Updated: Sunday December 06, 2015/AlAhad
Safar 24, 1437/Ravivara
Agrahayana 15, 1937, at 09:02:54 PM
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In exercise of powers
conferred by Sections 122 and 129 of the Code of Civil Procedure, 1908 and
Section 7 of the Delhi High Court Act, 1966 (Act 26 of 1966) and all other powers
enabling it, the Delhi High Court hereby makes the following Rules, after
previous publication with respect to practice and procedure for the exercise of
its ordinary original civil jurisdiction.
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CHAPTER
I |
General
R. 11.
Short title: These Rules may be called the
“
R. 22.
Commencement: These Rules shall come into force with
effect from such date1
as may be notified.
3. Application: All
proceedings on the original side of the Court instituted or transferred
pursuant to provisions of the Delhi High Court Act of 1966 or any other law
shall unless otherwise ordered by the Court be governed by these Rules.
4. Definitions: In
these Rules, unless the context otherwise requires:
(a) ‘Advocate’ means a
person who is entitled to practice the profession of law under the Advocates
Act, 1961 (Act No. 25 of 1961);
(b) ‘Chief Justice’ means
the Chief Justice of the High Court and includes appointed under the
Constitution to perform the duties of the Chief Justice;
(c) ‘Code’ means the Code
of Civil Procedure, 1908 (V of 1908) as amended from time to time;
(d) ‘Constitution’ means
the Constitution of
(e) ‘The Court’ or ‘This
Court’ means the
(f) ‘First hearing’
includes the hearing of a suit for settlement of issues and any adjournment
thereof;
(g) ‘Interlocutory
application’ means an application in any suit, appeal or proceeding, already
instituted in the Court, not being a proceeding for execution of a decree or
order;
(h) ‘Judge’ means the Judge of the Court;
(i) ‘Registrar’ means the
Registrar of the Court and includes any other officer of the Court to whom the
power and functions of the Registrar under these Rules may be delegated or
assigned;
(j) ‘Registry’ means the Registry of this Court;
(k) ‘Taxing Officer’
means the Taxing Officer appointed under Section 6 of the Court-fees Act and
includes the Officer of the Court whose duty is to tax costs of proceedings in
the Court;
(1) All other expressions used herein shall have the meaning
ascribed to them by the Code or the General Clauses Act, 1897 (10 of 1897), as
the case may be.
5. Steps to be taken in the
Registry: Where by these rules or by any order of
the Court, any step is required to be taken in connection with any suit, appeal
or proceeding before the Court, that step shall unless the context otherwise
requires be taken in the Registry.
R. 66.
Period how calculated: Where a particular number of days is
prescribed by these Rules or by or under any other law or is fixed by the Court
for doing any act, in computing the time, the day from which the said period is
to be reckoned shall be excluded, and if the last day expires on a day when the
office of the Court is closed, that day and any succeeding days on which the
Court remains closed shall also be excluded.
R. 77.
Forms to be used: The forms set out in the Court with such
modifications or variations as the circumstances of each case may require,
shall be used for the purpose therein mentioned. Where no form required for any
purpose is prescribed, a form approved by the Registrar, may be used.
R. 88.
How decree, order, writ etc. to run: Every decree, order,
writ-summons, warrant or other mandatory process shall in the name of the Chief
Justice and shall be signed by the Registrar or any other officer specifically
authorised in that behalf with the day, month and year of signing and shall be
sealed with the seal of the Court.
R. 99.
Official Seal: The official seal to be used in the Court
shall be such of the Chief Justice may from time to time direct and shall be
kept in the custody of the Registrar.
R. 1010.
Custody of the Records: The Registrar shall have the custody of the
records of the Court and no record or document filed in any cause or matter
shall be allowed to be taken out of the custody of the Court without the leave
of the Court.
R. 1111.
Hours of Sitting: Unless otherwise ordered by the Chief Justice, the Court
shall hold its sittings on all working days from 10.00 A.M. to 1.00 P.M. and
from 1.45 P.M. to 3.45 P.M.
12. Office Hours: The
Offices of the Court shall remain open daily from 9.30 A.M. to 4.30 P.M. 2[Any
urgent matter filed before 12 noon shall be put before the Court for hearing on
the following working day. In exceptional cases, it may be received thereafter
for hearing on the following day with the specific permission of the Hon’ble
Judge-in-Charge (Original Side)].
13. Process and copying fee: In
all proceedings on the Original Side of the Court process fee and copying fee
shall be charged in accordance with the rules in force immediately before the
appointed day fixed under Section 3 of the Delhi High Court Act of 1966.
14. Court’s power to dispense
with Compliance with the Rules: The Court may, for sufficient
cause shown, excuse the parties from compliance with any of the requirements of
these Rules and may give such directions in matters of practice and procedure
as it may consider just and expedient.
15. Application for the above
purpose: An application to be executed from
compliance with the requirements of any of the rules shall, in the first
instance, be placed before the Registrar, who may without interfering or
dispensing with any mandatory requirements of the rules, make appropriate order
thereon, or, if in his opinion, it is desirable that the application should be
dealt with the Court, direct the applicant, if the other party has entered
appearance, to serve a copy thereof on the said party, and thereafter place the
same before the Court on a convenient day for orders.
16. Courts power to enlarge or
abridge time: The Court may enlarge or abridge the time
appointed by these Rules or fixed by any order enlarging time, for doing any
act or taking any proceeding, upon such terms, if any as the justice of the
case may require, and any enlargement may be ordered, although the application
therefore is not made until after the expiration of the time appointed or
allowed.
17.
The Court at any time, either of its own motion or on the application of any
party, make such orders as may be necessary or reasonable in respect of any of
the matters mentioned in Chapter XXI of these Rules.
18. Inherent power of the
Court not affected: Nothing in these Rules shall be deemed to
limit or otherwise affect the inherent powers of the Court to make such orders
as may be necessary for the ends of justice or to prevent abuse of the process
of the Court.
19. Miscellaneous: Except
to the extent otherwise provided in these rules, the provisions of the Civil
Procedure Code shall apply to all proceedings on original side.
COMMENTS
Where a suit was filed by Bank
on the Original Side at
It is not correct to say that
because by the application of Rule 19, the orders which are appeal able are
restricted to those mentioned in Order 43 Rule 1 of CPC. There is a conflict
between Section 10(1) of
An interim stay order granted
by single Judge in Civil Writ Petition which is by way of extra ordinary civil
jurisdiction. Clause 10 of Letters Patent, Section 10 of
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CHAPTER
II |
Exercise
of Original Civil Jurisdiction
(Not found)
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CHAPTER
III |
Form
of Pleadings
1. Proceedings
how written: (a) Every plaint, written statement,
application petition and like presented to the Court: -
(i) shall be in English;
(ii) shall be fairly and legibly written, type written, lithographed
or printed in double spacing on one side of standard petition paper with an
inner margin of about four centimeters width on top and on the left side
(iii) cause title
shall be instituted “in the High Court of
(iv) paragraphs
shall be divided into paragraphs numbered consecutively, each paragraph
containing as nearly as may be, a separate allegation.
(b) Dates. Where
Saka or other dates are used, corresponding dates of Gregorian Calendar shall
also be given.
(c) Names etc. of parties. Full
name and parentage, description of each party and address and if such is the
case the fact that a party sues or is sued in a representative character, shall
also be set out at the beginning of the plaint, petition or application and
need not be repeated in the subsequent proceedings in the same suit or matter.
(d) The names of parties shall bear consecutive numbers and a
separate line should be allotted to the name and description of each party.
These numbers shall not be changed and in the event of the death of a party
during the pendency of the suit or matter, his heirs or representative, if more
than one shall be shown by sub-numbers. Where fresh parties are brought in,
they may be numbered consecutively in the particular category, in which they
are brought in.
(e) Every proceeding shall state immediately after the cause title
the provision of law under which it purports to be made.
2. Endorsements and
verification: At the foot of every pleading there shall
appear the name and signature of the Advocate, if any, who has drawn it and
also the name of a Senior Advocate, who may have settled it. Every pleading
shall be signed and verified by the party concerned in the manner provided by
the Code.
3. Particular to be stated in
address for service: The address for service shall be filed
with every initial pleading, petition or application on behalf of a party and
shall as far as possible containing the following: -
(i) The name of the road, street, lane or Municipal or other number
of the house;
(ii) The name of the town or village;
(iii) The post office or postal district; and
(iv) Any other particulars necessary to identify the addressee.
R 4. Initialing alteration etc. Every
interlunation, erasure or correction in any pleading, petition or application or
like document shall be initialed by the party or his recognised agent or
advocate presenting it.
5. Translation of documents. (1) No document in a language other than
English intended to be used in any proceeding before the Court shall be
received by the Registry unless it is accompanied by a translation in English,
(i) Agreed to by both the parties; or
(ii) Certified to be a true translation
(a) by a counsel engaged, in the case;
or
(b) by any other counsel whether engaged
in the case or not, provided a counsel engaged in the case authenticates such
certificate; or
(iii) Prepared by an official translator of the Court on payment of
the prescribed charges; or
(iv) Prepared by a translator specially appointed or approved for
the purpose by the Registrar on payment of such charges as he may order.
(2) A suit or other proceeding will not be set down for hearing
until and unless all parties confirm that all the documents filed on which they
intend to rely are in English or have been translated into English.
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CHAPTER
IV |
Presentation
of Plaint and Other Documents.
1. Presentation at the
counter: - All plaints, petitions, applications and
documents including application for leave to sue in forma paupris shall be presented by the plaintiff, petitioner
applicant, defendant or respondent in person or by his duly authorised agent or
by an advocate duly appointed by him for the purpose, at the filing counter.
All such documents filed in Court shall be accompanied by an index in duplicate
containing their details. The amounts of Court-fee affixed or paid on any such
document shall also be indicated in the index. Sufficient number of copies of
the plaint, petition or application shall also be filed for service on the
opposite party.
COMMENTS
Suit can be presented by a
duly authorised agent or by an advocate duly authorised by him for the purpose.
This authorisation, in the case of a company can be given only after a decision
to institute suit is taken by the Board of Directors of the company. The Board
of Directors may, in turn authorise a particular director, principal officer or
the secretary to institute a suit. M/s.
Nibro Ltd. v. National
Insurance Co., AIR 1991
2. Endorsement and scrutiny of documents: (a) The officer in charge of the
filing-counter shall endorse the date of receipt on the plaint, petition,
application or proceedings and also on the duplicate copy of the index and
return the same to the party. He shall enter the particulars of all such
documents in the registrar of daily filing and thereafter cause it to be sent
to the office concerned for examination. If on scrutiny, the document is found
to be defective, such document shall, after notice to the party filing the
same, be placed before the Registrar. The Registrar may for sufficient cause
return the said document for rectification or amendment to the party filing the
same, and for this purpose may allow to the party concerned such reasonable
time as he may consider necessary.
(b) Where the party fails to take any step for the removal of the
defect within the time fixed for the same, the Registrar may, for reasons to be
recorded in writing, decline to register the document.
(c) Any party aggrieved by any order made by the Registrar under
this rule may, within fifteen days of the making of such order, appeal against
it to the Judge in Chambers.
COMMENTS
In case a document is found to
be defective, it shall, after notice to the party filing the same be placed
before the Registrar. The Registrar may then for sufficient cause return the
said document for rectification or amendment and for this purpose may allow the
party concerned such reasonable time as he may consider necessary. If, however,
a party fails to take any steps for the removal of the defects within the fixed
time, the Registrar may decline to register the documents for reasons to be
recorded in writing. State Bank of
Application to bring legal
representatives of deceased defendant on record must be accompanied with an
affidavit. Rule 2(c) is mandatory, ILR (1973) H.P. 1314.
R. 33.
Service on the opposite party: (a)
Where notice of an interlocutory application is issued by the Court, a copy of
the application, the affidavit in support thereof (and if so ordered by the
Court, of other documents filed therewith), if any, shall be served along with
the notice on the other party.
(b) The aforesaid copies shall show the date of presentation of the
original and the name of the advocate, if any, of such party.
4. Registration of proceedings
admitted. On admission, plaints, petitions and
applications shall be registered in the appropriate registers and their number
entered thereof.
5. Ex-parte amendments. Amendments
to pleading, which are made only for the purpose of rectifying some clerical
errors, may be made on an order of the Registrar without notice. 6
6. Attestation of amendments.
The attestation of any amendment under Order II, Rules 6 and 7, Order VI, Rules
16 and 17. Order VII, Rule 11 and Order XXI, Rule 17 of the Code shall unless
otherwise ordered by Court, be done by the Registrar.
The amendment of any plaint or
other proceeding carried out under the order of the Court shall unless
otherwise directed by the Court also be attested by the Registrar.
6-A.
Notwithstanding anything contained in Order 5 Rules 10 and 20-A of the Code of
Civil Procedure 1908 the Court may in the very first instance issue summons by
registered post (acknowledgement due) in addition to the ordinary way.
R. 77.
Registers to be maintained. The following Registers shall be kept on
the original Civil Side by such ministerial officer or officers as the
Registrar may, subject to any order of the Chief Justice, direct: -
(i) Register of rejected plaints;
(ii) Register of Civil Suits;
(iii) Register of documents filed in
Civil Suits;
(iv) Register of Miscellaneous
applications;
(v) Register of Wills;
(vi) Register of decree received for execution from other Courts;
and
(vii) Register of Execution Applications
8. Arrangement of record in
pending matters: The record of a regular suit shall be
divided into the following four parts: -
(i) Main file;
(ii) Miscellaneous application file;
(iii) Process file; and
(iv) Execution file. 9
9. Contents of main file.
The main file shall be kept in the following order: -
(i) Diary;
(ii) Order sheet;
(iii) Plaint together with any schedule annexed thereto;
(iv) Written statement;
(v) Any other pleading;
(vi) Memorandum of issue;
(vii)(a) Oral evidence,
(b) Evidence taken on commission; and
(c) Documentary evidence.
(viii) Application for reference to arbitration, the award of
arbitrator petition of compromise and report of the Commissioner, and objections
to the Commissioners report, if any;
(ix) Judgment and decree; and
(x) Copy of the judgment and of the decree of the Appellate Court or
Courts, if any.10
10. Miscellaneous
applications’ file. In the miscellaneous applications’ file
there shall be kept all petitions, affidavits, and other documents not
specifically included in any other file.
11. Process file.
The process file shall contain: -
(i) The index;
(ii) Powers of attorney;
(iii) Summons and other processes and affidavits relating thereto;
(iv) Applications for summoning witness;
(v) Letters, etc., calling records etc;
(vi) All other miscellaneous papers. 12
12. Execution file.
The execution file shall contain: -
(i) The diary;
(ii) The execution application;
(iii) The order sheet;
(iv) All processes and other papers connected with such execution
proceedings.’
R. 1313.
Distribution to proper files. The splitting up of the record and the
distribution of the papers into the proper files shall in all cases be done at
the outset and shall be continued from time to time as and when they are
received, papers in each file shall be paged separately.
R. 1414.
One file in miscellaneous applications. For applications there may
be only one file with a title page prefixed to it. Immediately after the title
page shall be filed the diary, the miscellaneous application, the order sheet
and then other document.
R. 1515.
Diaries. Diaries shall be kept by the Reader in
such form as may be prescribed. They shall be written legibly. The diary in the
main file shall show a concise history of the suit or matters including the
substance of the order passed on all interlocutory applications therein. The
diary in execution proceedings shall contain a complete record of all
proceedings in execution of a decree.
R. 1616.
Order sheet. (a)
The order sheet shall contain all orders passed by the Court at any hearing.
(b) All orders shall be in English and signed by the Judge.
(c) The order sheet shall also contain reference to the application,
return, or other similar document with respect to which an order is made.
(d) Except in the case of such routine orders as “call for the
record”, “put up with the record”, and orders made in chambers, orders shall
not be written on applications, returns report and other similar documents.
17. Removal of record from
Court house. No members of the establishment shall
remove any official paper or record whatever, from the Court house without the
special sanction of the Registrar.
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CHAPTER V |
Vakalatnama
R. 11.
Execution and filing of Vakalatnama: An advocate on his filing a
Vakalatnama duly executed by a party shall be entitled to act as well as to
plead for the party in the matter and to conduct and prosecute all proceedings
that may be taken in respect of such matter or any application connected with
the same or any decree or order passed therein including proceedings in
taxation and applications for review, execution and appeal in the High Court
and to take all such other steps as he may be specifically authorised by the
power of attorney.
2. Certificate of fee: Every
Advocate shall before the commencement of the final arguments in the suit or
matter file a certificate showing the amount of fee paid with date of payment
or agreed to be paid to him.
3. Endorsement in Vakalatnama: No
Vakalatnama shall be accepted unless it contains the following under the
signature of the Advocate:
(i) An endorsement in token of its acceptance with the date of
acceptance; and
(ii) The address for service of the
Advocate.
R. 44.
Notice of determination of authority of Advocate: A
party desiring to obtain an order for determination of the authority of his
Advocate who has filed a Vakalatnama on his behalf in a suit or matter shall do
so by application after first giving notice thereof to the Advocate, and the
fact of such notice having been served shall be stated in the affidavit in
support of such application.
5. Notice of discharge to a
client—An Advocate in a suit or matter desiring to
obtain an order for his discharge, shall first give notice of his intended
application for discharge to his client and the fact of such notice having been
served shall be stated in the application:
Provided that an Advocate may
be discharged by consent of the Advocate and the party by a letter addressed to
the Registrar and signed by the Advocate and the party.
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CHAPTER VI |
Appearance by Defendant, Written Statement,
Set off and Counter Claim
R. 11.
In default of appearance by defendant suit to be posted on short cause day: If
on the day fixed for his appearance in the writ of summons the defendant does
not appear and it is proved that the summons was duly served, the suit shall
whether the summons was issued for final disposal or not, be set down for final
disposal on the next or some subsequent short cause day.. 2
2. Procedure when defendant
appears: If the defendant appears personally or by
an advocate before or on the day fixed for his appearance in the writ of
summons: -
(i) Where the summons had been issued for final disposal, the suit
shall be set down for final disposal on the next or subsequent short cause day;
(ii) Where the summons is for appearance and for filing written
statement on the date fixed for appearance. A copy of the written statement
shall be served on plaintiff and the written statement shall not be accepted
unless it contains an endorsement of service signed by such party of his
Advocate.
R. 33.
Extension of time for filing written statement: Ordinarily,
not more than one extension of time shall be granted to the defendant for
filing a written statement provided that a second or any further extension may
be granted only on an application made in writing setting forth sufficient
grounds for such extension and supported, if so required, by an affidavit.
4. Omitted.
R. 55.
Service of copies of written statement and list of documents on the other side: No
written statement or list of documents shall be filed without the leave of the
Court unless a copy thereof has been previously served on each party or his
advocate. Parties or their advocates served with such copies shall give a
receipt therefor. Copies shall be authenticated by the signature or initials of
the parties or their advocates on each page at the bottom of the left hand
margin.
R. 66.
Orders as to claims for set-off: Where a defendant pleads a
set-off under Order VIII, Rule 6 of the Code, the Court on the application of
the plaintiff made in that behalf may at any stage of the proceedings and after
hearing the defendant make an order directing that the claim for set-off be
tried separately or make such other order as may be just.
R. 77.
Counter-claim by defendant: (a)
A defendant in a suit, in addition to his right of pleading a set-off under
Order VIII, Rule 6 of the Code may set up by way of counter claim against the
claims of the plaintiff and right or claim, whether such counter-claim sounds
in damages or not.
(b) Subjection to be provisions of Rule 10, such counter-claim shall
have the same effect as a cross-suit so as to enable the Court to pronounce a
final judgment in the same suit, both on the original and on the counter claim.
R. 8. Counter claim to be specifically pleaded: Where
any defendant seeks to rely upon any grounds as supporting the right of
counter-claim he shall, in his written statement, state specifically that he
does so by way of counter-claim.
R. 9. Reply to counter-claim: When
a counter-claim is made in a written statement plaintiff may deliver a reply to
the counter-claim within three weeks or within such further time as the
Registrar may for sufficient cause allow.
R. 1 10. Orders on counter-claim: Where
a defendant sets up a counter-claim, the Court on the application of the
plaintiff made in that behalf at any stage of the proceedings and after hearing
the defendant make an order directing that the counter claim be tried
separately or make such other order as may be just.
11. Proceeding with the
counter-claim where suit is stayed etc. Where in any case in which
the defendant sets up a counter claim the suit of the plaintiff is stayed
discontinued or dismissed the counter claim may nevertheless be proceeded with.
R. 1212.
Order XX Rule 19 to apply to decree in such suits: Sub-rule
(1) and (2) of Rule 19 of Order XX of the Code shall apply to the decree in a
suit in which counter-claim is made.
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CHAPTER VII |
Directions
R. 11.
Setting down for directions: When the pleadings have been closed, the
suit shall after fifteen days thereof be set down before the Registrar for
directions:
Provided that any party may apply for
directions before closing of the pleadings and the Registrar may grant or
refuse such application.
R. 22.
Issuing of directions: On the suit coming for directions before
the Registrar, he shall so far as practicable, make such orders as may be
proper with respect to the following matters:
Admission, discovery,
interrogatories and inspection of documents.
R. 33.
Appeal from Registrar to a Judge: Rule 4 of the Chapter II
shall apply in the event of any party wishing to have any matter on which
directions have been given by the Registrar, under Rules 1 and 2 of this
Chapter, referred to the Court.
R. 44.
Date for settlement of Issues by Court: After the pleadings have
been closed and the directions, if any, given, have been duly complied with, a
date, shall be fixed for settlement of issues by the Court.
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CHAPTER VIII |
Admissions, Denials, Framing of Issues and
Examination of Parties
R. 1-A1-A.
Proceeding at the First hearing: On the date fixed for
defendant’s appearance, the parties or their advocates, shall produce before
the Court all the documents in their power or possession upon which they intend
to rely. On the first hearing the Court shall ascertain from each party or his
advocate whether he admits or denies such allegations of fact as are made in
the plaint or written statement (if any) of the opposite party, and as are not
expressly or by necessary implication admitted or denied by the party, against
whom they are made. The Court shall record such admissions or denials.
1-B.
“Copies of all documents filed by parties will be supplied to the opposite
party or parties unless it be impracticable to prepare a copy in which case the
relevant extract of the documents may be supplied. The expense incurred for
supplying copies will be taxable as costs.
2. Judgment at the first
hearing: If on the hearing, judgment is confessed by
the defendant, then the Court shall proceed to judgment. If on that date the
defendant appears and the plaintiff does not appear, the Court shall make an
order that the suit be dismissed, unless the defendant admits the claim or part
thereof, in which case the Court shall pass a decree against the defendant upon
such admission, and where part only of the claim has been admitted, shall
dismiss the suit so far it relates to the remainder.
3. Examination of parties etc.
at the first hearing: If at the first hearing the defendant does
not admit the claim the Court shall examine any party appearing in person or
present in Court, or any person able to answer any material questions relating
to the suit by whom such party or his advocate is accompanied. The Court, may,
if it thinks fit, put in the course of such examination question suggested by
either party.
4. The
substance of the examination shall be reduced into writing and shall form part
of the record, and where after such examination it appears that the parties are
not at issue on any question of law or of fact, the Court may at once pronounce
judgment.
5. Disposal of the matter at
the first hearing: (1)
Where the parties are at issue on some question of law or of fact, the Court
may frame issues, and if satisfied no further argument or evidence than that
the parties can at once adduce is required upon such of the issues as may be
sufficient for the decision of the suit, and that no injustice will result from
proceeding with the suit forth-with, may, proceed to determine such issues,
and, if the finding thereon is sufficient for the decision, may pronounce
judgment accordingly.
(2) Further Proceeding. Where
the finding is not sufficient for the decision, the Court shall adjourn the
matter directing the parties to file a list of witnesses, which they propose to
produce in support of their respective cases. The parties shall along with the
said list file further documents, if any. They shall also indicate the
particular fact or documents which is sought to be proved by the evidence of a
witness. On the date so appointed, the Court shall after examining the said
list and the particulars give further direction as to the hearing of the suit.
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CHAPTER IX |
Interlocutory
Applications
1. Form: Every
interlocutory application shall be instituted in the suit or matter in which it
is filed.
2. Contents of applications: (i) Except where otherwise provided by
these Rules or by any law for the time being in force, an interlocutory application:
(a) shall contain only one prayer or one series of alternative
prayers of the same kind;
(b) shall not contain any argumentative
matter;
(c) shall be supported by affidavit stating clearly the grounds and
the facts on which the application is based.
(ii) Copies of the application, affidavit and of such other
documents annexed thereto as the Registrar may direct shall also be filed for
being served on the opposite side.
3. Counter-affidavits etc. (i) Unless otherwise ordered by the
Court, counter-affidavit shall be filed not less than four days before the
hearing.
(ii) Not more than one affidavit in rejoinder may be filed without
the leave of the Court. Such affidavit, unless otherwise ordered by the Court,
shall be filed not less than two days before the date of hearing. Such
affidavit shall be confined strictly to matter of reply.
(iii) No counter-affidavit and no affidavit in rejoinder shall be
filed unless a copy thereof and copies of annexures thereto, if any, have been
previously served on each party or his advocate. Parties or their Advocates
served with such copies shall give a receipt therefor. Copies shall be
authenticated by the signature or initials of the parties or their advocates at
the end of the copy.
(iv) Except by leave of the Court, no affidavit in support of an
application no counter-affidavit and no affidavit in rejoinder beyond those
which are filed and copies of which with annexures thereto served in time as
aforesaid shall be used at the hearing or allowed on taxation.
(v) Where any affidavit, counter-affidavit or affidavit in rejoinder
is not filed or served as aforesaid it shall be kept separately in the record
of the case until leave of the Court has been obtained under sub-rule (iv).
COMMENTS
Where the application is an
‘interlocutory application’ within the meaning of Chapter IX of the
The rules in Chapter IX of
Delhi High Court Original Side Rules and Rules 5, 6 and 7 of Chapter 1-C of
Vol. V of Punjab High Court Rules and Orders which are concerning interlocutory
proceedings are not mandatory in nature, inspite of the use of word ‘shall’.
They are merely directory. When the defects regarding presentation of complaint
or absence of signature or verification are treated as mere irregularity, which
can be cured at a date subsequent to the date of filing the suit and date of
institution of the plaint, would not change, there is no reason why the same
position should not hold good even in respect of the applications for the
substitution of L.R’s. Suraj Kund
Temple and another v. Rama Kant
and others, AIR 1989 H.P. 59.
|
CHAPTER X |
Commissions
Commission to Examine
Witnesses
R. 11. (a) Applications for issuance of
commissions to examine witness shall be made by the parties within 30 days from
the date of the settlement of issues and shall be supported by an affidavit
disclosing the nature of the evidence each of the witness is expected to give.
If the witnesses are sought to be examined on interrogatories, the
interrogatories will be submitted along with the application. Copies of such
application, affidavit and interrogatories shall be served on the opposite
party.
(b) No application for the issuance of such commission shall be
entertained after the suit or matter has been set down for trial unless the
Court is satisfied that application could not have been made earlier, and in
that event the Court may make such order as to costs or otherwise as it deems
fit.
2. (a) If the opposite party objects to the
issuance of the commission, he shall file a reply supported by an affidavit, if
necessary within 10 days of the service on him of the aforesaid documents. The
application with the reply, if any, shall thereupon be placed before the Court
for orders.
(b) If the application is allowed and the order be for the
examination of the witnesses on interrogatories, the opposite party shall file
cross-interrogatories within 10 days of the date of the order and serve copies
thereof on the other party, who shall within 7 days thereafter file
reinterrogatories, if any. The matter will then be placed before the Court for
final orders and the objections, if any, to the cross-interrogatories and
re-interrogatories will be disposed of.
3. Final hearing may be fixed
after return of commission: If the application referred to in Rule 1 or
2 is granted, the matter may not be set down for final disposal before the
return of the commission, except by order of the Court.
COMMENTS
Practice direction of Delhi
High Court, requiring defendant to examine his witnesses on Commission before
examination of plaintiff’s witnesses does not alter rules of evidence in
Evidence Act and Order 18, Rules 1 & 2 of C.P.C. Kishan Lal Gupta v. M/s.
Dujodwala Industries, AIR 1977 Delhi 49.
Rules 1 and 3 of
R. 44.
Preparation etc. of Commission: Commission shall be prepared
by the Registrar who shall seal the same and annex thereto the interrogatories,
cross-interrogatories, re-interrogatories and documents, if any, and shall
enclose it (with directions that the same be returned to him when executed) in
a sealed envelope.
COMMENTS
In
a suit on promissory note, where the defendant in his defence by affidavits did
not make it incumbent on the holder of the pronote to prove consideration,
grant of conditional leave by the trial Court under Rule 4 was upheld, ILR
(1973) 1 Delhi 123.
5.
Commissions within local limits: Commissions for examination
of a person within the local limits of the Court shall be executed by a
Commissioner appointed by the Court.
6.
Examination de
bene esse—Commissions
for examination of witness de bene
esse may be issued at any time notwithstanding any thing hereinbefore
contained in cases where it is not possible for the examination to be conducted
by the Court.
7.
Return of Commission: (a)
Every order for the issue of a commission of Letter of Request may appoint a
date allowing sufficient time for its execution and return.
(b) If the Commissioner is unable to return the commission duly
executed within the time fixed by the Court, the Court may extend the time or
cancel the commission and may appoint another commissioner in his place.
8. Deposition to be read over
to and signed by the witness: The evidence shall be recorded as far as
possible in the narrative and in the language in which it is given by the
witness; where it is not possible to do so, it may be recorded in English.
After taking down the deposition of any witness but before obtaining his
signature thereon, it shall be distinctly read over and, when necessary,
interpreted to the witnesses and thereafter left with the Commissioner who
shall subscribe his name and date of the examination.
Commissions
for Accounts etc.
R. 99.
Commissioner for taking accounts etc. The Court may appoint a
suitable person as Commissioner for taking accounts, making local
investigations and effecting partition of immovable property.
10. Registrar to send
necessary proceedings to Commissioner: The Registrar shall furnish
the Commissioner with such part of the proceedings as may be necessary.
11. Commission for taking
accounts how executed: (a)
The Commissioner shall fix the period within which the statements of accounts
and objections thereto are to be filed by the parties concerned.
(b) The statement of account shall be in the form of a debtor and
creditor account and shall be verified by the party concerned or his agent.
The items on each side of the
account shall be numbered consecutively and a balance shall be shown.
(c) The statement of objections shall specify the items to which
objections are taken by reference to their numbers in the statement of account.
(d) The statement and objections shall also state (i) the grounds of
each objection, and (ii) the balance, if any, admitted or claimed to be due:
and it shall be verified by the affidavit of the party concerned or his agent.
(e) If any party fails to file his statement of account or
objections within the period allowed, the Commissioner shall report the fact to
the Court.
(f) When the case before him is ready for hearing, the Commissioner
shall, after reading the statements filed before him and after examining the
parties, if necessary, ascertain the points on which the parties are at issue
and require them to produce their oral and documentary evidence on such points.
(g) After the evidence has been duly taken and the parties have been
heard, the Commissioner shall submit his report together with the entire record
and a statement in the form of dairy of the proceedings before him. The report
shall state:
(i) The contested items allowed or disallowed by the Commissioner;
(ii) The reasons for allowing or disallowing the above;
(iii) The amount found due ;
(iv) The name of the party to whom it is
due ; and
(v) The name of the party by whom it is
due.
R. 1212.
Deposit of Commission fees: (a)
The Commissioner shall be paid such fees and in such manner as may be ordered
by the Court.
(b) The Court or the Registrar, as the case may be, may order that
such amount as it or he considers proper, be deposited in Court in advance
towards the Commissioner’s fees, together with the costs of issue of the
commission, within seven days of the grant of the commission or letter of
Request or within such further time as may be allowed. In default, the matter
shall, unless otherwise ordered for reasons recorded in writing, be set down
for final disposal in due course.
(c) If at any subsequent time the Court is satisfied that the
deposit made under sub-rule (b) is not sufficient to cover the remuneration of
the Commissioner, if may, after notice to the parties or their Advocates, order
that such further amount as it considers proper be deposited in Court within
seven days from the date of such order or within such further time as the Court
may allow. In default, the procedure prescribed in sub-rule (b) shall be
followed.
13. Notice of filing of
report; Filing objections thereto: (a) On receipt of the report of the commissioner other than the
report forwarding the deposition of a witness recorded by him, the Registrar
shall give notice to the parties to the suit or matter of the filing of the
report.
(b) Any party desiring such report to be set aside or varied shall,
unless the Registrar, otherwise directs, within ten days from the date of the
service of such notice on him, file his objections thereto that serve a copy of
the same on the other parties to the suit or matter. After the objections have
been filed as aforesaid, the suit shall be set down for hearing of such
objections. If any party after having filed objections/ abandons or does not
proceed with them, any other party in the same interest shall be at liberty to
proceed with such objections.
14.
Notwithstanding anything contained in this Chapter Commissions and letters of
Request for examination of witnesses in foreign countries will be governed by
the directions issued by the appropriate authorities from time to time.
|
CHAPTER
X-A |
Evidence
on Commission at Court’s Discretion
Commissions to examine parties
and witnesses: Notwithstanding anything contained in
Order XXVI of the Code of Civil Procedure, 1908, the Court may, at its
discretion, in any suit, at any stage, direct that the parties and witnesses be
examined on Commission. The evidence recorded on Commission shall be read as
evidence in the suit.
COMMENTS
It is due to some drastic
requirement that Chapter X-A had been incorporated in the
Appointment of Local
Commissioner for recording of evidence—One Division Bench taking a different
view from the earlier division bench. Because the question of law involved in
earlier Bench was left open, the decision of earlier Division Bench ceased to
be binding and the subsequent Division Bench can reconsider the whole matter
afresh without referring the same to a larger bench. The decision in Deepak Kapur v. Ashok K. Ghose, 1994 (30) DRJ 489 is
no longer good law. Fashion Linkers
& others v. Savitri Devi
& Anothers, 1995 (35) DRJ 195 : 1995 (60) DLT 169 : 1995 (4) AD (
|
CHAPTER
IX |
Interlocutory
Applications
1. Form: Every
interlocutory application shall be instituted in the suit or matter in which it
is filed.
2. Contents of applications: (i) Except where otherwise provided by
these Rules or by any law for the time being in force, an interlocutory
application:
(a) shall contain only one prayer or one series of alternative
prayers of the same kind;
(b) shall not contain any argumentative
matter;
(c) shall be supported by affidavit stating clearly the grounds and
the facts on which the application is based.
(ii) Copies of the application, affidavit and of such other
documents annexed thereto as the Registrar may direct shall also be filed for
being served on the opposite side.
3. Counter-affidavits etc. (i) Unless otherwise ordered by the
Court, counter-affidavit shall be filed not less than four days before the
hearing.
(ii) Not more than one affidavit in rejoinder may be filed without
the leave of the Court. Such affidavit, unless otherwise ordered by the Court,
shall be filed not less than two days before the date of hearing. Such
affidavit shall be confined strictly to matter of reply.
(iii) No counter-affidavit and no affidavit in rejoinder shall be
filed unless a copy thereof and copies of annexures thereto, if any, have been
previously served on each party or his advocate. Parties or their Advocates
served with such copies shall give a receipt therefor. Copies shall be
authenticated by the signature or initials of the parties or their advocates at
the end of the copy.
(iv) Except by leave of the Court, no affidavit in support of an
application no counter-affidavit and no affidavit in rejoinder beyond those
which are filed and copies of which with annexures thereto served in time as
aforesaid shall be used at the hearing or allowed on taxation.
(v) Where any affidavit, counter-affidavit or affidavit in rejoinder
is not filed or served as aforesaid it shall be kept separately in the record
of the case until leave of the Court has been obtained under sub-rule (iv).
COMMENTS
Where the application is an
‘interlocutory application’ within the meaning of Chapter IX of the
The rules in Chapter IX of
Delhi High Court Original Side Rules and Rules 5, 6 and 7 of Chapter 1-C of
Vol. V of Punjab High Court Rules and Orders which are concerning interlocutory
proceedings are not mandatory in nature, inspite of the use of word ‘shall’.
They are merely directory. When the defects regarding presentation of complaint
or absence of signature or verification are treated as mere irregularity, which
can be cured at a date subsequent to the date of filing the suit and date of
institution of the plaint, would not change, there is no reason why the same
position should not hold good even in respect of the applications for the
substitution of L.R’s. Suraj Kund
Temple and another v. Rama Kant
and others, AIR 1989 H.P. 59.
|
CHAPTER XII |
Adjournments
1.
Adjournments to be to a day certain: All adjournments shall be to
a day certain. No suit or matter shall be adjourned sine die except for reasons recorded in writing.
R. 22.
Adjourned granted only on good cause—No adjournment shall be
granted except on good cause shown. The consent of parties shall not or itself
be a good cause for adjournment.
|
CHAPTER XIII |
Proceedings at the Hearing of Suits and up
to and Inclusive of Decrees
R. 11.
Evidence, how taken: (a)
Upon the hearing of any suit or matter the evidence of each witness shall be
taken down by or in the presence and under the superintendence of the Judge,
ordinarily in the form of a narrative.
(b) A party to a suit or matter in which deposition of a witness has
been taken down in shorthand or typed to the dictation of the Judge shall be
entitled to be furnished on payment of the prescribed fee with a typed copy of
the transcript, provided that ordinarily a written application has been made at
the commencement of the hearing to be so furnished with a copy.
2. Any particular question and
answer may be taken down: The Court may of its own motion or at the
request of any party or his advocate, take down or cause to be taken down any
particular question and answer, or any objection to any question.
3. Numbering of witnesses and
documents: Depositions of witnesses of both sides and
documents admitted in evidence shall be numbered in such manner as the Court
may direct.
4. Witnesses not to be present
in Court during hearing of the suit: Witnesses other than the
parties shall not, unless otherwise ordered by the Court be present during the
hearing of the suit or other matter in Court-room before their depositions have
been recorded.
5. Exhibits other than in
English to be translated: Except by leave of the Court, no document
not in English language, shall be read or received in evidence unless it is
translated in English-in accordance with the rules.
6. No compromise without leave
of Court in pauper suits: Where a plaintiff has been permitted to sue in forma pauperis the suit shall
not be compromised without leave of the Court.
7. Written judgment of two or
more Judges how pronounced: (1)
Judgments may be either oral or written;
(2) When the Court delivers an oral judgment, it shall be taken down
by the shorthand-writer. A transcript shall then be prepared for correction by
the Judge or Judges who delivered the judgment. A fair copy of the transcript
so corrected shall be signed by the Judge or Judges and dated with the date of
delivery and shall be the record of the judgment.
7-A. When
any suit or matter is heard by two or more Judges: -
(i) If they have agreed to a written judgment and signed it, one of
them may pronounce the judgment in the absence of the other or others;
(ii) if any one or more of them have written separate judgments, one
of them any pronounce the judgments written and signed by the other or others
in his or their absence.
7-B.
Where a written judgment is to be pronounced it shall be sufficient if the
finding of the Court on each issue and the final order passed in the case are
read out, and it shall not be necessary for the Court to read out the whole
judgment; but a copy of the whole judgment shall be made available for the
perusal of the parties or their pleaders immediately after the judgment is
pronounced.
8. Payment of costs a
condition precedent for bringing a fresh suit:
When a suit is allowed to be withdrawn with liberty to bring a fresh suit in
respect of the same subject-matter then unless the Court shall otherwise direct
the other shall be drawn up so as to make the payment of the costs of the suit
a condition precedent to the plaintiff bringing a fresh suit.
9. Settling of draft of decree: Where
the Registrar considers it necessary that the draft of any decree or other
should be settled in the presence of the parties or where the parties require
it to be settled in their presence, the Registrar shall, by notice in writing,
appoint a time for settling the same and the parties shall attend the
appointment and produce the briefs and such other documents as may be necessary
to enable the draft to be settled.
10.
Where any party is dissatisfied with the decree or other as settled by the
Registrar, the Registrar shall not proceed to complete the decree or order
without allowing that party sufficient time to apply by motion to the Court.
11. Copies of decrees to
Collector in case of pauper costs: The Registrar shall cause
copies of decrees to be prepared without delay for communication to the
Collector in cases in which pauper costs are recoverable by the Government.
12. Errors how rectified after
decree sealed: After a decree or order has been sealed,
any application to rectify any inaccuracy other than a clerical or arithmetical
error and to make it in accord with the judgment, shall be made to the Judge
who passed the decree or order, or in the event of his absence, to any other
Judge, and the Judge may after notice to the parties, when he deems it
necessary amend the same so as to bring it into conformity with the judgment,
or rectify such inaccuracy or error. Save as aforesaid no alternation or
variation shall be made without a review of judgment, and re-hearing under the
provisions of Section 114 and Order XL VII of the Code.
|
CHAPTER
XIV |
Suits
by or Against Minors and Persons of Unsound Mind
R. 11.
Admission of next friend to bring a suit formal order unnecessary: When
a suit is brought on behalf of a minor, the next friend shall make an
affidavit, to be presented with the plaint in the suit, that he has no interest
directly or indirectly adverse to that of the minor, and that he is otherwise a
fit and proper person to act as such next friend. The age of the minor shall
also be stated. No formal appointment of the person instituting the suit as
next friend need be made.
2. Next friend to file address
for service: (a)
The next friend shall file along with the plaint a memorandum in writing
stating his address for service.
(b) If the next friend fails to file his address for service as
aforesaid or within such further time as the Registrar may allow, the plaint
shall not be admitted.
3. List of all likely
guardians ad litem to be filed: (a) In suits where the defendant is a
minor, the plaintiff shall file with the plaint a list of relatives and all
other persons with correct addresses, who prima facie are most likely to be capable of acting as guardian
for the minor defendant in the suit.
(b) A notice shall issue simultaneously to all such persons, single
process fee being levied. Such persons shall be deemed to be unwilling to act
as guardian ad litem, if, after
service of notice, they fail to appear on date fixed.
(c) If the persons specified in the list filed under sub-rule (1)
are unwillingly act as guardian ad
litem, the Registrar may, it there be more defendants than one and their
interests are not adverse to the minor, appoint one of such defendants who may
be willing to act as guardian ad
litem; or may appoint forthwith one of the officers of the Court as such
guardian ad litem.
4. Address for service of
guardian ad litem—Every guardian ad litem of a defendant other than an
officer of the Court, shall, within
seven days of the order of his appointment as such or within such
further time as the Registrar may allow, file in Court a memorandum in writing
stating his address for service. Failure on his part to do so may be deemed
sufficient ground for removing him under Rule II of Order XXXII of the Code.
5. Application of Rules 1 to 4
to persons of unsound mind and to appeals and applications—The
provisions contained in this Chapter so for they may be applicable extend mutatis mutandis to persons adjudged
to be of un-sound mind and to persons who, though not so adjudged are found by
the Court, on enquiry to be incapable of protecting their interests when suing
or being sued by reason of unsoundness of mind or mental infirmity. These
provisions shall apply to appeals and applications connected therewith.
|
CHAPTER XV |
Summary Suits
Order XXXVII of the Civil
Procedure Code as in force from time to time shall apply to suits filed under
this Chapter.
|
CHAPTER XVI |
Commercial
Suits
1. Commercial cases defined: Commercial
suits include suit arising out of the ordinary transactions of merchants,
bankers and traders; and amongst others those relating to the construction of
mercantile documents, export or import of merchandise, affraightment, carriage
of goods by land, sea or air insurance, banking and mercantile agency and
mercantile usages.
2. Plaint in such cases to be
marked “Commercial” Suits: Where a plaintiff, on the presentation of
the plaint, applies that his suit may be dealt with as a commercial suit, the
Registrar shall if satisfied that the suit is a commercial suit and has been
brought without undue delay, cause the plaint to be marked with the words
“Commercial Suit” in addition to the usual endorsements.
Explanation. A suit which has been brought
within six months of the cause of action having arisen has been brought without
undue delay.
|
CHAPTER XVII |
Dates and Cause Lists
1. Cause lists: (a) On such day in the week as may be
fixed by him, the Registrar shall sit to fix dates in suits, miscellaneous and
interlocutory applications and other matters pending on the original side.
(b) Subject to the orders of the Court, matters fixed for final
disposal on any day of the week shall be entered in the list for that day
according to the date of their registration provided that precedence be given
to :
(i) Part-heard matters;
(ii) As between the suits of the same year to commercial suits.
(c) The cause list shall be prepared under the directions of the
Registrar and signed by him;
(d) If there be more Judges than one on the Original Side, a
separate cause-list of the matters before each Judge shall be prepared in the
manner aforesaid.
2. Day for short causes: Short
causes shall be set down for hearing on such date as may be appointed for the
purpose.
3. What are short causes: The
following suits or matters shall be deemed to be short causes: -
(1) Ex-parte suits;
(2) Undefended suits;
(3) Suit to which Chapter XV applies;
(4) Mortgage suits, rent suits on bonds or acknowledgement;
(5) Objection to Commissioner’s report;
(6) Such other suits or matters as may, by special order of the
Court, be directed to be tried as short causes.
Any other suit or matter shall be deemed to
be a long cause.R. 4
4. Fixing of dates for final
disposal: Suits to which Chapter XV applies shall
not be set down for hearing till the expiration of 10 days from the date of
service of summons. If an application for leave to defend is filed within those
ten days, notice shall be given to the plaintiff or his advocate and the suit
shall be set down for hearing of the application instead of for final disposal.
|
CHAPTER
XVIII |
Affidavits
1. Proof of facts by
affidavits: The Court may at any time for sufficient
reasons, order that any particular fact or facts may be proved by affidavit, or
that the affidavit of any witness may be read at the hearing, on such
conditions as the Court thinks reasonable:
Provided that where it appears
to the Court that either party bona
fide desires that production of a witness for cross-examination and that
such witness can be produced, an order shall not be made authorising the
evidence of such witness to be given by affidavit.
COMMENTS
In order to justify an Order
directing the parties to produce affidavits in support of their cases, there
must be sufficient reason. Punjab and
Sind Bank v. M/s. Manjit
Properties (P) Ltd., AIR 1995
2. Evidence by affidavit: Upon
any application evidence may be given by affidavit; but the Court may, at the
instance of either party, order the attendance for cross-examination of the
Deponent, and such attendance shall be in Court, unless the Deponent is
exempted from personal appearance in Court or the Court otherwise directs.
3. Title. Every
affidavit shall be instituted in the cause, appeal or matter in which it is
sworn.
4. Form. Every
affidavit shall be drawn up in the first person, and shall be divided into
paragraphs to be numbered consecutively, and shall state the description,
occupation if any and the true place of abode of the Deponent.
5. Contents of affidavit. Affidavits
shall be confined to such facts as the Deponent is able of his own knowledge to
prove, except on interlocutory applications, on which statements of his belief
may be admitted, provided that the grounds thereof are stated.
6. Interpretation of
affidavits. An affidavit requiring interpretation to
the deponent, unless interpreted by any of the persons mentioned in Rule 7,
shall be interpreted by an interpreter nominated or approved by the Court, if
made within the jurisdiction of this Court, and if made elsewhere, shall be
interpreted by a competent person who shall certify that he has correctly
interpreted the affidavit to the Deponent.
7. Before whom affidavits are
to be sworn. Affidavits for the purposes of any cause
appeal or matter before a Notary or any authority mentioned in Section 139 of
the Code or before the Registrar of the Court, or before the Commissioner
generally or specially authorised in that behalf by the Court. The authority
attesting any such affidavit shall wherever the person is know to him, append a
certificate to that effect on the affidavit and where the person affirming the
affidavit is not known to the authority concerned the certificate shall state
the name of the person by whom the person affirming the affidavit has been
identified.
Wherever an affidavit is
affirmed by an illiterate person or a person not conversant with the English
language, the authority concerned shall before attesting the same translate and
interpret the contents of the affidavit to the person affirming the same and
certify the said fact separately under his signature.
8. Pardahnashin women. Where
the Deponent is a Pardahnashin lady, unless she is known to the person attesting
the affidavit, she shall be identified by a person to whom she is known and
that person shall also prove the identification by a separate affidavit.
9. Marking, dating and
initiating on exhibits. Every exhibit annexed to an affidavit shall
be marked, initialled and dated by the authority before whom it is sworn.
|
CHAPTER XIX |
Receivers
1. Application for appointment
of Receiver to be by petition supported by affidavits. Every
application for the appointment of a receiver shall be made in writing and
shall be supported by an affidavit.
2. Register of Receivers. On
an order for the appointment of a receiver being drawn up and signed, an entry
shall be made in a register to be kept for the purpose. a copy of the order of
appointment shall be sent to the receiver.
3. Receiver other than
official receiver to give security. Where an order is made
directing a receiver to be appointed, the person appointed, if not the Official
Receiver, shall, unless otherwise ordered, first give security to the satisfaction
of the Registrar for the due performance of his duties as receiver. Unless the
Court otherwise orders, the Registrar shall take the personal bond of the
receiver with such number of sureties as he may consider necessary. The amount
of the bond shall be double the annual rental of the immovable property, or the
value of the movable property which is likely to come into the hands of the
receiver. Such annual rental or value shall be estimated after notice to the
parties and the receiver and in case of disagreement the matter shall be placed
before a Judge in Chambers for orders.
The sureties shall leave with
the Registrar an address within the jurisdiction of the Court for service of
any notice on them.
4. Surety may point out
omission or neglect of duty cast on receiver. If
the security mentioned in Rule 3 be furnished by the receiver by his executing
a bond with a surety or sureties (including in the latter term a guarantee
Company or society), the surety or sureties shall be entitled, by an
application to bring to the notice of the Court any act, omission or neglect of
any duty cast on the receiver by law or any other circumstance, which would
entitle the surety or sureties to be discharged from the obligation created by
such bond and the Court may thereupon make such order and on such terms as it
may think fit.
5. Receiver to submit report. Unless
otherwise ordered by the Court the Receiver shall, within one week of the
appointment, submit to the Court a detailed report regarding the property with
an inventory of the property, account books, etc. taken charge of documents by
him.
6. Directions for investment
of monies in the hands of the receiver. Unless otherwise ordered by
the Court, the Registrar shall, in consultation with the parties, give
appropriate directions for the investment of all monies received by a receiver.
Ordinarily such monies shall be deposited in a Scheduled Bank or invested in
Government securities.
7. Notice to surety of
application effecting surety’s risk. The surety or sureties mentioned
in Rule 4 shall be entitled to notice of any application to the Court, on the
part of the receiver, or any other party interested relating to any property in
the management or under the control of the receiver which may affect the risk
undertaken by the surety or sureties under the security bond furnished by the
receiver and the Court upon hearing the said surety or sureties may make such
order as to his or their cost of appearance in such application as it may think
fit.
8. Powers of Receiver. In
the absence of any order in that behalf every receiver of immovable property
shall have all the powers specified in Order XL, rule (d) of the Code, except
that he shall not without the leave of the Court—
(a) grant lease, or
(b) bring suits, except suits for rent,
or
(c) institute an appeal in any Court (except from a decree in a rent
suit) where the value of the appeal is over Rs. 1,000; or
(d) expend on the repairs of any property in any period of two years
more than one-fourth of the annual rental of the property to be repaired, such
rental being calculated at the amount at which the property to be repaired
could be let out within fair state of repairs.
R. 99.
Receivers’ remuneration. The scale of remuneration of the Receiver
shall, unless otherwise ordered by the Court in a particular case, be as under:
-
(1) on
(a) Rents recovered,
(b) outstanding recovered except as provided in item (2) below, and
(c) Value realised on the sale of movable and immovable properties
calculated on any one estate:
(i) On First Rs. 10,000 5 p.c.
(ii) Above Rs. 10,000 up to Rs. 20,000 3
p.c.
(iii) Above Rs. 20,000 up to Rs. 50,000
2 p.c.
(iv) Above Rs. 50,000 up to Rs. 1,00,000
1 p.c.
(v) Above Rs. 1,00,000 ˝ p.c.
(2) On outstandings recovered from a Bank or from a public servant
without filing a suit: -
(i) Up to Rs. 1,00,000 1 p.c.
(ii) On any further sum exceeding Rs. 1,00,000 ˝ p.c.
(3)
For taking charge of movable property which is not sold on debentures,
debenture-stock or other securities which are not sold on the estimated value 1
p c.
(4)
For taking custody of moneys 1 p.c.
(5)
For taking custody of Government securities of stocks, shares, the estimated
value 1 p.c.
(6) For any work, not provided for above, such remuneration as the
Court on the application of the receiver shall think reasonable.
Whenever the properties are in
charge of an official receiver the above fees shall be credited to Government
revenue.
10. Establishment and costs
therefore to be detailed in the appointment order: The
establishment, clerical or otherwise, required by a receiver, if any, and the
cost thereof chargeable to the state or property of which he is appointed
receiver shall as far as possible, be detailed in the order of appointments or
in subsequent order.
11. No
charge for additional establishment allowed: Unless otherwise ordered, no
charge for establishment shall be allowed to the receiver.
12. Receiver to file
half-yearly accounts: Every receiver shall, unless otherwise
ordered file his half-yearly account in Court, the first of such accounts to be
filed within one month after the expiration of six months from the date of his
appointment, and every subsequent account within one month after the expiration
of each succeeding period of six months, or in a case where the purpose for
which the receiver was appointed has been carried out or completed before the
expiry of six months from the date of appointment, within one month from the
date of such carrying out or completion.
Form of affidavit. Every such account shall show
the balance in hand, and if so what portion thereof is required for the purpose
of the estate and how much may be paid into Court or invested, and shall be
verified by an affidavit.
13. Examining and vouching of
accounts by Registrar. Every such account, before being submitted
to the Court, shall be examined and verified by the Registrar, who may for this
purpose require the attendance of the receiver or his explanation or his
evidence upon oath or affirmation or the production of any document by him and
receive within such time as he may appoint and decide objections to the account
and shall embody the result of his examination in a report.
14. Appointment of date for
passing accounts Notice thereof. After the Registrar shall have
submitted his report to the Court under Rule 13, he shall obtain a date from
the Court for passing such accounts, or which date notice shall be given to the
person interested including the sureties and to the receiver.
15. Objection to report to be
filed. Objection, if any to the report shall be
filed in Court one week before the day fixed for the passing of the accounts or
within such further time as may be allowed by the Court. They shall specify in
a concise form the nature of the objection and shall be signed and verified.
16. Passing of accounts by
Court. Where no objections are filed, the Court
shall if otherwise satisfied pass such accounts. Where objections have been
filed, the Court shall subject to Rule 18 after hearing the objections make
such order as it may think proper.
17. Procedure of hearing of
objections. The Court may, from time to time, adjourn
the hearing of any objections or may refer them to an officer of the Court or
to any other person, with such directions as the Court may deem fit.
18. Auditing of difficult and
complicated accounts. In any case where the accounts are
difficult and complicated, Court may order such accounts to be audited at the
expense of the estate by a Chartered Accountant.
19. Order as to payment of
balance. The Court, on the passing of the Accounts,
may make such order as to the payment of the balance, or any part thereof,
either into Court or in such other manner as may seem proper.
20. Consequence of Receiver’s
negligence to file accounts or pay the balance etc. Where
any receiver neglects to file his accounts, or to pass the same or to pay the
balance or any part thereof as ordered the matter shall be reported by the
Registrar to Court, and the Court may, from time to time, when the accounts of
such receiver are produced to be examined and passed, not only disallow, the
remuneration therein claimed by such receiver but also charge him with interest
not exceeding nine per cent per annum upon the balance, if any, so neglected to
be paid by him during the time such balance shall appear to remain in the hands
of such receiver.
21. Consequence or default by
receiver. Where any receiver fails to file any
account or affidavit or to make any payment or commits any other default the
receiver or persons interested or any of them, may be required by notice to
attend before the Court to show cause why such account or affidavit has not
been filed or such payment made or any other proper proceeding taken and
thereupon the Court may give such directions as may be proper, including the
discharge of the receiver and appointment of another and also the payment of
costs by the defaulter.
22. Rule 8 applicable to
manager or guardian. Subject to the order of the Court, Rule 8
shall apply to a guardian of the person or estate of a minor and the manager of
the estate of a lunatic appointed by the Court.
23. Interim receiver. Unless
otherwise ordered by the Court, the provisions of this Chapter shall apply mutatis mutandis to orders for
appointment of interim receivers.
|
CHAPTER XX |
Security Procedure
1. Security Summons: (a) Subject to any directions given by
the Court, where security is ordered to be given to the satisfaction of the
Registrar the party ordered to give security shall take out a summons within 14
days of the date of the order and shall serve the same upon the opposite party.
(b) The summons shall state the name and address of each surety to
be tendered and a full and sufficient description of the property to be given
as security.
2. Affidavit to Justification: (a) Simultaneously, every person
offering himself as a surety shall make and file an affidavit of justification
touching the value of his property and the debts and liabilities to which it is
subject and also a draft of the bond proposed to be given. Copies of such
affidavits and the draft bond will be served alongwith the summons on the
opposite party.
(b) Affidavits of justification shall be deemed insufficient unless
they state that each person justifying is worth the amount required, over and
above what will pay his just debts and over and above every other sum for which
he is then surety.
COMMENTS
If for any good reason, the
title deeds cannot be deposited, the matter must be reported to the Court for
such directions as it may deem fit to give in the circumstances of the case.
the Court may order the surety to execute and register a regular mortgage-deed
in favour of the Registrar or other officer of the Court or it may, if so
consented to by the surety, order attachment of the immovable property of the
surety, or the Court may pass such other or further orders according to law as
it may deem fit. M/s. Label Art Press
and another v. Indo European
Machinery Co. (P) Ltd., AIR 1974 Delhi 136.
3. Time for inquiry: Unless
time be extended by the Court, the Registrar shall allow or disallow the surety
within 60 days of the date of the order requiring security.
4. Production of title deeds
etc. and examination: Every person offering himself as surety,
shall produce before the Registrar all his title deeds, vouchers and other
relevant and necessary documents on the day fixed for his examination. Such
person may be examined by the Registrar on oath or solemn affirmation touching
the value of his property, and the debts and liabilities to which it is
subject. After being examined and allowed, he shall sign the requisite bond and
shall deposit his title deeds, vouchers and such other documents as the
registrar may require:
Provided that in any case the
Registrar may, on good cause shown, dispense with the deposit of some or all of
the said documents and may return the same to the surety with an endorsement
thereon as follows: -
To
Whomsoever it May Concern
Take notice that the property
to which this document relates stands charged for the payment of a sum of Rs .
. . . . . . . . . by a bond executed on
. . . . . . . . . . day of . . . . . . . 19 . . . . . . . . . by . .
. . . . . . . .. in suit No . . . . . . . of 19 . . . . . . . . . entitled . .
. . . . . . . . . . . . . . v . . . . . . . . . . . . . . . . . .pending in the
High Court of
(2) The endorsement referred to in the proviso to sub-rule 1 shall
be cancelled by the Registrar when the surety is or stands discharged.
5. Property in respect of
which surety may justify: The title deeds may relate to immovable
property situate beyond the local limits of the ordinary jurisdiction of the
Court, but shall in all cases be in the name of the proposed surety. A surety
may justify also in respect of movable property of which he can produce
evidence satisfactory to the Registrar, such as, deposit receipts, Government
Promissory Notes, or other evidence of title.
6. More than two sureties
irregular: A tender of notice of more than two
sureties shall not be accepted except by order of the Court.
7. Who may be present at the
examination: Except with the specific permission of the
Registrar, no person other than the party giving security, the sureties and
their respective advocates, the party or parties, if any, on whom notice has
been served and his or their advocate or advocates, shall be present at the
examination of any surety by the Registrar.
8. Who are not competent
sureties: Unless the Court otherwise orders, an
advocate practising within the limits of the jurisdiction of the Court, a clerk
of such advocate or an officer of the Court, shall not be accepted as surety.
9. Security for costs: If
a party is required to give security for costs, unless the Court otherwise
orders, the penal sum in the bond shall not be less than one thousand rupees.
10. Custody of securities and
security bonds: All papers and records relating to the
taking of security, including securities and security bonds, shall be kept by
the Registrar in safe custody in his safe in the strong room after making an
appropriate entry in a register to be maintained by him for the purpose.
|
CHAPTER
XXI |
Processes
etc.
1. Service of notice. (a) Except where otherwise provided by
these Rules, or ordered by the Court, all summons, notices other documents
required to be given to or served on a party or person, who resides within the
jurisdiction of this Court, shall be served on such party or person either
personally or on his advocate.
(b) Service of any notice, order or other document upon a person,
who resides outside the jurisdiction of this Court, but within the territory of
India, may ordinarily be effected by posting a copy of the document required to
be served in a prepaid envelope registered for acknowledgement addressed to the
party or his agent empowered to accept service, at the place where the party or
his agent resides or carries on business or personally works for gain.
(c) Notwithstanding anything hereinabove contained in rule 1(b) the
Registrar may direct in a particular case or class of cases, that the service
shall be effected in the manner provided by the Code for service of summons.
(d) Unless the contrary is proved, a document served by post shall
be deemed to be served at the time at which it would be delivered in the
ordinary course of post.
2. Time for payment of process
fee and consequence of nonpayment. Process fees for the issue
of summons, notice or other process and costs of advertisements shall be
furnished to the Registrar.
(a) In case where the returnable date fixed is less than four weeks within three days of the order; and
(b) In other cases within
seven days from the order directing such summons; or
(c) Within such further time as may be allowed for the purpose by
the Registrar.
If the plaintiff or applicant
fails to take any step or where the plaintiff or applicant commits default in
furnishing the process fee or in making such payment or it appears to the
Registrar that he is not prosecuting the matter with due diligence, the
Registrar shall call upon him to explain his default and if no explanation is
offered, or if the explanation offered appears to Registrar to be insufficient,
the Registrar may issue a summons calling upon the plaintiff or the applicant
to show cause before the Court why the plaint or the application should not be
dismissed.
3. Power to dismiss for
non-prosecution: Upon such summons being issued, the Court
may, after hearing the plaintiff dismiss the suit for non-prosecution or give
such other direction thereon as justice of the case may required.
4. Full address to be given of
persons on whom process to be served: Persons on whom processes
are to be served or executed, shall be described therein fully, by a statement
of the name, father’s name and other particulars as will facilitate
identification and service. In the case of service and execution of process in
towns the name of the street, lane or section and the number of the house (if
any) shall also be given.
5. Summons for final disposal
and settlement of issues: Summons shall issue for final disposal in
short causes and for settlement of issues in long causes.
6. Returnable date of summons: Unless
otherwise ordered every writ of summons shall be made returnable as follows: -
(1) If the defendant or all the defendants aside within the
jurisdiction of the Court, in four weeks from the date of the admission of
plaint; and
(2) In all cases, within such time as may be considered sufficient
for the transmission, service and return of the summons.
7. Expeditious issue of
processes: Process for service or execution shall be
made ready and issued expeditiously.
8. Process to be served after
identification of party: The serving officer shall serve all
processes entrusted to him after due enquiry as to the identity of the persons
on whom or the house or property where, the same is to be served:
Provided that if it appears to
the Registrar that sufficient information cannot be given as to the identity
and place of residence of the person whom process is to be served or as to the
house or property where process is to be served or if the Registrar is
satisfied from the affidavit of the serving officer or upon his examination on
oath (if necessary) that the person or the house or property or the place of
residence of the person aforesaid could not be identified after due diligence
and enquiry he may ask the party concerned to supply an identifier.
COMMENTS
A perusal of the provisions of
Rules 8 to 11 goes to show that the underlying object behind the abovesaid
provisions is to insist on the presence of one respectable person of the
locality who may identify the house or property on which the process was
affixed on a house or property with which the person sought to be served has
nothing to do. The use of the words “whenever possible” in Rule 9 and the words
“if any” in Rule 10 clearly suggest that the provision as to presence of the
person identifying the property is merely by way of caution: it is directory
and not mandatory. The language of Rule 11 goes to suggest that the presence of
at least one respectable witness is necessary when the process server writes
the report of service on the process. If the presence of at least one
respectable witness and attestation by him is not made mandatory by rules 8 to
10, then the presence of one respectable witness at the time of drawing up the
report of service by the process serving officer under Rule 11 cannot be termed
or held mandatory. It is also directory. Ultimately it is a question of
satisfaction of the court as to the sufficiency of service. It is common
knowledge that unconcerned persons have a tendency to avoid themselves being
involved into court proceedings. If the presence of at least one witness or
more at the time of affecting service by affixation is held to be mandatory,
two consequences - both undesirable - shall follow. Firstly, it would amount to
expressing a distrust in the process serving agency of the court. Secondly, in
a good number of cases service by affixation may be rendered difficult and
impracticable, if not impossible. The most reasonable view to be taken would be
to leave the question of sufficiency of service in an individual case being
determined by the Court which may before proceeding ahead with hearing of a
matter on merits form its opinion whether it was satisfied on the sufficiency
of service by affixation as disclosed by the report of the process server
and/or from the inquiry made by the Court which it may deem fit to make
regarding the manner or events touching the service. Sahara Deposits & Investments (P) Ltd. v. Shri Karan Singh, 1996 (63) DLT 377 :
1996 (1) AD (
9. Endorsement of identifier
on the original process: If the serving officer is not personally
acquainted with the person to be served, he shall, whenever possible obtain on
the original process the endorsement by signature or thumb-impression of a
respectable person of the locality identifying such person or place of residence
or the house or property on which the process is served.
10. Procedure where defendant
refuses to accept service or cannot be found: Where the person to be
served, or his agent, refuses to sign the acknowledgment of where the serving
Officer, after using all due and reasonable diligence, cannot find that person
and there is no agent empowered to accept service of the summons on his behalf,
the serving officer shall affix a copy of the summons on the outer door or some
other conspicuous part of the house in which that person ordinarily resides or
carries on business or personally works for gain, and shall then return the
original to the Court from which it was issued with a report endorsed thereon
annexed thereto stating that he has so affixed the copy, the circumstances
under which he did so and the name and address of the person (if any) by whom
the house was identified and in whose presence the copy was affixed. He shall
also obtain the signature of the person on the return, who identified the
person or in whose presence the copy was affixed on the said house.
COMMENTS
Rule 1 of the Original Side
Rules states that a party must be personally served. This is in consonance with
Rules 12 and 13 of Order V of the Code of Civil Procedure. However, Rule 15 of
the same Order ought not to be overlooked since it mentions that where personal
service is not possible, such a party may be served by any adult member of the
family, whether male or female. Rule 10 of the Original Side Rules requires the
Process Server to make out a full report and should be read with Rule 12 of the
Original Side Rules. While on this subject it is plainly clear that sub-rule
(4) of Rule 12 of the Original Side Rules cannot be given effect to as it runs
counter to Rule 15 of Order V of the Code of Civil Procedure and is quite
palpably a legal anachronism. There is also no report, in the present case, to
the effect that the Summons were affixed to the outer door, as is contemplated
by Rule 13 of the Original Side Rules. The next following Rule is most often
not given due compliance. It is recommended that the Registrar should
meticulously follow its provisions so that legal proceedings should not be
needlessly protracted. In the present case affidavits of service were not
called for and the Registrar appears not to have recorded his satisfaction to
the effect that the defendants had been served. It will also be relevant to
keep in mind that none of the defendants have been personally served. In this
context I may draw attention towards the decision in Kunja v. Lalaram and
others, AIR 1987 Madhya Pradesh 252.
From a perusal of the records
of the case it is evident that efforts to serve the defendants were taken on
only one occasion, after notice was issued on 18.12.1996. On the next date the
matter was simply adjourned and thereafter the defendants were proceeded ex parte. Dasti orders were only in
respect of the application for interim relief. The Courts are understandably
hesitant to order dasti service at the first instance. Not only did the plaintiff
fail to initiate appropriate steps for service by Registered A.D. post, but he
also served the summons in the suit dasti without the authority or direction of
the Court. Where a party accompanies the Process Server there is always scope
for harbouring suspicion that the service report may have been managed. In
these circumstances I am in no manner of doubt that all necessary facts were
not brought to the Court’s notice when the initial order whereby the Defendants
were proceeded ex parte was
passed. In Grafitek international
v. K. K. Kaura & Others, 2000
(56) DRJ (Suppl) 692. I had Inter alia
declined to accept Dasti service only as effective notice to the defendant. The
view taken then continues to prevail. I had stated that “It is usually a
difficult and delicate task to render a decision on applications for setting
aside ex parte decrees. The
competing interests of the Plaintiff and Defendant are broodingly omnipresent.
Having obtained a decree the Plaintiff ought not to be denied the enjoyment of
its delectable fruits on flimsy grounds. There is always the lingering
likelihood that service of summons were effected and that the Defendant had not
appeared in order to delay proceedings. On the other hand, a judicial decision
taken without giving the parties adequate opportunity to present its version of
the facts and the law, in my opinion, is a forensic abomination. The Court must
fully satisfy itself that parties have been served. Otherwise it would
tantamount to dereliction of duty”. Bulganin
v. Apex Apartments Pvt. Ltd. &
Anothers, 2001 (91) DLT 446: 2001 (59) DRJ 397.
11. Returns of service: (a) Every process serving officer shall
immediately after completion of any duty connected with any process, record
with his own hand upon the original process at the place of execution and in
the presence of at least one respectable witness his report specifying the
manner of execution or the causes which prevented execution. Thereafter, he
shall swear or affirm in the correctness of that report before an officer of
the Court, duly authorised in this behalf and file the same in Court together
with the process.
(b) Process serving officer must invariably note the date, hour and
exact place of service on each individual process.
(c) If the process is addressed to more than one person, the report
shall describe the manner of service on each person and also the sequence in
which the processes are served on different persons.
12. Service by affixing to
outer door: The serving officer shall make an affidavit
as to the following matters:
(1) The number of times and the dates and hours at which he went to
the house;
(2) The attempts made by him to find the person to be served;
(3) Whether he had any and what, reason to suppose that such person
was within the house or in its neighbourhood, or endeavouring to evade service;
and
(4) Whether any adult male member of the family of the person to be
served was residing with him.
13. Notice where summons is
affixed to outer door: If a summons to defendant is affixed to
the outer door of his house in the manner provided in Rule 12, the serving
officer shall affix thereto a notice that the person, so served can upon an
application to the Court, obtain a copy of the plaint that shall in his return
state that he has done so and shall return the plaint of the Court.
14. Inquiry as to sufficiency
of service: The Registrar shall in all cases where the
process has been returned and in which an appearance has not been entered on
the day appointed therefor hold an inquiry as to the sufficiency of service of
process.
Such inquiry may be adjourned,
if necessary, from time to time. Affidavits and further affidavits may be
received or evidence taken viva voce
at such inquiry.
No matter shall be placed
before the Court unless the Registrar is satisfied that the defendant or the
opposite side has been duly served, wherever a defendant has been so served,
but does not appear on the date appointed and the Registrar, after holding an
inquiry aforesaid, is satisfied that the defendant or the opposite side has
been duly served, he shall report the matter to the Court and the Court shall
pass such orders as it deems fit.
15. Fresh Process not to issue
until previous one returned: Unless otherwise ordered, a second or
subsequent process shall not be issued until after the one previously issued
has been returned.
16. Registrar to execute or to
cause to be executed process—The Registrar and, subject to his
directions any other officer of the Court shall execute or cause to be executed
through the officers of the Court all processes including all warrants or
orders for delivery, attachment or sale of property in execution, or for the
arrest or custody of any person, which may be entrusted to Registrar for
execution. They shall return all warrant and orders within the time prescribed,
with an endorsement specifying the manner of execution or the causes which
prevented execution. Such warrants and orders shall be filed in the record. A
process service register shall be kept in the prescribed form.
17. Noting of date on processes: The
Registrar shall note on every process the date on which it was delivered to the
process server.
18. Service on the advocates
of parties: Service of any process, notice order or
other document on the advocate of any party may be effected by delivering it to
the advocate or by leaving it with a clerk in his employ at his place of
business.
19.
Except where the process, notice order or other document has been served
through the Registry, the party required to effect service shall file an
affidavit of service along with such proof thereof as may be available stating
the manner in which the service has been effected.
20.
Where process, notice order or other document has been served through another
Court, the service may be proved by the deposition or affidavit of the serving
officer made before the Court through which the service was effected.
|
CHAPTER XXII |
Court Deposits and Payments
R. 11.
Payment of money: (a)
The Registrar and subject to his directions any other officer of the Court
shall receive all monies paid into the Court and shall pay out all monies duly
ordered to be paid out of Court.
(b) Money may be paid or deposited in Court by postal money order.
In that case, the person making the payment shall send to the Registrar a
statement containing full particulars regarding the intended payment or
deposit.
2. Notice of payment or
deposit to judgment creditor or Collector: (a) A person paying money into or depositing property in the Court
in part or full satisfaction of a decree or order shall not give notice through
the Court of such payment or deposit to the judgment-creditor.
(b) Where the decree directs payment of Court-fees to Government
under Order 33, Rule 10 of the Code, no order shall be made on the application
for payment of such money or delivery of such property without giving notice
thereof to the Collector at the expense of the applicant.
3. Delivery of securities
jewellery or other valuables into Court: When jewellery or other
valuables are brought into Court, three copies of a descriptive list thereof
shall be presented and shall be checked and signed by the Registrar in the
presence of the depositor. The jewellery or other valuables shall be placed in
a box furnished with a lock and key to be provided by the Depositor. A copy of
the list shall be kept in the box and the box shall then be locked and sealed
with the seal of the Court. One copy of the list shall be given to the
depositor and the third copy of the said list and the key of the box shall be
retained by the Registrar. The box shall thereafter be kept in safe custody by
the Registrar or in such other custody as the Court may direct.
4. Application for payment of
money etc. Every application for payment of money or
delivery of property deposited in Court, shall be instituted in the suit or
matter and shall also show the number of the execution application, if any,
pending, showing the right and interest of the party applying and the amount
claimed.
5. Applications to be checked: Applications
to make or receive payments shall be duly checked by reference to the record of
the suit or matter before submission for orders to the Registrar.
6. Payment by money order,
bank draft, etc. On the application of the decree-holder or
other person entitled to any money deposited in Court and not expended for the
purpose for which it was deposited, if there is no objection to the payment of
money on the ground of attachment or otherwise, the Registrar may order that
the amount, after making all necessary and lawful deductions, be sent to the
applicant at his risk.
(i) By money order, or
(ii) By bank draft by registered post acknowledgement due; or
(iii) In any other manner specified by the applicant, which the
Registrar approves:
Provided that before payment
is ordered to be made under clause (ii) or (iii) the applicant shall submit a
duly stamped receipt for the amount due in the form given below: -
FORM OF RECEIPT
Received the sum of Rs.................
(Rupees ........................ only) from the High Court of
Dated (Stamp)
(Signature of the payee)
7. Written authority of client requisite for
payment for Advocate: Unless otherwise ordered by the Court, on
payment in excess of Rs. 1,000 shall be made to an advocate on behalf of his
client without special authorisation in that behalf by the client in favour of
the advocate.
8. Account books to be kept: The
following account books shall be kept:
(a) Book of receipts for money paid into
Court.
(b) Process-fee receipt book.
(c) Register of deposit receipts, viz., register of sums received in Court in connection with
suits or judicial proceedings and deposited with Government (to be kept in
duplicate).
(d) Register of deposit payments, viz., register, of payments from sums received into Court in
connection with suits or judicial proceedings and deposited with Government (to
be kept in duplicate).
(e) Files of applications for refund of lapsed deposits and of
statements of lapsed Civil Courts deposits.
(f) Register of attached property.
(g) Register of money received on account of subsistence money of
civil prisoners, expenses of witnesses and miscellaneous petty items required
for immediate disbursement.
(h) Register of payments on account of subsistence money of civil
prisoners, expenses of witnesses and miscellaneous petty items required for
immediate disbursement.
(i) Cash Book.
(j) Ledger.
(k) Bank of Treasury pass book.
(l) Bank of Treasury cheque/voucher
book.
(m) Register of receipts and of withdrawal of property left in the
custody of the Registrar.
(n) Such other registers as may be directed by the Chief Justice to
be kept.
9. Signing of cheques and
checking of accounts: The Registrar or such other officer, as
may be specifically authorised by the Chief Justice in that behalf, is
authorised to sign cheques. He shall at least once a month call for the
registers and accounts and satisfy himself that the entries have been carefully
and properly made. When such inspection is made, he should not the fact in his
own hand on the register or account inspected.
|
CHAPTER
XXIII |
Taxation
of Costs
R. 11.
Taxing Officer: The Registrar or such other officer as the
Chief Justice may appoint for the purpose, shall be the Taxing Officer of the
Court.
2. Time for filing bill of
costs: Each party shall within seven days from
the date on which judgment is delivered or order is passed or within such
further time as the Taxing Officer may allow, submit his bill of costs.
3. Contents of the Bill of
Costs: The bill of costs shall set out:
(A) process-fee spent,
(B) expenses of witnesses,
(C) advocate’s fee, and
(D) such other amounts as may be allowable under the rules, or as
may be ordered by the Court as costs.
R 4. Notice for taxation: When
a bill of costs has been lodged for taxation two days’ notice or such further
time not exceeding seven days in aggregate as the Taxing officer may allow,
shall be given to the opposite party;
Provided that no notice shall
be necessary in any case when the defendant has not appeared in person or by
his advocate or guardian.
5. When expenses of witness
may be included in costs: No expenses of witnesses other than those
paid through the Court shall be included in the costs allowed.
6. Taxation of costs: (a) Advocate’s fee shall be taxed on the
basis of a certificate filed under Rule 2, Chapter 5, but not exceeding the
scale prescribed in the Schedule appended to this Chapter. Other costs shall be
taxed according to the charges necessarily and actually incurred. These charges
shall include in addition to other costs allowable under the rules the costs of
printing, pleadings, etc. for the use of the Court the fees paid at the
Registration office for searching and for obtaining copies of the necessary
documents filed in Court, fees, if any, paid to the officers of the Court as
prescribed by clause (d) of the said schedule and the costs of preparation of
process taxed according to the scale prescribed.
(b) Where at the hearing of any suit other than those covered by
Rule 8 below, more than one Advocate have appeared, the Court disposing of the
matter may allow such fee for a second Advocate, as it deems fit not exceeding
half the fees allowable as prescribed in Schedule ‘A’.
(c) Unless the Court expressly directs otherwise the following costs
shall not be deemed to have been incurred necessarily within the meaning of
sub-rule (i) and shall not be taxed : -
(i) Court-fee stamps on all applications dismissed or not allowed or
not pressed.
(ii) Court-fee stamps on all unnecessary or defective application or
applications to suit the convenience of a party such as for adjournment of
hearing, for time to file written or other statements or to take some steps for
showing cause in case of any default or omission, for withdrawing a claim or
for amendment of any pleading of petition;
(iii) Expenses on affidavits improperly or unnecessarily filed;
(iv) Expenses of filing and proving unnecessary documents or
documents which the other party was not previously called upon to admit by
notice or of exhibiting interrogatories unreasonably, vexatiously or at
improper length;
(v) Process-fees for serving persons found by the Court to have been
unnecessarily impleaded or the suit against whom has been dismissed, withdrawn
or not prosecuted;
(vi) Charges incurred in connection with the attendance of
unnecessary witnesses; and
(vii) Retaining fee to an advocate.
7. When an advocate appears
for different parties in the same matter: Where an advocate appears
for different parties in the same suit or matter, only one set of fees shall be
allowed.
8. Advocate’s fee when the
suits are uncontested.
In
the case of: -
(i) Summary suits under Order XXXVII of the first Schedule to the
Code of Civil Procedure, 1908, where the defendant is refused or where a decree
is passed on the defendant failing to comply with the conditions on which leave
to defend was granted and appeals against decrees in such suits.
(ii) Suit the claim in which is admitted but only time or instalment
for payment is asked for.
(iii) Suit which is got dismissed by a plaintiff for want of
prosecution before settlement of issues or recording of any evidence, except
evidence under Rule 2 of Order X of the Code of Civil Procedure.
(iv) Suit which is withdrawn before the settlement of issues or
recording of any evidence, except evidence under Rule 2 of Order X of the Code
of Civil Procedure.
(v) Suit in which judgment is given on admission under Rule 6 of the
Order XII in the First Schedule to the Code of Civil Procedure, 1908, before
the settlement of issues or recording of any evidence, except evidence under
Rule 2 of Order X of the Code of Civil Procedure.
(vi) Suits in which no written statement is filed and appeals from
decrees in such suits.
(vii) Suits compromised before the settlement of issues or recording
of evidence except evidence under Rule 2 of Order X of the Code of Civil
Procedure.
(viii) Any formal party to a suit, e.g., a trustee or estate holder
who only appears to submit to the orders of the Court and asks for his costs.
(ix) A suit which has abated.
(x) A plaint returned for presentation to the proper Court:
The amount of Advocate’s fees
to be allowed shall be fixed by the Court disposing of the matter and shall not
exceed 1/2 of that payable according to the rate specified.
9. Deleted.
10. An
advocate who has been employed by the heirs of a deceased party is not entitled
to have fresh fees taxed.
11. In
all proceeding in which a Commission is issued to examine any person under the
provision of Section 75 of the Code of Civil Procedure the Advocate’s fee shall
consist of an amount computed in accordance with the above rule plus such fee
per day for appearing before the Commissioner as the Court may in its
discretion allow.
12. Review of taxation only on
notice to the opposite side: No application for review of taxation,
unless the taxation was ex parte shall
be made except on the notice on the opposite side.
13. No review of taxation of
costs if bill of costs was not filed: Subject to any orders passed
by the Court if the bill of costs is not filed within time allowed under Rule
2, the bill will be prepared by the taxing officer, and no application for
review of taxation shall be allowed unless made before the decree is signed.
14. What costs allowed after
taxation: The only costs which shall be allowed after
taxation shall be the costs of execution or of transmission of the decree to
another Court.
15. Meaning of proportionate
costs: Where ‘proportionate costs’ or ‘costs in
proportion’ are allowed such costs shall bear the same proportion to the total
costs as the successful part of the claim bears to the total claim.
16. Application to Court for
review of taxation: Any party, who may be dissatisfied with
the decision of the Taxing Officer as to any item or part of any item, may not
later than fourteen days from the date of the decision or within such further
time as the Court may allow, apply to the Court for an order to review the
taxation as to the said item or part of any item and the Court may thereupon
after notice to the other side, if necessary make such order as to it seem
just; but the taxation of the Taxing Officer shall be final and conclusive as
to all matters which shall not have been objected to in the manner aforesaid.
17. Hearing of such
application: Such application shall be heard and
determined by the Court upon the evidence which shall have been brought in
before the Taxing Officer and no further
evidence shall be received upon the hearing thereof, unless the Court shall
otherwise direct.
SCHEDULE
TABLE OF FEES
A. In defended suits:
(1) If the amount or value shall exceed Rs. one Lakh, and not exceed
Rs. Five Lakhs, on Rs. One Lakh Rs. 6,500/- and on the remainder at two per
cent.
(2) If the amount or value shall exceed Rs. Five Lakh, on Rs. Five
Lakh as above and on the remainder at 1 per cent subject, however, that in no
case the amount of fee shall exceed Rs. 50,000/- (Rupees fifty thousand) or the
actual, whichever is less, subject to the condition that a certificate of fee
must be filed.]
B. (Deleted).
C. Miscellaneous proceedings:
(i) If any interlocutory application for any matter, excluding
execution proceeding, other than that of appearing, acting or pleading in a
suit, such fees as the Taxing Officer may allow having regard to the nature and
importance of the proceedings or matter provided, however, that in no case the
amount shall be below Rs. 1,000/- or exceed Rs. 2,000/-
(ii) In execution proceedings or in appeals in execution
proceedings, the advocate fee to be allowed shall be one-fourth of the fee
calculated at the rates specified in Rule A(1) on the amount or value of the
relief or money claimed in the application to execute the decree. Such fees
shall be subsequent contested application.
(iii) In appeals, the fee shall be calculated at half the scale as
in the original suits and the principle of the above rules as to the original
suits shall be applied, as nearly as may be.
D. Fees to Officers of
Court:
(1) Fees of interpreter for explaining at other than the Court
House, pleadings and other documents, whether not exceeding 20 folios —8.00
Whether 20 folios, for every
10 folios or part thereof —2.50
(2) Fees for taking bonds and fees of Commissioners for attesting
affidavits or affirmations at any place, other than the Court House. — 16.00
For the first affidavit, oath
or affirmation or bond within the municipal limits of
For the first affidavit, oath
or affirmation or bond beyond such limits —24.00
For every affidavit, oath or
affirmation or bond beyond taken at the same time and place after the first, in
the same suit, appeal or matter —8.00
(3) Fees of Commissioners, for attesting affidavit oaths or
affirmations at the Court House, for every affidavit, oath or affirmation 3[Rs.
10.00]
|
CHAPTER XXIV |
Proceedings in Execution
R. 11.
Interpretation: In this Chapter the word ‘decree’ includes
order.
Application
for Transmission
R. 22.
Transmission of decree for execution: (a) An application for transmission of a decree to another Court for
execution shall be in the form prescribed and shall specify the Court to which
the transmission of the decree is sought and whether the decree has already
been satisfied in part and if so, to what extent. The same shall be supported
by an affidavit. It shall also be accompanied by a certified copy of the decree
or an application for the same.
(b) The Registrar shall transmit by registered post at the cost of
the applicant the certified copy of the decree together with the other
documents mentioned in Order XXI, Rule 6 of the Code to the Court to which the
transmission is sought in accordance with the provisions of Rules 4 and 5 of
Order XXI of the Code.
Application
for Execution
3.
Application under Order XXI Rule 15 to be supported by affidavit: An
application under Rule 15 of Order XXI of the Code shall be in the prescribed
form and supported by an affidavit.
4.
Checking and admission of execution petition: Applications for execution
shall ordinarily be checked in the order in which they have been filed by
reference to the Registrar of Civil Suits and all objections thereto, if any,
shall be noted therein and then be submitted to the Registrar, for orders. All
application for execution, when admitted, shall be entered in the Register of
execution applications.
5.
Procedure in execution application under Order XXI Rule 15: When
an application is made by one or more of several joint decree-holders, unless a
written authority signed by the other decree-holders for the applicant to
execute the decree and to receive the money or property recovered is filed in
Court, the Court or the Registrar, may give notice of the order, if any, passed
for the execution of the decree to all the decree-holders who have not jointed
in the application and may also give notice of any application for payment or
delivery to the applicant of any money or property recovered in execution.
6.
Procedure when cause not shown: When execution is for arrest
of a judgment debtor and the judgment-debtor does not appear on the day of
hearing fixed under the notice issued or on such other day to which the hearing
thereof is postponed, the notice and the affidavit of service thereof shall be
filed and the Registrar, shall thereafter, place the matter before a Judge in
Chambers for orders.
7.
Registrar not to issue execution simultaneously against person and property: Execution
shall not issue against the property of a judgment-debtor at once with the
issue of execution against his person. But a judgment-creditor desiring to
proceed against both simultaneously, shall apply to the Court and in case of
such application being refused, shall not be allowed to include the costs
thereof in his costs as against the debtor without the special order of the
Court. But a warrant for the arrest has not been executed, a warrant for
attachment may, at the request of the judgment-creditor, be issued.
8.
Application for appointment of receiver in execution of decree: An
application for the execution of a decree by the appointment of a receiver
under Section 51 and Order XI, Rule 1 of the Code to realise or otherwise deal
with property under attachment shall be made to the Court, and such receiver
shall, unless otherwise ordered, be subject to the rules of this Court, applicable
to persons appointed as receivers of property in a suit.
MODE OF EXECUTION
Execution of Documents
9. Copies of draft to be filed: The
decree-holder shall file two copies of the draft referred to in Order XXI, Rule
34(1) of the Code and two copies of the notice in the prescribed form together
with the prescribed process fee for service thereof. One of the copies of the
draft shall be served on the person directed to execute the document in the
manner prescribed for service of summons on the defendant to a suit.
10. Execution of document
under Order XXI, Rule 34(5): Unless otherwise ordered by
the Court, a document shall be executed or a negotiable instrument endorsed
under Order XXI, rule 35(5) of the Code by the Registrar.
ARREST
R 11. Deposit with warrant of arrest: With
every application for warrant of arrest before or after judgment there shall be
deposited with the Registrar a sum of Rs. 5 for the intermediate subsistence of
the judgment-debtor, pursuant to Order XXI, Rule 39(i) to (4) of the Code.
Attachment
and
12. Application of
incumbrancer to be made a party to the suit or to join in the sale: An
incumbrancer, not a party to the suit, may at any time before the sale, apply
to the Court to be made a party, or for leave to join in the sale; such order
shall be made thereon in protection of his right and as to costs as the Court
shall deem fit.
13. Receipt of attached
property to be given: A bailiff attaching movable property
shall, furnish to the judgment-debtor or other person, from whose possession
the movable property is attached, a receipt in the form of a list of the said
property signed by the said bailiff and take an acknowledgment to that fact on
the warrant of attachment.
14. Deposit of cost for
removal or maintenance of property: Before making any order for
the attachment of live-stock or other movable property, or at any time after
any such order has been passed, the Court or the Registrar, may require the
person at whose instance the order of attachment is sought or has been made to
deposit in Court such sum of money as the Court or the Registrar may consider
necessary:
(a) for the removal of the property to the Court premises or other
appointed place and its maintenance, guarding and custody till arrival thereat;
(b) for the maintenance, guarding and custody of the property at the
Court premises or other appointed place till it is sold or otherwise disposed
of; and
(c) for the maintenance, guarding and custody of the property at the
place at which it was attached or elsewhere.
In case of failure to deposit
such sum within the time prescribed by the Court or Registrar, the Court or
Registrar may either refuse to issue or may cancel the order of attachment, as
the case may be.
15. Account to be rendered on
demand: An account of the expenses actually
incurred shall, on demand being made on or before the date of the sale, be
furnished to the attaching creditor and to the person whose property was
attached. After hearing objections to the account, if any, made within three
days of its receipt by a party, the amount that the Registrar finds, to be
properly due shall be deducted at first charge from the proceeds of the sale of
the property and paid to the attaching creditor along with any balance of the
deposit made by him.
16. Restoration of attached
property on payment of costs incurred: (a) If in consequence of the cancellation of the order of attachment
or for any other reason, the person whose property has been attached, becomes
entitled to receive back the live-stock or other movable property attached, he
shall be given a notice by the Registrar that he should take delivery of it
within the time specified by the Registrar on payment by him of the charges, if
any, found by the Court or the Registrar to have been property incurred and
which have not been defrayed or for the defrayal of which, no money has been
deposited by the attaching-creditor.
(b) If he commits default in taking delivery of the property by
failure to pay the requisite charges or otherwise the Court may order that the
property be sold by public auction and that after defraying the charges
referred to in sub-rule (a), if any, and the expenses of the sale, the balance
of the sale-proceeds be credited to his account.
17. Notice regarding sale of
guns and other arms, etc., attached: Whenever guns or other arms in
respect of which licences have to be taken by purchasers under any law in force
for the time being or any other articles in respect of which licences have to
be taken under any law in force, are sold by public auction in execution of
decrees, the Registrar shall give due notice to the District Magistrate
concerned, or other appropriate officer, of the names and addresses of the
purchasers and of the time and place of the intended delivery to the purchaser
of such arms or other articles. No such arm or other article shall be delivered
to the purchaser unless he holds a licence for the same.
18. Immediate sale of movable
property: In the case of property to be sold under
the proviso to Rule 43 of Order XXI of the Code, if such property is in the
Court premises in the custody of the Registrar, he may authorise an officer of
the Court to sell the same by public auction and may give such directions as to
the date and time and place of sale and the manner of publishing the same as
the circumstances of the particular case admit.
19. Contents of sale
proclamation: In addition to the particulars specified
in sub-rule (2) or Rule 66 of Order XXI of the Code, the sale proclamation
shall contain a notice that only the right, title and interest of the
judgment-debtor is to be sold. The title, deeds or an abstract of the
judgment-debtors title, if available, will be open for inspection at the office
of the Registrar.
The proclamation shall,
whenever such information is available, also state in whose possession and
occupation the property is and the tenancy or terms on which any person is in
occupation or possession.
20. Appearance judgment debtor: (a) If the judgment-debtor appear before
the Registrar pursuant to the notice issued, under Order XXI, Rule 66(2) of the
Code, the Registrar shall examine him on any matter affecting his title to the
attached property. The judgment-creditor may also examine him on any matter
relating thereto. If the judgment-debtor fails to attend, the Registrar shall
proceed ex parte.
(b) The Registrar may also exercise powers under Order XXI, Rule
66(4). If any documents are produced relating to the attached property by any
person, the same shall be left with the Registrar, and shall be subject to his
directions both as to their custody pending the sale and their ultimate
disposal, such directions being subject to appeal to the Court.
21. Publication of
proclamation: Whenever the sale of land or of a house or
houses exceeding Rs. 10,000 in value or movable property exceeding Rs. 10,000
in value is ordered, the Registrar shall, with the permission of the Court,
advertise such sale in a local newspaper or newspapers.
22. Copy of sale proclamation
to be sent to Collector in case of sale of land: When
any land or share of land is ordered to be sold in execution of a decree, the
Court shall send a copy of the proclamation of sale issued under Order XXI,
Rule 67 of the Code of the Collector concerned.
23. Arrest on sale on holidays: No
arrest shall be effected and no sale shall be hold in execution on Sundays or
during holidays or vacation of the Court, except by leave of the Court or the
Registrar.
24. Leave to bid and reserved
price: (a)
An application for leave to bid by the decree-holder at the sale shall be
supported by an affidavit giving reasons why the applicant should be permitted
to bid.
(b) In cases in which the Registrar considers that the applicant
should not be allowed to bid for less than a sum to be fixed, it shall be
competent to the Registrar to give leave to bid at the sale only on condition
that the applicant’s bid shall not be less than the amount so fixed, which
amount shall as far as practicable, be determined with reference to the market
value of the property or of the lot or lots into which the property is divided
for sale.
25. Sale: On
the day and at the time and place appointed for the sale, the proclamation of
sale shall be read out before the property is put up for sale.
26. Postponement of sale or
want of sufficient bidding: If there be no bid or the highest bid be
below the reserved price (if any), or be deemed insufficient by the Registrar
or other officer conducting the sale, he shall postpone the sale and record the
reason for such postponement in the bidding paper.
27. Postponement of sale
otherwise than under Rule 26: The Registrar or other officer conducting
the sale may for sufficient cause postpone the sale. The costs of a
postponement rendered necessary by the absence of the Registrar or other
officer conducting the sale shall be costs in the cause. The costs of a
postponement made at the request of the party or by reason of his conduct shall
be borne by him.
28. Bidding paper: The
name of each bidder at the sale of property shall be noted on a paper to be
called “the bidding paper”, each bid shall be signed by the bidder and the
amount of the bid shall be entered opposite his name. If there be no bid, the
words “no bid” shall be written in the bidding paper opposite the property or,
as the case may be, the number of the lot. If the highest bid be deemed
insufficient, the word “not sold” shall be written opposite the property or the
number of the lot. If the property be sold, the highest bid shall be inserted
opposite the property or the number of the lot, wherein the full name and
address of the bidder be taken and his signature obtained and purchaser shall
write his full name opposite such entry and shall add his address and
occupation. All notices thereafter served at the address so given shall be
deemed to have been duly served on the purchaser.
29. Agent to produce Authority: A
person purchasing for another as his duly authorised agent shall produce his
authority in writing at the time of bidding, and sign the bidding paper as
such, giving the full name, address occupation both of himself and his
principal. All notices thereafter served at either of the addresses given shall
be deemed to have been duly served.
30. Declaration of purchase: If
the highest bid be equal to or higher than the reserved price (if any), the Registrar
or other officer conducting the sale shall make an entry in the bidding paper
to the following effect.—
“I declare . . . . . . . . to
have been the highest bidder for the purchase of the property above set forth
(or of lot No.) for the sum of Rs. . . . . . . . .”
31. Report of sale: Upon
the completion of the sale the Registrar or other officer conducting the sale
shall file in Court his report of the sale.
32. Time for confirming sale—A
sale of immovable property shall not be confirmed until after the expiration of
30 days from the date thereof.
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