Court,  within thirty days of the direction under  clause (b) of Rule 2 and the Court shall,  within thirty days of the application refer the  matter to conciliation and thereafter the  provisions of the Arbitration and  Conciliation Act, 1996 (26 of 1996) which  are applicable after the stage of making of  the reference to conciliation under that Act,  shall apply, as if the proceedings were  referred for settlement by way of  conciliation under the provisions of that Act; (ii)    Where all the parties opt and agree for  mediation, they shall apply to the Court,  within thirty days of the direction under  clause (b) of Rule 2 and the Court shall,  within thirty days of the application, refer  the matter to mediation and then the  Mediation Rules, 2003 in Part II shall apply. (f)     Where under clause (d), all the parties are  not able to opt and agree for conciliation or  mediation, one or more parties may apply  to the Court within thirty days of the  direction under clause (b) of Rule 2,

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seeking settlement through conciliation or  mediation, as the case may be, and in that  event, the Court shall, within a further  period of thirty days issue notice to the  other parties to respond to the application,  and  (i)     in case all the parties agree for  conciliation, the Court shall refer the  matter to conciliation and thereafter,  the provisions of the Arbitration and  Conciliation Act, 1996 which are  applicable after the stage of making  of the reference to conciliation under  that Act, shall apply. (ii)    in case all the parties agree for  mediation, the Court shall refer the  matter to mediation in accordance  with the Civil Procedure \026 Mediation  Rules, 2003 in Part II shall apply. (iii)   in case all the parties do not agree  and where it appears to the Court  that there exist elements of a  settlement which may be acceptable  to the parties and that there is a  relationship between the parties  which has to be preserved, the Court  shall refer the matter to conciliation  or mediation, as the case may be.  In  case the dispute is referred to  Conciliation, the provisions of the  Arbitration and Conciliation Act, 1996  which are applicable after the stage  of making of the reference to  Conciliation under that Act shall and  in case the dispute is referred to  mediation, the provisions of the Civil  Procedure-Mediation Rules, 2003,  shall apply. (g)(i)          Where none of the parties apply for  reference either to arbitration, or Lok  Adalat, or judicial settlement, or for  conciliation or mediation, within thirty days  of the direction under clause (b) of Rule 2,  the Court shall, within a further period of  thirty days, issue notices to the parties or  their representatives fixing the matter for  hearing on the question of making a  reference either to conciliation or  mediation. (ii)    After hearing the parties or their  representatives on the day so fixed the  Court shall, if there exist elements of a  settlement which may be acceptable to the  parties and there is a relationship between  the parties which has to be preserved, refer  the matter to conciliation or mediation.  In  case the dispute is referred to Conciliation,  the provisions of the Arbitration and  Conciliation Act, 1996 which are applicable  after the stage of making of the reference  to Conciliation under that Act shall and in  case the dispute is referred to mediation,  the provisions of the Civil Procedure \026  Mediation Rules, 2003, shall apply. (h)(i)  No next friend or guardian for the suit shall,

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without the leave of the Court, expressly  recorded in the proceedings of the Court,  opt for any one of the modes of alternative  dispute resolution nor shall enter into any  settlement on behalf of a minor or person  under disability with reference to the suit in  which he acts as mere friend or guardian. (ii)    Where an application is made to the Court  for leave to enter into a settlement initiated  into in the alternative dispute resolution  proceedings on behalf of a minor or other  person under disability and such minor or  other person under disability is represented  by Counsel or pleader, the counsel or  pleader shall file a certificate along with the  said application to the effect that the  settlement is, in his opinion, for the benefit  of the minor or other person under  disability.  The decree of the Court based  on the settlement to which the minor or  other person under disability is a party,  shall refer to the sanction of the Court  thereto and shall set out the terms of the  settlement. Rule 6 :        Referral to the Court and appearance  before the Court upon failure of  attempts to settle disputes by  conciliation or judicial settlement or  mediation : (1)     Where a suit has been referred for  settlement for conciliation, mediation or  judicial settlement and has not been settled  or where it is felt that it would not be proper  in the interests of justice to proceed further  with the matter, the suit shall be referred  back again to the Court with a direction to  the parties to appear before the Court on a  specific date. (2)     Upon the reference of the matter back to  the Court under sub-rule (1) or under sub- section (5) of section 20 of the Legal  Services Authority Act, 1987, the Court  shall proceed with the suit in accordance  with law. Rule 7 :        Training in alternative methods of  resolution of disputes, and  preparation of manual : (a)     The High Court shall take steps to have  training courses conducted in places where  the High Court and the District Courts or  Courts of equal status are located, by  requesting bodies recognized by the High  Court or the Universities imparting legal  education or retired Faculty Members or  other persons who, according to the High  Court are well versed in the techniques of  alternative methods of resolution of dispute,  to conduct training courses for lawyers and  judicial officers. (b)(i)  The High Court shall nominate a committee  of judges, faculty members including retired  persons belonging to the above categories,  senior members of the Bar, other members  of the Bar specially qualified in the  techniques of alternative dispute resolution,

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for the purpose referred to in clause (a) and  for the purpose of preparing a detailed  manual of procedure for alternative dispute  resolution to be used by the Courts in the  State as well as by the arbitrators, or  authority or person in the case of judicial  settlement or conciliators or mediators. (ii)    The said manual shall describe the various  methods of alternative dispute resolution,  the manner in which any one of the said  methods is to be opted for, the suitability of  any particular method for any particular  type of dispute and shall specifically deal  with the role of the above persons in  disputes which are commercial or domestic  in nature or which relate to matrimonial,  maintenance and child custody matters. (c)     The High Court and the District Courts shall  periodically conduct seminars and  workshops on the subject of alternative  dispute resolution procedures throughout  the State or States over which the High  Court has jurisdiction with a view to bring  awareness of such procedures and to  impart training to lawyers and judicial  officers. (d)     Persons who have experience in the matter  of alternative dispute resolution  procedures, and in particular in regard to  conciliation and mediation, shall be given  preference in the matter of empanelment  for purposes of conciliation or mediation. Rule 8 :        Applicability to other proceedings :  The provisions of these Rules may be  applied to proceedings before the Courts,  including Family Courts constituted under  the Family Courts Act (66 of 1984), while  dealing with matrimonial, maintenance and  child custody disputes, wherever  necessary, in addition to the rules framed  under the Family Courts Act, (66 of 1984). PART II CIVIL PROCEDURE MEDIATION RULES Rule 1 :        Title :         These Rules in Part II shall be called the  Civil Procedure Mediation Rules, 2003. Rule 2 :        Appointment of mediator : (a)     Parties to a suit may all agree on the name  of the sole mediator for mediating between  them. (b)     Where, there are two sets of parties and  are unable to agree on a sole mediator,  each set of parties shall nominate a  mediator. (c)     Where parties agree on a sole mediator  under clause (a) or where parties nominate  more than one mediator under clause (b),  the mediator need not necessarily be from  the panel of mediators referred to in Rule 3  nor bear the qualifications referred to in  Rule 4 but should not be a person who  suffers from the disqualifications referred to  in Rule 5. (d)     Where there are more than two sets of  parties having diverse interests, each set

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shall nominate a person on its behalf and  the said nominees shall select the sole  mediator and failing unanimity in that  behalf, the Court shall appoint a sole  mediator. Rule 3 :        Panel of mediators : (a)     The High Court shall, for the purpose of  appointing mediators between parties in  suits filed on its original side, prepare a  panel of mediators and publish the same  on its Notice Board, within thirty days of the  coming into force of these Rules, with copy  to the Bar Association attached to the  original side of the High Court. (b)(i)  The Courts of the Principal District and  Sessions Judge in each District or the  Courts of the Principal Judge of the City  Civil Court or Courts of equal status shall,  for the purposes of appointing mediators to  mediate between parties in suits filed on  their original side, prepare a panel of  mediators, within a period of sixty days of  the commencement of these Rules, after  obtaining the approval of the High Court to  the names included in the panel, and shall  publish the same on their respective Notice  Board. (ii)    Copies of the said panels referred to in  clause (i) shall be forwarded to all the  Courts of equivalent jurisdiction or Courts  subordinate to the Courts referred to in  sub-clause (i) and to the Bar associations  attached to each of the Courts : (c)     The consent of the persons whose names  are included in the panel shall be obtained  before empanelling them. (d)     The panel of names shall contain a detailed  Annexure giving details of the qualifications  of the mediators and their professional or  technical experience in different fields. Rule 4 :        Qualifications of persons to be  empanelled under Rule 3 :         The following persons shall be treated as  qualified and eligible for being enlisted in  the panel of mediators under Rule 3,  namely : (a)      (i)    Retired Judges of the Supreme          Court of India;         (ii)    Retired Judges of the High Court; (iii)   Retired District and Sessions Judges   or retired Judges of the City Civil  Court or Courts of equivalent status. (b)     Legal practitioners with at least fifteen  years standing at the Bar at the level of  the Supreme Court or the High Court; or  the District Courts or Courts of equivalent  status. (c)      Experts or other professionals with at least  fifteen years standing; or retired senior  bureaucrats or retired senior executives; (d)     Institutions which are themselves experts in  mediation and have been recognized as  such by the High Court, provided the  names of its members are approved by the  High Court initially or whenever there is

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change in membership. Rule 5 :        Disqualifications of persons :                 The following persons shall be  deemed to be disqualified for being  empanelled as mediators : (i)     any person who has been adjudged as  insolvent or is declared of unsound mind. (ii)    or any person against whom criminal  charges involving moral turpitude are  framed by a criminal court and are pending,  or  (iii)   any person who has been convicted by a  criminal court for any offence involving  moral turpitude; (iv)    any person against whom disciplinary  proceedings or charges relating to moral  turpitude have been initiated by the  appropriate disciplinary authority which are  pending or have resulted in a punishment. (v)     any person who is interested or connected  with the subject-matter of dispute or is  related to any one of the parties or to those  who represent them, unless such objection  is waived by all the parties in writing. (vi)    any legal practitioner who has or is  appearing for any of the parties in the suit  or in any other suit or proceedings. (vii)   such other categories of persons as may  be notified by the High Court. Rule 6 :        Venue for conducting mediation :         The mediator shall conduct the mediation  at one or other of the following places: (i)     Venue of the Lok Adalar or permanent Lok  Adalat. (ii)    Any place identified by the District Judge  within the Court precincts for the purpose of  conducting mediation. (iii)   Any place identified by the Bar Association  or State Bar Council for the purpose of  mediation, within the premises of the Bar  Association or State Bar Council, as the  case may be. (iv)    Any other place as may be agreed upon by  the parties subject to the approval of the  Court. Rule 7: Preference:         The Court shall, while nominating any  person from the panel of mediators referred to in  Rule 3, consider his suitability for resolving the  particular class of dispute involved in the suit and  shall give preference to those who have proven  record of successful mediation or who have  special qualification or experience in mediation. Rule 8: Duty of mediator to disclose certain  facts : (a)     When a person is approached in  connection with his possible appointment  as a mediator, the person shall disclose in  writing to the parties, any circumstances  likely to give rise to a justifiable doubt as to  his independence or impartiality. (b)     Every mediator shall, from the time of his  appointment and throughout the  continuance of the mediation proceedings,  without delay, disclose to the parties in

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writing, about the existence of any of the  circumstances referred to in clause (a). Rule 9 :        Cancellation of appointment :         Upon information furnished by the mediator  under Rule 8 or upon any other information  received from the parties or other persons, if the  Court, in which the suit is filed, is satisfied, after  conducting such inquiry as it deems fit, and after  giving a hearing to the mediator, that the said  information has raised a justifiable doubt as to the  mediator’s independence or impartiality, it shall  cancel the appointment by a reasoned order and  replace him by another mediator. Rule 10 :       Removal or deletion from panel :         A person whose name is placed in the  panel referred to in Rule 3 may be removed or his  name be deleted from the said panel, by the  Court which empanelled him, if : (i)     he resigns or withdraws his name from the  panel for any reason; (ii)    he is declared insolvent or is declared of  unsound mind; (iii)   he is a person against whom criminal  charges involving moral turpitude are  framed by a criminal court and are pending; (iv)    he is a person who has been convicted by  a criminal court for any offence involving  moral turpitude; (v)     he is a person against whom disciplinary  proceedings on charges relating to moral  turpitude have been initiated by appropriate  disciplinary authority which are pending or  have resulted in a punishment; (vi)    he exhibits or displays conduct, during the  continuance of the mediation proceedings,  which is unbecoming of a mediator; (vii)   the Court which empanelled, upon receipt  of information, if it is satisfied, after  conducting such inquiry as it deem fit, is of  the view, that it is not possible or desirable  to continue the name of that person in the  panel,                 Provided that, before removing or  deleting his name, under clause (vi) and  (vii), the Court shall hear the mediator  whose name is proposed to be removed or  deleted from the panel and shall pass a  reasoned order. Rule 11 :       Procedure of mediation : (a)     The parties may agree on the procedure to  be followed by the mediator in the conduct  of the mediation proceedings. (b)     Where the parties do not agree on any  particular procedure to be followed by the  mediator, the mediator shall follow the  procedure hereinafter mentioned, namely : (i)     he shall fix, in consultation with the  parties, a time schedule, the dates  and the time of each mediation  session, where all parties have to be  present; (ii)    he shall hold the mediation  conference in accordance with the  provisions of Rule 6; (iii)   he may conduct joint or separate

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meetings with the parties; (iv)    each party shall, ten days before a  session, provide to the mediator a  brief memorandum setting forth the  issues, which according to it, need to  be resolved, and its position in  respect to those issues and all  information reasonably required for  the mediator to understand the issue;  such memoranda shall also be  mutually exchanged between the  parties; (v)     each party shall furnish to the  mediator, copies of pleadings or  documents or such other information  as may be required by him in  connection with the issues to be  resolved.         Provided that where the mediator is  of the opinion that he should look into  any original document, the Court  may permit him to look into the  original document before such officer  of the Court and on such date or time  as the Court may fix. (vi)    each party shall furnish to the  mediator such other information as  may be required by him in  connection with the issues to be  resolved. (c)     Where there is more than one mediator, the  mediator nominated by each party shall first  confer with the party that nominated him  and shall thereafter interact with the other  mediators, with a view to resolving the  disputes. Rule 12 :       Mediator not bound by Evidence Act,  1872 or Code of Civil Procedure,  1908 :         The mediator shall not be bound by the  Code of Civil Procedure 1908 or the Evidence  Act, 1872, but shall be guided by principles of  fairness and justice, have regard to the rights and  obligations of the parties, usages of trade, if any,  and the nature of the dispute. Rule 13 :       Non-attendance of parties at  sessions or meetings on due dates : (a)     The parties shall be present personally or  may be represented by their counsel or  power of attorney holders at the meetings  or sessions notified by the mediator. (b)     If a party fails to attend a session or a  meeting notified by the mediator, other  parties or the mediator can apply to the  Court in which the suit is filed, to issue  appropriate directions to that party to attend  before the mediator and if the Court finds  that a party is absenting himself before the  mediator without sufficient reason, the  Court may take action against the said  party by imposition of costs. (c)     The parties not resident in India, may be  represented by their counsel or power of  attorney holders at the sessions or  meetings.

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Rule 14 :       Administrative assistance : In order to facilitate the conduct of  mediation proceedings, the parties, or the  mediator with the consent of the parties, may  arrange for administrative assistance by a  suitable institution or person. Rule 15 :       Offer of settlement by parties : (a)     Any party to the suit may, ’without  prejudice’, offer a settlement to the other  party at any stage of the proceedings, with  notice to the mediator. (b)     Any party to the suit may make a, ’with  prejudice’ offer, to the other party at any  stage of the proceedings, with notice to the  mediator. Rule 16 :       Role of mediator : The mediator shall attempt to facilitate  voluntary resolution of the dispute by the parties,  and communicate the view of each party to the  other, assist them in identifying issues, reducing  misunderstandings, clarifying priorities, exploring  areas of compromise and generating options in  an attempt to solve the dispute, emphasizing that  it is the responsibility of the parties to take  decision which effect them; he shall not impose  any terms of settlement on the parties. Rule 17 :       Parties alone responsible for taking  decision :         The parties must understand that the  mediator only facilitates in arriving at a decision to  resolve disputes and that he will not and cannot  impose any settlement nor does the mediator give  any warranty that the mediation will result in a  settlement.  The mediator shall not impose any  decision on the parties. Rule 18 :       Time limit for completion of mediation :         On the expiry of sixty days from the date  fixed for the first appearance of the parties before  the mediator, the mediation shall stand  terminated, unless the Court, which referred the  matter, either suo moto, or upon request by the  mediator or any of the parties, and upon hearing  all the parties, is of the view that extension of time  is necessary or may be useful; but such extension  shall not be beyond a further period of thirty days. Rule 19 :       Parties to act in good faith :         While no one can be compelled to commit  to settle his case in advance of mediation, all  parties shall commit to participate in the  proceedings in good faith with the intention to  settle the dispute, if possible. Rule 20 :       Confidentiality, disclosure and  inadmissibility of information : (1)     When a mediator receives confidential  information concerning the dispute from  any party, he shall disclose the substance  of that information to the other party, if  permitted in writing by the first party. (2)     when a party gives information to the  mediator subject to a specific condition that  it be kept confidential, the mediator shall  not disclose that information to the other  party, nor shall the mediator voluntarily  divulge any information regarding the  documents or what is conveyed to him

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orally as to what transpired during the  mediation.   (3)     Receipt or perusal, or preparation of  records, reports or other documents by the  mediator, or receipt of information orally by  the mediator while serving in that capacity,  shall be confidential and the mediator shall  not be compelled to divulge information  regarding the documents nor in regard to  the oral information nor as to what  transpired during the mediation. (4)     Parties shall maintain confidentiality in  respect of events that transpired during  mediation and shall not rely on or introduce  the said information in any other  proceedings as to : (a)     views expressed by a party in the  course of the mediation proceedings; (b)     documents obtained during the  mediation which were expressly  required to be treated as confidential  or other notes, drafts or information  given by parties or mediators; (c)     proposals made or views expressed  by the mediator; (d)     admission made by a party in the  course of mediation proceedings; (e)     the fact that a party had or had not  indicated willingness to accept a  proposal; (5)     There shall be no stenographic or audio or  video recording of the mediation  proceedings. Rule 21 :       Privacy Mediation sessions and meetings are  private; only the concerned parties or their  counsel or power of attorney holders can attend.   Other persons may attend only with the  permission of the parties or with the consent of  the mediator. Rule 22 :       Immunity :         No mediator shall be held liable for  anything bona fide done or omitted to be done by  him during the mediation proceedings for civil or  criminal action nor shall he be summoned by any  party to the suit to appear in a Court of law to  testify in regard to information received by him or  action taken by him or in respect of drafts or  records prepared by him or shown to him during  the mediation proceedings. Rule 23 :       Communication between mediator  and the Court : (a)     In order to preserve the confidence of  parties in the Court and the neutrality of the  mediator, there should be no  communication between the mediator and  the Court, except as stated in clauses (b)  and (c) of this Rule. (b)     If any communication between the mediator  and the Court is necessary, it shall be in  writing and copies of the same shall be  given to the parties or their counsel or  power of attorney. (c)     Communication between the mediator and  the Court shall be limited to communication

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by the mediator : (i)     with the Court about the failure of  party to attend; (ii)    with the Court with the consent of the  parties; (iii)   regarding his assessment that the  case is not suited for settlement  through mediation; (iv)    that the parties have settled the  dispute or disputes. Rule 24 :       Settlement Agreement : (1)     Where an agreement is reached between  the parties in regard to all the issues in the  suit or some of the issues, the same shall  be reduced to writing and signed by the  parties or their power of attorney holder.  If  any counsel have represented the parties,  they shall attest the signature of their  respective clients. (2)     The agreement of the parties so signed and  attested shall be submitted to the mediator  who shall, with a covering letter signed by  him, forward the same to the Court in which  the suit is pending. (3)     Where no agreement is arrived at between  the parties, before the time limit stated in  Rule 18 or where, the mediator is of the  view that no settlement is possible, he shall  report the same to the said Court in writing. Rule 25 :       Court to fix a date for recording  settlement and passing decree : (1)     Within seven days of the receipt of any  settlement, the Court shall issue notice to  the parties fixing a day for recording the  settlement, such date not being beyond a  further period of fourteen days from the  date of receipt of settlement, and the Court  shall record the settlement, if it is not  collusive. (2)     The Court shall then pass a decree in  accordance with the settlement so  recorded, if the settlement disposes of all  the issues in the suit. (3)     If the settlement disposes of only certain  issues arising in the suit, the Court shall  record the settlement on the date fixed for  recording the settlement and (i) if the  issues are servable from other issues and if  a decree could be passed to the extent of  the settlement covered by those issues, the  Court may pass a decree straightaway in  accordance with the settlement on those  issues without waiting for a decision of the  Court on the other issues which are not  settled. (ii)    if the issues are not servable, the Court  shall wait for a decision of the Court on the  other issues which are not settled. Rule 26 :       Fee of mediator and costs : (1)     At the time of referring the disputes to  mediation, the Court shall, after consulting  the mediator and the parties, fix the fee of  the mediator., (2)     As far as possible a consolidated sum may  be fixed rather than for each session or

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meeting. (3)     Where there are two mediators as in clause  (b) of Rule 2, the Court shall fix the fee  payable to the mediators which shall be  shared equally by the two sets of parties. (4)     The expense of the mediation including the  fee of the mediator, costs of administrative  assistance, and other ancillary expenses  concerned, shall be borne equally by the  various contesting parties or as may be  otherwise directed by the Court. (5)     Each party shall bear the costs for  production of witnesses on his side  including experts, or for production of  documents. (6)     The mediator may, before the  commencement of mediation, direct the  parties to deposit equal sums, tentatively,  to the extent of 40% of the probable costs  of the mediation, as referred to in clauses  (1), (3) and (4).  The remaining 60% shall  be deposited with the mediator, after the  conclusion of mediation.  For the amount of  cost paid to the mediator, he shall issue the  necessary receipts and a statement of  account shall be filed, by the mediator in  the Court. (7)     The expense of mediation including fee, if  not paid by the parties, the Court shall, on  the application of the mediator or parties,  direct the concerned parties to pay, and if  they do not pay, the Court shall recover the  said amounts as if there was a decree for  the said amount. (8)     Where a party is entitled to legal aid under  section 12 of the Legal Services Authority  Act, 1987, the amount of fee payable to the  mediator and costs shall be paid by the  concerned Legal Services Authority under  that Act. Rule 27 :       Ethics to be followed by mediator : The mediator shall : (1)     follow and observe these Rules strictly and  with due diligence; (2)     not carry on any activity or conduct which  could reasonably be considered as conduct  unbecoming of a mediator; (3)     uphold the integrity and fairness of the  mediation process; (4)     ensure that the parties involved in the  mediation and fairly informed and have an  adequate understanding of the procedural  aspects of the process; (5)     satisfy himself/herself that he/she is  qualified to undertake and complete the  assignment in a professional manner; (6)     disclose any interest or relationship likely to  affect impartiality or which might seek an  appearance of partiality or bias; (7)     avoid, while communicating with the  parties, any impropriety or appearance of  impropriety; (8)     be faithful to the relationship of trust and  confidentiality imposed in the office of  mediator;

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(9)     conduct all proceedings related to the  resolutions of a dispute, in accordance with  the applicable law; (10)    recognize that mediation is based on  principles of self-determination by the  parties and that mediation process relies  upon the ability of parties to reach a  voluntary, undisclosed agreement; (11)    maintain the reasonable expectations of the  parties as to confidentiality; (12)    refrain from promises or guarantees of  results. Rule 28 :       Transitory provisions : Until a panel of arbitrators is prepared by  the High Court and the District Court, the Courts  referred to in Rule 3, may nominate a mediator of  their choice if the mediator belongs to the various  classes of persons referred to in Rule 4 and is  duly qualified and is not disqualified, taking into  account the suitability of the mediator for  resolving the particular dispute."

Report No.3         Report No.3 deals with the Case Flow Management and Model  Rules.  The case management policy can yield remarkable results in  achieving more disposal of the cases.  Its mandate is for the Judge or an  officer of the court to set a time-table and monitor a case from its initiation  to its disposal.  The Committee on survey of the progress made in other  countries has come to a conclusion that the case management system has  yielded exceedingly good results.         Model Case Flow Management Rules have been separately dealt  with for trial courts and first appellate subordinate courts and for High  Courts.  These draft Rules extensively deal with the various stages of the  litigation.  The High Courts can examine these Rules, discuss the matter  and consider the question of adopting or making case law management  and model rules with or without modification, so that a step forward is  taken to provide to the litigating public a fair, speedy and inexpensive  justice.   The Model Case Flow Management Rules read as under: "MODEL CASE FLOW MANAGEMENT RULES (A)     Model Case Management Rules for Trial  Courts and First Appellate Subordinate  Courts I.      Division of Civil Suits and Appeals into  Tracks II.     Original Suits 1.      Fixation of time limits while issuing  notice 2.      Service of Summons/notice and  completion of pleadings 3.      Calling of Cases (Hajri or Call Work  or Roll Call) 4.      Procedure on the grant of interim  orders 5.      Referral to Alternate Dispute  Resolution 6.      Procedure on the failure of Alternate  Dispute Resolution 7.      Referral to Commissioner for  recordal of evidence 8.      Costs 9.      Proceedings for Perjury 10.     Adjournments 11.     miscellaneous Applications. III.    First Appeals to Subordinate Courts

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1.      Service of Notice of Appeal 2.      Essential Documents to be filed with  the Memorandum of Appeal 3.      Fixation of time limits in interlocutory  matters  4.      Steps for completion of all formalities  (Call Work Hajri) 5.      Procedure on grant of interim-orders 6.      Filing of Written submissions 7.      Costs IV.     Application/Petition under Special Acts V.      Criminal Trial and Criminal Appeals to  Subordinate Courts (a)     Criminal Trials (b)     Criminal Appeals VI.     Notice under section 80 of Code of Civil  Procedure VII.    Note (B)     Model Case Flow Management Rules in  High Court I.      Division of Cases into Tracks II.     Writ of Habeas Corpus III.    Mode of Advance Service IV.     First Appeals to High Court V.      Appeals to Division Bench VI.     Second Appeals. VII.    Civil Revisions VIII.   Criminal Appeals IX.     Note. \005\005..High Court Rules, 2003 In exercise of the power conferred by Part X of  the Code of Civil Procedure 1908, (5 of 1908) and  \005.. High Court Act, \005\005 and all other powers  enabling, the \005. High Court hereby makes the  following Rules, in regard to case flow  management in the subordinate courts. (A)     Model Rules for Trial Courts and First  Appellate Subordinate Courts I.      Division of Civil Suits and Appeals into  Tracks 1.      Based on the nature of dispute, the  quantum of evidence to be recorded and the time  likely to be taken for the completion of suit, the  suits shall be channeled into different tracks.   Track I may include suits for maintenance,  divorce and child custody and visitation rights,  grant of letters of administration and succession  certificate and simple suits for rent or for eviction  (upon notice under Section 106 of Transfer of  Property Act).  Track 2 may consist of money  suits and suits based solely on negotiable  instruments.  Track 3 may include suits  concerning partition and like property disputes,  trademarks, copyrights and other intellectual  property matters.  Track 4 may relate to other  matters.  All efforts shall be taken to complete the  suits in track 1 within a period of 9 months, track  2 within 12 months and suits in track 3 and 4  within 24 months.         This categorization is illustrative and it will  be for the High Court to make appropriate  categorization.  It will be for the judge concerned  to make an appropriate assessment as to which  track any case can be assigned. 2.      Once in a month, the registry/administrative

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staff of each Court will prepare a report as to the  stage and progress of cases which are proposed  to be listed in next month and place the report  before the Court.  When the matters are listed on  each day, the judge concerned may take such  decision as he may deem fit in the presence of  counsel/parties in regard to each case for  removing any obstacles in service of summons,  completion of pleadings etc. with a view to make  the case ready for disposal. 3.      The judge referred to in clause (2) above,  may shift a case from one track to another,  depending upon the complexity and other  circumstances of the case. 4.      Where computerization is available, the  monthly data will be fed into the computer in such  a manner that the judge referred to in clause (2)  above, will be able to ascertain the position and  the stage of every case in every track from the  computer screen.  Over a period, all cases  pending in his Court will be covered.  Where  computerization is not available, the monitoring  must be done manually. 5.      The judge referred to in clause (2) above,  shall monitor and control the flow or progress of  every case, either from the computer or from the  register or data placed before him in the above  manner or in some other manner he may  innovate. II.     Original Suit : 1.      Fixation of time limits while issuing  notice : (a)     Wherever notice is issued in a suit, the  notice should indicate that the Code  prescribes a maximum of 30 days for filing  written statement (which for special  reasons may be extended upto 90 days)  and, therefore, the defendants may prepare  the written statement expeditiously and that  the matter will be listed for that purpose on  the expiry of eight weeks from the date of  issue of notice (so that it can be a definite  date).  After the written statement is filed,  the replication (if any, proposed and  permitted), should be filed within six weeks  of receipt of the written statement.  If there  are more than one defendant, each one of  the defendant should comply with this  requirement within the time-limit. (b)     The notice referred to in clause (a) shall be  accompanied by a complete copy of the  plaint and all its annexure/enclosures and  copies of the interlocutory applications, if  any. (c)     If interlocutory applications are filed along  with the plaint, and if an ex-parte interim  order is not passed and the Court is  desirous of hearing the respondent, it may,  while sending the notice along with the  plaint, fix an earlier date for the hearing of  the application (than the date for filing  written statement) depending upon the  urgency for interim relief. 2.      Service of Summons/notice and  completion of pleadings :

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(a)     Summons may be served as indicated in  clause (3) of Rule 9 of Order V. (b)     In the case of service of summons by the  plaintiff or a courier where a return is filed  that the defendant has refused notice, the  return will be accompanied by an  undertaking that the plaintiff or the courier,  as the case may be, is aware that if the  return is found to be false, he can be  punished for perjury or summarily dealt with  for contempt of Court for abuse of the  provisions of the Code.  Where the plaintiff  comes forward with a return of ’refusal’, the  provisions of Order 9A Rule (4) will be  followed by re-issue of summons through  Court. (c)     If it has not been possible to effect service  of summons under Rule 9 of Order V, the  provisions of Rule 17 of Order V shall apply  and the plaintiff shall within 7 days from the  date of its inability to serve the summons,  to request the Court to permit substituted  service.  The dates for filing the written  statement and replication, if any, shall  accordingly stand extended. 3.      Calling of Cases (Hajri or Call Work or  Roll Call) :         The present practice of the Court-master or  Bench-clerk calling all the cases listed on a  particular day at the beginning of the day in order  to confirm whether counsel are ready, whether  parties are present or whether various steps in  the suit or proceeding has been taken, is  consuming a lot of time of the Court, sometimes  almost two hours of the best part of the day when  the judge is fresh.  After such work, the Court is  left with very limited time to deal with cases listed  before it.  Formal listing should be first before a  nominated senior officer of the registry, one or  two days before the listing in Court.  He may give  dates in routine matters for compliance with  earlier orders of Court.  Cases will be listed  before Court only where an order of the Court is  necessary or where an order prescribing the  consequences of default or where a peremptory  order or an order as to costs is required to be  passed on the judicial side.  Cases which have to  be adjourned as a matter of routine for taking  steps in the suit or proceeding should not be  unnecessarily listed before Court.  Where  parties/counsel are not attending before the  Court-officer or are defiant or negligent, their  cases may be placed before the Court.  Listing of  cases on any day before a Court should be based  on a reasonable estimate of time and number of  cases that can be disposed of by the Court in a  particular day.  The Courts shall, therefore,  dispense with the practice of calling all the cases  listed adjourned to any particular day.  Cases will  be first listed before a nominated senior officer of  the Court, nominated for the purpose.  4.      Procedure on the grant of interim  orders: (a)     If an interim order is granted at the first  hearing by the Court, the defendants would

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have the option of moving appropriate  applications for vacating the interim order  even before the returnable date indicated in  the notice and if such an application is filed,  it shall be listed as soon as possible even  before the returnable date. (b)     If the Court passes an ad-interim ex-parte  order in an interlocutory application, and  the reply by the defendants is filed, and if,  thereafter, the plaintiff fails to file the  rejoinder (if any) without good reason for  the delay, the Court has to consider  whether the stay or interim order passed by  the Court should be vacated and shall list  the case with that purpose.  This is meant  to prevent parties taking adjournment with  a view to have undue benefit of the ad  interim orders.  The plaintiff may, if he so  chooses, also waive his right to file a  rejoinder.  A communication of option by  the plaintiff not to file a rejoinder, made to  the registry will be deemed to be the  completion of pleadings in the interlocutory  application. 5.      Referral to Alternate Dispute Resolution: (In the hearing before the Court, after  completion of pleadings, time limit for discovery  and inspection, and admission and denials, of  documents shall be fixed, preferably restricted to  4 weeks each) After the completion of admission and  denial of documents by the parties, the suit shall  be listed before the Court (for examination of  parties under Order X of the Civil Procedure  Code.  A joint statement of admitted facts shall be  filed before the said date.)  The Court shall  thereafter, follow the procedure prescribed under  the Alternative Dispute Resolution and Mediation  Rules, 2002. 6.      Procedure on the failure of Alternate  Dispute Resolution :         On the filing of report by the Mediator under  the Mediation Rules that efforts at Mediation have  failed, or a report by the Conciliator under the  provisions of the Arbitration and Conciliation Act,  1996, or a report of no settlement in the Lok  Adalat under the provisions of the Legal Services  Authority Act, 1987 the suit shall be listed before  the registry within a period of 14 days.  At the said  hearing before the registry, all the parties shall  submit the draft issues proposed by them.  The  suit shall be listed before the Court within 14 days  thereafter for framing of issues.         When the suit is listed after failure of the  attempts at conciliation, arbitration or Lok Adalat,  the Judge may merely inquire whether it is still  possible for the parties to resolve the dispute.   This should invariably be done by the Judge at  the first hearing when the matter comes back on  failure of conciliation, mediation or Lok Adalt.         If the parties are not keen about settlement,  the Court shall frame the issues and direct the  plaintiff to start examining his witnesses.  The  procedure of each witness filing his examination- in-chief and being examined in cross or re-

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examination will continue, one after the other.   After completion of evidence on the plaintiff’s  side, the defendants shall lead evidence likewise,  witness after witness, the chief examination of  each witness being by affidavit and the witness  being then cross-examined or re-examined.  The  parties shall keep he affidavit in chief-examination  ready whenever the witness’s examination is  taken up.  As far as possible, evidence must be  taken up day by day as stated in clause (a) of  proviso to Rule 2 of Order XVII.  The parties shall  also indicate the likely duration for the evidence to  be completed, and for the arguments to be  thereafter heard.  The Judge shall ascertain the  availability of time of the Court and will list the  matter for trial on a date when the trial can go on  from day to day and conclude the evidence.  The  possibility of further negotiation and settlement  should be kept open and if such a settlement  takes place, it should be open to the parties to  move the registry for getting the matter listed at  an earlier date for disposal. 7.      Referral to Commissioner for recordal of  evidence : (a)     The High Court shall conduct an  examination on the subjects of the Code of  Civil Procedure and Evidence Act.  Only  those advocates who have passed an  examination conducted by the High Court  on the subjects of ’Code of Civil Procedure’  and Evidence Act, - shall be appointed as  Commissioners for recording evidence.   They shall be ranked according to the  marks secured by them. (b)     It is not necessary that in every case the  Court should appoint a Commissioner for  recording evidence.  Only if the recording of  evidence is likely to take a long time, or  there are any other special grounds, should  the Court consider appointing a  Commissioner for recording the evidence.   The Court should direct that the matter be  listed for arguments fifteen days after the  Commissioner files his report with the  evidence.         The Court may initially fix a specific period  for the completion of the recording of the  evidence by the Commissioner and direct  the matter to be listed on the date of expiry  of the period, so that Court may know  whether the parties are co-operating with  the Commissioner and whether the  recording of evidence is getting  unnecessarily prolonged. (c)     Commissioners should file an undertaking  in Court upon their appointment that they  will keep the records handed over to them  and those that may be filed before them,  safe and shall not allow any party to inspect  them in the absence of the opposite  party/counsel.  If there is delay of more  than one month in the dates fixed for  recording evidence, it is advisable for them  to return the file to the Court and take it  back on the eve of the adjourned date.

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8.      Costs :         So far as awarding of costs at the time of  judgment is concerned, awarding of costs must  be treated generally as mandatory in as much as  the liberal attitude of the Courts in directing the  parties to bear their own costs had led parties to  file a number of frivolous cases in the Courts or to  raise frivolous and unnecessary issues.  Costs  should invariably follow the event.  Where a party  succeeds ultimately on one issue or point but  loses on number of other issues or points which  were unnecessarily raised, costs must be  appropriately apportioned.   Special reasons must  be assigned if costs are not being awarded.   Costs should be assessed according to rules in  force.  If any of the parties has unreasonably  protracted the proceedings, the Judge should  consider exercising discretion to impose  exemplary costs after taking into account the  expense incurred for the purpose of attendance  on the adjourned dates. 9.      Proceedings for Perjury :         If the Trial Judge, while delivering the  judgment, is of the view that any of the parties or  witnesses have willfully and deliberately uttered  blatant falsehoods, he shall consider (at least in  some grave cases) whether it is a fit case where  prosecution should be initiated for perjury and  order prosecution accordingly. 10.     Adjournments :         The amendments to the Code have  restricted the number of adjournments to three in  the course of hearing of the suit, on reasonable  cause being shown.  When a suit is listed before  a Court and any party seeks adjournment, the  Court shall have to verify whether the party is  seeking adjournment due to circumstances  beyond the control of the party, as required by  clause (b) of proviso to Rule 2 of Order XVII.  The  Court shall impose costs as specified in Rule 2 of  Order XVII. 11.     Miscellaneous Applications :         The proceedings in a suit shall not be  stayed merely because of the filing of  Miscellaneous Application in the course of suit  unless the Court in its discretion expressly thinks  it necessary to stay the proceedings in the suit. III.    First Appeals to Subordinate Courts 1.      Service of Notice of Appeal :         First Appeals being appeals on question of  fact and law, Courts are generally inclined to  admit the appeal and it is only in exceptional  cases that the appeal is rejected at the admission  stage under Rule 11 of Order XLI.  In view of the  amended CPC, a copy of the memorandum of  appeal is required to be filed in the subordinate  Court.  It has been clarified by the Supreme Court  that the requirement of filing a copy of appeal  memorandum in the sub-ordinate Court does not  mean that appeal memorandum cannot be filed in  the Appellate Court immediately for obtaining  interim orders.         Advance notice should simultaneously be  given by the counsel for the party who is  proposing to file the appeal, to the counsel for the

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opposite party who appeared in the sub-ordinate  Court so as to enable the respondents to appear  if they so choose, even at the first hearing stage. 2.      Essential Documents to be filed with the  Memorandum of Appeal :         The Appellant shall, as far as possible, file,  along with the appeal, copies of essential  documents marked in the suit, for the purpose of  enabling the appellate Court to understand the  points raised or for purpose of passing interim  orders. 3.      Fixation of time limits in interlocutory  matters :         Whenever notice is issued by the appellate  Court in interlocutory matters, the notice should  indicate the date by which the reply should be  filed.  The rejoinder, if any, should be filed within  four weeks of receipt of the reply.  If there are  more parties than one who are Respondents,  each one of the Respondent should comply with  this requirement within the time limit and the  rejoinder may be filed within four weeks from the  receipt of the last reply. 4.      Steps for completion of all formalities/  (Call Work) (Hajri) : The appeal shall be listed before the  registry for completion of all formalities necessary  before the appeal is taken up for final hearing.   The procedure indicated above of listing the case  before a senior officer of the appellate Court  registry for giving dates in routine matters must  be followed to reduce the ’call work’ (Hajri) and  only where judicial orders are necessary, such  cases should be listed before Court. 5.      Procedure on grant of interim-orders :         If an interim order is granted at the first  hearing by the Court, the Respondents would  have the option of moving appropriate  applications for vacating the interim order even  before the returnable date indicated in the notice  and if such an application is filed, it shall be listed  as soon as possible even before the returnable  date.         If the Court passes an ad-interim ex-parte  order, and if the reply is filed by the Respondents  and if, without good reason, the appellant fails to  file the rejoinder, Court shall consider whether it is  a fit case for vacating the stay or interim order  and list the case for that purpose.  This is  intended to see that those who have obtained ad  interim orders do not procrastinate in filing replies.   The appellant may also waive his right to file the  rejoinder.  Such choice shall be conveyed to the  registry on or before the date fixed for filing of  rejoinder.  Such communication of option by the  applicant to the registry will be deemed to be  completion of pleadings. 6.      Filing of Written submissions :         Both the appellants and the respondents  shall be required to submit their written  submissions two weeks before the  commencement of the arguments in the appeal.   The cause-list should indicate if written  submissions have been filed or not.  Wherever  they have not been filed, the Court must insist on

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their being filed within a particular period to be  fixed by the Court and each party must serve a  copy thereof on the opposite side before the date  of commencement of arguments.  There is no  question of parties filing replies to each other’s  written submissions.         The Court may consider having a Caution  List/Alternative List to take care of eventualities  when a case does not go on before a court, and  those cases may be listed before a court where,  for any reason, the scheduled cases are not  taken up for hearing.

7.      Costs :         Awarding of costs must be treated  generally as mandatory in as much as it is the  liberal attitude if the Courts in not awarding costs  that has led to frivolous points being raised in  appeals or frivolous appeals being filed in the  courts.  Costs should invariably follow the event  and reasons must be assigned by the appellate  Court for not awarding costs.  If any of the parties  have unreasonably protracted the proceedings,  the Judge shall have the discretion to impose  exemplary costs after taking into account the  costs that may have been imposed at the time of  adjournments. IV.     Application/Petition under Special Acts         This chapter deals with  applications/petitions filed under Special Acts like  the Industrial Disputes Act, Hindu Marriage Act,  Indian Succession Act etc.         The Practise directions in regard to Original  Suits should mutatis mutandis apply in respect of  such applications/petitions. V.      Criminal Trials and Criminal Appeals to  Subordinate Courts (a)     Criminal Trials 1.      Criminal Trials should be classified based  on offence, sentence and whether the accused is  on bail or in jail.  Capital punishment, rape and  cases involving sexual offences or dowry deaths  should be kept in Track I.  Other cases where the  accused is not granted bail and is in jail, should  be kept in Track II.  Cases which affect a large  number of persons such as cases of mass  cheating, economic offences, illicit liquor tragedy  and food adulteration cases, etc. should be kept  in Track III.  Offences which are tried by special  courts such as POTA, TADA, NDPS, Prevention  of Corruption Act, etc. should be kept in Track IV.   Track V \026 all other offences.         The endeavour should be to complete  Track I cases within a period of nine months,  Track II and Track III cases within twelve months  and Track IV within fifteen months. 2.      The High Court may classify criminal  appeals pending before it into different tracks on  the same lines mentioned above. (b)     Criminal Appeals 3.      Wherever an appeal is filed by a person in  jail, and also when appeals are filed by State, as  far as possible, the memorandum appeal may be  accompanied by important documents, if any,  having a bearing on the question of bail.

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4.      In respect of appeals filed against  acquittals, steps for appointment of amicus curie  or State Legal Aid counsel in respect of the  accused who do not have a lawyer of their own  should be undertaken by the registry/(State Legal  Services Authority) immediately after completion  of four weeks of service of notice.  It shall be  presumed that in such an event the accused is  not in a position to appoint counsel. 5.      Advance notice should simultaneously be  given by the counsel for the party who is  proposing to file the appeal, to the counsel for the  opposite party in the subordinate Court, so as to  enable the other party to appear if they so choose  even at the first hearing stage. VI.     Notice issued under S.80 of Code of  Civil Procedure : Every public authority shall appoint an  officer responsible to take appropriate action on a  notice issued under S.80 of the Code of Civil  Procedure.  Every such officer shall take  appropriate action on receipt of such notice.  If  the Court finds that the concerned officer, on  receipt of the notice, failed to take necessary  action or was negligent in taking the necessary  steps, the Court shall hold such officer  responsible and recommend appropriate  disciplinary action by the concerned authority. VII.    Note         Whenever there is any inconsistency  between these rules and the provisions of either  the Code of Civil Procedure, 1908 or the Code of  Criminal Procedure 1973 or the High Courts Act  or any other Statutes, the provisions of such  Codes and Statutes shall prevail. (B)     Model Case Flow Management Rules in  High Court \005..High Court Rules, 2003         In exercise of the power conferred by  Article 225 of the Constitution of India, and  Chapter X of the Code of Civil Procedure, 1908 (5  of 1908) and Section \005.. of the \005.. High Court  Act and all other powers enabling it, the \005\005 High  Court hereby makes the following Rules : I.      Division of Cases into different tracks : 1.      Writ Petitions : The High Court shall, at the  stage of admission or issuing notice before  admission categorise the Writ Petitions other than  Writ of Habeas Corpus, into three categories  depending on the urgency with which the matter  should be dealt with : the Fast Track, the Normal  Track and the Slow Track.  The petitions in the  Fast Track shall invariably be disposed of within a  period not exceeding six months while the  petitions in the Normal Track should not take  longer than a year.  The petitions in the Slow  Track, subject to the pendency of other cases in  the Court, should ordinarily be disposed of within  a period of two years.         Where an interim order of stay or injunction  is granted in respect of liability to tax or demolition  or eviction from public premises etc. shall be put  on the fast track.  Similarly, all matters involving  tenders would also be put on the Fast Track.   These matters cannot brook delays in disposal.

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2.      Senior officers of the High Court,  nominated for the purpose, shall at intervals of  every month, monitor the stage of each case  likely to come up for hearing before each Bench  (Division Bench or Single Judge) during that  month which have been allocated to the different  tracks.  The details shall be placed before the  Chief Justice or Committee nominated for that  purpose as well as the concerned Judge dealing  with cases. 3.      The Judge or Judges referred to in Clause  (2) above may shift the case from one track to  another, depending upon the complexity,  (urgency) and other circumstances of the case. 4.      Where computerization is available, data  will be fed into the computer in such a manner  that the court or judge or judges, referred to in  Clause (2) above will be able to ascertain the  position and stage of every case in every track  from the computer screen. 5.      Whenever the roster changes, the judge  concerned who is dealing with final matters shall  keep himself informed about the stage of the  cases in various tracks listed before him during  every week, with a view to see that the cases are  taken up early. 6.      Other matters : The High Court shall also  divide Civil Appeals and other matters in the High  Court into different tracks on the lines indicated in  sub-clauses (2) to (5) above and the said clauses  shall apply, mutatis mutandis, to the civil appeals  filed in the High Court.  The High Court shall  make a subject-wise division of the  appeals/revision application for allocation into  different tracks. (Division of criminal petitions and appeals into  different tracks is dealt with separately under the  heading ’criminal petitions and appeals’.) II.     Writ of Habeas Corpus :         Notices in respect of Writ of Habeas  Corpus where the person is in custody under  orders of a State Government or Central  Government shall invariably be issued by the  Court at the first listing and shall be made  returnable within 48 hours.  State Government or  Central Government may file a brief return  enclosing the relevant documents to justify the  detention.  The matter shall be listed after notice  on the fourth working day after issuance of notice,  and the Court shall consider whether a more  detailed return to the Writ is necessary, and, if so  required, shall give further time of a week and  three days’ time for filing a rejoinder.  A Writ of  Habeas Corpus shall invariably be disposed of  within a period of fifteen days.  It shall have  preference over and above fast-track cases. III.    Mode of Advance Service :         The Court rules will provide for mode of  service of notice on the standing counsel for  Respondents wherever available, against whom,  interim orders are sought.  Such advance service  shall generally relate to Governments or public  sector undertakings who have Standing Counsel.         FIRST APPEALS TO HIGH COURT 1.      Service of Notice of Appeal :

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       First Appeals being appeals on questions  of fact and law, Courts are generally inclined to  admit the appeal and it is only in exceptional  cases that the appeal is rejected under Order XLI  Rule 11 at the admission stage.  In view of the  amended CPC, a copy of the appeal is required  to be filed in the Trial Court.  It has been clarified  by the Supreme Court that the requirement of  filing of appeal in the Trial Court does not mean  that the party cannot file the appeal in the  appellate Court (High Court) immediately for  obtaining interim orders.         In addition to the process for normal  service as per the Code of Civil Procedure,  advance notice should simultaneously be given  by the counsel for the party who is proposing to  file the appeal, to the counsel for the opposite  party in the Trial Court itself so as to enable them  to inform the parties to appear if they so choose  even at the first hearing stage. 2.      Filing of Documents :         The Appellant shall, on the appeal being  admitted, file all the essential papers within such  period as may be fixed by the High Court for the  purpose the High Court understanding the scope  of the dispute and for the purpose of passing  interlocutory orders. 3.      Printing or typing of Paper Book :         Printing and preparation of paper-books by  the High Court should be done away with.  After  service of notice is effected, counsel for both  sides should agree on the list of documents and  evidence to be printed or typed and the same  shall be made ready by the parties within the time  to be fixed by the Court.  Thereafter the paper  book shall be got ready.  It must be assured that  the paper books are ready at lease six months in  advance before the appeal is taken up for  arguments. (Cause lists must specify if paper  books have been filed or not). 4.      Filing of Written Submissions and time  for oral arguments : Both the appellants and the respondents shall be  required to submit their written submissions with  all the relevant pages as per the Court paper- book marked therein within a month of  preparation of such paper-books, referred to in  para 3 above.         Cause list may indicate if written  submissions have been filed.  If not, the Court  must direct that they be filed immediately.         After the written submissions are filed, (with  due service of copy to the other side) the matter  should be listed before the Registrar/Master for  the parties to indicate the time that will be taken  for arguments in the appeal.  Alternatively, such  matters may be listed before a judge in chambers  for deciding the time duration and thereafter to fix  a date of hearing on a clear date when the  requisite extent of time will be available.         In the event that the matter is likely to take  a day or more, the High Court may consider  having a Caution List/Alternative List to meet  eventualities where a case gets adjourned due to  unavoidable reasons or does not go on before a

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court, and those cases may be listed before a  court where, for one reason or another, the  scheduled cases are not taken up for hearing. 5.      Court may explore possibility of  settlement :         At the first hearing of a First Appeal when  both parties appear, the Court shall find out if  there is a possibility of a settlement.  If the parties  are agreeable even at that stage for mediation or  conciliation, the High Court could make a  reference to mediation or conciliation for the said  purpose.         If necessary, the process contemplated by  Section 89 of CPC may be resorted to by the  Appellate Court so, however, that the hearing of  the appeal is not unnecessarily delayed.   Whichever is the ADR process adopted, the Court  should fix a date for a report on the ADR two  months from the date of reference. V.      Appeals to Division Bench from  judgment of Single Judge of High Court  [Letter Patent Appeals (LPA) or similar  appeals under High Courts Acts] :         An appeal to a Division Bench from  judgment of a Single Judge may lie in the  following cases : (1)     Appeals from interlocutory orders of the  Single Judge in original jurisdiction matters  including writs; (2) appeals from final  judgments of a Single Judge in original  jurisdiction; (3) other appeals permitted by  any law to a Division Bench.         Appeals against interlocutory orders falling  under category (1) above should be invariably  filed after advance notice to the opposite counsel  (who has appeared before the Single Judge) so  that both the sides will be represented at the very  first hearing of the appeals.  If both parties appear  at the first hearing, there is no need to serve the  opposite side by normal process and at least in  some cases, the appeals against interlocutory  orders can be disposed of even at the first  hearing.  If, for any reason, this is not practicable,  such appeals against interim orders should be  disposed of within a period of a month.         In cases referred to above, necessary  documents should be kept ready by the counsel  to enable the Court to dispose of the appeal  against interlocutory matter at the first hearing  itself.         In all Appeals against interim orders in the  High Court, in writs and civil matters, the Court  should endeavour to set down and observe a  strict time limit in regard to oral arguments.  In  case of Original Side appeals/LPAs arising out of  final orders in a Writ Petition or arising out of civil  suits filed in the High Court, a flexible time  schedule may be followed.         The practice direction in regard to First  Appeal should mutatis mutandis apply in respect  of LPAs/Original Side appeals against final  judgments of the Single Judge.           Writ Appeals/Letters Patent Appeals arising  from orders of the Single Judge in a Writ Petition  should be filed with simultaneous service on the

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counsel for the opposite party who had appeared  before the Single Judge or on service of the  opposite party.           Writ Appeals against interim orders of the  Single Judge should invariably be disposed of  early and, at any rate, within a period of thirty  days from the first hearing.  Before Writ Appeals  against final orders in Writ Petitions are heard,  brief written submissions must be filed by both  parties within such time as may be fixed by the  Court. VI.     Second Appeals :         Even at the stage of admission, the  questions of law with a brief synopsis and written  submissions on each of the propositions should  be filed so as to enable the Court to consider  whether there is a substantial question of law.   Wherever the Court is inclined to entertain the  appeal, apart from normal procedure for service  as per rules, advance notice shall be given to the  counsel who had appeared in the first appeal  letter Court.  The notice should require the  respondents to file their written submissions  within a period of eight weeks from service of  notice.  Efforts should be made to complete the  hearing of the Second Appeals within a period of  six months. VII.    Civil Revision :         A revision petition may be filed under  Section 115 of the Code or under any special  statute.  In some High Courts, petitions under  Article 227 of the Constitution of India are  registered as civil revision petitions.  The practise  direction in regard to LPAs and First Appeals to  the High Courts, should mutatis mutandis apply in  respect of revision petitions. VIII.   Criminal Appeals :         Criminal Appeals should be classified  based on offence, sentence and whether the  accused is on bail or in jail.  Capital punishment  cases, rape, sexual offences, dowry death cases  should be kept in Track I.  Other cases where the  accused is not granted bail and is in jail, should  be kept in Track II.  Cases which affect a large  number of persons such as cases of mass  cheating, economic offences, illicit liquor tragedy,  food adulteration cases, offences of sensitive  nature should be kept in Track III.  Offences  which are tried by special courts such as POTA,  TADA, NDPS, Prevention of Corruption Act, etc.  should be kept in Track IV.  Track V \026 all other  offences.         The endeavour should be to complete  Track I cases within a period of six months, Track  II cases within nine months, Track III within a  year, Track IV and Track V within fifteen months.         Wherever an appeal is filed by a person in  jail, and also when appeals are filed by State, the  complete paper-books including the evidence,  should be filed by the State within such period as  may be fixed by Court.         In appeals against acquittals, steps for  appointment of amicus curie or State Legal Aid  counsel in respect of the accused who do not  have a lawyer of their own should be undertaken

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by the Registry/(State Legal Services Committee)  immediately after completion of four weeks of  service of notice.  It shall be presumed that in  such an event the accused is not in a position to  appoint counsel, and within two weeks thereafter  counsel shall be appointed and shall be furnished  all the papers. IX.     Note         Wherever there is any inconsistency  between these rules and the provisions of either  the Code of Civil Procedure, 1908 or the Code of  Criminal Procedure, 1973 or the High Court Act,  or any other statute, the provisions of such Codes  and statute, the provisions of such Codes and  statutes shall prevail."

       Before concluding, we wish to place on record our sincere gratitude  and appreciation for the members of the Committee, in particular Hon’ble  Mr.Justice M. Jagannadha Rao, Chairman of the Committee and Law  Commission of India who as usual has taken great pains in examining the  whole issue in detail and going into depth of it and has filed the three  Reports above referred which we hope will go a long way in dispensation  of effective and meaningful administration of justice to the litigating public.   We hope that the High Courts in the country would be in a position to  examine the aforesaid rules expeditiously and would be able to finalise the  Rules within a period of four months.         Further, we place on record our deep appreciation for very useful  assistance rendered by Senior Advocates Mr.K.Parasaran and Mr.Arun  Mohan who on request from this court readily agreed to render assistance  as Amicus Curie.  We also record our appreciation for useful assistance  rendered by Mr.Gulam Vahnavati, learned Solicitor General on behalf of  Union of India and the Attorney General of India and Mr.T.L.V. Iyer, Senior  Advocate on behalf of Bar Council of India.      A copy of this judgment shall be sent to all the High Courts through  Registrar Generals, Central Government through Cabinet Secretary and  State Governments/Union Territories through Chief Secretaries so that  expeditious follow up action can be taken by all concerned.  The Registrar  Generals, Central Government and State/Union Territories shall file the  progress report in regard to the action taken within a period of four months.