Judge shall invariable ask the parties if they can resolve the dispute by themselves before the trial

Ravikiran Shukre | Manikchand Pahade Law College, Aurangabad | 27th January 2020

Salem Advocates Bar Association, Tamil Nadu v. Union of India (AIR 2003 SC 189)

Facts of the Case: 

1. A committee was formed to ensure that the 1999 and 2002 Amendments to the civil procedure code are effectively implemented and results in quicker dispense of justice.
2. The report was submitted in three parts:
3. Consideration of various grievances,
4. Draft rules for the Alternative Dispute Resolution and Mediation, 
5. Case management conferences
6. The validity of this report was challenged before the court, in this matter.
7. The main issue before the court was whether the 1999 and 2002 Amendments to the Civil procedure code were constitutionally valid? 

The report was divided into three parts: 

Report I:

• The report discussed section 26 (2) and rule 15 (4) to order VI, wherein it was contended that filing of an affidavit is illegal and unnecessary as there exist a requirement of filing verification.
• Another contention by the parties was that there is a conflict between order XVIII rule 5 (a) and (b) and order XVIII rule 4. The conflict here, was that order XVIII, rule 5 provides for recording of evidence by the court itself in appealable cases. However, rule 4 and 19 of the same order enable commissioner to record the statements in any case, notwithstanding any situation. Therefore, it appeared as if latter overrode earlier.
• The report also discussed an ambiguity that existed in order VIII, rule 1 of Code of Civil Procedure with respect to time limit for filing a plaint.
• Section 80 of the civil procedure code also brought into discussion wherein it was contended that prior notice should be served to the government before filing of a suit unless the matter is urgent and in need of interim order.

Report II: 

• The main contention by the parties in this part was with respect to section 89 of the Civil Procedure Code i.e settlement of disputes outside courts. The said section provides discretion to the court as to if it deems fit, that certain elements can be settled between parties, then the court shall formulate those terms and send them for the observation by the parties. However, there existed, an ambiguity with respect to the applicability of Arbitration and Conciliation Act, 1996 and Civil Procedure Code simultaneously. Relying on the case of P. Anand Gajapati Raju v. P.V.G. Raju^[1] it was contended that if reference is made to arbitration under section 89, the Arbitration Act will apply from the stage after reference and not before. Further, it was contended that, even if arbitration is not successful, the court would not be barred from trying that suit.

Report III:

• It dealt with introduction of case flow management and model rules. Model High Court rules were provided for, which contained various regulations provided by the committee.

Judgment:  

1. No denial of Justice on Procedural grounds: The judgment allowed for the acceptance of the proposal of presenting evidence at later stage in trials mostly when certain evidence not known to the parties earlier emerges. Such an act of the court further its aim of justice instead of denying it on procedural grounds.
2. Deterrence from misuse of court proceedings: The upheld the contention, that in cases of summons, being served through courier and not being delivered, both the parties have to sign an undertaking that if such a claim by them is false then they will be charged for perjury and contempt of court. It acts as a deterrence, as parties are aware of the risk and have willingly signed it. Further the concept of awarding costs reasonably keeping in mind the position of parties and course of litigation is commendable in itself as the idea that the losing parties in every circumstance have to bear the cost, will be negated. 
3. Improvisation in Cause List of the Court:  A common practice that prevails in the court is of listing the cases to be heard in cause list of the court. However, not even half of them are heard by the court on the allotted date. In order to tackle such problem, the court has accepted the proposal that listing of cases should be based on reasonable estimate time i.e. number of cases that can be heard in a day. Further, another proposal put forward was that every cause list should be first listed before senior officer of the court, who shall review it before it is released.            

^[1] (2000 4 SCC 539)