There are two types of rules, practical laws, and procedural laws.

Substantial laws are

regulations defining definitions of rights and responsibility (for instance, Indian Penal Code,
1860 lays down the offences of punishable nature). Instead, procedural laws provide
structures for regulating and enforcing those rights and responsibilities. They set the
equipment protocol to implement privileges and liabilities (for instance, Code of Civil
Procedure, 1908).

Dynamic legislation. This ensures law is open to changes to accommodate the community's
demanding demands. Changes to restore equilibrium. Although the rule is subject to change,
the main principle of law is based on the Latin maxim "salus populi suprema lex esto,"
meaning "the good of the people is the supreme law."

Code of Civil Procedure (Amendment) Act, 2002

The Code of Civil Procedure dates from 1908, governing all sorts of civil fraternity suits.
After the implementation date, the suits were revised several times for timely and prompt
action. With dramatic changes over time due to humongous pending litigation, society faced
delaying issues. The central government took a drive to curtail future opportunities and made
many rule amendments.

Due to the delay in ensuring multi-stage litigation justice, Parliament passed the 2002 Civil
Procedure Code (Amendment) Act.

The failure of the 1999 Amendment Act target, i.e. speedy and expeditious trial, led to the
enactment of the 2002 Amendment Act to remove the delays faced at the various levels of
litigation. It is one of Parliament's initiatives to make our democratic litigation more
competitive and quicker. It came into effect on July 1, 2002, pending 1999 Reform Act.
Following a long delay, Parliament made some dramatic changes to further enforce the
Code's rules.

Arun Jaitley introduced a new amending bill in 2002, taking into account recommendations
from bar owners, political parties and law commissions. The Standing Committee proposed
further improvements. All parliaments adopted the new measure in May 2002. The2002 Civil
Procedure Code (Amendment) Act was notified and came into effect after presidential
approval.

Key Highlights of the Amendment Act, 2002

Transfer of Decree (Section: 39)

• Section 39 sets out the terms under which a decree can be issued.

• In the case of an appeal for the transfer of a decree to another court for execution, two
things must be taken into account, firstly, that the subject-matter of the decree has the moral
right, not only the constitutional right, to have the decree moved for execution and, secondly,
that that clause is not relevant.

• In the case, though, the Court has a judicial discretion which can be seen by the word "may"
in the judgment. Thus, if the request for transfer is lawful, the fact that the reason for the
request for transfer is to put pressure on one of the debtors of the judgment is not the basis for
the denial of the request for transfer.

• The Government of India has directed the Law Commission to carry out a thorough revision
of the Code of Civil Procedure, 1908. The Commission took up the matter in January 1998
and agreed to carry out the exercise in two phases. In the first step, the Commission reviewed
the amendments introduced in the 1997 Bill to the Code of Civil Procedure (Amendment). At
the second point of the work, the Commission found the reform of the Code as a thorough
revision of the Code as a whole to take longer.

• The recommendations put out by the Law Commission in the 163rd Survey, led by B.P.
Jeevan Reddy, this paragraph (4) has been added to Section 39 in order to specify that
nothing in that section is to be read as an authorization for the Court to render an order
against an individual or property outside the local limits of its jurisdiction.

• The issue under discussion was that 'the Section uses the term 'can' which led to a dispute as
to whether the submission of an order to another Court by the Court of Justice is
discretionary? ”.
• It was recommended by the Law Commission that the usage of the word "may" in Section
39 does not imply that decisions may be made by the Court which passed the judgment,
irrespective of the geographical limits. The term "may" is used in situations where there are
conditions in which execution is considered unlawful. The whole scheme of the Code as
regards the jurisdiction may have been compromised by a particular opinion. It seems
desirable to explain the situation by adding the explanation set out below in Section 39 in
order to provide that nothing in that section is to be read as an authority in the Court of
Justice to render an order against an individual or property outside the local limits of its
jurisdiction. We propose, then,

No second appeal in certain cases (Section 102)

• The 1999 Reform Act repealed the following section:

"There is no second appeal in any suit of a nature recognized by the Courts of Small Causes
where the amount or value of the subject-matter of the original suit does not exceed three
thousand rupees."

• As it was pointed out to the opponents that it would foreclose second appeals if there was a
substantive case of law.

• The 2002 Reform Act corrected this exaggeration and replaced the following section:

"There shall be no second appeal under any decree where the subject-matter of the original
suit is for the recovery of money not exceeding twenty-five thousand rupees."

• Prior to all the Amending Acts, the second appeal of each suit of an identifiable type was
forfeited by the Courts of Minor Causes, where the sum or value of the subject-matter of the
original suit did not exceed three thousand rupees.

• The second appeal was repealed by the Code of Civil Procedure (Amendment) Act, 1999 in
all cases where the size of the subject-matter in the suit does not exceed 25,000 rupees.

• The reform Act of 2002 modified the situation and there is no second appeal in the case of
money suits where the subject-matter of the suit does not exceed 25,000 rupees.

Issue and Service of Summons (Order V)

• Order V of the Code provides for the issue and service of summonses. The Malimath
Committee looked at the issue of the shortage of cases in the Courts and proposed changes to
the Code with a view to providing a set timeline within which the pleadings should be
concluded.

• The 2002 Reform Act revised Rule 1 [Summons], Rule 9 [Delivery of summonses by the
Court] and Rule 9A [Summons to the claimant for service] of Order V.

• The consequence of the substituted sub-rule (1) of Rule 1 is that a summons must be made
to the defendant for deposition and address the plaintiff's argument on the establishment of
the suit by the plaintiff, as set out in the complainant, by filing a written declaration of his
defence, within 30 days from the date of the institution of the suit, except in a few cases.

• The first clause of sub-rule (1) of Rule 1 states that no warrant shall be made until the
defendant has arrived at the time of the filing of the case and has acknowledged the argument
of the petitioner.

• The second clause of sub-rule (1) of Rule 1 requires that, if the defendant may not file a
written statement within 30 days of the filing of the lawsuit, he may file the same statement
for reasons to be reported in writing which do not extend ninety days from the date of receipt
of the summons.

• Rule 9 of Order V has been supplemented by Rules 9 and 9A of the 2002 Reform Act.

• Sub-rule (1) and sub-rule (4) of Rule 9 allow for two separate situations for the issuance of
the summons to the defendant. In the first instance, if the suspect is beyond the jurisdiction of
the Court of which the case is brought or his representative, the summons shall be made by
the appropriate officer or delivery services as authorised by the Court. Second, if the
defendant remains outside the jurisdiction of the Court of First Instance in which the case is
filed, the Court may guide the summons by sending a copy of the summons by express mail
or courier services authorised by the High Court or through any other means of transmitting
records, including a fax or electronic mail service, at the expense of the petitioner (3).

• Often the suspect or his agent refuses or deliberately neglects the issuance of the summons,
which leads to a delay in the service of the summons. Sub-rule (5) of Rule 9 shall bring an
end to this condition and state that if the Court receives an acknowledgment or any other
receipt purporting to be signed by the defendant or his agent, endorsed by the postal worker,
that the defendant or his agent has declined to receive the delivery of the postal service or has
refused to accept the summons since it has been sent to him, the Court issuing the summons
shall announce that it has refused to accept the delivery of the postal service.

• Registered Post Acknowledgment Due can also be used as a summons service.

• Rule 9 empowers the High Court or the District Court to prepare a panel of courier
companies for summons services.

• In order to prevent delay in the issuance of the summons, the Court empowered the plaintiff
to serve the summons according to Rule 9A. It states that the Court, in addition to Rule 9 on
the application of the plaintiff, may award him the summons for the presence of the
defendant.

• Such service of summons by the petitioner shall be effected by delivery to the defendant in
person of a copy signed by the Judge and sealed with the seal of the Court or of any sort of
service specified in Rule 9(3) of the Rules of Procedure.

Plaint (Order VII)

• By the Code of Civil Procedure (Amendment) Act, 2002, Rule 9 [Claim Acceptance
Procedure], Rule 11 [Claim Rejection] and Rule 14 [Claim Rejection] have been revised and
Rule 18 [Claim Rejection] has been omitted.

• According to new Rule 9, the Court shall direct the claimant to send copies of the case
within seven days from the date of the ruling, along with the required charge for service to
the defendant (s). No time limit has been prescribed under the old law.

• The new law was meant to expedite the inconvenience frequently induced by the
complainant in taking action to serve the defendant's summons. Further, according to the old
law, there was a clause requiring the complainant to approve, on the plaintiff or annex
thereto, the list of records which he had submitted together with the plaintiff, or instead of a
copy of the plaintiff, to make concise claims of the existence of the allegation made or of the
relief claimed in the suit with the Prior of the Court, which the Court would grant on the basis
of the length of time required.

• In compliance with the latest rule 9, all of these provisions have been omitted when
considered redundant just to shorten the gaps in the follow-up of proceedings.

• Subclause (f) and (g) of Rule 11 as inserted in the 1999 Amendment Act were replaced,
namely-

'(f) where the claimant fails to comply with the conditions of Rule 9.'

• Clause (f) made it possible for the Court to dismiss the appeal where the claimant failed to
comply with the requirements of Rule 9 of Order VII.

• Sub-rule (3) of Rule 14 has been replaced by that meaning that the records must be created
by the complainant, which should have been drawn up during the filing of the lawsuit or
entered in the list or annexed to the complaint, with the leave of the Court, at the time of the
hearing of the case.

• The 2002 Reform Act omitted Rule 18.

Written Statement, Set-Off and Counter-Claim (Order VIII)

• Rule 1 [Written Declaration], Rule 1A [Written Statement], Rule 9 [Subsequent pleadings]

and Rule 10 [Procedure where the party fails to send a written statement required by the
Court] have been amended.

• In Rule 1, the suspect must send a written reply within thirty days from the date of the
summons. By the 2002 Amendment Act, the defendant may then file a written statement with
the consent of the Court, but not more than ninety days after the term has been prolonged by
the Court for purposes to be reported in writing.

• Therefore, the defendant must now file a written reply within thirty days from the date of
the warrant, but for purposes to be reported in writing, the time may be prolonged to ninety
days by the Judge.
• Sub-rule (3) of Rule 1A was repealed by the Reform Act of 2002. Law 1A was added to the
1999 Amendment Act and then modified by the 2002 Amendment Act.

• It specifies that a record which is to be produced by the defendant in compliance with that
law, but which is not so produced, shall not, without the leave of the Court, be received in
evidence on his behalf at the hearing of the case. Nothing in this provision refers to records –
(a) created for cross-examination of the witness of the appellant, or (b) turned over to a
witness simply to refresh his mind.

• Rule 9 of the Code of Civil Procedure (Amendment) Act, 2002 has been reinstated in the
same form verbatim, save for the inclusion of the words "not more than thirty days" after the
words "and fix a time" and before the words "for presenting the same" appearing at the end of
the rule. The consequence of the move is that the following pleadings shall have to be
submitted and the Court shall set a time limit of no longer than thirty days for the same
application.

• Rule 10, which was omitted by the 1999 Code of Civil Procedure (Amendment) Act, was
replaced by the 2002 Code of Civil Procedure (Amendment). It states that if any party to
which a written declaration is required pursuant to Rule 1 or Rule 9 fails to present the same
judgment within the time given or set by the Court as the case may be, the Court shall
pronounce a judgment against it or make an order in respect of the suit as it finds fit and, if
the judgment is pronounced, a decree shall be drawn up.

Appearance of Parties and Consequence of Non-Appearance (Order IX)

 Rule 2 [Dismissal of suit where summons not served in consequences of plaintiff’s

failure to pay costs] was substituted by Code of Civil Procedure (Amendment) Act,
2002.
 It states that where on the day fixed it is found that the summons has not been served
upon the defendant in consequence of the failure of the plaintiff to pay the Court-
fee or postal charges, if any, chargeable for such service or failure to present copies
of the plaint as required by Rule 9 of Order VII, the Court may make an order that
the suit be dismissed.
  The proviso to the rule states that no such order shall be made, if notwithstanding
such failure, the defendant attends in person or by agent when he is allowed to
appear by agent on the day fixed for him to appear and answer.

Hearing of the Suit and Examination of Witness (Order XVIII)

• Rule 2 [Statement and creation of evidence] and Rule 4 [Recording of evidence] were
revised by the Legislation on the Code of Civil Procedure (Amendment) of 2002.

• Sub-Rule 3A, 3B, 3C, 3D of Rule 2 of the Code of Civil Procedure (Amendment) Act, 2002
has been added.

• Sub-rule 3A of Rule 2 requires that each party can make oral arguments in a case and shall,
before completing oral arguments, if any, apply to the Court, if the Court so permits, in a
succinct manner and under different headings, written arguments in favor of its case, and
such written arguments shall form part of the record.

• Rule 3B of Rule 2 specifies that a copy of the written arguments must be sent separately to
the opposing side.

• Rule 3C of Rule 2 requires that no adjournment can be given for the purpose of filing
written arguments unless, for reasons to be reported in writing, the Court finds it appropriate
to grant such adjournment.

• Sub-rule 3D of Rule 2 specifies that, in a situation, the Court shall fix certain limitations on
oral arguments from any of the parties as it deems necessary.

• Consequently, the time limit for oral arguments will be set by the Court and, with the leave
of the Court, the parties may be allowed to file written arguments before completing oral
arguments in the case. No adjournments shall ordinarily be given for the purposes of the
filing of written arguments, unless the Court deems it appropriate to do so for the reasons to
be reported in writing.

• Rule 4 was replaced by the Code of Civil Procedure (Amendment) Act, 2002.
• In brief, Rule 4 specifies that the deposition of a witness shall be reported on an affidavit.
The Commissioner may perform and document cross-examination and re-examination of a
witness in the High Courts of First Instance and the High Court of Justice. Such proof shall
be registered either by the Court of Justice or by the Commissioner appointed by it.

• The Commissioner therefore has the right to record the testimony of a witness, and any
objection posed in respect of that matter shall be determined by the Court at the time of the
case.

• The Commissioner is required to submit his report within six months from the date of issue
of the report to the Commission.

• The court will decide the amount to be charged as remuneration for the services of the
Commissioner.

Judgment and Decree (Order XX)

• Rule 1 was amended by the Legislation on the Code of Civil Procedure (Amendment) of
2002.

• Sub-section (1) of Rule 1 was repealed by the Legislation on the Code of Civil Procedure
(Amendment) of 2002.

• It requires that, once the case has been considered, the Court shall, either at once or as soon
as possible, pronounce judgment in an open court and, whether the judgment is to be
delivered on a future day, the Court shall set a date for that reason, to which the parties or
their pleadings shall be provided due notice.

• The sub-rule states that, if the judgment is not delivered at once, any attempt shall be made
by the Court to pronounce the judgment within thirty days from the date of the end of the
hearing of the case however, where it is not practicable to do so on the basis of the
extraordinary and exceptional circumstances of the case, the Court shall set a future date for
the hearing of the case.

• In other words, there is a clear timeline for the sentences to be pronounced after a lawsuit
has been considered. The general rule is that a judgment must be pronounced at once and, if it
is not possible to do so, the Court must attempt to render a judgment within thirty days from
the date of the completion of the trial of the case.

• If it is not necessary for the Court to give its judgment within thirty days on account of the
extraordinary and exceptional circumstances of the case, the Court shall set a date for the
judgment which shall not extend sixty days from the date on which the case has been heard.

Execution of Decrees and Orders (Order XXI)

• Rule 32 and Rule 92 were revised by the Legislation on the Rules of Civil Procedure
(Amendment) of 2002.

• An clarification has been added according to sub-rule (5) of Rule 32. It says that 'in order to
eliminate concerns, the phrase 'act needed to be completed' extends to all prohibitive and
obligatory injunctions.

• Controversies emerged as to the interpretation of the words "required to be done" in sub-

rule (5) of Rule 32. Can these terms apply to circumstances when a prohibitive order has been
included in the decree or are limited to cases where the decree is a mandatory one. Different
High Courts have held different opinions on the issue. The disagreement was settled by
introducing the present explanation, which takes a broader perspective.

• In sub-rule (2) of Rule 92, the words "thirty days" were replaced by the words "sixty days."

• After the first clause of sub-rule (2) of Rule 92, the following provision was inserted:

'Provided, further, that the deposit under this sub-rule must be made within sixty days in all
such cases where the span of thirty days within which the deposit had to be made had not
elapsed before the beginning of the Code of Civil Procedure (Amendment) Act, 2002.

• The amendment to Rule 92 was rendered on the recommendation of the Law Commission
in its 139th Report (Page No. 08) to harmonize the terms of sub-rule (2) of Rule 92 and of
Article 127 of the Indian Restriction Act, 1963. The time for making a deposit pursuant to
sub-rule (2) of Rule 92 before the present amendment was thirty days, while, pursuant to
Article 127 of the Limitation Act, 1963, the limitation period for making an application for
cancelation of an execution sale (which must be followed by a deposit of the required
amount) is sixty days.

Constitutional Validity of Code Of Civil Procedure (Amendment) Act, 2002

• In the case of the Salem Advocate Bar Association v. Union of India, the written petition
was filed by Advocate T. Raja seeking to appeal the changes rendered to the Code of Civil
Procedure, 1908, by amendment of the Statute, 2002.

• A tribunal of three judges, consisting of Chief Justice B.N.Kirpal, Justice Y.K. Sabharwal
and Justice Arijit Pasayat, ruled that "We do not find that the amended provisions are in any
way ultra vires to the Constitution."

• Judges have been drawn to the various provisions of the amended Parts and Orders of the
Code of Civil Procedure (Amendment) Act, 2002.

• It was noted that "Amendments to the decision of the Court are constitutionally legitimate
and, if any difficulties exist, can be submitted to the Commission. The Committee will
consider these problems and make valuable recommendations in its findings.

• The Bench argued that, taking into account the growing volume of legal cases and the small
number of judges, changes are necessary to the early settlement of the conflict.

Conclusion
• "The power of judicial discretion shall go hand in hand with arbitrary action."

• Such court rulings result in undue delays. The 2002 Amendment Act set out a number of
time limits which connect both the complainant and the defendant at each point of the
conflict. These constraints have contributed to the speeding up of the legal process.

• The conceptualization of the notion of proof by affidavits, as well as the implementation of

a court-appointed commissioner, have reflected in the objectivity of this provision, i.e. swift
and expeditious justice.

• The lag behind the justice system due to excessive delays can now be sufficiently resolved
by the limitations set and by allowing for the imposition of costs, including punitive costs.

• Failure on the part of the judiciary to offer sufficient and readily available justice is one of
the key sources of general discontent with the administration of justice.

• The definition of "access to justice" has undergone substantial change. The aim of the Code
of Civil Procedure (Amendment) Act, 2002 is to ensure speedy and efficient justice.

VIDYABAI AND OTHERS V. PADMALATHA AND ANOTHER 1

Facts

It will have been the same, of course, in the awareness of the defendants right from the date
and when they say that the mother-in-law of Defender 1 is still a necessary party and that she
still has a right and an interest in the suit property and that she is alive, then, through her
defendants, she must have known about the will right from the beginning and it cannot be
argued that Defender 1 took time to collect facts.

Issue

The question which arises for consideration is as to whether the trial had commenced or no?

Judgement

It must be clear that the tribunal is an act of evidence or judicial review or assessment of the
issues, including its own jurisdiction or power, in compliance with the statute, or a verdict on
the guilt or innocence of the convicted, including any required steps thereto.

1
2009 AIR SC 0 899
As noted above, the High Court argued that filing an affidavit alone would not mean that the
trial had begun.

Sub-rule (2) of Rule 4 of Order 18 of the Code of Civil Procedure allows for the cross-
examination and re-examination of a witness by a judge or a commissioner named by that
court."

We may recall that in Ajendraprasadji N. Pandey v. Swami Keshavprakeshdasji N. this Court

acknowledged the decision of this Court in Kailash to hold:

We have also closely reviewed the pleadings, the annexes, the various directions given down
by the following judges, the High Court and this Court.

This evoked much controversy/hesitation around the country and also led to a boycott of the
courts and the 2002 Civil Procedure Code (Amendment) Act, a clause that was reinstated by
acknowledging the power of the court to approve an amendment with a certain restriction
contained in the new provision applied to the law.

Salem Advocate Bar Association, T.Nadu v. Union Of India2

Facts

However, Mr Vaidyanathan has drawn our attention to some of the changes that have been
introduced in order to demonstrate that there might be some realistic problems in applying the
same. He also argued that some explanation may be required. We shall deal with those
provisions at the present time. It was argued by Mr. Vaidyanathan that the words "on such a
day not more than thirty days from the date of the institution of the suit" seem to suggest that
the summons must be issued within thirty days from the date of the institution of the suit. Mr
Vaidyanathan argued that, if the original decree is overturned by a single judge of the High
Court, provision should be made for the filing of letters of patent appeal.

ISSUE

These writ petitions have been filed seeking to challenge amendments made to the Code of
Civil Procedure by the Amendment Act 46 of 1999 and Amendment Act 22 of 2002.
2
(2003) 1 UC 143
REASONING

In our opinion, the said provisions read as a whole will not be susceptible to that meaning.
The words added by amendment, it appears, fix outer timeframe, by providing that steps must
be taken within thirty days from the date of the institution of the suit, to issue summons. In
other words, if the suit is instituted, for example, on 1st January, 2002, the the correct
addresses of the defendants and the process fee must be filed in the Court within thirty days
so that summons be issued by the Court not beyond thirty days from the date of the institution
of the suit. The object is to avoid long delay in issue of summons for want of steps by the
plaintiff. It is quite evident that if all that is required to be done by a party, has been
performed within the period of thirty days, then no fault can be attributed to the party. If for
any reason, the Court is not in a position or is unable to or does not issue summons within
thirty days, there will, in our opinion, be compliance with the provisions of Section 27 once
within thirty days of the issue of the summons the party concerned has taken steps to file the
process fee along with completing the other formalities which are required to enable the
Court to issue the summons.

DECISION

It would be open to the Committee to seek directions. The Committee is requested to file its
report within a period of four months. To consider the report, list these petitions after four
months. Copies of this judgment be sent to the Registrars of all the High Courts so that
necessary action can be taken by the respective High Courts and any writ petition pending in
those High Courts can be formally disposed of.