⚖️ CPC Amendment Acts 1999 and 2002 – Supreme Court Judgment Explained

📘 CIVIL PROCEDURE CODE : SUPREME COURT JUDGMENT

CPC Amendment Acts 1999 and 2002

Salem Advocates Bar Assn. v. Union of India [2003 SC]

Delhi Law Academy Jaipur presents below for aspirants of RJS, DJS, PCS (J) and other Judicial Services throughout India a summarized version of the Supreme Court judgment on CPC Amendment Acts 1999 and 2002.

👨‍⚖️ JUDGMENT

Supreme Court on CPC Amendment Acts 1999 and 2002

Salem Advocates Bar Assn. v. Union of India [2003 SC]

These writ petitions have been filed seeking to challenge amendments made to the Code of Civil Procedure by the Amendment Acts of 1999 and 2002.

In the petitions, the amendments which were sought to be made by the aforesaid Amendment Acts have been challenged, but we do not find that the said provisions are in any way ultra vires the Constitution.

📑 Order 18, Rule 4

In Order 18, Rule 4 has been substituted and sub-rule (1) provides that in every case examination-in-chief of the witnesses shall be on affidavits and copies thereof shall be supplied to the opposite parties by the party who calls them for evidence.

Order 16, Rule 1 provides for list of witnesses being filed and summons being issued to them for being present in Court for recording their evidence. Rule 1-A, on the other hand, refers to production of witnesses without summons where any party to the suit may bring any witness to give any evidence or to produce documents. Reading the provisions of Order 16 and Order 18 together, it appears to us that Order 18, Rule 4 will not necessarily apply to a case contemplated by Order 16, Rule 1-A i.e. where any party to a suit, without applying for summoning under Rule 1 brings any witness to give evidence or produce any document. In such a case, examination-in-chief is not to be recorded in Court but shall be in the form of an affidavit.

In cases where the summons have to be issued under Order 16, Rule 1, the stringent provision of Order 18, Rule 4 may not apply. When summons are issued, the Court can give an option to the witness summoned either to file an affidavit by way of examination-in-chief or to be present in Court for his examination. In appropriate cases, the Court can direct the summoned witness to file an affidavit by way of examination-in-chief. In other words, with regard to the summoned witnesses the principle incorporated in Order 18, Rule 4 can be waived. Whether a witness shall be directed to file affidavit or be required to be present in Court for recording of his evidence is a matter to be decided by the Court in its discretion having regard to the facts of each case.

📑 Order 18, Rule 4(2)

Order 18, Rule 4(2) gives the Court the power to decide as to whether evidence of a witness shall be taken either by the Court or by the Commissioner.

Under the said sub-rule, the Court has the power to direct either all the evidence being recorded in Court or all the evidence being recorded by the Commissioner or the evidence being recorded partly by the Commissioner and partly by the Court. For example, if the plaintiff wants to examine 10 witnesses, then the Court may direct that in respect of five witnesses evidence will be recorded by the Commissioner while in the case of other five witnesses evidence will be recorded in Court.

In this connection, we may refer to Order 18, Rule 4(3) which provides that the evidence may be recorded either in writing or mechanically in the presence of the Judge or the Commissioner. The use of the word ‘mechanically’ indicates that the evidence can be recorded even with the help of the electronic media, audio or audio-visual, and in fact whenever the evidence is recorded by the Commissioner it will be advisable that there should be simultaneously at least an audio recording of the statement of the witnesses so as to obviate any controversy at a later stage.

📑 Rule 9 inserted in Order 41

Rule 9. Registry of memorandum of appeal –

(1) The Court from whose decree an appeal lies shall entertain the memorandum of appeal and shall endorse thereon the date of presentation and shall register the appeal in a book of appeal kept for that purpose.

The apprehension was that this rule requires the appeal to be filed in the Court from whose decree the appeal is sought to be filed. In our opinion, this is not so.

Appeal is to be filed under Order 41, Rule 1 in the Court in which it is maintainable. All that Order 41, Rule 9 requires is that a copy of memorandum of appeal which has been filed in the appellate Court should also be presented before the Court against whose decree the appeal has been filed and endorsement thereof shall be made by the decreeing Court in a book called the Register of Appeals. Perhaps, the intention of the Legislature was that the Court against whose decree an appeal has been filed should be made aware of the factum of the filing of the appeal which may or may not be relevant at a future date. Merely because a memorandum of appeal is not filed under Order 41, Rule 9 will not, to our mind, make the appeal filed in the appellate Court as a defective one.

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