Monday, Jul 28, 2003
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By A. Subramani
The amended CPC, which evoked near-total court boycott in several districts of Tamil Nadu and other States, came into force in July last. After a prolonged agitation, the Salem Bar moved the Supreme Court against the amended Act.
Upholding the constitutional validity of the amended CPC last year, the Supreme Court constituted the five-member committee, which included the Law Commission Chairman, Jagannatha Rao, and senior advocates, Kapil Sibal, C.S. Vythianathan and Arun Jaitley, to study certain controversial provisions.
On July 31, when the apex court analyses the panel's report, lawyers and association representatives from any part of the country can advance arguments before a designated bench. "The Supreme Court is expected to `read down' certain Sections, and place suggestions of amendments, if necessary, before Parliament," said advocate Ezhil. The comprehensive set of conclusions arrived at, after exhaustive deliberations involving senior advocates and active civil law practitioners, caution the Centre that unless certain key changes were effected, its avowed object of speedy disposal of cases and reducing pendency could not be achieved.
First, the signatories to the recommendations want Section 89 and Order 10 Rule IA&C to be "completely re-drafted as their present form is unworkable". The provisions mandated that only if the parties failed to get their disputes settled through the alternative dispute resolution method, their suit could proceed further. "Inherently, there is a compulsion on the parties to go in for the method. A citizen is entitled to seek relief in a court of law. The right cannot be taken away by compelling him to go only for settlement without deciding the dispute.
Further, there is no indication of the time frame for an ADR. Similarly, the cost aspect of the ADR is also not made clear. In effect, Section 89 and Order 10 Rule IA,B&C take away the right of the litigant to seek remedy in civil court in accordance with law."
On constitution of Permanent Lok Adalats, they say "such adalats can take cognisance only if those cases or disputes came to them even before being brought to any court. Hence, such adalats cannot decide matters which are already before a civil court".
Referring to a provision, which seeks to take away the High Court's power of superintendence over subordinate courts, they said, "proviso to subsection (1) of Section 115 clearly shows that the power is curtailed to a substantial extent. The very existence of this procedure of watch, monitor and control constantly reminds subordinate judicial officers to act judiciously, promptly and properly".
The object of amending Section 148, taking away the judicial discretion, is serious, according to the signatories.
The amended provision mandates the court not to grant any extension beyond the time prescribed.
The insertion of a new rule for presentation of chief examination through proof affidavit and appointment of a commissioner for examination of witnesses also drew flak. Citing Supreme Court rulings, they said, "it is not known as to how proof affidavits could be admitted as evidence by a civil court.
The proof affidavit drafted by a lawyer, in effect, would be the evidence of the advocate than that of the party concerned".
Witness examination through commissioners cannot be foolproof, as questions such as who should be appointed a commissioner, what should be his remuneration and qualification remain unclear."
As a solution, the signatories suggested appointment of an exclusive official to handle matters relating to service of summons, as in the High Court.
They also favoured increasing the number of judges to 50 per one million population as recommended by the Supreme Court. It also sought better infrastructure and service conditions for judicial officers.
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