chapter ix miscellaneous - मुख्यपृष्ठ
TRANSCRIPT
CHAPTER IXMISCELLANEOUS
54. Report about the working of the project : Report about the working of theproject shall be forwarded by the Committee to the Board before 10th of every month.The report shall contain the details of number of remand prisoners and undertrials,children including the number falling in each of the categories mentioned in rules 23 and24 who had applied for assistance and the applications in which aid was sanctioned forprocessing applications for bail or for taking other appropriate proceeding in a case.Where legal assistance was refused by the committee a brief note may be included givingthe reasons for the rejection of the aid.
55. Publicity : Whenever a legal services programme is held in the jurisdiction of therespective committee the statistics relating to the working and progress of the Jail VisitsProject excluding the matters falling under section 36 of the Juvenile Justice Act, 1986shall be announced for the information of the press and the public :
Provided that, before making the said announcement the Committee shall consultthe Director General of Police, Maharashtra State, as far as the police matters areconcerned, the Inspector General of Prisons, Maharashtra State, as far as prison mattersare concerned and the Authorities of concerned Children's homes as far as the children'sHome matters are concerned.
FORM I(See Rule 16)
Supreme Court Legal Aid Committee,109, Lawyers' Chambers, Post Office Wing,Supreme Court Compound, New Delhi 110 001.
FORM No ..................................
APPLICATION FOR LEGAL AID
To,The MemberSecretary
Supreme Court Legal Aid Committee,Supreme Court Compound,NEW DELHI.
1. Name .. ..(In Block Letters)
2. Father's Name/Husband's/Name .. ..3. Address
(a) Residential .. .. ..(b) Occupational .. .. ..
4. (a) Age and Date of birth .. .. ..(b) Education .. .. ..
5. Status : Single/Married/Divorced .. ..6. Number of dependents and their relation to the applicant7. Any other financial liabilities .. ..8. Occupation .. .. ..9. Income per month .. .. ..
(Please attach Income Certificate duly attested by competent Authority)10. Other sources of income, if any .. ..11. Sources and monthly income of member in the family.12. Details and value of movable and immovable assets held by the
applicant, his dependent and other members of his family.13. Any other relevant information14. Nature of legal aid and advice sought15. Whether belongs to Scheduled Castes/Scheduled Tribes/Vimukta Jatis/
Nomadic Tribes/Women/Child.....................................................................'.......................................................................................................................(Please attach Certificate, if the applicant belongs to SC/ST/VI/NT)
16. Whether the matter, in respect of which legal aid and advice is now sought, was filed previously in the Supreme Court ? If So, the result.17. Whether opinion of any advocate has been sought in the matter ? If so,
particulars of the advocate and his opinion.Verified that the information given above is true and correct and if it is found to be incorrect, the Committee shall be at liberty to cancel the
certificate of eligibility granted under E/I No. 13.
SignatureName...........................................
Address.............................................................................................
Date :Place :
AGREEMENT
I, the undersigned applicant, hereby agree that in the event of the court passing adecree or order in may favour awarding costs to me or other monetary benefit oradvantage, I shall repay by way of reimbursement to the Committee all Costs, Chargesand expenses incurred by the Committee in giving me legal aid. I hereby also authorisethe Member Secretary of the Committee to do all such acts and things as may benecessary for recovery or realisation of the amount decreed or ordered to be paid to meand to reimburse the same for the above mentioned purpose.
CONSENT
I agree that my case be listed before Lok Adalat in Hon'ble Supreme Court, if atany stage it is considered by Supreme Court Legal Aid Committee that my matter can bereconciled or settled through Lok Adalat.
Date :Office Report : (Application)
FORM II(See Rule 16)
IN THE MATTER : SCLAC Form 6 AFFIDAVIT FOR LEGAL AID FROM SUPREME COURT LEGAL AID
COMMITTEE
109, Lawyers' Chambers, Supreme Court Compound, New Delhi 110 001.
As Petitioner/Respondent And
In the Matter of :.................................................................................................................Petitioner(s)
Versus
.................................................................................................................Respondent(s)Affidavit of Shri/Smt/Kum.........................................................................................Son/Widow/Daughter of............................................................................................Aged ........................................................ years, Resident of....................................
(1) I solemnly declare and affirm that I have applied for legal Aid from theSupreme Court Legal Aid Committee, New Delhi, in above matter asPetitioner/Respondent vide my application dated.........................................
(2) I solemnly declare and affirm that the contents of my above application forLegal Aid from the Supreme Court Legal Aid Committee, New Delhi, in the abovematter are correct to the best of my knowledge.
(3) I solemnly declare and affirm that I belong to/do not belong ScheduleCaste/Schedule Tribe/Vimukta Jatis/Nomadic Tribesk (Delete whichever is notapplicable).
(4) I solemnly declare and affirm that I have applied for Legal Aid from theSupreme Court Legal Aid Committee in the above matter as Woman/Child/Indigentperson (Delete whichever is not applicable).
DEPONENT
VerificationI, Shri/Smt/Kum................................................... the above named deponent, do
hereby verify that the contents of the Paras 1 to 4 are true and correct to the best of myknowledge nothing stated herein is false and nothing has been concealed. So help mekGod.
Verified on this day of.......................................199 at.....................
DEPONENT
Note : The affidavit should be on the nonjudicial stamp paper of appropriate valueunder the Bombay Stamp Act, 1958 Act, 1958 and sworn before any competent authorityin this regard in Maharashtra.
FORM III (See Rule 16)
SCLAC 32
IN THE SUPREME COURT OF INDIA (APPELLATE/ORIGINAL
JURSDICTION)
S.L.P./Appeal/W.P./T.P./(Civil)/(Criminal) No. of 199...........................................................................................................Petitioner(s)
Versus...........................................................................................................Respondent(s)
AFFIDAVIT OF FACTS
I,..................................................................................Son/Widow/Daughterof .............................................................Aged...............................................................Years, by profession........................................................................................................Resident of.......................................................................................................................do solemnly affirm and State as follows :
(1) I am the Petitioner/One of the petitioners/appellants/resondent in the abovematter and as such acquainted with the facts of the case.
(2) The facts stated in paras...................................................................of the accompanying petition are true to my knowledge and the rest are true oninformation derived from the papers of the case and believed to be true.
(3) That no Special Leave Petition/W.P./T.P. Has been filed in the above matterearlier by me in the Hon'ble Supreme Court against the impugned order/Judgment Decreefor similar relief.
(4) The facts stated in the accompany petition/Misc. Petition (namely stay/condonation of delay/Bail/application for filing proof of surrender/ exemption from filingof the impugned order/application for substitution/other Misc. petitions with itsannexures are true and correct to my knowledge derived from Pet record of the case andmy personal knowledge.
(5) That the Annexures being enclosed with the petition are true copies kof theirrespective originals.
DEPONENTVerification
I, Deponent above named, do solemnly affirm and declare that the contents of theforegoing affidavit are true to my knowledge and no part is false and nothing material hasbeen concealed.
Verified at.....................this the........... day of ......................... 199 ............
DEPONENT
FORM IV(See Rule 16)
SCLAC 3VAKALATNAMA
IN THE SUPREME COURT OF INDIACRIMINAL/CIVIL/APPELLATE/ORIGINAL JURSDICTION
Criminal/Civil/Special Leave Petition/Appeal/WritPetition No. of 199
.....................................................................................................................Appellant(s)
.....................................................................................................................Petitioner(s)Versus
.................................................................................................................Respondent(s)
I/We............................................................................................................the Appellant(s)/Petitioner(s)/Respondent(s) in the above Suit/Appeal/Petition/ Referencedo hereby appoint and retain...........................................................................................Advocate, Supreme Court, on behalf of the SUPREME COURT LEGAL AIDCOMMITTEE to act and appear for me/us in the above Suit/Appeal/Petition Referenceand no my/our behalf to conduct and prosecute (or defend) the same and all proceedingsthat may be taken in respect of any application connected with the same or any decree ororder passed therein including proceedings in taxation and applications for REVIEW tofile and obtain return of documents, and to deposit and receive money on my/our behalfin the said Suit/Appeal/Petition/Reference and in Application for Revenue and torepresent me/us and to take all necessary steps on my/our behalf in the above matter.I/We agree to ratify all acts done by the aforesaid Advocate in pursuance of thisAuthority.
Dated this the.............................day of...........................199 Appellant(s)/Petitioner(s)/Respondent(s)
Caveators(s)
Accepted
Advocate on behalf of the Supreme Court Legal Aid Committee,109, Lawyer's Chambers, Post Office Wing,
Supreme Court Compound, New Delhi 110 001.
APPENDIX `A'(See Rule 18)
Guidelines for finding out the Enacticiable Rights of the Convicted Prisoners
In Raghupathy versus State of Tamil Nadu decided by the Madras High Court on2nd November 1983, the following guidelines i.e. From (1) to (16) have been liad downin the interest of the convicted prisoners.
(1) Life sentence means lifelong imprisonment and it is a sentence for the wholeof the remaining period of the convicted persons natural life.
(2) Nevertheless, the State have powers under section 432 of the Code to remit thewhole or any part of the sentence.
(3) Over and above the powers conferred by section 432 of the Code, theGovernor acting on the advice of the Council of Ministers of the State, has got powersunder Article 161 of the Constitution of India to grant remission of sentence.
(4) Under Section 59 of the Prisons Act, the Government is empowered to makerules, which are consistent with the Act and as per subsection (5) of that section, theGovernment is empowered to make rules for the award of marks and for shortening ofsentence.
(5) In the Rules framed under the prisons Act, the Government has given themodality as to how the Advisory Board should be constituted and how it should functionand how remission are to be granted for the good conduct of the prisoners.
(6) Generally the sentence of all prisoners, who are sentenced to imprisonment inthe aggregate shall be deemed to be sentence of imprisonment for 20 years. However, thiswould not mean that when a life convict has served a sentence of 20 years imprisonmentin prison, either inclusive or exclusive of remission, he will automatically be entitled toan order of premature release.
(7) Unless the Government specifically grants remission of sentence and orderrelease prematuraly, a life convict cannot ask for release on the ground that he has put in20 years of sentence in jail with or without remissions.
(8) Before consideration of the case of a lifer, the Advisory Board has to obtain areport from the District Magistrate and the Police Officer then make its recommendationto the Government. While making it's recommendation, the Advisory Board may set outits reasons for recommending or not recommending lifer's for premature release.
(9) After the Advisory Board gives its report, the papers are forwarded to theGovernment alongwith the report of the inspectorGeneral of Prisons for its decision onthe matter. The Government is not bound to accept the for its decision on the matter. The
Government is not bound to accept the recommended by the Advisory Board and,conversely, to grant premature release to a lifer whose case has not been recommendedby the Advisory Board.
(10) The orders of Government either granting or not granting remission shouldset out the reasons, which has weighed with the Government in passing the order inquestion. Similarly, henever the Government directs that a case should be placed forreconsideration after the lapse of more than six months viz. One year or two years, as thecase may be, the Government should give reasons why it should be put up forconsideration after the prescribed period of time.
(11) If the Government is not inclined to grant remission to a life convict, whosecase is placed before it for consideration, the Government should afford an opportunity tothe affected convict to make his representations, if any, in support of his claim forpremature release.
(12) Though the Government is the exclusive authority to Grant remission, yet itsorders are liable to be challenged in a Court of law, if the Order is vitiated by thearbitrariness or discrimination or if it had been passed on unintelligible grounds or withreference to extraneous or irreevant materials.
(13) Every person, who has been convicted by the sentencing Court beforeDecember 18, 1978, shall be entitled to the benefits accuirng to him from the RemissionScheme or Short Sentencing Project as if section 433A of the Code did not stand in hisway. Even in those cases, where the trial court acquits, but the higher Court convicts andsuch conviction is under section 433A of the Code came into force, it must be held thatthe appellate court has exercised its power in the place of the original court and therefore,the appellate conviction will relate back to the date of the trial court's verdict andsubstitute it and consequetly, even in those cases, the convicts will be entitled to thebenefit of the remission system prevailing prior to the coming into force of section 433Aof the Code.
(14) Where the Government is not inclined to grant premature release, theGovernment should not only set out its reasons, but also give opportunity to the affectedprisoners to make representations, if any, before passing final orders. Even in those caseswhere the Government grants premature release, the reasons for the decision may be setout, so that the Government may not be a accused of having practised discrimination orbeing influenced by extraneous factors.
(15) The Advisory Board considering the question would be bound by them, andwill have to state their reasons for their conclusions.
(16) A prisoner has a right to be heard by Government before they take a decisionadverse to him. Failure to comply with this again may give him a justiciable right.
(17) In the Supreme Court of India, Extra Ordinary Criminal Writ jurisdiction in
Writ Petition (Criminal) No. 755 of 1990 R.N. Tewari V. The Home Secretary, State ofUttar Pradesh and others, the Supreme Court has made the following order on 14thFebruary 1991, namely :
“This Writ Petition is in the nature of a Public Interest Litigation demandingpremature release of life convicts who were sentenced prior to December 18, 1978 whensection 433 A was introduced in the Code of Criminal Procedure, 1973 and those whowere convicted after the cut off date i.e. December 18, 1978. In respect of those liferswho were convicted before December 18, 1978, we direct that such of those who haveserved a sentence of ten years actual imprisonment and above or 14 years ofimprisonment with remissions shall be considered for permature release within a periodof six months from the date of this order. Their names have been indicated in AnnexureD & E to the Rejoinder Affidavit, but the lists may not be taken as exhaustive.
Those lifers who have been convicted after December 18, 1978 shall beconsidered for release in accordance with the provisions of the U.P. Prisoners Release onProbation Act, 1938 or under the relevant provisions of the Jail Manual prescribingconditions for premature release, as the case may be, within a period of nine months fromthis order. The above directions will stand modified in the case of lifers whose cases wereconsidered and rejected after 1st January, 1989 to the extent that their cases will bereconsidered after the time stipulated for such reconsideration has expired. However,those lifers whose cases were considered prior to 31st December, 1988 shall be governedby the above direction and their cases will be reconsidered for premature release withinthe time allowed by the direction.
The above order disposes of this writ Petition. We may, however, make it clearthat if the State Government fails to comply with this direction it will be open to thepetitioner to seek appropriate orders from this Court as and when required. The WritPetition is disposed of accordingly.”
(18) Prisoners are entitled to the concession and incentives as prescrined under theMaharashtra Prisoners (Remission System) Rule, 1962 and the Maharashtra Prisons(Review and Remission of Sentences) Rules, 1970.
(19) According to the Government letter, Home Department No. RTP.1767/60965IV, dated the 13th June, 1968 the prisoners undergoing vasectomy operations arepaid an amount of Rs. 20 or granted 10 days special remission in lieu thereof.
(20) Under Government letter, Home Department No. MIS 5171/36780XVI,dated the 17th June, 1972, the following concessions are granted to the prisonersundergoing sterilisation :
(A) Exemption from labour : The prisoners undergoing sterilisation operationsshould be given rest by exempting them from labour as indicated below :
(a) Vasectomy Operation : Exemption from labour for a period of seven
days or more if recommended by the medical officer.(b) Tubectomy Operation : Exemption from hard labour for a period of three
weeks and exemption from ordinary labour, for a period of 2 weeks or more ifrecommended by the medical officer.
(B) Remission in sentences : In addition to the exemption from labour as above,the prisoners undergoing sterilisation operations should be granted remission for a periodof 15 days in their sentences instead of 10 days as at present granted under Governmentletter, Home Department No.R.T.P.1767/60965IV, dated the 13th June, 1968.
(C) Cash Incentive : The rates of compensations payable to the prisonerundergoing sterilisation operations should be as prescribed in Government Resolution,Urban Development, Public Health and Housing Department, No. COM. 1570/6055FPCell, dated 25th May, 1971. The compensations in cash will be in lieu of the remissionsin sentences prescribed in paragraph(b) above and it will be for the prisoners to decideindividually at their discretion as to which concessions (i.e. Whether remission insentence or compensation in Cash) should be availed of.
(21) Under Government letter, Home Department No. MIS. 5171/36780XVI,dated the 2nd November 1972, special remission of 15 days granted under clause (B) ofentry (19) above, to the male and female prisoners undergoing sterilisation operation i.e.Vasectomy and tubectomy, are extended to the lifers also who undergo sterilisationoperations and in whose cases Government has decided their release after a specifiedperiod of actual imprisonment. Thus they will be entitled to count the period of thisremission towards their actual term of imprisonment. Such prisoners will also be entitledto other concessions and incentives as prescribed in Government letter, HomeDepartment No. MIS 5171/36780XVI, dated the 17th June, 1972.
APPENDIX `B'(See Rule 19)
Guidelines for the Enforcement of the Justiciable Rights of theconvicted prisoners
In Raghupathy versus State of Tamil Nadu, decided by the Madras High Court on2nd November, 1983, the following guidelines have been laid down in the interest of theconvicted prisoners.
(1) While remitting unexpired portion of sentences the convicted prisoners shallbe given opportunities to be heard in each processful stages.
(2) The convicted prisoners shall be advised at various stages of the processspecified in rule 18.
(3) They shall be called upon for counselling under subrule (3) of rule 12 for
presenting their cases.(4) They shall be assisted to appear before the Advisory Board, seek and obtain
copies of the recommendations of the Advisory Board, examine the further rights, if any,when the decisions are adverse, and represent before Government when necessary.
(5) The Duty Counsels accredited to the prison shall thoroughly acquaintthemselves with the case histories of prisoners and ascertain the necessary details of allconvicted prisoners so as to be in a position to use to the mandates in the judgments andthe criteria prescribed for consideration of release to enable them to intervene effectivelywhen needed to secure justice to the prisoners.
APPENDIX `C'(See Rule 20)
Guidelines in respect of precautions to be taken before moving the Authorities for remission of sentences of convicted prisoners
In Raghupathy versus State of Tamil Nadu decided by the Madras High Court on2nd November, 1983, the following guidelines in respect of precautions to be takenbefore moving the Authorities for remission of sentence of convicted prisoners, havebeen laid down.
(1) Firstly, there should be subjective assessment if necessary with the help ofpsychologists, to find out if the convict has undergone a change of heart due to feelings ofremorse for his action and whether he is suited to join the mainstream of life in his villageor town.
(2) Secondly, it should be found out whether his family members and otherrelations are prepared to take him back in their fold and resume their ties of relationship,snapped for long during his period of incarceration, with him. It may happen in somecases as for example in a case where the convict has murdered his wife, that the childrenmay not be prepared to forgive him and agree to look after him.
(3) Thirdly, it has to be ascertained how the convict will be able to earn hislivelihood if he is granted premature release because as an exconvict, it will be verydifficult for him to get employment anywhere. Therefore unless he has got lands tocultivate or a profession to practice or is given food and shelter by his relations, he mayfeel more despondent and frustrated in his state of freedom than what he felt when he wasinside prison.
(4) Fourthly, the likely reaction of the relations of the victim of the crime mustalso be found out to see whether they would react violently if the convict is grantedpremature release. If they are militant, the danger of those persons doing harm to theconvict cannot be ruled out.
(5) Fifthly, if the murder committed by the convict was on account of a faction oron account of a communal or caste feelings, it must be ensured that the causes of frictionwhich led to the commission of the offence are no longer present.
As the above factors are likely to vary for each convict, the persons championingthe cause of life convicts cannot insist upon the Government following a rule of thump ingranting premature release to life convicts.
Maharashtra State Legal servicesAuthority Rules, 1998
No.LAB, 1895/359 (642) XII, MANTRALAYA, MUMBAI 400 032, DATEDTHE 13TH JANUARY, 1998 In exercise of the powers conferred by Sec. 28 of theLegal Services Authorities Act, 1987 (39 of 1987), and of all other powers enabling it inthis behalf, the Government of Maharashtra, hereby in consultation with the Chief Justiceof Bombay High Court, makes the following rules, namely :
1. Short Title and Commencement,. ( 1 ) These rules may be called theMaharashtra State Legal Services Authority Rules, 1998.
(2) They shall come into force on the 14th day of January, 1998.
2. Definitions In these rules, unless the context otherwise requires.(a) “Act” means the Legal services Authorities Act, 1987 (3( to 1987);(b) “Chief Justice” means the Chief Justice of Bombay High Court;(c) “District Authority” means the District Legal Services Authority constituted
under Sec. 9 of the Act, and includes the District Brihan Mumbai Legal ServicesAuthority and District Brihan Mumbai Suburban Legal Services Authority :
(d) “Government” means the Government of Maharashtra;(e) “High Court Legal Services Committee” means the High Court Legal services
Committee constituted for the principal seat of the Bombay High Court at Mumbai andits Benches at present functioning at Nagpur and Aurangabad and Benches that may beformed at any other place within the State of Maharashtra;
(f) “Schedule” means Schedule appended to these rules;(g) “All other terms and expressions used under these rules but not defined shall
have the meanings respectively assigned to them in the Act.
3. Number, Experience and Qualifications of Other Members of the StateAuthority Under C1. (ac) OF SUBSECTION (2) OF SEC. 6. (1) Apart from theChief Justice and the Executive Chairman, the following shall be exofficio members ofthe State Authority :
(i) The Minister for Law and Judiciary; (ii) The AdvocateGeneral of Maharashtra;(iii) The Chief Secretary to Government;(iv) The Secretary to Government in the Law and Judiciary Department;(v) The Secretary to Government in the Finance Department;
(vi) The DirectorGeneral of Police, Maharashtra State;(vii) MemberSecretary of the State Authority appointed under subsection (3) of
Sec. 6 of the Act;Provided that, the officer presently functioning as the Secretary of the
Maharashtra State Legal Aid and Advice Board shall be the MemberSecretary of theState Authority for a period of not exceeding five years as provided under the proviso tosubsection (3) of Sec. 6 of the Act.
(2) The Government may nominate, in consultation with the Chief Justice, othermembers not exceeding ten in number of whom atleast half shall be women, possessingthe experience and qualifications prescribed in subrule (3) of this rule.
(3) A person shall not be qualified for nomination as member of the StateAuthority unless in the opinion of Government he is
(a) an eminent Social Worker who is engaged in upliftment of the weaker sectionsof the society including Scheduled Castes, Scheduled Tribes, women, children, rural andurban labour; or
(b) an eminent, person in the filed of law; or(c) a person of repute who is specially interested in the implementation of the
Legal Services Schemes.
4. Powers And Functions of The MemberSecretary of The State Authorityunder Subsection (3) of Sec. 6 Subject to the general supervision of the StateAuthority and the executive Chairman, the powers and functions of the MemberSecretary of the State Authority, shall be as follows, namely :
(a) `to arrange for free legal services to the eligible and weaker sections;(b) to work out modalities of the Legal Services Schemes and programmes
approved by the State Authority and ensure their effective monitoring andimplementation;
(c) to exercise the powers in respect of Administration, Housekeeping, Financeand Budget matters as Head of Department in the State Government;
(d) to manage the properties, records and funds of the State Authority;(e) to arrange for maintenance of true and proper accounts of the State Authority
including checking and auditing in respect thereof periodically;(f) to prepare Annual Income and Expenditure Account and Balance Sheet of the
State Authority;(g) to liasion with the Social Action Groups and District and Taluka Legal
Services Authorities;
(h) to maintain uptodate and complete statistical information including progressmade in the implementation of various Legal Services Programmes from time to time;
(i) to process proposals for financial assistance and issue utilization Certificatesthereof;
(j) to organize various Legal Services Programmes as approved by the StateAuthority and convene meetings, seminars and workshops connected with Legal ServicesProgrammes and preparation of Reports and followup action thereon;
(k) to arrange for production of video or documentary films, publicity material,literature and publications to inform general public about the various aspects of the LegalServices Programmes;
(l)to lay stress on the resolution of rural disputes and to take extra measures todraw schemes for effective and meaningful legal services for setting rural disputes at thedoorsteps of the rural people;
(m) to perform such of the functions as are assigned to him under the Schemesformulated under C1. (b) of Sec. 4 of the Act; and
(n) to perform such other functions as may be expedient for efficient functioningof the State Authority.
5. Terms of Office and Other Conditions Relating Thereto, of Members andMemberSecretary of The State Authority Under SubSection (4) Of Sec. 6. (1) Theterms of office of the members of the State Authority nominated under subrule (2) ofrule 3 by the Government shall ordinarily be for a period of three years and they shall beeligible for renomination. A member whose terms has expired, shall, however, continuein office till new member is appointed in his place.
(2) A member of the State Authority nominated under subrule (2) of rule 3 mayresign by letter addressed to the Chief Justice. He may also be removed by theGovernment if in its opinion he is not taking sufficient interest in the activities of theState Authority.
(3) If any member nominated under subrule (2) of rule 3 ceases to be a memberof the State Authority for any reason, the vacancy shall be filled up in the same manner asthe original nomination and the person so nominated shall continue to be a member forthe remaining term of the member in whose place he is nominated.
(4) If a member is a sitting or retired Judge of the Supreme Court or the HighCourt he will be entitled to travelling allowance and daily allowance according to therules applicable to the sitting Judges of the Court concerned. The members who are otherfunctionaries such as sitting members of Legislative Assembly and Government servantsshall be entitled to the travelling allowance and daily allowance according to the rulesapplicable to them.
(5) If the nominated member is a Government employee, he shall be entitled toonly one set of travelling and daily allowance, either from his parent Department or as thecase may be from the State Authority.
(6) In all matters like age of retirement, pay and allowances, benefits andentitlement, and disciplinary matters, the Member secretary shall be governed by theGovernment Rules applicable to him.
6. Number of Officers and Other Employees to The State Authority underSubsection (5) of Sec. 6. The State Authority shall have such number of officers andother employees as specified in the Schedule.
7. Conditions of Service and The Salary And Allowances of Officers AndOther Employees of The State Authority under Subsection (6) of Sec. 6 : (1) Theofficers and other employees of he State Authority shall be entitled to draw pay andallowances in the scale of pay at par with the Government officers and employee holdingequivalent posts.
(2) In all matters like age of retirement, pay and allowances, benefit andentitlements and disciplinary matters, the officers and other employees of the StateAuthority shall be governed by the Government Rules as are applicable to personsholding equivalent posts.
(3) The officers and other employees of the State Authority shall be entitled tosuch other facilities, allowances and benefits as may be notified by the Government fromtime to time.
8. Experience And Qualifications of Secretary of The High Court LegalServices Committee Under SubSection (3) of Sec. 8A. (1) A person shall not bequalified for appointment as Secretary of the High Court Legal Services Committeeunless he is an officer of the High Court not below the rank of an Additional Registrar.
(2) The State Authority shall as provided under subsection (1) of Sec. 8A of theAct, appoint separate High Court Legal Services Committee for each of its Benchesalready functioning at Mumbai, Nagpur and Aurangabad and for other Benches that maybe established at any other places within the limits of Maharashtra State.
9. Number of Officers And Other Employees of The High Court LegalServices Committee And The Condition of Service and The Salary And AllowancePayable to Them Under Subsection (5) And (6) of Sec. 8A. (1) Each High CourtLegal Services Committee shall have such number of officers and other employees asspecified in the Schedule.
(2) The officers and other employees of a High Court Legal Services Committeeshall be entitled to draw pay and allowances in the scale at par with the Governmentemployees holding equivalent posts.
(3) In all matters like age of retirement, pay and allowances, benefits andentitlements and disciplinary matters, the officers and other employees of a High CourtLegal services Committee shall be governed by the Government Rules as are applicableto persons holding equivalent posts.
(4) The officers and other employees of a High Court Legal Services Committeeshall be entitled to such other facilities, allowances and benefits as may be notified by theGovernment from time to time.
(5) For a period of one year from the date, Chapter III of the Act is brought intoforce in the State of Maharashtra, it shall be lawful for the Government to provide eachHigh Court Legal services Committee with the additional strength of staff as indicate inthe Schedule.
10. Number, Experience and Qualifications of Members of The DistrictAuthority, Under C1 (B) of subSection (2) of Sec. 9. (1) In all districts exceptDistrict Brihan Mumbai and District Brihan Mumbai Suburban the following shall be exofficio members of the District Authority, apart from the District Judge namely :
(i) Collector;(ii) Commissioner of Police (if appointed in any district)(iii) Superintendent of Police;(iv) Chief Judicial Magistrate;(v) District : Government Pleader.;(vi) Member Secretary.(2) The Government may nominate in consultation with the chief Justice other
members not exceeding six in number of whom at least half are women possessingqualifications and experience prescribed in subrule (3) of this rule.
(3) A person shall not be qualified for nomination as a member of the DistrictAuthority unless he is.
(a) an eminent Social Worker who is engaged in the upliftment of the weakersections of the society, including Scheduled Castes, Scheduled Tribes, women, childrenand urban or rural labour; or
(b) an eminent person in the filed of law; or(c) a person of repute who is specially interested in implementation of the Legal
Services Schemes.(4) The Government shall, in consultation with the Chief Justice, constitute the
District Brihan Mumbai Legal Services Authority; and District Brihan Mumbai Suburban
Legal Services Authority, consisting of the following, exofficio members, namely :(A) The District Brihan Mumbai Legal Services Authority (i) Principal Judge, City Civil Court;(ii) Collector of Mumbai City;(iii) Commissioner of Police, Brihan Mumbai;(iv) Government Pleader, City Civil Court, Mumbai;(v) Chief Metropolitan Magistrate, Mumbai.
(B) The District Brihan Mumbai Suburban Legal Services Authority (i) Principal Judge, Family Court, Mumbai;(ii) Collector of Mumbai Suburban;(iii) Commissioner of Police, Brihan Mumbai;(iv) Additiona;/Assistant Government Pleader, City Civil Court, Mumbai;(v) Chief Judge, Small Causes Court, Mumbai.(5) The Government may nominate in consultation with the Chief Justice other
members not exceeding six in number of whom at least half shall be women, on theabove Authorities, possessing the qualifications and experience prescribed in subrule (3)of this rule.
(6) Every High Court Legal Services Committee shall have power of generalsupervision over the District Authorities falling within their respective territorialjurisdiction.
11. Number Of Officers and Other Employees of District Authority' underSubsection (5) Of Sec. 9. Subject to the proviso of subrule (4) of rule 12 of theserules the District Authority shall have such number of officers and other employees asspecified in the Schedule.
12. Conditions Of Service and Salary and Allowances of Officers and OtherEmployees of The District Authority under Subsection (6) of Sec. 9. (1) Theofficers and other employees of the District Authority shall be entitled to draw pay andallowances at par with the State Government employees holding equivalent posts.
(2) In all matters like age of retirement, pay and allowances, benefits andentitlement and disciplinary matters, the officers and other employees of the DistrictAuthority shall be governed by the State Government Rules as are applicable to personsholding equivalent posts.
(3) The officers and other employees of the District Authority shall be entitled tosuch other facilities, allowances and benefits as may be notified by the Government fromtime to time.
(4) The staff namely, clerks, peons, Safaikamgars and watchmen presentlyfunctioning on the District Committees and the Greater Bombay Legal Aid and AdviceCommittee shall be absorbed on the District Authority on the posts of clerkcumtypists,peons, Safaikamgars and watchmen respectively on the condition that they would qualifyfor the said posts after absorption wherever required.
13. Number, Experience And Qualification of Members of The Taluka LegalServices Committee under C1. (b) of Subsection (2) of Sec. 11A. (1) Apart from theChairperson appointed under C1. (a) of Subsection (2) of sec. 11A of the Act, thefollowing shall be exofficio members of Taluka Legal Services Committee, namely :
(i) SubDivisional Police Officer;(ii) One of the Law Officers posted at the Taluka Headquarters, if any;(iii) Block Development Officer.
(2) The State Government may nominate in consultation with the Chief Justiceother members not exceeding four in number of whom at least half shall be women,possessing the qualifications and experience prescribed in subrule (3) of this rule.
(3) A person shall not be qualified for nomination as a member of the TalukaLegal services Committee unless he is.
(a) an eminent Social Worker who is engaged in the upliftment of the weakersections of the society including Scheduled Castes, Scheduled Tribes, women, childrenand rural labour; or
(b) an eminent person in the filed of Law; or(c) a person of repute who is specially interested in the implementation of the
Legal Services Scheme.(4) The Chairman of the Taluka Legal Services Committee may appoint either the
Law Officer or the Block Development Officer as Secretary of the Committee.
14. Number of Officers And other Employees of The Taluka Legal ServicesCommittee under Subsection (3) of Sec. 11A. The Taluka Legal ServicesCommittee shall have such number of officers and other employees as specified in theSchedule.
15. Conditions of Service and The Salary and Allowances of Officers AndOther Employees of The Taluka Legal services Committee under SubSection (4) ofSec. 11A. (1) The officers and other employees of the Taluka Legal servicesCommittee shall be entitled to draw pay and allowances at par with the State Governmentemployees holding equivalent posts.
(2) In all matters like age of retirement, pay and allowances, benefits, entitlementsand disciplinary matters, the officers and other employees of the Taluka Legal ServicesCommittee shall be governed, by the State Government Rules as are applicable to personsholding equivalent posts.
(3) The Officers and other employees of the Taluka Legal Services committeeshall be entitled to such other facilities, allowances and benefits as may be notified by theState Government from time to time.
16. Upper Limit of Annual Income of Person for Availing Legal Servicesunder C1. (H) of Sec. 12. Any citizen of India whose case is before a Court, other thanthe Supreme Court, and whose annual income from all sources does not exceed Rs.20,000 (Rupees Twenty Thousand) shall be entitled to legal services under C1. (h) of Sec.12 of the Act.
17. Experience and Qualifications of the other Persons of Lok Adalats otherthan referred to In Subsection (4) of Sec. 19. A person shall not be qualified to beincluded in the Bench of Lok Adalat unless he is.
(a) an eminent social worker who is engaged in the upliftment of the weakersections of the people, including Scheduled Castes, Scheduled Tribes, women, children,rural and urban labour; or
(b) a lawyer of standing repute; or(c) a person of repute who is specially interested in the implementation of the
Legal Services Schemes and Programmes.
18. Saving. The provisions of the Maharashtra Legal Aid and Advice Scheme,1979, the Maharashtra State Legal Aid and Advice Board Rules, 1981 and theMaharashtra State Legal Aid and Advice Board Regulations, 1981 on any matter such ashonoraria to be paid to the Pleaders, registers and other record to be maintained etc.which are not inconsistent with any provisions of the Act or these Rules or Regulationsthat may be framed under Sec. 29A by the State Authority shall remain in force mutatismutandis until different provision is made under the Act, these Rules and Regulations asthe case may be.
Maharashtra State Legal Services Authority
State Legal Services Authority
SCHEDULE
{ Please refere to rules 6,7,9 (1) and (2), 11, 12 (1) 14 and 15 (1)}
Sr.No.
1
Nomenclature ofthe posts
2
Pay Scale
3
No. ofPosts
required
4
Job description
5
1 Deputy Secretary 3,7001254,7001505,000+ Spl pay Rs. 500 (LegalSide)
2 (i) Administration ofState, District andTaluka Authorities(One DeputySecretary).
(ii) Budget and grantdistribution etc.
2 Under Secretary 3,0001003,5001254,500(Non Legal)
2 (i) Administration ofState, District andTaluka Authorities(Non0Legal Side).
(ii) Budget and GrantDistribution etc.
3 Section Officer 2,000602,300E.B.753,2001003,500
2 (i) Administration ofState, District andTulaka Authorities.
(ii) Budget and GrantDistribution etc.
4 Superintendent(Legal)
2,375753200E.B.1003,500
1 Application and otherlegal Affairs
Sr.No.
1
Nomenclature ofthe posts
2
Pay Scale
3
No. ofPosts
required
4
Job description
5
5 Assistant (Legal) 1,640602,600E.B.752,900
6 One (Legal Five (NovLegal)
6 Cash Accountant 1,640602,600E.B.752,900 + Spl.Pay Rs.100
1
7 Cashier 950201,150E.B.251,500with Spl. Pay forhandling Cash
1
8 Bill Accountant 950201,150E.B.251,500 + Spl. Pay Rs. 60
6
9 ClerkcumTypist 950201,150E.B.251,500
8
10 Stenographer(Higher Grade)(English )
2,000602,300E.B.753,200
2
11 Stenographer(Higher Grade)(Marathi)
2,000602,300E.B.753,200
2
12 Stenographer(Lower Grade)( English)
1,640602,600E.B.752,900
1
13 Stenographer(Lower Grade)(Marathi)
1,640602,600E.B.752,900
2
14 Peon 75012870E.B.14940 7
15 Roneo Operator 77512955E.B.151,030201,150 + Rs. 30 Spl. Pay
1
16 Xerox Operator 77512955E.B.151,030201,150 + Rs. 30 Spl. Pay
1
Sr.No.
1
Nomenclature ofthe posts
2
Pay Scale
3
No. ofPosts
required
4
Job description
5
17 Driver 95020=1,150E.B.251,500
2
(1) District Brihan Mumbai Legal Services Authority(2) District Brihan Mumbai Suburban Legal Services Authority
SCHEDULE
{Please refer to rules 6,7,9 (1) and (2), 11,12 (1) 14 and 15 (1)}
Sr.No.
1
Nomenclature ofthe posts
2
Pay Scale
3
No. ofPosts
required
4
Job description
5
1 Superintendent 1,640602,600E.B.752,900
2 Administrative matter
2 Stenographer(Lower Grade)(English andMarathi)
1,640602,600E.B.752,900
4
Sr.No.
1
Nomenclature ofthe posts
2
Pay Scale
3
No. ofPosts
required
4
Job description
5
3 Assistant 1,200301,560E.B.402,040
4
4 Cashier 950201,150E.B.251,500 + Spl. Pay
2
5 ClerkcumTypist 950201,150E.B.251,500
6
6 Peon 75012870E.B.14940 4
7 Watchman 75012870E.B.14940 2
8 Driver 950201,150E.B.251,500
2
High Court Legal Services Authority
Schedule
[Please refer to rules 6,7,9 (1) and (2), 11,12 (1), 14 and 15(1)]
Sr.No.
1
Nomenclature ofthe posts
2
Pay Scale
3
No. ofPosts
required
4
Job description
5
1 Stenographer(Higher Grade)(English)
2,000602,300E.B.753,200
3 Under rule 9(1) theHigh Court LegalServices AuthorityShall be at the BombayHigh Court at Mumbaias well as at Nagpurand AurangabadBenches.
Sr.No.
1
Nomenclature ofthe posts
2
Pay Scale
3
No. ofPosts
required
4
Job description
5
2 Stenographer(Higher Grade)(Marathi)
2,000602,300E.B.753,200
3
3 EstablishmentOfficer
2,000602,300E.B.753,500
3
4 Assistant 1,6406—2,600E.B.752,900
3
5 ClerkcumTypist 950201,150E.B.251,500
6
6 Peon 75012870E.B.14940 7
7 Driver 950201,150E.B.251,500
4
District Legal Services Authority
Schedule
[Please refer to rules 6,7,9(1) and (2) 11,12,(1), 14 and 15 (1)]
Sr.No.
1
Nomenclature ofthe posts
2
Pay Scale
3
No. ofPosts
required
4
Job description
5
1 Superintendent 1,640602,600E.B.752,900
29 There shall be OneSuperintendent, TwoAssistant, Two ClerkcumTypist and Threepeons at District Place.
Sr.No.
1
Nomenclature ofthe posts
2
Pay Scale
3
No. ofPosts
required
4
Job description
5
2 Assistant 1,200301,560E.B.402,040
58
3 ClerkcumTypist 950201,150E.B.251,500
58
4 Peon 75012870E.B.14940 87
Taluka Legal Services Authority
1 Assistant 1,200301,560E.B.402,040
322
2 ClerkcumTypist 950201,150E.B.251,500
644
3 Peon 75012870E.B.14940 322
MAHARASHTRA STATE LEGAL SERVICES AUTHORITY REGULATIONS, 1998
No. LAB. 1895/359 (642)XXII, DATED 30TH MARCH, 1998 – In exercise ofthe powers conferred under the provisions of Sec.29=A of the Legal Services AuthoritiesAct, 1987 and in consultation with the Hon'ble The Chief Justice of Bombay High Court,the Stater Government hereby makes the following Regulations.
Chapter I
Preliminary
1. Short Title and Commencement (1) These regulations may be calledMaharashtra State Legal Services Authority Regulations, 1998.
(2) They shall come into force on the 30th day of March, 1998.
2. Definitions (1) In these regulations, unless the context otherwise requires :
(a) “ Act” means, the Legal Services Authorities Act, 1987 [No.39 of 1987];(b) “Chairman” means the Executive Chairman of the State Authority, or as the
case may be, the Chairman of the High Court Legal Services Committee or the Chairmanof the SubCommittee, as the case may be, the Chairman of the District Legal ServicesAuthority, or the Chairman of Taluka committee;
(c) “District Authority” means the District Legal Services Authority constitutedunder Sec.9 of the Legal Services Authorities Act;
(d) “High Court Committee” means the Bombay High Court Legal ServicesCommittee at Mumbai and SubCommittees at its benches at present functioning atNagpur and Aurangabad and its benches that may be formed at any other place within theState of Maharashtra;
(e) “Legal Practitioner” shall have the meaning assigned to that expression in theAdvocates Act, 1961;
(f) “Member” means a member of the State Authority, the High CourtCommittee, the SubCommittee, the District Authority or the Taluka Committee as thecase may be;
(g) “Nominated Member” means a member nominated to the State Authority, theHigh Court Committee, the SubCommittee, the District Authority or the Talukacommittee as the case may be;
(h) “Patronin Chief” means the PatroninChief of the State Legal ServicesAuthority i.e. The Chief Justice or the Acting Chief Justice of the High Court of Bombay,as the case may be;
(i) “Rules” means the Maharashtra State Legal Services Authority Rules, 1998;
(j) “State Authority” means the Maharashtra State Legal Services Authority;
(k) “Taluka Committee” means the Taluka Legal Services Committee constitutedunder Sec.11A of the Legal Services Authorities Act;
(2) All other words and expression used in these Regulations but not defined shallhave the meaning respectively assigned to them in the Act and the Rules framedthereunder.
Chapter IIExecutive Authority
3. Meeting of the Executive Authority (1) The executive authority of the StateAuthority shall vest in the Executive Chairman and may be exercised by the MemberSecretary whop shall act under the control of the Executive Chairman.
(2) The Executive authority of the District Authority shall vest in its Chairmanand it may be exercised by its Secretary who shall act under the control of the Chairman.
(3) The executive authority of the Taluka Committee shall vest in its Chairmanand may be exercised either by himself or through such other officer who is chosen forthe purpose.
Chapter IIIState Authority
4. Function of the State Authority under Sec. 7 (1) and 7(2) of the Act In
addition to the functions to be performed by the State Authority as laid down by Sec.7(1)and 7(2) of the Act, the State Authority may also perform the following additionalfunctions :
(i) The State Authority may conduct legal literacy camps in different parts of theState to bring awareness about the legal aid schemes conducted in the State and with aview to make them aware of their legal rights and duties with special reference to thetribal and rural population., women, children, disabled, handicapped and the weakersections of the society.
(ii) The State Authority may conduct legal aid clinics in different parts of theState in collaboration with Law Colleges, Universities and other social serviceorganizations.
(iii) The State Authority may also establish or direct the District Authority toestablish standing conciliation Committees at various centers in the State with a view toproviding permanent or quasipermanent infrastructures for resolving legal disputesbetween the parties, whether they may be pending in Courts or may be in the offing. Forconducting such committees it will be open to the State Authority to take activeassistance/support of such social service organizations that have zeal for legal aid work.
(iv) The State Authority may review the cases where legal services are refused bythe District Authority on application and the decision of the State Authority shall be final.
Chapter IVHigh Court Legal Services Committee
Constitution of the High Court Legal Services Committee at Mumbai and its SubCommittees at its benches; Their Powers and Functions
5. Duties and Functions of the High Court Legal Services Committee as per Sec.8A (I) of the Act The High court Legal Services Committee and the SubCommitteesshall perform all or any of the following functions, namely :
(i) To give free legal service to persons who may have to file or defend litigationspending in the High Court and who satisfy the eligibility criteria laid down for thepurpose of receiving free legal aid under the Act.
(ii) To organise Lok Adalats for settlement of cases pending in the High Courtunder the supervision of the State Authority.
6. Constitution of the High Court Legal Services Committee at Mumbai and itsSubCommittees at Nagpur and Aurangabad, Their Powers and Functions as perSec. 8A of the Act. The State Authority shall constitute a High Court Committee andits subcommittees, consisting of a sitting Judge of the high Court who shall benominated by PatroninChief as Chairman and the following other members also to benominated by PatroninChief :
(i) The Presidents of Bombay Bar Association, Advocates Association ofWestern India, Incorporated Law Society at Mumbai, Presidents of High Court BarAssociation, Nagpur, Vidharbha Labour Practitioners' Association, Nagpur, and Presidentof High Court Bar Association, Aurangabad.
(ii) One Member out of Bar Association of Bombay and one member of the SubCommittee from bar Association of Nagpur and Aurangabad respectively, having at least10 years of standing at the Bar.
(iii) An eminent Social worker engaged in Welfare of the weaker sections of theSociety including Scheduled Caste, Scheduled Tribe or Members of other BackwardClasses.
(iv) An eminent person in the field of Law.
(v) A person of repute and standing who is specifically interested in tehimplementation of the Legal Services Schemes.
7. Term of Office of the Members and Secretary of the High Court LegalServices Committee and its SubCommittees (1) The term of office of the Secretaryand the Members of the High Court Committee and its SubCommittees shall be of oneyear.
(ii) All the Members of the Committees except the Secretary shall function in thehonorary capacity.
(iii) If any member including the Chairman ceases to be the member of the High
Court Committee and/or the SubCommittees for any reason, the vacancy shall be filledup in the same manner as the original nomination and the person so nominated shallcontinue to be the member or the Chairman, as the case may be, for the remaining term ofthe member or the Chairman in whose place he is nominated.
(iv) A member of the High Court Legal Services Committee and /or its subcommittees may resign his office by writing under his hand addressed to the PatroninChief and forwarded by the Chairman of the High Court committee and its SubCommittees. The resignation shall take effect from the date on which it is accepted.
Chapter VDistrict Authority
8. The Conditions relating to the terms of office of the Members and theSecretary of the Committee, under Sec. 9(4) of the Act. The term of office of theMembers of the District Authority :
(i) The term of office of the Members and the Secretary of the District Authorityshall be for a period of one year.
(ii) If any member of the District Authority ceases to be the member for anyreason, the vacancy shall be filled up in the same manner as the original nomination andthe person so nominated shall continue to be the member for the remaining term of themember, in whose place he is nominated.
(iii) A member of the district Authority may resign his office by writing under hishand addressed to the State Authority through the Executive Chairman of the StateAuthority and forwarded through the Chairman of the District Authority. The resignationshall take effect from the date on which it is accepted.
9. Additional Functions of the District Authority In addition to the functionsassigned by the provisions of the Act and the Rules, the District Authority shall performthe following functions subject to general superintendence and control of the StateAuthority.
(i) To perform such other functions as the State Authority may fix by Regulationsfrom time to time and shall also be guided by such directions as Central Authority or theState Authority, may give, in writing from time to time.
(ii) To conduct legal literacy camps in different areas of the District especially inrural and tribal areas, with a view to bring awareness about the legal aid schemes,conducted in the State and also with a view to make them aware of their legal rights andduties with special reference to tribal and rural population and /or women /or children/ordisabled/ or handicapped and the weaker sections of the society;
(iii) To conduct legal aid clinics in different parts of the District in collaborationwith Law Colleges, Universities and other social services organizations;
(iv) To direct, supervise and guide the working of the Taluka committees in theDistrict.
(v) To call for from the Taluka Committees in the District such periodical reports,returns and other information as it may think fit or as are required by the State Authority;
(vi) To prepare, consolidate and submit such reports, returns and suchinformation, in respect of District Authorities, as the State Authority may call for;
(vii) To receive applications for Legal Services and ensure that every applicationis promptly processed and disposed of;
(viii) To consider the cases brought before it for legal service, including prelitigation matters and decide as to what extent legal services can be made available to theapplicant.
(ix) To pursue the parties to appear and make efforts t bring about a justsettlement between them and if necessary also refuse the legal services, if in its opinionthe conciliation has failed due to any fault on the part of the applicant.
(x) To encourage and promote conciliation and settlement in all legal proceedingsincluding prelitigations;
(xi) To take proceedings for recovery of costs awarded to a person to whom legalservices where rendered.
(xii) To review the cases on application where legal services are refused by theTaluka committees.
10. Decisions by resolutions all decisions of the State Authority High CourtCommittee and its SubCommittees, District Authority, or the Taluka Committee shall beby way of resolution passed in the meeting and in the event of an equal division of votes,the decision of the Executive Chairman or the Chairman of the Different other bodies asthe case may be, shall be final:
Provided that in such matter as may be directed by the Executive Chairman or theChairman of the different other bodies,. As the case may be, the decision of the StateAuthority or of the High Court Committee, the District Authority or the TalukaCommittee may be taken by circulation/resolution.
11. (a) Members other than Ex Officio are entitled to travelling allowance and dailyallowance for attending the meetings which shall not be less than payable to Class IGazetted Officer.
(b) An account shall be opened in any of the nationalized banks by the StateAuthority and District Authority respectively as “State Legal Aid Fund” and “DistrictLegal Aid Fund” respectively.
(c) “State Legal Aid Fund” account shall be operated jointly by Secretary of StateAuthority and the Secretary and Remembrancer of Legal Affairs to the Government inLaw and Judiciary Department under the supervision of PatroninChief.
(d) District Legal Aid Fund account shall be operated jointly by Chairman andSecretary of the District Authority, under the supervision of the State Authority.
Chapter VI12. Taluka Legal Services Committee, term of office and other conditionsrelating thereto of Members of the Taluka Committee. (1) The term of office of theMembers of the Taluka Committee shall be for a period of one year.
(2) If any member of the said Committee ceases to be such member for anyreason, the vacancy shall be filled up in the same manner as the original nomination andthe person so nominated shall continue to be the member for the remaining term of themember in whose place he is nominated.
(3) A member of the said Committee may, resign his office by writing under his
hand addressed to the Executive Chairman of the State Authority and forwarded throughthe Chairman of the District Authority under the intimation to the Chairman of theTaluka Committee. Such resignation shall take effect from the date on which it isaccepted by the Executive Chairman of the State Authority.
Chapter VIIConduct of Business
13. Meetings – The Secretary of the State Authority with the prior approval of theExecutive Chairman of the State Authority shall arrange a meeting of the Authority oncein a three months and as and when the business may warrant.
The Secretary of the High Court Committee and its SubCommittees with priorapproval of its Chairman, the Secretary of the District authority, and the Chairman of theTaluka Committee, as the case may be, shall hold meetings of the respective bodies atleast once in a month and as frequently as the business may be.
In the absence of the Executive Chairman of the State Authority or of theChairman of the High Court Committee and the SubCommittees, the District Authorityor the Taluka Committee, as the case may be, one of the member nominated by all theother Members present at the meeting shall preside over the meeting of the respectivebodies.
14. Minute of the Meeting – The minutes of the proceedings of every meeting shallbe prepared by the Secretary.
Chapter VIII
15. Filing of application for Legal Services – A person seeking legal service fromthe igh Court Legal Services Committee or its SubCommittees. District Authority or theTaluka Committee, as the case may be, shall send an application containing brief facts ofthe case to it.
16. Scrutiny of Applications – The applications shall be scrutinized and disposed ofby the Secretary of the the High Court Committee or its SubCommittees or by theSecretary of District Authority or by the Chairman of the Taluka Committee, as the casemay be, giving such directions and legal services as are thought necessary :
Provided that all orders passed by the Secretary of the High Court Committee orits SubCommittees or the District authority rejecting legal services shall be passed afterobtaining order of the respective Chairman :
Provided further that all orders of the grant of legal services by the Secretary ofthe High Court Committee or its SubCommittees or the District Authority shall besubject to control and modifications by the Chairman of the respective bodies.
17. Duty of Legal Practitioners and Further Action after the decision of a case bythe Court. The legal practitioners condiucting a case on behalf of a person receivingthe legal services shall, as soon as the case is decided, apply for a copy of judgment anddecree if any and immediately on receipt of the copies shall submit them to the bodyappointing him, together with his detailed comments. The Taluka Committee, the DistrictAuthority or the High Court Committee or its SubCommittees as the case may be, shalltake steps to recover the expenses of the legal services rendered from out of the costs, ifany awarded by the Court to the person concerned and received by him, such bodies mayalso consider, wherever necessary, the feasibility of filing an appeal, revision or a writpetition if
(i) the case has been decided against the person; or(ii) the case is prima facie fit for taking such remedies; or(iii) the aided person has applied for legal services for taking recourse to such
remedies :
Provided that it will not be necessary to make a fresh enquiry as to eligibilityunder Sec. 12 (h) of the Act, wherever applicable, unless the Taluka Committee, theDistrict Authority or the High Court Committee or its SubCommittees, as the case maybe, is of the opinion that a changed of circumstances has taken place since the grant oflegal services.
CHAPTER V
PLEADINGS
Rules applicable to all pleadings
78. Rules as to pleadings are set out in Order VI. Attention is invited to rules 2, 6, 10,11, 12, 13 and 14A of Order VI. The Courts should take particular care to see that theyare strictly complied with. The provisions have been summarised as follows :
(1) The whole case must be stated in the pleadings. That is to say, all materialfacts must be stated. (Order VI, rule 2).
(2) No matter of law is to be stated.(3) Only material facts are to be stated. The evidence by which they are to be
proved is not to be stated. ( Order VI, rules 2, 10, 11, 12)(4) Immaterial and unnecessary facts are not to be stated.(5) The facts are to be stated concisely.(6) It is not necessary to allege the performance of any condition precedent ; an
averment of performance is now implied in every pleading. (Order VI, rule 6).(7) It is not necessary to set out the whole or any part of a document, unless the
precise words thereof are necessary. it is sufficient to state the effect of the document asbriefly as possible. (Order VI, rule 9).
(8) It is not necessary to allege a matter of fact which the law presumes, or as towhich the burden of proof lies on the other side. (Order VI, rule 13).
(9) Every pleading, when filed in the Court, shall be accompanied by a statementin the prescribed form, regarding the address of the party, which is to be called as"Registered address" of the party (please refer to Bombay amendment to Rule 5 of OrderVI of Code of Civil Procedure, 1908 under rule 122), (Rule 14A. Order VI).
(10) It is necessary that the plaint, written statement or pleading, as the case maybe should be signed and verified in suits by or against the Central Government, by thepersons who are acquainted with the facts of the case and appointed by the CentralGovernment as Officers specified in the Schedule (reproduced at the end of Chapter II)annexed to Government Notification No. SRO 351, dated the 25th January 1958, asamended upto 20th September 1969.
Amendments
79. (1) Through it is no part of the duty of the courts to make pleadings for theparties, they should bear in mind that the scheme of the Code is that the pleadings of theparties must contain full and accurate statements of the claims and assertions of eachparty. Therefore, where a Court, after perusing the pleadings, the statements of theparties or their lawyers, the documents, admissions as to facts and documents, answers tointerrogatories, and information obtained from examination of the parties under Order X,finds that the pleadings do not represent the real assertions and contentions of the parties,it should give an opportunity to the parties concerned to apply for amendment ofpleadings.
(2) All applications for amendments of pleadings under rule 17, order VI of theCode and Civil Procedure, 1908, shall be signed and verified, as required under rules 14and 15 of Order Vi of the Code of Civil Procedure, 1908.
(3) The law as to such amendments is contained in section 153 and Order VI,rules 16 and 17. Attention is specially drawn to the provision that " all such amendmentsshall be made as may be necessary of the purpose of determining the real questions incontroversy between the parties." It should be noted that under the provisions of OrderVI, rule 17 and 18, pleading should be altered or amended by the party or his lawyer.Any amendment made in a plaint, at any time after it is registered, should be signed orinitialled by the Judge.
(4) If a plaint is amended, a corresponding amendment should be made in theRegister of Suits and initialled by the responsible Officer of the Court.
80. Form No. 5 in Schedule I, Appendix B, may be used for giving notice to a personwhom it is proposed to add as a coplaintiff.
81. Attention of the Civil Judges is invited to rule 16 of Order VI of the Code of CivilProcedure, 1908, as amended by Act 104 of 1976, according to which the Courts areempowered to strike out or amend any matter in any pleading at any stage of theproceedings provided where such matter is found to be
(a) unnecessary, scandalous, frivolous or vexatious ; or(b) which may tend to prejudice, embarrass or delay the fair trial of the suit ; or(c) which is otherwise an abuse of the process of the Court.
CHAPTER VI
PRETRIAL STAGE
Matters preliminary to the settlement of issues
82. After the written statement is filed, the Court shall fix a date for (i) the receptionof documents other than those in the possession or power of parties and (ii) theapplications for interrogatories, discovery of documents and inspection thereof. Suchapplications and also applications for permission to produce documents should not beentertained thereafter unless good cause is shown to the satisfaction of the Court.
83. The examination of parties under Order X, rule 2, is intended to assist the Court insettling the issues and not for modifying the pleadings. The object of examination underthis rule is to clear up the points in dispute and ascertain fully and accurately the matterson which the parties are to go to trial. Thus, where the allegations of facts made in theplaint or in a written statement are not admitted or denied in the pleadings, eitherexpressly or by clear implication, the Judge should, at the first hearing, proceed toquestion the party or the lawyer and record categorically the admissions or denials ofthese allegations. In this connection, the Judge should bear in mind the provisions of rule3, subrule (2) of Order V which enables him to require the personal attendance of theplaintiff on the date on which the defendant is required to appear and of rule 4 of Order Xwhich enables him to require the attendance of parties at a later stage. Form No. 1 page94, Vol. II is the form of notice requiring personal attendance.
84. Other means by which the Court may ascertain what is necessary in order toframe issues are interrogatories and the discovery and inspection of documents (OrderXI), admissions (Order XII) and the production of documents (Order XIII).
The Judges and lawyers should make themselves thoroughly acquainted withthese provisions and endeavour to make use of them.
Attention is invited to the position of these Orders in the scheme of the Code.They proceed the Order relating to issues. This fact considered along with the provisionsof rule 20, Order XI, shows that according to the scheme of the Code, all matters must begot clarified before the issues are settled.
85. The Courts should see that discovery is given and admissions are made beforetrial. The law permits the administration of interrogatories by a party to his opponent toobtain admissions which will facilitate the proof of the case of the party who delivers theinterrogatories. A party may by notice in writing call upon the other party to admit,within 15 days from the date of service of the notice, for the purpose of the suit only, anydocument (Order XII, rule 2) and any specific facts mentioned in the notice (Order XII,rule 4). Order XII, rule 2, contains the salutary provision that, when a party has refusedor neglected to admit, the subsequent cost of proving the documents should be paid bythe party so neglecting or refusing, whatever the result of the suit may be, unless theCourt otherwise directs and that no costs of proving the documents should be allowedunless such notice is given, except where the omission to give the notice is in the opinionof the Court saving of expense.
Rule 3A of Order XII enables the Court even where no notice is given under rule2 of Order XII at any stage of the proceedings of its own motion to call upon any party toadmit any document, and record whether the party admits or refuses or neglects to admitsuch document.
According to the provision of rule 2A of Order XII, every such document, whicha party is called upon to admit, if not denied specifically, or by necessary implication orstated to be not admitted in the pleading of that party or in his reply to the notice to admitdocuments, shall be deemed to have been admitted except as against a person under adisability. In its discretion, the Court may, however, for reasons to be recorded, requireany document so admitted to be proved otherwise than by such admission.
In the heavier and more complicated cases, it will usually be advisable, after thedocuments have been lodged in Court, to allow at least one date (or more if necessary)before issues are framed for admissions, discovery, interrogatories and the like ; and tofix, if necessary, one or more dates, after the issues have been framed for the completionof this preliminary work.
86. Section 30 of the Code provides that a Court may of its own motion make ordersas to interrogatories, the admission of documents and facts and the discovery, inspectionand production of documents.
87. Appendix C to the Code (Schedule I) contains forms to be used for delivery ofinterrogatories, discovery and inspection of documents and the admission of facts and
documents. Form 1 of Appendix H may be used where issues are agreed on by theparties.
88. Under clause (c) of sections 30 of the Code, a Court may order any fact to beproved by affidavit. This is a power which may well be used to secure formal proof offacts. It is desirable to make full use of the provisions of Order XIX for the proof ofsimple or incontrovertible facts.
Whenever a fact is allowed to be proved by an affidavit, an order shouldinvariable be passed by the Court.
The Settlement of Issues
89. Issues should be framed by the Presiding Judge on the date fixed for the purpose.They indicate the points in controversy, on which the parties are to go to trial and givethem notice of the matters which they are required to establish by adducing evidence orotherwise. No trial is likely to be satisfactory unless the issues are complete and precise.It should be observed that a party has to produce evidence in support of the issues,which he is bound to prove (Order XVIII, rules 2 and 3) and that the Judgment of theCourt shall record its findings on the issues (Order XX, rules ). These provisions shouldmake it plain that an essential preliminary to a satisfactory trial is the settlement of fulland precise issues. A judicious use of the provisions of rule 1 of Order X and subrule(5) of rule 1 of Order XIV may be found of help for collecting material necessary forframing issues in seriously contested cases.
The duty of framing issues under the law must be performed by the Court and thepresiding Judge should not leave it to the parties or lawyers to frame the issue but shouldapply his own mind to the subject. There is, however, no reason why the Court shouldnot take suggestions from the parties as to the issues to be framed.
90. In framing issues, the Court should proceed as follows :
(a) Every material proposition of fact and every proposition of law, which isaffirmed by the one side and denied by the other, shall be made the subject of a separateissue.
(b) Every issue of fact shall be so framed as to indicate on whom the burden ofproof lies.
(c) Every issue of law shall be so framed as to indicate the precise question of lawto be decided.
Note . When the claim or any portion of it is alleged to be barred by any law, the issueshall also state the Act and section or rule or other provision under which it is so barred.
(d) When the question is whether a certain section of law applies, the issue shouldbe framed in the words of that section, e.g., if the question is whether a transfer, shouldbe set aside under section 54 of the Provincial Insolvency Act, the issue should not be " isthe transfer bogus and fradulent " ?
(e) Issues should be selfcontained. The framing of issues, such as " Is the saleliable to be set aside for the reasons stated by the defendant in his written statement,dated ......................................." should be avoided.
(f) Every issue should form a single question and, as far as possible, should notbe put in an alternative form.
(g) No proposition of fact which is not itself a material proposition, but isrelevant only as tending to prove a material proposition, shall be made the subject of anissue.
(h) No question regarding admissibility of evidence shall be made the subject ofan issue.
91. When the Court is of opinion that any of the issues of law raised by it such aslimitation and jurisdiction goes to the root of the case and is triable as a preliminaryissue, it shall proceed to try it as expeditiously as possible.
92. Rule 5, Order XIV provides that at any time before the passing of the decree, theCourt may amend the issues or frame additional issues on such terms as it may deem fit.All Such amendments, or additional issues as may be necessary for determining thematters in controversy shall be made or framed at any time before passing the decree.
CHAPTER VII
INCIDENTAL PROCEEDINGS
Applications
93. (a) It is for the Court to decide whether it will allow an oral application or insiston a written application. The general rule hereto followed is that applications materiallyaffecting the conduct of a suit or the legal position or rights of either party, should bereceived only in writing. In matters of mere routine or indulgence and matter whollywithin the discretion of the Judge, motions may be made orally.
(b) Along with every written application for an interlocutory order, the applicantshall file as many copes thereof as there are opponents. Similarly, along with the writtenstatement to the application, the opponent shall file a copy thereof for the use of theapplicant or applicants, as the case may be, and the opponent or the opponents or theopponents or the applicants, as the case may be, shall receive such copy or copies fromthe Court.
94. On every application, an order should be endorsed, showing how it was disposedof, e.g. an application for summonses to witnesses might be endorsed as follows :
' Application granted, summonses to be issued for next (enter date )' or 'Application rejected, because, etc. (enter reasons for rejection).'
Date (Signed)Judge .
95. An order regarding costs shall be made on every application.
Application to bring legal representative of a deceased defendant on record.
96. (1) Attention is invited to the provisions of Rules 4 of Order XXII and to theform of summons to be issued thereunder to a legal representative of the deceaseddefendant, viz. Form No. 6 of Appendix B in the First Schedule to the Code of CivilProcedure, 1908. It is to be noted that this summons is different in form from the
summonses to be issued to the defendant under Order V, Rules 1, 3 and 5 and OrderXXXVII, Rule 2, viz., Forms Nos. 1, 2, 3 and 4 of Appendix B in the First Schedule tothe Code. A summons in the Said Form No. 6 shall be served on every legalrepresentative added as a party in place of the deceased defendant.
(2) It shall be the responsibility of the plaintiff to bring on record the correct legalrepresentative of the deceased defendant within the prescribed period of limitation, in thecircumstances mentioned in subrule (1) of Rule 4 of Order XXII, by making anapplication upon affidavit proposing the name of the Legal Representative of thedeceased defendant to be brought on record.
(3) If the application is made within the prescribed period of limitation, the Courtshall order, without issuing previously any notice to the proposed Legal Representative,that the plaint be amended by adding the Legal Representative as a party to the suit inplace of the deceased defendant and that summons in No. 6 referred to above be issued tohim. It shall be open to the Legal Representative so added as a party to dispute hischaracter as a Legal Representative when he is served with a summons in Form No. 6referred to above, and the Court shall decide the dispute under rule 5 of Order XXII.
(4) If, however, the application is made after the prescribed period of limitationhas expired, notice shall be issued to the proposed Legal Representative before addinghim as a party, calling upon him to show cause why the delay should not be condonedand why he should not be brought on record as a Legal Representative of the deceaseddefendant and added as a party in place of the deceased defendant. if ultimately he isadded as a party to the suit, a summons in Form No. 6 referred to above shall,nevertheless, have to be served on him before proceeding with the suit.
Injunctions
97. Proper discretion should be exercised in issuing exparty injunctions under OrderXXXIX. Before granting such an injunction it is the duty of the presiding officer of theCourt to take every care to protect the interest of the absentee defendant and to ensure tohim the earliest opportunity of being heard. District judges when dealing with appeals orinspecting Courts should scrutinize the materials upon which ex party injunctions havebeen granted.
98. all appointments as receivers under the Code of Civil Procedure, whether in suitsor other proceedings, shall be made, as far as possible, from amongst responsible and
capable lawyers practising in the Court. A panel of such lawyers shall be prepared by thePresiding Officer of the Court. The list shall be revised every two years. Special careshall be taken to see that undue preference is not given to any particular lawyer and thatno Court Official is appointed as a receiver in such cases.
CHAPTER VIII
PROCESSES
Examination of witness about to leave jurisdiction
99. Attention of the Civil Courts is invited to rule 1 of Order XVI of the Code of CivilProcedure, according to which the parties to the proceedings shall present, in Court, anapplication alongwith a list of witnesses whom they proposeto call either to give evidencor to produce doucment and obtained summones to such persons for their attendance inCourt on or before such date as the Court may appoint, and not later than 15 days afterthe date on which the issues are settled.
100. Form No. 6 of Appendix H is a notice to be issued in case it is desired to examinewithout delay a witness who is about to leave the jurisdication of the Court. Applicationfor the examination of such a witness should be made promptly and treated as a urgentmatter.
Rules regarding payment of diet allowance to witness
101. (1) Rule 1 of Order XLVIII provides that processes shall be served at the expenseof the party on whose behalf they are issued unless the Court otherwise directs and thatthe Courtfees chargeable shall be paid within the time fixed by the Court. For the rulesas to process fees, see Chapter XXIV.
(2) For the purpose of payment of diet allowance, witnesses are divided into thefollowing classes :
Class I Professional men of high position Members of Parliament and ofthe State Legislatures, large land owners and owners of bigbusiness organisations and upper grade employees in businessorganisations; corporations and local bodies, and Class IGovernment officials who are required to attend the Court intheir private capacity.
Class II Members of local bodies, ordinary professional and businessmen ; land owners other than small farmers; junior employees inbusiness organisations, in Corporations and Local bodies incorresponding grades and Class II Government officials who arerequired to attend the Court in their private capacity.
Class III Artisans, clerks, small land owners, village officers and officersin lower grades of Corporations, local bodies and businessorganisations, and Class III Government officials who arerequired to attend the Court in their private capacity.
Class IV Labourers, petty shopkeepers, pedlars and persons other thanthose in the above classes and Class IV Government Servantswho are required to attend the Court in their private capacity.
(3) The diet money for the various classes should be as follows :
Rs.Class I 1000Class II 08.00Class III 06.00Class IV 05.00
(4) In special cases, and in particular where a person is being examined as expert,the Court may require such sums as appear reasonable to be paid to a witness. Thereasons for ordering payment of higher amounts should be recorded by the Court.
(5) Diet money shall be given not only for the period of actual attendance but alsofor any reasonable time spent in the journey to and from the Court, the ordinary mode ofconveyance available being taken into consideration. When the journey is made on foot,15 miles a day shall be reckoned as the days journey and subsistence allowance should bepaid accordingly.
(6) Travelling expenses will be granted according to the rates specified below inall cases in which the Court deems such expenses to be reasonable having due regard tothe distance to be travelled and the position and circumstances of the witness :
(i) When the journey is by road, the actual expenses incurred, provided the same be reasonable.
(ii) When the journey is wholly or partly by rail or steamer :(a) Witness of Class I First Class Railway fare ;(b) Witnesses of Classes II, Second Class Railway fare.
III and IV.
(7) Peculiar cases not provided for in the above rules are to be dealt withaccording to their own merits, and at the discretion of the Court from which subsistencemoney or the travelling allowance is demanded.
(8) Witnesses produced under warrants of arrest should receive subsistencemoney at the rate allowed to judgmentdebtors.
(9) When Government as a party to a case asks for a summons to one of itsservants for appearance in Court as a witness, it is not required to deposit in Courtanything on account of diet money and travelling allowance of the witness accompanyingthe summons.
Fees to Chartered Accountant
102. (1) The fee to be paid to a Chartered Accountant or his Qualified Assistant foreach day spent in attending a Court or in travelling for the purposes of attending a Courtas a witness, shall be as specified in column 2 or 3, as the case may be, of the Scheduleappended hereto, in accordance with his professional standing for the years as specifiedin column 1 thereof :
Schedule
Professional Standing
1
CharteredAccountants
2Rs.
QualifiedAssistants
3Rs.
Of five years or less 75 10
Of more than five years but not exceedingten years.
100 20
Of more than ten years but not exceedingfifteen years.
125 25
Of more than 15 years 150 30
Note . The expression " expert evidence " includes evidence which an accountant iscalled upon to give by virtue of his having conducted audits or investigation.
(2) Such chartered accountant or qualified assistant shall also be paid travellingand daily allowance at the following rates, that is to say.
(a) Travelling Allowance First Class Fare.(b) Daily Allowance Chartered Accountant, Rs. 5 per day.
Qualified Assistant, Rs. 3 per day.
Note . The daily allowance shall be payable for each day for which the fee under subrule (1) is paid.
(3) A chartered accountant and his qualified assistant should not ordinarily besummoned except when their evidence is absolutely necessary. Whenever they arerequired in Courts as witnesses, they should not, as far as possible, be asked to be presenton days on which their evidence is not likely to be recorded.
103. (1) Short title . These rules may be called the Payment of Expenses of ExpertWitnesses (attending Civil Courts) Rules, 1972.
(2) Definitions. In these rules, unless the context otherwise requires,(a) " expert witness " means a person who is required to attend a Civil Court for
giving evidence as an expert within the meaning of section 45 of the Indian EvidenceAct, 1872 (I of 1872) in any suit or other proceeding before such Court under the Code ;
(b) " the Code " means the Code of Civil Procedure, 1908 (V of 1908) ;
(3) Application of the Rules . Theses rules shall apply to all expert witnesses,other than the following :
(a) any Government servant ;(b) any chartered accountant or his qualified assistant.
(4) (1) Authority and conditions for payment of expenses of Expert Witnesses (a) Payment of the reasonable expenses of any expert witness to whom these
rules apply may be ordered (i) by the High Court or a Civil Court in any case which comes before such
Court;
(ii) by a Judge ;(b) In any case in which the witness is summoned by the Civil Court (2) The Court may refuse payment of such expenses (a) to any expert witness, whose evidence the Court does not consider to be
substantially true, or(b) to any expert witness, who, without sufficient cause, remains absent on any
day fixed for his evidence and whose presence is secured by the issue of any coerciveprocess.
(5) The scale of daily expenses to be paid to expert witness. The Court beforewhich an expert witness is required to give evidence shall, having regard to hisqualifications and professional standing or experience, determine to which of the threeclasses specified in the Table hereto appended he shold be deemed to belong, and granthim such expenses as it thinks fit, subject to the maximum and minimum rates prescribedfor such class in the said Table.
TABLE
Class of witness
Maximum rate of expenses Maximum rate of expenses
(Oral evidence) (Written opinionwhen requiredin addition tooral evidence)
(Oral evidence) (Written opinionwhen requiredin addition tooral evidence)
Rs. Rs. Rs. Rs.
Class I 75 per day 75 per day 150 per day 150 per opinion
Class II 50 per day 50 per day 100 per day 100 per opinion
Class III 30 per day 30 per day 75 per day 75 per opinion
Note . An expert witness who is paid expenses under this rule shall not be entitled to anydaily allowance, diet allowance or other incidental charges.
(6) Travelling expenses . (1) Travelling expenses to expert witnesses shall begranted according to the rates specified below in all cases in which the Court deems suchexpenses to be reasonable, having due regard to the distance to be travelled, namely .
(a) When the journey is by road The actual expenses incurred, provided the
same are reasonable.(b) When the journey is wholly or Partly by rail or steamer.
(i) If the witness belongs to First Class Fare Class I or Class II as specified in rule 5.(ii) If the witness belongs to Second Class fare. Class III as specified in
rule 5.(2) Travelling expenses may be paid to any expert witnesses in advance, before
he starts on his journey to the Court, if the Court considers that it is necessary so to do inhis case.
(7) Treatment of peculiar cases. Cases not covered by the provisions of rules 4,5 and 6 may be dealt with on their merits and at the discretion of the Court.
Expenses of Public Officer.
104. a public officer, whose salary does not exceed Rs. 35 per mensem, whether he isor is not entitled to travelling allowances under the Bombay Civil Services Rules or othercorresponding Rules, shall when summoned as a witness in his official capacity to giveevidence or to produce a document before a Court, be paid travelling expenses inaccordance with the scale prescribed by the rules in paragraph 101.
Any public officer whose salary exceeds Rs. 35 per mensem but who is disentitledto travelling allowances under the Bombay Civil Services Rules or other correspondingRules by reason of the fact that the Court before which he is summoned to give evidenceor to produce a document is situate not more than five miles from his headquarters shallbe paid the said travelling expenses.
Any sum payable to such officer on account of subsistence allowance shall becredited to Government.
According to the directions contained in the Government of India, Ministry ofFinance (Department of Expenditure) Memo No. 5 (59)EIV(B)/63, dated the 27thDecember 1963, the Central Government servant is precluded from receiving in cash theamount of travelling Allowance and other expenses from Court when such servant issummoned as a witness in his official capacity. The Court should, therefore, note that
they should not pay the amount in cash directly to the Government Servants of theCentral Government when they are called to give evidence in their official capacity, inthe Courts concerned, under the aforesaid orders, as they are expected to remit to theControlling Officers, the amount of their Travelling Allowance, in full, to the extentadmissible at the Court's rates, on the demand made by the Controlling Officers for thatpurpose.
105. The " expenses " to be deposited by a private party under rule 2 of Order XVI forsummoning as witness a public Officer in his official capacity means, where such officeris entitled to travelling allowances under the Maharashtra Civil Services Rules or othercorresponding Rules, the travelling and halting allowances admissible under theappropriate Rules but do not include subsistence allowance. The sum deposited by theparty shall be credited to Government.
106. A public officer who has not been paid travelling expenses under paragraphs 121or as provided in Rule 3A, Order XVI of Rules made under section 122 of CivilProcedure Code and who is entitled to receive travelling allowances under the BombayCivil Service Rules or other corresponding Rules, shall obtain from the Court aCertificate that he has attended in his official capacity for the purpose specified in theproviso to rule 3 of Order XVI of Rules made under section 122 of Civil Procedure Code,stating the date of his appearance, the period for which he has been detained, and that hehas received no payment from the Court.
107. The period within which expenses of witnesses are to be paid, is to be fixed by theCourt under rule 2 of Order XVI. Such period may be fixed by a general order but suchgeneral order may be varied by the Court in any particular case. The general ordershould be in writing and a copy should be affixed to the notice board of the Court or insome conspicuous place in the Court.
108. The expenses tendered beyond the time fixed for their deposit should not beaccepted unless the Judge, for good cause, condones the delay.
109. Subsistence money payable to witnesses under the provision of subrule (2) ofrule 4 of Order XVI should, as far as possible, be paid daily.
110. The Court will do well to encourage parties to procure the attendance of theirwitnesses without the issue of any process from the Court. The names and addresses ofsuch witnesses shall, however, be disclosed to all the parties before the witnesses are kept
present in Court for examination.
111. It is the duty of the parties to be reasonably diligent in obtaining the issue ofsummonses on or before such date as the Court may appoint, and not later than 15 daysafter the date on which the issue are settled, so as to give reasonable opportunity forservice in accordance with the normal routine of the Court.
Although under rules 1 and 9 of Order XVI, a party is entitled to obtainsummonses on or before such date as the Court may appoint, and not later than 15 daysafter the date on which the issues are settled, if he pays for them, and is also entitled toevery reasonable effort on the part of the Court to secure their service, he has right todisturb the proper and orderly routine of the Court's business. If in the course of suchroutine, no bailiff is likely to proceed to the neighbourhood of the place wheresummonses are to be served, the party may either pay for a special bailiff or take his turn.If he prefers the latter course and the summonses are not served in time, he will not beentitled as of right to an adjournment in order to have them served.
112. Without applying formally for issue of summons, as in paragraph 128 above, anyparty to the suit may show sufficient cause to the Court for omission to mention thenames of witnesses in the lists of witnesses filed earlier and after obtaining permission ofthe Court, in writing, bring such witnesses, not mentioned in the earlier lists, to giveevidence (or produce documents) before the Court.
113. No public officer, whose absence from duty may be deterimental to the publicservice, should ordinarily be summoned to give evidence, and, if summoned, he may onhis application or on that of either party, be examined immediately under rule 16 of OrderXVIII of the Code of Civil Procedure. Ordinarily, a commission should be issued for theexamination of such officer, as provided in rule 4 of Order XXVI. Where a summons innecessary, it should be sent through the Head of the Office to which the officer belongs.
114. (a) The Additional Commissioner of Railway Safety should not be summoned toappear in person, unless it is found that his oral testimony is absolutely necessary.
(b) The summons to the Additional Commissioner of Railway Safety shouldalways be sent for service through the Commissioner of Railway Safety, 707,Manoranjan Park, Civil Lines, Meerut City.
(c) Whenever the Additional Commissioner of Railway Safety is summoned to
appear in person, the date of his appearance should be so fixed as to leave one clearmonth's time between the date of despatch of the summons and the date on which hispresence is required in the Court.
(d) The Additional Commissioner of Railway Safety should not be summoned toproduce the draft or the preliminary report of the accident, unless it is found that theproduction of such draft or preliminary report is absolutely necessary.
(e) Whenever a summons is issued to the Additional Commissioner of RailwaySafety to produce any report (draft, preliminary or final) or any document, paper orarticle, the summons should specifically mention whether he should produce it personallyor may do so through any subordinate of his, and in all such cases the date for productionshould be so fixed as to leave one clear month's time between the date of the dispatch ofthe summons and the date on which the report, document, paper or article is required tobe produced in Court.
(f) No useful purpose is likely to be served by issuing a summons for theproduction of the final report of the Additional Commissioner of Railway Safety on theaccident, unless a period of four to five months had elapsed since the date of theoccurrence of the accident, as usually no final report becomes ready before that period.
115. Doctors who are summoned to give evidence in Courts as witnesses should not asfar as possible be made to wait. Their evidence should be recorded and they should berelieved as early as possible.
116. When the hearing of a case is adjourned to a future day, and a party requires thereattendance on that day of a witness present in Court, whether summoned or brought bya party to give evidence, such witness, before leaving the Court may, on the motion of theparty, be served with an order for reattendance in Form No.1, page 94, Vol. II, providedthat the party pays immediately his travelling and other expenses for reattendance.
117. A witness who has been summoned and who has been ordered to reattend may berequired to give security to attend, as provided in rule 16(2) of Order XVI.
118. The District Judges and Civil Judges are authorised to make the payment ofsubsistence money to witnesses from their own permanent advances. (Vide GovernmentResolution, Home Department, No. 797, dated the 22nd December 1922).
Government Expert Witness
119. The following extracts from revised rules framed by the Government of Indiaregulating the applications for and the payment of the services of the GovernmentExaminer of Questioned Documents are reproduced for convenience of reference :
(1) Application should be sent direct to Government Examiner of QuestionedDocuments, Intelligence Bureau, Ministry of Home Affairs, "Dormers ", Simla1.
(2) Acceptable applications fall into two classes :(A) Official applications from certain authorities, including applications from
High Court.(B) Other applications. These include cases from private parties in Civil Suits in
Indian Union Courts. These will be accepted only on the requisition from the Court inwhich the case is being heard. The party concerned must move the Court and it will restwith the Court to take the further steps necessary to obtain the services of theGovernment Examiner of Questioned Documents.
Explanation . Reference made by a Court suo motu in Civil cases in which theState is not a party will be deemed to be cases from private parties for the purpose ofthese rules.
(3) Applications falling under classes A and B will ordinarily be accepted butmay be refused at the discretion of the Government Examiner of Questioned Documentsif they cannot be undertaken without detriment to his other work.
(4) An inclusive fee will be charged in each case in which an opinion is given andwill normally cover the opinion, the cost of photographs and the giving of evidence,limited in class B cases to one day. The inclusive fee for class A cases will be Rs. 220and for class B cases Rs.250 (This fee, however, does not cover travelling allowancewhich is governed by rule 13 below).
(5) Where one class A case is split up in Court into several cases, a fee of Rs.150(one hundred and fifty) will be charged for each split up case. Similarly, where on classB case is split up on Court into several cases, the fee will be Rs.200 (two hundred ) foreach split up cases.
(6) Subject to the exception stated at the end of this rule, the fee is payable in
advance in all cases and each application should be accompanied by a certificate in thefollowing form :
two hundred and twenty (Rs.220)' Certified that sum of rupees has been
two hundred and fifty (Rs. 250)
deposited in the ....................................... Treasury on ......................................... onaccount of the Government Examiner of Questioned Document fee in Case/SuitNo. .......................... and that this amount has been shown under head XXIII PoliceCentralFees, Fines and Forfeitures, in the Cash Account of Central Subjects for themonth of .............................. and appears at item No. ...................... in the relevantReceipt Schedule.
Signature of the Treasury Officer.
Countersigned. Signature of Officer submitting the case.'
In special circumstances, which should be stated in application, class A cases willbe accepted without this certificate, but the certificate should be forwarded as soon aspossible.
(7) In cases where the costs of photographs is exceptionally heavy, the fee will beRs. 180 plus actual costs of photographs in class A cases and in class B cases Rs. 200plus the actual cost of the photographs.
In class B cases, the authority submitting the cases will be informed of the extracost involved before it is incurred and will be required to certify that it has beendeposited before the Government Examiner of Questioned Documents proceeds with thecase.
(8) (i) In cases in which no opinion is given but photographs are taken, only theactual cost of the photographs will be charged, subject to a minimum of Rs. 35.
(ii) In cases in which the examination has been completed but no opinion couldbe expressed, a consolidated fee of Rs. 100 will be charged.
(9) No reduction in the fee will be allowed if evidence is not required or is taken
on commission.
(10) (i) In case B cases an additional fee of Rs. 200 will be charged for each dayafter the first day on which evidence is given, whether in Court or on commission, or onwhich the officer is detained. The Presiding Officer or the Commissioner will berequested to certify before the second and each subsequent day's work is begun, that thefee for that day and also for any intervening day or days of detention has been deposited,and subsequently to furnish a certificate in rule 6 above.
(ii) A fee of Rs. 250 will be charged in class B cases even for the first daysevidence is taken upon an opinion expressed on the same documents when they formedpart of a criminal case.
(11) In cases falling under class B, the Government Examiner or his assistant willbe prepared to attend courts provided that he can do so without detriment to his otherwork. When evidence is taken on commission, the commission should be issued to theSenior SubJudge, Simla, and normally should be so worded that either the GovernmentExaminer or his Assistant can give evidence.
(12) Presiding Officers of Courts are requested to detain the GovernmentExaminer of Questioned Documents or his Assistant for the least possible timecompatible with the requirements of the case. They are also requested to accept, so far aspossible, the time and dates for attendance offered by these officers, because the latterfrequently have to attend several courts in the course of one tour.
(13) The Government of India in the Ministry of Home Affairs reserve the rightto impose an extra charge in any case in which they consider that the usual fee is incommensurate with the time and labour spent on the case.
(14) When the Government Examiner of Questioned Documents or his Assistantis required to travel in order to give evidence or for any other purpose, the authority orparty employing his services will be required to pay travelling allowance at the rates laiddown in the Supplementary Rules of the Government of India for journeys on tour.Travelling allowance will also be payable for the class IV servant accompanying theofficer at the rates fixed for Government of India class IV servants.
In class B cases, the Presiding Officer of the Court concerned will be required tocertify that the cost of travelling allowance has been deposited before the Government
Examiner of Questioned Documents or his Assistant undertakes the journey.
120. The following extracts from the Government of Maharashtra, Home DepartmentResolutions No. MOB1075/16820VIIP, dated the 10th January 1976 and 7th June 1976relating to the revised fees or charges leviable, for services rendered by the Handwritingand Photographic Bureau are reproduced for information and guidance of the Court :
Fees or charges for services rendered by the Handwriting and Photographic Bureau
Nature of work revised rates
1. Expert opinion of questionedDocuments.
Rs. 250 upto 5 questioned documents and Rs.20 for every additional questioned document.
2. Attendance fee for travelling perday to and from the Court andback to the Head Quarter.
Rs. 200 per day.
3. Expert opinion fee Rs. 75 per disputed finger print.
4. Attendance fee Rs. 150 per day.
5. Travelling fee (1) Rs. 150 per day to be charged fortravelling exceeding 4 hours.
(2) Rs. 75 to be charged for travelling lessthan 4 hours and exceeding 2 hours.
Statement of Photographic Charges
Revised charges levied for the supply of photographs of documents etc., by theHandwriting and Photographic Bureau of the State CID :
Size Rates
I Copy II Copy
1. 8 x 13 cms. or 16 x 6.5 cm. 2.30 1.50
2. 9 x 24 cms. or 18 x 12 cms. 3.45 2.20
3. 12 x 30 cms. or 24 x 15 cms. 4.60 3.00
Size Rates
I Copy II Copy
4. 15 x 40 cms. or 30 x 20 cms. 6.35 4.00
5. 13 x 16 cms. 4.60 3.00
6. 18 x 24 cms. 7.00 3.35
7. 24 x 30 cms. 9.20 6.00
8. 30 x 40 cms. 11.50 6.70
Special photographs (viz. Photographs prepared
through specialised techniques).
18 x 24 cms. 20.00 5.00
24 x 30 cms. 30.00 7.00
Positive and Transparencies
Same size 4.50 .....
Enlargements 5.00 .....
Plus charges for the corresponding size or original print.
121. The following are the terms on which the services of the officers of the PublicHealth Department in the State of Maharashtra will be made available for giving evidenceas experts in Courts of Law on behalf of private firms and individuals :
(i) A fee of Rs. 110 only per day should be charged in the case of the Director ofPublic Health, and Rs. 50 only per day in the case of other officers, the days chargeablebeing from the day the officer starts on his journey up to the day of his return. TheTravelling and halting allowances admissible to the officers should be recovered inaddition to the fees prescribed.
(ii) These officers should be allowed 1/6th of the total amount of fees recovered,and this remuneration should be classified as honorarium ( Vide, Fundamental Rule 9(9)).
(iii) The amounts deposited by the parties should be credited in the first instanceto " Civil Courts Deposits ". The Presiding Judge shall pay the witnesses by drawing arefund bill against such deposit for the amount payable as travelling allowance andhonorarium to the witnesses. At the same time, the Presiding Judge shall draw another
refund bill for crediting the rest of the deposit of Government under "XVIIAdministration of Justice Miscellaneous fees and fines, fees or expenses in Civil andCriminal Courts for travelling and subsistence allowance, etc."
122. In cases of doubt in which the opinion of an expert may be required on thequestion whether any stamps are genuine or forged, a reference can be made to theMaster, Security Printing, India, Nashik Road, for his or his nominee's report.
The scale of charges to be made by the Master, Security Printing, India, NashikRoad, for the examination of Stamps and for giving evidence on commission shall be asfollows :
(1) For each stamps examined Rs. 20, but where the stamps to be examinedconsist of a block or blocks from the same sheet, this fee will be charged for theexamination of each block ; as any one of the stamps is representative of the whole block.
(2) For stamps examined on commission, Rs. 40 per document, irrespective ofthe number of stamps requiring examination of each document ; provided that wheremore than one document relating to the same case is to be examined on the same day, thecharge will be Rs. 40 for the first and Rs. 20 for each subsequent document.
These fees will be credited to " IXStampsCentralIndia Security Press "
123. The Scale of charges to be made by the Master, security Printing, India, NashikRoad, for the examination of currency and bank notes and for giving evidence oncommission, is as follows :
(1) For each note examination Rs. 10 per note.(2) For notes examined on commission in connection Rs. 20 per case. with forgery cases.
These fees will be credited to " XXVIICurrencyMiscellaneous."
124. When the valuation of a private building is required to be carried out at theinstance of a Civil court, the service of the Public Works Departmentwill be available onthe following terms, provided that such work can be undertaken without detriment to theofficers' legitimate duties :
(i) The following scale of fees will be charged which will be based on thevaluation arrived at by the officer concerned :
(a) In cases where the valuation of a private building is required on the basis of adetailed survey of the buildings :
Up to the first Rs. 5,000 4 per cent.From Rs. 5,000 to Rs. 20,000 3 per cent.From Rs. 20,000 to Rs. 1,00,000 2 per cent.From one lakh of rupees 1 1/2 per cent.
The manner in which the above rates should be calculated is explained below :
If the building is valued at Rs. 30,000, the amount of fee will be Rs. 850 as shownbelow :
Rs.For the first Rs. 5,000 at 4 per cent 200For the next Rs. 15,000 at 3 per cent 450For the remaining Rs. 10,000 at 2 per cent 200
850
(b) In cases where a valuation based on the net annual value is sufficient and alsoin cases where the valuation is based on a rate per cubic foot of the contents of thebuilding or on a plinth area rate basis :
1 per cent on first next Rs. 15,000 of the valuation.1/2 per cent on the next Rs. 1,35,000 of the valuation.1/4 per cent on the residue of the valuation.
(ii) The travelling and halting allowances admissible to the officer concernedunder the rules in force will have to be paid.
(iii) Government will not in any way be responsible for or bound by the valuationarrived at or the opinion expressed by the officer permitted to carry out the valuation.
125. The Finger Print Bureau will not supply written reports on impressions submitted
to it except at the request of a Civil or Criminal Court. Such reports will be supplied toCriminal Courts free. Civil Courts in forwarding requests for such opinion should statewhether the report is required solely for the information of the Court and in the interest ofjustice or for the use of the party to suit or any proceeding.
The following extract from the Government of Maharashtra, Home Department,Resolution No. MOB1075/16820VIIP, dated the 10th January 1976 and 7th June 1976relating to the revised fees or charges leviable for services rendered by the Finger PrintBureau is reproduced for information and guidance of the Courts :
Fees or charges for services rendered by the Finger Print Bureau
Nature of work Revised Rates
1. Expert opinion of questioneddocuments.
Rs. 250 upto 5 questioned documents andRs. 20 for every additional questioneddocument.
2. Attendance fee for travelling perday to and from the Court and backto the Head Quarter.
Rs. 200 per day.
3. Expert opinion fee Rs. 75 per disputed finger print.
4. Attendance fee Rs. 150 per day.
5. Travelling fee (1) Rs. 150 per day to be charged fortravelling exceeding 4 hours.
(2) Rs. 75 to be charged for travelling lessthan 4 hours and exceeding 2 hours.
Statement of Photographic Charges
Revised charges levied for the supply of Photographs of documents etc. by thehandwriting and photographic Bureau of the State C.I.D. :
Size Rates
I Copy II Copy
1. 8 x 13 cms. or 16 x 6.5 cms. 2.30 1.50
Size Rates
I Copy II Copy
2. 9 x 24 cms. or 18 x 12 cms. 3.45 2.20
3. 12 x 30 cms. or 24 x 15 cms. 4.60 3.00
4. 15 x 40 or 30.20 cms. 6.35 4.00
5. 13 x 16 cms. 4.60 3.00
6. 18 x 24 cms. 7.00 3.35
7. 24 x 30 cms. 9.20 6.00
8. 30 x 40 cms. 11.50 6.70
Special Photographs (viz. Photographs prepared through specialised techniques).
18 x 24 cms. 20.00 5.00
24 x 30 cms. 30.00 7.00
Positive and Transparencies
Same size Rs.4.50
Enlargements Rs.5.00
Plus charges for the corresponding
size of original print.
Production of official documents
126. A summons from a Court of civil or criminal jurisdiction to produce any of therecords of a Post Office, or a certified extract from, or copy of, any of such records, mustbe complied with. The receipt of such a summons, and such particulars as are known tothe Post Master regarding the case, should be at once reported to the Post Master Generalin case he should see fit to raise any objection in Court under section 123 or section 124of the Indian Evidence Act, 1872 (I of 1872), to the production of any of the records,When any journal or other records of the Post Office is produced in Court and admittedin evidence, the officer producing it should ask the Court to direct that only such portionsof the record as may be required by the Court shall be disclosed.
127. Under Government Resolution, Home Department, No. 8996/6, date the 28thApril 1954, certain instructions have been issued for the guidance of Governmentservants when they are summoned by a Court to produce official documents. The
following relevant instructions are reproduced for the guidance of Court.
(1) The law relating to the production of unpublished official records as evidencein Courts in contained in sections 123, 124 and 162 of the Indian Evidence Act, 1872(Act I of 1872).
(1A) A Government servant other than the Head of a Department who issummoned to produce an official document should first determine whether the documentis in his custody and he is in a position to produce it. In this connection, it may be statedthat all official records are normally in the custody of the Head of the Department and itis only under special circumstances that an official document can be said to be in thecustody of an individual Government servant. If the document is not in the custody ofthe Government servant summoned, he should inform the Court accordingly. If, underany special circumstances, the document is in the custody of the Government suervantsummoned, he should next determine whether the document is an unpublished officialrecord relating to affairs of State and privilege under section 123 should be claimed inrespect of it. If he is of the view that such privilege should be claimed or if he is doubtfulof the position, he should refer the matter to the Head of the Department, who will issuenecessary instructions and will also furnish the affidavit in Form No. I in suitable cases.If the document is such that privilege under section 123 could not be claimed but if theGovernment servant considers that the document is a communication made to him inofficial confidence and that the public interest would suffer by its disclosure, he shouldclaim privilege under section 124 in Form No. II. In case of doubt, he should seek theadvice of the Head of the Department.
(2) The Government servant who is to attend a Court as a witness with officialdocument should, where permission under section 123 has been withheld, be given anaffidavit in Form No. I duly signed by the head of the Department in the accompanyingform. He should produce it when he is called upon to give his evidence, and shouldexplain that he is not at liberty to produce the documents before the Court, or to give anyevidence derived from them. He should, however, take with him the papers which he hasbeen summoned to produce.
(3) The Government servant who is summoned to produce official documents inrespect of which privilege under section 124 has to be claimed, will make an affidavit inthe accompanying form No. II. When he is not attending the Court himself to giveevidence, he shall have it sent to the Court alongwith the documents. The person throughwhom the documents are sent to Court should submit the affidavit to the Court when
called upon to produce the documents. He should take with him the documents which hehas been called upon to produce but should not hand them over to the Court unless theCourt directs him to do so. They should not be shown to the opposite party.
(4) The head of the department should abstain from entering into correspondencewith the presiding officer of the Court concerned in regard to the grounds on which thedocuments have been called for. He should obey the Court's orders and should appearpersonally, or arrange for the appearance of another officer in the Court concerned withthe documents and act as indicated in paragraph 2 above, and produce the necessaryaffidavit if he claims privilege.
FORM OF AFFIDAVIT NO. I
IN THE COURT OF
Suit No. ................................... of 19
I, * .................................................... do hereby solemnly affirm and state asfollows :
A summons bearing No. ............................. dated ........................ issued by theCourt of ............................ in Suit No. ........................... of 19 , (.......................V/s ....................... ) has been received on ..................... 19 , requiring production in thesaid Court on ........................, 19 , of documents stated below. I, as the head of thedepartment, am in control of, and in charge of, its records. I have carefully consideredthe relevant documents and have come to the conclusion that they are unpublished officalrecords relating to affairs of State and their disclosure will be prejudicial to publicinterest for the following reasons :
List of Documents Summoned
I do not, therefore, give permission to any one under section 123 of the IndianEvidence Act, 1872, to produce the said documents or to give any evidence derivedtherefrom. solemnly affirmed at etc. This day of 19 .
Name and designation of person making affidavit.
FORM OF AFFIDAVIT NO. II
IN THE COURT OF
Suit No. .......................... of 19 .
I, .............................. do hereby solemnly affirm and state as follows :
A summons bearing No. ............................ dated ......................... issued by theCourt of ........................... in Suit No. ................................. of 19 . ( ......................... V/s............................ ), has been served on me on .......................... 19 , requiring productionin the said Court on ......................... 19 , of the documents stated below. I havecarefully considered them and have come to the conclusion that they containcommunications made in Official confidence and I consider that the public interest wouldsuffer by their disclosure for the following reasons :
List of Documents Summoned
I, therefore, claim privilege under section 124 of the Indian Evidence Act, 1872.Solemnly affirmed at bombay etc. this ........................... 19 .
Signature and designation of the person making the affidavit.
Sworn before meSolemnly affirmed
128. Summons for the production of documents in the custody of the House ofParliament or of the House of State Legislatures should not be issued in the ordinaryform. A letter requesting the production of the same should be substituted therefore inthe following Form, addressed to the Speaker of the Loka Sabha or the LegislativeAssembly of the State, or the Chairman of the Rajya Sabha or the Legislative Council ofthe State, as the case may be.
FORM
To,
The Speaker of the Loka Sabha/ Legislative Assembly.The Chairman of the Rajya Sabha/ Legislative Council.
Parliament House, New Delhi,Council Hall, Bombay.Dated, the 19 .
Subject : (Description of the Case)
Sir,
In the above proceeding, the plaintiff/defendant/complaint/accused proposes torely upon the documents, specified in the Annexure, which are in the custody of theLok Sabha/Rajya Sabha. I have to request you to move the House to grantLegislative Assembly/ Legislative Council.leave for the production of documents in my Court and, if such leave is granted, toarrange to send the documents /certified copies of the documents so as to reach me on orbefore ..................................... by registered post (A.D.) or through an officer in theSecretariat of the House.
In the above proceeding, the plaintiff / defendant / complainant / accused proposesto examine ........................... an officer in the Secretariat of the Lok Sabha /Rajya Sabha
Legislative Assembly / Legislative Council(or any duly informed officer in the Secretariat of the House) as a witness in regard tomatters specified in the Annexure. I have to request officer in the Secretariat of you tomove the house to grant leave for the house is required examination of the said officerin my Court, and, if such leave is granted, to direct the officer to appear in my Court at 11a.m. on ...........................Where oral evidence of an officer in the Secretariat of the House is required.
Yours faithfully,
Production of Court records
129. Rule 10 of Order XIII states the law as to the production of court records. ThePrinciple of subrule (2) of that rule may well be applied to other public records.
130. Subject to any provision of the law to the contrary, the originals of records shouldnot be called for by Courts when certified copies of them can legally be put in at thehearing of cases and will serve the purpose for which the records are required. In cases inwhich the Courts consider that the production of the original records is desirable, theyshould record briefly their reasons for directing their production.
131. Requisitions made under the provisions of Order XIII, rule 10, by subordinateCourts for the production of records of cases pertaining to, and in the custody of HighCourts other than High Courts at Bombay or Courts subordinate to such other High Courtshould be transmitted though the High Court at Bombay, and should be accompanied bya copy of the affidavit referred to in the rule above quoted together with a duly certifiedtranslation into English if such affidavit be in the regional language. Requisitionsreceived through this High Court from Courts outside the State should be complied with.
Production of document in Custody of Legislatures
132. Original documents in the custody of the Houses of Parliament or of the StateLegislatures should not be called for if certified copies thereof would serve the purpose.It is only in cases where parties insist upon strict proof that the Courts should call for theoriginals. In this connection, attention of the Judges and Magistrates is also called tosection 78(2) of the Indian Evidence Act, 1872, which specifies the way in which theproceedings of the Legislature can be proved.
133. In order to guard against the loss of original documents in the post all applicationsunder rule 10 of Order XIII of Civil Procedure Code, for such documents filed orrecorded in any suit before the High Court should state specially whether the originals arenecessary, and why certified copies obtained in the usual manner by parties will not servethe purpose.
Processes
134. A process issued by any Court in the Territory of India should be served free ofcharge by any Court (including the Court of Small Causes at Bombay) in the State ofMaharashtra, if it be certified in the process that the proper fee, has been levied under therules in force in the territory in which the Court issuing the process is situated.
135. Every process or order issued by a judicial officer should show (a) the name anddescription of the officer, (b) the place and district of issue, (c) the hour at whichattendance is required, (d) the name, father's name, age, castes (only when necessary foridentification), occupation and place of residence of the person on whom the summons isto be served. When the person lives in a village, the name of the taluka and district inwhich it is situate shall also be mentioned. When the person resides in a large village ormunicipal town, the name of the locality, municipal ward, street, lane and the number ofthe house in which he resides, shall also be mentioned.
136. (i) Processfee must be paid in Courtfee stamps and not in cash. The stampsshall be affixed to the application and, where there is no application, to a memorandum tobe written on a sheet of paper and filed in Court. The memorandum should state thename of the Court, the number and the description of the suit, appeal or proceeding, thevalue of the claim, the value of the Courtfee stamps affixed and details of the processesto be issued. If the memorandum be an application for the issue of a process, it must, inaddition to the requisite stamps for the processfee, bear such stamps as are necessary forits own validity.
(ii) If a party presents in duplicate a memorandum for the issue of a process anddesires that the processwriter should acknowledge it, the latter shall sing and date theduplicate copy by way of acknowledge of the original and return it to the applicant.
137. All copies of plaints and other documents which are to be served with processesshall be written or typed legible on durable paper of foolscap size. If carbon copies arefiled, they must be distinct and legible.
138. A party who desires the attendance of any witnesses before the Court, or before aCommissioner appointed to take evidence, shall file a list of such witnesses stating thefull name, residence and occupation or description of each person and whether he isrequired to give evidence as an expert or otherwise to produce any document, and in thelatter case, specifying the date and description of the document so as to identify it. Theparty shall, along with the requisite processfee pay into Court the prescribed dietmoney,
travelling allowance and other expenses.
139. (i) Process sent for service at any place where the language is different from thatof the Court issuing them, should be accompanied by translations in the language of suchplace or should be in English.
(ii) The language of the Small Cause Court, Bombay, is English.(iii) The return of service of processes from Court subordinate to other High
Courts shall be accompanied by an English translation.
140. Where the English version of a notice, summons or any other form used in civilproceedings in the District or Subordinate Courts has been abolished and the notice, etc.,is to be addressed to a person unable to read the language, the appropriate form should betranslated into English.
141. If a process is sent for service to the Small Causes Court, Bombay, or to anotherDistrict or place in which the language of the Court is different :
(1) no translation fee should be levied for an English translation of the processwhere a form of process in English is available or can be copied either from the Code ofCivil Procedure or from the Civil Manual ;
(2) a charge may be made for a translation into a language which is neitherEnglish nor the language of the District if such a translation is required and furnished bythe office.
142. Notices of suits against the Central Government involving claims against theIndian Government Railway Administration and summonses of the Court to be served onthe Central Government representing the Indian Government Railway Administrationshould in future be addressed to the General Manager, the Deputy General Manager orthe Chief Administrative Officer of the Railway concerned.
143. No summons or other process issued against a Member of the Parliament or of aState Legislature shall be sent for service to the Presiding Officer or the Secretariat of theParliament or State Legislature. No such summons or other process shall be served onany Member within the precincts of the House of which he is a Member withoutobtaining the permission of the Speaker or the Chairman.
144. The provisions of Order V, rule 30 of the Civil Procedure code allowing thesubstitution of a letter for a summons, are to be applied in the case of all JudicialOfficers. Justices of the Peace, Covenanted and Commissioned Officers, Officers of a
rank not below that of a Deputy Collector, and other gentlemen of equal or superior rank.
145. When a village officer is summoned to give evidence, the summons should beserved through the Mamlatdar under whom he may be serving, time being allowed ifpossible, for making official arrangements for performing the duties at the village of theofficer summoned.
145. A Civil Court to which a summons or other process has been sent for serviceshould make a return within the time fixed for the hearing of the cause, stating whetherservice has been effected or not, and, if not, the reason for the nonservice.
147. If a court to which summons has been sent for service be satisfied that thedefendant is intentionally avoiding service, such court should itself direct substitutedservice to be effected in such manner as it thinks fit under the provision of the Code ofCivil Procedure without further reference to the Court issuing the summons.
148. The officer who serves a summons or notice on a defendant or respondent should,immediately on his return, make before the proper officer an affidavit as to the service ofthe summons or notice.
149. A bailiff should use his best efforts to effect the service of a process without thehelp of a person to point out the party or witness to be served. (See also paragraph 618 ofChapter XXXI on this point).
150. Forms for use in connection with the issue and service of summons and in dealingwith witnesses who refuse to appear in answer to summonses, are given as Nos. 7 to 19in Appendix B of Schedule I of the Code.
Commissions
151. The general law as to commissions is contained in sections 75 to 78 and OrderXXVI of the Code.
152. In every case the Judge shall record his reasons for issuing or refusing to issue acommission. When a commission is ordered to issue, the reasons for doing so shall alsobe briefly stated in the Register of Commissions.
153. The Court may issue commissions of its own motion, or on the application of any
party to the suit or the witness to be examined in the suit.
Applications for the issue of commissions should be made as early as possibleand ordinarily before the setting date. Notice of any such application should be given tothe other side. In every case, the Judge shall record the reasons for issuing thecommission which should be stated in brief in the appropriate register prescribed in thatbehalf.
154. The selection of Commissioners should be made by the Judge himself who shouldmake the order of appointment himself. Commissions which can be suitably allotted tojunior lawyers should be so allotted. For this purpose, a panel may be formed, and faitand equitable distribution should be made. The district Judges, during their inspection,should examine how the distribution has been made.
155. Court officials should not be appointed as Commissioner unless in any particularcase the Judge thinks that the commission will be more efficiently or economicallyperformed by a member of the staff than by a lawyer or private person. If it is foundconvenient and expeditious, a Court official who possesses the necessary qualificationmay be appointed as Commissioner for the purpose of local investigation and preparationof maps and plans.
156. (i) When the application is granted, the Court should after consulting the partiesor their lawyers and after taking into account the probable length of time the execution ofthe commission is likely to take, fix the amount of the Commissioner's fee, travellingexpenses etc. and direct the payment of the same into Court within a specified time. Thecommission shall not issue unless the sum so fixed is paid in full.
(ii) If found necessary, the Court may, from time to time, direct that any furthersum be paid into Court by the party concerned.
(iii) When the commission is executed to the satisfaction of the Court, the fullsum mentioned should be paid to the Commissioner but where the commission is notexecuted at all or not fully or satisfactorily executed, or the work done turns out to be lessthan was expected, it will be in the discretion of the Court to direct a smaller amount tobe paid, or to make any other order in the matter which it thinks just and proper in thecircumstances. It will also be in the direction of the Court to direct payment of reducedremuneration, when in its opinion there has been unreasonable delay on the party of theCommissioner in the execution and return of the commission.
(iv) Such fees, when the Commissioner is a servant of Government in the JudicialDepartment, and the work of executing the commission is not done entirely out of officehours, are to be credited to Government.
(v) The Judge of each district should in his direction from time to time call forreturns of fees so credited to Government on account of the execution by his subordinatesof commissions issued under Order XXVI of the Code of Civil Procedure, and makeannual reports to the High court consolidating the information for the whole District.
(vi) Strict compliance with the orders regarding the deposit of commissioner's feeand other expenses should be insisted on and the time once fixed for the purpose shouldnot be extended except on very good grounds.
(vii) The Commissioners are not permitted to accept any payment directly fromthe party. The fees, travelling allowance, etc., shall be drawn by them from the Court.
157. Commissions sent for execution at any place where the language is different fromthat of the Court issuing them should be accompanied by translations in the language ofsuch place, or in English.
The fee for making such translations should be paid by the party applying for thecommission, and should be made recoverable as costs.
158. Before issuing the commission, the Court should call on the party at whoseinstance the commission is granted to supply such copies of pleadings or abstracts thereof(if by reason of the length of the pleadings the Court permits the filing of abstracts) andissues for the use of the Commissioner as it considers necessary and should satisfy itselfthat all interrogatories, crossinterrogatories, maps, documents, etc., necessary for theexecution of the commission have been filed.
159. Every order for the issue of a commission shall fix a date allowing sufficient timefor its execution and return. If for any reason the Commissioner finds that the time sofixed is likely to be exceeded, he should apply for its extension setting forth the groundsthereof and should intimate to the Court the date by which the commission is like to beexecuted and returned.
160. Commission should not be executed piecemeal or at intervals. When the work of
a commission has once begun, it should be continued from day to day until it iscompleted, unless in exceptional circumstances an adjournment is necessary, in whichcase the commissioner should at once inform the Court and seek its directions.
161. Commissions issued by Mofussil Courts to the Court of Small Causes at Bombayfor the examination of witnesses resident in Bombay, should be sent direct to that Courtby post. In all cases, sufficient time should be allowed for their execution and return. Onreceipt of such a commission, the Court of small Causes should write to the Court issuingit, acknowledging its receipt and stating the date fixed by it for taking the evidence. Thisdate should be communicated to the parties concerned, for enabling them to makearrangements to be present in Bombay a few days before that date in order to enable theJudge to cause the necessary service of subpoenas to the witnesses to be examined oncommission. This provision also applied mutatis mutandis to all the Courts to whichcommissions are issued.
162. As a rule, commissions should be issued as required by sections 75 and 76 of theCode and in form No. 7 or 8 Appendix H of Schedule I, through in special casescommission for the examination of witnesses not named, and whose names cannot beascertained by the parties applying for such commissions, may be allowed.
163. Where the Commissioner disallows any question put to a witness, he shall recordsuch questions and answer thereto, but the same shall not be admitted as evidence exceptwhen the Judge before whom the deposition is put in evidence, so directs.
164. The following instructions are mainly intended for regulating the issue ofcommissions for taking accounts, but they should be followed even as regards the issuingof other commissions with adaptations, that may be deemed necessary. The instructionsare as follows :
(i) The Court may adjourn the case to a fixed day pending the report of theCommissioner, acting under Order XXVI, rule 11.
(ii) The Court shall furnish the Commissioner with instructions on the followingpoints as required by Order XXVI, rule 12(1) :
(a) The nature of the accounts to be taken.(b) The date from which and the date to which the account is to be taken.(c) The name of the party by whom a statement of accounts is to be filed before
him.(d) The name of the party by whom a statement of objection and surcharge is to
be filed.
(e) The periods within which the statements of accounts objection and surchargeare to be filed.
(f) The date on which the Commissioner is to submit his report.(g) Any other matter on which the Court may think it necessary to give, or the
Commissioner may desire to obtain, its instructions.(iii) The statement of accounts shall be in the form of a debtor and creditor
account and shall be verified by the accounting party or his agent. The items on each sideof the account shall be numbered consecutively and a balance shall be shown.
(iv) The statement of objection shall specify the items to which objection is takenby reference to their numbers in the statement of accounts.
(v) The statement of surcharge shall specify the amount with the receipt of whichit is sought to charge the accounting party, the date when, the person from whom, and theparticular account on which, the same was received by him. The items of surcharge shallbe numbered consecutively.
(vi) The statement of objection and surcharge shall also state (a) the grounds ofeach objection and surcharge and (b) the balance, if any, admitted or claimed to be due ;and it shall be verified by the affidavit of the party concerned or his agent.
(vii) If any party fails to file his statement of accounts or objection or surchargewithin the period allowed, the Commissioner shall report the fact to the Court, and on theapplication of the defaulting party, the Court may extend the period or direct theCommissioner to proceed exparty as regards such party or charge the parties required tofile the statements of account, objection and surcharge.
(viii) After the preliminary decree is passed in suits for partition, the proceedingsfor taking accounts linger on for a long time and thereby delay the drawing up of finaldecree. In order to avoid such delay, the Courts should ask for some kind of progressreport whenever a request is made by the Commissioner for extension of time forcompletion of proceedings.
(ix) If the Commissioner is unable to submit his report within the time fixed bythe Court, he shall apply to the Court for an extension of the time and the Court mayextend the time or cancel the commission and appoint a new Commissioner.
(x) When the case before him is ready for hearing, the Commissioner shall, afterreading the statements filed before him and after examining the parties, if necessary,ascertain the points on which the parties are at issue and require them to produce theirdocumentary and oral evidence on such points.
(xi) After the evidence has been duly taken and the parties have been heard, theCommissioner shall submit his report together with a statement in the form of a diary ofthe proceedings he had before him. The report shall state (a) the contested items allowedor disallowed by the Commissioner, (b) the reasons for allowing or disallowing them, (c)
the amount found due. (d) the name of the party to whom it is due, and (e) the name ofthe party by whom it is due.
(xii) When the report, if any, is received, the Court shall give notice to the partiesrequiring them to file their objections to the report, within a time to be fixed by it ; andafter considering the objections, if any, the Court may act upon the report or pass suchorders as it thinks fit, under Order XXVI, rule 12(2).
(xiii) The provisions of Order XXVI, rules 15 to 18, of the Civil Procedure Code,apply to commissions issued under these rules.
164A The following instructions are intended for regulating the issue of Commissionsfor recording of evidence under provision of subrule (2) of Rule 4 Order XVIII of theCivil Procedure Code. These are :
(a) The Court Commissioner shall record evidence ither in writing ofmechanically in presence of party/their advocates and shall return such evidence togetherwith his report in writing signed by him to the with a certificate that the record is as perversion of the witness.
(b) For District Court/ City Civil Court, Small Causes Court / Courts ofSenior Civil Judges / Courts of Civil Judge (Junior Division) separate panel of CourtCommissioners shall be prepared by the concerned Principal Judges. The panels shallconsist of retired Judicial Officers if available, and Advocates who have practiced for notless than 5 years and are wellversed with that work of recording evidence. The principalJudge shall call for information from such Advocates. Who are to be empaneled asregards their experience in conducting civil suits and should verify such information fromthe Court record. The panel of Court Commissioners be notified by affixing copy of theorder on Notice Board of the Court.
(c) The Court shall fix a reasonable fees for the work of Court Commissionerhaving regard to nature of the work to be executed and should pass separate order asregards transportation charges and incidental charges to be paid to the Commissioner.The fees of Court Commissioner shall not be less than Rs.250/ per day and more thanRs. 750/ per day provided that under special circumstances the fees of theCommissioner may be fixed at higher rate not exceeding Rs.2000/ per day of the actualwork.
(d) The Court Commissioner may record demeanour of the witness /s whileunder examination if the same is essential and pointed out to him by the parties or theirAdvocates.
(e) The Commissioner shall record objections raised by the parties to anyparticular question and keep them open for decision of the Court and not to decide thesame on his own.
(f) The Court shall ensure that original documents and the relevant file of thesuit / judicial proceedings are carried by the clerk nominated by the Court on deputationfor execution of the Commission or atleast by bailiff of the Civil Court who shallaccompany the where the original document is produced before the Commissioner duringthe court of recording evidence, the Commissioner shall acknowledge receipt thereof anda xerox copy of such document be supplied to the opposite party and a separate note betaken in the deposition of th witness who produce the document.
(g) If a situation as to declaring a witness hostile arises before aCommissioner recording evidence, the concerned party shall have to obtain permissionfrom the Court under section 154 of the Evidence Act and it is only after grant of suchpermission that the Commissioner can allow a party to cross – examine his own witness.
(h) The Court commissioner shall complete the work of recording evidenceand submit his report within a reasonable period and in any case within six (6) months.
165. (i) The order directing the issue of a commission to examine a witness shouldstate whether the commission is to be addressed to a Court or a lawyer or their person.
(ii) Where the witness to be examined is resident beyond the jurisdiction of theCourt, the Commission shall ordinarily be addressed to the Court within whosejurisdiction the witness resides.
(iii) When a commission is issued to a Court, the amount deposited by a party fordefraying the expenses shall also be transmitted to the Court to which the commission isissued.
(iv) On receipt of a commission issued under Order XXVI, rule 4, for theexamination of a witness, the commissioner should determine whether he will execute itat the residence of the witness, or at some convenient place in the neighborhood of theCourt, or if the commissioner be a judicial officer, whether the witness shall attend in theCourt or in the premises of the Court of such officer, proper arrangements being made, ifnecessary, for the due privacy. As a rule the person to be examined should appear beforethe Commissioner at the particular time and place specified in the notice issued butdiscretion should be exercised in the examination of those whose attendance is ordinarilyexcused, such as women, persons unable to be removed from their houses owing to old
age, sickness, or other bodily infirmity, or persons of rank exempted under section 133,Civil Procedure Code, from personal attendance in Court. In such cases, theCommissioner should endeavor to discharge his duty with due regard to the specialcircumstances and condition of the witness.
(v) While evidence should not as a rule be excluded by the Commissioner ondebatable grounds, he is nevertheless responsible for preventing abuse of the right ofcrossexamination and for keeping it within reasonable limits.
(vi) When a party fails to appear on the day and at the hour fixed for examinationor applies for time, the Commissioner should proceed exparty if he is of opinion thatadjournment is sought on frivolous or unreasonable grounds.
166. No person holding the office of Judge in any Court subordinate to the High Courtshall receive a fee for the execution of any commission for the examination of witnessesissued to him under the provisions of the Code of Civil Procedure.
167. A Court to which a commission is sent for the examination of witnesses at therequest of one party may allow the other party if leave has been given him to join in thecommission to examine his witnesses and may allow each party to crossexamine anywitness examined by the other party.
168. Commissions issued and received by a Court shall be shown in separate Registersmaintained for that purpose. Such Registers are prescribed in the Civil Manual. (FormsNos. 2 and 3 at pages 95 Vol. II).
169. Where no remittance is received with the commission issued by another Court,inquiry should be made with the Court which issued the commission before proceedingwith the commission under Order XXVI, rule 18 civil Procedure Code.
170. Forms for use in issuing commissions are given as Nos. 7,8,9 and 10 of AppendixH, to Schedule I of the Code.
I. FOREIGN PROCESSES
A. SERVICE OUTSIDE INDIA
(i) General
171. The Provisions of the Civil Procedure Code as to service outside India (Order V,
rules 25 and 26 ; Order XVI, rule 8 ; Order XLVIII, rule 2) are applicable to the serviceof summonses to appear and answer, notices of appeal, summonses to give evidence orproduce documents and generally to all orders notices and other documents required bythe Code to be served.
172. The main provision of the Code for service outside India is that such service shallbe by post. The summons shall be forwarded to the defendant and not to a foreignofficial for service upon him.
173. (a) A summons should be sent by registered post and if the defendant does notappear or is not represented, proof should be given (i) that at the time of the service thedefendant ordinarily resided and was actually residing at the foreign place in question,and (ii) that a cover correctly addressed to him, containing the summons was posted, thepostal acknowledgment being produced or annexed to the affidavit.
(b) Service by post, while necessarily confined to cases where there exists postalcommunication between the place where the Court is situate and the place in which theperson to be served resides, will in practice cover the great majority of cases and resort isnot to be had to any other method for service upon persons outside India save forsufficient reason.
(c) The principle is that, through there are other methods of service, e.g. throughofficial channels, the Code does not require service outside India to be made throughofficial channels.
174. All Courts when issuing process for service outside India should take care that thetime limited for appearance or returnable date shall be such as to enable the process to beserved and the person served to do what is required of him. This applies to all forms ofprocesses and to all method s of service.
Note . Repeated complaints on this score have been received from foreign countries whovery properly object to their Courts or officers being asked to serve within theirjurisdiction summonses to appear before a Court in India on a date already past orotherwise impracticable. For instance, Iraq, the Straits Settlements and Iran havesuggested that the returnable date should be at least three months after the date of thedispatch of the process. In the case of summonses and notices sent for service to placesnamed below, the minimum period noted against each of those places calculated from thedate of posting the summons or notice should be fixed for hearing of suits. :
1. All stations on the Persian Gulf, except Tabriz 4 Months.
2. Tabriz 5 Months.
2 Tabriz 5Months.
3. Somali land 3 Months.
4. Uganda 3 Months.
5. Straits Settlements (Singapore) 3 Months.
6. Tanzania 4 Months.
7. Sri Lanka 2 Months.
8. Aden 2 Months.
9. Burma 2 Months.
10. Thailand 8 Months.
11. Iraq 3 Months.
12. Iran 3 Months.
(ii) In Pakistan
175. (i) When a defendant, not being a public officer, resides in Pakistan, the summonsmay be sent for service on him under the first proviso to rule 25 of Order V, Schedule ICivil Procedure Code, to any Court in that country (not being the High Court) havingjurisdiction in the place where the defendant resides.
(ii) When the defendant is a public officer in Pakistan (not belonging to thePakistan Military, Navy or Air Forces), the summons may be sent for service on him onthe following officers, namely :
(a) Where the defendant is a public officer serving in connection with the affairsof Pakistan or is a servant of a Railway in Pakistan, to the Secretary to the Government ofPakistan in the Ministry of the Interior.
(b) Where such defendant is serving in connection with the affairs of any otherGovernment in Pakistan, or under any local authority in Pakistan, to the Home Secretatryto that Government or, as the case may be, to the Home Secretary to the Governmentwithin whose territory the local authority has its jurisdiction.
(Ministry of Law Notification No. F221/51L,dated the 1st September 1951).
176. Summons and other process issued by any Civil Court within the jurisdiction ofthe High Court at Bombay for service on any person in Pakistan, may be sent direct to theCivil Court in that Country having jurisdiction in the place where the person resides.
(iii) In other Countries
177. Clause (b) of rule 26 of Order V can be applied by the State Government toforeign countries generally. Some foreign countries have already been notified underclause (b) of rule 26 of Order V by the Government of India before the amendment byAdaptation of Indian Laws Order, 1937. The list of those countries given below is tilloperative.
The list is as follows :
Iraq . All the civil and Revenue Courts (6th June 1923, Home DepartmentNotification No. F.29023Judl.).
Note . When the correct designation of the Court concerned is unknown, the summonsshould to addressed to the Iraq Ministry of Justice. Full English translations should besent.
Kenya . all civil Courts, (Government of India Notification, Ministry of Law,No. G.S.R.F. 17(10)/58J, dated the 9th March 1962.)
Nepal . The Courts mentioned in Home Department Notification No. F. 57624Judl., dated the 15th August 1925. (See Appendix A at page 1, Vol.II)
Iran . The civil Courts (3rd May 1928, Home Department Notification No. 84025Judl.)Note . Though the civil Courts in Iran have been notified under Order V, rule 26(b), itappears from Home Department letters Nos. F. 864/32, dated the 30th June 1931, and F.864/32, dated the 19th September 1932, that summonses should not be sent by post tosuch Courts direct but should be sent through the State Government to the Government ofIndia who will transmit them to the India Embassy at Tehran.
At least six month's time should normally be allowed for service of any legaldocuments through the diplomatic channel in Iran and for the return of the documents tothe Court of issue. To obviate delay in service, the Court of issue shall indicate clearly inEnglish the last known address of the person upon whom service is to be effected.
Full translations in Persian of the summonses and notices issued by Indian Courts
should accompany or, in the alternative, an amount sufficient to cover the translation feeas laid down in G.R., H.D., No. 1631/3, dated 10th July 1935.
Frances, Spain, Belgium, Portugal, Sweden, Japan, Singapore and Ceylon. Thecivil Courts.
Note 1 . Singapore. Processes for service in Singapore should be forwarded to theRegistrar of the Supreme Court at Singapore, Penang or Malacca, as the case may be, andshould be accompanied by a sum sufficient to cover the fees for service and postage, theremittance being made by a Post office Money Order.
Note 2 . Sweden. Sweden has agreed to accord reciprocal treatment to the processesissued by India Courts, provided that the request for service is transmitted to the Ministryfor Foreign Affairs in Stockholm and the documents are drawn up in the Swedish orEnglish language or are accompanied by a translation in one of these languages (G.R.,H.D., No. 7424/3, dated 12th February 1936).
Federation of Malaya . The Courts possessing civil jurisdiction (GovernmentNotification, Home Department, No. 4529/2, dated 17th February 1938).
Johore . The Civil Courts situate in the State of Johore (Malaya). (GovernmentNotification, No. 2146/4II, dated the 30th May 1940).
Union of Burma. Any Civil Court situated in the Union of Burma.(Government of Maharashtra, Law and Judiciary Department, Notification No. PFC.1262/1855J, dated the 6th December 1963).
178. Subordinate Courts should not send process of any kind for service to Consults orambassadors or Diplomats, Agents unless expressly provided for or permitted by anylaw, rule or Government order in force.
179. Apart from the special cases provided for in Order V, rule 26, Subordinate Courtsare not authorized by the Code to send processes for service direct to any Court outsideIndia.
Note 1. Prima facie for the Court of one country to address directly the Court of anothercountry is irregular and improper and to send process for execution is even worse.Unless special arrangement has been made between the two countries or the foreigncountry is known to be willing that its courts should receive processes for service forIndian Courts directly, the only proper mode by which a Court in a foreign country canbe addressed is by a letter of request forwarded through the diplomatic channel. so far as
service of processes is concerned, the Code by directing that service be made by postupon the individual concerned (Order V, rule 25) intends to obviate all unnecessaryformality and all difficulties as to collection etc. of costs of service.
Note 2 . As to Thailand, if has been pointed out that the procedure laid down belowshall be followed in the issue of summonses and any other legal processes for executionin Thailand : (a) They should be drawn up in proper form and, if not typewritten, shouldbe written in ink; (b) they should be written in English ; (c) full translations in Englishshould accompany all document in regional language forming enclosures; (d) the periodof time to be allowed for execution and return of the documents to India before the dateof the next hearing should be at least eight months from their date of issue; (e) theyshould be forwarded through the High Court and the State Government to theGovernment of India for being sent to the Indian Embassy at Bangkok. The names andaddresses of the individuals upon whom service is desired should be stated clearly in theforwarding letter.
180. Where service is not to be effected by post under Order V, rule 25 of bytransmission to a Court to which Order V, rule 26 applies, subordinate Courts shouldsend a Letter of Request to the foreign Court in question, if known. If the appropriateCourt is not known, the name may be left to be filled in afterwards. It should beforwarded through the High Court and the State Government to the Government of Indiafor transmission through the appropriate official channel.
181. (i) Processes intended for service through official channels on individualsresident in foreign countries shall be forwarded through the High Court to the StateGovernment for transmission to the Government of India for necessary action.
(ii) Such processes shall be accompanied by a explaination to the High Court ofthe reasons why the service is not made by post under rule 25 of Order V. Where in theopinion of the High Court no sufficient reason is disclosed, the process shall be returnedto the issuing Court and shall not be forwarded to Government. Such processes shallalso be accompanied by a translation of all documents into the language of the foreigncountry within which the service is to be made.
182. All summonses issued by the Civil Courts in this State for execution inMauritious should always be accompanied with a sum of Rs. 32 in order to cover theexpenses of service of summons and other incidental charges in connection therewith.
(Vide Government Letter, Home Department No. 2062/2IIB, dated the 7thAugust 1929).
B. Service in territories in India to which the civil Procedure Code does notapply.
183. Section 28 of the Code provides that summonses and processes may be sent forservice in another ' State' to such Court as may be prescribed by rules in force in thatState. The provisions of this section also apply to service in territories to which the CivilProcedure Code does not, in view of section 1(3), apply.
C. Service of foreign Process in the State.
184. (i) The provisions of the Code as to service within India of the processes ofCourts situate beyond the limits of India (Sections 29 and 31) apply not only to"summonses to appear and answer " (which should be construed to include all civilcitations) but also to summonses to give evidence or to produce documents or othermaterial objects.
(ii) Clause (a) of section 29 relates to service of summons and other processesissued by any Civil or Revenue Court established in any part of India to which theprovisions of the Code do not extend, namely, the territories specified in clauses (a) to (d)of subsection (3) of section 1 of Code.
(iii) The right to send summons direct to an Indian Court for service exists only ifthe issuing Court outside India is a Civil or Revenue Court which is either (a) establishedor continued by the authority of the Central Government; or (b) notified for this purposein the Gazette.
(iv) As regards clause (a) of (iii) above which refers to clause (b) of section 29Civil and Revenue Courts in the State of Pondicherry are the only Courts outside Indiawhich are continued by the authority of the Central Government.
[Vide Clause 4, French Establishments (Administrations) Order, 1954, issuedunder the Foreign Jurisdiction Act, 1947].
(v) As regards clause (b) of (iii) above, which refers to clause (c) of section 29,the provisions of section 29 have been applied to the Courts in the following countries :
Name of Country Number and date ofNotification
Court in respect ofwhich notification has
been issued
1. Straits Settlements(now calledSingapore).
No. 244, dated 16th February1909.
All Courts.
Name of Country Number and date ofNotification
Court in respect ofwhich notification has
been issued
2. Sri Lanka No. 247, dated 16th February1909.
All Civil Courts
3. France No. 852C, dated 3rd February1913.
Civil Courts.
4. Spain Do. Do.
5. Belgium Do. Do.
6. Russia Do. Do.
7. Portugal Do. Do.
8. Iraq No. F. 20923, dated 6th June1923.
Civil and RevenueCourts.
9. Kenya No. G.S.R.F. 17(10)/58J,dated the 9the March 1962.
All Civil Courts.
10. Japan No. 1924, dated 25th November1920.
Do.
11. Persia (Iran) No. F. 840/25, dated 31st May1928.
Do.
12. Sweden No. G.S.R. 640, dated 22ndJuly 1958.
All Civil Courts.
13. Nepal No. F. 576/34, dated 15thAugust 1925.
Courts specified in theSchedule to theNotification.
14. Pakistan No. S.R.O. 1340, dated 1stSeptember 1951.
Civil and RevenueCourts.
15. Federation of Malaya No. S.R.O. 223, dated 24thJanuary 1956.
All civil Courts.
Name of Country Number and date ofNotification
Court in respect ofwhich notification has
been issued
16. Sikkim No. G.S.R. 705, dated the 3rdMay 1967.
High Court of Sikkim inexercise of its CivilJurisdiction. All Civiland Revenue Courts.
Note . In force for aperiod of five years witheffect from the 3rd may1967.
17. Union of Burma No. G.S.R. 935, dated 15th July1961.
all Civil and RevenueCourts.
18. People's Republic ofBangladesh.
No. G.S.R.F. 12(2)/74Judl.dated Nil.
All Civil and RevenueCourts.
II COMMISSIONS AND LETTERS OF REQUEST.
A. Issued at the instance of Foreign tribunals
185. Subordinate Courts are not concerned with application to take evidence for foreigntribunals as such applications have, under Order XXVI as amended by Act X of 1932, tobe made to the High Court and subordinate courts have only to carry out any directionswhich the High Court may give.Note . Foreign consular officers and other persons sometimes apply direct to Civil Courtto take such evidence in disregard of the procedure. They should be referred to the termsof Order XXVI. Care should be taken in any such correspondence with officers ofForeign States to address them properly and politely.
B. Taking of evidence in foreign countries for Indian Courts
186. (i) The proper course for the courts of one country to adopt in order to obtainevidence in another country is to send letters of request (Commission regataire)addressed to the proper court in the foreign country.
(ii) The question as to the method by which evidence could be obtained by theIndian Courts in any foreign country is governed by (1) International courtesy, (2) thelaw in force of the country concerned. Evidence can be obtained in a foreign country
either by addressing a letter of request to the competent judicial authorities of the countryfrom which the evidence is required, or by the issue of a commission to take evidence tosome person in the foreign country concerned, for example a consular or diplomaticofficer of India abroad, to be named personally by the Indian Courts. But the issue of acommission is only possible in a limited number of countries where the local law permitsit. Necessary instructions for taking of evidence by our Consular or Diplomatic Officersin foreign countries upon commissions issued to them by Courts in India have beenissued by the Central Government to officers belonging to the Indian Foreign Service. Alist of Foreign Service Officers is given in Appendix B at page 3 in volume II.
(iii) The Code of Civil Procedure provides for this by section 77, Order XXVI,rule 5, and form 8 in Appendix H. It should be noted that the appointment of a foreignCourt as a Commissioner is not permissible.
187. (i) Arrangements have been made between the Government of India and theGovernment of Pakistan for the examination or commission of nationals of one countryas witnesses in civil cases pending in the other country.
(ii) a list of the Courts in Pakistan to which commissions and letters or requestmay be issued by Courts in India is given below :
List of Courts in the Provinces of Sind and Baluchistan to whom commissions orletter or request can be addressed by Courts in India.
SIND
Registrar, Chief Court of Sind, KarachiDistrict Judge, Hyderabad.District Judge, Sukkar.District Judge, Larkana.District Judge, Nawabshah.District Judge, Thar Parkar, Mirpurkhas.
BALUCHISTAN
(1) Court of District Judge in Baluchistan, Quetta.
BALUCHISTAN STATES UNION
(2) Court of the WaziriAzam Baluchistan States Union.
List of Civil Courts in Bangladesh, Baluchistan and Baluchistan States Union towhom commissions or letters of request can be addressed by Courts in India.
District Judges' Courts at the following places :1) Barisal. 8) Mymensingh.2) Chittagong. 9) Noakhali.3) Dacca. 10) Rajshahi.4) Faridapur. 11) Rangpur. 5) Jessore. 12) Sylhet.6) PabnaKushtia (babna). 13) Tippera (Comilla).7) JinajpurBogra (Dinajpur). 14) Khulna.
All SubJudges' Courts at the following places :1) Barisal. 9) Bogra.2) Chittagong. 10) Mymensing.3) Dacca. 11) Noakhali.4) Faridpur. 12) Rajshahi.5) Jessore. 13) Rangpur.6) Dinajpur. 14) Sylhet.7) Khushtia. 15) Comilla (Tippera)8) Pabna. 16) Khulna.
All Munsifs' Courts at the following places :1) Barisal Sadar. 34) Mymensiga Sadar.2) Perojpur. 35) Netrokona.3) Bhola. 36) Iswarganj.4) Patuakhali. 37) Kishoreganj.5) Chittagong Sadar 38) Sherpur.6) Satkania. 39) Tangail.7) Patiya. 40) Jamalpur.8) North Roazan. 41) Bajitpur.9) South Roazan. 42) Durgapur.10) Fatikchari. 43) Neakhali Sadar.11) Cox' Bazar 44) Feni.12) Dacca Sadar. 45) Lakshmipur.
13) Narayanganj. 46) Hatiya14) Munshiganj. 47) Sandwip15) Manikganj. 48) Rajshahi Sadar16) Faridpur Sadar 49) Natore.17) Coalonda. 50) Noagaon. .18) Bhanga. 51) Nowabganj.19) Gopalganj. 52) Rangpur Sadar.20) Madaripur 53) Kurigram. 21) Chikandi 54) Nilphamari22) Jessore Sadar 55) Gaibandha.23) Narail. 56) Sylhet Sadar.24) Magura. 57) Habibganj.25) Jhenidah. 58) Maulvi Bazar.26) Pabna Sadar 59) Sunamganj.27) Serajgang. 60) Comila Sadar.28) Kushtia. 61) Brahman Barlia.29) Choudanga. 62) Chandpur.30) Dinajpur Sadar. 63) Nabinagar31) Thakurgaon. 64) Nabinagar.32) Pachagrah 65) Bagerhat.33) Bogra. 66) Satkhira.
List of Courts in the Province of Punjab (P) to whom commissions or letters ofrequest can be addressed by Courts in India.
Name of Court Judges to whom a commission or a letter ofrequest can be issued.
1. District Court, Lahore, Sheikhpura. 1. District Judge, Lahore.
2. District Court, Sialkot. 2. District Judge, Sialkot.
3. District Court, Gurjanwala and Gujrat. 3. District Judge, Gurjanwala.
4. District Court, Shahpur. 4. District Judge, Shahpur at Sergondha.
5. District Court, Jhelum. 5. District Judge, Jhelum.
6. District Court, Rawalpindi. 6. District Judge, Rawalpindi.
Name of Court Judges to whom a commission or a letter ofrequest can be issued.
7. District Court, Attack. 7. District Judge, Attack.
8. District Court, Mianwali. 8. District Judge, Mainwali.
9. District Court, Montgomery. 9. District Judge, Montgomery.
10. District Court, Lyallpur, Jhang. 10. District Judge, Lyallpur.
11. District Court, Multan, Muzaffargarh. 11. District Judge, Multan.
12. District Court, Dera Ghazi Khan. 12. District Judge, Dera Ghazi Khan.
Lists of Courts in the North West Frontier Province to whom commissions orletters of request can be addressed by Court in India.
Court Office to whom commission and letters ofrequest may be addressed.
1. Judicial Commissioner's Court,N.W.F.P., Peshawar.
1. Registrar, Judicial Commissioner'sCourt, N.W.F.P., Peshawar.
2. District Court, Peshawar. 2. District Judge, Peshawar.
3. District Court, Hazara, (Abbotabad). 3. District Judge, Hazara (Abbotabad).
4. District Court, Dera Ismail Khan. 4. District Judge, Dera Ismail Khan.
List of Courts in the Khairpur State and Baluchistan State Union to whomCommissions or letters of request can be addressed by Courts in India.
1. Khaipur State. 1. The Court of the District Judge Khairpur.
List of Courts in Bahawalpur State to whom commissions or letters of request canbe addressed by Courts in India.
1. High Court of Judicature at BaghdadulJadid.
2. District and Sessions Judge of Rahimyar Khan and Bahawalpur.
List of Courts in the frontier Regions and States to whom commissions or lettersof request can be addressed by Courts in India.
I MOHAMAND AGENCY
(1) The Court of the political Agent, Mohamand.
II. MALAKAND AGENCY
(i) The Court of Political Agent, Dir, Swat and Chitra Malakand.(ii) The Court of the Additional Political Agent, Chitra.(iii) The Court of the Assistant Political Officer, Malakand Agency, Chakdara.
III. KHYBER AGENCY
(i) The Court of the Political Agent, Khyber.(ii) The Court of the Assistant Political Officer, Khyber.
IV. KURRAM AGENCY
(i) The Court of Political Agent, Kurram.(ii) The Court of the Assistant Political Officer, Kurram.
V. NORTH WAZIRISTAN AGENCY
(i) The Court of the Political Agent, North Waziristan.(ii) The Court of the Assistant Political Agent, North Waziristan.(iii) The Court of the Assistant Political Officer, North Waziristan.
VI. SOUTH WAZIRISTAN AGENCY
(i) The Court of the Political Agent, South Waziristan.(ii) The Court of the Assistant Political Officer, South Waziristan.
188. Evidence can be obtained in a foreign country by means of letter of requestaddressed to the Judicial authorities of the country ; or by direct appointment by theIndian Court of someone in the foreign country to take the evidence without theintervention of the local authorities. There is a third method, made up of a combinationof the other two, which however, is only available under and by virtue of certainconventions. This method consists of sending letters of request addressed to the foreignjudicial authorities asking them to cause the evidence to be taken by a specific persondesignated by the Indian Court in the letter of request.
189. The Procedure by letters of request is generally available in all countries except inthe United States of America, The United State of America prefers the appointment of aCommission and will compel the attendance of witnesses before it. In those countries,where the only available procedure is to send a letter of request, Foreign Service Officersshould not be called upon to take evidence, and would refuse, if asked.
190. In certain convention countries and also in certain nonconvention countries, onlya Foreign Service Officer can take evidence on a direct appointment from the Courtrequiring the evidence. In other countries, there is no restriction and any suitable personcan be appointed for this purpose.
191. The evidence must be taken in accordance with the law an the procedure of theCourt requiring it, and when complete, should be transmitted direct to the Court by theForeign Service Officer or other person appointed. Foreign Service Officers, however,cannot do anything contrary to the local law.
192. The procedure by direct appointment from the Court requiring the evidence ispermitted in most countries and is generally included in the conventions. There are,however, countries in which the procedure by letters of request alone is available.
193. When under the local law a foreign Service Officer cannot take evidence by virtueof a direct appointment, he will refuse to act, and inform the Court or the parties of thereason, drawing attention to the procedure by letters of request which is normallyavailable.
194. A Court can appoint any one for taking evidence ; it is guided in its choice solelyby personal qualifications, and considerations of convenience and suitability. Except forconventions, Foreign Service Officers may be appointed on the condition that they areallowed to appoint a deputy. The power to do this may be provided for in the writ of
commission or order appointing the Foreign Service Officer. The power to appoint adeputy may normally be included in the order of appointment.
195. The method of issuing letters of request asking foreign tribunals to cause evidenceto be taken by person specified by the Indian Court exists only under certain conventions.Such a person should normally be a Foreign Service Officer. The advantage is that thelocal authorities can compel the witness to present himself with documents, and to makedepositions which otherwise the Foreign Service Officer cannot secure ; and the evidencecan be taken according to the provisions of the Indian law.
196. Where any witness is to be examined before some person appointed for thatpurpose by the Court, it is essential that the Examiner is furnished with copies of all therelevant documents which may be necessary in order to inform him as to the questions atissue between the parties.
197. The letter of request should be drawn up by the Court desiring the service ofdocuments and where the proper description of the foreign judicial authority in questionis not known, the letter of request should be addressed to the Competent Judicialauthority in the country concerned.
198. The letter of request in duplicate should be signed by the Judge or the Registrar ofthe Court and bear the official seal of the Court. The letter of request in duplicate shouldstate the steps to be taken and either contain at the foot thereof a schedule of all relevantdocuments forming part of such letter of request or be followed immediately by an indexof such documents. The first document should give a concise summary of the pleadingsof the parties thereto. This document and the other document should be numbered orlettered to correspond with the schedule or index mentioned above and be arranged, as faras practicable, in chronological order. if any of the documents in the letter of request arein original, the copies appearing in the duplicate letter of request should be certified by anofficial of the Court that they have been examined and are true copies. Such certifiedcopies should also bear the seal of the Court.
199. Two certified copies of the translation of the complete letter of request in thelanguage of the foreign country in which service is to be affected should always companythe complete letter of request.
200. The complete letter of request in duplicate and the two certified copies of thetranslation should be on strong paper and bound together so that they are all covered by
the signature of the Judge and seal of the Court and there is no possibility of the removal,substitution or addition of any sheet without breaking the seal.
201. The letter of request of service of a summons or of interrogatory or the firstdocument annexed thereto should indicate clearly (a) which is the actual document (ordocuments) to be served and (b) whether a special method of service is desired (asopposed to a case where any method usually employed by the Courts of the foreigncountry in question will suffice). The method of service desired should also be indicated,viz., that one copy of the documents to be served should be left with the intended recpientthat a certificate of service by the process served should be written on the copy of thedocuments to be served ; that the recipient should be asked to sign a copy of thedocument served, etc., as the case may be.
202. A letter of request for service of an interrogatory should be accompanied byspecific interrogations and crossinterrogations, if any.
203. The interrogatory with the crossinterrogatory, if any, should be arranged inproper sequence in the letter of request and in the certified copies of the translation.Instead of enclosing interrogatories, the letter of request may request that the local agentsof the parties to the proceeding, whose nanes and addresses should be given, should bepermitted to appear at the examination of the witness and ask or submit to the foreignjudicial authority the questions which they desire to put.
204. the full names, description, and addresses of the intended witnesses should begiven n the letter of request or in the 'first document' referred to in paragraph 198.
205. (i) A letter of request should in all cases be accompained by its translation in thelanguage of the foreign court to which it is addressed. All accompanying documentsshould be similarly translated in that language. If the commission is to be executed by aForeign Service Officer, such documents should, if they are in a language other thanEnglish, be translated in English. If a person to be served or whose evidence is to betaken knows English, the translation of the accompanying documents in foreign languagemay be dispensed with. all translation should be sent in duplicate.
It is not feasible to translate the letter of request or its accompanying documentsin the foreign language in question, a request should be made to the office of the Indianrepresentative of the foreign country concerned for getting the documents translated. Thecosts of such translations will have to be borne by the party concerned. such costs shouldfirst be ascertained by the Court and remitted to the office of the Indian representative.
(ii) a list of all the documents should in every case accompany the papers.(iii) When it is not possible to ascertain the particular foreign Court to which the
letter of request should be addressed, the name of the Court may be left blank so as to befilled in by the Indian representative in the foreign country.
(iv) It is to be noticed that in letters of request it is not proper to fix a day for thereturn of the evidence. When it is known that neither party proposes to attend at thetaking of the evidence, this should be stated in the covering letter forwarding the letter ofrequest, as it may avoid delay.
(v) Neither commissions nor letter of request should be ordered to issue abroadunless there is sufficient* time for the execution to be completed before the hearing of thecause or mater in which the evidence is to be used.
206. (1) Order XXVI, rule 15, enables the Court to require a party to deposit suchamount as would be adequate for the purpose of execution of a commission or a letter ofrequest, which should be slightly higher than the amount likely to be paid to the foreignCourt.
(2) In the case of a commission or a letter of request issued to a Court in Pakistan,the Court should obtain a bank draft in the name of the Court concerned in Pakistan forthe amount required to defray the expenses in connection with the execution of thecommission or letter of request and send it direct to the Court concerned in Pakistan.
(3) The above procedure should be followed for remitting fees for execution ofcommissions and letters of request in other foreign countries. The permission of theReserve Bank of India should be obtained for remitting money to the foreign country inquestion by making an application to any of the offices of the Reserve Bank.
(4) The deposits should be taken in the Central Section of Government accountsto a separate minor head, " Deposits for Service of Legal documents in other countries"under the major head "Civil Deposits" in the Section "SDeposits and Advances".
207. The following statement showing the approximate cost required for the executionof letters of request, commission, etc., in foreign countries should be taken as a roughguide for considering the adequacy of the deposit. In regard to the countries which arenot included in the statement, a sum of Rs. 200 is considered to be an adequate depositsubject to the amount being adjusted when the actual charges are known. Each individualcase may be dealt with on merits and with reference to the nature and volume of workrequired to be performed.
STATEMENT
Mission Depositrequired
Mission Depositrequired
Ethiopia 200 Buenos Ayres 200
New York 700 Port Louis 150
Dacca 300 Aden 60
London 350 Indo China 400
Pondicherry 150 Canberra (Tasmania) 100
Canada 750 Canberra (South Australia) 500
Cape Town 100 Canberra (Victoria) 100
Singapore 100 Canberra (Queensland) 200
Washington 700
Suva 250
208. The channel for letters of request is as follows :(a) The High Court,(b) The State Government,(c) The Ministry of External Affairs and Commonwealth Relations of the
Government of India.
209. The letter of request and the accompanying documents should be in the followingorder :
(a) letter of request.(b) Index of documents in English [if not included in (a)]. This must be
complete, that is to say every document which is contained in the bundle and follows theletter of request must be separately specified together with its serial or page number, andeither every documents must bear a serial number corresponding to the number given toit in the index, or all the documents following the letter of request must be pagedconsecutively. Moreover, all numbers appearing at the top or foot of any page of thedocuments other than the number (if any) assigned to that page in the index should bedeleted.
(c) Narrative of facts[if not included in (a)].(d) Interrogatories, crossinterrogatories and reinterrogatories. These should
contain the same description of witness as appears in the letter of request.(e) Other documents, in chronological order, accompanying the letter of request.
(f) translations of (a) to (e) inclusive where necessary arranged in the same orderand each one of them properly certified by an official of the Court as true translations.
(g) Duplicates of (a) to (f) inclusive arranged in the same order and each one ofthem properly certified by an official of the Court as true copies.
210. Letters of request and accompanying documents intended for transmission toforeign countries through diplomatic channels should be sewn together in a stout papercover down the lefthand side, the ends of the silk, tape or thread with which they aresewn being brought out on the front cover, and the ends sealed with the seal of the Court.
211. (i) Where the party at whose instance the letters are issued is represented in theforeign country by an agent who can apply to the foreign Court, the letters may be givento such party for transmission to such agent but as it is difficult for Indian Courts to makecertain that the practice of the foreign Court is to receive letters of request so producedbefore it, this procedure is not advised.
(ii) In the case of Brazil, however, this method is understood to be obligatory.The party's agent at Rio de Janeiro presents the letters to the Ministry of Justice.
212. All letters of request, covering letters and translations should be typewritten
C. Particular Countries
213. England . (i) In England there is no objection to the Courts of any other countryappointing whomsoever they may choose as an examiner or Commissioner to takeevidence, but such an appointment carries no compulsory powers.
(ii) If the assistance of the English Courts is required, the procedure is under theForeign Tribunals Evidence Act, 1856, and the rules are to be found in Order 37, rules5460 of the Rules of the Supreme Court.
(iii) (a) In simple cases not involving great expenditure of time or money, (b)where it is not possible for the parties to appoint agents in England, (c) where a letter ofrequest has been transmitted through the diplomatic channel and (d) is accompanied bydetailed interrogatories or explanations of points to be enquired into and of the issues inthe causethe Court in England may, upon an application by the Treasury Solicitor,appoint an examiner and compel the attendance of witness.
(iv) But in all ordinary cases, the Court must be moved by an agent of one of theparties, in which cases a certificate of the foreign country's diplomatic representative willsuffice in lieu of a letter of request, or the letter of request may be produced by the party'sagent without being sent through the diplomatic channel.
(v) These rules (Cf. rule 59 of Order 37, Rules of the Supreme Court) apply as faras may be to India and to applications under the Evidence by Commission Act, 1959 (22Vic., Chap. 20).
214. The following rules should be observed in regard to commissions to be executedin and transmission of letters of request to the United Kingdom :
(1) For the execution of a commission, costs have to be incurred amounting toabout £ 25, if it is noncontentious.
(2) In cases in which the Central Government or a State Government isinterested, the High Commissioner for India in the United Kingdom will pay the expensesand debit the same to the Central Government or the State Government concerned.
(3) When the commission or letter of request is at the instance of a private partyand routed through the Government of India. Ministry of External Affairs, the partyinterested will have to bear the expenses. Arrangements in such cases will be made forexecution of the documents only if the sum of £ 25 sterling is deposited by the party infavour of the High Commissioner for India in the United Kingdom and the draft inquestion is sent to the Ministry of External affairs along with the documents. The partyinterested should also undertake to pay any excess over £ 25 if the expenses exceed £ 25.
The commission or letter of request and interrogatories both for the purposes ofexamination and crossexamination should be prepared neatly and on good paper. Allthese documents should be sent to the Ministry of External affairs in duplicate in a sealedcover.
215. United states of America. Evidence of witnesses in U.S.A. can be obtained onlyby issuing commissions addressed to the appropriate Foreign Service Officer. They areto be addressed to the Indian representative at New York so far as his Consular Districtconsisting of States of New York, Connecticut and the Northern half of New Jersey, isconcerned. As regards witnesses residing elsewhere in the United States of America, ifthe Court issuing the commission is unable to ascertain which Foreign Service Officerhas jurisdiction in the State where the witnesses reside, the commission should beaddressed to the Foreign Service Officer for the State concerned and the Government ofIndia will forward the commission to the Foreign Service Officer at New York requestinghim to transmit it to the Foreign Service Officer having jurisdiction. If it is desired totake the evidence of witnesses who reside both within and outside the particular ConsularDistrict, the commission should be made out substantially in following terms :
The Indian Representative, at ..................... or his deputy with power to appoint
any other person or persons whom he may deem fit to take the evidence oninterrogatories which accompany this commission and vice voce of such witness to beexamined at ..................... and / or at ......................
A deposit of one hundred dollars should accompany the commission for the costof service. Such commissions should be forwarded through the High Court and the StateGovernment to the Government of India who will transmit them to the Foreign ServiceOfficer concerned.
216. Japan . (i) Reciprocal arrangements have been made between India and Japanfor the execution of letters of requests as well as for service of legal processes. Theyhave to be forwarded through the High Court and State Government to the Governmentof India. The Government of India will forward them direct to the Indian Embassy atTokyo.
(ii) Adequate sums for expenses must be recovered under rule 15 of Order XXVI,Civil Procedure Code, and deposited in the treasury before the letter is forwarded to theHigh Court and the covering letter should state the amount deposited. The Governmentof India have guaranteed to Japan the cost involved in the execution of letter so request.A translation of all documents into Japanese should be sent with the papers. Thedocuments should be drawn up separately for each of the Japanese Courts in whosejurisdiction witnesses reside and detailed particulars as to name, nationality and residenceof the witnesses are insisted on.
217. Thailand . (i) Letters of request shall be addressed to the High Court of theJustice, Bangkok (or other Court having jurisdiction) for the formal taking of evidence oncommission. They have to be sent through the Ministry of External Affairs, Governmentof India and the Thai Foreign Office and other methods are regarded as irregular.
(ii) The letter of request addressed to the High Court of the Justice, Bangkok hasto be forwarded through the High Court and the State Government to the Government ofIndia.
(iii) It should be borne in mind that the Court language being Thai, in ordinarycircumstances, the Courts there only receive requests in the Thai language. It is,therefore, advisable that the letter and interrogatories should be accompanied by atranslation in Thai.
(iv) In conformity with the requirements of the Thai Ministry of Justice relativeto the service in Thailand of writs or summonses issued by foreign Courts, what isrequired is not the original writ or copy thereof, but a notice or certificate that the writhas been issued.
218. Iran. Letters of request issued by Courts in India for execution in Iran are to betransmitted through the High Court and State Government to the Government of Indiawho will pass them on to the Indian Embassy at Teheran.
Note 1 . Letters of request should formally be addressed to the Iranian Ministry ofJustice and forwarded to the Government of India along with the list of interrogatories fortransmission to Teheran.
Note 2 . Letters of request or interrogatories for service in Iran should be accompaniedby translation in Persian or by translation fee as laid down below :
(i) For making or verifying a translation of a document for every 100 wards orfraction thereof exclusive of fee or certificate 7/6 plus 25 per cent 9/6.
(ii) For granting any certificate not otherwise provided for, if not exceeding 100wards exclusive of fee for drawing 10 plus 25 per cent = 12/6.
219. Indonesia . If the Court requests on the covering letter, the Indian Representativeat Batavia will arrange for translation into English of Dutch depostions and will intimatethe cost (G.R., H.D., No. 4846/3, dated 21st October 1937).
220. Iraq . Indian Courts are free to send processes for service to the Iraq Ministry ofJustice direct. All judicial documents should be accompanied by a separate letter. Suchdocuments should be accompanied by an English translation. If, for any particular reasonwhich should be stated in each case, it is considered necessary to transmit the documentsto the Iraqi authorities through the Indian Embassy at Bagdad, they should be sentthrough the State Government to the Government of India who will forward them to theEmbassy.
221. Federation of Malaya. In case where an Indian Court desires to obtain evidencein the Federation of Malaya, it should issue a commission instead of a letter of request,and send it direct to the Court concerned. The commission should be written in theEnglish language or, if not so written, should be accompanied by a translation in English.the Court sending a commission should transmit or arrange to deposit such some ofmoney as may be reasonable necessary for the expenses of executing the commission.The scale of fees and expenses payable in connection with the execution of commission isgiven below :
$
1. Affidavit 1.50
2. Originating Summons 1.50
3. Order of Judge 1.50
4. Upon giving an appointment to take an examination under section 393 ofthe Federation of Malaya States Civil Procedure Code.
15.00
5. For every witness sworn and examined under section 393 of theFederation of Malaya States Civil Procedure Code for each hour or partof an hour.
5.00
6. Certificate of Registrar 1.50
7. Transport (according to the distance of the residence of witness).
8. Subsistence allowance (according to the status of the witness).
Note . Items 1 and 2 will not be required if no agent is appointed in the Federation ofMalaya Summonses can be sent by Indian Courts direct to the Courts in the Federation ofMalaya.
222. Summonses issued by Indian Courts and intended for residents in South Africashould be sent to the Supreme Court, South Africa through the State Government and theGovernment of India in the Ministry of Home Affairs.
The returnable date to be specified in the summons should be such as to allowsufficient time for service and return to India of the document before the next hearing ofthe suit. The period to be allowed should ordinarily be not less than six months.
The charges for the service of summonses will be the actual charges incurred bythe Courts in South Africa. The particulars of the fees ordinarily charged by the Courtsin the Union of South Africa are as given below :
Provinces Fee forservice
Travelling allowance (permile or fraction of a mile)
Radius (fromdeputy sheriffs
office) within whichno transport
allowances allowed
Cape 5 Civil matters 1/6d. Criminalmatter 1/
3 miles.
Provinces Fee forservice
Travelling allowance (permile or fraction of a mile)
Radius (fromdeputy sheriffs
office) within whichno transport
allowances allowed
Orange Free State 6/3 1/3d. 1 miles.
Natal 5 2 (for outward journey only). 1 miles.
Transval 7 1/3d. 3 miles.
CHAPTER IX
DESPATCH OF COURT BUSINESS
223. For the prompt and effective disposal of judicial business, the followingsuggestions are made :
(a) The Presiding Judge should personally fix all the dates in theproceedings and should not leave the matter to the Bench Clerk.
(b) When fixing dates for the appearance of persons summoned,attention should be paid to the provisions of rule 6 of Order V and rule 9 of Order XVI,Civil Procedure Code.
(c) In fixing the Daily Board, due regard should be had to thecomplexity of the suit, the period for which it has been pending and the time expected tobe available for its hearing.
The Presiding Officer of the Court should also make a rough estimate as tothe period required for the disposal of each portion of work. He should keep a margin forcontingencies like collapse of the board by reason of unforeseen and unavoidableadjournments or compromises etc.
(d) The dates for final hearing of suits should be fixed after informalconsultation with the lawyers, preferably when issues are framed, as to the time the finalhearing is likely to occupy.
(e) Apart from the division of suits into Small Causes Suits andRegular Suits, the latter should be further divided into (a) Short Causes and (b) LongCauses. In the first would fall uncontested suits and other suits of simple character and inthe latter, seriously contested or complicated suits. It should be possible for the PresidingJudge to place a suit in its appropriate category upon consideration of the pleadings andissues in the case. Short cause suits would include suits for maintenance, suits undersection 9 of the Specific Relief Act, Suits instituted under rule 58(5) of Order XXI of theCode of Civil Procedure, Petitions under the Payments of Wages Act, Workmen's
Compensation Act, Hindu Marriage Act, And Succession Act. The category of the suitshould be indicated in the sheet on which issues have been scribed by noting in the topright hand corner the letter 'S' or 'L' according as the suit belongs to the first or thesecond category. It will, however, be in the discretion of the Judge to transfer a suitfrom one category to the other.
(f) In Courts in which exclusively civil work is done, the first fourdays should ordinarily be set apart for the trial of long cause, one day for the trial of shortcauses and small cause suits and for dealing with interlocutory and miscellaneousmatters and one day for execution work. While distributing the work in this manner, careshould be taken to ensure that there is adequate work for each day of the week. it would,of course, be open to the Judge to modify that pattern according to the state of the file inhis Court. It is also open to him to hear, upon a motion, urgent matters on any day of theweek.
(g) If, after the issues are framed and matters preliminary to the trialare attended to, it is found that no day for hearing is available within the next 3 months,the case should be entered on the sine die list until such time as a day is available forhearing it. The Judge should however pass order in writing for placing such case on thesine die list. The list must be carefully examined by the Judge every week so as to seethat the case in it are set down for hearing as days become available.
When the Judge finds it practicable to fix a day for hearing of such suit heshould do so after due intimation to the lawyers concerned or to the parties if they areunrepresented.
(h) All suits and other matters requiring judicial orders and cases inwhich judgments are to be delivered should be shown on the Notice Board. Even suitsand proceedings in which only formal orders are required should be notified.
(i) If for any reason contested and uncontested work is fixed for thesame day, the Judge should first go through the whole list of the day, dispose of alluncontested work, and then take up contested work.
(j) The Judge should endeavour, as a general rule, to dispose of a suitaccording to its age, to be determined by the date of institution. He should also bear inmind the mark 'S' or 'L' shown on the corner of the issue sheet.
(k) Every Judge proceeding on leave, for whom no locum tenens hasbeen appointed, should before his departure adjourn all cases set down for hearingduring the period of his absence, and should, as far as possible give notice of theadjournments to all parties or the lawyers concerned when necessary.
224. Subject to the instructions contained in paragraph 223 above, the Courtsdoing exclusively Civil work should also adopt the Evidence Block System, for theproper implementation of which the following instructions are given :
In Courts in which exclusively Civil Work is done, an unbroken block ofsufficient number of working days, commencing from the first working day of eachmonth, should be allotted, in each month, exclusively for evidence cases except that workof a minor character which does not claim much of the time may be fixed along withevidence. At the time of fixing the block, the advocates and pleaders appearing in thecases or the parties must be warned that the cases will go on from day to day until allevidence is taken. During the rest of the days of the month, work relating to (1)Preliminary matters in Long Causes, Short Causes and Small Causes Suits, (2)interlocutory miscellaneous matters and (3) execution should be fixed. Whiledistributing work in this manner, care should be taken to ensure that there is adequatework for each day of the month.
A case fixed for evidence should not be adjourned except for very strongreasons and only when justice demands it. In every case, the reasons must be stated inthe Roznama and in the Written Order granting an adjournment.
225. Attention of the Courts is invited to the provisions of Rule 4 (4) and Rule4A of Order XXII of the Code of Civil Procedure regarding bringing on record the legalrepresentatives of deceased parties. These provisions may be kept in view by the Courtsfor the purpose of expeditious bearing of the suit.
226. (i) All suits, appeals or applications for the prosecution or defence ofwhich persons in the service of Government, Officers in the Army or soldiers haveobtained leave of absence, should be disposed of as soon as they are ripe for hearing,irrespective of the order in which they may stand on the register, and as speedly as maybe consistent with the due administration of justice.
(ii) When an officer or soldier has obtained leave of absence for thepurpose of instituting or defending a suit, appeal or application, and the case cannot be
decided within the period of his leave, he should, if he so requests, be furnished with acertificate stating the extension of leave that may be necessary.
(iii) On the subject of litigant Indian Soldiers, the attention of the CivilJudges is invited to the Indian Soldiers (Litigation) Act, 1925, and the Rules framed bythe Central Government under Government of Indian Notification, Defence Department,No.455, dated the 14th May 1938, published at pages 13761980, of the BombayGovernment Gazette for 1938, Part IVA to section 5 of the Indian Limitation Act, 1908,and to the Bombay Amendment of rule 28 of Order V, under section 122 of the Code ofCivil Procedure, 1908.
(iv) On the subject of litigant Indian Seaman, the attention of Civil Judgesis invited to the Indian Soldiers (Litigation) Act, 1925, and also to the Indian Seamen(Litigation) Rules, 1944 framed by the Central Government and published underGovernment of India Notification, War Department, Navy Branch, PartB, No.709, datedthe 6th May 1944, at pages 622623 of the Gazette of India, PartI, to section 5 of theIndian Limitation Act, 1908, and to the Bombay Amendment of rule 28 of Order V,under section 122 of the Code of Civil Procedure.
227. The Senior Judge of a Court should not transfer the bulk of the heavycases to a Joint District Judge and keep the bulk of the light ones for his own disposal.
228. When a Civil Judge of a Court is deputed to another Court to renderassistance to relieve the congestion, he should be given the lighter and more congenialwork, the old and tough suits being tackled by the original judge. The deputed Judgeshould not be regarded as a drudge sent to relieve the original Judge of work which thelatter has been unable (or unwilling) to do for himself; rather the deputation should beregarded as enabling the original Judge, without losing ground to dispose of the difficultand contested suits which he could not have afforded to tackle but for the assistancegiven.
229. (i) It appears that in some original suits the parties still abstain fromcoming forward as witnesses on their own behalf to substantiate by their own evidence onsolemn affirmation the statements of fact on which they respectively ask the Court to givejudgment in their favor. The nonappearance in the witness box of a party in support ofhis own allegation of facts within his own knowledge, would ordinarily be regarded, inthe absence of some satisfactory explanation, as throwing grade doubt on the bona fidesof the case.
(ii) The practice of calling the opponent in the case as one's own witnesshas been condemned by the Privy Council.
230. All preliminary matters should, as far as possible, be disposed of beforethe date fixed for trial. Such preliminary matters include, for example, the proof of factsby affidavit, the issue and return of commissions for making plans, or for examiningwitnesses, etc., and all matters connected with the discovery and inspection ofdocuments.
231. On the completion of the interlocutory stage, it will generally beconvenient to fix an early date called the "settling date" for giving lists of witnesses andpaying the necessary processfee and expenses. On that date, information which wouldenable the Court to make an estimate of the probable length of trial should be obtainedand a date should be fixed for recording evidence.
232. In Courts of Judges, who are doing both Civil and Criminal work, somedays should be set apart exclusively for criminal work and some days for civil work.
233. When a suit assigned for disposal by a Civil Judge of the Senior Divisionto his Joint Civil Judge of the Junior Division is found by the letter to be beyond hispecuniary jurisdiction, he should request his District Judge to transfer the suitadministratively to the Civil Judge of the Senior Division, and not return the plaint to thePlaintiff for being judicially presented tot the proper Court or return it to the Civil Judgeof the Senior Division.
234. Attention of the Civil Courts is invited to subrule (2) of rule 1 in OrderXVII, which provides for awarding costs on account of adjournments and to the provisothereto containing the statutory guidelines for the grant of adjournments.
The Judge should bear in mind that the arguments, if heard soon after theclose of evidence, take less time than the arguments advanced after long interval and that,therefore, the arguments should be heard soon after the close of evidence.
The Courts should, in exercise of their powers, see to it that the Advocatesdo not take Court's time for advancing unduly lengthly arguments before them.
235. Ordinarily, the adjournment costs should be out of proportion to the value
of the claim in suit nor should they be inordinately low. They should be adequate tocompensate the party affected by the adjournment.
236. The attention of the Courts is directed to the provision of rule 6, Order Vand rule 9 of Order XVI, Civil Procedure Code, when fixing dates for the appearance ofparties. The responsibility for fixing a date is that of the Judge alone and should not bedelegated to any of the Court officials. He should make an estimate of the time each casewill take so as to ensure, so far as practicable , that the work fixed for a particular daywill be done during the course of that day.
237. During the absence of Judge, dates may have to be fixed or adjournmentsgranted by a Court official. The Judge should, on return to duty, satisfy himself thatproper dates were fixed and that the adjournments were properly granted.
238. The grant of adjournment is a matter within the discretion of the Court.The Court is not ordinarily bound to grant an adjournment and, before granting it, shouldusually require reasons to be stated unless it makes an adjournment of its own motion.
Adjournments are sometimes granted by Civil Judges to the plaintiff ordefendant merely because the other side does not object with the result that the durationof the suit in which such adjournments are granted is unduly and unnecessarilyprotracted. Such a practice is deprecated.
239. The Presiding Officer should be strict in granting adjournments. MoreConvenience of the lawyer or of the Presiding Officer is not a sufficient ground forgranting an adjournment.
Wherever two lawyers appear for a party in a Civil Suit, appeal or otherproceeding, no adjournment should ordinarily be granted on the ground that either ofthem is engaged in some other Court.
240. (i) When an adjournment is sought with a view to effect a compromise, the Courtshould exercise, its discretion with caution. An adjournment should not, as a rule, begranted unless the Court has reason to believe that there is every likelihood of acompromise being effected.
(ii) If an adjournment with a view to compromise is granted on a date fixed forevidence, the Court should take particular care to see that the witnesses in attendance are
not discharged, but are dieted for the next hearing. This will avoid an unnecessaryfurther adjournment for resummoning the witnesses and will enable the parties toproceed with their evidence in case the parties fail to come to terms. Repeatedadjournments to allow compromise should not be granted. It is preferable to grantadequate time for negotiations and make the adjournment final. However, further shortadjournment may be given if the Court is satisfied that though the compromise has notbeen effected, it is imminent.
241. A party has no right to an adjournment merely because it has filed a petition forrevision and has applied or intends to apply to the High Court for stay. The automaticgrant of adjournments in such cases encourages the filing of petitions for revision ofinterlocutory order solely for purpose of delay.
242. A party is not entitled as of right to an adjournment because the witnesses whohave been summoned have not appeared. Further, where witnesses have appeared but forany reason the trial cannot be proceeded with, their convenience should be borne in mindwhen adjourning the case.
243. When processes are returned unserved a considerable time before the date fixedfor hearing, it should be the duty of the Nazir to give out the processes for reservice ifthere is sufficient time before the hearing. General instructions should be issued tolawyers that they should ascertain a week before the date of hearing which of theprocesses are returned unserved, and then ask for the services of a special process serverto have them served at once. If they fail to do so, the parties should not be allowed toapply for a fresh service on the date of hearing.
244. When a party applies for a process or deposits the diet money too late to allow thewitness being served in time to reach the Court on the day fixed for hearing, noadjournment should ordinarily be granted to give the party a second opportunity toproduce the witness. If a party fails to produce a witness whom he has undertaken toproduce on a particular day, he should not ordinarily be given a second opportunity toproduce him.
245. A list of cases in which the plaintiff as his lawyer omits for a month to apply for afresh summons to a defendant should be brought up in Court to prevent their being lostsight of, and with a view to the plaintiffs or their lawyers being reminded of the necessityof taking the requisite steps.
246. After the examination of witnesses has begun, adjournments, if found necessary,should be from day to day or for very short intervals. Otherwise, the Court might have todetermine cases on evidence and impressions, which have been partially forgotten. If thedisposal of a suit is to be satisfactory, it must be on a consideration of evidence which isas fresh in the mind of the Judge as may be possible.
247. Arguments should be heard immediately after the evidence closes and a case,unless it is long and complicated should not as a rule, be adjourned for arguments after allevidence has been adduced. If any adjournment is necessary, reasons should be recordedby the presiding Judge and it should never be fore any but a very brief period.Arguments should not, except for good reasons, be heard piecemeal and where it is foundnecessary to adjourn a case for the hearing of further arguments, the adjournment shouldordinarily be to the next working day.
248. Ordinarily, the judgments should be delivered immediately after the argumentsare heard and in every case within fifteen days of the completion of arguments.
249. A case once closed and adjourned for arguments should never be permitted to bereopened by allowing parties to produce evidence unless for good cause clearlyestablished to the satisfaction of the Judge.