Module 03: Preliminary procedures, issues, hearing and Judgements and

orders
1. Short note: Inherent powers of court (05 marks) (June 2023)
2. Explain the procedures as regarding withdrawal or compromise of
suits (10 marks) (January 2023)
3. Short note: Framing of issues (05 marks) (January 2023) (05 marks)
(July 2022)
4. Short note: Interrogatories (05 marks) (January 2023)
5. Explain how the object ‘to expedite the disposal of civil suits in
proceedings so that justice may not be delayed is achieved by
amendment in CPC,1908 w.e.f 1-07-2002
(15 marks) (July 2022)

6. Explain as to when a court may issue a commission for the

examination? (10 marks) (July 2022)

Module 03: Preliminary procedures, issues, hearing and Judgements and

Orders

1. Short note: Inherent powers of court (05 marks) (June 2023)

Inherent Powers of Court under CPC

The inherent power of court under CPC is something it has just because it’s a
court and can handle cases. This power is part of the law and it includes
everything a court can do. Sections 148 to 153-B of the Civil Procedure Code,
1908 talk about these inherent powers, but they only apply to courts, not other
authorities.
The word “inherent” means something that is natural or always connected to
something else. So, when we talk about inherent powers, we mean the abilities a
court has to make sure everything is fair and complete in a case.

The Code has rules, but they can’t cover every situation because the people who
make the rules can’t predict everything that might happen in the future. That’s
when these inherent powers come into play. They can be used when there are no
specific rules in the Code to handle a situation and they are used to make sure
things are fair and just.

What are Inherent Powers of Court under CPC?

The inherent powers of court refer to the abilities that the court possesses, even
though they are not explicitly mentioned in the Code of Civil Procedure. While
the Code of Civil Procedure outlines the procedures that Civil Courts must
follow when delivering justice, it cannot cover every possible situation that may
arise. Therefore, courts are granted additional powers to address specific
emerging situations or prevent misuse of the legal process.

These inherent powers of court can be exercised as a matter of justice when

there are no specific provisions in the Code of Civil Procedure. However, it’s
important to note that these powers cannot be used in a way that contradicts or
ignores the existing laws.

In the case of Durgesh Sharma v. Jayshree (AIR 2009 SC 285), the court
emphasised that inherent powers under CPC should not be used in violation of
specific legal provisions.

In the case of Mahendra Manilal Nanavati v. Sushila

(MANU/SC/0192/1964: AIR 1965 SC 364), the Supreme Court explained that
the Code of Civil Procedure is designed to address procedural matters in civil
trials. It grants courts certain hidden powers to deal with unforeseen situations
during proceedings, but these inherent power of court can only be invoked when
there are no explicit provisions in the Code. If there are specific provisions in
the Code, the court cannot use its inherent powers.

Sections 148, 149, 151, 152, 153 and 153A of the Code of Civil Procedure,
1908, outline the law regarding the court’s inherent powers in different
circumstances.

Provisions for Inherent Powers of Court under CPC: Section 148 to 153B
of CPC

The law concerning the inherent powers of Court can be found in Section 148 to
Section 153A of the Civil Procedure Code. These sections outline how the
court’s inherent powers can be exercised in various situations. Here’s a
breakdown of the provisions related to the inherent powers of the courts:

 Section 148 and Section 149: These sections deal with the granting or
extension of time.
 Section 150: This section addresses the transfer of business from one
court to another.
 Section 151: Section 151 safeguards the inherent powers of the courts.
 Section 152, 153 and Section 153A: These sections cover the
modification of judgments, decrees, or orders, as well as separate
proceedings.
These sections collectively provide a framework for the court to utilise its
inherent powers in specific circumstances as outlined in the Code of Civil
Procedure.

Enlargement of Time [Section 148, CPC]

Section 148 of the CPC explains that when the court sets a specific time frame
for performing an action as required by the CPC, it has the authority to extend
that period. This extension can happen multiple times, even if the original time
limit has passed.

In simpler terms, if the law sets a deadline for doing something, the court can
give you extra time, up to 30 days, if there’s no other rule that says otherwise.
However, the court has the freedom to decide whether or not to grant this extra
time and the extension can only apply to the originally set time frame. It’s a
discretionary power.

Payment of Court Fees [Section 149, CPC]

Section 149 of the CPC allows the court to give someone a chance to pay the
required court fee if they haven’t paid it fully or partly as required by the law
for documents like complaints or appeals. This permission can be granted even
after the time limit for filing the lawsuit or appeal has passed.

In simple terms, when a document needs a specific court fee, it’s crucial to pay
it on time. If it’s not paid in time, the document could be considered as filed too
late (time-barred). However, Section 149 lets the court decide whether to let you
pay the missing fee later. If the court agrees, your document will be treated as if
you paid the fee on time from the beginning.

This power of the court is discretionary and should be used in the interest of
justice.

Conditions For Enlargement of Time by Courts

In the case of Mahanth Ram Das v. Ganga Das (MANU/SC/0027/1961: AIR

1961 SC 882: 1961 3 SCR 763), the issue revolved around a shortage of court
fees that the appellant needed to pay by a certain date. However, the appellant
couldn’t pay on time and requested an extension well before the deadline.

The High Court didn’t consider this request due to an earlier strict order issued
by the Division Bench handling the appeal. This was mainly because the
application for the extension of time was made after the initial deadline had
passed.

The Supreme Court ruled that Section 148 of the CPC provides the court with
significant authority to ensure justice for a litigant if there is a valid reason for
an extension. Another order extending the time for payment, even if granted
after the original deadline, can be effective from the date when the initial
deadline expired. The High Court, in this case, made a mistake by not granting
the extension of time.

In another important case, Johri Singh v. Sukh Pal

Singh (MANU/SC/0245/1989: 1989 4 SCC 403: AIR 1989 SC 2073: 1991 BC
84 (SC): JT 1989 (3) SC 582: 1989 96 PLR 617: 1989 2 SCALE 518: 1989
Supp 1 SCR 17), the Supreme Court emphasised that the power granted by this
section is discretionary in nature. The court can use this inherent power of court
under to serve the cause of justice, but it is not an automatic right for the party.
Before exercising this power, the court should consider all the facts and
circumstances of the case, including the behavior of the applicant.

Transfer of Business [Section 150, CPC]

Section 150 of the CPC states that unless there is a different arrangement in
place, when the functions or responsibilities of one court are transferred to
another court, the receiving court will have the same authority and
responsibilities as the original court.
In other words, if Court A’s tasks and powers are transferred to Court B, Court
B will assume the same legal authority and duties that were originally
designated for Court A under the CPC.

Saving of Inherent Powers of Court: Section 151 of CPC

Section 151 of the CPC, which deals with the “Saving of inherent powers of
Court,” ensures that nothing in the CPC can limit or interfere with the inherent
power of the Court to issue orders that are necessary for the interests of justice
or to prevent misuse of the legal process. In other words, the court is not bound
by strict legal provisions and has the discretion to make orders that are not
explicitly provided for in the law, as long as it serves the cause of justice or
prevents abuse of the legal system.

Here are some examples of how Section 151 of the CPC can be applied:

 Correction of Errors: The court can review its own orders and correct
any mistakes.
 Provisional Measures: It can grant temporary injunctions when a case
doesn’t fall under the provisions of Order 39, or it can set aside an ‘ex
parte’ order.
 Setting Aside Illegal Orders: The court has the power to nullify orders
that were made unlawfully or without jurisdiction.
 Consideration of Subsequent Events: It can take into account events
that occurred after a case was initiated.
 Privacy of Proceedings: The court can decide to conduct a trial ‘in
camera’ (in private) or protect the confidentiality of its proceedings.
 Erasing Remarks: It can remove unfavorable remarks made against a
judge.
  Improving a Suit: The court can amend a lawsuit and re-hear it on its
merits or re-examine its previous orders.
In essence, Section 151 grants the court the flexibility to take actions that may
not be explicitly outlined in the law but are necessary to ensure justice is served
and the legal process is not misused.

Ends of Justice

In the case of Debendranath v. Satya Bala Dass, the meaning of “ends of

justice” was clarified. It was emphasised that “ends of justice” are not just polite
words but carry profound significance in legal practice. These words signify
that justice is the ultimate goal and purpose of all legal proceedings. However,
this expression is not vague; it aligns with the principles of justice as defined by
the laws and statutes of the land.

The court can invoke its inherent powers of civil court to serve the “ends of
justice” in various situations, such as reviewing its own orders to correct errors
or issuing injunctions when not explicitly covered by Order 39, including ‘ex
parte’ orders and more.

Abuse of Process of the Court

Section 151 of the CPC allows for the exercise of inherent powers to prevent the
abuse of the court’s processes. When the court’s powers are misused unfairly to
the detriment of a party, remedies can be granted to ensure that no one is
unfairly prejudiced. These remedies are based on the court’s inherent powers.

The term ‘abuse’ occurs when the court uses its authority in a manner that it
should not, resulting in an injustice. In such cases, the court should remedy the
harm done to the party based on the principle that “an act of the court shall
prejudice no one” (actus curiae neminem gravabit). A party can be considered
the perpetrator of abuse when it engages in actions such as fraudulently
obtaining benefits from the court or another party, causing unnecessary multiple
legal proceedings and so on.

When Can A Court Exercise Inherent Powers?

ISection 151 of the CPC does not introduce a new power to the court but
acknowledges the court’s inherent power to take certain actions in the interest of
justice. This inherent power of court is invoked to achieve substantial justice
and is considered an extraordinary measure, not a mandatory one. It comes into
play when there is no other adequate remedy available and helps overcome
difficulties arising from procedural rules. Here are some circumstances and
cases in which a court can exercise its inherent powers under Section 151:

 Consolidation of Suits and Appeals: The court can consolidate multiple

suits and appeals, even without the consent of the parties.
 Joint Trial of Suits: It can order the joint trial of separate suits if it
serves the interests of justice.
 Verification of Proper Parties: The court can verify whether the correct
parties are involved in the case.
 Adding a Third Party: It may entertain an application from a third
person seeking to be added as a party to the case.
 Defence in Forma Pauperis: The court can permit a defendant to present
their defense as a pauper (without paying fees) in appropriate cases.
 Suspending or Amending Its Orders: In the interest of justice, the court
may delay or modify the execution of its own orders.
 Application of Res Judicata: It can apply the principles of res judicata
to cases not explicitly covered by Section 11 of the CPC.
 Adding a Party: The court can add a party to a case when necessary.
  Contempt of Court: The court can summarily punish contempt of court
by imprisonment.
 Transposing Parties: Parties may be shifted or rearranged in the case.
 Withdrawal of Plaintiffs: The court can refuse permission to a co-
plaintiff who wants to withdraw from a suit without intending to file a
fresh suit on the same cause of action or impose conditions on
withdrawal.
 Stay of Proceedings: It can stay proceedings in anticipation of an
intended appeal.
 Jurisdiction: The court can decide questions of jurisdiction and, if
necessary, determine that it lacks jurisdiction over the suit.
 Restoring Dismissed Suits: In cases not covered by Rule 9 of Order 9,
the court can restore a suit that was dismissed for default.
 Refund of Court Fee: It can order the refund of court fees paid
inadvertently.
 Stay of Suit: The court can stay a suit that does not fall under Section 10
(Res sub judice).
 Reconstruction of Records: In cases where court records are lost due to
accidents, the court can order their reconstruction.
These are some examples of the situations in which a court can invoke its
inherent powers under Section 151 of the CPC to ensure justice is served and to
address unique or unforeseen circumstances that may not be explicitly covered
by standard procedural rules.

When Cannot A Court Exercise Inherent Power?

Section 151 of the CPC is primarily aimed at achieving justice and rectifying
wrongful actions in cases of abuse of the court’s processes, fraud, or
misrepresentation by a party, or in situations where there is a lack of procedural
rules to address specific circumstances in a case. However, while invoking
inherent powers of court, the court must ensure that it does not undermine this
objective.

It’s important to note that inherent powers cannot be exercised when there is a
specific provision in the code that addresses the issue. In such cases, the code
takes precedence.

Here are some situations in which inherent powers of court under CPC should
not be used:

 Interim Relief: Inherent powers should not be used to grant interim relief
that is typically granted only through a final decree after the resolution of
the main issues in the case.
 Compelling Medical Examination: The court should not use inherent
powers to compel parties to undergo medical examinations or blood tests,
as specific provisions often govern such matters.
 Appointment of a Commissioner: Inherent powers of court under CPC
should not be used to appoint a commissioner to seise account-books in
the possession of the plaintiff, as this can be governed by specific
procedures.
 Order Review: While Section 151 allows for the exercise of inherent
powers, it should not be used to reconsider or review an order, as the CPC
provides distinct mechanisms for this purpose.
 Setting Aside an Ex Parte Decree: Specific provisions in the CPC deal
with setting aside ex parte decrees, so inherent powers of court should
not be invoked for this purpose.
 Striking a Defence: Inherent powers should not be used to strike a
defense when other specific provisions govern such actions.
  Restoring Dismissed Suits: If a suit is dismissed for non-payment of
court fees under Rule 11(d) of Order 7, inherent powers of civil court
should not be used to restore it unless specific conditions are met.
 Refunding Court Fees: Inherent powers of court should not be used to
refund court fees on a review application unless it is based on grounds
other than a mistake of law or fact.
In the context of the relevant provisions of the Civil Procedure Code (CPC), it’s
unnecessary to engage in a detailed or exhaustive examination of the
circumstances in which a court has inherent jurisdiction, as long as we
understand the accepted and acknowledged limitations on the existence of such
jurisdiction.

It is widely recognised that the inherent power of the court cannot supersede the
express provisions of the law. In simpler terms, if the CPC contains specific
provisions that deal with a particular matter and those provisions explicitly or
by necessary implication encompass the extent of the court’s powers or
jurisdiction concerning that matter, then the court’s inherent power under
Section 151 of the CPC cannot be invoked to circumvent or override the powers
granted by the CPC.

It’s important to note that this prohibition need not be explicitly stated in the
CPC but can be implied or inferred from the very nature of the provisions it
includes to address specific situations. This principle is well-established in legal
jurisprudence, as illustrated in the case of Arjun Singh Vs. Mohindra Kumar
(AIR 1965 SC 993).

Limitations

Section 151 of the Civil Procedure Code grants the court certain inherent
powers, but these powers have limitations:
Not in Conflict with CPC

The inherent power under Section 151 of the CPC is meant to complement and
work alongside the powers explicitly provided in the CPC. It should not
contradict or go against any of the powers granted by the CPC, whether directly
stated or implied. If the CPC covers a particular issue, Section 151 cannot be
used. This has been established in various legal cases, such as Vareed Jacob
Vs. Sosamma Geevarghese, Mahoharlal Chopra Vs. Rai Bahadur and Ram
Chand & Sons Sugar Mills Vs. Kanhyalal Bhargava.

Cannot Nullify CPC Provisions

The inherent power under Section 151 cannot be employed to nullify the
provisions of the CPC. If the CPC explicitly addresses a matter, it should
generally be considered as comprehensive. This principle is outlined in cases
like State of U.P. Vs. Roshan Singh and National Institute of Mental Health
& Neuro Sciences Vs. C. Parmeshwara.

Statutory Provisions Prevail

Section 151 cannot be used when there is a statutory provision in the CPC that
addresses the same issue. For instance, if an application can be dealt with under
specific provisions of the CPC, invoking Section 151 is not appropriate. This
concept is illustrated in cases like Satya Prakash Tiwari Vs. Civil Judge (Jr.
Div) Etawah & Others, which cited legal precedents including Vareed
Jacob Vs. Sosamma Geevarghese, Arjun Singh Vs. Mohindra Kumar,
Atmaram Properties Private Limited Vs. Federal Motors Private Limited,
Chitivalasa Jute Mills Vs. Jaypee Rewa Cement, Naina Singh Vs.
Koowarjee and State of W.B. Vs. Karan Singh Binayak.

No Alternative Remedy
Section 151 of the CPC should not be used when there is an alternative remedy
available. Its purpose is to complement, not replace, the remedies provided by
the CPC. If there is a specific provision or alternative recourse under the law,
Section 151 should not be invoked. This principle was upheld in the case of
State of U.P. Vs. Roshan Singh.

Amendment of Judgments, Decrees, oOders and Other Records [Section

152, CPC]

Section 152 of the CPC addresses the “Amendment of judgments, decrees and
orders.” Under this section, the court has the authority to correct any written or
mathematical errors in judgments, decrees, or orders. It also allows for the
rectification of mistakes that arise due to an unexpected oversight or
imperfection.

Section 153, on the other hand, provides the “General authority to amend.” This
section grants the court the power to rectify any errors or faults in the
proceedings of a lawsuit. It enables necessary corrections to be made to address
issues that have been raised or that are relevant to the ongoing proceedings.

Both Section 152 and Section 153 of the CPC emphasise that the court can
rectify any errors in its records at any time during the legal process.

Additionally, Section 153A and Section 153B of the CPC,1908, deal with the
power to amend a decree or order when an appeal is summarily dismissed and
the determination of the place of the trial, respectively. These sections provide
specific provisions for addressing certain situations in the legal process.

Conclusion

The Inherent Powers of the Court under the Civil Procedure Code serve as a
vital tool to ensure justice prevails in situations not explicitly covered by the
CPC’s provisions. While Section 151 of the CPC empowers the court to take
actions necessary to prevent abuse of the legal process, it is not a carte blanche
authority.

These inherent powers of court are subject to well-established limitations. They

cannot supersede specific provisions of the CPC, nullify its provisions, or be
invoked when alternative remedies exist. Courts must exercise these powers
judiciously, adhering to the overriding objective of upholding justice.

In essence, inherent powers of court are a necessary supplement to the CPC,

stepping in to address unique and unforeseen circumstances that demand the
court’s intervention while preserving the integrity of established legal
procedures.

2. Explain the procedures as regarding withdrawal or compromise of

suits (10 marks) (January 2023)

Withdrawal of Suit

Abstract:

Order 23 of Civil Procedure Code, 1908 arrangements with withdrawal opposite

announces the impacts of withdrawal. It implies the deserting of part of a case
in a suit and bargain of suits i.e., changes of the suit. Division of Withdrawal of
suit is into two viz., a) Absolute withdrawal and b) qualified withdrawal.
Absolute withdrawal implies withdrawal without the leave of the court while
qualified withdrawal implies withdrawal with the leave of the court as depicted
under the Civil Procedure Code. It should be underlined that the court has the
attentiveness to concede leave for withdrawal either suo moto or on the
utilization of the plaintiff. However, the award of leave to pull out the suit with
the freedom to record a new suit properly eliminates the bar of rest judicata that
limits the documenting of a new suit.

Introduction:

“Withdrawal of suit (also known as abandonment of suit) means a retraction or

secession of a previously held position by the parties in a legal proceeding.”

– Chancery Law Chronicles

Under Order 23 of Code of Civil Procedure,1908 deals with withdrawal and
compromise of suits. Withdrawal of Suits or abandonment of There are two
types of withdrawals;

1.Absolute Withdrawal: Withdrawal without the leave of the court

2.Qualified Withdrawal: Withdrawal with the leave of the court.

As long as the plaintiff does not institute a suit he doesn’t need to leave the
court to file a fresh suit. An application is filed under Order 23 Rule 1(3) CPC,
the court need to look after whether any of the two reasons spelled out under
Order 23 Rule 1(3) CPC, 1980, which is instituted and only when anyone of
these two reasons gets attracted, freedom can be given for withdrawing the suit
and to file a new suit.

Significance of this development:

Under Order 23 it clearly mentioned that at any point of time after the
institution of a suit plaintiff may or against any of the defendants abandon his
suit. Proviso related to Rule 1 to 14 that if the plaintiff is minor then neither the
suit or the any part of the claim shall be abandoned until the court satisfies it or
leave the court. If the pleader is minor or any such person is represented, by a
certificate of the pleader to the effect that the proposed is, in his opinion, for the
benefit of the minor it is under the proviso to sub-rule (1) it shall be
accompanied by an affidavit of the next friend.
Provision related to order 23:

Withdrawal without leave of court Rule 1 (1):

Rule1(1) provides for the withdrawal of suits without the leave of the court.
Under Rule1(1) states that if any plaintiff may abandon his suit or abandon a
part of his claim against all or any of the defendants without the leave of the
court. The right is absolute and unqualified and the courts cannot refuse
permission to withdraw a suit and compel the plaintiff to proceed with it. The
principle underlying Order 23 Rule 1is that once a plaintiff invokes the
jurisdiction of the court and institute a suit, he cannot be permitted to institute a
fresh suit in respect of the subject matter again if he withdraws such suit without
the authorization of the court to file a new fresh suit.

Maxim “(Invito beneficium non datur)” which means “The law confers, upon a
man no rights or benefits which he does not desire”.

Grounds:

Permission may be granted by the court on following grounds:

1. Formal defect:

Although the expression “Formal defect” has not been clearly mentioned in the
code, it confers some defect of form or procedure which shall not affect the case
merits. But if there arouse a defect which affects the merits of the case, or a
defect which goes to the fundamental of the plaintiff’s case cannot be called as a
formal defect. Such as non-joinder of parties, bar of limitation.

2. Sufficient Grounds:

The expression “sufficient grounds” need not generally be constructed “ejusdem

generis” (of the same kind or nature) with formal defect.

For instance, where the suit was premature, or it had become infructuous, or
where if the defendant is failed or absent even the decree passed it could not be
executed or there was an omission to file a power of attorney, then it can be
termed as sufficient ground. A wider meaning of sufficient ground can be (“ex
debito justitiae”) exercising power in the interest of justice. If the defendant is
dead or there is no notice served or the plaintiff is not ready with the suit at that
time this power cannot be exercised.

3. Effect of leave:

It is in the discretion of the court to grant such permission and it can be granted
by the court either on an application of the plaintiff or even suo motu. The
granting of permission granting to withdraw a suit with a autonomy to file a
fresh suit removes the res judicata bar.

In the case of Kasturi Lal Jain and Others v. Madan Lal Jain and
Others held that the Delhi High Court had not allowed two plaintiffs to
withdraw a suit on behalf of all the plaintiffs who served a notice on rest of the
plaintiffs who did not give consent to such withdrawal. In the above case
mentioned, the Delhi High Court allowed the barred the suit to be restored.
In Mohan Lal v. Nain Singh and Others, the High Court of Allahabad held
that a suit which is instituted by three plaintiffs has been withdrawn by only two
plaintiffs of the mentioned above plaintiffs, if there is no consent given by the
third plaintiff then such withdrawal can be termed as “non-est” in the eyes of
law.

Suit by minor rule 1(2):

A specific provision has been made by the amendment Act of 1976, that if the
plaintiff is a minor, then neither the suit nor any part of the claim can be
withdrawing without the court leave.

Withdrawal by one of the plaintiff:

Where there are more than two plaintiffs in a suit, the suit or any part of the
claim cannot be abandoned without the consent of all the plaintiffs for own
interest

Condition for compromise of suits:

1) Must be agreement

2) Signed by parties

3) Required lawful

4) Record by the court

5) A consent decree must be passed

Analysis:

The procedures of execution of decree or order and withdrawal of suits are

independent of every other and completely different in contexts. As a matter of
fact, executing proceedings can’t be applied over the withdrawal of
proceedings. It’s often summarised that withdrawal of suit is often made by the
plaintiff or court by himself needless of the notice or leave obtained by a court
or not, the plaintiff is under the requirement plaintiff got to restore all
advantages which he may have accumulated by the virtue of any interim order
gone by the court. With an equivalent explanation for action court bears
peculiarity as different cases for determining the bar of res adjudicates for
filling a fresh suit. Similarly, no appeal lies against such withdrawal which is
nether order or decree but since the discretion of the court is formed in sort of
an order for granting or refusing the appliance of withdrawal, so it might be
taken as like all other orders.

Conclusion:
The researcher concludes that Order 23 states the effects of withdrawal. The
court has the right to discretion which is under Court against which it can give
grant leave for withdrawal either “suo moto” or on the given application of the
plaintiff. It removes the bar of res judicata that restricts the filing of a fresh suit
if the liberty to file a fresh suit removes with the Grant of leave to withdraw the
suit.

Further, the researcher is of the opinion that the dispute concerning the purity of
compromise could be raised; which is lying with the court that the consent
decree duly passed with the recorded compromise. Although, it is pertinent to
look after that any agreement or compromise within the meaning of Rule 3
flows from a void or voidable contract which is not lawful under the Indian
Contract Act, 1872.

Therefore, the researcher wants to state that a compromise decree should neither
be misunderstood as a decision of the court nor can it operate as res
judicata because a compromise decree is between the parties of the suit which is
merely acceptance by the court to the agreement.

Compromise of suit

Order 23 Rule 3 CPC

Introduction

In India given the lengthy litigation compromise is a common practice adopted

by the parties to the civil suit for the speedy redressal of the suit. The word
“compromise” means the act of negotiation where both parties exchange
something to obtain a middle ground and arrive at a mutual conclusion. It is a
give-and-take to settle the dispute.
In other words, a compromise is an agreement between the parties arranged to
settle the dispute by mutual consensus. It is a tradeoff parties choose to avoid
lengthy litigation and put an end to the dispute.

Conditions of compromise of suit

A lawful consent decree must have been passed

The parties to compromise should engage in the subject matter which is

opposed by law. It should not be against public policy, immoral, or violated by
statutory law. The compromise is void if the subject matter is illegal. An
agreement not enforceable by law is void.

There must be an agreement or compromise

Parties should agree and arrive at a common conclusion. Both parties must have
agreed and negotiated their terms and conditions in the agreement.

It must be in writing and signed by the parties

A compromise agreement should be in writing so as to avoid any ambiguity and

future uncertainty.

It must be recorded by the court

The court, if satisfied with the compromise agreement of both parties to the
dispute may record the compromise decree. Whenever the decree is recorded in
a court of law, it is legally binding.

Minor cannot enter into compromise without appropriate representation

by a proxy
Minor is to be represented by a guardian or any such person appointed to act on
his behalf. The representative so appointed cannot, without the consent of the
court, enter into a compromise agreement.

Order 23 CPC – Compromise of suit

Parties having a dispute come together and jointly decide to settle the conflict
between them instead of taking the full course of a formal civil suit. Order 23
Rule 3 of the Code of Civil Procedure, 1908 states that when the parties have
made an arrangement to settle the dispute entirely or in part the court if it is
satisfied shall pass the decree to such effect and record the same. The agreement
should be legal, in writing and signed by the parties. It should not be opposed to
law and public policy.

Order 23 Rule 3 CPC

Where the court is convinced that the parties have mutually settled the dispute
either completely or partly, the court shall record and order the decree for the
same. Indian Contract Act (1872) stipulates agreement with mistake to the
essential fact, unlawful consideration, agreement with the restraint of trade and
legal proceeding, to do an impossible act as void or voidable under the Indian
Contract Act, 1876 will not be considered lawful under this rule. An agreement
void or voidable in accordance with the Indian Contract Act 1872 will not be
considered lawful under this provision.

Order 23 Rule 3A CPC – Bar to challenge compromise decree in a separate

suit
Order 23 Rule 3A expressly bars instituting a fresh suit for which a compromise
decree is passed. It can only be probed by the same court which recorded the
compromise. In Triloki Nath Singh vs Anirudh Singh (D) Thr. Lrs (2020), it
was held that the suit for a declaration which was filed before the civil court
was not maintainable in the light of Order 23 Rule 3A of CPC. The bar also
applies to strangers to compromise proceedings. Not being a party to the
compromise decree will confer the party cause of action and the right to
invalidate the compromise decree passed by the High Court.

In Sree Surya Developers and Promoters vs. N.Shailesh Prasad and Others
(2022), it was held that no independent suit could be maintained against a
compromise decree. The main objective of the adjudicating forums is to attain
conclusive decisions in order to avoid lengthy litigation. The intent of the
legislation is to bar additional litigation where there exists a valid agreement
between the parties. Hence the lower court was right in rejecting the claim on
the grounds that a suit for relief sought to challenge the compromise decree
would not be maintainable.

No independent suit on the ground of unlawfulness can be maintained against a

compromise decree. The remedy available to the parties is to file an application
where such a compromise was recorded.

Order 23 Rule 3B CPC – No agreement or compromise is to be entered in a

representative suit without the leave of the court

Generally, all the parties involved in the subject matter are the parties to the
suit. Representative suits are an exception to that rule. Representative suits are
instituted by one or more parties either for themselves or on their behalf against
one or more parties that have a similar vested interest in the subject matter of
the suit. In representative suits, it is mandatory for the parties to obtain approval
from the court to enter into such a compromise; failure to obtain the consent of
the court will make the agreement void.

Representative suits include:-

1. Suit under Section 91 which envisages public nuisance as annoying and

harmful acts which affect the public at large.

2. Suit under Section 92 which deals with public charities where trust
property is misused.

3. Suit under Order 1 Rule 8 which deals with the right of a person to defend
himself and others having the same interest.

4. Any other person who may not be a party to suit but will be affected by
the decree of the court.
Here since the interest of numerous parties is at stake, notices are served to all
the parties in the representative suit.

What happens when a compromise decree is vitiated

Parties to the compromise can be prevented from proceeding with the

compromise decree. Compromise can be cancelled or prevented whenever the
compromise decree is vitiated on the grounds of fraud, illegality, mistake of
fact, coercion, undue influence or misrepresentation. In this case, the parties are
to approach the same court which recorded and passed the decree. It needs to be
proved why the agreement should be considered unlawful in the eyes of the law.
After inquiring the court ascertains the effectiveness of the compromise decree
and decides whether to set aside the decree.

In Lalitha Theresa Sequeria vs Dolfy A Pias @ Adolphys Joseph Pais

(2014) the plaintiff, in this case, alleged that the decree was obtained by fraud
and was called to defeat and shadow the provisions of the Urban Land Ceiling
Act (1976). The plaintiff could not prove the alleged facts. There was no
recorded evidence to establish his allegations. Therefore the court held that
there was no ground or reason to interfere with the judgement and order by the
High Court.

Execution of compromise decree

The compromise decree and other decrees of the court are executed similarly.
Before the Amendment of 1976 compromise decree could only be passed for
the matter related to the subject matter of the suit. After the amendment, the
scope of the compromise decree was increased, where compromise can be
decided if

1. Related to the parties of the suit.

2. Need not be related to the subject matter of the agreement but needs to be
related to the suit.
Can a compromise decree be challenged?

Section 96 of the CPC provides a provision for appeal from the original decree.
A compromise decree is an exception to this provision. Subclause (3) of Section
96 enumerates that an appeal cannot lie against a decree passed with the
agreement of the parties.

An appeal cannot lie for setting aside a compromise decree on the ground that it
is obtained unlawfully. A compromise decree can be challenged where there are
unprecedented circumstances and evidence on the face of the information
provided to the court.
The Bombay High Court in Gaurishankar Rukhmeshchandra Mishra Versus
Asaram Shankar Jagdale and others (2016) held that a stranger to the suit is a
stranger to the compromise agreement and therefore cannot challenge the
compromise decree. Hence, the third party cannot challenge the compromise
decree.

In Ajitpalsingh s/o.Nirmal Singh Khalsa Versus Sanjay s/o.Shamrao Deulkar

(2016) a compromise decree was passed before Lok Adalat, and it was held that
the decree passed was conclusive and binding on the parties involved. The
compromise decree cannot be challenged. The only relief one can obtain is by
filing a writ petition under Article 226 or Article 227 of the Constitution of
India subject to specific grounds.

Judicial pronouncements

In R. Rajanna vs S.R.Venkataswamy & Ors (2014) the appellant filed an

original suit challenging the legality compromise decree. Here since the
compromise decree was already passed the plaint was rejected on the ground
that no separate suit can be filed once the compromise decree is passed. It was
held that no independent suit could be instituted challenging the compromise
decree; such a suit was barred by the provisions of Order 23 Rule 3A of the
CPC.

In Daljit Kaur & Ors vs Muktar Steels Pvt Ltd & Ors (2013) it has been opined
that if the litigants enter into a settlement and compromise decree was passed
and recorded by the court. The court has recorded all the material documents
and facts, and the same has not been challenged. In such a situation no appeal
can lie against the consent decree. Section 96(3) of the Code of Civil Procedure
states that no appeal can lie from a decree passed under Order 23 Rule 3.
In Pushpa Devi Bhagat (D) Th. Lr. Smt vs Rajinder Singh & Ors (2006) the
court lays down the scope of Order 23 –

1. No appeal is maintainable in case of a consent decree with reference to

the specific bar contained in Section 96 (3) of CPC.

2. An appeal cannot sustain against the order of the court recording the
compromise.

3. An Independent suit cannot be filed for setting aside the compromise

decree.

4. A consent decree is official and obligatory except when it is set aside by

the same court that passed it.

Conclusion

Order 23 Rule 3 of Civil Procedure Court 1908 plays a vital role in law as it
puts an end to litigation. A compromise decree is the court’s approval of the
settlement agreed upon by the parties. It is an easy way to resolve disputes
where the parties are at a consensus. It saves the valuable time of the court,
besides saving money and time of the parties too. Thus, it is always encouraged
that the parties come to such settlements as permitted by the law.

In Brief

Provisions regarding the withdrawal and adjustment of the suit as provided

under the Civil Procedure
The withdrawal and compromise of a civil suit is provided by Order 23 of the
Code of Civil Procedure, 1908.[1] There are two types of withdrawal provide by
it. Those are:
 a. Absolute withdrawal: In this form of withdrawal, the leave of the Court is
not needed; and
b. Qualified withdrawal: In this the leave of the Court is needed.

1. Withdrawal without the leave of the court

After the institution of a suit, the Plaintiff may at any point of time withdraw his
claim or suit against any one or all the defendants without the need of taking a
leave from the court. This is provide by Rule 1 (1) of Order 23 of the Code of
Civil Procedure, 1908.[2] This right to withdraw a suit against one or all the
defendants is an Absolute right and not a Qualified Right. If the plaintiff does
not want to proceed with its suit, the Court cannot compel the Plaintiff to
continue.[3]

This is based upon the principle of Invito beneficium non datur it means that the
law cannot confer a benefit to a man which he does not desire.[4] It would go
against the wishes of the Plaintiff and would eventually lead to wastage of the
Court’s time. However if for once the Plaintiff withdraws its case then he or she
would never be able to file a new suit in respect of the same cause of action
against the same party or parties.[5] Also while withdrawing the suit, if the
Court awards any cost to the defendant, then the Plaintiff would have to bear it.

2. Withdrawal with leave of court

Rule 1(3) of Order 23 of the Code of Civil Procedure, 1908 allows withdrawal
of suit with the leave of the court. If the court feels that the suit is having some
formal defects and it must fails or if the court gets sufficient grounds to allow
the plaintiff to institute a new fresh suit for the whole suit or any one subject
matter of the suit.
The word, formal defect has not been defined under the Code but it connotes
any procedural defect which does not affect the merits of the case.[6] The
formal defect may include mis – joinder of parties, not providing proper
statutory notice, non – payment of proper court fees, etc.[7] Errors such as non
– joinder of necessary parties, not including all the cause of actions, non –
examination of material witnesses, etc. does not fall under the category of
formal defects as they constitutes a material defect which affects the merits of
the case.[8] The error should not cause any material defect.

The term sufficient grounds should not be construed same as the term formal
defect. If there is an issue where the decree passed by the court cannot be
executed because of no one’s fault, if two suits had been filed for the same
cause of action and due to a fault, both the suits were withdrawn, omission to
file the Power of Attorney, etc are some of the examples which falls under the
category of sufficient grounds.[9]

The Court also has the power to grant leave. The grant of leave is done when
the parties ask for it or if the court finds sufficient grounds the court may grant
leave sue moto.

3. Suits by minor
If in any suit, the plaintiff is a minor, then, neither the suit, nor any part of the
claim can be withdrawn without the permission of the Court. This has been
provided by the Amendment Act of 1976. According to Sub Rule 2 of Rule 1 of
Order 23 of the Code of Civil Procedure, 1908, if the plaintiff asks for a leave
from the Court where the plaintiff is a minor, then the application must be
attached with an affidavit of the next best friend of the minor. If a pleader is
representing the minor in the Court, then the pleader also must submit a
certificate certifying that the need of leave is for the benefit of the minor.[10]

4. Limitation
If the plaintiff withdraws his suit with his own free will, to file a fresh suit, then
the plaintiff needs to file the fresh suit within the limitation period. This is
provided under Rule 2 of Order 23 of the Code of Civil Procedure, 1908.

Adjustment or Compromise of Suit

Even though a suit has been instituted, the parties are free to settle in a
compromise.[11] Rule 3 of Order 23 of the Code of Civil Procedure, 1908 states
that wherever the parties to a suit agrees and comes to a compromise, then the
Court should record such an agreement and also pass a decree for the same.[12]
However for a compromise the following conditions must be met. The
conditions are as follows:

1. An agreement between the parties or a compromise must be there

between the parties.
2. The compromise must be in written and signed by the parties.
3. The agreement must be lawful.
4. The agreement must be recorded by the concerned court; &
5. A consent decree must be passed.

If after the passing of the consent decree by the concerned court, a dispute
regarding the genuineness of the compromise comes into question, then the
court which had recorded the compromise and passed the consent decree would
have the jurisdiction to hear the matter. The parties may file an appeal against
the decree.[13] However no fresh suit can be filed concerning the same
matter.[14] The Court should see that the compromise in which the parties had
agreed to is lawful and in accordance to the Indian Contract Act, 1872.

Rules 6 and 7 of Order 32 of the Code of Civil Procedure, 1908 tries to

safeguard the rights of minors by not allowing any best friend or guardian of the
minor to come to a compromise without taking the leave of the Court.[15]

The pleaders or the advocate appearing behalf of the parties has an implied
authority where if the advocate finds that by coming to a compromise, their
parties would be benefitted, then the advocates need not obtain permission to
come in a compromise.

When the parties comes to a compromise and the Court also passes a decree for
the same, then the decree is not treated to be a decision of the Court. The Court
just provides a seal to the agreement in which both the parties have entered.
However the Court looks into whether the agreement is legal and has been
abided by the Indian Contract Act, 1872. So a compromise agreement is not
treated as res judicata.[16] However many times a compromise agreement has
also been treated as res judicata.[17]

The execution of a consent decree is same as the execution of an ordinary

decree. Before the Amendment Act of 1976, a consent decree was not used to
be passed however after the amendment, consent decree is passed by the
concerned court. The passing of the consent decree does not depend upon
whether the subject matter of the compromise is the similar to the suit.[18]
3. Short note: Framing of issues (05 marks) (January 2023) (05 marks)
(July 2022)

Framing Of Issues
"Issues are the backbone of a suit."

Introduction
The term "issue" in a civil case means a disputed question relating to rival
contentions in a suit. It is the focal point of disagreement, argument or decision.
It is the point on which a case itself is decided in favour of one side or the other,
by the court.

Framing of issues is probably the most important part of the trail of a civil suit.
For a correct and accurate decision in the shortest possible time in a case, it is
necessary to frame the correct and accurate issues. Inaccurate and incorrect
issues may kill the valuable time of the court.

In Siddhi Chunilal vs. Suresh Gopkishan, (1) it was observed that if correct
and accurate issues were not framed, it leads to gross injustice, delay and waste
of the court's valuable time in deciding the matter.

If defendant makes no defense, framing and recording issue by the Court does
not arise, in such a case, a Court need not frame and record issue in as much as
the defendant makes no defense at the first hearing of the suit.

For example, a plaintiff says the defendant borrowed Rs 10 lakh from him. The
defendant denies it. It is an affirmation by one party and denial by the other.
Then there arises a distinct dispute and that dispute is termed an "issue". The
court can then frame issues based on the facts of the case and proceed with it.

Definition of issues
According to the dictionary meaning, "issue" means a point in question; an
important subject of debate, disagreement, discussion, argument or litigation.
(2) Issues mean a single material point of fact or law in litigation that is
affirmed by one party and denied by the other party to the suit and that subject
of the final determination of the proceedings.

In Howell v. Dering, (3) the court held that, an issue is that which, if decided in
favour of plantiff, will in it give a right to relief; and if decided in favour of the
defendant, will in itself be a defence.

Issues arise when a material proposition of fact or law is affirmed by one party
and denied by the other party to the suit. (4)

What are the material propositions?

According to Rule 1 (2), material propositions are those propositions of fact or
law which a plaintiff must allege in order to show a right to sue or a defendant
must allege in order to constitute his defense. Each material proposition
affirmed by one party and denied by the other shall form the subject - matter of
a distinct issue. (5)(6)

Kinds of issues:
As per the Order 14 Rule 1(4) of the C.P.C. issues are of two kinds:

A. Issues of fact
B. Issues of Law.
Issues, however, may be mixed issues of fact and law. (7)

Rule 2(1) OF Order 14 provides that where issues both of law and fact arise in
the same suit, notwithstanding that a case may be disposed of on a preliminary
issue, the court should pronounce judgment on all issues. But if the court is of
the opinion that the case or any part thereof may be disposed of on an issue of
law only, it may try that issue first, if that issue relates to:

i. The jurisdiction of the court; or

ii. A bar to the suit created by any law for the time being in force,

For that purpose, the court may, if it thinks fit, postpone the settlement of the
other issues until the issues of law have been decided. (8)

Object of framing of issues

The main object of framing issues is to ascertain the real dispute between the
parties by narrowing down the area of conflict and determine where the parties
differ. (9)

An obligation is cast on the court to read the plaint and the written statement
and then determine with the assistance of the learned counsel for the parties,
material propositions of fact or of law on which the parties are variance. The
issue shall be formed on which the decision of the case shall depend.

The evidence shall be confined to the issues. The object of an issue is to tie
down the evidence and arguments and decision to a particular question so that
there may be no doubt on what the dispute is. The judgment then proceeding
issue-wise would be able to tell precisely how the dispute was decided. (10)
In MB Sanghvi v Secretary, Madras Chillies Merchant, (11) Supreme Court
held that, the Court should not determine an issue which does not arise on the
pleadings and should not decide a suit on a matter on which no issue has been
raised. No issue need be framed on a point of law which is perfectly clear. (12)

In Akha Ram v LR of Ram Sahai, (13) the court held that where broader issue
framed having mixed facts, some facts relating to plaintiff and some facts
relating to defendant, the trial Court allowing plaintiff to lead evidence of
defendant was not improper.

When issues are framed?

According to rule 1, issues are framed and recorded by the court at the first
hearing after reading the plaint, written statement, examining and hearing of
parties and their pleaders.

Where the Court finds that the issues cannot be correctly framed without the
examination of some person not before the Court or without the inspection of
some document not produced in the suit, it may adjourn the framing of the
issues to a future day (maximum of 7 days).

Court's power and Duty as to issues:

The duty to frame proper issues rests primarily on the Court. (14) The judge
must apply his mind with due care, caution and diligence and understand the
facts of the case before framing issues. The pleaders appearing for both the
parties also should assist the court in framing issues. (15) If proper issues are
not framed, the parties may move the court to get the proper issues framed.

Issues must be specific and clear and not vague or evasive. The court may
examine the witnesses or inspect documents before framing issues, to amend the
issues, to frame additional issues or to strike out issues that may appear to it to
be wrongly framed. (16)(17) Where the parties to a suit agree as to the question
of fact or law to be decided between them, they may, by agreement state the
same in the form of an issue. If the court is satisfied that the agreement is
executed in good faith, it may pronounce the judgment on such issue according
to the terms of the agreement. (18)

Materials are required for framing of issues:

The issues may be framed by the Court from all or any of the following
materials:

1. Allegations made on oath by the parties, or by any persons present on

their behalf, or made by the pleaders of such parties;
2. Allegations made in the pleadings or in answers to interrogatories
delivered in the suit;
3. The contents of the documents produced by either party. (19)

Amendment of issues framed

Order 14 Rule 5, C.P.C. empowers the court to amend issues framed or frame
additional issues at any stage of proceedings. Issues can be amended at any
stage of the trail. They can also be amended by appellate or revisional court.
(20)

In Nagubai Ammal v. B. Shama Rao, (21) Supreme Court observed that, a

trail does not get vitiated on wrong, improper or defective issues.

Omission to frame issues

Even though it is the duty of the court to frame proper issues, mere omission to
frame an issue is not necessarily fatal to the suit. Omission to frame an issue is
an irregularity which may be or may not be a material one. If such an omission
affects the disposal of the suit on merits, the case must be remanded to the trial
court for a fresh trial.

Where the parties went to trail with full knowledge that a particular point was at
issue, they have not been prejudiced and substantial justice has been done,
absence of an issue is not fatal to the case so as to vitiate the proceedings. (22)

Conclusion
Issues are very important not only for the parties but also for the Court. Thus
framing of issues is a very important stage of a civil trial. Parties are required to
prove or disprove the issues framed by the court, not the pleading. On the other
side, court is also bound to give decision on each framed issue. Therefore, the
Court is not to decide those matters on which no issues have been framed.

If issues are properly framed, the controversy in the case can be clearly focused
and documents can be properly appreciated in that light. The relevant evidence
can also be carefully examined. Careful framing of issues also helps in proper
examination and cross examination of witnesses and final arguments in the case.
(23)

4. Short note: Interrogatories (05 marks) (January 2023)

Introduction

One of the essential elements of the rule of law is its procedures. To run a fair
trial, equal opportunities shall be given to both parties to access the documents
related to the case. In the Civil Procedure Code, 1908, separate chapters are
provided so that a fair trial is attainable by both the parties of the suit. After the
plaint has been filed by the plaintiff and written statement by the defendant, if
the parties feel that proper facts were not disclosed in the suit, either of them
can ask for the documents to obtain proper facts of the case.

Before we go further, we need to understand that there are two types of facts:-

1. ‘Facto probanda’ – the facts which constitute a party’s case.

2. ‘Facto probantia’ – the facts which will be considered as evidence if

proven.
Under the procedure of discovery, only Facto Probanda can be asked by the
parties.

Discovery – Order 11

Under Civil Procedure Code, 1908 discovery basically means a pre-trial

procedural aspect wherein each party is given an opportunity to obtain evidence
from the opposite party or parties. In other words, we can say that it is a formal
process wherein the parties get a chance to exchange information regarding the
witnesses and evidence which will be presented before the court during the trial.

The main purpose of discovery is to make the parties aware of the case, that
means there shall not be any ambiguity between parties while the trial is going
on. Both the parties shall be clear about the plaint made and issues thereby.

There are various types of discovery:-

1) interrogatories;

2) requests for production of documents and inspection;

3) requests for admissions;

4) depositions;

5) subpoenas duces tecum;

6) physical and mental examinations.

Nature and scope

The scope of this section is basically determined by the extent of discovery

which can be made by the party with the intervention of the court. The
information which is obtained during the discovery is not needed to be
admissible in court. As per the requirement, parties can obtain an order from the
court for the discovery of required facts/ documents from the opposite party to
understand the purpose of the case. Thereby, the scope or extensibility of
applying this section depends upon the nature of the case and material which is
asked by the other party. So it is the discretion of the court to decide whether
the application is covered as per the scope provided to the section under the
code or not.

But there are certain limits to the extensibility of the discovery of the
documents. If they are redundant or overly burdensome, they are not called for
discovery.

Therefore, it is understood that this procedure is provided to compel the other

party to produce documents on which they are relying on, other than the
evidence. When such particulars regarding the case are asked through questions,
then they are termed as interrogatories. And if the other party is requesting
documents then it is the discovery of documents.
Interrogatories

Section 30 and Order XI Rule 1 to 11, 21 and 22 of CPC covers interrogatories.

When, with the leave of the Court, parties administer a set of questions on the
other party then it is called ‘Interrogatories’. Interrogatories shall be confined to
the facts, it shall not be conclusions of law, construction of words or documents,
or inference from facts. Under CPC, this is known as the ‘right to obtain
information’ by the parties. The party to whom the set of questions were
administered shall give reply to another party in writing and under oath.
‘Discovery of interrogatories’ means when the party, while giving answers to
the interrogatories, discloses the nature of the case, with affidavit .

As per the provisions of the code, any party in a suit can file an application to
obtain an order from the court to ask interrogatories from the other party. So
after filing the plaint, when the written statement is filed by the defendant and
when the court sends summons to parties for the first hearing, if any party feels
that there is a gap in the facts, then they can file an application under this
section and ask order from the court.

Objective

The objective of the interrogatories are:-

1. To determine the nature of the case when it is not clear from the suit
filed.

2. To make own case stronger by making the other party do admissions.

3. To destroy the case of the opponent.

Procedure
The willing party to deliver interrogatories shall apply for leave to the court and
shall submit the proposed interrogatories to the court. As per Rule 2, the court
shall decide the matter within 7 days of filing the application by the party.

While deciding the matter the court shall take into consideration the following
points:

 Any offer which may be sought by the party to be interrogated to

deliver particulars;

 To make an admission;

 To produce documents associated with the matters in question; or

 Any of them.
Further, the court shall consider whether it is necessary in a particular matter, to
dispose of the suit fairly or for saving costs. After one set of interrogatories are
served, the parties can not serve another set without the permission of the court.
The set of questions shall be the ‘question of fact’ rather than the ‘question of
law’. Interrogatories shall not be allowed at the premature stage of the case.

Within 10 days of the service, the affidavit to answer shall be filed by the party
to whom the interrogatories were administered. If the party fails to comply with
such order of the court:-

1. the suit will be dismissed if the party is the plaintiff; and

2. if he is the defendant, his defence can be struck off.

Who may administer interrogatories?

Any opposite party can apply for an order for allowing the party to deliver
interrogatories to another party/ies in the suit. This means that the plaintiff can
apply for an order from the court to be administered to the defendant. The
defendant can also do the same. In some cases, the plaintiff/ defendant can
administer the interrogatories to the co-plaintiff/ co-defendant.

Against whom interrogatories may be allowed?

As per Rule 5 of Order XI, any party to a suit which can be a:-

(i) Corporation; or

(ii) Body of persons;

which may be incorporated or not incorporated; empowered by the law to sue or

to be sued; on its own name or giving any other person responsibility to sue or
any officer, against whom interrogatories can be filed.

If a body corporate is a party to the suit, then in interrogatories it shall be

specifically mentioned that to which person or the officer the questions are to be
served.

Form of interrogatories

Interrogatories are filed as per the form provided in Appendix C Form No. 2 of
CPC, with required variations as per requirement.

The reply to interrogatories is filed with an affidavit in the form provided in

Appendix C Form No. 3 of CPC, with required variations as per need.

Objections to interrogatories

Objections can be raised by the parties on the following grounds:-

 1. Questions are scandalous;

2. Questions are irrelevant;

3. Questions are not exhibited bona fide;

4. Matters which are inquired into are not sufficiently material at this
stage;

5. On the ground of privilege; or

6. Any other ground.

Rules as to interrogatories

While replying to the interrogatories, if the opposite party does not give
sufficient answer, or ignore to give an answer, then the party who administered
the interrogatories can apply for an order from the Court for ordering the other
party to reply sufficiently, or reply further as the case may be. The Court shall
pass such an order to the other party after giving them sufficient opportunity to
be heard. If the party who fails to reply is the plaintiff, then the suit can be
dismissed for want of prosecution. If the party is the defendant, then it will be
considered that the fact has not been defended.

As per Rule 22 of Order XI, the opposite party can use the answers to the
interrogatories as evidence, partly or in whole. But at the same time, the court
shall check whether the part of the answer which has been considered as
evidence by the party is connected to the whole answer, or is it adverse in
nature.

As per Rule 6, the parties can object some of the interrogatories but not all. If
the parties want to object to the interrogatories, then within seven days of
service of such interrogatories, the party shall file the application of the
opposition as per Rule 7 of the Order XI of the Code.

At the same time as per Indian Evidence Act, 1872, if the parties refuse or
object to produce any particular document or information in the court, then
while using it as an evidence they shall inform the court and other parties.
Without the consent of the court, such documents or information which were
refused initially can not be used as evidence later, unless it is lawful to do so.

Interrogatories allowed

Interrogatories which are made to be related to “any matters in issue” can be

questioned to another party. By “matter,” it means a question or an issue which
is related to the dispute in the suit. It need not be an issue which arises from the
dispute.

Interrogatories shall not be disallowed or discarded merely on the ground that

there are other ways to prove the fact in question. Interrogatories are not the
same as pleading. They need not be material facts on which party will be
relying, they can be evidence by which parties want to establish a particular fact
at the trial.

Interrogatories not allowed

Interrogatories are used when the facts laid down in the suit are not clear.
However, under certain circumstances the discovery of the facts can not be
applied if:-

1. it constitutes evidence of the opposite party;

2. it involves the disclosure of public information or interests;

 3. it contains any privileged or confidential information.
Interrogatories which are in the nature of fishing or roving enquiries are not
allowed. Questions in the nature of cross-examination shall not be asked.
Questions of law are not permitted. Questions which are not bona fide or
irrelevant to the case shall not be asked.

Setting aside and Striking off Interrogatories can be made on the following
grounds (Rule 7):

 Unreasonably or vexatiously exhibited;

 Prolix, Oppressive, Unnecessary or Scandalous.

The Application for setting aside or striking off interrogatories shall be made
within 7 days after service of interrogatories.

Cases

In the case of Govind Narayan and Ors. vs. Nagendra Nagda and Ors., the
Rajasthan High Court observed the importance of interrogatories and the time
period in which it shall be filed by the party. The court held the following:

 Reading section 30 with Order XI Rule 1 of the Code, it makes clear

that the courts have the discretion to allow service on interrogatories at
any stage of the suit. The court confers wide discretion, at the same
time the discretion shall be exercised judiciously.

 The information asked under interrogatories shall have nexus with the
dispute in question.

 The stage of the suit shall be significantly considered by the court. At

the same time, it is to be understood that the main purpose of this
 procedure is to save time and cost by encompassing the issues or
narrowing down the disputes.
In a recent case of 2018, Samir Sen v Rita Ghosh, the petitioner filed an
application under Order XI after five months of the closure of the plaintiff’s –
respondent’s evidence in the trial court. Because of the delay, the lower court
dismissed the application for which an appeal has been filed by the aggrieved.
The Jharkhand High Court observed that as per the scheme laid down for the
trials in the Order XIII CPC, it requires parties to produce their original
documents as per their claim founded during the time of presentation of the
plaint or filing of the written statement. And because of this, the interrogatories
are given under Order XI of the Code. And held that the defendant failed to file
the application on time, thereby the order of the trial court was right and the writ
petition was dismissed.

Appeal and revision

There is no appeal allowed in the cases where an order for granting or rejecting
prayer to administer interrogatories to the other parties pronounced by the trial
court. The order which is granted or rejected under this provision is not
considered as ‘decree’ and therefore, are not appealable.

The revision under this section is not encouraged normally by the High Courts.
As per section 115, the matter decided by the court is at the discretion of the
court and said to be ‘case decided’. The High Court interferes only when the
order is clearly illegal or wrong.

For Extra information : https://blog.ipleaders.in/documents-cpc/

5. Explain how the object ‘to expedite the disposal of civil suits in
proceedings so that justice may not be delayed is achieved by
amendment in CPC,1908 w.e.f 1-07-2002
(15 marks) (July 2022)

Key Highlights of Civil Procedure Code (Amendment) Act, 2002

Overview

There are two types of law on the basis of nature, substantive laws and
procedural laws. Substantive laws are the laws which define the principles
related to the rights and liabilities (for instance, Indian Penal Code, 1860 lays
down the offences of punishable nature). On the contrary, Procedural laws
provide for the mechanism for the regulation and enforcement of these rights
and liabilities. They lay down the procedure for the machinery in compliance
with the enforcement of the rights and liabilities (for instance, Code of Civil
Procedure, 1908).

Law is dynamic. This means that law is subjected to the changes to meet the
demanding needs of the society to which it concerns. It is subjected to changes
to redress the balance. Though the law is subjected to changes, the paramount
principle of law on which it lies upon is based on the Latin maxim “salus
populi suprema lex esto” which means “the good of the people shall be the
supreme law”.

Code of Civil Procedure (Amendment) Act, 2002

The Code of Civil Procedure dates back to 1908 which governs the entire
spectrum of civil fraternity suits. From the date of its enforcement, it has been
amended many times for the speedy and expeditious trial of the suits. Despite
the radical changes in due course of time, the society still faced the delaying
issues due to humongous pending lawsuits in the court. The Central
Government initiated a step ahead to curtail down the future situations and thus,
introduced certain amendments to the Code.

Because of the delay in delivering justice experienced by the litigants at various

levels, the Parliament introduced the Code of Civil Procedure (Amendment)
Act, 2002.

The failure of the objective of The Amendment Act of 1999, i.e., speedy and
expeditious trial resulted in The Amendment Act of 2002 which was enacted to
reduce the delays faced at the different levels of the litigation. It is one of the
Parliamentary efforts at making litigation in our country more effective and
speedy. In the light of the Amendment Act of 1999 came the Amendment Act
of 2002 which became effective from 1st July, 2002. After the long wait, the
Parliament made some radical changes for the effective enforcement of the
provisions of the Code.

Arun Jaitley, introduced a new amendment Bill in 2002, taking into account the
suggestions made by bar representatives, political parties and the Law
Commissions. The Parliamentary Standing Committee recommended the other
changes. The new Bill was adopted by both the Houses of Parliament in
May, 2002. Following Presidential assent, the Code of Civil Procedure
(Amendment) Act,2002 was notified and came into effect.

Key Highlights of the Amendment Act, 2002

Transfer of Decree (Section: 39)

 Section 39 lays down the conditions under which a decree can be sent.
 In dealing with an application for transfer of a decree to another Court for
execution two aspects must be kept in view, first, that a decree-holder has
a legal, not merely an equitable right to have his decree transferred for
execution, and secondly, at the same time, that the section is not
mandatory.

 But the Court is given a judicial discretion in the matter, as is shown from
the word “may” in the section. Thus if the demand for transfer is lawful,
the fact that the motive for the application for transfer is to put pressure on
one of the judgment-debtors is no ground for refusing the application for
transfer.

 The Government of India requested the Law Commission to take a

comprehensive revision of the Code of Civil Procedure, 1908. In January,
1998, the Commission took up the subject and decided to do the exercise
in two phases. In the first phase, the Commission reviewed the
amendments suggested by the Code of Civil Procedure (Amendment)
Bill, 1997. In the second phase of the work, the Commission took up the
revision of the entire Code as a comprehensive revision of Code as the
whole would take longer time.

 On the recommendations of Law Commission made in 163rd Report,

headed by B.P. Jeevan Reddy, the present sub-section (4) has been added
to Section 39 to clarify that nothing in the section shall be construed as
authority the Court to execute a decree against a person or property
outside the local limits of its jurisdiction.

 The question of consideration was that “the Section uses the word “may”
which led to a debate whether the Court sending the decree to another
Court is discretionary?”.
  It was recommended by the Law Commission that “the use of “may” in
Section 39 does not mean that the Court, which passed the decree, can
execute the decrees irrespective of territorial limitations. The word “may”
is meant for cases where there are circumstances in which execution as
such is considered illegal. Another view would upset the entire scheme of
the Code as to jurisdiction. It seems desirable to clarify the position by
inserting an Explanation below Section 39 to provide that nothing in the
section shall be construed as an authority in the Court to execute a decree
against a person or property outside the local limits of its jurisdiction. We
recommend accordingly”.

Private alienation of property after attachment to be void (Section: 64)

 Sub-section (2) has been added on the recommendations of the Law

Commission made in 54th Report, pages 51-52. As a result of the
amendment, a transfer made in pursuance of a registered agreement shall
override the attachment if the agreement precedes the attachment.

 The Law Commission recommended that the following exception should

be added below Section 64:
“Exception – Nothing in this section applies to any private transfer or delivery
of the property attached or of any interest therein, made in execution of any
contract for such transfer or delivery entered into and registered before the
attachment”.

 By the Amendment Act of 2002, the Section was renumbered as sub-

section (1) and sub-section (2) and the following shall be inserted namely
:
“(2) Nothing in this section shall apply to any private transfer or delivery of the
property attached or of any interest therein, made in pursuance of any contract
for such transfer or delivery entered into and registered before the attachment”.

 The legal spirit that lies behind this section is to prevent fraud on the part
of the decree-holders and secure the rights of the attaching creditor
against the attached property by prohibiting private alienations pending
attachments.

 It enacts the rule that a private alienation of property after attachment is

void as against claims enforceable under the attachment.

 This section makes no distinction between attachment of property before

judgment is given and an attachment in execution of a decree.

No further appeal in certain cases (Section 100A)

 The Section was substituted by the Amendment Act of 1999 for the
following:
“Notwithstanding anything contained in any Letters Patent for any High Court
or in any other instrument having the force of law or in any other law for the
time being in force, where any appeal from an appellate decree or order is heard
and decided by a single Judge of a High Court, no further appeal shall lie from
the judgment, decision or order of such Single Judge in such appeal or from any
decree passed in such appeal”.

 The present section has been substituted for the substituted Section 100A,
by the Code of Civil Procedure (Amendment) Act,2002.

 As a result of the 2002 Act, appeals to division Bench of the High Courts
in writs under Articles 226 and 227 of the Constitution have been
restored.
  The net result of the 1999 and 2002 Amendment is that where any appeal
from an original or appellate decree or order is heard and decided by a
single Judge of a High Court, no further appeal shall lie from the
judgment and decree of such single Judge; appeals to Division Bench of
the High Court in such cases has been abolished.

 Though this substitution raised many prenotions, it widened the scope of

Section 100A so far as a restriction on the right of further appeal is
concerned.
No second appeal in certain cases (Section 102)

 The Amendment Act of 1999 substituted the section for the following:
“No second appeal lies in any suit of the nature cognizable by Courts of Small
Causes, when the amount or value of the subject-matter of the original suit does
not exceed three thousand rupees”.

 Though the critics had been pointed out that it would foreclose second
appeals where a substantive question of law was involved.

 The Amendment Act of 2002 has corrected this distortion and the present
section has been substituted for the following:
“No second appeal shall lie from any decree, when the subject-matter of the
original suit is for recovery of money not exceeding twenty-five thousand
rupees”.

 Prior to both the Amendment Acts, the second appeal in every suit of the
cognizable nature was barred by Courts of Small Causes, when the
amount or value of the subject-matter of the original suit did not exceed
three thousand rupees.
  The second appeal was abolished by the Code of Civil Procedure
(Amendment) Act, 1999 in all cases where the value of the subject matter
in the suit does not exceed rupees twenty-five thousand.

 The Amendment Act of 2002 has changed the scenario and now no
second appeal lie in money suits where the subject matter of the suit does
not exceed rupees twenty-five thousand.

Issue and Service of Summons (Order V)

 Order V of the Code provides for issue and service of summons. The
Malimath Committee looked into the problem of the shortfall of cases in
the Courts and recommended amendments to the Code intending to lay
down a fixed time frame within which pleadings can be completed.

 The Amendment Act of 2002 amended Rule 1 [Summons], Rule 9

[Delivery of summons by Court] and Rule 9A [Summons given to the
plaintiff for service] of Order V .

 The effect of substituted sub-rule (1) of Rule 1 is that summons are

required to be issued to the defendant for appearance and answering the
claim of the plaintiff on institution of a suit by the plaintiff set out in the
plaint by filing written statement of his defence within 30 days from the
day of the institution of the suit except in a few situations.

 The first proviso to the sub-rule (1) of Rule 1 provides that no summons
are required to be issued when the defendant has appeared at the
presentation of the plaint and admitted the plaintiff’s claim.

 The second proviso to the substituted sub-rule (1) of Rule 1 provides that
if the defendant does not file the written statement within 30 days of the
presentation of the plaint, he may be allowed to file the same, for reasons
 to be recorded in writing, which shall not exceed ninety days from the
date of service of summons.

 Rule 9 of Order V was substituted by Rules 9 and 9A of the Amendment

Act of 2002.

 Sub-rule (1) and sub-rule (4) of Rule 9 prescribes two different situations
as to the delivery of the summons to the defendant. Firstly, if the
defendant resides within the jurisdiction of the Courtin which the suit is
instituted or his agent, the summon shall be delivered by the proper
officer or such courier services as are approved by the Court. Secondly, if
the defendant resides outside the jurisdiction of the Court in which the
suit is instituted , the Court may direct the service of summon by
delivering the copy by speed post or by such courier services as are
approved by the High Court or by any other means of transmission of
documents including fax message or electronic mail service, which shall
be made at the expenses of the plaintiff (Proviso to sub-rule (3).

 Sometimes, the defendant or his agent refuses or intentionally neglects the

delivery of the summon which leads to delay in service of summons. Sub-
rule (5) of Rule 9 curbs this situation and states that if the Court receives
an acknowledgement or any other receipt purporting to be signed by the
defendant or his agent endorsed by the postal employee that defendant or
his agent has refused to take the delivery of the postal or had refused to
take accept the summon when tendered to him, the Court issuing the
summons shall declare that the summons had been duly served on the
defendant.

 The Registered Post Acknowledgement Due can also make the service of
summon.
  Rule 9 empowers the High Court or the District Court to prepare a panel
of the courier agencies for service of summons.

 To avoid the delay in delivery of summons, the Court empowered the

plaintiff for the service of summons under Rule 9A. It states that the
Court, in addition to Rule 9, on an application of plaintiff may allow him
service of summon for the appearance of the defendant.

 Such service of summon by the plaintiff shall be effected by delivery of

summon to the defendant personally a copy signed by the Judge and
sealed with the seal of the Court or any mode of service prescribed in sub-
rule (3) of Rule 9.

Pleading Generally (Order VI)

 Rule 17 [Amendment of pleadings] and Rule 18 [Failure to amend after

order] were substituted by Code Of Civil Procedure (Amendment) Act,
2002.

 By the Amendment Act of 2002, the provision has been restored in Rule
17. The provision for the amendment has been given back to the Court
with certain limitations. A new provision has been added to the rule,
namely that no application for amendment of the pleadings shall be
allowed after the trial has commenced unless the Court concludes that in
spite of due diligence, the party could not have raised the matter before
the commencement of trial.

 Thus, after the trial of the case has been commenced, no application for
amendment of the pleadings shall be allowed unless the Court comes to
the conclusion that in spite of due diligence, the party could not have
raised the matter before the commencement of trial.
  The principal object of the rule is that the Courts should get at and try the
merits of the case that comes before them and should consequently allow
all the amendments that may be necessary for determining the real
question in controversy between the parties without causing injustice to
the other side.

 By the Code Of Civil Procedure (Amendment) Act, 1999, Rule 18 was

omitted. By Code Of Civil Procedure (Amendment) Act, 2002, the old
Rule 18 verbatim has been restored.

 Rule 18 states that if a party who has obtained an order for leave to amend
does not amend accordingly within the time limited for the purpose by the
order, or if no time is thereby limited then within fourteen days from the
date of the order, he shall not be permitted to amend after the expiration
of such limited period or of such fourteen days, unless the time is
extended by the Court.

Plaint (Order VII)

 By Code Of Civil Procedure (Amendment) Act, 2002, Rule 9 [Procedure

on admitting plaint], Rule 11 [Rejection of plaint] and Rule 14
[Production of document on which plaintiff sues or relies of Order VII
were amended and Rule 18 [Inadmissibility of document not produced
when plaint filed] was omitted.

 Unde the new rule 9, the Court will direct the plaintiff to present copies of
the plaint within a period of seven days from the date of the order along
with the requisite process fee for service on the defendant(s). Under the
old rule, no time limit was prescribed.

 The new rule intended to expedite the delay, which the plaintiff often
caused in taking steps for the service of summons on the defendant.
 Further under the old rule, there was provision requiring the plaintiff to
endorse on the plaint or to annex thereto, the list of the documents which
he had filed along with the plaint, or instead of copy of the plaint could
file concise statements of the nature of the claim made or the relief
claimed in the suit with the prior of the Court, which the Court would
permit by reason of the length of the plaint or the number of the
defendants or for any other sufficient reasons.

 Under the new rule 9, both these provisions have been omitted as found
unnecessary just to cut short the delays in the trail of the cases.

 In Rule 11, for sub-clause (f) and (g) as inserted by Amendment Act of
1999 was substituted, namely-
“(f) where the plaintiff fails to comply with the provisions of Rule 9”.

 The clause (f) enabled the court to reject the plaint where the plaintiff fails
to comply with the provisions of Rule 9 of Order VII.

 Sub-rule (3) of Rule 14 was substituted meaning thereby that the

documents may be produced by the plaintiff which ought to be produced
during the presentation of a plaint or to be entered in the list or annexed to
the plaint, with the leave of the Court, at the time of the hearing of the
suit.

 The Amendment Act of 2002 omitted Rule 18.

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

 Rule 1 [Written Statement], Rule 1A [Duty of defendant to produce

documents upon which relief is claimed or relied upon by him], Rule 9
[Subsequent pleadings] and Rule 10 [Procedure when party fails to
present written statement called for by Court] were amended.
 In Rule 1, the defendant shall present the written statement within thirty
days from the date of service of summon. By 2002 Amendment Act, the
defendant may file written statement thereafter with the permission of the
Court but not beyond ninety days where the Court for the reasons to be
recorded in writing has extended this period.

 Thus, now a defendant can file a written statement within thirty days from
the date of service of summon but such time period can be extended upto
ninety days by the Court for the reasons to be recorded in writing.

 Sub-rule (3) of Rule 1A was substituted by the Amendment Act, 2002.

Rule 1A was added by the Amendment Act of 1999 and further amended
by Amendment Act, 2002.

 It states that a document which ought to be produced in Court by the

defendant under this rule, but, is not so produced shall not, without the
leave of the Court, be received in evidence on his behalf at the hearing of
the suit. Nothing in this rule shall apply to documents – (a) produced for
the cross-examination of the plaintiff’s witness, or (b) handed over a
witness merely to refresh his memory.

 Rule 9 was restored by the Code of Civil Procedure (Amendment) Act,

2002 in the same form verbatim except for the addition of the words “of
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
effect of the change is that subsequent pleadings shall be continued to be
filed and the Court shall fix the time for presenting the same, which shall
be not more than thirty days.

 Rule 10 which was omitted by the Code of Civil Procedure (Amendment)

Act, 1999 was substituted by the Code of Civil Procedure (Amendment)
Act, 2002. It states that where any party from whom a written statement is
 required under Rule 1 or Rule 9 fails to present the same within the time
permitted or fixed by the Court, as the case may be, the Court shall
pronounce judgment against him, or make such order in relation to the
suit as it thinks fit and on pronouncement of such judgment 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.

Settlement of Issues and Determination of Suit on Issues of Law or on

Issues agreed upon (Order XIV)

 Rule 5 [Power to amend, and strike out issues] was substituted by Code of
Civil Procedure (Amendment) Act, 2002.

 Rule 5 was omitted by the Code of Civil Procedure (Amendment) Act,

1999 which was restored verbatim by the Code of Civil Procedure
(Amendment) Act, 2002.
  Rule 5 lays down provisions for amending the issues, framing additional
issues, and striking out issues in the course of the trial of a suit.

 It states that the Court may at any time before the passing a decree amend
the issues or frame additional issues on such terms as it thinks fit, and all
such amendments or additional issues as may be necessary for
determining the matters in controversy between the parties shall be so
made or framed. It further states that the Court may also, at any time
before passing a decree, strike out any issues that appear to it to be
wrongly framed or introduced.

 A court trying a civil suit has inherent power to take cognizance of

questions going to the root of the subject-matter in controversy between
the parties at any stage of the trial. But before doing so, the Court must
frame and record issues on such questions.

 The power of the Court is subject to Rule 3 of this Order. Thus the rule
does not enable the re-opening of issues already closed.

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

 Rule 2 [Statement and production of evidence] and Rule 4 [Recording of

evidence] were amended by the Code of Civil Procedure (Amendment)
Act, 2002.

 Sub-rule 3A, 3B, 3C, 3D of Rule 2 were inserted by Code of Civil

Procedure (Amendment) Act, 2002.

 Sub-rule 3A of Rule 2 states that any party may address oral arguments in
a case, and shall, before he concludes the oral arguments, if any, submit if
the Court so permits concisely and under distinct headings written
arguments in support of his case to the Court and such written arguments
shall form part of the record.
 Sub-rule 3B of Rule 2 states that a copy of written arguments shall be
simultaneously furnished to the opposite party.

 Sub-rule 3C of Rule 2 states that no adjournment shall be granted for the

purpose of filing the written arguments unless the Court, for reasons to be
recorded in writing, considers it necessary to grant such adjournment.

 Sub-rule 3D of Rule 2 states that the Court shall fix such limits for the
oral arguments by either of the parties in a case, as it thinks fit.

 Thus a time limit for oral arguments may be fixed by the Court and with
the leave of the Court, the parties may be required to submit written
arguments before concluding the oral arguments in the case. Ordinarily,
no adjournments shall be granted for the purpose of submitting written
arguments, unless the Court for the reasons to be recorded in writing
considers it necessary to do so.

 Rule 4 was substituted by Code of Civil Procedure (Amendment) Act,

2002.

 In nutshell, Rule 4 states that the examination-in-chief of a witness shall

be recorded on an affidavit. The Commissioner can conduct and record
cross-examination and re-examination of a witness in the High Courts
having original jurisdiction and in Courts subordinate to the High Court.
Such evidence shall be recorded either by the Court or by the
Commissioner appointed by it.

 The Commissioner also possesses the power of recording the demeanor of

a witness and any objection made in regard to such matter shall be
decided by the Court at the time of arguments of the case.

 A commissioner is under the obligation of submitting his report within six

months from the date of the issue of the Commission.
  The court may fix the amount to be paid as remuneration for the services
of the Commissioner.

Judgment and Decree (Order XX)

 Rule 1 was amended by the Code of Civil Procedure (Amendment) Act,

2002.

 Sub-rule (1) of Rule 1 was substituted by the Code of Civil Procedure

(Amendment) Act, 2002.

 It states that the Court, after the case has been heard, shall pronounce
judgment in an open Court, either at once, or as soon thereafter as may be
practicable and when the judgment is to be pronounced on some future
day, the Court shall fix a day for that purpose, of which due notice shall
be given to the parties or their pleaders.

 The proviso to the sub-rule states that where the judgment is not
pronounced at once, every endeavor shall be made by the Court to
pronounce the judgment within thirty days from the date on which the
hearing of the case was concluded but, where it is not practicable so to do
on the ground of the exceptional and extraordinary circumstances of the
case, the Court shall fix a future day for the pronouncement of the
judgment, and such day shall not ordinarily be a day beyond sixty days
from the date on which the hearing of the case was concluded, and due
notice of the day to fixed shall be given to the parties or their pleaders.

 In other words, there is a definite time frame for the pronouncement of the
judgments after a case has been heard. The general rule is that a judgment
is to be pronounced at once and where it is not practicable to do so, the
Court shall make an endeavor to pronounce judgment within thirty days
from the date on which the hearing of the case was concluded.
  Where it is not practicable for the Court to pronounce judgment within
thirty days because of exceptional and extraordinary circumstances of the
case, the Court shall fix a day for the pronouncement of judgment which
should not be beyond sixty days from the date on which the case was
heard.

Execution of Decrees and Orders (Order XXI)

 Rule 32 and Rule 92 were amended by the Code of Civil Procedure

(Amendment) Act, 2002.

 An Explanation was inserted under sub-rule (5) of Rule 32. It states that
“For the removal of doubts, the expression “the act required to be done”
covers both prohibitory as well as mandatory injunctions.

 A controversy arose as to the meaning of the words “required to be done”

in sub-rule (5) of Rule 32. Do these words covered the situation where a
prohibitory injunction has been incorporated in the decree, or are they
confined to cases where the decree is a mandatory one. Different High
courts have expressed different views on the subject. The controversy has
been resolved by the present explanation added which adopts a wider
view.

 In sub-rule (2) of Rule 92, the words “thirty days” was substituted by
“sixty days”.

 After the first proviso to sub-rule (2) of Rule 92, the following proviso
was inserted :
“Provided further that the deposit under this sub-rule may be made within sixty
days in all such cases where the period of thirty days, within which the deposit
had to be made, has not expired before the commencement of the Code of Civil
Procedure (Amendment) Act, 2002.
  The amendment in Rule 92 has been made on the recommendations of the
Law Commission made in the 139th Report (Page No. 08) to bring
harmony between sub-rule (2) of Rule 92 and Article 127 of The Indian
Limitation Act, 1963. The period for making deposit under sub-rule (2) of
Rule 92 before the present amendment was thirty days, while under
Article 127 of the Limitation Act, 1963, the limitation period for making
the application to set aside an execution sale (which has to be
accompanied by the deposit in Court of requisite amount) is sixty days.

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

 In Salem Advocate Bar Association v. Union of India, the writ petition

had been filed by Advocate T.Raja seeking to challenge the Amendments
made to the Code of Civil Procedure, 1908 by Amendment Act, 2002.

 A three-judge bench comprising the Chief Justice B.N.Kirpal, Justice

Y.K. Sabharwal and Justice Arijit Pasayat held that “We do not find that
the amended provisions are in any way ultra vires the Constitution’”.

 The judges attention was drawn to the various provisions of the amended
Sections and Orders of the Code of Civil Procedure (Amendment) Act,
2002.

 It was observed that “In court’s opinion amendments are constitutionally

valid and if any difficulties are still faced, these can be placed before the
Committee. The Committee would consider the said difficulties and make
important suggestions in its report.

 The Bench said that keeping in mind the increasing number of litigation
and the limited number of judges, the amendments are imperative in
resolving the litigation at an early date.
Conclusion

 “The power of judicial discretion comes along with the action of

arbitrariness”.

 These judicial decisions result in the unnecessary delays. The Amendment

Act of 2002 laid down several time limits that bounds the plaintiff as well
as the defendant at each stage of the litigation. These limitations resulted
in speeding up the litigation process.

 The conceptualisation of the idea of evidence via affidavits as well as the

introduction of the court-appointed commissioner also resulted achieving
the objectivity of this Amendment Act, i.e., speedy and expeditious
justice.

 The lagging behind of the judicial system due to unnecessary

adjournments now can be dealt adequately with the limit imposed and by
the provision of imposing costs including punitive costs.

 The failure on the part of courts for providing adequate and easily
accessible to justice is one of the principal causes of widespread
dissatisfaction with the administration of justice.

 The concept of “access to justice’ has undergone significant

transformation. The Code of Civil Procedure (Amendment) Act, 2002
aims to provide for speedy and effectual justice.

6. Explain as to when a court may issue a commission for the

examination? (10 marks) (July 2022)

Under CPC, a commissioner is appointed to fulfill certain functions which are

essential for the Court, in order to dispense full and complete justice. Section 75
and order 26 of the code provides the key provisions which relates to the
commissioner. In this article, we will try to answer the most basic questions
which comes to our mind when we begin to understand the concept of issue of
commission and appointment of commissioner.

What is meant by issue of commission by the Court?

Commission is instruction or role given by the Court to a person to act on behalf

of the Court and to do everything that the Court requires to deliver full and
complete justice. Such person who carries out the commission is known as a
Court commissioner.

For example, whenever the Court has to do a local investigation, a

commissioner is appointed who conducts the local investigation. Similarly, to
record the evidence of a witness who cannot come to the Court for evidence, the
Court can issue a commission for recording of such evidence.

Who can appoint a commissioner?

Under CPC, the Court which issues the commission can appoint the
commissioner. Section 75, provides that “the Court” can issue commission
provided the limitations and restrictions applicable. Therefore, the Court who
has to decide the suit can appoint the commissioner. Commissioner is appointed
to carry out the functions for which the commission is issued. Court has the
discretionary power to appoint the commissioner and such power can be
exercised on the application of any of the parties or the Court can issue the
commission suo moto.

We will understand the procedure followed by the Courts to appoint the

commissioner later in this article.

Who can be appointed as a commissioner?

Generally, there is a panel of commissioners which is formed by the High Court
in which advocates are selected who are competent to carry out the commission
issued by the Court.

The person appointed as commissioner should be independent, impartial,

disinterested in the suit and the parties involved in it. Such a person should have
the requisite skills to carry out the commission.

It will be a complete waste of time and resources of the Court and the parties if
a person who cannot read and understand the accounts and documents is
appointed as commissioner to adjust accounts. Similarly, a person who does not
have the qualifications to conduct scientific investigation should not be
appointed as a commissioner for such task.

The District judge supervises the subordinate Courts who have to take special
care while appointing a commissioner(1). The same person should not be
appointed by the Court in all commissions and a person who hangs about the
Court should not be appointed.

What is the procedure for appointment of commissioner?

Every High Court has the power (Article 227) to make rules and regulations
which is to be followed by the subordinate Courts. Procedure for appointment
of a commissioner is provided in High Court rules each state.

For instance, in Delhi, Chapter 10 of Delhi High Court rules, 1967, provides
procedure for appointment of Commissioner. The following procedure is
followed by the Delhi High Court(2):
  A panel of not more than 4 commissioners is to be formed which
consists of young persons including a lady lawyer, appointed by the
Court for recording of evidence.

 The District Court notifies the bar about the number of vacancies of
commissioners and the bar forward the applications received for the
same to the Court who then forwards it to the High Court with their
recommendation.

 The term of such appointment is generally 3 years which can be

extended by an order of the High Court but no commissioner can be
appointed after 6 years of such appointment.

When can a commissioner be appointed by the Court?

A commissioner can be appointed by the Court when a commission is issued by

the Court. According to Section 75 of CPC, the Court has the power to issue a
commission to carry out the following functions:

To examine witnesses: Order 26 Rule 1-8

The general rule of evidence is to bring the evidence before the Court and must
be recorded in open Court. But in extraordinary circumstances, the appearance
of witness is dispensed and the witness is allowed to depose evidence without
appearing in Court.

Appearance is exempted if:

1. A witness is bedridden or is unable to attend the Court due to sickness

or infirmity, in such circumstances the Court can exempt the
appearance of witness and allow the witness to depose evidence to a
commissioner appointed for the same. Such a witness will have to
 submit a certificate signed by a registered medical practitioner as
evidence of sickness or infirmity. (Order XXVI Rule 1, C.P.C.) In
such situations the Court will exercise its powers provided under order
18 rule 4 and appoint a commissioner for examination on
interrogatories(3).

2. A witness apprehends danger to his life and informs the Court about
such danger and if the Court thinks that recording evidence of the
witness is necessary, the Court may issue commission to record
evidence of such witness. Where a party accused of fraud seeks
himself to be examined with commission, the Court must not issue
commission and avoid person of such demeanor to abuse the
procedure.

3. The witness is a pardanashin lady whose attendance is exempted under

Section 132 of the code.

4. The witness is a Civil or Military Officer of the Government, cannot

attend without detriment to the Public Service. (Order XXVI Rule 4)

5. If the Court thinks that it is in the interest of justice or expeditious

disposal of the case or for any other reason, the Court can issue a
commission notwithstanding any of the rules provided in the order.
(order 26 rule 4A)

6. A person who cannot be ordered to attend the Court in person under

Order 16 rule 19 can be examined by the Court by issuing a
commission. (order 26 rule 4 proviso)

7. A commission can be issued for examination of a person detained in

prison. (order 16A rule 7)
The Court will issue an order of commission for examination of a witness on
following grounds if such person: (order 26 rule 4)
  Resides beyond the jurisdiction of the Court. [order 26 rule 3(a)]

 About to leave from the jurisdiction of the Court. [order 26 rule 3(b)]

 A government servant and cannot attend without affecting the public

service [order 26 rule 4(c)].

 Resides outside India and the Court decides that his evidence is
necessary.

 The commission will be issued to any other Court within whose local
limits such person is residing and if the person resides within the local
limits of the Court issuing it, a commissioner can be appointed to carry
out such commission.
The provisions of the Court relating to summoning, attendance examination of
witnesses, penalties imposed on the witness will apply on the person who has to
give evidence or produce documents before the commissioner. The
commissioner who is executing the order of the Court, within whose local limit
such person resides or by the Court beyond whose jurisdiction such person
resides, will be deemed to be a civil Court.

If the commissioner is not a judge of the civil Court, the commissioner cannot
impose penalties but can make an application to the Court which has issued
commission to impose penalties on the person. (order 26 rule 17)

To make local investigations: Order 26 Rule 9-10

The Court can appoint commission for local investigation if the Court is of the
opinion that a local investigation is necessary:

1. For proper clarity of any matter in dispute, or

2. In ascertaining the market value of any property, or

 3. To know the amount of mens rea or annual net profits.
While appointing a commissioner for, the Court has to examine (4).

1. The pleadings of both the parties,

2. Relief claimed,

3. The real controversy between the parties.

It is important to note that the object of a commission is not to collect evidence
which can be brought to the Court by the parties but to acquire evidence from a
fixed spot. It is also used to enable the Court to have more clarity regarding the
facts of the case.

Commissioner should not be appointed to provide pre-trial decree against the

defendant, that is, the Court should not appoint a commissioner to provide the
relief claimed, directly or indirectly, by the plaintiff before the final decree is
passed. It is important because such commission will prejudice the rights of the
defendant to a fair trial.

To adjust accounts: Order 26 Rule 11-12

In a suit, if the Court thinks that it is necessary to verify the accounts involved
in the suit, the Court may issue a commission to make the examination of such
accounts and may appoint a commissioner. (rule 11) The Court takes special
care while making such an appointment. The Court appoints only such a person
who is competent to examine such records. The reports submitted by the
commissioner is considered evidence by the Court. (rule 12)

To make partition: Order 26 Rule 13-14

The Court can issue commission for partition of a suit property. Suppose, the
Court has passed a preliminary decree for partition of the suit property, in such
a situation, the Court can appoint a commissioner to carry out the decree. (rule
13) The commissioner has to divide the property in shares and distribute it
among the parties according to the suit decree. Commissioner has to submit a
report after such partition is completed. (rule 14)

To hold investigation: Order 26 Rule 10-A

When the Court has to conduct a scientific investigation, the Court can appoint
a commissioner who will then be responsible for such investigation. For
example, to identify the substance used as a raw material in the subject matter,
the Court may issue commission to hold scientific investigation. (rule 10-A)

After conducting such investigation the commissioner has to submit the report
within the time prescribed by the Court.

To sell the property: Order 26 Rule 10-C

Suppose the subject matter of a suit is a movable property which cannot be

preserved by the commissioner and if it is not sold, its value cannot be
recovered. Therefore, the Court appoints a commissioner who is given the
responsibility to sell the property and submit a report along with the proceeds
received from the sale of such property.

To do ministerial work: Order 26 Rule 10-B

Ministerial work means the administrative work which the Court has to do, but
are not of judicial nature like accounting, calculation, etc. Such work takes a lot
of valuable time of the Court which can be used in other important judicial
functions.

Therefore, the Court appoints a commissioner to do such works on behalf of the

Court. It is important to note that commissioners cannot do judicial
functions. (5)

Procedure for carrying out the commission:

 The commissioner will conduct the local investigation, examination of

witnesses, adjust accounts and other functions as ordered in the
commission.

 After completion of the function, the commissioner will reduce the

findings in writing and will make a report.

 The commissioner will submit the report signed by him along with the
evidence recorded in the Court.

 The report of commissioner will form a part of the record.

 While examining the report, the Court or the concerned parties, after
prior permission, can examine the commissioner personally in open
Court.

 If the Court is dissatisfied with the proceedings of the commissioner

the Court can order a further inquiry on the commission or can issue a
fresh commission and appoint a new commissioner.
To summarize, the commission can be issued in the following circumstances:

1. To make a local investigation.

2. To adjust accounts.
 3. To make partition.

4. To hold investigation.

5. To conduct sales.

6. To perform ministerial work.

Powers of the commissioner: Order 26 Rule 16-18

Under order 26 rule 16, powers of a commissioner are as follows:

1. Commissioner has the authority to examine the parties and the

witnesses and any other person who the commissioner thinks can give
evidence in the matter referred to him.

2. Commissioner can direct the parties to produce any documents which

is required to be examined.

3. Commissioner also has the power to enter and search any land or
building with the permission of the Court.

4. If the party fails to appear before the commissioner after the order of
the Court, the commissioner can proceed ex parte.

Whether the commissioner will be entitled to a Remuneration?

There is no provision in the CPC which expressly provides for remuneration to

the commissioner but Rule 15 of order 26 provide for the expenses which might
be incurred by the commissioner. While issuing commission, the Court directs
the applicant to deposit a sum of amount which can be used by the
commissioner to account for the expenses which might be incurred by him
while carrying out the commission. The Court has the discretionary power to
make directions make any other direction regarding the remuneration.

What are the limitations on the commissioner?

Commissioner has to assist the Court in carrying out the judicial functions but
he cannot do the judicial functions on behalf of the Court. For example, a
commissioner cannot value the suit property because it is a judicial function and
only the Court has the power to do so. A commissioner can assist the Court by
producing the documents such as plans of the suit property by which the Court
can ascertain the value.

It is not the objective of issuing a commission to procure evidence for the

parties. Therefore, if a party has the apprehension that the opposite party will
tamper with a document which is relevant to the case, the Court should not
appoint a commissioner to seize such documents.

What is the evidentiary value of the report submitted by the commissioner?

According to order 26 rule 10 (2) of the CPC, the report and the evidence
submitted by commissioners forms a part of the record but if the evidence is
submitted without the report of the commissioner, such evidence does not form
part of the record. (6)

The report forms an important part of the case and can only be challenged on
sufficient grounds.The Court has the final say on how much reliance should be
placed on the report submitted by the Court.

What are the key takeaways?

The commission is issued by the Court to provide full and complete justice.The
Court has the power to issue commission in certain circumstances.
Commissioner is appointed by the Court to carry out the commission issued by
the Court. He assists the Court by taking evidence, conducting local
investigations, doing ministerial work and submits a report after carrying out the
commission.
A commissioner is, generally, an advocate who is in a panel formed by the High
Court and from such a panel the Court appoints a commissioner. The
procedures for the appointment are formulated by the High Court.

The commissioner can exercise certain powers granted by the Court to carry out
the commission. He cannot perform the judicial function of the Court. He can
only assist the Court in performing such functions. The evidence with the report
submitted by him in the Court forms part of the record.

IN BRIEF:

Power of court to issue commission under CPC

The purpose of issuing commission by the court is to impart complete justice to
the parties to the suit. The power of issuing commission rests totally in the
discretion of the judges[1]. By issuing a commission in a particular case, the
Court performs an in - depth investigation where the Court deems necessary.

Issuing of Commission can be made by the Court if it gets an application from

the parties, stating the necessity for the same or sue - moto.[2] Section 75 to 78
of the Code of Civil Procedure, 1908 speaks about the discretionary power of
the Civil Courts and Order 26 to issue commission for the furtherance of
complete justice.[3] According to Section 75 of the Code of Civil Procedure,
1908, the court may issue a commission for any of the following purposes:

1. Examination of witnesses
2. Perform a local investigation
3. For adjustment of accounts
4. To do a partition
5. To hold investigation
6. For conducting a sale
 7. For the performance of a ministerial act.[4]

Commissions

 Commission is an instruction or role given by the Court to a person to

act on behalf of the Court.
 The court authorizes the person so appointed to do everything that the
Court requires to do for the accomplishment of justice.
 A person so appointed is known as a Court commissioner.
 Courts power to issue commission is discretionary, it can be exhausted
by the court either on application by a party to the suit or on its own
motion.

Appointment as a Commissioner

 Generally, there is a panel of commissioners which is formed by a High

Court in which advocates competent to carry out the commission issued
by the Court, are selected.
 The person appointed as commissioner should be independent,
impartial, disinterested in the suit and the parties involved in it. Such a
person should have the requisite skills to carry out the commission.

Power of Court to Issue Commissions

 Section 75 of CPC deals with the power to court to issue commissions. It

states that-
Subject to such conditions and limitations as may be prescribed; the Court may
issue a commission—
(a) to examine any person;

(b) to make a local investigation;

(c) to examine or adjust accounts; or

(d) to make a partition;

(e) to hold a scientific, technical, or expert investigation;

(f) to conduct sale of property which is subject to speedy and natural decay, and
which is in the custody of the Court pending the determination of the suit;

(g) to perform any ministerial act.

1. Examination of witnesses
Issuing of commission for the purpose of examination of witnesses is guided by
Sections 76 to 78 and by Rules 1 - 8 of Order 26.[5] Generally the examination
of witnesses is done in an open court. The evidence of the witnesses is
examined by cross - examination and recorded in the presence of all. However
sometimes it may happen where the witness may not be able to come and
appear in the court. The reasons for the inability to come to the Court must be
reasonable.

The Court relaxes the rule of attendance in the Court and issues commission
only if the Court finds that the reason for non - attending the court is justified.
The reasons for non - attendance of the witnesses may be on the grounds of
illness, or if the witness resides beyond the local limits of the jurisdiction of the
Court or any other reasons as the Court may find sufficient[6]. In the case
of Paramhansa Ramkrishna v. Trimbak Rajaram, the court had issued a
commission to record the evidence of the witness who was a Parmahansa.
Parmahansa are people who practice various religious rituals and practices and
due to which they remain and roam around naked[7].

Similarly in the case of Vinayak Trading Co. v. Sham Sunder & Co., the
court had issued a commission for the recording of the statement of the witness,
as the court had apprehended danger to the life of the witness if he becomes
compelled to come to court.[8]

2. Perform a local investigation

This is covered by Rules 9 and 10 of Order 26 of the Code of Civil
Procedure.[9] Courts can issue commission where it finds that there is a need to:

1. To get a proper clarity regarding a matter in dispute; &

2. To get a proper valuation of the property in dispute if any, or if any
damages or mesne profits is involved in the claim of a suit, then finding
the exact amount for the same.[10]

The main reason to conduct a local investigation by issuing a commission is to

find out and obtain evidences which would bring clarity and help the court in
determining the case. The investigation is performed where the evidences are of
peculiar in nature and which can only be ascertained by visiting and conducting
an investigation at the spot.[11] In the case of Southern Command Military
Engg. Services Employees Coop. Credit Society v. V.K.K. Nambiar, the
court had to issue a commission to find out whether the tenants had really
occupied the premises in dispute of the suit. This was a peculiar situation which
can only be ascertained by visiting the place and conducting investigation.[12]

3. Adjustment of accounts
Rules 11 and 12 of Order 26 of the Code of Civil Procedure, 1908 guide the
action of conducting an investigation by the Court by issuing a commission to
examine and for the adjustment of accounts.[13] The Court issues gives
necessary instructions to the commissioner and the reports provided by the
Commissioner shall then be deemed to be evidence in the Court.[14]

4. To do a partition
This is guided by Rules 13 and 14 of Order 26 of Code of Civil Procedure,
1908.[15] In this case, the Court issues a Commission when a preliminary
decree of partition of an immovable property has been passed by the Court. The
duty of the Commission is to make the partition according to the guidelines
provided by the decree. The Commissioner then divides the property into the
required number of parts and then allots the shares to the parties. After
partitioning and allotting the parts of the property to the rightful owners, the
Commissioner prepares a report and provides it to the Court. After allotting, if
any party objects or is unsatisfied of something, the Court hears their objections
and passes a final allotment decree.[16]

5. To hold investigation
Rule 10 - A of Order 26 of the Code of Civil Procedure, 1908 guides this cause
of issuing a commission.[17] When the Court finds that the issue of a case deals
with any peculiar dispute which requires a scientific investigation and which
cannot be successfully conducted in the Court premises, the Court issues a
commission to investigate into the matter and inquires into the matter.

6. To sell property
This is guided by Rule 10 - C of Order 26 of the Code of Civil Procedure,
1908.[18] The Court issues a commission when the Court requires selling a
movable property on which the Court has custody and on which a case is
pending. The selling of the property becomes necessary if the property cannot
be properly preserved or if the court deems the selling necessary in the interest
of justice. The Commissioner is directed to sell off the property and submit the
report of the sale to the Court.

7. For the performance of a ministerial act

The statute guiding this is Rule 10-B of the Code of Civil Procedure, 1908.[19]
The Court issues a Commission when a requirement of the performance of a
ministerial act comes. Ministerial Acts constitutes works like accounting,
calculation and works of the same nature. The ministerial acts do not require the
application of judicial mind and if done by the Court, it would lead to wastage
of Court’s precious time. The Court issues a commission who would perform all
the ministerial acts as required and after completion the Commissioner shall
provide the report to the Court.[20] The Commissioner does not perform any
judicial acts and does only the ministerial acts for which the Commission had
been issued by the Court.[21]

 8. Commissions Issued of the Instance of Foreign Tribunals

o Rule 19 to 22 of Order XXVI contains provisions relating to
commissions issued at the instance of foreign tribunals.
o Rule 19 deals with the cases in which a High Court may issue
commission to examine witnesses. It states that—
(1) If a High Court is satisfied. —
(a) that a foreign court situated in a foreign country wishes to obtain the
evidence of a witness in any proceeding before it,
(b) that the proceeding is of a civil nature, and
(c) that the witness is residing within the limits of the High Court’s appellate
jurisdiction, it may, subject to the provisions of rule 20, issue a commission for
the examination of such witness.
(2) Evidence may be given of the matters specified in clause (a), (b) and (c) of
sub-rule (1) —
(a) by a certificate signed by the consular officer of the foreign country of
the highest rank in India and transmitted to the High Court through the Central
Government, or
(b) by a letter of request issued by the foreign Court and transmitted to
the High Court through the Central Government, or
(c) by a letter of request issued by the foreign court and produced before the
High Court by a party to the proceeding.


o Rule 20 deals with the application for the issue of commissions.

o Rule 21 states that the commission under rule 19 may be issued to
any Court within the local limits of whose jurisdiction the
witness resides.
o Rule 22 deals with the issue, execution and return of
commissions, land transmission of evidence to foreign Court.

Powers of the Commissioner

 As per Rule 16 of Order XXVI, any commissioner appointed under this

Order may, unless otherwise directed by the order of appointment, —
(a) examine the parties themselves and any witness whom they or any of
them may produce, and any other person whom the Commissioner thinks proper
to call upon to give evidence in the matter referred to him;
(b) call for and examine documents and other things relevant to the subject of
inquiry;
(c) at any reasonable time enter upon or into any land or building mentioned
in the order.

Expenses of Commissions to be Paid into Court

  Rule 15 of Order XXVI states that before issuing any commission under
this Order, the Court may order such sum (if any) as it thinks
reasonable for the expenses of the commission to be, within a time to be
fixed, paid into Court by the party at whose instance or for whose
benefit the commission is issued.

Evidentiary Value of the Report Submitted by the Commissioner

 According to Rule 10(2) of Order XXVI of CPC, the report and the
evidence submitted by commissioners forms a part of the record.
o But if the evidence is submitted without the report of the
commissioner, such evidence does not form part of the record.
 The report forms an important part of the case and can only be
challenged on sufficient grounds.
 The Court has the final say on how much reliance should be placed on
the report submitted by the Court.