Volume-I

Rules and Orders of H.P. High Court

CONTENTS

Chapter-1
Practice in the trial of Civil Suits.

1 Court/Office hours 1

2 Administrative work 1

3 Holidays/Vacation 1

4 Taking up cases on holidays, leave days or during 2

vacation

5 Attendance of ministerial establishment 3

6 Preparation of cause lists 3

7 Display board to be installed 5

8 Court Language 5

9 Seals 5

10 Custody and use of the seal 6

11 Judges to sign their name and disclose their 7

designation properly

Chapter 2
Reception of plaints and applications.

1 Filing on all working days. 8

2 Paper for pleadings and petitions 8

3 Fonts and Margin 8

4 Heading of pleadings and applications. 8

5 Separate applications for distinct subject matters. 9

6 General Rules of Pleadings 9

7 Alterations etc. to be authenticated 9

8 Applications containing argumentative matters to be 9

returned

9 Procedure for filing of fresh cases 10

10 Procedure for Electronic Filing (e-filing) of cases 14

11 Procedure after filing of the case 14

12 Allocation of cases 15

13 In-sufficiently stamped plaints etc. 16

14 Transfer of cases to equalize work 16

15 Reception by ministerial establishment prohibited 17

16 Who can file plaints, petitions etc. 17

17 Power of Attorney 17

Chapter 3
Examination of Plaint

1 Examination 19

2 Necessary Parties 20

3 Signing and verification 21

4 Jurisdiction 21
5 Return of Vakalatnama with the plaint 21

6 Rejection of plaint 22

7 Land suits 22

8 Suit for recovery of money, mesne profits, and 23

accounts

9 Address for service 23

10 Information of date of hearing by SMS/e-mail 23

Chapter 4
Service of Processes

1 Contents of process 24

2 Language of the Processes 25

3 Payment of process fees and other expenses 25

4 Process fees for notice in execution cases 26

5 Summons to the defendant 27

6 Summons to be signed and sealed 27

7 General provisions regarding services of summons 28

8 Other modes of service 33

9 Other Provisions regarding Service 35

Substituted service

Publication in the newspaper

Selection of paper to be made by the Presiding Officer

Preference to vernacular papers printed in the

district of the person to be notified

Duties of Manager of newspaper

Covering letter to be sent to the Manager of the

Selected Newspaper

10 Service of witness 38

11 Service of Processes of Appellate Courts 38

12 Personal attention to service 39

13 Proof of Service 41

14 The manner of service of process on a Member of 42

Parliament or State Legislature.

15 Service of summons on public officers etc. 42

16 Time to be allowed in processes to Government 44

Department.

17 Intimation to head of office when summons sent to 44

public officials.

18 Intimation for making arrangements for the 44

performance of duties of the public officer.

19 Service of summons on employees in the Army, Navy 45

and Air Force
20 Service of summons outside the jurisdiction of the 46
Court issuing it

21 Service of summons abroad 49

22 Directions for processes to be sent to foreign Courts 52

23 Deposit of expenses in the summons to be sent to 53

foreign countries

24 Special provisions regarding service in some 53

particular foreign countries

25 Service of summons received from Abroad 55

26 Cost of postage and registration of processes 56

forwarded by post

27 Assistance by Village Officers in Process-serving 57

28 Particulars on the return of summonses 59

29 Filling up of summons by a party 59

30 Warrant for arrest of public servants. 59

Chapter 5
Written Statements and Replications

1 Period for filing written statement 60

2 Documents to accompany written statement 60

3 Separate Written Statements 60

4 Copy of the Written Statement to be supplied to the 61

other side

5 Replication 61
6 Court Fees on set off/counter-claim 61

Chapter 6
Framing of issues

1 Out of Court Settlement 63

2 Stress on framing correct issues 63

3 Framing of issues by counsel illegal 63

4 Elucidation of pleadings for framing issues 64

5 Examination of Parties 64

6 Examination on oath 65

7 Personal attendance of parties 65

8 The examination should be detailed 65

9 Personal examination of parties 66

10 Record of parties statements. 66

11 Amendment of pleadings 66

12 Procedure for amendment 67

13 Discovery and inspection etc. 67

14 Court can move suo motu 68

15 Interrogatories 68

16 Discovery of documents 69

17 The penalty for disobedience of orders 71

18 Notice to admit documents or facts 71

19 Form of Issues 72

20 Burden of Proof 73

21 Preliminary Issue 73

Chapter 7
Documentary Evidence

1 List of documents and comparison with the list 74

2 Translation to be filed with certain documents. 75

3 The statement about erasures and additions 76

4 Preservation of documents 76

5 Calling upon parties to produce documents 76

6 Affidavit to accompany an application for production 77

of the public record

7 Documents for production of which sanction of the 77

head of the department is necessary.

8 Registers from Sub-Registrar’s Office 78

9 Production of documents in police custody 78

10 Production of Municipal and District Board Records 78

11 Post Office records not to be unnecessarily disclosed 78

12 Records 78

13 Record of the legislature 79

14 Late production of documents 79

15 Documents produced how to be dealt with 80

16 Forged or Defective Documents. 80

17 Production and admission of documents distinguished 80

18 Documents must be tendered in evidence 81

19 Procedure when documents admitted by the opposite 81

party.

20 Procedure when the document is not admitted by the 81

opposite party.

21 Legal objections as to admissibility 82

22 Mode of Proof. 82

23 Old documents 83

24 When copies instead of original may be put in 83

25 Proof of signature or attestation 83

26 Plans 84

27 Endorsements on documents admitted in evidence 84

28 Preparation of copy of document 86

29 Endorsements on documents not admitted in 87

evidence

30 Documents to be placed in strong cover 87

31 Consequences of not properly admitting documents 88

32 Revision of record before writing judgment to see that 88

only admitted documents are on the record

33 The duty of appellate Court to see that this has been 88

 done

34 Extracts or copies of settlement record and Riwaj-i- 89

Am to be placed on record

35 Production of Court/public records & records of 89

former Indian States.

36 Return of documents 90

Chapter 8
Hearing of Suits, Adjournments, Examination of Witnesses
etc.

1 List of witnesses 92

2 Statement of the case 93

3 Party to appear before other witnesses 93

4 Examination-in-chief 93

5 Cross-examination 94

6 Re-examination 95

7 How far should Court/Commissioner interfere with 95

the conduct of examination?

8 Examination of witnesses called by Court 96

9 The deposition should be read over 96

10 Mode of recording evidence 96

11 Recording of evidence by video conferencing 97

12 Arguments 104

13 Rebuttal evidence 104

14 Examination of parties as witnesses 105

15 Note about the closing of evidence 105

16 Continuous hearing of evidence 106

17 Adjournments 107

18 Adjournments for arguments 111

19 Interlocutory orders and notes 111

20 Uploading of orders/judgments 112

Chapter 9
Dismissals in Default and Ex-parte Proceedings

1 General 113

2 Filing of power of attorney and memo of appearance 113

3 No instructions’ by Advocate 113

4 Default by defendants 114

5 Hasty dismissal not advisable 115

6 Order of “Dakhil Daftar” is irregular 116

7 Procedure when the plaintiff is not present on the 116

preliminary date.

Chapter 10
Speedy Disposal of Cases

1 Cause Diary 119

2 Causes of delay in disposal of cases 120

3 Priority to cases to which soldiers, sailors or airmen 122

 are parties.

4 Priority to cases which are holding up other cases 122

5 Priority to cases (uncontested) 122

6 Priority to other cases 123

7 Fixing of dates 123

8 Long dates prohibited 123

9 Party’s fault in non-service of summons on 124

witnesses

10 Commissions 124

11 Cases held up owing to records being in the 125

appellate Court or pending decision of another case

12 Interlocutory order 126

13 Statement of old cases 126

14 Compromises 127

15 Speed Oriented approach should be avoided 127

Chapter 11
Incidental Proceedings.

1 Attachment or arrest before judgment 128

2 Temporary injunction 128

3 Death, Marriage or insolvency of parties 132

4 Compromise of suit 132

5 Amendment and Review 133

6 Inherent powers under Section 151, Civil Procedure 133
Code

Chapter 12
Special features of certain classes of cases

(a) Cases under Punjab Customary law. 135

1 Punjab Laws Act. 135

2 Proof of Custom 135

3 Rights of Females 136

4 Migrants and Displaced persons 136

5 Personal Law 137

6 Limitation in certain custom suits 137

7. Law applicable to Muslims 137

(B) Money Suits 137

Typical money suits.

1 Some features of money suits deserve attention. 137

2 Suits on bahi account. Copy of the account 138

3 The probative value of entries in accounts books 138

4 Bonds and agreements 139

5 Registration of bonds 139

6 Thumb-mark and signatures 139

7. Proof of Consideration 140

8. Himachal Pradesh Registration of Money Lenders’ Act 140

(C) Suits by and against minors and persons of unsound 140
mind.

1 General 140

2 Next friend and guardian ad litem defined. 140

3 Permission to sue 141

4 Minor may not be proceeded against ex parte 141

5 Notice to minors, & relatives, etc. 142

6 Choice of guardian, the appointment of court officers or 142

advocate, funds for defence, and accounts to be kept.
Duties of guardian.

7 Communication with the natural guardian 144

8 Rejection of plaint where minor is not represented 146

9 Appointment of guardian enures for appeal and 146

execution.

10 Compromise and agreement 146

11 Persons of unsound mind 147

(e) Suits by indigent persons 147

1 General. 147

2 Examination of the plaintiff, and evidence for admission. 147

Notice to Government

3 Withdrawal of permission to sue as an indigent person 148

4 Copy of decree to be sent to Collector 148

(f) Suits for Redemption and Foreclosure of Mortgages 148

1 Notice to mortgagor, conditional sale in case of land not 148

permitted.

2 Court competent to hear 149

3 Summary procedure for redemption 149

(g) Suits for Declaratory Decrees 149

1 The issue as to possession. 149

2 All issues to be framed 149

(h) Suits for Accounts. 150

1 The account may be preferably taken after disposal of 150

other points.

2 Filing of accounts and evidence 151

3 Commission 151

4 Directions to Commissioner 152

(i) Procedure in "Hadd Shikni" cases 154

1 Local Inquiry 154

2 An inquiry by Revenue Officer 155

3 Appointment of Commissioner 155

4 Report of the Commissioner 160

5 Objections to the report of the Commissioner 160

 Chapter-13
Jurisdiction of Civil Courts

1 Jurisdiction. 161

2 Jurisdiction of Civil and Revenue Courts 162

3 The issue of jurisdiction is always debatable 163

Chapter-14
Valuation of Suits

1 General 164

2 Valuation of suits relating to agricultural land. 164

3 Valuation of certain suits 164

4 Value for purpose of Appeal 165

5 Rules Framed under the Suits Valuation Act 165

Chapter 15
Arbitration

1 Arbitration and Conciliation Act, 1996 167

2 A scheme under the New Act 167

3 Rules under the New Act 167

4 Rules under the Repealed Acts 168

Chapter-16
Witnesses-Civil Courts

1 Attendance of witnesses 169

2 Remuneration 170
 Chapter 17
Suits by or against persons in Military Service.
174

Chapter 18

Suits by or against the Government and Public Officers in

official capacity

1 General 175

2 Notice before the institution of the suit 175

3 Execution of decree 176

4 Service of notice on Government Pleader 176

5 Priority 176

6 Notifications 176

Chapter-19
Utilization of the Services of Special Kanungo or Patwari
Muharrir

1 Procedure for obtaining excerpts 177

2 Special Kanungo or Patwari Muharrir to be used for 177

special purposes and at an early stage

3 Procedure for outlying Courts 178

4 Fees 178

Chapter 20
Commissions and Letters of the request.

1 Provisions of CPC 179

2 Persons to whom Commissions can be issued 179

3 List of Commissioners 181

4 Fees of the Commissioner 183

5 Commission for local inquiry and accounts 183

6 Commission for partition of property 183

7 Functions of Commissioner 184

8 Court officials not to be appointed 184

9 Prohibition of commission fees to Government 184

Officers

10 Particulars to be given in the order for local 185

investigation.

11 Time for executing commissions 185

12 Payment in advance of expenses for the issue of 185

commission.

13 Commissioner’s responsibilities 185

14 Instructions to Commissioners 186

15 Reciprocal arrangement with Jammu & Kashmir 186

16 Commissions to foreign Courts 186

17 Commissions and letters of request for examination 187

of witnesses in foreign countries – party to the
Hague Convention, 1970

18 Examination of witnesses in other foreign countries 188

19 Special procedure in regard to particular foreign 191

 countries:

20 Letters of request and commissions issued by 192

foreign Courts.

21 No trial within trial 192

22 Local inspections by Presiding Officers 193

Chapter-21
Judgment and Decree

1 Mode of recording the judgment 194

2 Provisions of C.P.C. to be given in certain judgments 195

3 Reference of parties and witnesses in judgments and 195

use of abbreviations

4 Judges may take records out of Courts 195

5 Early pronouncement of judgment 195

6 Directions regarding judgments 197

7 Reference to evidence 197

8 Procedure on handing over charge 198

9 Judgment to be written after disposal of cause list 198

10 Information on cancellation of the registered 198

instrument

11 Information to departmental heads when necessary 199

12 Civil powers to be disclosed 199

13 Directions regarding Decree 199

14 Award of Costs 202

15 Award of Interest 204

16 No decree to be drawn up in certain cases 205

Chapter 22
Execution of decrees

1 General 207

2 The provisions of CPC 208

3 Recording of orders in execution 208

4 Duty of District Judges 208

5 Stay of Execution 209

6 Money realized to be accounted for 209

7 Immediate execution before transfer of decree 210

8 Transmission of decrees transferred 210

9 Certificate of execution 210

10 Register of decrees sent or received by transfer 210

11 Procedure on receipt of a decree from another Court 211

12 Copy of decree need not accompany execution 212

application.

13 Mode of execution 212

14 Scrutiny of execution application 213

15 Limitation 214
16 Procedure on execution application 214

17 Court to ascertain the amount due 215

18 Mode of certifying under O. XXI. r. 2. 215

19 Several Decree-holders 216

20 Transferee 216

21 Process fees for notice in execution cases 216

22 Process fees deposited in previous execution not to 217

be used in the later execution

23 Notice to judgment-debtor 217

24 Attention to Service of process 217

25 Address for service 218

26 Period of pendency 218

27 Attachment of money due to judgment-debtor 218

28 Arrest and Detention 218

29 Execution by delivery of immovable property 220

30 Attachment 221

31 Mode of attachment of immovable property 222

32 Serving officers’ endorsement on warrants. 222

33 Scrutiny of attachment report 223

34 Precept 223

35 Effect of dismissal of execution petition 224

36 Exemptions to public servants 224

37 Officer to whom notices of attachment of salary etc. 225

may be given under Order XXI, Rule 48

38 Claims and objections 227

39 Custody and disposal of attached movable property 228

40 Valuable and portable property 228

41 Form of Schedule of Property 228

42 Property liable to deterioration 231

43 Approval of Court 231

44 Release of Property 231

45 Reclamations 232

46 Liability of Custodian 232

47 Property not left in local custody 232

48 Sale of Property 232

References

49 Application for sale 233

50 Settlement of proclamation of sale 233

51 Enquiry as to encumbrances 233

52 Determination of estimated value and settling the 234

sale proclamation

53 Information obtained after proclamation 235

54 Costs of Proclamation 235

55 Grant of time to Debtor to arrange private alienation 235

56 Adjournment of Sale 236

57 Purchase by Decree-holder, Mortgagee or Officer 236

connected with auction

58 Disbursement of purchase money 237

59 Applications to set aside the sale 237

60 Confirmation of sale 238

61 Refund to Purchaser 238

62 Certificate of sale 238

63 Court officials for conducting sales 240

64 Procedure for return of sale warrant 241

65 Sale under the supervision of Court Auctioneers 241

66 Deposit of sale proceeds into Government treasury 241

67 Commission 241

68 Expenses of custody etc. 242

69 Charges of Court Auctioneers 242

70 Conduct of sale by Nazarat Staff 243

71 Sale of guns or arms 244

72 Sale of Revenue paying or Revenue free land. 245

Law applicable
73 Objections to be decided by Civil Courts 245

74 Returns 245

75 Money specifically charged on land 245

76 Execution of decrees against agriculturists 246

77 Payment by judgment-debtor and receipt by decree- 246

holder

78 Resistance by Judgment debtor etc. 248

79 Dispossession of the third person 249

80 Decree holder’s liability to pay for civil prisoner’s 249

detention in jail

81 Costs in execution proceedings 251

82 Reciprocal arrangements with foreign countries 251

83 Reciprocal arrangements with Jammu & Kashmir 254

Chapter 23
Transfer of cases

1 Transfer of part-heard cases or cases in which 255

evidence stands concluded.

2 Courts requesting for transfers 255

3 Parties to be informed of the date for an appearance 255

on transfer

4 Bulk Transfer 256

5 Records to be sent immediately to the Transferee 257

Court
6 Transfer of appeal 257

7 A separate record of transfer applications 257

Chapter 24
Appeals and Revisions

1 Provisions of CPC 259

2 Classes of Appellate Courts 259

3 Forum of Appeal 259

4 Second Appeal 259

5 No appeal against consent decree 260

6 Appeal from Preliminary decree 260

7 Appeal from orders 260

8 Copies to accompany the memorandum of appeal 260

9 Exclusion of time spent in obtaining copies 261

10 Reception and examination of appeal and service of 261

processes and address for service

11 Admission 263

12 Preliminary hearing 263

13 Amendment after admission 264

14 Filing of appeal in Trial Court 264

15 Special power 265

16 Prompt disposal of miscellaneous appeals 265

17 Judgment and decree 266

18 Remand 267

19 Additional Evidence 268

20 Statement of serving Officer 268

21 Security in revision cases 268

22 Appeals and applications presented after limitation 269

period

23 Transmission of Orders of Appellate Court to Lower 271

Court

Chapter-25
References to the High Court

1 Relevant provisions for making references 273

2 Mode of Reference 274

3 References under Order XLVI Rule 7 275

4 A reference under Section 80 of the Himachal 275

Pradesh Tenancy and Land Reforms Act, 1976

5 Parties to be heard 275

6 Necessary records to be sent 276

7 Reference by Revenue Courts 277

Chapter 26
Advocates

1 Power of Attorney 278

2 Fees of Counsel 278

3 Other suits 280

4 Miscellaneous Proceedings 281

5 Execution proceedings 281

6 The fee allowed to the defendant 281

7 Fee if case decreed partially 282

8 Suits for damages 282

9 Undefended suits 282

10 Residuary 283

11 Several defendants 283

12 Review 284

13 Appeal 284

14 Remand cases 284

15 Fee Certificate 285

16 Form of Certificate 285

17 Discretion of Court 287

Chapter-27
Petition Writers

1 Practice as a Petition Writer 288

2 Writing of Petition 288

3 Number of licenses 288

4 Examination compulsory 288

5 Qualifications 289

6 Procedure of appointment 289

7 Grant, Renewal, and Suspension of License 289

8 Conduct of Petition Writer 291

Chapter-28
Subordinate Courts’ Employees

A Annual Reports 294

B Security 394

MISCELLANEOUS 298

1 Dress of Military Officers and Soldiers appearing in 298

Courts.

2 Restriction on carrying of arms 299

3 Court dress for officers and lawyers 299

4 Government servants prohibited from participation 300

in the political movement

5 Report of casualty among Judicial Officers 300

6 Prohibition against becoming arbitrator 301

7 Permission to District Judge to leave the district 301

8 Permission to other officers to leave the district 301

9 Channel of correspondence for Judicial Officers 302

10 Information about a casual leave of transferred 302

officer
11 Delegation of power under various enactments 302

(i) Guardian and Wards Act 302

(II) Provincial Small Cause Courts Act 303

(III) Probate Provisions 303

(iv) Rent Act 304

(V) Succession Act 304

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Himachal Pradesh High Court Rules and Orders

Volume 1

(Practice and Procedure etc. in Civil Courts subordinate to

the High Court)

Chapter 1
Practice in the trial of Civil Suits.

1. Court/Office hours

(i) All Civil Courts in the State of Himachal Pradesh shall sit
from 10:00 a.m. to 4:00 p.m. with an interval for luncheon from
1:30 p.m. to 2:00 p.m. on all working days (excluding Sundays
and other holidays declared by the High Court).

(ii) The working hours for offices attached to Civil Courts shall
be from 9:45 a.m. to 4:45 p.m. with same luncheon break.

(iii) No new case should ordinarily be taken up after the closing

hour of the Court but the hearing of the case taken up before that
hour may, if necessary, be continued for a short time.

2. Administrative work.

All administrative work shall, so long as there is judicial

work to be done between the above hours, be conducted outside
those hours, and may be done in the Presiding Officer‘s retiring
room.

3. Holidays/Vacation:

(i) The holidays allowed to the Civil Courts shall be annually

notified by the High Court under the provisions of Section 26 of
the H.P. Courts Act, 1976 (Act No. 26 of 1976). In addition to it,
local holidays for two days in a year for each District/Sub

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Division will also be allowed by the concerned District and

Sessions Judge for events of local importance.

(ii) Courts falling in the winter zone shall observe vacation for
civil work in the month of January and February as may be
notified by the High Court and the Courts falling in the summer
zone shall observe vacation for civil work for the month of June
and July as may be notified by the High Court.

4. Taking up cases on holidays, leave days or during

vacation.

(i) Ordinarily civil cases should not be taken up for hearing

during vacation or on a holiday but with the consent of parties or
their counsel, a civil case may be heard during the vacation or on
a holiday if the Presiding Officer of the Court thinks it expedient
to do so.

(ii) An urgent civil case (suit, appeal or application) may be

entertained during vacation or holidays by the Judicial Officers to
be deployed for this purpose by the District Judge concerned.
Besides it, the District Judge or any Judicial Officer authorized by
the District Judge may also entertain urgent civil case during the
vacation or on any holiday. Such a Civil Case (suit, appeal or
application) shall be accompanied with an application duly
supported by affidavit specifying the urgency for moving a matter
during a vacation in the Court, and the Court exercising the
power during vacation shall record clear reasons in support of its
satisfaction that the matter is urgent.

(iii) If the day of hearing of any case is declared a holiday, the

case would be deemed to be adjourned to the next working day.

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(iv) If Presiding Officer of any Court has to proceed on leave, the

cases fixed for the leave day may be taken up in advance by the
Presiding Officer and adjourned to suitable dates. Notification
regarding the adjournment shall be displayed on the Court notice
board and the website of the Court for the information of litigants
and the advocates. Necessary entries in the software shall also be
made by the Reader regarding status and next dates of hearing of
the cases. However, if the Officer has to suddenly proceed on
leave on any working day, the urgent cases fixed in his Court
shall be taken up by any other Court as per arrangement to be
made by the concerned District Judge and remaining cases shall
be deemed to be automatically adjourned. It shall be the duty of
the Superintendent to intimate the expert witnesses that the
cases have been so adjourned.

5. Attendance of ministerial establishment:

Presiding Officer of a Court may order any official of his

Court to attend office on a holiday to clear off arrears or for some
other urgent work. However, generally, an official should not be
made to attend on a holiday pertaining to his religion.

6. Preparation of cause lists:

Cause lists of cases fixed for each day should be prepared a

day before. These lists shall be made available on the Internet and
shall be exhibited in the notice board of the Courtroom at a
conspicuous place at least by the afternoon of the day preceding
that to which they relate. The cases shall generally be taken in the
order mentioned in the cause list. However, the Presiding Officer
of the Court may if deemed fit, take the case out of turn if
required by the circumstances of the case. Cases should as far as

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possible be so arranged in the cause lists that the litigants may

not have to wait for long. The cases to be given priority e.g. old
cases, cases of senior citizens, time-bound cases etc. be shown
higher in the cause list under the relevant stage as per the
instructions issued by the High Court from time to time. The
number of cases fixed for each day should be restricted to such
number as, after making allowance for unavoidable
postponements, the Court may reasonably expect to be in a
position to deal with. Cases for evidence should be listed in such
number that the witness may not have to go back un-examined at
the end of the day. Similarly, the cases for arguments should be
listed in such manner that the arguments in all the cases are
heard as far as possible.

The Reader of the Court shall enter status and progress of

each case in the case information software after calling the same
and the steno shall upload the order sheet in the software after
the orders are signed by the Presiding Officer.

Cause list should be prepared in the following form

IN THE COURT OF------

CAUSE LIST FOR (Day of the week and date) ----

Number and Defendants

Serial Plaintiff/Appellant Name of
Description or
No. or Petitioners Advocates
of the Case Respondents

The cases should be listed under the following heads in the

sequence given below:-

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cases for appearance

Cases for written statement, reply etc.

Cases for replication/issues.

cases for plaintiff's evidence

Cases for defendant's evidence.

Cases for consideration/arguments in miscellaneous

applications.

Cases for rebuttal evidence/arguments.

Cases for pronouncement of judgment/order.

7. Display board to be installed

Every court where infrastructure is available shall install its

own digital display board and connect it with District Court
website in order to provide the online facility of the display board
of the Courts in the District to the Advocates and the Litigants.
Further, every such court shall ensure that the actual number of
the case going on is displayed on its website.

8. Court Language.

Hindi written in the Devanagari script shall be the language

of the Civil Courts in Himachal Pradesh

9. Seals -

(a) The regular seal of every District Court shall be a circular

seal, two inches in diameter and shall bear thereon the lion head
on Ashok Chakra base with the inscription in English, "District
Court of......." in the outer circle

(b) The seal of Court-of every Senior Civil Judge shall be a

circular seal, two inches in diameter bearing the lion head on

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Ashok Chakra base with the inscription in English, "Court of

Senior Civil Judge......." in the outer circle.

(c) The seal of the Court of every Civil Judge shall be a

circular seal, two inches in diameter bearing the lion head on
Ashok Chakra base with the inscription in English "Court of the
Civil Judge, ..............." in English in the outer circle

10. Custody and use of the seal

The Regular Seal of the Court shall be placed in the custody

of Superintendent or a responsible officer of the Court and
documents required to be sealed with it should be sealed under
his superintendence. Similar precautions shall be taken with
respect to the Date Seal which is affixed to all documents and
papers on their presentation to Court. The Regular Seal is to be
used for sealing judgments, decrees, processes, sale-certificates,
copies or other documents made or issued judicially.

The date seal shall be affixed to all documents and papers

presented to Court in such a way as to show clearly the date on
which they were presented. If any Court-fee labels appear on
them, the Date Seal shall be affixed a second time in such a way
as to deface the Court-fee labels.

Note-1 The Presiding Officer shall record the order relating to the
custody of Regular Seal and the Date Seal to a responsible
ministerial staff working under him.

Note-2 Worn out and useless court seal when replaced by new
ones, should be destroyed in the presence of Presiding Officer and
a note of the fact of such destruction should be made in the
record.

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11. Judges to sign their name and disclose their designation

properly

In all cases, judges shall sign on the proceedings clearly and

legibly. Every signature shall bear the complete name and
designation of the officer putting his signatures.

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Chapter 2
Reception of plaints and applications.

1. Filing on all working days.

Plaints, applications etc. may be filed in the Civil Courts on

every working day during Court hours.

2. Paper for pleadings and petitions.

All pleadings, applications, and petitions of whatsoever

nature, and also powers of attorney and certificates of advocates,
filed in the course of civil judicial proceedings, shall be
typed/printed on a paper of superior quality having 70 GSM of A-
4 size. All the petition writers in the state of H.P. shall be required
to use it.

All the Judicial forms like Farad Talbanas, list of documents

etc., shall be printed on B quality paper of A-4 size.

3. Fonts and Margin.

Only one side of the paper shall be used, the matter shall be
typed or printed on a computer preferably with font Arial Narrow
in font size 12. The typing shall be in double space with margins
1” cm on top and bottom of the page and 1.7” on the left and 1” in
its right side.

4. Heading of pleadings and applications.

In every pleading or petition on which proceedings

commence the names of parties shall bear consecutive numbers,
and a separate line shall be allotted to the name and description
of each person.

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5. Separate applications for distinct subject matters.

Separate applications shall be made in regard to distinct

subject matters.

6. General Rules of Pleadings:

Every petition or pleading shall state concisely and clearly—

(1) the facts, matters, and circumstances upon which the

applicant relies;

(2) the matter of complaint, if any, and the relief sought or

prayer made.

7. Alterations etc. to be authenticated:

Every interlineation, alteration or erasure in a petition or

pleading shall be authenticated by the initials of the advocate or
recognized agent of the party by whom it is presented. In the case
of an affidavit, such authentication shall be made by the initials
of the Commissioner.

8. Applications containing argumentative matters to be

returned

No application containing argumentative matter, e.g.,

quotations and discussions of the effect of certain sections of
Acts, or of certain rulings of the High Court, shall be placed on
record. They shall be returned to applicants without any order,
except an endorsement that the application is returned under this
rule.

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9. Procedure for filing of fresh cases.

(i) There shall be a separate earmarked room known as

Judicial Service Centre (JSC) or Nyayik Sewa Kendra for the filing
of fresh cases at every place where judicial courts are located.

(ii) Checklist of possible objections shall be displayed out-side

Judicial Service Centre as well as on the website of the court,
which may contain the following possible objections:-

District and Sessions Judge

Objection Code Objection Type

1. Complete names, parentage, and addresses of the parties

not mentioned.

2. Not properly stamped.

3. List of documents not produced/incomplete.

4. Not properly valued.

5. Vakalatnama not filed.

6. No proper paging.

7. E-mail, mobile, landline Number not given.

8. No separate index attached.

9. Court fee not affixed to Documents/judgment/order etc.

10. Pleadings not duly signed.

11. Parties name not mentioned as per copy of judgment/order

of the lower court.

12. Not accompanied by judgment/order.

13. Not accompanied by Decree.

14. Minor or unsound mind person not properly sued.

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15. Parties not arrayed properly.

16. A number of copies of appeal/plaint/application are not

same as the number of defendants/respondents.

17. Age of parties not mentioned.

Notes: 1. The person at the Judicial Service Centre (JSC) will

certify that all the formalities have been completed as listed in the
checklist of objections.

2. District & Sessions Judge may add any other possible

objection in the checklist as per local requirements.

Civil Judge

Objection Code Objection Type

1. Complete names, parentage, and addresses of the parties

not mentioned.

2. Not properly stamped.

3. List of documents not produced.

4. Not properly valued.

5. Vakalatnama not filed.

6. No proper paging.

7. E-mail, mobile, landline Number not mentioned.

8. No separate index.

9. Court fee not affixed to Documents/judgment/order etc.

10. Pleadings not duly signed.

11. Minor or unsound mind person not properly sued.

12. Parties not arrayed properly.

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13. Original documents not filed, when necessary.

14. List of reliance not filed.

15. Proper process fee not filed.

16. Address form not filed.

17. A number of copies of plaint/application not filed as the

number of defendants.

18. Age of parties not mentioned.

Notes: (i). The person at the Judicial Service Centre (JSC) will
certify that all the formalities have been completed as listed in the
checklist of objections.

(ii). District & Sessions Judge may add any other possible
objection in the checklist as per local requirements.

(iii). Judicial Service Centre shall remain open from 9.45 a.m. to
4.45 p.m. on every working day. Fresh cases may be filed there
between 10.00 a.m. to 4.00 p.m. on any working day.

(iv) Cases instituted up to 2.00 p.m. shall be taken up by the

concerned Court on the next working day whereas the cases filed
after 2.00 p.m. may ordinarily be taken up on a working day after
the next working day. However, in urgent matters, with
permission of District Judge or Senior Civil Judge, as the case
may be, the fresh case may also be taken up on the day of filing
or on the next working day even if instituted after 2.00 p.m.

(v) All the new cases shall be presented by the party concerned
or authorized representative/Advocate to the concerned official
sitting in the Judicial Service Centre. (See O. III, Rules 1 and 2)

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(vi) Filing of plaints, applications etc. by post is not permissible.

All plaints/applications etc. of judicial nature received by post
should be returned per bearing post or per bearer as not having
been properly presented; however, this will not apply to
applications filed on the administrative side if permissible under
Rules/instructions.

(vii) The concerned official in Judicial Service Centre, before

entering the file in the Computer, shall scrutinize the file in order
to ensure the following:-

(a) Complete addresses of all the parties in the case are

given along with E-mail address, mobile telephone number
or land-line fax telephone number (if available) of the parties
and their advocates or other requirements as may be
specified from time to time.

(b) Page marking of the paper-book along with index is

there.

(c) If any documents are attached, list thereof has been

annexed.

(d) Vakalatnama duly stamped and signed has been filed.

(e) Pleadings have been signed at proper places.

(f) There is a certificate by the party or the advocate that

there is no possible objection as per checklist.

If any such deficiency is found, the advocate or the

presenting person shall rectify the deficiency within a period of 7
days failing which the matter shall be listed before the Presiding
officer who shall order the return of the
plaint/application/petition for rectification of the defect.

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(viii) A written statement, reply, replication, rejoinder, or any

kind of application or documents etc. in any pending case shall be
presented to the Court concerned. Entry thereof shall be made by
the Reader in the software installed in the Courts.

10. Procedure for Electronic Filing (e-filing) of cases:

As and when necessary infrastructure and software are

made available in the Courts, the High Court may by special or
general order permit e-filing of cases in the subordinate Courts as
per the procedure determined. In case of e-filing of the plaint,
petition or application, the court fee shall be paid electronically as
per Himachal Pradesh Court Fee (Stamping) Rules, 2015, as
amended from time to time, and it shall be the duty and
responsibility of the authorized officer of the concerned court to
verify the authenticity or correctness of any e-court fee certificate
and to lock the same.

11. Procedure after filing of the case:

The official at the Judicial Service Centre before entering the

file in the system, shall ensure that it contains the complete
particulars of the parties namely, their addresses along with e-
mail addresses, if any, mobile/cell number(s) of parties and their
Advocate(s), the Vakalatnama duly signed and stamped, the list of
documents attached etc.

If the concerned official in Judicial Service Centre is

satisfied that the case filed is complete in all respects, he shall
enter the details of the case in the software and shall issue a
computer generated receipt to the advocate or the party filing the
case. The concerned officer shall assign a case number generated

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by the computer, to the file. The said number shall be pasted on

the plaint/petition/application and documents accompanying it.

No case, which is complete in all respects, shall ordinarily

remain unregistered for more than one day; but should it be
found impossible for any reason to register a plaint within 24
hours of its receipt, the fact shall be reported to the Presiding
Officer of the Court concerned.

12. Allocation of cases:

(i) If Court is earmarked for the trial of any case, the case shall
be sent directly to the concerned Court by the official in Judicial
Service Centre.

(ii) Other cases shall be sent by a concerned official of Judicial

Service Centre to the District Judge or Senior Civil Judge as the
case may be, for allocation. The Judge shall allocate the cases
personally. The date on which the case shall be listed in the
concerned Court will also be mentioned. On allocation of cases,
the files shall be sent to the concerned Courts after making
entries in the software.

(iii) Allocation lists shall be displayed outside Judicial Service

Centre/Court of District Judge/ Senior Civil Judge as well as on
the website.

(iv). When the case reaches the allocated court, the Ahlmad shall
enter all necessary particulars of that case in a register
maintained in the computer software if such particulars have not
already been entered in the Judicial Service Centre. Besides this,
the court as a matter of abundant caution shall also make entries
in a register maintained in the physical form, if prescribed by the
High Court.

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v) The concerned Court shall list the case for hearing in the
Cause List.

13. In-sufficiently stamped plaints etc.:

It shall be the duty of the Superintendent of concerned

Court to see that appeals, plaints and petitions etc. are properly
stamped. When they are in doubt what court fee is due on any
document, it shall be their duty to refer the matter to the
Presiding Officer for order. The Superintendent is primarily
responsible for any loss of revenue caused by insufficiently
stamped documents having been received owing to his neglect.
Such responsibility shall be enforced in case of obvious mistake
and not in a case in which a genuine doubt was possible
regarding the correctness of the Court Fee due.

14. Transfer of cases to equalize work:

The equal distribution of work amongst the available Courts

can always be effected by the transfer of cases when necessary,
from one Court to another under the authority vested in the
District Judge. However, ordinarily, cases in which evidence has
already been concluded and old cases in considerable number
should not be transferred.

Whenever any court falls vacant due to any reason

whatsoever, the concerned District Judge shall distribute the
cases pending before such court to the other courts of competent
jurisdiction. The concerned District Judge shall redistribute the
cases to the vacant court as and when the post of the Presiding
officer is filled. However, ordinarily, cases in which evidence has
already been concluded and old cases in considerable number
should not be transferred.

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When a case is transferred by a judicial order, the Court

passing the order should fix a date on which the parties should
attend the Court to which the case is transferred.

Whenever the case is transferred within one establishment,

the same shall not be shown to be disposed of in the software but
an entry regarding its transfer shall be made. The same shall be
shown as transferred in the physical register and shall be entered
in the same year in which it was originally filed by the court
receiving the file. In no case, a new number shall be given to the
case by the Court receiving the file on transfer.

15. Reception by ministerial establishment prohibited:

The members of the ministerial establishment are strictly

forbidden to receive petitions, pleadings or documents etc. directly
from lawyers and their clerks or from litigants except in Judicial
Service Centre as provided hereinbefore. However, Talbanas
(Process Fee) and postal envelopes should be received directly by
the Ahlmad and a receipt in prescribed form given for the same
whether demanded or not.

16. Who can file plaints, petitions etc.:

Plaints and petitions etc. must be filed, except when

otherwise specially provided by any law for the time being in force,
by the party in person or by his recognized Agent or by a duly
authorized and qualified legal practitioner (Advocate) (See O. III,
Rules 1 and 2).

17. Power of Attorney:

When parties appear through Advocates, or agents duly

authorized in this behalf, their power of attorney should, when
practicable, be filed in original with the plaint/written statement.

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Where the power of attorney is a general one, a copy should be

filed, the original being presented for verification. When so filed,
the power of attorney will be considered to be in force until
revoked, with the leave of the Court, by a writing signed by the
concerned party and filed in Court, or until the party or Advocate
or agent dies or all proceedings in the lis are ended insofar as
regards the said party.

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Chapter 3
Examination of Plaint
1. Examination:

(a) Provisions of Orders VI and VII of the Code relating to

pleadings/plaint should be studied carefully and kept in view
while examining the plaint.

(b) On the presentation or receipt of a plaint, the Court should

examine it with special reference to the following points, viz.:—

(i) Whether the plaint contains the particulars specified in

Order VII, Rule 1, and conforms to the other rules of
pleadings in Orders VI and VII and rules made by the
High Court;

(ii)Whether there is, prima facie, any non-joinder or

misjoinder of parties, or misjoinder of causes of action;

(iii) Whether any of the parties to the suit are minors or

persons of unsound mind and, if so, whether they are
properly represented.

(iv) Whether the plaint is duly signed and verified and is

accompanied by an affidavit in support of the pleadings by
the person(s) verifying the plaint;

(v) Whether the suit is within the jurisdiction of the Court or

should be returned for presentation to proper Court (Order
VII, Rule 10);

(vi) Whether the plaint is liable to be rejected for any of the

reasons given in Order VII, Rule 11;

(vii) Whether the documents attached to the plaint (if any)

are in order;

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(viii) Whether it contains statement to the effect that no suit

between the same parties or between the parties under
whom they or any of them claim, litigating on the same
ground, is pending or has been previously instituted or
finally decided by a Court of competent jurisdiction or
limited jurisdiction, and, if any such suit was previously
instituted/decided or is pending, all particulars thereof.

(ix) Whether the relief claimed has been stated specifically

and whether the same is being claimed either simply or in
alternative (Order VII Rule 7).

(x) Whether the plaintiff seeks relief in respect of the several

distinct claims or causes of action founded upon separate
and distinct grounds, and whether those have been stated
separately and distinctly (Order VII Rule 8).

2. Necessary Parties:

Provisions of Orders I and II of the Code relating to

non-joinder and misjoinder of parties and causes of action
should be studied. Suits for inheritance, partition or
declaration of right in order to effect a partition,
contribution, redemption, foreclosure, administration of
property, dissolution and winding up of a partnership, and
the like, cannot be properly disposed of unless all persons
interested in the matter are before the Court. Therefore, in
cases of this description, if it appears that any necessary
parties have not been joined, the plaintiff should be ordered
to join them.

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3. Signing and verification:

The plaint must be signed by the plaintiff, or, if by reason of

absence or other good cause, the plaintiff is unable to sign it, by
his duly authorized agent. It must also be signed by the plaintiff's
Advocate (if any) and be verified by the plaintiff, or by some other
person proved to the satisfaction of the Court to be acquainted
with the facts of the case.

The personal attendance of the plaintiff in Court for the

purpose of verification is not necessary. The verification must,
however, be signed by the person making it.

4. Jurisdiction

The jurisdiction of a Court depends upon the nature and

value of the suit. If a suit is not within the jurisdiction of the
Court, the plaint shall be returned in the presence of the
Presiding Officer for presentation to proper Court. In such cases,
the Presiding Officer shall record on the plaint his reasons for
returning it along with the other particulars mentioned in sub-
rule (2) of Rule 10 of Order VII.

5. Return of Vakalatnama with the plaint.

When a plaint is returned to an advocate or recognized

agent of the plaintiff, the authority executed in his favour shall
also be returned to him.

When returning a plaint for presentation to proper Court, a

Court may order the plaintiff to file a copy of the plaint to be put
on record in place of the plaint.

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6. Rejection of plaint:

In circumstances mentioned in Order VII Rule 11, the plaint

should be rejected by the Presiding Officer by recording reasons in
support of the order. Correct order in such cases is to 'reject the
plaint' and not to 'dismiss the suit'. The rejection of a plaint may
not preclude the institution of a fresh suit on the same cause of
action provided, of course, that it is not otherwise barred (i.e. by
limitation etc.) by that time.

7. Land suits.

Every plaint relating to agricultural land shall contain the

particulars relating to the land recorded in the last Jamabandi
and shall be accompanied by certified copy of the said
Jamabandi. Where by reason of partition, river action or other
cause, the entries in the record of consolidation of holdings and in
the last Jamabandi do not accord, a brief explanation of the
reason should be given in the plaint. Where the suit is for a
specific plot with definite boundaries, it shall also be accompanied
by a map, preferably drawn to scale, showing clearly the specific
plot claimed and so much of the fields adjoining it as may be
sufficient to facilitate identification. The specific plot and
adjoining fields shall be numbered in accordance with the record
of last Jamabandi. Where, however, the suit is for the whole of
one or more khasra or killa numbers as shown in the map
prepared at the time of consolidation of holdings or settlement or
a share in such numbers, and not for a specific portion thereof,
no map will be required unless it is necessary for other reasons to
show the boundaries of such khasra or killa numbers.

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8. Suit for recovery of money, mesne profits, and accounts:

If the plaintiff seeks the recovery of money, the plaint should

state the precise amount, as far as the case admits in words and
figures. In a suit for mesne profits or unsettled accounts, it is
sufficient to state the amount approximately.

9. Address for service:-

Parties shall file their address known as a registered

address in the prescribed form at the time of filing their pleadings
or at any time after a change is effected in the same in accordance
with Order VI Rule 14A of CPC. All processes shall be sent to the
registered address during the pendency of the suit or appeal. In
case of failure or on finding that the address furnished by the
parties is incorrect or incomplete, the Court can stay the suit or
strike off the defence as the case may be.

10. Information of date of hearing by SMS/e-mail.

If mobile telephone number/e-mail address of any

party/counsel has been furnished in any case, the information of
every next date of hearing fixed in the case may be given to that
party/counsel by SMS/e-mail, provided that necessary facility is
available in the Court for the same and email ID and cell phone
number have been provided by the party/counsel.

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Chapter 4
Service of Processes
1. Contents of process.

In every process and order (of whatever description) issued

by a Judicial Officer, for whatever purpose it may be issued or
made, the name of the district and of the Court from which the
same is issued, and also the name and powers of the officer
issuing or making it, shall be clearly set out in such a manner as
may be easily readable.

Every person on whom a process is to be served or executed

shall be described therein in such a manner as to identify him
clearly and for this purpose a statement of his correct name,
father’s name, occupation, district, mohalla (if any), village or
town shall be set forth in the process. Where such description
does not appear in the application of the person moving the Court
to issue the process or in the record, the orders of the Court shall
forthwith be taken by the issuing officer.

Note 1:-In the case of service or execution of processes to be

effected in large towns, the name of the street or section and the
number of the house, where possible, should be given. Where
addresses for service were filed by the parties in the Lower Court,
notices and processes shall issue from the appellate Court to
such addresses

Note 2:-Whenever notices/summons/warrants are to be issued

by the Court, the following shall be mentioned on the bottom of
the form for information about free Legal Services:-

"You are hereby informed that free legal services from the State
Legal Services Authorities, High Court Legal Services Committee,

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District Legal Services Authorities, and Taluka Legal Services

Committees, as per eligibility criteria, are available to you and in
case you are eligible and desire to avail of the free legal services,
you may contact any of the above Legal Services Authorities /
Committees. “You are further informed that Alternative Dispute
Resolution (A.D.R.)/ Mediation facilities are also available in case
you desire to avail the said facilities.”

2. Language of the Processes

(a) Processes should ordinarily issue in the language of the

Court, but processes sent for service at any place where the
language is different from that of the Court issuing them should
be accompanied by a translation in the language of such place or
in English certified to be correct.

(b) Processes in English should be issued to Europeans and

Anglo-Indians.

3. Payment of process fees and other expenses.

Except in so far as is otherwise provided by any rule or

specially ordered by a Court, no process shall be drawn up or
issued for service or execution, as the case may be, until the fee
chargeable under these rules has been paid in Court-fee stamps
or by way of e stamps. It shall not be necessary for the parties to
deposit court fee subsequently during the pendency of the suit
except that where an application has been filed, the court may
demand the Court fee at the rate of Rs. 100/- for effecting service
upon the respondents in the application.

The process fee for the services of the parties shall be paid
at the time of filing the suit at the following rates:

Up to five defendants Rs. 200

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Five defendants and part thereafter Rs. 200

This fee will not include the charges for registered post cover
or substituted service by the beat of drum or publication in a
newspaper, which charges shall be paid in addition to the process
fee.

A summons to a witness shall not be issued until due

payment of the travelling and other expenses prescribed by rules
has been certified by the officer of the Court authorized to receive
such payment.

Provided that where the Government is the party applying

for a summons to a Government servant or where the party or his
agent applies that the summons to a witness be given to it for
effecting service, no process fee shall be charged and the deposit
of travelling and other expenses may also be dispensed with. In
such case, the duty to pay the expenses shall be of the party
taking the summons and the court before recording the evidence
of the witness shall satisfy itself that travelling and daily
allowance at the prescribed rate has been paid to him and if it
finds that the amount has not been paid to the witness, it may
discharge the witness or may order the realisation of the amount
by attachment and sale of the property or both. (O. XVI R. 4)

4. Process fees for notice in execution cases.

The process-fee for the issue of notice either under rule 16

or rule 22 of O. XXI shall be paid when the application for
execution is presented at the rate specified in the previous Rules.
After service of notice if the Court directs execution to issue, the
fee for attachment or arrest, as the case may be, shall be defrayed
from the process fee deposited at the time of presentation of the

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Execution petition and if the judgment debtor’s property is, after

the attachment, ordered to be sold, the necessary sale fees shall
be deposited.

5. Summons to the defendant:

(i) Except in suit heard by a Court of Small Causes, ordinarily,

the summons to the defendant shall be issued for settlement of
issues only because an ordinary suit is not likely to be disposed of
on the first date of hearing fixed for appearance of the defendant.
However, when the summons is for final disposal, the parties
should be made to understand that all their evidence must be
produced on the date fixed for disposal, but the Court is not
bound to dispose of the case on the date fixed for hearing and
may adjourn the case for further proceedings.

(ii) The form of summons for the final disposal of a suit should
be printed on coloured paper to distinguish it from the form of
summons for settlement of issues. Such summons shall be
assigned a serial number and proper record of the movement of
the summons shall be maintained from the time of its issuance
till it is received back by the Court.

(iii) It shall be mentioned in the summons for settlement of

issues that the defendant is required to file the written statement
of his defence, if any, within 30 days from the date of service of
summons.

6. Summons to be signed and sealed:

Summons should be clearly and legibly written. It may be

signed by the Presiding Officer; however, the Presiding Officer may
by a written order authorize Superintendent/ Reader to sign the
summons instead of the Presiding Officer. The signatures should

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be fully and legibly written. No such signature shall be made by

means of a stamp. The summons shall also bear the seal of the
Court legibly and shall be accompanied by a copy of the plaint.

7. General provisions regarding services of summons:

(i) The plaintiff/petitioner/applicant shall send an advance

copy of the plaint/petition/application along with stay
application, if any and copies of document(s), through registered
post or speed post to the defendant(s)/respondent(s) and file an
affidavit along with plaint/petition/application of having sent so.
However, on the registration of the suit/petition/application, the
court shall send its own processes for the service of the
defendant(s)/respondent(s). The copies shall be authenticated by
the signatures of the Advocates or advocates of the parties on
each page on the bottom left-hand margin.

(ii) The provisions regarding the service of summons on the

parties, contained in Sections 27, 28, 29 and 143, Order III, Rules
3, 5 and 6, Order V, Rules 9 to 30, Order VI, Rule 14-A, Order
XXVII, Rule 4, Order XXVIII, Rule 3, Order XXIX, Rule 2, Order
XXX, Rule 3, Order XLI, Rule 14 and Order XLVIII, Rules 1, 2 and
3 of the Civil Procedure Code as amended by the High Court,
should be strictly observed, as neglect of them may often render
the service ineffectual, especially when personal service cannot be
made.

(iii) Service should be personal wherever practicable and the

Courts ought not in ex parte cases to act upon anything short of
personal service until they are satisfied that personal service
could not reasonably be effected. Service by affixation is not to be
made before the date fixed for scrutiny of service: The process-

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server should visit the home of the addressee repeatedly, if there

is time before the date fixed for scrutiny of service, and obtain for
each successive attempt at service, attestations of witnesses
different from those who had attested reports of previous attempt
(s). In other words, service in any of the ways enumerated in
Order V, Rules 12 to 16 of the Code of Civil Procedure, should be
insisted upon and service by affixation as provided in Order V,
Rule 17. Civil Procedure Code should not be allowed till after the
day fixed for scrutiny.

(iv) If personal service is not possible, service on an agent or a

member of the family can be effected. However, before effecting
service on the agent or a member of the family, the efforts made
by the process server to effect personal service should be clearly
recorded on the summons/notices. When the service is effected
upon the person named in the summons personally or through
the adult member of the family, one copy of summons will be
delivered to the person named in the summons or to any adult
member whether male or female of the family of the person or
such other person as may be authorized to receive it for him. On
the other copy must be entered the acknowledgment of the person
served attested by the neighbours after explaining the contents of
the process to the person receiving the same. The process server
shall specify in the report that the service has been effected on
adult male/female member of the family who is residing with the
person named in the summons and that the person sought to be
served is absent from his home and there is no likelihood of his
being found in the residence within a reasonable time.

(v) If the service is made under Order V, Rule 12, of the Code,
on an agent, it should be clearly established that such agent was

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empowered to accept service, either by reason of his being one of

the class of recognised agents described in Order III, Rule 2,
Order XXVII, Rule 2, or Section 85(1), or by virtue of appointment
for that purpose in writing. The party causing the service to be
effected must, in both the last mentioned cases, furnish the
necessary proof to this effect.

(vi) Where service is made under Order V, Rules 14, 15, 17 or

20, the necessary particulars must be strictly proved. In the case
of such service, it must also be proved that a reasonable attempt
was made to find out the person to be served. If the summons is
affixed on the outer door of a house, an acknowledgment of this
fact is to be taken from two respectable persons of the locality in a
town or from headmen, Lambardar, Chowkidars, or neighbours in
a village.

(vii) Where service is made under Order V, Rule 20, it should, in

addition to the particulars required by law, be proved how long
and until what time the defendant or respondent resided in the
house and what has become of him.

(viii) If the service is made under Order XXIX, Rule 2, it should

be proved that the summons or notice was left at the registered
office of the Company, or was delivered to any Director, Secretary
or another principal officer.

(ix) If the service is made under Order XXX, Rule 3, clause (b), it
should be proved that the person on whom the summons was
served has at the time of service the control or management of the
partnership business.

(x) If the summons or notice, when tendered, is declined by the

defendant or his agent, or a male member of his family, besides

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the proof required as to identity, etc., as stated above, it should be

proved that the party was informed that the document tendered
was summons or notice, and that he was made aware of the
nature and contents thereof. In case of refusal to receive the
summons, the summons shall be affixed to the conspicuous part
of the homestead where the person is residing with a detailed
report regarding the refusal duly attested by the neighbour,
lambardar or headman of the family.

(xi) The process server shall prepare his report on the spot at
the time of executing the process in all cases and shall get the
signatures of the independent respectable persons of the locality
on the report.

Note: It should be impressed upon the process servers that it is

their duty and not of the party concerned to find out the person
on whom the process is to be served. It is not necessary for the
party to accompany them for identifying that person. Hence,
process-servers must not return unserved any notice, process or
summons tendered to them for service, by reason only of the fact
that the party had not accompanied the process server or had not
supplied any identifier. They must make every possible endeavour
to find out the person to be served and should seek the assistance
of the village headman, lambardar, Chaukidar, etc. to find out the
person on whom the process is to be served. The Nazir should
personally deal with all cases in which the process-server reports
that he could not find the person upon whom service was to be
made, and when necessary he should bring the matter to the
notice of the Presiding officer, who should not hesitate to refer the
matter to disciplinary authority if the reports are found to be
untrue.

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(xii) When a process is received back with a service report as

contemplated under O. V, R. 17, it shall be promptly laid before
the Court for orders under O. V., R. 19. A fresh service shall
ordinarily be ordered if there is sufficient time for such service to
be effected. However, if the address is found to be incorrect, the
party shall be under an obligation to supply the correct address
and the summons shall only be issued on the supply of the
correct address only.

(xiii) Summons for service on persons residing within the limits of

cantonments should not be sent to Executive Officers of
cantonments but should be served in an ordinary manner.

(xiv) In the case of Railway Administrations or Companies in

addition to service in the usual way, a copy of the summons
should be sent by post under Order XXIX, Rule 2 (b) of CPC at the
registered office of the company or where there is no registered
address on the address where the company carries on its
business.

Provided that if the summons is sent by registered post,

service in the usual way may be dispensed with.

(xv) During the trial, processes may be served on the Advocate, if

any, representing the concerned party. Processes may also be
served on the address given in the address form by the concerned
party, known as a registered address. Such service is taken to be
effective service.

(xvi) Processes by post should ordinarily be sent by registered

post acknowledgment due.

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8. Other modes of service:-

(a) Defendant/respondent should also be served by electronic

mail service, fax and SMS at the same time, if the email address,
landline fax telephone number and cell phone number of the
defendant/ respondent are given. In case of service by fax, the
print out generated by fax machine shall be taken to be proof of
service and shall be kept on record of the case.

b) Email service acknowledged by digital private key

pairs.—

Where any private service by email is acknowledged by

digital key encryption, private key pairs or digital certificates as
provided in the Information Technology Act, the same shall be
accepted as proof of service provided that all necessary
particulars of such digital certification are set out on Affidavit
along with complete annexures evidencing the same.

(c) Ordinary email service.—

Service by ordinary email shall not be accepted as proof of

service or proof of despatch UNLESS the party to whom such
email is addressed appears before the Court on the date specified
in such service/notice and acknowledges receipt; in which case
the said service by email shall be accepted as good service and
shall be deemed to have been proved; and such acknowledgement
shall be specifically noted in the order sheet of the proceedings at
the hearing of the matter.

(d) Ordinary email service where chain of email

correspondence is shown to exist.—

In any matter in which reference is made to a previous

chain of email correspondence, any party may apply to the

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Registrar-General for leave to effect service by ordinary email.

Such application shall state that the same is made under this
Rule. The party seeking such leave shall annex to the application
copies of sufficient supporting material evidencing the previous
chain of email correspondence and shall also state the email
address on which service is proposed to be effected; and the said
email address sought to be served shall be one of those appearing
in the previous chain of email correspondence. The party making
the said application shall also state that to the best of his
knowledge, information, and belief the said email address is
operational till not less than 30 days before the date of such
application. On such email service being effected, and affidavit of
service to that effect being filed as required by these Rules, the
Court may, or if the party served appears and acknowledges
receipt, shall, accept such email service as sufficient proof of
service and proceed with the matter.

PROVIDED THAT

(i) in any matter if it is brought to the notice of the Court

that service has not in fact been effected on such email
address, or that an incorrect email address was stated in
the aforesaid application or for any other sufficient reason
no service was effected, and the party making the
application has obtained an order on the basis of such
service having been effected, then the Court may set aside
or recall such order, or pass such other order as it deems fit
(including as to the imposition of costs).

(ii) Where, in such previous chain of email

correspondence, there are multiple persons with distinct
email addresses shown to be corresponding on behalf of the

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party sought to be served, then email service shall be

effected on all such email addresses which are known to be
recently active in the past three months.

(e) The High Court will approve three or four courier service
operators and shall communicate the approved list to all the
District Judges in the State and it will be permissible for the court
to order the service of summons/notices by approved couriers.

(f) It is advisable to resort to all the methods of service at the

same time to ensure the service on the defendant or respondent,
as the case may be, on a first possible date.

9. Other Provisions regarding Service:

(i) Summons should be generated by the Computer as far as

possible.

(ii) If a Government Department is defendant or respondent,

then service can be effected by registered post and by process
server as per the procedure applicable.

(iii) Dasti summons should also be given if prayed for by a

party. It shall be the responsibility of the party to effect the service
of the Dasti summons in accordance with Order V Rule 9-A of the
CPC. The process server of the Court shall not be deputed for
effecting the service of Dasti summons in any case.

(iv) Substituted service.

Before ordering substituted service of summons, the plaintiff

should be required to make best endeavours to discover the
defendant's address and to satisfy the Court that he has done so
and that the defendant is evading service or that, for any other
sufficient reason, cannot be served in an ordinary way. It is only

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after all the other prescribed methods for effecting service have
been tried and have failed that it is open to the Court to order
substituted service.

(v) Publication in the newspaper:

Recourse to the mode of substituted service by publication

in a newspaper shall be had only when service by any other
method is considered impracticable.

A careful discretion shall be exercised in selecting the

newspaper in which the publication is to be made under Order V.,
rule 20, C.P.C. Only a daily newspaper circulating in the locality
in which the defendant to be served is last known to have actually
and voluntarily resided or carried on business or personally
worked for gain, shall be selected.

While ordering the service by way of publication in the

newspaper the court should bear in mind that in many cases, this
method is quite unsuitable. When for example, the defendant is
illiterate or belongs to a class which cannot be expected to read
newspapers, such notice is obviously useless. In the case of
educated persons likely to read newspapers, it may be proper to
resort to this method, but even in such cases, the practice should
only be adopted as a last resort.

(vi) Selection of paper to be made by the Presiding Officer:

The object of effecting substituted service by advertisement

in a newspaper is to inform the defendant that proceedings are
pending against him and that he should appear in Court. This
object can only be achieved by publication in a newspaper of wide
circulation, which is likely to be read by the defendant or the
class to which he belongs. The selection of newspaper in which it

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is proposed to issue advertisement should, therefore, be made by

the Presiding Officer himself and not by a clerk of his office.

(vii) Preference to vernacular papers printed in the district of

the person to be notified:

Care should also be taken that such notices are published

as far as possible in vernacular papers, vernacular being the
language of the subordinate Courts. They should only be
published in papers printed in English if there is a good reason to
suppose that the persons concerned read English papers and are
more likely to be reached in that way.

Preference should be given to such papers as are printed in

the District where the person notified resides; or if no newspaper
is printed in that District, to those printed in the District nearest
to it, provided such papers have a good circulation and are likely
to be read by the defendant or the class to which he belongs.

(viii) Duties of Manager of newspaper:-

In sending a judicial notice for publication in a newspaper,

the Court should, in the covering letter, require the manager of
the newspaper to publish the notice at least a week before the
date of hearing and to send an intimation immediately after
publication of notice to the Court and to send, under postal
certificate, and the email, the copy of paper containing the notice
of the party for whose perusal it is intended at the address given
in the notice, marking the notice in question with red ink. He
should also be required, as proof of compliance with this order, to
attach the postal certificate to his bill when submitting the bill to
the Court for payment.

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(ix) Covering letter to be sent to the Manager of the

Selected Newspaper:

A covering letter for sending the notice for publication

should be sent to the Manager of the selected newspaper who will
arrange for the publication of the Court Notice in the newspaper.
The bill for the publication should be sent by Manager directly to
the Court concerned for payment. The Court shall pay the
amount after checking the correctness of the Court Notice
published by the newspaper and the publication charges. The
Court may, in an appropriate case, make an advance payment of
the publication charges.

10. Service of witness

Rules relating to service of defendant/respondent shall as

far as possible apply mutatis mutandis to service of the witness.

11. Service of Processes of Appellate Courts.

(a) It has been found frequently that processes of Appellate

Courts sent to districts for service on respondents are returned
with a note to the effect that the respondent has left or is not
residing in the district, and the hearing of the appeal has,
therefore, to be postponed. In such cases, service of the notice of
appeal and other processes shall issue to the registered addresses
filed by the parties under Order VI Rule 14-A and service effected
at such addresses shall be as effective as personal service.
Attention is also drawn to Order V, Rule 23 of the Code of Civil
Procedure, which places the Court serving the process of another
Court in the same position as if it had issued it. The provisions of
the Code on this point should be carefully attended to.

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(b) It shall be at the discretion of the appellate Court to

dispense with the service of a notice on any respondent or his
legal representative when the respondent did not appear at the
hearing in Lower Court.

(c) In the case of summonses from the High Court, the Court
serving the summons shall ensure that the affidavit of the process
server is filled, attested and attached to the summons.

12. Personal attention to service:

It has been found by experience that delays in the disposal

of civil suits are very often due to the failure to pay personal
attention to matters connected with the issue and service of
processes. The following instructions must, therefore, be strictly
observed in future:-

(i) Between the date of the issue of process and the date of
hearing, Superintendents of Court must personally satisfy
themselves that service has been effectively carried out and the
file should not be put up before the Presiding Officer for this
purpose on the date of hearing for the first time.

(ii) In order to achieve this object, the following procedure shall

ordinarily be observed in respect of service of all processes for the
attendance of parties or their witnesses:

(a) A very near date shall be fixed for the giving of

adequate details of the persons to be served. On this date,
the Superintendent of the Court shall satisfy himself that
the diet money, etc. have been paid and that the name,
address and the particulars of the person to be summoned
are sufficient to secure service. If these conditions have been
satisfied, the process shall be then issued and two dates

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shall be fixed. The first date shall be for the return of the
process with a report of the process-serving agency, and the
other for the hearing of the case. The interval between the
date of return and the date of the hearing shall in each case
leave adequate time for the service of the process. It is not to
be left to the discretion of the process-server to decide
whether he shall effect personal or substituted service.

(b) The date of the return should be clearly written on the

summons and the Nazir should ensure to return the process
before the said date.

Note: - If the interval between the date of return and hearing

is sufficient, the second date for return may be fixed.

(c) Parties should be invited and encouraged to attend in

person or by Advocate on the date fixed for the return of the
summons. Whether they do so attend or not, the
Superintendent should scrutinize the record and pass any
order which may be required, such as an order for the issue
of a fresh process. Parties should be encouraged throughout
to take dasti summons to accompany the process-servers
and to render all assistance in their power.

(d) In deciding whether to give a further adjournment

when a process is not served, the Presiding Officer will be
justified in taking into consideration whether the party
asking for an adjournment had complied with the orders of
the Court in paying process fees, diet money, etc., and in
giving correctly and promptly the names and addresses of
the persons to be served.

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(e) A form of an affidavit of the process-server which

should accompany the return of the summons has been
prescribed by the High Court. Before passing an ex parte
order, the Court should make it a point to see that this
affidavit duly filled in, is on record with the report of the
process-server.

13. Proof of Service:

(i) No Court can rightly proceed to hear a suit ex parte until it

has been proved to the satisfaction of such Court that the
summons to a defendant to appear has been duly served, that is,
has been served strictly in such manner as the law provides.

(ii) The nature of proof of service which the Court ought to

require in each case should be according to the relevant
provisions of the Code of Civil Procedure, particularly Rules 12 to
15, 17, 19 and 20 of Order V and Rules 2, 5 and 6 of Order III
and Rule 3 of Order XXX of the Code of Civil Procedure. Proof of
service as per requirements of the said provisions is imperative. If
the service has been effected by e-mail, Fax or SMS, there should
be proper documentary proof of such service.

(iii) The proof required under the preceding Rule shall in the
following cases ordinarily be—

(a) the affidavit of the person by whom the service was

effected together with the verification in the form printed
upon the back of the process and made, at the scene of the
service, by a local villager, Chaukidar, Lambardar, Pradhan
or Sarpanch present there at the time of service:

(b) Acknowledgment due received from the postal

department in case the summons was issued in registered

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acknowledgment due cover, courier receipt, delivery receipt

of email etc.

Provided that if deemed necessary the Court may require the

examination upon oath or affirmation of such person or persons
as it may think fit;

Provided further that in the case of service upon any adult

member of the family, whether male or female, residing with the
defendant or respondent or Judgment-debtor or opposite party (as
the case may be), the affidavit of the person by whom service was
effected shall contain a statement that the adult member of the
family receiving or taking the notice was residing with the
defendant or the respondent or the judgment-debtor or the
opposite party at the time of the service and that he was satisfied
that the person upon whom service was effected was not a servant
but a member of the family.

14. The manner of service of process on a Member of

Parliament or State Legislature.

No process shall be served upon a member of parliament or

the Legislature while he is within the precincts of the House of
Parliament or Legislature, as the case may be, nor shall it be
served through the Presiding Officer or the Secretariat concerned.
It shall be served directly upon the member outside the precincts
of the House of Parliament, or Legislature, as the case may be.

15. Service of summons on public officers etc.:

(i) In regard to the service of summons upon the party or

witness who is a public officer (not belonging to the Indian
Military, Naval or Air Forces) or is the servant of a local authority,
it is open to the Court as provided under Order V, Rule 27 of the

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Code of Civil Procedure to serve the summons through the head of

the office in which the said party or witness is employed if this
course is considered more convenient.

Ordinarily, the summons should be served on the defendant

or witness in an ordinary way and a copy sent to the head of the
office or department.

Note: - In the case of employees of the Northern Railway, a copy

of the summons should be addressed to the Divisional
Superintendent or other Superior Officer concerned.

(ii) The method of effecting service through the head of the

office will probably be found the most convenient in the case of
defendants or witnesses employed in large administrative offices.
In all cases where the summons is ordered to be served through
the head of the office, an endorsement should be attached to or
written in the body of the summons, conspicuously in red ink,
quoting the exact words of sub-rules (1) and (2) of Rule 29, Order
V, Civil Procedure Code, which (in the case of witnesses read with
Order XVI, Rule 8 Civil Procedure Code) imposes a duty on the
head of the office to serve the summons on the subordinate to
whom it relates if possible and to return it under his signature
with the written acknowledgment of the defendant or witness; or if
service is not possible, to return the summons to the Court with a
full statement of the reasons for non-service.

Note: - In the case of Patwaris, the summons may be forwarded to

the Tehsildar for service.

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16. Time to be allowed in processes to Government

Department.

In all processes issued in any suit or proceeding to which

the Government or a Railway Administration be a party, care shall
be taken, that a reasonable time is allowed for communication
between the authorities competent to give instructions to the
counsel or agent authorized to represent them in Court. The
Court may also extend the time at its discretion, but the time so
extended shall not exceed two months in the aggregate.

17. Intimation to head of office when summons sent to

public officials.

In every case where a Court sees fit to issue a summons

direct to any public officer other than a military officer or a
soldier, sailor or airman as a witness, simultaneously with the
issue of the summons, notice shall be sent to the head of the
office in which the person summoned is employed., in order that
arrangements may be made for the performance of the duties of
such person.

18. Intimation for making arrangements for the

performance of duties of the public officer.

Where a public officer or soldier, sailor or airman has been

summoned under O.V., r. 3 to appear in person through the head
of the office or the Commanding Officer, in the forwarding letter or
in a note on the summons it shall be stated that the summons
should be regarded by such head of the office or Commanding
Officer also as notice to make arrangements for the performance
of the duties of such public officer or soldier, sailor or airman,
during his absence.

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Note: Before the personal attendance of an officer holding a

responsible post is enforced, the presiding Judge shall satisfy
himself that his attendance is necessary. If such officer is
summoned away from his district, sufficient notice shall be given
to him and to his immediate superior to enable arrangements to
be made for the discharge of his duties in his absence.

19. Service of summons on employees in the Army, Navy

and Air Force

(i) Order V, Rules 28 and 29 of the Code of Civil Procedure,

provide for the service of processes on soldiers, sailors or airmen
other than commissioned officers. Such process should invariably
be transmitted for service to the proper military authority.

(ii) There is no special provision in the Code for the service of

processes on officers as distinct from soldiers; and such processes
should also ordinarily be sent to the commanding officer of the
officer concerned for service in the manner indicated in Order V,
Rules 28 and 29.

(iii) In fixing dates for the attendance of persons in the Army,

Navy or Air Force, the Courts should be careful to allow sufficient
time. It should be remembered that in fixing a date of the
appearance of the defendant in such cases, the time necessary for
the transmission of the summons, through the usual channels,
for service on the defendant must be taken into consideration, as
well as the time which the defendant may, after service,
reasonably require to make arrangements for obtaining leave and
appearing in person or for appointing and giving instructions to
an agent to represent him in the case

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(iv) On the day fixed for hearing, if it appears that from any
cause, the summons was not served in sufficient time to enable
the defendant to make the necessary arrangements for appearing
in person, or by agent, a fresh date must be fixed and notice
should be issued to the defendant, but this will seldom be
necessary if Courts are careful in the first instance to allow
sufficient time, as required by Order V, Rule 6, of the Code of Civil
Procedure, and explained in the above remarks.

(v) It may be noted that when an officer, soldier, sailor or

airman has authorized any person under order XXVIII, Rule 1, to
sue or defend instead of him processes may be served on such
agent or upon any advocate appointed by such agent. (Order
XXVIII, Rule 3).

20. Service of summons outside the jurisdiction of the

Court issuing it:

(i) When the person to be served resides within the jurisdiction

of another Court, the Judge must decide how service is to be
effected and pass orders accordingly. If the process has to be
served within the jurisdiction of another Court but within the
same district, the agencies located at tehsils will be employed, the
processes being transmitted by post from one agency to another.

(ii) If the process has to be served in another district, but within

the State or Union Territory, it should be transmitted by post to
the Civil Judge (Senior Division) for service and return. But no
Court should refuse to serve any process received for service
within its jurisdiction from a Court in another district or State or
Union Territory merely by reason of the process not having been
sent through the Senior Civil Judge. Processes issued to districts

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in other States or Union territories should be forwarded for

execution/service to the District Judge of the district in which
service of such process is desired, except where they are to be
served within Kolkata, Chennai or Mumbai (Order V, Rule 22,
Civil Procedure Code), when they should be transmitted for
service to the Judge of the Court of Small Causes.

(iii) In issuing processes for service in other States or Union

Territories, the Presiding Officer of the Court issuing the process
should personally satisfy himself that such full particulars of the
description of the person summoned are entered in the process so
that serving officer should not commit any mistake regarding the
identity of the person summoned. The name, occupation, and
address should be recorded in the summons, together with any
further particulars which, in the opinion of the Court, will
facilitate service of the process. The issue of the process should be
delayed until such particulars are satisfactorily furnished by the
person applying therefor. The same care should be taken
regarding all processes which are to be served outside the
jurisdiction of the Court issuing the process.

(iv) All processes should set forth distinctly both the Court from
which the process issues and the name of the district. They
should bear the seal of the Court and should be signed legibly.

(v) Where a process is sent to the Court of a district of another

state where a different language is in ordinary official use, a
translation, certified by the transmitting Court to be correct, into
such other language may also accompany the process.

(vi) All reports made on processes received for service from any
district or State or Union Territory the vernacular of which differs

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from that of the district in which the report is written shall be

translated into English which translation shall accompany the
process when returned to the Court issuing it.

(vii) In every case in which application is made for the issue of a

process to a place in India, but beyond the limits of the
jurisdiction of the Court, the stamp requisite for the issue of such
process, under the rules in force in the State of HP will be levied
and affixed to the diary of process fees; and a note will be made
on the process to the effect that the proper fee has been paid. A
process issued by any Court in India will be served or executed
free of charge in the State of Himachal Pradesh if it be certified on
the process that the proper fee has been levied under the rules in
force in the State issuing the summons, as the case may be.

(viii) Complaints are frequently received that the processes sent

for service to other district are not properly attended to. All
processes received from another district should be shown
regularly in the prescribed register and the disposal of the
processes should be watched by the Presiding Officer of the Court
from time to time.

(ix) If a summons is issued under the provision of Order V, Rule

21, of the Code of Civil Procedure, it is the duty of the Court
serving the summons

(a) to proceed as if it had been issued by such Court;

(b) to return the summons to the Court of the issue together

with the record (if any) of its proceedings with regard
thereto; and

(c) to make the declaration referred to in Order V, Rule 19.

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(x) Summons for service in territories in India to which the

Code does not extend may also be sent for service in another
State to such Court as may be prescribed by rules in force in that
State. Provisions of Section 28 of the Code apply to service in
such territories in view of the definition of 'State' contained in
Section 3 (58) and (41) of the General Clauses Act, 1897 (X of
1897).

(Government of India letter no. F-80(49)/55-G), dated the 29th

February 1956).

21. Service of summons abroad:

(i) A process meant for service in foreign or

Commonwealth countries shall be sent through the High
Court to the Ministry of External Affairs and Commonwealth
Relations, Government of India, in accordance with such
directions as may be issued from time to time.

(ii) Provided that where in a foreign territory Political

Agent has been appointed or Court has been established in
accordance with Order V, Rule 26, the process can also be
sent directly by registered post or otherwise to such Political
Agent or Court for service.

(iii) Where the defendant/respondent resides in a Country

which is signatory to or has acceded to the Hague
Convention on the Service Abroad of Judicial and Extra-
Judicial Documents in Civil or Commercial Matters, 1965,
(In short, the Hague Convention, 1965), the summons and
the letter of request, in duplicate, should be remitted to the
Central Authority of the addressed Country for service. The
summons, if not in English, must be accompanied by a true

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copy of translation in English or in the language of the

addressed Country.

Note: - The detailed information regarding signatories to this

Convention and the Central Authorities declared by the Signatory
States can be accessed at
https://www.hcch.net/en/instruments/conventions/authorities1
/?cid=17.

(iv) The addressed Country should be asked, in the letter

of request, to send back the summons, after due service as
per the internal law of that Country, along with a certificate
stating that the summons has been served, the method, the
place and the date of service and the person to whom the
summons was delivered. If the summons is not served, the
certificate shall set out the reasons which have prevented
service. In either event, if such certificate is not completed
by the Central Authority or by a judicial authority, it must
be countersigned by one of these authorities. If the
certificate has been received stating that the summons has
been served, the Court shall presume that the summons has
been duly served upon the defendant/respondent.

(v) If the summons is not received back served or

unserved within 6 months from the date of despatch of the
letter of request, the Court may presume the summons to
have been served on the defendant/respondent.

(vi) The Court shall also have the power to send the
summons for service:

(a) directly to the defendant/respondent through

postal channels;

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(b) directly to the Judicial Officers, officials or other

competent persons of the Country of destination;

(c) to the diplomatic or consular agent where the

defendant/ respondent is of Indian origin and also in
other cases where the Country of destination is not
opposed to such service;

(d) to the Officer, if any, of the foreign country specified

by the Central Government under Order V, Rule 26-A
of the Code;

(e) give the summons and letter of request dasti to the

plaintiff on request, for effecting service directly
through the Judicial Officers, officials or other
competent persons of the Country of destination.

(vii) Where the defendant/respondent resides in a country

which is not signatory to or has not acceded to the Hague
Convention, 1965 and has no agent in India empowered to
accept the service, the summons shall be sent to the Officer,
if any, of that country specified by the Central Government
under Order V, Rule 26-A of the Code and also forwarded by
registered post acknowledgment due, if there is postal
communication with the said place.

(viii) The summons should be sent in a prepaid envelope

which is properly and fully addressed. A copy of the address
should also be kept on the judicial record.
Certificate/receipt given by the postal authority should also
contain the full address.

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22. Directions for processes to be sent to foreign Courts.

The following directions shall be carefully complied with

when any processes are to be issued for service in foreign
countries (i.e., a State or Country outside the Union of India): -

(a) They shall be drawn up in proper form and

typewritten/computer printed. Where printed forms are not
used, they shall be typewritten/computer printed on good
durable paper.

(b) They shall be written in English and shall be legible.

Such summonses etc., shall not be signed by the Court
official but by the Presiding Officer of the Court issuing
them, and he shall satisfy himself that the documents are
correctly addressed and properly sealed. This matter shall
not be left to the parties and the official.

(c) The names and addresses of the individuals upon

whom a process is to be served shall also be stated in the
forwarding letter accompanying the process.

(d) All documents not in English shall be accompanied by

their translation in English and in addition where the
person upon whom the service is desired, is residing in a
country where English is not the official language, by a
translation into the language of the country concerned.

In case of Iran, full translation into Persian shall accompany

all judicial documents including summonses and notices.

(e) The returnable date to be specified in the documents

shall be so fixed as to allow sufficient time for execution and
return of the documents to India before the date fixed for the
next hearing of the suit. In no case shall the returnable date

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be fixed at less than 3 months after the date on which the

documents are finally dispatched to the High Court. In the
case of Iran, the period shall ordinarily be not less than six
months and in case of Thailand not less than eight months.

23. Deposit of expenses in the summons to be sent to

foreign countries.

Where a process is issued to any Court outside India, the

Court issuing the process shall require the party at whose
instance the process is issued to pay in cash (and not in Court-fee
stamps), such fee for service as is required by the Court to which
the process is to be sent and shall transmit the same to such
Court, together with, in the case of summons to a witness,
reasonable traveling, and other expenses.

24. Special provisions regarding service in some particular

foreign countries:

Without prejudice to the generality of Rule 12, following

special provisions are made regarding some foreign countries:

(i) Afghanistan: Summons to the defendant in Afghanistan can

be served by post and not through any agency. Courts should in
no case address Afghanistan Courts or officials or the authorities
in Kabul directly. Violation of these instructions may cause much
embarrassment to the Government of India. Breaches of these
instructions will not be treated with leniency, even though the
result of mere carelessness.

(ii) United States of America: Service in this country is

normally done by appointing a local lawyer acting as agent for the
parties. Where desired, Indian Consular Officer will recommend
the suitable firm of local lawyers.

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(iii) Pakistan and Bangladesh: Provisos to Order V, Rule 25 of

the Code of Civil Procedure lay down special procedure for service
of summons on defendant who is residing in Pakistan or
Bangladesh by sending the same to any Court in that country (not
being High Court) having jurisdiction in the place where the
defendant resides and in the case of the defendant being a Public
Officer (not belonging to Military, Naval or Air Forces) or a servant
of a Railway Company or local authority, by sending the
summons to such Officer or Authority in that country as the
Central Government may specify.

Under the second proviso to Order V Rule 25 of the Code of

Civil Procedure, the Central Government has issued the following
notification:-

S.R.O. 1342, dated 1st September, 1951 – In pursuance of

the second proviso to Rule 25 of Order V in the First Schedule to
the Code of Civil Procedure, 1908 (V of 1908), the Central
Government hereby specifies the following officers in Pakistan to
whom summons may be sent for service on defendant who is a
public officer in Pakistan (not belonging to the Pakistan Military,
Naval or Air Forces) namely:

(a) Where the defendant is a public officer serving in

connection with the affairs of the Dominion of Pakistan or is
a servant of a Railway in Pakistan, to the Secretary to the
Government of Pakistan in the Ministry of the Interior.

(b) Where such defendant is serving in connection with

the affairs of any other Government in Pakistan or under
any local authority in Pakistan, to the Home Secretary to
that Government or, as the case may be, to the Home

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Secretary to the Government within whose territory the local

authority has its jurisdiction.

25. Service of summons received from Abroad:

(i) Summons issued by Civil or Revenue Courts from any

Country which is signatory to or has acceded to the Hague
Convention, 1965 may be served as if the same were issued
by the Court receiving the said summons and the summons
be returned with certificate of service or non-service
containing particulars mentioned in the summons received
from the other and duly countersigned by the Judicial
Officer.

(ii) Summons issued by Civil or Revenue Courts from any

other foreign country may also be served as if issued by the
Court receiving the same. In this regard, the provisions of
Section 29 of the Code have been made applicable to the
following countries.

Serial Name of country Number and date Courts in respect of

Number of notification which notification
has been issued.

1. Singapore S.R.O. 1233, All Civil Courts

dated 29th May
1956
2. Ceylon(now Sri No. 247, dated All Civil Courts
Lanka) 16.2.1909
3. France No. 852-C, dated Civil Courts
3.2.1913
4. Spain No. 852-C, dated Ditto
3.2.1913
5. Belgium No. 852-C, dated Ditto
3.2.1913
6. Russia No. 852-C, dated Ditto
3.2.1913

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Serial Name of country Number and date Courts in respect of

Number of notification which notification
has been issued.

7. Portugal No. 852-C, dated Ditto

3.2.1913
8. Iraq No. F.209-23, Civil and Revenue
dated 6.6.1923 Courts
9. Kenya No. F.811-23, Civil Courts
dated 4.6.1924
10. Egypt No. 369, dated Mixed Courts
31.5.1938
11. Japan No. 1924, dated Civil Courts
25.11.1920
12. Sweden No. F. 12/17/35, Ditto
dated 20.1.193
13. Persia (now Iran) No. F.840/25, Ditto
dated 3.5.1928
14. Nepal No. F. 576/24, Courts specified in the
dated 15.8.1925 Schedule to the
notification
15. Pakistan (now No. S.R.O. 1340, Civil and Revenue
Bangladesh also) dated 1.9.1951 Courts

16. Federation of No. S.R.O. 223, All Civil Courts

Malaya (now dated 24.1.195
Malaysia)
26. Cost of postage and registration of processes forwarded
by post:

(i) Postal charges on all processes, notices, and other

such documents, issued from any Court and transmitted by
post, are to be paid by means of service postage stamps,
without any additional charge being levied from the parties
at whose instance the process or document is issued. In
cases in which it is considered necessary to register the
cover, the fee for registering it will also be paid by means of
service postage stamps.

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(ii) However, for service of summons on

defendant/respondent, the plaintiff/petitioner will be
required to pay all postal charges for postage and
registration. When the party concerned furnishes stamped
postal envelope, Ahlmad should give him the receipt for the
same.

(iii) Processes received for service from Courts in other

States should be returned in service postage paid covers, the
stamps being provided by the returning Court.

Service postage labels required for this purpose will be

obtained in the usual way.

(iv) When the warrant or process is required to be

executed or served by the Court of Small Causes, Calcutta,
conveyance charges at the rate of Rs. 10.00 per warrant and
Rs. 1.00 per copy of the summons or another process shall
be realized in advance in Court – fee stamps and a
certificate of realization of the charges shall be endorsed
thereon for the information of the Court of Small Causes,
Calcutta.

Note. – The Courts subordinate to the Calcutta High Court are

bound to serve warrants and processes so endorsed. Vide rule
687 of the Civil Rules and Orders for the guidance of Civil Courts
subordinate to the High Court of Fort William, Bengal-Vol. 1.

27. Assistance by Village Officers in Process-serving

(i) One of the duties of the Lambardars is to assist all

officers of the Government in the execution of their public
duties and thus, they are expected to assist the process-
servers in serving process in Civil and Criminal cases. If any

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case of willful neglect of the duty on the part of Lambardar

is noticed, Subordinate Courts should bring to the notice of
the Collectors such lapse and they should not hesitate to
move the High Court through the proper channel if matters
do not improve even then.

(ii) In order to reduce the possibility of false reports being

made on notices of sale, which are not uncommon, it has
been decided that the process-server's report on a notice of
sale should ordinarily be attested by a Lambardar,
Sarpanch or Member Panchayat. The absence of attestation
by a Lambardar, Sarpanch or Member Panchayat should not
necessarily be regarded as proof that the process-server’s
report is false but the court should scrutinize such reports
with due care and caution before acting on them.

28. Particulars on the return of summonses.

The Court to which the summons has been sent under O.V,
r. 21, shall re-transmit it to the Court by which it was issued
together with -

(1) the Nazir‘s return and the affidavit or examination on

oath of the serving officer;

(2) the record of further inquiry, if any, by such Court;

(3) where the service has been effected by affixation under

O. V., r. 17, a declaration by such Court whether the service
is sufficient or not; and

(4) in cases where the return of service is in a language

other than Hindi or English, it shall be accompanied by an
English translation of the report of service.

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29. Filling up of summons by a party:

(i) Where the summons are not generated through

the computer, a party may if it so desires file printed
forms of summons duly filled up in accordance with
the rules, leaving the date of appearance and the date
of the summons blank.

(ii) The summons must be filled up in bold, clear

and easily legible hand-writing.

(iii) Date of appearance and date of summons shall

be filled in by the Ahlmad while issuing the summons
and he shall be responsible for the accuracy of
information in case of such summons.

(iv) A necessary number of printed forms of summons will be

supplied to such party free of cost.

30. Warrant for arrest of public servants.

(a) No warrant of arrest shall ordinarily be executed against any

Government servant until notice of the intended arrest has been
given to the head of his office.

(b) No warrant of arrest shall be executed against any railway

servant or any person working on a railway in the service of a
contractor till notice of the intended arrest has been given to the
proper officer of the railway or to the contractor or his
representative.

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Chapter 5
Written Statements and Replications
1. Period for filing written statement

Order VIII Rule 1 of the Code stipulates that a defendant

shall within 30 days from the date of service of summons on him
present a written statement of his defence. For reasons to be
recorded by the Court, the aforesaid period of 30 days can be
extended to maximum of 90 days from the date of service of
summons. However, this provision has been held to be directory
and not mandatory. Extreme harsh order of striking off the
defence of the defendant due to non-filing of the written statement
within the stipulated period should be the last resort, but at the
same time, the period for filing written statement should not be
extended lightly or in routine.

2. Documents to accompany written statement

The defendant along with written statement has to produce

all documents in his possession or power on which he bases his
defence or claims to set off or counter-claim, along with a list of
such documents as are necessary to support the defence of the
counterclaim/set off. The defendant shall also file a list of other
documents relied upon by him but not in his possession or power.
The defendant shall also furnish one copy of the written
statement for being supplied to the plaintiff. A statement
indicating his address for service complete in all respects shall
also accompany the written statement.

3. Separate Written Statements

If several defendants in a suit have an identical defence,

they may file a joint written statement or separate written

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statement. However, if their defences are not identical, they shall

file separate written statements.

4. Copy of the Written Statement to be supplied to the

other side:

In contested original suits no written statement, application

or list of documents shall be filed unless copies thereof have been
previously served on the advocate for each set of parties whose
interests are not joint. Advocates served with such copies shall
give receipts on the original written statements, applications or
lists.

Note.—The above Rule shall apply mutatis mutandis to all

contested execution proceedings and miscellaneous judicial
applications.

5. Replication

The Court may call upon the plaintiff to file replication to

the written statement of the defendant. The Court may also
require the parties to file additional written statement/replication
fixing the time of not more than 30 days for presenting the same.
This power should be used when necessary for elucidating the
pleas, especially in complicated cases. In simple cases, however,
examination of the parties, after filing of written statement, is
generally sufficient.

6. Court Fees on set off/counter-claim

When the defendant in his written statement claims any

sum by way of set off in a suit for recovery of money or makes
counter-claim in any suit, the written statement qua the same
must be stamped in the same manner as a plaint. The

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counterclaim shall also comply with all the rules relating to

pleadings in such cases.

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Chapter 6
Framing of issues

1. Out of Court Settlement.

In view of Section 89 and Order X, Rule 1-A of the Code of

Civil Procedure and Section 20 of the Legal Services Authorities
Act, 1987, Court should explore possibility of settlement or
compromise between the parties by adopting any of the modes
specified in Section 89(1) of the Code by way of arbitration,
settlement, conciliation or mediation.

2. Stress on framing correct issues.

The framing of correct issues is very important for a proper

trial of the suit. It is the duty of the Court to frame all issues
arising out of the pleadings correctly. Presiding Officer should go
through the pleadings carefully while framing issues.

Issues are material propositions of facts and law which are in

controversy between the parties and the correct decision of a suit
depends on the correct determination of these propositions. Some
time spent by the Court at the outset in studying and elucidating
the pleadings may mean a saving of several days in the later
stages of the trial. The object of framing issues is to pinpoint the
points required to be determined by the Court.

3. Framing of issues by counsel illegal

In some Courts, the framing of issues is left to the counsel

for the parties concerned. This practice is illegal and must cease.
The Code contemplates that the Presiding Officer of the Court
should himself examine the pleadings, get the points in dispute
elucidated and frame issues thereon.

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4. Elucidation of pleadings for framing issues

The main foundation for the issues is supplied by the

pleadings of the parties, viz., the plaint and the written statement.
But owing to the ignorance of the parties or other reasons, it is
frequently found that the facts are stated neither correctly nor
clearly in the pleadings. The Code gives ample powers to the
Court to elucidate the pleadings by different methods prescribed
in Orders X, XI and XII of the Code and in most cases, it is
essential to do so, before framing the issues.

On the date fixed for the settlement of issues, the Court

should, therefore, carefully examine the pleadings of the parties
and see whether allegations of fact made by each party are either
admitted or denied by the opposite party, as they ought to be. If
any allegations of fact are not so admitted or denied in the
pleadings of any party, either expressly or by clear implication,
the Court should proceed to question the party or his Advocate
and record categorically his admission or denial of those
allegations (Order X, Rule 1).

5. Examination of Parties

Order X, Rule 2, of the Code, empowers the Court at the

first or any subsequent hearing to examine any party appearing in
person or present in Court or any person, accompanying him,
who is able to answer all material questions relating to the suit.
This is most valuable provision, and if properly used, results
frequently in saving a lot of time. To use it properly, the Court
should begin by studying the pleas and recording the admissions
and denials of the parties under Order X, Rule 1, as stated above.

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The Court will then be in a position to ascertain what facts if any,

need further elucidation by examination of the parties.

The parties should then be examined alternatively on all

such points and the process of examination continued until all
the matters in conflict and especially matters of fact are clearly
brought to a focus. When there are more defendants than one,
they should be examined separately so as to avoid any confusion
between their respective defences, unless their defence is
identical.

6. Examination on oath.

From Order XIV, Rule 3, of the Code, it will appear that

every allegation of fact made by any person other than an
Advocate should be under oath or solemn affirmation.

7. Personal attendance of parties.

When a counsel for a party or his agent is unable to state

the facts to the satisfaction of the Court, the Court has the power
to require the personal attendance of the party concerned under
Order X, Rule 4 Civil Procedure Code. The Court has also the
power to require the personal attendance of the defendant on the
date fixed for the framing of issues by an order to that effect in
the summons issued to him under Order V, Rule 3.

8. The examination should be detailed.

In examining the parties or their Advocates, the Court

should insist on a detailed and accurate statement of facts. A
brief or vague oral plea, e. g., that the suit is barred by limitation
or by the rule of res-judicata, should not be received without a full
statement of the material facts and the provision of law on which
the plea is based. Similarly, when fraud, collusion, custom,

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misjoinder, estoppel, etc., is pleaded, the facts on which the pleas

are based should be fully elucidated. Any inclination of a party or
his Advocate to evade straightforward answers or make objections
or pleas, which appear to the Court to be frivolous, can be
promptly met, when necessary, by an order for a further written
statement on payment of costs. The party concerned should also
be warned that he will be liable to pay the costs of the opposite
party, on that part of the case at any rate, if he failed to
substantiate his allegations.

9. Personal examination of parties.

Examination of the parties in person is particularly useful in

the case of illiterate litigants. Much hardship to the people will be
prevented if the Presiding Officers examine the parties personally
and sift the cases thoroughly at the outset.

10. Record of parties statements.

Statements of parties or their counsel under O.X, Rules 1, 2

or of a similar nature shall be recorded either on the judge‘s notes
or on a full sheet of foolscap paper and shall be signed by the
persons making them.

11. Amendment of pleadings.

The examination of the parties frequently discloses that the

pleadings in the plaint or written statement are not correctly
stated. In such cases, these should be ordered to be amended and
the amendment initialled by the party concerned. If any
misjoinder or multifariousness is discovered, the Court should
take action to have the defect removed.

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12. Procedure for amendment.

(i) An application for amendment made under O.I, r. 10,

O. VI, r. 17 or Order XXII of the Code shall also contain a
prayer for all consequential amendments. The Presiding
Officer shall reject the application if it is not in accordance
with law or these rules.

(ii) When a party dies pendente lite a note to that effect

shall be added against the name of the party and necessary
consequential amendment in the body of the petition or
pleading shall also be made as prayed for.

(iii) When the heirs of a deceased party are substituted for

him, they shall be entered and numbered as follows. If the
serial number of the deceased party was say ‘3’ his heirs will
be numbered as 3 (i), 3 (ii), 3 (iii) and so on. If the party
numbered as 3 (i) dies, his heirs will be numbered as 3 (i) (i),
3 (i) (ii), 3 (i) (iii) and so on.

13. Discovery and inspection etc.

The provisions of Orders XI and XII of the Code with regard

to 'discovery and inspection' and 'admissions' are very important
for ascertaining precisely the cases of the parties and narrowing
down the field of controversy. A proper use of these provisions
should save expense and time of the parties and shorten the
duration of the trial. The parties should be warned that if they fail
to avail themselves of these provisions, they will not be allowed
costs of proving facts and documents, notice of which could have
been given. When hearing evidence, the Court should make a note
whether the parties have made use of these provisions, and if they

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have not done so, should ordinarily disallow costs incurred in

proving such facts and documents while passing final orders.

14. Court can move suo motu

Section 30 of the Code authorizes the Court when it appears

reasonable, to order, suo motu, the delivery and answering of
interrogatories, the admission of documents and facts and the
discovery, inspection, production etc., of documents or other
articles producible as evidence. These powers should be freely
exercised in long and intricate cases or where the number of
documents relied upon by the parties is large and it may appear
that a long time would be taken up informally proving the facts
and the documents.

15. Interrogatories

Rules 1 and 2 of Order XI deal with the discovery by

interrogatories. Leave to deliver interrogatories should be given to
such only of the interrogatories as the Court may consider
necessary for disposing of the suit fairly or for saving costs. The
party to whom interrogatories are delivered shall make answer by
affidavit within the time prescribed in Order XI, rule 8 and may
therein raise objections as provided in Order Xl, rule 6.

Interrogatories may also be set aside or struck off by the Court if

these are unreasonable or vexatious or are prolix, oppressive or
scandalous (Order XI, Rule 7). The answer to the interrogatories
may be objected to only on grounds of insufficiency (Order XI,
Rule 10).

When a party omits to answer or answers insufficiently, the Court

may on the application of the other party, require the former to

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answer or answer further by affidavit, or by viva voce

examination. (Order XI, Rule 11.)

16. Discovery of documents

A party may also move the Court for the discovery of

documents which are or have been in possession or power of any
other party to the suit, and which relate to any matter in question
in the suit. The other party shall make answer on affidavit in form
No. 5, Appendix C to the Code and must make a full and complete
disclosure along the lines indicated in this Form (Order XI, Rules
12 and 13). The production of documents can be resisted on three
grounds; viz. (i) that these are evidence exclusively of the party's
own case or title, (ii) that these are privileged, and (iii) when the
party called upon to produce being a public officer considers that
a disclosure would be injurious to public interest. The affidavit
shall be treated as conclusive to the existence, possession and the
grounds of objection to the production of the document unless the
court is reasonably certain that the objection is misconceived and
the document is of such a nature that the party cannot properly
make the assertions contained in the affidavit. The Court can also
examine the document to decide the claim about privilege. The
Court can order the production of the documents at any stage of
the trial and a party can serve notice on the other party for the
inspection of any of the documents mentioned in the pleadings or
the affidavit of the other party (Order XI, rules 14 and 15). The
failure to comply with such order or notice does not justify the
striking out of the defence, though the party at fault shall not
afterward be at liberty to put such document in evidence, except
with the leave of the Court and on such terms as to costs as the
Court thinks fit.

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Sections 163 and 164 of the Indian Evidence Act may also
be read in this connection. The party on whom notice to produce
or allow inspection is served, shall within ten days serve a
counter-notice, stating a time within three days after the delivery
thereof offering inspection by the other party at his advocate's
office, of such documents as he offers to produce. Where no such
counter-notice is given, the Court may, on the application of the
party and if of the opinion that it is necessary for disposing of the
suit fairly or for saving costs, make an order for inspection at a
time and place fixed by the Court.

(i) Business books.

In the case of business books, the Court may, in the first

instance, instead of ordering inspection of original books, order
that copies of relevant entries verified to be correct by the affidavit
of a person who has seen these books, may be furnished. Such
affidavit shall state whether there are any and what erasures,
interlineations, and alterations, etc. in the original books. The
Court can still order inspection of the original books and can look
up the document to decide a claim regarding privilege.

(ii) Electronic record

In case of an electronic record, it will be sufficient if the

print out of the record is produced but where the document
contains audio or video content, the production of the copy shall
be necessary. The party applying for production shall not be
entitled to access to the electronic record if the certificate is
furnished by the party in possession of the record that the copy or
print out has been prepared from the original record. However,

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the party can always seek metadata or log with the intervention of
the court.

17 The penalty for disobedience of orders.

Under rule 21 of Order XI, when a party disobeys valid

orders of the court to answer interrogatories or for discovery and
inspection of documents, he can, on the application of the other
party, if a plaintiff, have his suit dismissed for want of
prosecution, and if a defendant, have his defence, if any, struck
out by the Court. The Courts should pass such order against a
party only as a last resort and when the default is willful.

18. Notice to admit documents or facts.

Order XII makes provisions for the admission of facts and

documents. Any party can serve on the other party a notice to
admit facts or documents. Rule 3A now enables the Court to call
upon any party to admit any document at any stage of the
proceeding, notwithstanding that no notice to admit documents
had been given under Rule 2. When a party is called upon to
admit a document and if the same is not denied or stated to be
not admitted in the pleading or in reply to the notice to admit
documents, the document shall be deemed to be admitted except
as against a person under a disability. However, still, discretion
has been left with the Court to require, for reasons to be recorded
in writing, the document to be proved, otherwise than by such
admission (Order XII Rule 2A). A notice to admit facts should be
served at least 9 days before the day fixed for hearing; the other
party may then admit the fact within 6 days of service of the
notice, otherwise, he incurs liability for the costs of proving the
fact.

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The Court should resort to discovery and production of

documents and delivery of interrogatories at the earliest.

Where a part of the case is admitted in the pleadings or

otherwise, the Court may, on its own motion or on the application
of any party, pass a judgment or order in respect of the part
admitted.

19. Form of Issues

When the pleadings and method of alternative dispute

resolutions have been exhausted and the Court has before it the
plaint, pleas, written statements, admissions and denials
recorded under Order X, Rule 1, examination of parties recorded
under Order X, Rule 2, and admissions of facts or documents
made under Order XII of the Code, it will be in a position to frame
correctly the issues upon the points actually in dispute between
the parties. Each issue should state in an interrogative form one
point in dispute. Every issue should form a single question, and
as far as possible, the issue should not be put in the alternative
form. In other words, each issue should contain a definite
proposition of fact or law which one party avers and the other
party denies. An issue in the form, so often seen, of a group of
confused questions is no issue at all and is productive of nothing
but confusion at the trial. A double or alternative issue generally
indicates that the Court does not see clearly on which side or in
what manner the true issue arises, and on whom the burden of
proof should lie, and an issue in general terms such as "Whether
the plaintiff is entitled to a decree" is meaningless. If there are
more defendants than one who makes separate answers to the
claim, the Court should note against each issue the defendant or
defendants between whom and the plaintiff the issue arises.

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20. Burden of Proof

The burden of proof of each issue should be carefully

determined and stated opposite to the issue. Where any objection
is raised regarding the burden of proof the same should be
specifically noted and disposed of by the Court.

21. Preliminary Issue

An issue of law only, and that too only relating to the

jurisdiction of the Court, or a bar to the suit created by any law,
can be treated as a preliminary issue, if the case or any part
thereof, may be disposed of on the said issue. However, mixed
issue of law and facts should not be treated as a preliminary
issue.

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Chapter 7
Documentary Evidence

1. List of documents and comparison with the list.

Whenever documents are produced by the parties, they

must always be accompanied by a list in duplicate, in the form
given below and no document, whensoever produced, shall be
received unless accompanied by the said form duly filled up. In
the case of a document produced by a witness or person
summoned to produce a document, the form shall be supplied by
the party at whose instance the document was produced. The list,
as well as the documents, shall be immediately entered in the
general index. The documents must be forthwith compared with
the list, which if found correct, shall be signed by the Ahlmad who
shall give a signed copy of the list to the person producing the
documents.

List of documents produced by Plaintiff/Defendant under

Order XIII, Rule 1, Civil Procedure Code.

IN THE COURT OF_____________ AT ____________ DISTRICT

SUIT NO.________________________ OF

____________________________________ Plaintiff.

Versus

____________________________________Defendant.

List of documents produced with the plaint/written statement (or

at first hearing) on behalf of plaintiff or defendant.

This List was filed by __________this ___________day of 20

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1. 2. 3. 4 5.
What became of the
document
Serial Description What the If brought on If rejected Remarks
No. and Date, if Document record, date of
any, of the is Exhibit/Mark return to
document intended put on the the party
to prove document and
signature
of the
party or
the
advocate
to whom
the
document
is
returned

Note. Column 4 of the list should be filled in at the appropriate

stage.

2. Translation to be filed with certain documents.

Every document produced by a party or his witness not

written in Hindi or English shall be accompanied by a correct
translation of the document into Hindi written in the Devanagari
script. The translation shall bear a certificate of the party’s lawyer
to the effect that the translation is correct. If the party is not
represented by a lawyer, the Court shall have the translation
certified by any person appointed by it in this behalf at the cost of
the party concerned.

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3. The statement about erasures and additions.

Whenever any private document, other than a registered

document or certified copy, containing erasures, additions or
interlineations is produced by a party to a case, it shall be
accompanied by a statement clearly describing each such
erasure, addition or interlineations, and signed by such party.
Reference to such statement shall be made in the list form with
which the paper is filed.

4. Preservation of documents.

Care should be taken to protect old and delicate documents

from damage likely to be caused by frequent handling in courts.
The common method of pasting the document on a piece of strong
paper will be found useful in most cases and the margin of the
paper should be stitched to the file in a manner that no part of
the document is concealed by the stitching but where there is
writing on both the sides, the document may be preserved
between two sheets or by lamination or cellophane glued together
at the edges so that the document can easily be examined without
being taken out of its protective covering. In case the parties
agree, a photocopy of the document may also be placed on the file
and the document kept in a sealed cover. The party producing the
document may be asked to supply the material necessary for its
proper preservation.

5. Calling upon parties to produce documents.

The parties should produce documents relied on by them

and in their possession or power with their pleadings. The Court
should formally call upon the parties at the first hearing; at the

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time of framing issues to produce their documents and should

make a note that it has done so.

6. Affidavit to accompany an application for production of

the public record.

When a party requires the production of a public record, the

application shall, unless the Court otherwise directs, be
accompanied by an affidavit showing how the party requiring the
record has satisfied himself that it is material to the suit and why
a certified copy of the document cannot be produced or will not
serve the purpose.

7. Documents for production of which sanction of the head

of the department is necessary.

All Subordinate Courts should take special care to prevent

the unnecessary production in Court of public documents as
defined in Section 74 of the Evidence Act. When an officer objects
to the production of any documents stating the grounds of such
objection it will be the duty of the Court to consider and decide if
it should compel the production of such documents.

When a Court decides that in the interests of justice it is

necessary that it should have before it a document which cannot
be produced without the sanction of the head of the department
concerned, it shall in its order asking for such document set out
as clearly as possible (a) the facts, for the proof of which the
production of the document is sought; (b) the exact portion or
portions of the document required as evidence of the facts sought
to be proved. The Court summoning the document shall fix a date
for its production, which should not be less than three weeks
from the date of issue of summons.

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8. Registers from Sub –Registrar’s office.

A summons for the production of any register or book

belonging to the office of a Sub-Registrar shall be addressed to the
District Registrar and not directly to the Sub Registrar.

9. Production of documents in police custody.

A summons for the production of documents in the custody

of the police should be addressed to the Superintendent of Police
concerned, and not to the Police station concerned.

10. Production of Municipal and District Board Records.

When duly authenticated and certified copies of documents

in the possession of Municipal and District Boards are admissible
in evidence, the Court shall not send for original records unless,
after perusal of copies filed, the Court is satisfied that the
production of the original is absolutely necessary.

11. Post Office records not to be unnecessarily disclosed.

When any journal or another record of a post office is

produced in Court, the Court shall not permit any portion of such
journal or record to be disclosed, other than the portion or
portions which seem to the Court necessary for the determination
of the case pending before it. A summons for the production of
any of the records of a post office or a certified extract from or a
copy of any of such records shall be addressed to the Postmaster.

12. Records.

When a Court requires the production of any Settlement

Record in which the Settlement Officer acted in a judicial
capacity, it shall be summoned in the manner provided by O. XIII,
r.10. In other cases, the procedure prescribed in O. XVI, r. 6 shall

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be followed. The summons to produce such documents shall be

issued to the Collector/Deputy Commissioner, who may send the
document by messenger or registered post.

13. Record of the Legislature

Whenever any document or documents, which are required

to be produced in a case are in the custody of the House of the
People/Council of States/State Legislatures or whenever a
witness whose presence is required in a case, for being examined,
is an officer in the Secretariat of the House of the People/Council
of States/State Legislatures or any duly informed officer of the
Secretariat of the House of the People/Council of States/State
Legislatures a letter of request shall be issued instead of a
summons in the ordinary form.

14. Late production of documents.

The above provisions as regards the production of the

documents at the initial stage of a suit are intended to minimize
the chances of fabrication of documentary evidence during the
course of the suit as well as to give the earliest possible notice to
each party of the documentary evidence relied upon by the
opposite party. These provisions should, therefore, be strictly
followed, and if any document is tendered at a later stage, the
Court should consider carefully the nature of the document
sought to be produced (e.g., whether there is any suspicion about
its genuineness or not) and the reasons given for its non-
production at the proper stage, before admitting it. The fact of a
document being in possession of a servant or agent of a party on
whose behalf it is tendered is not itself a sufficient reason for
allowing the document to be produced after the time prescribed

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by Order XIII, Rule 1. The Court must always record its reasons
for admission of the document in such cases if it decides to admit
it.

15. Documents produced how to be dealt with.

All documents produced must be received by the Court and

must be dealt with in one or other of the following ways, viz.:-

(a) returned,

(b) placed on the record, or

(c) impounded.

16. Forged or Defective Documents.

Should any document which has been partially erased or

interlined or which otherwise presents a suspicious appearance,
be presented at any time in the course of proceedings, a note
should be made of the fact, and, should a well-founded suspicion
of fraudulent alteration or forgery subsequently arise, the
document should be impounded under Order XIII, Rule 8, and
action should be taken under Section 340 of the Code of Criminal
Procedure.

Similarly, should any document be presented which appears

to have been executed on unstamped or insufficiently stamped
paper, action should be taken under sections 33 and 35 of the
Indian Stamp Act, 1899. Where a document produced is written
in pencil, the court should ask for a true copy thereof written in
ink.

17. Production and admission of documents distinguished.

Courts should be careful to distinguish between mere

production of documents and their ‘admission in evidence' after

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being either 'admitted' by the opposite party or 'proved' according

to law. When documents are 'produced' by the parties, they are
only temporarily placed on the record subject to their being
'admitted in evidence' in due course. Only documents which are
duly ‘admitted in evidence’ form a part of the record, while the
rest must be returned to the parties producing them (Order XIII,
Rule 7).

18. Documents must be tendered in evidence.

Every document which a party intends to use as evidence

against his opponent must be formally tendered by him in
evidence in the course of proving his case. If a document is not on
the record, it must be called from and produced by, the person in
whose custody it is.

19. Procedure when documents admitted by the opposite

party.

If the opponent does not object to the document being

admitted in evidence, an endorsement to that effect must be made
by the Judge with his own hand; and, if the document is not such
as is forbidden by the Legislature to be used as evidence, the
Judge will admit it or so much of it as the parties may desire to be
read. Admission of a document by a party shall be indicated by
the endorsement “Admitted by the plaintiff” or “Admitted by the
defendant”.

20. Procedure when the document is not admitted by the

opposite party.

If on the document being tendered, the opposite party

objects to its being admitted in evidence, two questions commonly
arise; first, whether the document is authentic, or, in other words,

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is that which the party tendering it represents it to be; and

second, whether, supposing it to be authentic, it is legally
admissible in evidence as against the party who is sought to be
affected by it. The latter question, in general, is a matter of
argument only; but the first must, as a rule, be supported by
such testimony as the party can adduce.

21. Legal objections as to admissibility.

Whenever any objection is raised regarding the admissibility

of any evidence, the objection should be noted and the evidence
should be admitted in evidence subject to the objections. The
objection raised by the party to be decided at the time of delivery
of judgment. Such a course will prevent the remand of the matter
in case the evidence is found to be admissible by the appellate
court. (Bipin Shantilal vs. State (2001) 3 SCC 1)

The Court is also bound to consider, suo motu, whether any

document sought to be proved is relevant and whether there is
any legal objection to its admissibility. There are certain classes of
documents which are wholly inadmissible in evidence for certain
purposes, owing to defects such as want of registration etc. (e.g.
Section 49 of the Indian Registration Act). There are others in
which the defect can be cured, e.g., by payment of a penalty in
the case of certain unstamped or insufficiently stamped
documents.

22. Mode of Proof.

As regards the mode of proof, the provisions of the Indian

Evidence Act should be carefully borne in mind. The general rule
is that document should be proved by primary evidence, i.e., the
document itself should be produced in original and proved. If

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secondary evidence is permitted, the Court should see that the

conditions under which such evidence can be let in, exist.

23. Old documents.

If an old document is sought to be proved under Section 90

of the Indian Evidence Act, the Court should satisfy itself by every
reasonable means that it comes from proper custody.

24. When copies instead of original may be put in.

Under the Bankers’ Books Evidence Act, 1891, certified

copies can be produced, instead of the original entries in the
books of Banks in certain circumstances. Certificate required by
section 2(8) of this Act should appear at the foot of such copies

A similar privilege is extended under Section 44 of the

Himachal Pradesh Cooperative Societies Act, 1968 to entries in
books of Societies registered under the said Acts.

25. Proof of signature or attestation.

There are certain points which the Courts should bear in

mind when the signature or attestation of a document is sought
to be proved. Before a witness is allowed to identify a document,
he should ordinarily be made, by proper questioning, to state the
grounds of his knowledge with regard to it. For instance, if he is
about to speak to the act of signature, he should first be made to
explain concisely the occurrences which led to his being present
when the document was signed, and if he is about to recognise a
signature on the strength of his knowledge of the supposed
signer's hand-writing, he should first be made to state the mode
in which this knowledge was acquired.

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This should be done by the party who seeks to prove the

document. It is the duty of the Court, in the event of a witness
professing the ability to recognize or identify handwriting, always
to take care that his capacity to do so is thus tested, unless the
opposite party admits it.

26. Plans.

In all cases in which a plan of the property is produced by

either of the parties or is required from it by the Court and is not
admitted by the opposite party, it must be properly proved by--

(a) examination of the person who prepared it and by

requiring him to certify it as correct and to sign it, or

(b) by affidavits or examination of the parties and

witnesses.

It is further open to the Court to issue a commission at the

cost of the parties or either of them to any competent person to
prepare a correct plan and to examine the person so appointed in
order to explain and prove it.

27. Endorsements on documents admitted in evidence.

Every document 'admitted in evidence' must be endorsed

and signed or initialled by the Judge in the manner required by
Order XIII, Rule 4, and marked with an Exhibit number.
Documents produced by the plaintiff and admitted by the
defendant may be conveniently marked as Ex. P.1, Ex. P.2, etc.,
while those produced by the defendant and admitted by the
plaintiff as Ex. D.1, D.2, D.3, etc. Where a document is produced
by order of the Court and is not produced by any party, the serial
number shall be prefaced by the words “Court Exhibit” or an
abbreviation of the same. Where a document is produced by a

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witness at the instance of a party, the number of the witness shall

be endorsed thereon, e.g., Ex.P.W.1/A if it is produced by the
plaintiff‘s first witness, and Ex.-D.W.1/A if it is produced by the
defendant‘s first witness. To ensure strict compliance with the
provisions of Order XIII, Rule 4, each Civil Court has been
supplied with a rubber stamp in the following form:—

SUIT

No._______________________Of___________________20___

Title____________ Plaintiff____________ Versus

_____________Defendant.

Produced by____________________on the_________day

of________20___

Nature of document__________________

Stamp duty paid Rs. P. is (is not) correct.

Admitted as Exhibit No.____________________

On the________________day of__________________20____

Judge

The entries in the above form should be filled in at the time

when the document is admitted in evidence under the signature
of the Judge. This precaution is necessary to prevent any
substitution or tampering with the document. Details as to the
nature of the document and the stamp duty paid upon it are
required to be entered in order that Courts may not neglect the
duties imposed on them by Section 33 of the Indian Stamp Act,
1899. District Judges should see that all Courts subordinate to
them are supplied with these stamps.

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Where an exhibit forms part of a voluminous document,

such account book, Khata and counterfoil receipt book, etc., it
should be clearly indicated by means of a slip of paper pinned to
the sheet or page on which it occurs, the exhibit mark being noted
on the slip.

When an entry in an account book is admitted in evidence

the portion so admitted shall be clearly indicated by enclosing the
same in red ink.

When a number of documents of the same nature are

admitted, as for example, a series of rent receipts, the whole
series should bear one number or capital letter, a small letter or
small number being added beneath the number or letter, and
separated from it by a line to distinguish each paper of the series.

Exhibits must not be defaced in any way except in so far as

the law permits, that is to say, by marking them as Exhibits filed
in a case.

The above rule also applies to documents produced during

the course of an inquiry made on remand by an appellate Court.

The endorsement and stamp will show that the document is

proved. It is to be remembered that the word "proved" used in the
context here means "that judicial evidence has been led about it
"and does not imply "proof" in an absolute sense.

28. Preparation of copy of document

When any public document (not being the record of a suit or

of a judicial proceeding) or a document in public custody has
been produced in Court in compliance with a summons the Court
shall after the document has been inspected or put in evidence,
as the case may be, cause it to be returned with the least possible

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delay to the officer from whose custody it has been produced after
the preparation of such copies as the Court may require under
Order XIII, Rule 5, clause (2) Civil Procedure Code, unless its
detention is considered to be necessary till the delivery of the
judgment.

Note.—While returning any public document, the Court shall

make an endorsement therein near about the exhibit mark and by
a separate order in the order-sheet of the case direct that it shall
not be destroyed without previous permission of the Court and
the Court shall not accord such permission until the trial is
concluded, or in case where appeal lies until sufficient time has
elapsed for appeal, or, if an appeal is preferred, until the
determination thereof. The term “appeal” includes a second
appeal and an appeal to the Supreme Court. The Court shall
forward to the department concerned a copy of the order and
before according permission for destruction, shall satisfy itself
that no appeal is pending.

29. Endorsements on documents not admitted in evidence.

Documents which are not admitted in evidence must

similarly be endorsed before their return with the particulars
specified in Order XIII, Rule 6, together with a statement of their
being rejected and the endorsement must be signed or initialled
by the Judge.

30. Documents to be placed in strong cover.

Documents which are admitted in evidence should be placed

in strong covers, one cover being used for documents produced by
the plaintiff and the other for those produced by the defendant.

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The party while producing the documents shall furnish strong

cover.

31. Consequences of not properly admitting documents.

Owing to the neglect of the foregoing directions as regards

endorsing and stamping of documents, it is often impossible to
say what papers on the file constitute the true record; copies of
extracts from public or private records or accounts, referred to in
the judgment as admitted in evidence, are often found to be not
"proved" according to law, and sometimes altogether absent.

32. Revision of record before writing judgment to see that

only admitted documents are on the record.

It is the duty of the Court, before hearing arguments, finally

to revise the record which is to form the basis of its judgment,
and to see that it contains all that has been formally admitted in
evidence and nothing else. Any papers still found with the file,
which have not been admitted in evidence, should be returned to
the parties.

33. The duty of appellate Court to see that this has been
done.

Appellate Courts should examine the records of cases

coming before them on appeal with a view to satisfying themselves
that subordinate Courts have complied with the provisions of the
law and instructions of the High Court on the subject, and should
take serious notice of the matter when it appears that any Court
has failed to do so.

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34. Extracts or copies of settlement record and Riwaj-i-Am

to be placed on record.

It frequently happens that although the wajib-ul-arz or

riwaj-i-am of a village or other revenue record is referred to by the
parties and by the Court itself as affording most important
evidence, there is no certified extract or copy with the record of
the entries relied on. When there is a copy, it is often incomplete
or so carelessly written as to be unintelligible. It becomes
necessary to call for the originals thus causing damage to the
records themselves, and delay and inconvenience to the parties to
the suit. It is the duty of Appellate Courts to see that the Courts
subordinate to them have proper extracts or copies of relevant
entries in Settlement records made, verified and placed on the
record.

35. Production of Court/public records & records of former

Indian States.

No application for the production of a Court record of any

other case should be entertained unless it is supported by an
affidavit and the Court is satisfied that the production of the
original record is necessary (Order XIII, Rule 10). The same
principle may well be applied to other public records also. In the
case of revenue records, the procedure laid down in Chapter 20 of
this Volume "Special Kanungo" should be followed.

It should be borne in mind that the mere production of a

record does not make the documents therein admissible in
evidence. The documents must be proved at the trial according to
law.

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Requisition for records of Courts in other States, including

the former Indian States which have now merged with the States
or integrated as States or Territories of the Indian Union, should
be submitted through the Registrar General, High Court of
Himachal Pradesh at Shimla.

Care should, however, be taken in not treating the

applications for the production of public records and documents
too lightly. Such documents are liable to be lost or mutilated in
the course of transmission and a good deal of time of the clerks is
wasted in checking these records in order to see whether they are
complete according to the index. Original records or documents
should, therefore, not be sent for, unless the Court is fully
satisfied that the production of a certified copy will not serve the
purpose.

Attention is drawn to Rule 5, Order XIII, Civil Procedure

Code, under which it is open to the Court to require a copy of an
entry of a public record to be furnished by one or the other party
to the case. In the absence of special reasons which should be
recorded in writing, Court should not detain the original of a
public document but should return it after a copy has been
furnished.

36. Return of documents.

Documents admitted in evidence can be returned to the

persons producing them, subject to the provisions of Order XIII,
Rule 9. If an application is made for return of a document
produced in evidence before the expiry of the period for filing an
appeal or before the disposal of the appeal (if one is filed), care
should be taken to require a certified copy to be placed on the

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record, and to take an undertaking for the production of the

original, if required.

When an original document, after being marked for the

purpose of identification, is returned, and a copy thereof
substituted under the provisions of Order VII, Rule 17, or Order
XIII, Rule 5, Code of Civil Procedure, a note of the return of the
original shall be made in the lists referred to in the preceding
rules.

In pending cases, application for the return of documents

should be made to the Court where the case is pending.

In decided cases, the Officer-in-charge of the Record Room

should return the documents without consulting the original
Court only when the applicant delivers a certified copy to be
substituted for the original and undertakes to produce the
original if required to do so.

In all other cases, the application shall be made to the

original court or its successor. If the Court considers that the
document may, under Order XIII, Rule 9, be returned, it shall
record an order accordingly.

The application should then be presented to the Officer-in-

Charge of the Record Room who will pass an order for the return
of the document.

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Chapter 8
Hearing of Suits, Adjournments, Examination of Witnesses
etc.
1. List of witnesses.

(i) Provisions of Order XVI, Rules 1, 1A and 2 of the Code of

Civil Procedure should be carefully studied.

(ii) The parties must submit a list of witnesses proposed to be

examined by them, on or before the date appointed by the Court,
but not later than 15 days from the date of settlement of issues. A
party shall not be entitled to summon any witnesses not named in
the list, without an order of the Court stating the reasons
therefor. The purpose of summoning the witnesses should be
mentioned in the list specifically and the court should go through
the purpose mentioned by the party to determine whether
summoning of witnesses is necessary in the trial or not. It must
be remembered that the party is not entitled to summon the
witness by merely filing a list and summoning a witness lies in
the discretion of the Court which should be exercised keeping in
view the provision of Indian Evidence Act, 1872 relating to
relevancy and admissibility.

(iii) It is the business of the parties to take all reasonable steps

to have their witnesses present in Court on the day fixed for their
evidence. Any party desirous of summoning any witness through
Court should move application and deposit process fees and other
necessary expenses of the witness. Such application should be
moved by the party having the right to begin within five days of
presenting the list of witnesses and by the opposite party within
five days of the date of hearing when the case is ordered to be
fixed for his evidence for the first time. Thereupon, the Court

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should issue requisite summons to the witness as soon as

possible so as to secure his attendance on the date fixed for the
hearing. Without following the aforesaid process, no party shall be
entitled to obtain the process of the Court to enforce the
attendance of any witness without an order of the Court stating
the reasons therefor.

2. Statement of the case.

The trial should begin by the party having the right to begin
(Order XVIII, Rule 2, of the Code) stating his case and producing
evidence in support of the issues to be proved by him. The case
thus stated ought to be reasonably in accord with the party's
pleadings, because no litigant can be allowed to make at the trial
a case materially and substantially different from that which he
has placed on record, and which his adversary is prepared to
meet. The procedure laid down in the aforesaid rule is often
neglected by Courts, but it is highly useful and should be
invariably followed.

3. Party to appear before other witnesses

Where a party himself wishes to appear as a witness he

shall so appear before any other witness on his behalf has been
examined unless the Court, for reasons to be recorded, permits
him to appear as his own witness at a later stage.

4. Examination-in-chief.

In the examination-in-chief of witnesses, questions ought

not to be put in a leading form, nor in such a form as to induce a
witness, other than an expert, to state a conclusion of his
reasoning, an impression of fact, or a matter of belief. The
question should be directed to elicit from him facts which he

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actually saw, heard or perceived within the meaning of Section 60

of the Indian Evidence Act. The questions should be simple,
should be put one by one and should be framed so as to elicit
from the witness, as nearly as may be in chronological order, all
the material facts to which he can speak of his own personal
knowledge. A general request to a witness to tell what he knows
or to state the facts of the case, should as a rule, not be allowed
because it gives an opening for a prepared story. Where the party
calling witnesses is not aided by counsel and is unable himself to
properly examine his witnesses, he may be asked to suggest
questions and the examination may be conducted by the Court. In
view of Order XVIII Rule 4 of the Code, examination-in-chief of the
witness shall ordinarily be on affidavit and copy thereof supplied
to opposite party. However, the summoned witness may be given
the option to make examination-in-chief on affidavit or by being
present in the Court, having regard to the facts of the case.
Ordinarily, there should be no adjournment for cross-examination
on the ground that copy of the affidavit of examination-in-chief
was supplied on the same day. The practice of granting such
adjournments is deprecated and should stop forthwith.

5. Cross-examination.

When the examination-in-chief is concluded, the opposite

side should be allowed to cross-examine the witness or, if unable
to do so, to suggest questions to be put by the Court. In cross-
examination leading questions are permissible. In view of Order
XVIII Rule 4(2) of the Code, cross-examination, and re-
examination shall be taken either by the Court or by the
Commissioner appointed by it, having regard to the facts of the
case.

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6. Re-examination.

Then should follow, if necessary, re-examination for the

purpose of enabling the witness to explain answers which he may
have imperfectly given on cross-examination, and to add such
further facts as may be admissible for the purpose. However, no
new fact shall be introduced in the re-examination without the
leave of the court. It should be kept in mind that re-examination
is the right of the party calling the witness and should not be
declined on the ground that no explanation of matters referred in
cross-examination is required or no new matter was introduced in
the cross-examination. However, the party can be prevented from
asking questions in the re-examination if they are beyond the
scope of the matters permissible in re-examination.

7. (a) How far should Court/Commissioner interfere in the

conduct of examination?

When the examination, cross-examination, and re-

examination are conducted by the parties or by their advocate,
the Presiding Officer/Commissioner ought not, as a general rule,
to interfere, except when necessary, e.g., for the purpose of
causing questions to be put in a clear and proper shape, of
checking improper questions, and of making the witness give
precise answers. In the end, however, if these have been
reasonably well-conducted, he ought to know fairly well the exact
position of the witness with regard to the material facts of the
case; and he should then put any questions to the witness that he
thinks necessary. The examination, cross-examination, re-
examination, and examination by the Court (if any) should be
indicated by marginal notes on the record.

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(b) Conduct of proceedings by lawyers’ clerks.

Instances have been noticed where the Civil Courts

sometimes allow Clerks of lawyers to appear, examine or cross-
examine witnesses or to conduct the proceedings in other
manners when the lawyers themselves are otherwise engaged.
This is highly irregular and is against the law and District Judges
should take steps to put a stop to this practice wherever it is
known to prevail.

8. Examination of witnesses called by Court.

The examination of witnesses (including a party to the suit)

called by the Court under the provisions of Order XVI, Rules 7
and 14, of the Code, should always be conducted by the Court
itself; and after such examination, if the parties to the suit desire
it, the witnesses may be cross-examined by the parties. Upon the
close of the cross-examination, the re-examination of such
witnesses, if necessary, should be conducted by the Court in the
manner above stated.

9. The deposition should be read over.

The deposition of each witness should be read over to him in

open Court or by the Commissioner, as the case may be, and
corrected, if necessary, as soon as his evidence has been finished.

10. Mode of recording evidence.

The evidence shall be taken down in the language of the

Court by or in the presence of the Judge and under his personal
directions and superintendence or from his dictation directly on
the typewriter or computer or if the Judge, for reasons to be
recorded so directs, recorded in his presence mechanically i.e.
with the help of audio or audio-visual electronic media.

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Wherever the court considers necessary, it shall record

demeanour of the witness (is). The Court shall also ensure that
the witnesses are not threatened, intimidated or misled by anyone
while giving a statement in the court.

Where the evidence is to be recorded by the Commissioner,

he shall take down the same in the language of the Court in his
own hand or by dictation directly on the typewriter or computer or
get it recorded mechanically in his presence.

It has come to notice of this Court that in some of the

Subordinate Courts, the evidence is being recorded by officials of
the Court without direction, superintendence, and dictation of the
Judge, who himself is busy in other work. This is highly irregular.
The District Judges should take immediate steps to put a stop to
this practice, wherever it is prevailing. Recording of evidence
should in no case be left to an official of the Court.

11. Recording of evidence by video conferencing:-

Detailed instructions have been issued by the High Court for

recording evidence by video conferencing which may be perused
before recording evidence by video conferencing. Some of the key
points of these instructions are as under:-

(a) Power of Court to record examination by video

conference:

The Court may either suo moto or on the application of a

party or witness, direct by a reasoned order that any person
can appear or give evidence to Court by means of Video
Conferencing.

(b) Appointment of Co-ordinators:-

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A coordinator is to be appointed at the Court point as well

as at the remote point where the person giving the
statement is situated. The following persons may be
nominated as co-ordinators: -

i. Where the person to be examined is overseas, the Court may

specify the coordinator out of the following:-

The official of Consulate/Embassy of India.

Duty certified Notary Public/Oath Commissioner.

Where the person to be examined is in another State/U.T., a

Judicial Magistrate or any other responsible official as may be
deputed by the District Judge concerned or Sub-Divisional
Magistrate or any other responsible official as may be deputed by
the District Collector concerned.

Where the person to be examined is in custody, the concerned

Jail Superintendent or any other responsible official deputed by
him.

Where the person to be examined is in a hospital, public or

private, whether run by the Central Government, the State
Government, local bodies or any other person, the Medical
Superintendent or In-charge of the said hospital or any other
responsible official deputed by him.

Where the person to be examined is a juvenile or a child who is an

inmate of an Observation Home/Special Home/Children’s Home
Shelter Home, the Superintendent/Officer In-charge of that Home
or any other responsible official deputed by him.

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Where the person to be examined is in Nirmal Chhaya, the

Superintendent/Officer In-charge of the Nirmal Chhaya or any
other responsible official deputed by him.

Wherever co-ordinator is to be appointed at the remote point

under sub-Clause (ii), (iii), (iv), (v) & (vi), the Court concerned will
make a formal request through District Judge concerned to
concerned official.

In case of any other person, as may be ordered by the Court.

(c) Duties of Co-ordinator:

The coordinators at both the points shall ensure that the

minimum requirements are in position at court point and
remote point and shall conduct a test between both the parties
well in advance, to resolve any technical problem so that the
proceedings are conducted without interruption. The
coordinator at the remote point shall ensure that:-

(i) The person to be examined or heard is available and

ready at the room earmarked for the video conference
at least 30 minutes before the scheduled time.

(ii). No other recording device is permitted except the one

installed in the video conference room.

(iii) Entry into the video conference room it regulated.

It shall be ensured by the coordinator at the court

point that the coordinator at the remote point has
certified copies or the soft copies of all or any part of
the court record in a sealed cover directed by the Court
sufficiently in advance of the scheduled video
conference.

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The court shall order the coordinator at the remote point

or at the court point wherever it is more convenient, to
provide:-

i. A translator in case the person to be examined is not

conversant with Court language.

ii. An expert in sign language in case the person to be

examined is speech and/or hearing impaired.

iii. For the reading of documents in case the person to be

examined is visually challenged.

iv. An interpreter or special educator, as the case may be,

in case the person to be examined is temporarily or
permanently mentally or physically disabled.

(d) Procedure Generally:

The identity of the person to be examined shall be confirmed

by the court with the assistance of the coordinator at the remote
point at the time of recording of the evidence.

In this regard, whenever a witness is to be examined

through video conferencing, he shall be directed in the summons
to bring his original photo identity proof at the time of testimony,
which shall be checked by the Co-ordinator at the remote point
and its attested or self-certified copy shall be retained.

The Co-ordinator at the remote point shall introduce the

person to be examined as well as any other person/third party
present at the remote point during video conferencing.

The Presiding Officer of the Court shall satisfy before the

video conferencing, that the person to be examined at the remote
point can be seen and heard clearly and similarly that the person

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to be examined at the remote point can clearly see and hear the
Court; and then record a certificate to that effect.

In civil cases, the party requesting for recording statement

of the person to be examined by video conferencing shall confirm
to the Court the location of the person, his willingness to be
examined by video conferencing, place and facility of such video
conferencing.

In criminal cases, where the person to be examined is a

prosecution witness or court witness, the prosecution and where
the person to be examined is a defence witness, the defence
counsel will confirm to the Court his location, willingness to be
examined by video conferencing, place and facility of such video
conferencing.

In case the person to be examined is an accused, the

prosecution will confirm his location at a remote point.

Video conferencing shall ordinarily take place during the

court hours. However, the Court may pass suitable directions
with regard to timings of the video conferencing as the
circumstances may dictate.

The record of the proceedings including transcription of

statements shall be prepared at the court point under the
supervision of the Court and accordingly authenticated with a
certificate that the contents of the statement recorded through
video conferencing, have been read over and explained to the
witness present at the remote point (remote point to be specified),
and that witness has accepted the contents of the statement as
created.

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The soft copy of the transcript digitally signed by the

Presiding Officer at the court point shall be sent by e-mail
through NIC or any other Indian Service Provider to the remote
point, where a printout of the same will be taken and signed by
the deponent. A scanned copy of the statement signed by the
deponent at the remote point would be sent by e-mail through
NIC or any other Indian Service Provider to the court point;
whereas the hard copy along with documents, if any, would also
be sent subsequently, preferably within three days of the
recording, by the Co-ordinator at the remote point to the court
point by way of registered/speed post.

The Court may, at the request of a person to be examined,

or on its own motion, taking into account the best interests of the
person to be examined, direct appropriate measures to protect his
privacy keeping in mind his age, gender, and physical condition.

Where a party or a lawyer requests that in the course of

video conferencing, some privileged communication may have to
take place, Court will pass appropriate directions in that regard.

In case any party or his/her authorized person is desirous

of being physically present at the remote point at the time of
recording of the evidence, it shall be open for such party to make
arrangements at party’s own costs including for
appearance/representation at the remote point subject to orders
to the contrary by the Court.

(e) Putting documents to a person at the remote point:

If in the course of examination of a person at remote point

by video conference, it is necessary to put a document to him, the

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Court may permit the document to be put in the following

manner:-

(i) If the document is at the court point, by transmitting a copy

of it to the remote point electronically including through a
document visualizer and the copy so transmitted being then
put to the person.

If the document is at the remote point, by putting it to the

person and transmitting a copy of it to the court point
electronically including through a document visualizer. The
hard copy would also be sent subsequently to the court point
by courier/mail.

(f) Conduct of Proceedings:

Establishment and disconnection of links between the court

point and the remote point would be regulated by orders of the
Court.

The Court shall at all times have the ability to control the
camera view at a remote point so that there is an unobstructed
view of all the persons present in the room.

The Court shall have a clear image of each deponent to the

extent possible so that the demeanour of such person may be
observed.

(g) Cost of video conferencing:

In criminal cases being prosecuted by State, the expenses of

the video conference facility including expenses of preparing soft
copies/certified copies of the Court record for sending to the
coordinator at the remote point and fee payable to
translator/interpreter/special educator, as the case may be, and

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to the coordinator (if any) at the remote point shall be borne by

State or as ordered by the Court.

In civil cases, as a general rule, the party making the

request for recording evidence by video conference shall bear the
expenses.

In other cases, the court may make an order as to expenses

as it considers appropriate taking into account rules/instructions
regarding payment of expenses to complainant and witnesses as
may be prevalent from time to time.

12. Arguments.

When the party having the right to begin has stated his case
and the witnesses adduced by him have been examined, cross-
examined and re-examined, and all the documents tendered by
him have been either received in evidence or refused, it then
devolves upon each of the opposite parties, who have distinct
cases, to state their respective cases in succession, should they
desire to do so. After all of them have done so, or have declined to
exercise the right, the evidence, whether oral or documentary,
adduced by each in order, should be dealt with precisely as in the
case of the first party; and on its termination and after they have,
if they so desire, addressed the court generally on the whole case,
the first party should be allowed to comment in reply to his
opponent's evidence. Any party may address oral arguments and
with permission of the court, furnish written arguments in
accordance with provisions of Order XVIII Rule 2 of the Code.

13. Rebuttal evidence.

If, however, the case of an opposing party is such as to

introduce into the trial, matter which is foreign to and outside the

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case of the first party and the evidence adduced by him, then the
latter must be allowed, if he so desires, to rebut this by further
evidence (commonly called rebuttal evidence), and his opponent
must be allowed to speak upon it by way of reply before the first
party himself makes his own reply. However, this will not entitle
the first party to ask for an adjournment for that purpose. He is
bound to be prepared with such rebutting evidence, and an
adjournment should only be allowed by the Court for good and
sufficient reasons, costs being, if necessary, allowed to the
opposite party.

14. Examination of parties as witnesses.

The vicious practice of each party summoning his opponent

as a witness merely with the design that counsel for each party
gets a chance of cross-examining his client obtains in some of the
lower Courts. This practice is strongly condemned and must
cease. On the other hand, when the parties are personally
acquainted with any facts which they have to prove, they are
expected to go into the witness-box and stand the test of cross-
examination by the opposite party. The failure of a party to go into
the witness-box in such circumstances may, in the absence of a
satisfactory explanation, justify the court in drawing an inference
which is unfavourable to that party. However, the court may, for
reasons to be recorded, direct any party to examine any witness
at any stage. The expression 'witness' here includes a party as his
own witness.

15. Note about the closing of evidence.

When the examination of the last witness produced in Court

by a party is closed, statement of the party or his counsel should

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be recorded that the evidence of that party is closed. If either

party states that he desires additional witnesses to be summoned
or examined, the Court should record the fact and pass an order
thereupon. If evidence of any party is closed by order of the Court,
the number of effective opportunities granted to that party for its
evidence shall be recorded in the order.

16. Continuous hearing of evidence.

Judges should always endeavour to hear the evidence on

the date fixed, as much expense and inconvenience is caused by
postponements ordered on insufficient grounds before the
witnesses in attendance have been heard. On the day fixed for
recording the evidence of witnesses, the evidence of all witnesses
in attendance shall, so far as is possible, be recorded. That some
witnesses have not attended and their evidence is similar to the
evidence of the witnesses in attendance is no reason for not
recording the evidence of those in attendance. If the examination
of all the witnesses is not concluded on the same day, it shall be
proceeded with, if possible, from day today. Under Order XVII,
Rule 1 of the Code, when the hearing of the evidence has once
begun, the hearing of the suit should be continued from day to
day until all the witnesses in attendance have been examined,
unless the Court, for reasons to be recorded, finds the
adjournment of the hearing to be necessary.

It should be noted that Rule 1 of Order XVII requires that

when sufficient cause is not shown for an adjournment, the Court
shall proceed with the suit forthwith.

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17. Adjournments.

Sufficient time should be given to litigants to enable them to

take the necessary steps towards getting their cases ready for
hearing, but more than one adjournment for the same step ought
not generally to be required and, if it is allowed, the question of
compensating the other party by means of adjournment costs
should be considered. However, courts should not grant an
adjournment merely because the party at fault is prepared to pay
the costs of adjournment. Courts should bear in mind that the
offer of payment of the costs of adjournment is not in itself a
sufficient ground for adjournment. The provisions of Order XVII,
Rule 3 also deserve notice in this connection. If a party to a suit to
whom time has been granted for a specific purpose as
contemplated by Order XVII, Rule 3, Civil Procedure Code, fails to
perform the act or acts for which time was granted without any
good cause, the rule gives the Court discretion to proceed to
decide the suit "forthwith" i.e., without granting any adjournment.
In such cases, a further adjournment should not ordinarily be
granted, merely because the offer is made for payment of costs.
Adjournments should not be granted liberally or lightly. An
adjournment granted otherwise than on full and sufficient
grounds is a favour and in civil suits, favour can be shown to one
party only at the expense of the other.

The proviso to Order XVII Rule 1(1) of the Code that not
more than three adjournments shall be granted to a party for its
evidence, is directory and not mandatory. However, it should
ordinarily be followed, although not very rigidly. No hard and fast
rule can, however, be laid down. Each case must be judged on its
own merits.

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The fact that a party is, through carelessness or negligence,

not ready to go on with a suit, is not in itself a good cause for
adjournment.

Adjournments should not be granted for interlocutory

matters such as calling for records, service of interrogatories,
issue of commissions, the filing of lists of witnesses and payment
of costs for issuing summonses after the commencement of trial
and all these steps should be taken prior to the commencement of
trial. Even at the pre-trial stage, the adjournment should be for a
short duration and not for a longer duration to conclude the trial
quickly.

Dates for the hearing of cases ought not to be fixed at

random or automatically as a matter of form. It is a matter that
should be controlled by the Presiding Officer himself and not left
to the discretion of subordinates. While it is desirable that a case
should be disposed of as early as possible it is no less important
that care should be taken to see that the parties are not put to
the expense and inconvenience of having to attend on a date
when it is manifest that the case cannot be taken up. The date for
a hearing should, therefore, be fixed with due regard to the state
of the file, the nature of the case and the time it is likely to
occupy. If the cause list is congested it is better to fix a distant
date than to require the parties to appear, even without their
witnesses, from month to month on dates on which there is no
reasonable expectation that the case will be heard. In contested
suits, the advocates of the parties should be consulted whenever
it is practicable to do so. It may well be that in some instances it
is less hardship to detain the witnesses from day to day than to
discharge them, requiring them to return after a considerable

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interval. In every case, however, the adjournment must be to a

day certain and judicial proceeding of whatever nature shall not
be postponed sine die.

It is of the utmost importance that frequent and

unnecessary postponements and attendance of witnesses should
be consistently discouraged, and a District Judge should
randomly call for and scrutinise some of the records of the cases
pending before his subordinate Courts and if any of the Courts
appear to be violating these instructions, he should call their
explanations in the matter and if the explanation is found to be
unsatisfactory, should not hesitate to record this fact in the ACR
of the presiding officer.

When witnesses are in attendance for any party the fact

should be noted in the order-sheet. In every case adjourned for
hearing or for further hearing, there shall be recorded, as part of
the order of adjournment, a specific order regarding the witnesses
who have attended but have not been examined, to attend on the
day to which the case stands adjourned. It shall also be recorded
that the said order has been communicated to the witnesses in
attendance.

On the day finally fixed for the hearing of a suit after

adjournment, the parties shall be directed to have their witnesses
in attendance; and the trial when once commenced, shall, except
for good and sufficient cause (to be noted in the order-sheet)
subject to the proviso to Rule 1(2) of Order XVII of the Code of
Civil Procedure], proceed throughout the day on which it has been
opened, and from day to day, throughout each day following, until
it is completed.

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Note1.—This Rule is not intended to prohibit, in the case stated,

the taking up of other cases for the purpose of passing such
necessary routine orders as will occupy a short time only, or the
taking up of miscellaneous and small matters on days regularly
set apart for them.

Note 2.—The above Rule applies also to Small Cause Court and
Miscellaneous cases.

In the absence of specific direction by the Court to the

contrary, the stamps on adjournment petitions should not form
part of the taxed costs of the suit or proceeding.

Costs of adjournments ordered to be paid by a party under

Order XVII, Rule 1(2), must not be diverted to purposes other
than that for which they are intended, that is the recoupment to
the other party of the cost which the adjournment may entail on
him. Such payments must invariably be made direct by one party
to the other unless the Court otherwise directs, and the receipt of
the party or his advocate should be taken on the order-sheet
against the order allowing such costs.

Note 1.—While the Courts have full liberty to exercise their

discretion in each individual case, the High Court considers that,
in the absence of special circumstances, and when the costs
allowed do not exceed a few hundred rupees, it is reasonable that
the party desiring the adjournment should be prepared to
compensate his opponent for the inconvenience to which he is
put, and that the Court will be justified in making the
adjournment conditional on the money being paid then and there.

Note 2.—Where adjournment costs have been paid into Court,

the fact of such payment should be noted on the order-sheet. It

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will thus be possible to see from the order-sheet what sum, if any,
still remains unpaid. All costs of which payment has not been
noted under the foregoing orders must be entered in the decree as
costs of the suit.

The rules regarding the filing of documents and exhibits

should be strictly observed, and parties have no right to ask for
adjournments in order to obtain copies of documents if by the
exercise of diligence they could have procured them in time.

A hearing should not be adjourned to call for a written

report from an officer of the Court unless such report is
absolutely necessary and cannot be obtained the same day.

18. Adjournments for arguments.

After evidence of the parties is closed, only a short

adjournment not beyond 15 days should be granted for
arguments. Frequent adjournments should not be granted for
arguments. The written arguments whenever desired to be filed
shall normally be taken within this period along with a list of cited
cases.

19. Interlocutory orders and notes.

All orders made by the Court relating to change of parties,

or adjournments, or bearing upon the course of the hearing of the
suit other than depositions, orders deciding any issue and the
final judgment, and notes of all material facts and occurrences
which may have happened during the hearing of the suit, such as
the presence of witnesses, etc., must be carefully recorded from
time to time by the Presiding Officer in his own handwriting or be
type-written or computer printed and signed and dated by the

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Judge and appended to the record. Each "order" or "note" should

be clearly marked as such.

The practice prevails in the subordinate Courts of writing

orders on the back of plaints or applications. Such orders may
sometimes escape notice during the hearing of the suits or
appeals. This practice should cease forthwith. Orders should be
recorded on separate sheets in chronological order.

20. Uploading of orders/judgments

All substantive/effective orders and final judgments shall be

uploaded on the internet by concerned Stenographer/Judgment
Writer with the digital signatures immediately after the same are
signed by the Presiding Officer. On preparation of decree-
sheet/memo of costs etc., the same shall also be uploaded
immediately. The Presiding Officer of the court shall ensure that
the orders and judgments passed by him are uploaded on the
National Judicial Grid on daily basis, after digitally signing the
same, if the official digital signature certificate is available with
him.

However, if the judgment is pronounced by dictation in open

Court to a shorthand writer by the Judge, who has been
specifically empowered by the High Court in this behalf, then the
transcript of the judgment, after making such corrections, as are
necessary and signatures by the Judge, shall be uploaded on the
National Judicial Grid within reasonable period and in any case
not beyond 72 hours from the date of pronouncement of the
judgment.

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Chapter 9
Dismissals in Default and Ex-parte Proceedings

1. General

Order IX and Order XVII, Rules 2 and 3 of the Code deal

with the appearance of parties and the consequences of non-
appearance on the dates of hearing.

2. Filing of power of attorney and memo of appearance:

Whenever a power of attorney is filed by an advocate, the

Courts should carefully examine the same to determine whether it
is signed by the party to the lis or not. Cases have come to the
notice of the High Court where power of attorney signed by the
third party was taken on record by the Court, which caused acute
embarrassment in the matter. If the defendants are more than
one, the court should see that the power of attorney bears the
signatures of all. An advocate can file a memo of appearance
instead of power of attorney but such memo of appearance is
valid for one hearing and the regular power of attorney should be
demanded on the next date of hearing from the advocate. Power of
attorney should also bear the signatures of the advocates in token
of his acceptance and his enrolment. Power of attorney should
also beat the Advocate Welfare fee and if the advocate is not a
member of the advocate welfare fund, a certificate to this effect on
the power of attorney.

3. ‘No instructions’ by Advocate

If a party is represented by an Advocate, who on any

adjourned date of hearing pleads ‘no instructions’ and no other
authorized representative of the said party appears on the said

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date of hearing, such party shall be deemed to have not appeared

and the Court may pass appropriate order accordingly under
Order IX or Order XVII, Rules 2 and 3, and it shall not be
necessary in such case for the Court to issue notice to the party
represented by the said Advocate although the Court may, in its
discretion, issue notice to such party by fixing next date of
hearing.

4. Default by defendants

(a) If the defendant does not appear on the date of hearing, and
the summons are duly served upon him, the Court can proceed
ex-parte in the matter. However, proceeding ex-parte on one date
of hearing does not prevent the defendant from appearing on the
adjourned date of hearing and participating in the same. Only
consequence of proceeding ex-parte will be that the defendant will
be precluded from doing what was done on the date when he was
proceeded ex-parte without getting the ex-parte order set aside for
instance if the case was fixed for filing written statement, and the
court has adjourned the case for evidence, the defendant will be
precluded from filing the written statement without getting the ex-
parte order set aside but if the case is adjourned for filing written
statement by other defendants, it will be open for the defaulting
defendant to appear and file the written statement without getting
the ex-parte order set aside.

(b) Even in those cases in which defendant is proceeded ex

parte, the plaintiff, however, must prove his case to the
satisfaction of the Court, before he can obtain a decree. The
defendant, it may be observed, may apply under Order IX, Rule
13, for an order to set aside the ex-parte judgment at any time
within the limitation period. The provisions of section 5 of the

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Limitation Act, 1963 are applicable to all applications for the

setting aside of ex- parte decrees and for the restoration of suits
under Order 9, Rules 4 and 9. These applications may, therefore,
be admitted even after the limitation period if the applicant
satisfies the court that he had sufficient cause for not making the
application within such period. If he satisfies the Court that the
summons was not "duly served", or that he was prevented by
“sufficient cause" from appearing when the suit was called for
hearing, the Court should set aside the order on such terms as to
costs or otherwise as it may deem fit.

(c) Attention is drawn to Order IX, Rule 7, which lays down the
procedure for setting aside ex parte proceeding when the hearing
of the suit has been adjourned ex parte but no ex-parte decree
has been passed.

5. Hasty dismissal not advisable.

The tendency to dismiss cases in default or to pass ex parte

orders in a hasty manner in order to show an increased out-turn
is to be strongly deprecated and is not to be resorted to in any
case. The Presiding Officers should note down the time in their
own hand when a case is dismissed in default or an order to
proceed ex parte is passed.

The provisions of Order IX and Order XVII of the Code must

be operated in a reasonable manner, otherwise, they will result in
a number of applications for setting aside orders passed in the
absence of one or both parties. It is possible that a party may
have temporarily gone away to call his counsel or to refresh
himself and a person cannot be expected to be in constant
attendance throughout the day. The court should, to avoid

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hardship, lay aside the case where any party does not appear
when the case is called. The case may be called again, later in the
day after the other work has been finished or when both the
parties turn up and the Court can conveniently take up the case
that had been laid aside. If these rules are operated in a
reasonable manner, applications for restoration of suits or setting
aside of ex parte orders would be reduced in number. Such
applications generally lead to delay in the disposal of cases and
waste a good deal of the time of the courts and the litigants.

6. Order of “Dakhil Daftar” is irregular.

There is a tendency of Presiding Officers of Civil Courts to

pass orders that cases should be "dakhil daftar" (‘filed’/
‘consigned’). This practice is incorrect. A Presiding Officer should
invariably make it clear what the precise nature of the order is,
i.e., whether the case is postponed or dismissed and the rule, if
any, under which the order is passed should also be mentioned.

7. Procedure when the plaintiff is not present on the

preliminary date.

It is a practice, when a plaint is presented, to fix a short

preliminary date for the examination of the plaint. On this
preliminary date, the plaintiff is expected to appear to receive
notice of the date fixed for the hearing of the suit. It sometimes
happens that the plaintiff does not appear on this date and
several cases have come to the notice of the High Court in which
Courts have forthwith dismissed the suit in default by orders
purporting to be made under Order IX.

This procedure is incorrect as it has been held that the

preliminary date is not a date fixed for hearing and therefore, the

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provisions of Order IX do not apply. The correct procedure in such

cases may be deduced from the Code and has been referred to in
several judgments of the High Courts. It is as follows:—

(i) If the plaint is in order and process fee for the

summoning of the defendant has been filed with the plaint,
the Court should issue summons to the defendant and a
notice to the plaintiff to appear on the date for which the
defendant is summoned. If on that date the plaintiff does
not appear in spite of the service of the notice on him, the
suit may be dismissed under Order IX, Rule 3 or Rule 8 of
the Code whichever is applicable.

(ii) If the plaint is in order but process fee has not been filed
with it, the Court should fix a date for the appearance of the
defendant and issue a notice to the plaintiff calling upon
him to appear on that date and to deposit process fee by a
specified date so that the defendant may be summoned. If
on the date fixed, it is found that no summons has been
issued owing to non-payment of process fees, or that the
summons could not be served owing to late payment of
process fees, the suit can be dismissed under Order IX, Rule
2. If process fee has been paid as directed, the other
provisions of Order IX will apply.

(iii) If the plaint is not in order and the defects are such as
to entail its rejection under Order VII, Rule 11, the Court
should record an order rejecting it. If it is to be rejected for
failure to pay court fees, it will be necessary first to issue a
notice calling on the plaintiff to make up the deficiency
unless he has already been given time to do so. In such

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cases, the final order to be passed, and entered in Civil

Register No. 1, is “plaint rejected.”

(iv) If the defects in the plaint are not such as to call for its
rejection under Order VII, Rule 11, the Court should
proceed in accordance with the procedure outlined in sub-
clauses (i) and (ii) above, the question of remedying the
defects being taken up at the first hearing.

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Chapter 10
Speedy Disposal of Cases
1. Cause Diary

The speedy disposal of Court business is a matter which

requires the earnest attention of every judicial officer. Delays of
law are notorious in this country and tardy justice is often no
better than injustice.

The proper despatch of Court work depends not merely on

the ability of an officer, but also to a large extent on the personal
attention paid by him to its adjustment and control. Amongst the
important matters, which should receive his personal attention is
the cause diary. The practice of leaving the fixing of dates to the
clerical staff leads to abuses and results frequently in confusion of
work. The fixing of an adequate cause list which can be got
through without difficulty during the Court hours requires some
intelligence and forethought, and unless the officer pays personal
attention to the matter and fixes the list with due regard to the
time likely to be taken over each case, there is a risk of a
considerable number of cases being postponed from time to time
with consequent delay in their disposal and inconvenience to the
litigant public.

District Judges should from time to time examine the

diaries of Civil Judges in their districts in order to see that too
much or too little work is not fixed for any day. A sufficient
number of cases should, however, be fixed for the hearing, so that
even if some cases collapse, there would be sufficient work to
keep the Judge fully occupied throughout the day.

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2. Causes of delay in disposal of cases.

As a result of annual inspections, it has been found that the

delay in the disposal of cases is mainly due to the following
errors:—

(i) Orders for the issue of notice to parties and summonses

to witnesses are given without specifying the date by which
process-fees must be paid into Court. Two working days
should be the usual time allowed.

(ii) On failure of service, orders for the issue of the fresh

process are given without ascertaining the cause of the
failure of the service and fixing the responsibility thereof.

(iii) Documents, instead of being accepted either with the

plaint or at the first hearing, are accepted at every stage of
the case.

(iv) Cases are adjourned for proper orders by the Reader or

another official of the Court when the Presiding Officer is on
leave or out of station for giving evidence.

(v) Non-attendance of the witnesses on the date fixed.

(vi) Applications for the issue of interrogatories, which

should be accepted at the earliest stage of the case only, are
accepted at a very late stage.

(vii) Witnesses, who are present in Court, are often sent

away un-examined on all kinds of pretexts.

(viii) Cases are not proceeded with from day to day, and
evidence is taken in driblets.

(ix) Non-receipt of the summoned record from which the

witness has to give evidence.

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(x) Unnecessary adjournments are granted for producing

rebuttal evidence by the plaintiff even in those cases where
the plaintiff has no right to produce evidence in rebuttal.

(xi) Adjournments are granted for the preparation of

arguments at all stages even in the matter of interlocutory
orders.

(xii) Unnecessary long adjournments are granted, when

adjournments are unavoidable.

(xiii)Adjournments are sought by counsel on the ground that

he is busy in the Sessions Court or another court or is not
ready with the arguments.

(xiv) Suits are dismissed or restored without adequate

reasons.

(xv) Orders are written by the Reader instead of the

Presiding Officer.

(xvi) Personal attention is not paid to service of processes.

The instructions given in Chapter 4 of this Volume should
be carefully observed.

(xvii) Adjournments on insufficient grounds in cases which

have already become old.

(xviii) Fixing a large number of cases for a particular day

and then postponing some of them for want of time.

(xix) Delay in the disposal of appeals against preliminary

decrees, etc.

Of all the foregoing, the most serious causes of delay are

errors (i) and (ii).

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All orders of whatever nature which are passed after the

admission of a plaint should be written or dictated by the
Presiding Officer himself.

Intermediate dates should be fixed to watch the receipt of

files/records, if any, requisitioned from some other quarter as well
as service of summons on witnesses/parties.

3. Priority to cases to which soldiers, sailors or airmen are

parties.

(1) No case in which witnesses are present shall be allowed to

stand out of its place in the list except for special reasons to be
recorded by the Judge under his hand.

Provided that every Court shall bring to a hearing without

regard to the order in which they may have been filed, all suits in
which an officer, soldier, sailor or airman or person who may have
obtained leave of absence from the Army, Navy or Air Force, may
be a party, and shall decide such suits as speedily as may be
convenient and consistent with due administration of justice.

4. Priority to cases which are holding up other cases.

Suits, appeals, or applications for the decision of which

other cases have been held up shall be given priority, and they
shall on no account be adjourned except for good reasons.

5. Priority to cases (uncontested).

A Judge shall before beginning his work for the day go

through the cause-list, dispose of all uncontested work first, and
then begin the contested work.

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6. Priority to other cases.

Cases in which Women, Senior Citizen, Children or

physically disabled persons and army officials are parties should
be disposed of expeditiously.

Cases under the Rent Act on the ground of personal

necessity, rent applications filed by specified landlords or Non-
resident Indians and the cases in which senior citizen is a party
should also be disposed of on priority as quickly as possible.

7. Fixing of dates.

The first date of hearing in a case shall not ordinarily be

fixed more than two months ahead. But in a case in which the
Government or any Railway Administration is a party, the date for
the first hearing shall be fixed for a day not less than two months
after the institution of the suit; and if necessary the date of the
hearing shall be changed if counsel can show that instructions
have not been received or that sufficient time for instructions and
necessary inquiries has not been allowed.

Before fixing a date for the final hearing, the Judge shall,
after consulting advocates for both sides, if necessary, make a
reasonable estimate as to the time required for the disposal of
each particular case.

8. Long dates prohibited.

Cases in which a date for final hearing cannot be fixed

within three months should ordinarily be put up within that
period for fixing a date for the final hearing.

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9. Party’s fault in non-service of summons on witnesses.

(1) In all cases the Court shall require a party applying for an
adjournment, on the ground that a summons has not been duly
served to show that he applied, where it was possible to so apply,
for the issue of the summons in time to enable the service to be
effected and that he performed every other act required for the
issue and service thereof.

(2) When a date more than one month ahead is fixed for the
examination of witnesses, the parties shall make repeated efforts
to procure service of summonses on their witnesses. It shall be
their duty in the absence of any special order of the Court to
apply for the issue of summonses within ten days of the order
fixing the date for examination of witnesses and to make
subsequent applications within seven days of the return to the
Court of a summons which has not been duly served.

(3) Where a summons has been returned unserved by reason of

a wrong or insufficient address of the witness the Court may,
before adjourning the case for issue of a fresh summons, require
the party applying for the same to satisfy the Court, by affidavit or
otherwise, that such party was not in a position to know the
correct address at the date when he applied for issue of the
former summons, and also that the presence of the witness will
really be of advantage to such party.

10. Commissions

Delays also occur frequently in cases in which a commission

has been issued. Courts should insist on submission of reports by
the Commissioners within a reasonable time and should not grant
adjournments without satisfying themselves that the

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Commissioners are doing their duties and that sufficient cause

has been shown for the grant of an adjournment.

Before issuing a commission the Court shall—

(a) call on the party at whose instance the commission is

issued to supply an abstract of the pleadings and issues for
the use of the Commissioner;

(b) after consulting the parties, make an estimate of the

probable duration of the examination of each witness. When
the estimate is exceeded, the Court should inquire into the
cause of delay and disallow any charges of the
Commissioner which it finds to be unreasonable.

In issuing a commission the Court shall fix a date allowing

sufficient time for its return after execution. It must be clearly
understood that the commission is to be returned by the date
fixed.

If for any reason the Commissioner finds that the date fixed
is likely to be exceeded, he should obtain an extension of time
before proceeding with the execution of the commission or its
further execution as the case may be.

11. Cases held up owing to records being in the appellate

Court or pending decision of another case.

Efforts should be made to give priority to cases, for the

decision of which other cases are held up. Civil Judges are
authorized to bring to the notice of appellate Courts cases where a
suit has already been postponed for more than 3 months merely
because the records happen to be with the appellate Court. The
Presiding Officer of the appellate Court should then treat the
appeals in which records have been sent for by the lower Courts

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as "urgent" and dispose of them as early as possible. Appellate

Courts should also treat all appeals in which proceedings have
been stayed in a lower Court as "urgent."

12. Interlocutory order.

Applications for interlocutory orders, the admission of which

will hold up the original proceedings, should be carefully
scrutinized and promptly disposed of.

13. Statement of old cases.

All Civil Courts should furnish to the High Court a

statement of old civil cases pending over two years every quarter
before the 10th of the following month in the proforma appended
below together with their explanations where necessary and the
comments of the District Judge concerned thereon. The
proceedings of a quarterly meeting of Judicial Officers should
accompany the aforesaid statement.

Proforma ‘A’

Consolidated statement of more than two years old civil cases

pending in the Courts of

Civil Judges of ____________, District for the quarter

ending____________

1 2 3 4 5 6 7 8
Name Nature No. of No. of Total No. of Balance No. of
of the of the cases cases no. of cases stayed
Court Civil pending which cases disposed cases
Cases in the became of during
last two the
quarter years old quarter
during
quarter

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1. Civil Appeal

2. Civil Suits

3. Rent Act cases

4. Execution cases.

14. Compromises.

Order XXIII, Rule 3 of the Code, relating to ‘Compromises of

suit’ has been amended by High Court and the two provisos
added to this rule should be carefully studied along with the rule.
The dispute about a compromise or adjustment or the parties'
negotiations for the same, should not, as far as possible, be
allowed to hold up the trial of the issues on merits and the
witnesses in attendance should not ordinarily be sent back
unexamined. When the case cannot be proceeded with as
indicated, the reasons should be recorded in writing. The
judgment in the suit should not, however, be announced until the
question of adjustment or satisfaction has been decided.

15. Speed Oriented approach should be avoided

The expeditious disposal of cases undoubtedly is expected

from the Presiding Officer of the court but the speed-oriented
approach should not be at the expense of justice. The complicated
cases need in-depth study and require a lot of time and patience
of the Judge. In appropriate cases, the High Court will also look
into other circumstances like the number of witnesses examined
by the Presiding Officer while assessing his overall assessment, in
a given year if brought to its notice.

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Chapter 11
Incidental Proceedings.

1. Attachment or arrest before judgment.

(i) If at the time of filing the plaint, or at any other stage of the
suit, an application is made by the plaintiff, under Order XXXVIII
of the Code, for the arrest of the defendant or for the attachment
of his property before judgment, the Court should proceed to
consider the application with reference to the provisions of the
Code and the following instructions:

Orders for arrest or attachment before judgment ought not

to be made on insufficient grounds. The circumstances
which justify a Court in passing an order of this nature are
distinctly stated in Order XXXVIII of the Code of Civil
Procedure. The Court should in every such case, be satisfied
(Order XXXVIII, Rules 1 and 5) that the defendant is about
to dispose of or remove the property from its jurisdiction or
that he has left or is about to leave its jurisdiction, with
such intent as is mentioned in the said rules.

2. Temporary injunction.

It has been noticed that temporary injunctions are

frequently issued ex parte by subordinate Courts, without
realizing fully their consequences. The following instructions in
respect of such orders should, therefore, be ordinarily followed:—

(i) The powers under Order XXXIX, Rule 3 of the Code of

Civil Procedure, to issue an ex-parte injunction should be
exercised with the greatest care. The issue of an injunction
on the application of one party and without previously giving

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to the person affected by it an opportunity of contesting the

propriety of its issuing is a deviation from the ordinary
course of justice, which nothing but the existence of
imminent danger to property if it be not granted, can justify.
The Court should, if possible, always require notice,
however short, to be given to the opposite party.

(ii) The court should use the rules in Order XXXIX, Civil
Procedure Code, with great discrimination, and should not
overlook the significance of the word "may" wherever it
occurs. It should not treat the exception in Rule 3 as the
normal procedure. Interlocutory injunctions should be
granted ex parte only in very exceptional circumstances,
and only when the plaintiff can convince the Court that by
no reasonable diligence could he have avoided the necessity
of applying behind the defendant’s back. An application for
an ex-parte injunction should not ordinarily be granted
unless it is made promptly.

(iii) Every application for an injunction must be supported

by affidavit. All material facts must be fully and fairly stated
to the Court and there must be no concealment or
misrepresentation of any material fact. If any time it appears
to the Court that an ex-parte injunction was obtained by
such misstatement or suppression of material facts as to
lead the Court to grant the injunction, the injunction shall
be dissolved unless for the reasons to be recorded Court
considers that it is not necessary so to do in the interest of
justice. The plaintiff cannot be heard to say that he was not
aware of the importance of the facts so misstated or
concealed or that he had forgotten them. The Court should

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scrutinize carefully the plaint, the application, and the

affidavit before interfering with the defendant’s rights and
should satisfy itself that some recent happenings have
justified the interference without notice to the defendant.

(iv) Where the court proposes to grant ex parte injunction,

it shall record the reasons for its opinion that the object of
granting the injunction would be defeated by the delay.

(v) Such injunctions, when granted, should be limited to

the minimum time within which a defendant can come
before the Court, assuming that to get rid of the injunctions,
he will be prepared to use the greatest expedition possible.
The court should make an endeavour to finally dispose of
the application within 30 days from the date on which the
ex parte injunction was granted and where it is unable to do
so, it shall record the reasons for such disability.

(vi) The Court should state clearly what acts it has

restrained. Vague orders such as 'Issue of temporary
injunctions as prayed' should be avoided. Where only some
of the acts mentioned in the petition need to be urgently
restrained, the ex parte order should be confined to these
only. The plaint or petition should not merely be copied out.
Similarly, the vague order of ‘status quo’ should not be
passed. It should be specified that status quo is to be
maintained regarding what i.e. possession, construction,
user etc.

(vii) When the defendant appears and files his affidavit, the
plaintiff should be given only a few days to answer it. The
contested application should then be heard, as soon as

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possible, and if the Judge cannot dispose it off at once, may,

for the term of the adjournment, which should be as short
as possible, either grant an ad interim injunction, or obtain
an undertaking from the defendant not to do any acts
complained against.

(viii) After the plaintiff has obtained an interim or ex parte

order, the court should take care to see that he does not
abuse the advantage by resorting to the usual dilatory
tactics, such as delay in deposit of process fees, evasion of
service of summons on a pro-forma defendant interested
with the plaintiff in delaying the suit or in other manners.
An interim injunction should be dissolved if the plaintiff
makes wilful default in depositing the process fee, causing
the service of notice on the opposite party or otherwise
prosecuting the matter with diligence.

(ix) When an interlocutory injunction or an interim

restraint order is applied for, the Court may require the
plaintiff, as a condition of interference in his favour to enter
into an undertaking to abide by any order of the Court that
it may make as to damages, or in some cases it may require
the defendant to enter into terms as a condition of
withholding an interlocutory injunction.

(x) The above instructions are not intended to restrict the

discretion of Courts, but every application for an ex parte
injunction should be very carefully considered in the light of
these instructions and should not be granted unless
sufficiently good grounds are made out.

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(xi) It has also come to notice of the High Court that some
subordinate Courts do not grant ex parte injunction, even if
the good ground is made out for the same, apprehending
that the application for a temporary injunction may not be
decided within 30 days. Courts should not, on this
apprehension, hesitate to grant ex parte temporary
injunction, where sufficient ground for the same is made
out, because non-grant of ex parte injunction may defeat
the very purpose and may lead to miscarriage of justice.

3. Death, Marriage or insolvency of parties.

The procedure to be followed in the event of death, marriage

or insolvency of the parties is laid down in Order XXII, Civil
Procedure Code. The Court should carefully examine whether the
cause of action or right to sue survives to the legal representatives
or not before bringing them on record. It is to be noticed that a
suit does not abate on the death of plaintiff or defendant, after the
conclusion of hearing even if his legal representative is not
brought on record, and judgment may be pronounced
notwithstanding the death and the judgment shall have the same
effect as if it had been pronounced before the death took place.

4. Compromise of suit

Provisions of Order XXIII Rule 3 of the Code of Civil

Procedure as amended by the High Court should be complied with
while recording satisfaction of claim wholly or in part, or
adjustment of suit wholly or in part by lawful compromise, and
while deciding question/application relating thereto. Decree as
per satisfaction or compromise made by the parties may be
passed, whether or not the subject matter of the satisfaction or

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compromise is same as the subject matter of the suit. Where

compromise or satisfaction alleged by one party is denied by the
other, the judgment in the suit should not be pronounced on
merits until the question of compromise or satisfaction has been
decided.

5. Amendment and Review

When a case is decided on the merits, the Court has no

power to vary the judgment or decree, except by way of
amendment under Sections 151 and 152 or by review under
Order XLVII, Civil Procedure Code. The scope of the amendment is
very limited, being confined to clerical or arithmetical errors,
accidental slips, etc. The review can be granted only on the
limited grounds specified in Order XLVII.

6. Inherent powers under Section 151, Civil Procedure

Code

The scope of Section 151, Civil Procedure Code, is frequently

misunderstood and applications are made under this section,
which do not properly fall within its purview. This section is
intended to apply where there is no express provision in the Code
or any other law regarding any particular aspect and the interest
of justice requires the exercise of power in that aspect. The
section is widely worded to enable Courts to do justice in proper
cases, but it cannot be used so as to override the express
provisions of any Statute. For instance, a suit which is barred by
limitation, cannot be heard in the exercise of inherent powers
under Section 151. But where there is no express provision of law
on a particular point, inherent powers may be used in proper
cases in the interest of justice. For instance, it has been held that

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when an application for execution is dismissed in default, it may

be restored in the interest of justice on sufficient cause being
shown, although there is no express provision of law for the
restoration of such an application dismissed in default.

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Chapter 12

Special features of certain classes of cases

(a) Cases under Punjab Customary law.

1. Punjab Laws Act.

Custom used to form a dominant feature of the civil

litigation in Una, Kangra, Nalagarh and other areas of Himachal
Pradesh which were earlier part of Punjab. Section 5 of the
Punjab Laws Act, 1872, lays down that in all questions regarding
successions, special property of females, betrothal, marriage,
divorce, dower, adoption, guardianship, minority, bastardy, family
relations, wills, legacies, gifts, partitions, or any religious usage or
institution, the rule of decision shall be custom, when there is any
custom applicable to the parties, provided the custom is not
contrary to justice, equity, or good conscience and has not been
altered or abolished by any statute or declared void by any
competent authority. In other cases, Muhammadan Law in the
case of Muhammadans and Hindu Law in the case of Hindus
used to be applied. The customary law relating to succession,
marriage, divorce, adoption, guardianship, and minority relating
to Hindus stands abrogated with enactment of Hindu Code i.e.
The Hindu Marriage Act, 1955, The Hindu Succession Act, 1956,
The Hindu Minority and Guardianship Act, 1956 and The Hindu
Adoptions and Maintenance Act, 1956.

2. Proof of Custom.

(a) The vast majority of the rural population in Punjab, Kangra,

Lahul Spiti, Kinnaur and Chamba used to follow custom. It was
the exception rather than the rule for the Hindu and
Muhammadan Law to be applied in their entirety. The

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ascertainment of custom, when it is disputed, is often a matter of

difficulty. The records of custom (Riwaj-i-am) prepared by
Government officers for the various Districts are helpful and are
accepted prima facie, as good evidence of the customs stated
therein. Judicial decisions have also to a large extent defined
customs in respect of various tribes, and the rules deduced
therefrom are found summarised in a convenient form in
Rattigan's "Digest of Customary Law."

3. Rights of Females.

The value of entries in Riwaj-i-am may, however, be small if

these affect adversely the rights of females or any other class of
persons who had no opportunity of appearing before the revenue
authorities. A few instances may in such cases suffice to rebut the
presumption of correctness attaching to such records. (Vide, I. L.
R. 1941, Lah. 154 (P. C.), and (1955) 1 Supreme Court Reports
1191).

4. Migrants and Displaced persons.

In view of the wholesale migrations of the population after

the partition of the country, the question often used to arise
whether a person is governed by the Customary Law of the home
of origin or of the land where he has settled down. The consensus
of authority is that persons or tribes may be presumed to be
governed by the customs of their original home and not by the
customs of the land where they settled down unless it is shown
that in any matters, they have adopted the customs of their new
habitation. The presumption is, however, rebuttable on proof of
special circumstances. See Rattigan’s “Digest of Customary Law”
and Mulla’s “Hindu Law.”

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5. Personal Law.

When in any particular instance, no rule of custom can be

found, the Court must fall back upon the personal law of the
parties (See 110 P. R. 1906-F. B.)

6. Limitation in certain custom suits.

The provisions of Punjab Act I of 1920 which prescribe the

limitation for suits relating to alienations of ancestral immovable
property and appointments of heirs by persons who follow
custom, and Punjab Act II of 1920 which restricts the power of
descendants or collaterals to contest such alienations or
appointments should also be studied.

7. Law applicable to Muslims.

Attention is drawn to Act XXVI of 1937 which lays down

that notwithstanding any custom or usage to the contrary, in all
questions (save those relating to agricultural land) the rule of
decision in a case where the parties are Muslim shall be the
Muslim Personal Law. In order to obtain the benefit of this Act, a
declaration has to be obtained.

(b) Money Suits

1. Some features of money suits deserve attention.

(i) The typical money suit in the Mufassil is one between a

creditor and an illiterate debtor. The suit is generally based on a
running account consisting of petty items in the account book of
the former with balances struck from time to time, or an
agreement recorded in it with regard to larger loans borrowed on
occasions of marriage, etc., and occasionally on a bond or
pronote. Allegations of fraud, want of consideration, etc., are

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frequently made in defence and owing to the ignorance of the

debtor, on the one hand, and the frequent absence of regular
accounts on the other, the cases require careful sifting. The
examination of the parties themselves under Order X, Rule 2,
Civil Procedure Code, before framing the issues is generally very
useful. When fraud, misrepresentation, undue influence, etc., are
pleaded, the particulars thereof should be carefully elicited.

2. Suits on bahi account. Copy of the account.

When a suit is based on a bahi account, the account must

be produced with the plaint. To avoid inconvenience to the
plaintiff, he is allowed to file a copy, but the copy must be
supported by an affidavit by the party producing it to the effect
that it is a true copy or by a certificate on the copy that it is a full
and true translation or transliteration of the original entry. No
examination or comparison by any ministerial officer shall be
required except by the special order of the Court. It should be
noted, however, that although a copy is allowed to be filed, the
original account must be produced (except when it is permissible
to produce a certified copy, e. g., under the Banker's Books
Evidence Act, 1891), later in the course of the trial when evidence
is led in order to prove it.

3. The probative value of entries in accounts books.

Entries in books of account are relevant under section 34 of

the Indian Evidence Act if the books are shown to be regularly
kept. Such entries are, however, not by themselves sufficient to
charge any person with any liability and must be supported by
other evidence. There may be cases where the plaintiff’s statement
alone may be considered sufficient corroboration of these entries.

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4. Bonds and agreements.

An agreement for the payment of a debt if attested by a

witness would be liable to be stamped as a 'bond'. For a definition
of 'bond', please see section 2 (5) of the Indian Stamp Act. A
document insufficiently stamped may be taken as evidence on
payment of the deficiency in stamp and penalty as provided in
section 35 (ibid).

5. Registration of bonds.

Registration is not obligatory in the case of simple bonds

creating no charge on any immovable property. As regards bonds
creating such a charge, section 17 of the Indian Registration Act
should be consulted.

6. Thumb-mark and signatures.

When the thumb-mark or signature on a document is

denied, it must be proved in the proper manner. As regards
thumb-marks, the most convenient method is to obtain specimen
thumb-marks of the person concerned in Court, if possible, and
send the same together with the disputed thumb-mark for
comparison by an expert to the Finger Print Bureau at Phillaur or
Govt. Examiner of Questioned Documents (Shimla) or Forensic
Science Laboratory, Shimla. The report of the expert must be
supported by his testimony on oath or solemn affirmation. Such
testimony can be conveniently obtained by issuing a commission
for the purpose to the Civil Judge at Phillaur or Shimla. As
regards proof of signatures, Sections 45-47 of the Indian Evidence
Act may be consulted.

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7. Proof of Consideration.

When the execution of a document is admitted or proved,

the onus will be shifted to the executant to prove the absence of
consideration, if he relies on any such plea.

8. Himachal Pradesh Registration of Money Lenders’ Act.

Attention is drawn to the Himachal Pradesh Registration of

Money Lenders' Act, 1976 (Himachal Act 19 of 1976) according to
which suits and applications for execution by money-lenders are
barred unless the money lender is registered and licensed.
(Section 3).

(c) Suits by and against minors and persons of unsound

mind.

General.

1. The Procedure to be followed in the case of suits by or

against minors is laid down in Order XXXII of the Code of Civil
Procedure. Attention is invited to the additions and alterations
made in these rules by the High Court.

2. Next friend and guardian ad litem defined.

A minor being legally incapable of acting for himself, the law

requires that every suit by or against such a person should be
conducted on his behalf by a person who has attained majority
and is of sound mind. A person conducting a suit on behalf of a
minor plaintiff is called his "next friend", while a person defending
it on his behalf is called a guardian ad litem for the purpose of the
litigation.

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3. Permission to sue.

(a) Any person as described above who has no interest adverse

to that of the minor may institute a suit on behalf of a minor and
no permission of the Court is necessary for the purpose. An
exception to this general rule has however been made by sub-rule
(2) of Rule 4 of Order XXXII. If the minor plaintiff has a guardian
appointed or declared by competent authority, no person other
than such guardian shall act as the next friend of the minor,
unless the Court considers, for reasons to be recorded, that it is
for the minors' welfare that another person be permitted to act.

(b) The next friend of a minor plaintiff can be ordered to pay

any costs in the suit as if he were the plaintiff.

4. Minor may not be proceeded against ex parte.

A "guardian ad litem" for a minor must be appointed by the

Court and the trial of the suit cannot proceed until such an
appointment is made. The Court cannot proceed, or pass an order
or decree, ex-parte against a minor.

An application for the appointment of a guardian ad litem of

a minor and the affidavit filed therewith shall state:—

(a) Whether or not the minor has a guardian appointed

under the Guardians and Wards Act, 1890, or the Hindu
Minority and Guardianship Act, 1956 and if so, his name
and address;

(b) the name and address of the father or another natural

guardian of the minor;

(c) the name and address of the person in whose care the
minor is living;

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(d) a list of relatives or other persons who prima facie are

most likely to be capable of acting as guardians for the
minor;

(e) how the person sought to be appointed guardian or next

friend is related to the minor;

(f) that the person sought to be appointed guardian or next

friend has no interest in the matters in controversy in the
case adverse to that of the minor and that he is a fit person
to be so appointed;

(g) whether the minor is less than fifteen years of age.

5. Notice to minors, & relatives, etc.

No order should be made appointing a guardian ad litem

unless notice is issued to the guardian of the minor appointed or
declared by a Court (if any), or where there is no such guardian,
to the father or another natural guardian, or where there is no
father or natural guardian, to the person in whose care the minor
is, and to the relatives and other persons given in the list, and the
objections of such persons (if any) are heard. A notice to the
minor is not essential under the rules but should ordinarily issue
when the minor is shown to be over fifteen years of age as he may,
in that case, be able to take an intelligent interest in the selection
of his guardian and the conduct of the proceedings.

6. Choice of guardian, the appointment of court officers or

advocate, funds for defence, and accounts to be kept. Duties
of guardian.

In appointing a guardian ad litem, the following order of

preference shall be observed:—

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(i) If there is a guardian appointed or declared by a Court,

he must be appointed unless the Court considers that it is
for the welfare of the minor that some other person should
be appointed. If any other person is appointed, the Court
must record its reasons;

(ii) in the absence of a guardian appointed or declared by a

Court, a relative of the minor best suited for the
appointment should be selected;

(iii) in the absence of any such relative, one of the

defendants should be appointed, if possible;

(iv) and failing such a defendant, a Court official or an

advocate may be appointed.

It should be remembered that no person can be appointed to

act as a guardian, ad litem without his consent. Consent may,
however, be presumed unless it is expressly refused. When a
Court official or an advocate is appointed to act as a guardian the
Court has the power to direct the plaintiff or any other party to
the suit to advance the necessary funds for the purposes of
defence. The Court official or an advocate should be required to
maintain and produce accounts of the funds so provided and
these should ultimately be recovered from such party as the
Court may think it just to direct after the result of the suit. The
court official or advocate appointed by the Court as the guardian-
ad-litem of a minor defendant, should to the best of his ability
communicate with the minor and his relatives in order to
ascertain what defence can properly be taken in the case and
further try to substantiate that defence by adducing proper
evidence.

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7. Communication with the natural guardian

(1) Where there are both major and minor defendants and there
is no appearance, the guardian with a view to obtain instructions
in the case should communicate with the natural guardian of the
minor and ordinarily with the major defendants in the case by
registered reply post-card in which the subject-matter of the suit
should be briefly stated.

(2) Where the sole defendant is a minor, the aforesaid

communication should be addressed to his natural guardian, and
in any case, where the interests of the minor require, may be
addressed to persons other than those actually parties in the suit.

(3) If no response is received to the communication mentioned

in sub-Rules (1) and (2) or if the response is not helpful and the
guardian is unable to have a personal interview with the
defendants or their agents, he should report the fact to the Court
with a statement of the circumstances and apply for leave to go to
the locality for necessary enquiry.

(4) The Guardian's report on any local inquiry made with the
permission of the Court should contain the following particulars—

(a) Date and hour of departure for the locality.

(b) Mode of the journey, viz., whether by rail or steamer or

boat or road,

(c) Date and hour of reaching the locality.

(d) The names of persons who identify the minor.

(e) Age of the minor as stated by the minor’s people and as

estimated by the guardian.

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(f) The names and residences of persons in whose presence

the inquiry is held.

(g) Whether the minor has any defence.

(h) If there is defence what is the nature of it and what

benefit is expected to accrue to the minor out of the defence.

(i) Whether the minor or his people are able and prepared to
meet the costs of the defence, and if not, what is the
probable amount of such costs.

(j) If no defence is filed, the reasons thereof together with the

statements of the persons on whose report the decision is
arrived at.

(5) In case the Court refuses to grant leave for local inquiry, the
guardian will proceed according to the instructions of the Court
given in each case.

(6) Where in response to the communication mentioned in sub-

Rule (2) or otherwise, the minor or his natural guardian, or any
other persons on his behalf, come and see the guardian, his
subsequent proceedings and report should conform as far as
applicable to sub-Rule (4) (g to j).

(7) The guardian’s report mentioned in sub-rules (4) and (6) may
contain such other facts as he may think necessary to bring to
the notice of the Court.

(8) In petty rent suits and money suits, the Court shall not
ordinarily grant leave to the guardian-ad-litem to go to the locality
for inquiry.

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8. Rejection of plaint where minor is not represented.

The plaint may be "taken off the file" and all orders made
may be set aside, if a minor is not properly represented and the
person filing the plaint or obtaining the orders whether a legal
practitioner or not, may be liable to pay costs.

9. Appointment of guardian enures for appeal and

execution.

When a guardian ad litem is appointed by a Court, the

appointment enures for the whole of the litigation including
appeals and execution proceedings arising out of the suit.

10. Compromise and agreement.

A next friend or guardian-ad-litem cannot enter into any

compromise or agreement with reference to the suit without the
leave of the Court expressly recorded in the proceedings. An
application for leave to enter into any agreement or compromise
on behalf of the minor by a next friend or guardian should be
accompanied by an affidavit of the next friend or guardian for the
suit, as the case may be, and also if the minor is represented by
the advocate, by the certificate of the advocate, to the effect that
the agreement or compromise is, in his opinion, for the benefit of
the minor. The court should be satisfied after applying its mind to
all the circumstances of the case that the compromise is really for
the benefit of the minor and should record its opinion to that
effect. A failure to observe these directions may result in the
compromise or agreement being avoided at the instance of the
minor.

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11. Persons of unsound mind

Rules relating to suits by or against minors apply mutatis

mutandis to suits by or against persons of unsound mind.

e) Suits by indigent persons

1. General.

Attention is called to Order XXXIII of the Code on the

subject of suits by indigent persons and the steps which should
be taken to protect the interests of Government in such cases.
Application for permission to sue as an indigent person has to be
presented by the applicant in person unless he is exempted from
appearing in Court.

2. Examination of the plaintiff, and evidence for

admission. Notice to Government.

Before a suit by an indigent person is admitted, the

applicant or his authorized agent, when the applicant is exempted
from appearance in Courts, should be examined regarding the
merits of the claim and the property of the applicant. If it appears
to the Court that the suit is not framed and presented in the
manner prescribed by Rules 2 and 3 of Order XXXIII, or that the
applicant is not an indigent person, or that he has fraudulently
made away with any property within the two months preceding
the presentation of the plaint, or that his allegations do not show
a cause of action, or that he has entered into any agreement with
reference to the subject-matter of the proposed suit under which
any other person has obtained an interest in such subject-matter
or that the allegations made in the application show that the suit
would be barred by any law in force at that time or that any other
person has entered into an agreement with him to finance the

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litigation, the application must be rejected. If the Court sees no

reason to refuse the application, it must fix a day (of which at
least ten days' previous notice must be given to the opposite party
and to the Government advocate on behalf of Government) for
receiving such evidence as the applicant may adduce in proof of
his indigency, and for hearing any evidence which may be
adduced in disproof thereof, and can only pass final orders on the
application after hearing the evidence and arguments brought
forward on the day so fixed.

3. Withdrawal of permission to sue as an indigent person.

Under the provisions of Order XXXIII, Rule 9, of the Code of

Civil Procedure, the Court may, under certain circumstances,
order withdrawal of the permission to the plaintiff to sue as an
indigent person.

4. Copy of decree to be sent to Collector.

Order XXXIII, Rule 14, directs that where an order is made

under Rule 10, 11, or 12, the Court shall forthwith forward a copy
of the decree or order to the Collector so that amount of Court
fees may be recovered from the person liable to pay the same as
per order of the Court.

(f) Suits for Redemption and Foreclosure of Mortgages.

1. Notice to mortgagor, conditional sale in case of land not

permitted.

The law regulating the procedure in cases where the

mortgagee whose mortgage-deed also contains a provision for
conditional sale, desires to foreclose the mortgage, is often
misunderstood. Regulation XVII of 1806* is still the law on the
subject in the areas which were forming part of Punjab earlier. It

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will be seen that, whatever the terms of conditional sale, the

mortgagee cannot enforce them till he has, by summary petition
to the Court, caused notice to be served on the mortgagor to the
effect that, if the latter does not pay the sum secured within one
year, the mortgage will be held foreclosed. After the lapse of this
year, and not till then, the mortgagee can sue for possession, as
owner, or, if in possession, to be declared owner in accordance
with the terms of the mortgage.

*Regulation No. 17 of 1806 [The Bengal Land (Redemption and

Foreclosure ) Regulation, 1806] was extended to all the territories
which, immediately before the 1st November 1956, were comprised
in the State of Punjab, vide Section 4 of the Punjab Lands
(Extension No. 3) Act 1957.

2. Court competent to hear.

Only a District or Additional District Judge can deal with

applications under Sections 7 and 8 of Regulation XVII of 1806.
The procedure prescribed in the Regulation should be very strictly
observed as otherwise, the notice may have no legal effect.

3. Summary procedure for redemption.

The Debt Reduction Act, 1976 provides a summary

procedure for redemption of land through the Collector in the
State. But any party aggrieved by the decision of the Collector,
can under certain circumstances institute a suit in a Civil Court
to establish his right (see Section 12 of that Act).

(g) Suits for Declaratory Decrees.

1. The issue as to possession.

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The proviso to section 34 of the Specific Relief Act, 1963,

lays down that a declaratory decree cannot be passed in a case in
which other relief than a mere declaration can be sought. Hence
in a suit for a declaration of title to immovable property, where
the defendant denies that the plaintiff was in possession of the
property on the date of the suit, the Court should, first of all,
decide this point. If it is found that the plaintiff was not in
possession of the property on the date of the institution of the
suit, his suit must fail unless the court, having regard to all the
circumstances, allows the plaint to be amended.

2. All issues to be framed.

These instructions are not to be taken to imply that the

whole of the pleadings should not be exhausted and issues drawn
on all points of conflict between the parties at the first hearing,
but that at the trial of the issues, the issue as to possession
should be first tried and disposed of where this can be
conveniently done.

(h) Suits for Accounts.

1. The account may be preferably taken after disposal of

other points.

Order XX, Rule 16, of the Code directs that in all suits
where it is necessary in order to ascertain the amount of money
due to or from any party, that an account should be taken, the
court shall before passing its final decree pass a preliminary
decree directing such accounts to be taken as it thinks fit. This is
the general rule though where the matter appears to be simple,
the Court may pass a final decree straightaway.

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2. Filing of accounts and evidence.

At the time of passing the preliminary decree, directing the

rendition of accounts, the Court should decide the rights of the
parties and as to who the accounting parties are and for what
period the accounts are to be taken. In case of partners, their
respective shares in the profits and loss of the joint business
should be stated. Under Order XX Rule 17, the Court can also
give directions, in the preliminary decree or by any subsequent
order, as to the mode in which the accounts have to be taken or
vouched and may, in particular, direct what books of account
shall be taken as prima facie evidence of the truth of the matters
therein contained; with liberty to the interested parties to object
to any portion of this account. In partnership cases, books of
account should be treated as prima facie evidence of the truth of
the matters stated therein under the general law and a special
direction in this regard is not necessary.

3. Commission.

After the preliminary decree, the Court may go into the

accounts itself but in cases where the accounts are lengthy or
complicated, it may be helpful to issue a commission for the
purpose. Rules 11 and 12 of Order XXVI indicate that the
commission may be for examination and adjustment of accounts
only or the commissioner may also be asked to report his opinions
on the points referred for his examination. When the Court
decides to issue a commission, his duties shall be stated with
precision and particularity. The Commissioner is neither an
arbitrator nor the Judge and the determination of any issue in the
case cannot be delegated to him. The Commissioner is to place
himself as an assistant to the Court so as to explain the accounts

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and give to the Court all the information which the accounts give
in order to enable the Court to decide; unless he is also ordered to
report under Order XXVI, Rule 12 (1) his own opinion on the
points referred to for his examination.

4. Directions to Commissioner.

(1) If in any suit or matter it is necessary to take an account,

the order or preliminary decree of the Court shall contain the
following direction as far as in the opinion of the Court issuing the
commission they are adapted to the requirements of the case:-

(a) The nature of the account to be taken.

(b) The date from which and the date to which the
account is to be taken.

(c) The name of the party by whom a statement of

account is to be filed.

(d) The period within which the statement of account,

objection, and surcharge are to be filed.

(e) The date on which the Commissioner is to submit his

report.

(f) Any other matter on which the Court may think it

necessary to give or the Commissioner may desire to obtain,
its instructions.

(2) The statement of account shall be in the form of a debtor

and creditor account and shall be verified by the accounting party
or his agent. The items on each side of the account shall be
numbered consecutively and a balance shall be shown.

(3) The statement of an objection to an account, or to the report

of a commissioner, shall specify the items to which objection is

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taken by reference to their number in the account or report, or

the date of the item and page of a particular book of account.

(4) The statement of the surcharge shall specify the amount

with respect of which it is sought to charge the accounting party,
the date when, the person from whom, and the particular account
on which, the same was received by him.

(5) The statement of objection or surcharge shall also state (a)

the grounds of each objection and surcharge and (b) the balance if
any, admitted or claimed to be due; and it shall be verified by the
affidavit of the party concerned or his agent.

(6) If any party fails to file his statement of account or objection

and surcharge, within the period allowed, the Commissioner shall
report the fact to the Court, and on the application of defaulting
party, the Court, may extend the period or direct the
commissioner to proceed ex-parte as regards such party or direct
any other party to file a statement of account, or the Court may
proceed to decide the suit forthwith on the evidence before it.
Evidence shall not be admitted with respect to an objection or
surcharge not included in a statement of objection or surcharge.

(7) If the Commissioner is unable to submit his report within

the time fixed by the Court he shall apply to the Court, for an
extension of the time giving reasons thereof and the Court may
extend the time or cancel the Commission and appoint a new
Commissioner.

(8) 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

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on which the parties are at issue and require them to produce

their documentary or oral evidence on such points.

(9) After the evidence has been duly taken and the parties have
been heard, the Commissioner shall submit his report together
with a statement in the form of a diary of the proceedings heard
before him each day. If he is empowered under Order XXVI, Rule
12 (1) to state his opinion on the matter referred to him he shall
append to his report schedules setting out

(a) the contested items allowed or disallowed,

(b) the reasons for allowing or disallowing them,

(c) the amount found due,

(d) the name of the party to whom it is due and

(e) the name of the party by whom it is due.

(i) Procedure in "Hadd Shikni" cases.

1. Local Inquiry.

In "Hadd-Shikni" suits and other suits of boundary disputes

of land falling within the jurisdiction of a Civil Court, it is
generally desirable that inquiry be made on the spot. This can
usually be done in the following ways:-

(a) by suggesting that one party or the other should apply

to the Revenue Officer to fix the limits, under section 107 (1)
of the HP Land Revenue Act, 1954. Time for such purpose
should be granted under Order XVII, Rule 3, of the Code of
Civil Procedure;

(b) by appointing a local Commissioner; and

(c) by the Court itself making a local inquiry.

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2. An inquiry by Revenue Officer.

An order of the Revenue Officer made under Section 107 of

the Land Revenue Act is not conclusive; but when his proceedings
have been held in the presence of, or after notice to, the parties of
the suit, and contain details of enquiry and of the method adopted
in arriving at the result, it would be a valuable piece of evidence.
It may be noted that an Assistant Collector of the second grade
can deal with cases in regard to boundaries which do not coincide
with the limits of an estate.

3. Appointment of Commissioner.

No person other than a Revenue Officer (or retired Revenue

Officer) not below the rank of a Field Kanungo should usually be
appointed a local Commissioner. The appointment of retired
Revenue Officers is to be preferred as these Officers have the
spare time and the inclination for completing the work with the
expedition. A commission issued to a Revenue Officer in service
necessitates the obtaining of permission of the higher authorities
and this along with the fact that such Revenue Officers are
usually busy often results in a delay in the disposal of the case.
The wishes of the parties in regard to the appointment of a
particular individual as commissioner for local investigations
should be taken into consideration while making such
appointments.

Instructions for the guidance of Commissioners.

Financial Commissioner of Himachal Pradesh has issued the

following detailed instructions for the guidance of Revenue
Officials or Field Kanungos appointed as Local Commissioners in
Civil suits of this nature vide notification dated no. Rev. B.A. (3)-

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3/2012. Dated: Shimla-2, 16th July 2012, the relevant part of

which is extracted below:

(Financial Commissioner's Instructions)

10.4. Procedure for demarcation: - The demarcation will

be carried out as per procedure given below:-

i) If a boundary is in dispute, the person carrying out the

demarcation should measure it from the Village map (musavi)
prepared during the last settlement or revision as the case may
be. The map so prepared shall include maps prepared by
electronic methods e.g. GPS, ETS etc.

In case of a map prepared on triangulation system of

measurement following the conventional method of survey, he
should demarcate the land in dispute with reference to three fixed
points. Such fixed points will be the reference points (chandas)
which were the basis of measurement of the land during the
previous settlement and will, therefore, be depicted on the
musavi. These points should be such that have remained
undisturbed since the last settlement. Statements of parties
accepting such points as a basis for the demarcation should be
recorded before starting measurement work.

ii) If the parties cannot agree on any such fixed recognizable

points, then the person demarcating the land will find such points
on his own with the help of the map (musavi).

iii) Thereafter, the person demarcating the land will measure

these points and compare the result with the distance given on
the map. If the distances when thus compared are agreed in all
cases, he can then proceed to demarcate the land with reference
to these points.

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iv) If there is only a small dispute as to the boundary between

two fields, the greater part of which is undisturbed, then such
perpendiculars as may be required to points on the boundaries of
these fields as shown in the field map can be set out from their
diagonals, as in the field book and in the map, and curves made
as shown on the map.

iv) (a) If three fixed points are not available and only two fixed
recognizable points are available, a third point may be found with
the help of these two points so as to form a triangle. It should be
seen that the sides of such a triangle when checked on the spot
tally with the distances given between these points in the map.

iv) (b) the two adjoining fields may have a common interlocking
boundary line. If other dimensions (Karu Kan/meter kan) of these
fields tally on measurement the two points of this line can be
treated as two points referred to in instruction (iv) (a) above.

v) There can arise cases where even two fixed recognizable

points are not available and only one fixed point is found. Such
points are generally the ones where corners of two or more fields
meet. The reliability of such a point can be tested by measuring
all sides (Chomindas) of the fields adjoining or surrounding the
point. If the measurements of such fields tally with the map then
the accuracy of such a point itself gets established. Such a point
may be fixed as a starting point for demarcation of land.

Demarcation may be carried out through conventional tapes

measures or with the aid of electronic survey equipment.

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10.5. Demarcation Report and fixing of boundaries on

spot.-

After demarcation, a statement of the parties present will be

recorded and placed in the file along with a detailed demarcation
report.

The report will clearly mention all those present/absent

from among impleaded parties.

The demarcation report must explain in detail how the

measurement was done. There should also be a mention as to
what method was adopted and the manner in which the starting
points and the fields were measured. All the fields and points
measured should be shown in the site plans, within the frame of a
copy of the field map.

The areas of the fields abutting on the boundary in dispute

as recorded at the time of last settlement and those arrived at as a
result of the measurement on the spot should be mentioned with
an explanation of the cause of an increase or decrease if any
discovered.

The statements of interested parties shall be recorded and

their objections regarding demarcation shall also be noted. A
tatima of the land or part thereof found under dispute during
demarcation shall be prepared with a mention of the existing
possession.

10.6. Demarcation by local commissioners:-

These instructions will also be followed by the Revenue

Officers and Kanungos whenever they are appointed as
Commissioners by a Civil Court in suits involving disputed
boundaries.

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10.7. Acceptance of demarcation:-

On receipt of the report, the Revenue Officer shall summon

all the interested parties and record their statements.

In case one of the parties objects to the demarcation report

and he finds the objections to be sustainable, the Revenue Officer
shall get the land re-demarcated and thereafter decide the
objections by a reasoned order.

In case the parties have no objection regarding the

demarcation given, he will pass orders accordingly accepting the
report of demarcation as correct with reference to the boundaries
for which the demarcation was sought.

10.8. No fresh demarcation of land once demarcated and

accepted by a Revenue Officer is to be given unless the order
of acceptance of demarcation by a Revenue Officer is set
aside in appeal/revision:-

It must be kept in mind that demarcation proceedings being

quasi-judicial in nature unless an order accepting a report of
demarcation passed by a Revenue Officer is set aside in appeal or
revision by an authority of higher competent jurisdiction, a fresh
demarcation of the boundaries of land demarcated shall not be
given. Hence, whenever an application for demarcation is
received, a Revenue Officer must ensure that all adjoining
landowners are impleaded as parties and the applicant is made to
fence his boundary at the time of demarcation in the presence of
the adjoining landowners so that the demarcation involves all the
necessary parties to avoid further applications for demarcation of
the same boundary.

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Provided that a person, who has acquired such land by way

of sale, gift, will, lease, the decree of the civil court, a mortgage
with possession, the creation of tenancy or otherwise, after the
demarcation which has already taken place, may apply for fresh
demarcation.”

4. Report of the Commissioner:-

The report of the local Commissioner should contain full

details so that the Court may satisfactorily deal with the
objections made against it.

5. Objections to the report of the Commissioner:-

The objections to the report of Local Commissioner should be

called and disposed of at the final stage of the case. The court
should avoid trial within trial by hearing first on the objections to
the report of Local Commissioner.

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Chapter-13
Jurisdiction of Civil Courts

1. Jurisdiction.

(a) In view of Section 9 of the Code, Civil Courts have

inherent jurisdiction to try all suits of civil nature except the
suits for which their jurisdiction is either expressly or
impliedly barred. Bar to the jurisdiction of Civil Court
should not be readily or lightly inferred. Even if the
jurisdiction of Civil Court is barred by any statute and there
is a violation of provisions of the statute or principles of
natural justice, the civil court would get jurisdiction to try
the suit as per precedents, but not regarding merits of the
dispute, for which jurisdiction of the civil court is barred.
Under some enactments, Civil Judges can take cognizance
of the proceeding only if specifically empowered in that
behalf.

(b) Court also has to see whether it has pecuniary and

territorial jurisdiction to try a suit. Provisions of Sections 15
to 21 of the Code may be kept in view.

(c) In exercise of the powers vested under Section 29 read

with Section 10 and 11 of the Himachal Pradesh Courts Act,
1976 the High Court has fixed the pecuniary jurisdiction of
the courts in Himachal Pradesh as under:-

I. District Judges/Addl. District Judge

The court of District Judge/Additional District Judge shall

have the pecuniary jurisdiction in all original Civil Suits the
value of which exceeds Rs. 20,00,000/- (Rupees Twenty

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lacs) but does not exceed Rs. 30,00,000/- (Rupees Thirty

lacs).

II. Senior Civil Judge

The Court of Senior Civil Judge shall exercise the

jurisdiction in all original Civil Suits the value of which
exceeds Rs. 10,00,000/- (Rupees Ten Lacs) but does not
exceed Rs. 20,00,000/- (Rupees Twenty lacs).

III. Civil Judge

The court of civil Judge shall exercise the jurisdiction in all

original Civil Suits the value of which does not exceed Rs.
10,00,000/- (Rupees ten lacs).

2. Jurisdiction of Civil and Revenue Courts.

(a) If it is found that the suit relates to a matter of which

only Revenue Court can take cognizance, the plaint should
be returned for presentation to the competent Revenue
Court.

(b) In view of Section 46 of the Himachal Pradesh Land

Revenue Act, 1954 a person considering himself aggrieved
by an entry in a Record of Rights or Annual Record, as to
any right of which he is in possession, may institute a suit
for a declaration of his right under Chapter VI of Specific
Relief Act, 1963, but Civil Court has no jurisdiction to order
correction of such an entry in view of Section 171 (2)(xvii) &
171 (2) (xviii) of the H.P. Land Revenue Act. Civil Courts
shall only grant a declaration of the right after which the
entry shall be corrected by the revenue authorities
themselves.

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(c) If in a partition case, Revenue Officer declines to

determine the question of title himself as if he were a Civil
Court, the suit would lie in the Civil Court to determine
such question, but the order of the Revenue Officer should
be pleaded in the plaint and copy of the order annexed with
the plaint.

(d) Only Civil Court has jurisdiction to determine the

question of acquisition of occupancy rights and consequent
acquisition of ownership rights.

(e) Suits relating to boundary disputes are triable by Civil

Courts although the decision of Revenue Officer as to
delimitation cannot be questioned in Civil Court.

(f) Where the proprietary rights have been conferred by the

Land Reforms Officer under H.P. Tenancy and Land Reforms
Act, 1974, the civil court cannot determine the merit of such
order. However, the courts can always determine whether
the principles of natural justice were violated or not and
whether the order is in accordance with the fundamental
procedure provided under the Act or not.

3. The issue of jurisdiction is always debatable.

The above are some of the principles defying jurisdiction of

the civil and revenue court. The same are not final and always
subject to the developments of law in the subjects in question.

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Chapter-14
Valuation of Suits
1. General

Value of a suit for purpose of court fee is determined under

the Court-fees Act, 1870 whereas the value of the suit for purpose
of jurisdiction is determined under the Suits Valuation Act, 1887
and the rules made thereunder. These two values are not
necessarily same or identical and are rather frequently very
different. Provisions of both the aforesaid Acts may be studied
very carefully. Special attention is necessary to the classification
of suits in Section 7 of the Court-fees Act.

Value of the suit for purposes of court fee and jurisdiction

has to be separately and specifically stated in the plaint. If not so
stated the plaintiff should be required to do so, before summoning
the defendant.

2. Valuation of suits relating to agricultural land.

If a suit relates to agricultural land in rural area, the value

of the suit for purposes of court fee and jurisdiction is very
nominal in accordance with the aforesaid Acts. However, if a party
to the sale deed files suit to challenge the sale deed, ad valorem
Court Fee on sale consideration mentioned in the sale deed is
payable, as per precedent.

3. Valuation of certain suits

Valuation of certain suits for purpose of jurisdiction is not

expressly provided for in the Suits Valuation Act, 1887. Valuation
of such suits is, therefore, left to a judicial decision as the
occasion may arise.

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In some cases, e.g. petitions under the Guardians and

Wards Act, 1890, there is no necessity of fixing value for the
purpose of jurisdiction because Courts for such cases are
earmarked.

4. Value for purpose of Appeal

(a) Value of the suit fixed by the plaintiff or determined by the

Court should always be stated on the face of the final judgment
and decree in the suit so that no inconvenience is caused to the
litigants or Appellate Courts.

(b) The objection in appeal by either party to the valuation of

the case determined by the trial Court must be decided by the
Appellate Court like any other question raised in appeal or cross-
objection. However, the objection in this regard should also have
been taken in the trial Court at or before framing of issues.

5. Rules Framed under the Suits Valuation Act

Rules framed under Section 3 of the Suits Valuation Act as

well as by the High Court under Section 9 of the Act ibid should
be carefully studied and kept in view.

Rules framed by the States apply to all land generally,

whether assessed to land revenue or not and without restrictions
as to the classes of land or the local extent of their operation
value of suit for purpose of jurisdiction shall not exceed the value
of land or interest therein determined under the said Rules where
applicable.

Rules framed by the High Court apply to certain classes of

suits which do not admit of being satisfactorily valued. Value of
such suits for purposes of court-fee and jurisdiction has to be
determined under the said Rules.

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Chapter 15
Arbitration

1. Arbitration and Conciliation Act, 1996.

The Arbitration (Protocol and Convention) Act 1937, the

Arbitration Act, 1940 and the Foreign Awards (Recognition and
Enforcement) Act, 1961, (the Repealed Acts) stand repealed by
Section 85 of the Arbitration and Conciliation Act, 1996 (New Act),
but provisions of the Repealed Acts shall continue to apply to
arbitral proceedings which commenced before the new Act came
into force unless otherwise agreed to by the parties, and all rules
made and notifications issued under the Repealed Acts shall be
deemed to have been made or issued under the New Act to the
extent they are not repugnant to the New Act.

2. A scheme under the New Act.

High Court has framed “The Appointment of Arbitrators by

the Chief Justice of Himachal Pradesh High Court Scheme 2006”
regarding the appointment of arbitrators under Section 11 of the
New Act. Application for this purpose has to be made to the Chief
Justice of the High Court. No such application lies in Courts
subordinate to the High Court.

3. Rules under the New Act.

High Court has, in the exercise of powers conferred by

Section 82 of the New Act framed High Court of Himachal Pradesh
(Arbitration and Conciliation) Rules, 2002 in relation to
proceedings before the Court under the New Act. The Rules inter
alia provide for applications to be made under the New Act

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including applications for the enforcement of arbitral awards.

Rules also prescribe fee payable on applications and appeals.

Certain provisions of the Code of Civil Procedure have also

been made applicable to such proceedings. The Rules should be
studied carefully before taking action on the applications filed
under the Arbitration and Conciliation Act.

4. Rules under the Repealed Acts.

Rules framed under the Repealed Acts are also applicable to

the cases under the New Act in so far as they are not repugnant
to the New Act.

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Chapter-16
Witnesses-Civil Courts

1. Attendance of witnesses

(a) Provisions of Order XVI of the Code of Civil Procedure

relating to summoning and attendance of witnesses should be
studied carefully. A Court can compel the personal attendance of
any witness subject to certain restrictions of distance stipulated
in Order XVI Rule 19 of the Code. Besides it, women who
according to the customs and manners, ought not to be compelled
to appear in public are also exempt from personal appearance in
Court.

Some dignitaries specified in Section 133 of the Code are

also exempt from personal appearance in Court. On the ground of
sickness or infirmity also, the Court has the discretion to the
exempt personal appearance of any person. However, statement of
any person as a witness whose personal appearance in Court is
exempt may be recorded by issuing the commission. Witnesses
who are not exempt can be served in the same manner as
prescribed for service of defendants.

(b) If a witness fails to attend in spite of service of summons,

his presence may be secured by the issuance of a bailable or non-
bailable warrant of arrest and/or by the issuance of proclamation
and attachment of his property. On his appearance, fine may also
be imposed on him after issuing show cause notice for not
attending the Court. The Court should exercise caution while
issuing a warrant of arrest against a public servant. A show cause
notice to the defaulting public servant and intimation to his
superior officer would produce the desired effect.

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However, in cases of pronounced or wilful default, the

coercive process may be issued against the public servant also. If
the party summoning any defaulting witness is unwilling to take
coercive action, the Court should refuse to issue any further
summons to such witness.

(c) When witnesses are in attendance, every effort should be

made to record their evidence promptly and they should not be
required to attend again at any adjourned hearing as far as
possible.

(d) Since a certified copy of the public document is per se

admissible in evidence, a concerned official with an original public
record should not ordinarily be summoned to prove the document
or copy thereof, unless deemed absolutely necessary, e.g. when
there is alleged tampering of the original document or authority
concerned has declined to give a certified copy of the document.
Thus Courts should ordinarily refrain from summoning concerned
officials with Registers of Births and Deaths or records of
Municipalities or Property Tax Authorities or record relating to
agreements of Rulers of former Indian States relating to their
merger, integration or accession to the Indian Union or Patwari
with Revenue record.

Original record when summoned should also be returned

after the witnesses relating to the same have been examined and
should not be retained in Court except when absolutely
necessary.

2. Remuneration

(a) A party summoning a witness through Court is required to

pay into Court necessary amount to defray the travelling and

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other expenses of the witness to and from the Court and also diet
money for the attendance of one day. Government is exempt from
depositing the amount for summoning its own officials. The scale
of expenses of the witnesses has been prescribed by the High
Court which is as under:

Sr. Category Traveling Daily

No Allowance
.
1. General witnesses/unskilled Actual bus fare Minimum daily
workers wage prescribed
by the State
Govt. from time
to time
2. Skilled workers Actual bus fare The daily wage
payable to
different
categories of
skilled workers
as fixed by the
State Govt. from
time to time.
3. Serving Govt. Servants As admissible As admissible
under the under the
relevant relevant
rules/instruction rules/instruction
s issued by the s issued by the
State/Central State/Central
Govt. as the case Govt. as the case
may be from may be from
time to time. time to time.
4. Retired Govt. Servant As admissible to As admissible to
the serving Govt. the serving Govt.
servants of the servants of the
equivalent rank. equivalent rank
5. Serving employees of As admissible to As admissible to
Statutory Commission/public the serving Govt. the serving Govt.
sector undertakings/ servants of the servants of the
Autonomous Institutions equivalent rank equivalent rank
6. Retired employees of As admissible to As admissible to
Statutory Commission/public the serving Govt. the serving Govt.
sector undertakings/ servants of the servants of the
Autonomous Institutions equivalent rank equivalent rank
7. Public As prescribed by As prescribed by
Representatives/Chairman/Vi the the

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Sr. Category Traveling Daily

No Allowance
.
ce Chairman & Head of State/Central State/Central
Statutory Commission/public Govt. as the case Govt. as the case
sector undertakings/ may be from may be from
Autonomous Institutions time to time. time to time
8. Public As admissible to As admissible to
Representatives/Chairman/Vi their their
ce Chairman & Head of counterparts in counterparts in
Statutory Commission/public office office
sector undertakings/
Autonomous Institutions
9. Any other category To be assessed To be assessed
by the Court in by the Court in
view of the view of the
status of the status of the
witness in the witness in the
light of light of
categorization categorization
made by the made by the
State Govt. for State Govt. for
payment of T.A. payment of T.A.
to different to different
categories of categories of
serving Govt. serving Govt.
servants from servants from
time to time. time to time.

(Public Representatives shall mean and include MPs, MLAs,

Chairman, Vice Chairman and Members, Zila Parishad and
Panchayat Samiti, Mayor, Deputy Mayor, President, Vice
President and Members of Local Bodies, President, Vice Present
and Members, Gram Panchayat etc.)

Expert witnesses are entitled to additional remuneration for

performing work of expert character.

(b) A Government servant appearing as a witness in an official

capacity may draw travelling allowance from Government as for a
journey on tour. Expenses deposited by the party for summoning

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such witness shall be credited in the Treasury to the credit of the

concerned Government under the proper head of account.
However, a Government servant appearing as a witness in private
capacity may receive the expenses deposited by the party from the
Court. Attendance certificate shall be given by the Court to every
public servant appearing as a witness and the amount of money
paid/deposited should be mentioned in the certificate.

It has been noticed that in some of the Courts additional

money (sah Sarkar) is being demanded from the parties to be
deposited in treasury in case of witnesses who are govt. servants.
This practice is wrong and only the money deposited by the
parties for summoning the govt. servants as a witness is required
to be deposited in the treasury, in case the same is not accepted
by him. In no case, the party should be burdened with additional
money in case of govt. servants appearing as witnesses in the
Courts.

(c) If the witness is summoned from any other District,

expenses of the witness should be remitted by money order/RTGS
at the cost of the party summoning the witness.

(d) A Process Server called upon to prove service of summons is

not entitled to any allowance, such appearance being part of his
ordinary duty.

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Chapter 17
Suits by or against persons in Military Service.

1. While dealing with suits by or against persons in Military

Service i.e. Army, Air Force or Navy, provisions of the Army Act,
1950, the Air Force Act, 1950 and the Navy Act, 1957 and of
Order XXVIII of the Code of Civil Procedure have to be kept in
view.

Pay and allowances of such persons are exempted from

attachment in execution of civil decrees under Clause (j) of the
proviso to Section 60(1) of the Code. The government of India has
also issued a memorandum regarding the arrest of such persons
for debt, attachment of their pay and allowances and priority in
the disposal of their litigation. The same is only for the guidance
of the Civil Courts. If any such person who is a party to a suit,
cannot obtain leave of absence for prosecuting or defending the
suit in person, he may authorize any person to prosecute or
defend the suit on his behalf by way of the written power of
attorney which also does not require any court fee. Cases of such
persons should be speedily disposed of on priority.

2. Provisions of the Indian Soldiers' (Litigation) Act, 1925 are

also required to be studied and kept in view while dealing with
cases of persons in Military service. Rules framed by the Central
Government under the said Act may also be studied.

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Chapter 18

Suits by or against the Government and Public Officers in

official capacity

1. General:

Provisions of Sections 79 to 82 and Order XXVII of the Code

require the attention of the Courts in relation to suits by or
against the Government and Public Officers in their official
capacity.

2. Notice before the institution of the suit:

Prior notice of two months under Section 80 (1) of the Code

is required to be served on the Government or the Public Officer
sought to be sued. If there is no plea in the plaint regarding
service of such notice, the plaint may be returned for amendment,
if the person presenting the plaint states that notice has been
given or the plaint may be rejected if the person presenting the
plaint states that the notice has not been given.

However, for urgent and immediate relief, the suit may be

instituted against Government or Public Officer, with the leave of
the Court, without serving any such notice. But no relief, interim
or otherwise, shall be granted except after giving a reasonable
opportunity of showing cause to the Government or the Public
Officer. Courts are advised to pass specific orders on the
application for leave to file the suit without serving the requisite
notice. If the leave is refused, the plaint should be returned for
presentation after service of the requisite notice.

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3. Execution of decree:

A decree passed against Government or Public Officer in an

official capacity shall not be executed unless it remains
unsatisfied for 3 months from the date of the decree.

4. Service of notice on Government Pleader:

Government pleader in any Court appointed by the State

shall be the agent of the Government for the purpose of receiving
processes against the Government issued by the Court.
Notifications have been issued by Governments appointing
Government pleader for this purpose.

5. Priority:

The suit in which Government is party should be given

priority. However, reasonable time should be given for necessary
communication with the Government through proper channel and
for the issue of instructions to the Government advocate. Such
time may be extended on request for sufficient cause.

6. Notifications:

Central Government (Ministry of Railways) Notification No.

GSR 1138 dated 11.9.1961 relating to Officers authorized to sign
and verify the pleadings and Central Government (Ministry of
Railways) Notification No. GSR 1269 dated 07.10.1961 appointing
recognized agents for suits relating to railway Administration may
be studied and kept in view.

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Chapter-19

Utilization of the Services of Special Kanungo or Patwari

Moharrir

1. Procedure for obtaining excerpts

A Special Kanungo or Patwari Moharrir has been appointed

in all the Districts, so as to make the information contained in
revenue records easily accessible to the litigants and the Courts.
Complete particulars of the excerpts to be prepared should be
succinctly mentioned in the application by the concerned party.
The application should be sent with the summons to the Special
Kanungo or Patwari Moharrir. He should not be asked to attend
the Court to tell him what is required to be done. The practice of
calling him for this purpose must be discontinued. After preparing
excerpt, the Special Kanungo or Patwari Moharrir should appear
in the Court on the date fixed along with the original revenue
record from which the excerpt has been compiled. He then
appears in the witness box and on oath proves the excerpt as
correct according to the original record brought by him. Counsel
for the parties thus gets the opportunity of comparing the excerpt
with the original record and of examining the witness on the
required points.

2. Special Kanungo or Patwari Moharrir to be used for

special purposes and at an early stage.

Special Kanungo or Patwari Moharrir should be used for the

purpose of obtaining information which is not readily available
and not for other purposes. He should not be required to give
opinions nor to give instances for or against alleged custom nor
appointed as Local Commissioner nor he should be asked to

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prepare copies of pedigree tables or of histories of villages which

can be easily obtained from the Copying Agency. He should also
be summoned for the first date of hearing after framing of issues
if required by the plaintiff and for the first date of hearing fixed for
evidence of the defendant if required by him.

3. Procedure for outlying Courts

The excerpt cannot be used as evidence unless proved. The

Special Kanungo or Patwari Moharrir cannot be required to go
with original records to outlying Courts, and without original
records, the excerpt cannot be proved. Consequently, outlying
Courts may issue interrogatories or open commission, ordinarily
to Senior Civil Judge, for examination of the Special Kanungo or
Patwari Moharrir to prove the excerpt. The commission shall
record the statement of the Special Kanungo or Patwari Moharrir
on oath by summoning him with an excerpt and also a relevant
original revenue record. The evidence so recorded along with
excerpt shall then be transmitted to the concerned outlying Court.

4. Fees

Requisite fee (as fixed from time to time) for preparation of

excerpt as well as expenses for the appearance of the Special
Kanungo or Patwari Moharrir as a witness in the Court should be
deposited in Court by the concerned party. The deposit shall be
credited at once to the treasury under the relevant head.

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Chapter 20
Commissions and Letters of the request.
1. Provisions of CPC:

Provisions contained in Sections 75 to 78 and Order XXVI of

the Code of Civil Procedure should be carefully studied and
applied.

2. Persons to whom Commissions can be issued:

(1) A commission for the examination of any person including

one for the administration of a special oath shall ordinarily be
issued to a legal practitioner practicing either before the Court
issuing the commission or before the Court within whose
jurisdiction the person resides. Such commissions may, if it is
considered desirable, also be issued to a Court (not being a High
Court) within the local limits of whose jurisdiction the person
resides. The following persons are exempted from appearance in
the Court they can only be examined by way of commissions:-

Exemption of certain women from personal appearance

(S.132 CPC). -

(1) Women who, according to the customs and manners of the

country, ought not to be compelled to appear in public shall be
exempt from personal appearance in Court.

Nothing herein contained shall be deemed to exempt such

women from arrest in execution of the civil process in. any case in
which the arrest of women is not prohibited by this Code.

Other persons Exempted (S.133 C.P.C.)

The following persons shall be entitled to exemption from

personal appearance in Court, namely

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(i) The President of India;

(ii) The Vice-President of India;

(iii) The Speaker of the House of the People,

(iv) The Ministers of the Union;

(v) The Judges of the Supreme Court;

(vi) The Governors of States and the administrators of Union

Territories;

(vii) The Speakers of the State Legislative Assemblies;

(viii) The Chairman of the State Legislative Councils;

(ix) The Ministers of States;

(x) The Judges of the High Courts; and

(xi) The persons to whom section 87B applies.

Where any person claims the privilege of such exemption,

and it is consequently necessary to examine him by the
commission, he shall pay the costs of that commission, unless the
party requiring his evidence pays such costs.

If a commission is to issue to an advocate, the commission

shall be transmitted together with the fee, to the Court in which
the Commissioner is practicing as an advocate, and, when such
Court is the High Court, to the Registrar.

The Court or officer receiving a commission issued to an

advocate shall immediately deliver it to him unless he refuses to
act.

(2) A commission for making a local investigation necessitating

the taking of evidence shall ordinarily be issued to a legal
practitioner, and in cases requiring some special and technical

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knowledge to a person possessing the necessary technical and

special knowledge.

(3) A commission for local investigation not necessitating the

taking of evidence may be issued to a legal practitioner.

(4) A commission to examine accounts may be issued to any

person (including a legal practitioner) who is a competent
accountant.

(5) A commission for conducting the sale of property which is

subject to speedy and natural decay and which is in the custody
of the Court pending the determination of the suit shall ordinarily
be issued to a Civil Court Nazir, and only in exceptional
circumstances, it shall be issued to an Advocate Commissioner.

(6) A commission to perform any ministerial act may be issued

to an Advocate Commissioner.

3. List of Commissioners

(1) Every District Judge shall maintain a separate list of legal

practitioners for each district and outlying Courts authorized to
execute commissions. The list shall be prepared by the District
Judge in consultation with the Judicial Officers of each district or
outlying Courts, as the case may be. The list may be sub-divided
into five parts, namely, (i) for accounts, (ii) for survey, (iii) for
simple measurements where no survey is necessary, (iv) for
service of injunction orders, stay orders or other notices, and (v)
for recording of evidence and all other purposes. The number of
Commissioners in each part shall be fixed by the District Judge.

Care should be taken to include in the list of Commissioners

for accounts and survey only those lawyers who are well
conversant with and experienced in such work but for a

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commission in matters referred to in items (iii) and (iv) above, the

names of junior lawyers should be included. For matters referred
to in item (v) above, the names of lawyers with a minimum
standing of two years and having fairly good experience of working
in Courts (but not very senior lawyers) should be included in the
list. In exceptional circumstances, however, and for reasons to be
recorded even very senior lawyers may be appointed as
commissioners for recording evidence though not included in the
list.

The list of Commissioners shall be maintained in the office

of the District Judge at the headquarters and of the senior most
Judicial Officer at other places, and all commissions issued shall
be entered in it. Commissions shall be issued in strict order of
rotation in respect of each part unless there are reasons to the
contrary. No commission shall be issued to any person whose
name is not entered in these lists except for special reasons. The
lists shall be revised once a year.

(2) The Court shall ordinarily require the party asking for the
issue of a commission to deposit a fee (to be fixed by the Court)
before the issue of the commission. The fee shall be fixed with due
regard to the circumstances of the case and the status of the
Commissioner.

(3) In the case of a protracted investigation, which extends

beyond the time originally calculated, the Court may suspend the
commission until a further sum sufficient to cover the additional
expense is paid into Court.

(4) Where a commission cannot be executed for reasons beyond

the control of the Commissioner, the Court may order payment of

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such fees as may appear to be reasonable, with due regard to the

time spent by the Commissioner.

4. Fees of the Commissioner:

The Court shall fix a reasonable amount of fee of the

commissioner to be paid initially by the party seeking
appointment of a commission. The number of fees can be varied
(increased or decreased) subsequently by the Court depending on
the work done by the Commissioner. The fee shall be paid to the
Commissioner after the commission is duly executed.

5. Commission for local inquiry and accounts:

A Court should not issue a commission for local inquiry and

accounts merely to save itself the time and trouble of examining
witnesses. However, where it is necessary to appoint a
commissioner to make a local inquiry or to examine accounts, the
order should specify the reason for appointing the Commissioner
and the precise matter of the inquiry.

Commissioner appointed to examine accounts should be a

competent person in the particular form of accounts. It would be
futile to issue a commission to a person who is unable to even
read the script in which the accounts are written.

The same person should not be habitually appointed as

Commissioner for local inquiry. Petition Writers and other persons
who hang about the Courts should not be appointed.

6. Commission for partition of property:-

After passing a preliminary decree of partition, Court may

issue a commission for suggesting a mode of the partition of
immovable property. In the case of agricultural land, a Revenue

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Officer or retired Revenue Officer should ordinarily be appointed

as Commissioner whereas in other cases, any suitable person
may be appointed as Commissioner.

7. Functions of Commissioner:

The Commissioner should function strictly according to the

order appointing him. In case of local inquiry/spot inspection, the
commissioner may prepare a map or plan and may observe
existing physical features and boundaries and situation etc., and
may submit his report accordingly including the map or plan, if
any. Report submitted by the Commissioner may be read in
evidence. The Commissioner may also be examined as a witness
at the instance of either party. The Court has no power to delegate
to the Commissioner the final determination of any issue between
the parties. The Court can take into consideration the report of
the Commissioner, but must itself decide the issue.

8. Court officials not to be appointed:

Court officials should not ordinarily be appointed to make

local investigations or to find the market value of the property etc.
Such commissions should be issued to retired Revenue Officers or
professionals such as engineers, architects, accountants etc.
Advocates may also be appointed as Commissioners for local
investigation/spot inspection. Courts should exercise great care
in selecting the suitable persons.

9. Prohibition of commission fees to Government Officers.

The acceptance by Government officers of fees for executing

commissions is prohibited except in the cases mentioned in
paragraph 3 of the late Government of India Resolution No. II-
Judl. /1173-1190, dated September 8, 1896.

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10. Particulars to be given in the order for local

investigation.

When issuing a commission for making a local investigation

under O. XXVI, r. 9 the Court shall define the points on which the
Commissioner has to report. No point which can conveniently and
ought to be substantiated by the parties by evidence at the trial
shall be referred to the Commissioner.

11. Time for executing commissions.

A reasonable time shall be fixed for the execution of every

commission and the Court shall see that it is executed within
such time unless the Court for sufficient reason extends the time.

12. Payment in advance of expenses for the issue of

commission.

Whenever a commission is issued to any Court, the Court

issuing the same shall require the party applying for issue to pay
into Court before issue -

(a) where such witness is to be examined by a Court, the traveling

and other expenses likely to be incurred by the witness:

(b) in other cases, such additional sum also as it may consider

necessary for the employment of a legal practitioner by the Court
to which the commission is issued.

The Court issuing the commission may require the party

concerned to deposit such further amount as the Court to which
the commission is sent may lawfully require.

13. Commissioner’s responsibilities.

A Commissioner shall in his report always give reasons or

data on which he bases his opinion.

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A Commissioner shall not issue a copy of any map or report

prepared by him or of evidence taken by him or of any portion
thereof to any party.

14. Instructions to Commissioners:

The Court appointing a Commissioner for recording

evidence shall issue necessary directions regarding place and time
of holding the proceedings, the period for completion of the
proceedings and whether original record is to be given to the
Commissioner or only photocopies are to be given. The
Commissioner shall take proper care of the original documents.
The Commissioner may record remarks, if any, regarding
demeanour of any witness. The Commissioner shall have no
power to declare a witness hostile. If any party wants to declare a
witness hostile before the Commissioner, the party should seek
necessary permission from the Court.

15. Reciprocal arrangement with Jammu & Kashmir:

There is a reciprocal arrangement under which

Commissions or interrogatories can be issued by Civil Courts in
Jammu & Kashmir to Civil Courts in remaining part of India and
vice versa. Such Commissions should be exchanged through the
District Judges concerned. Rules have also been framed by the
High Court of Jammu & Kashmir in this regard which may be
looked into in the case of need. Letter of the request, instead of
issuing a commission, to examine a witness may also be issued.

16. Commissions to foreign Courts.

Letters of the request, commissions and other judicial

documents meant for foreign or Commonwealth countries shall be
sent through the Ministry of External Affairs and Commonwealth

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Relations, Government of India, New Delhi. Letters of Request

issued by a Court in India for the examination of witnesses in
foreign countries should be forwarded to Government for
transmission through the regular channel. Such Letters of
Request must be issued in English, and must be accompanied by
a list of interrogatories, in English, to be put to the witness, and
also by a translation, in the language of the Court in which it will
be executed, of the Letter of Request itself, of the interrogatories
and of any other documents which accompany the letter. In cases
in which the parties on both sides agree to be represented at the
examination of the witness in the Foreign Court, the Court
issuing the Letter of Request may, if it thinks fit, ask that the
agent of the parties be permitted to put such further questions to
the witness in examination and cross-examination as they may be
advised.

When issuing such Letter of Request, Courts in India should

observe the law in force in different countries affecting the
execution of commissions issuing out of the English Courts for
the examination of witnesses abroad.

When issuing such commissions the Court shall have such

funds deposited by the party at whose instance the commission is
issued, as may, in the discretion of the Court, be considered
sufficient to defray the expenses likely to be incurred by the
executing Court. An undertaking should also be taken from the
party concerned to pay such further sum as may be wanted by
the executing Court.

17. Commissions and letters of request for examination of

witnesses in foreign countries – party to the Hague
Convention, 1970.

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(a) Where the witness to be examined resides in a country

which is signatory to or has acceded to the Hague Convention on
Taking of Evidence Abroad in Civil or Commercial Matters, 1970
(in short, the Hague Convention, 1970), the Court shall issue
letter of request for examination of the witness to the Central
Authority of that country. Provision of the commission shall, in so
far as applicable, also apply to letters of request issued under this
rule.

However, if a commission is issued, there should be formal

order appointing a stated person to execute the commission.

Note: Detailed information regarding countries which are

signatories to this convention and the Central Authorities
declared by the signatory countries can be accessed at website
https://www.hcch.net/en/instruments/conventions/authorities1
/?cid=17.

(b) Where the witness to be examined is an Indian National, the

letter of request may be addressed to the diplomatic officer or
Consular agent of India in that country and he shall be competent
to take the evidence of that witness.

(c) The Hague Convention, 1970 contains all the details of the
process for issuing a letter of request for examination of a witness
and for execution thereof. The said Convention may, therefore, be
studied carefully and followed as and when the necessity arises.
All requirements of the said Convention should be meticulously
complied with while issuing the letter of request.

18. Examination of witnesses in other foreign countries:

(a) Instead of issuing a commission appointing an

individual to take the evidence of a witness in any other

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foreign country, letter of request addressed to the Judicial

Authority or Court of the foreign country concerned should
ordinarily be preferred being a more appropriate method.

(b) Commissions and letters of request for Myanmar

should be forwarded by the High Court directly to the High
Court, Yangon.

(c) Where the proper description of the foreign Judicial

Authority/Court concerned is not known, the letter of
request may be addressed to the 'Competent Judicial
Authority' in the concerned country.

(d) Foreign Courts should not be asked to collect evidence

themselves or to name and appoint experts to give evidence.

(e) Letters of the request in duplicate with enclosures

should be signed by the Judge or Registrar of Indian Court
and bear the official seal of the Court. A concise narrative of
the case and particulars of relevant documents and the
matter for which the witness is to be examined should be
stated.

(f) Letter of request or commission should be issued only

if the evidence of a person residing abroad is necessary. It
should not be issued in cases of a comparatively petty
nature.

(g) A sufficiently long date of not less than four months

may be fixed in expectation of the return of the execution of
the commission/letter of request.

(h) The party concerned should be asked to deposit

necessary amount (subject to adjustment later on) for
execution of the commission/letter of request keeping in

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view the volume of work. The amount should be remitted

directly by bank draft drawn in favour of the concerned
Executing Court in the foreign country, for which necessary
permission from the Reserve Bank of India by making an
application to any of its offices may be obtained.

(i) Commission/letter of request should (unless otherwise

provided) be forwarded through District Judge to the High
Court. Documents should be routed through diplomatic
representatives of India. However, in the case of Federated
Malaya State, Iran and Nepal, processes may be forwarded
directly by the Indian Courts.

(j) Commission or letter of request and accompanying

documents should be translated in duplicate in English and
in the language of the foreign country concerned and should
be typed or computer printed on superior paper.

(k) If parties are to be represented at the examination of

the witness, request be made in the letter of
request/commission for permitting the local agents of the
parties to appear and to submit questions to be put to the
witness. In other cases, interrogatories and cross-
interrogatories be sent. In an appropriate case, the authority
may be given to engage a lawyer for summoning the witness
and administering the interrogatories before the appropriate
Court.

(l) Preparation of letter of request/commission should not

be left to an official. The Presiding Officer should himself
carefully examine the same for its accuracy and
completeness before transmitting it to the High Court.

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19. Special procedure in regard to particular foreign

countries:

(a) Pakistan and Bangladesh:

Commissions or letters of request for examination of a

witness in Pakistan or Bangladesh can be addressed by Courts of
India to the District Judge or the Muffasil Court concerned.
Before transmitting the documents to the High Court, the District
Judge should see that all necessary requirements are satisfied by
the documents.

(b) Thailand: Letter of the request should be addressed to the

High Court of the Justice, Bangkok (or other Court having
jurisdiction) for taking of evidence on commission. It should be
sent through a Thai Foreign Officer. The letter of request should
be forwarded through the High Court.

(c) Iraq: Indian Courts are free to send processes for service to
the Iraqi Ministry of Justice directly. Such documents should be
accompanied by English translation.

(d) England

When a Court in India issues a commission, or a letter of

request under Section 77, Code of Civil Procedure, for the
examination of witnesses in England, the High Court in England
will itself appoint an examiner to take the evidence, if application
be made to it for the purpose. But the High Court in England
cannot act in any way unless put in motion by a proper
application; therefore, in every case in which it is desired to
obtain the appointment of an examiner by the High Court in
England the parties interested must instruct a solicitor to apply to
the High Court in England to make the necessary orders. The

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Court in India shall for this purpose make over the commission or
letter of request in Form No. 8 of Appendix H to the First
Schedule of the Code of Civil Procedure, which should be
addressed to ‘The Supreme Court of Judicature’, to the interested
party, whose duty it is to take all further necessary steps under
Section 1 of the Evidence by Commission Act, 1859 (22 Victoria,
cap. 20) and the Rules framed under Section 6 of that Statute
[(vide) Order 37, Rules 54 to 58, of the Rules of the Supreme
Court, 1883—Annual Practice, 1935, pages 681–684].

20. Letters of request and commissions issued by foreign

Courts.

(a) Letters of request for examination of any witness received

from countries who are signatories to or have acceded to the
Hague Convention, 1970 shall be governed by the provisions of
the said Convention.

(b) Letters of request/commissions for the examination of any

witness received from any other foreign country shall be governed
by Section 78 and Rules 19 to 22 of Order XXVI of the Code of
Civil Procedure.

21. No trial within trial

The appointment of Local Commissioner for inspection of

land or property in suit, under the provisions of Order 26 Rule 9
of CPC should normally be ordered, wherever required, after the
recording of evidence of the parties is complete. The objections to
the report of Local Commissioner should be called and disposed of
at the final stage of the case. The court should avoid trial within
trial by hearing first on the objections to the report of Local
Commissioner.

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22. Local inspections by Presiding Officers.

When the Presiding Officer of a Court considers it necessary

to make a local inspection he shall invariably during the
inspection or as soon as is convenient thereafter, record a note to
be placed on the file stating the purpose of the inspection and all
facts perceived or impressions received in the course thereof
which are likely to affect his decision in the case. This note shall
as far as possible be prepared in the presence of parties or their
counsel. Where this is not possible the parties or their counsel
shall be informed of it.

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Chapter-21
Judgment and Decree

1. Mode of recording the judgment.

The judgments and final orders, as the case may be shall be

typed or printed on a computer preferably with font Arial Narrow
in font size 12. The typing shall be in double space with margins
1” on top and bottom of the page and 1.7” on the left and 1” on its
right side. To each judgment shall be prefixed a heading
specifying the number of the case and the names of all the
parties.

No Court shall write a judgment or final order on the order-

sheet, or any paper already on the file, such as pleadings,
applications, objections, etc.

Provided that where the operative portion of the judgment is

announced in open Court, soon after the conclusion of the
hearing, such operative portion may be written or typewritten on
the order sheet and signed and sealed.

A judgment or order may be written or typewritten or

printed on the computer by the Judge, or may be recorded at his
dictation; but every page of the record of a judgment or order, not
in the handwriting of the Judge, shall be attested by the Judge’s
initials.

When a Presiding Judge uses a type-writing machine or

computer himself a certificate must be given that this has been
done and each page of the record so made shall be attested by his
signature.

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2. Provisions of C.P.C. to be given in certain judgments.

When plaints are rejected or returned, and in cases

disposed of without decree, as also in cases in which decrees are
passed without contest, the Judge shall put on record the Section
or Order and rule of the Code under which the judgment or order
is passed.

3. Reference of parties and witnesses in judgments and use

of abbreviations.

A reference to a party or a witness shall be by name and

number, and not merely by a number like P.W. 1 or D.W.1.
Judgments shall contain the terms in full and not in abbreviated
forms except where the abbreviations are well recognized and are
in common use, such as A.M., P.M., e.g., etc.

4. Judges may take records out of Courts.

Presiding Officers of Civil Courts may take records for

perusal or writing judgment to their residence but only under
proper entries made in a book kept for the purpose by the Reader
or other clerk having custody of the record at the time. Records
thus taken out of office must be returned as soon as possible.

5. Early pronouncement of judgment

When the trial in Court is over, the Judge should proceed at

once or as soon as possible to the consideration of his judgment.
When the judgment is to be pronounced on some future day, the
Judge should fix a date for that purpose with notice to the parties
or their counsel.

As per the instructions of the High Court, the judgment

should be pronounced in civil cases within 30 days of the

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conclusion of final arguments. Certificate that judgments have

been so pronounced within specified period should be given with
monthly statements. The explanation should be given for
judgments not pronounced within such period. A reader of the
Court shall maintain a register in the following format regarding
the cases reserved for orders and their disposal.

Monthly statement of Cases reserved for pronouncing

Judgment/Order for the month of __________in respect of Court of
______________

Serial Title Date on No. of such No. of cases Reasons for

no. of which the cases in in which not
the case is which Judgment/ pronouncing
Case reserved for Judgment/ Order could the
Judgment/ Order has not be Judgment/
Order been announced Order within
pronounced despite the the time
case having fixed
been heard
and reserved
for
pronouncing
the judgment
1. 2. 3. 4. 5. 6.

Courts should remember that delay in pronouncing

judgment gives rise to unnecessary suspicion or speculation and
the impact of oral argument also fades with the passage of time
and so also the memory regarding demeanour and characteristics
of the witnesses. Early pronouncement of judgment is, therefore,
advisable to arrive at a correct and proper conclusion. The
practice of not fixing a date for pronouncing judgment after the
conclusion of final arguments and keeping the file open-ended
and then writing some ante dated zimini orders while

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pronouncing the judgment belatedly is strongly deprecated and

should be discontinued at once, wherever it exists.

6. Directions regarding judgments

(i) Provisions of Section 33 and Order XX of the Code of Civil

Procedure relating to judgment and decree may be carefully gone
into and kept in view.

(ii) The judgment should be written in the English language.

(iii) Every page of the judgment is to be signed by the Presiding

Officer.

(iv) After the judgment has been written (type-written or

computer printed), it should be pronounced, dated and signed in
open Court, while pronouncing it.

(v) If the judgment is pronounced by dictation in open Court,

the transcript thereof should, after making necessary corrections,
be signed and dated by the Presiding Officer.

(vi) The operative part of the judgment should be clear and

precise, specifically stating the relief granted and the person
against whom it is granted and also necessary direction regarding
cost.

(vii) All paragraphs of the judgment should be serially numbered

to facilitate reference.

7. Reference to evidence

Wholesale reproduction of evidence in the judgment should

be avoided. Either a brief summary of the evidence may be given
after referring to pleadings and issues or preferably relevant
evidence may be referred to while recording reasons for findings
on various issues.

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The grounds of decision should be stated concisely as is

consistent with the introduction of all important matters. While
referring to the evidence of a witness in the judgment, the
reference should be by name as well as by a number of the
witness.

8 Procedure for handing over charge

Every Judicial Officer before handing over charge to proceed

on leave or transfer must sign a certificate that he has written
and pronounced judgments in all cases in which he had heard
arguments. Should an Officer be forced to lay down his charge
suddenly and if he has not written and pronounced judgment in
some cases in which he had heard arguments, he shall
nevertheless, write the judgments in such cases and send them
for a pronouncement to his successor.

9. Judgment to be written after disposal of cause list

The practice of writing judgments during the Court hours in

the early part of the day is to be deprecated except in case of
exceptional urgency. Judgments may be written after the day’s
cause list has been completed.

10. Information on cancellation of the registered

instrument.

When any registered instrument has been adjudged void or

voidable and the Court orders it to be delivered up and cancelled,
the Court shall, as per requirement of Section 31(2) of the Specific
Relief Act, 1963, send a copy of its decree to the concerned
Registering Officer, so that he may note the fact of cancellation in
his registration books.

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11. Information to departmental heads when necessary.

A Judge shall, after delivery of his judgment in any suit or

proceeding, inform the head of the department of any
circumstances personally affecting any public servant in that case

12. Civil powers to be disclosed

Every Judicial Officer hearing or deciding a civil suit,

proceeding or appeal should ensure that the record and the final
order or judgment and the decree in the case shall disclose the
civil powers which such Officer exercised in hearing or deciding
such case. The civil powers referred to hereinbefore are as under:

(a) District Judge

(b) Additional District Judge

(c) Senior Civil Judge

(d) Civil Judge

(e) Judge Small Cause Court

13. Directions regarding Decree

(i) Provisions of Order XX of the Code of Civil Procedure

relating to the preparation of decree may be carefully studied and
complied with while drawing decree.

(ii) The decree may be preliminary or final. The decree should

be framed by the Judge with most careful attention. It must agree
with the judgment, be complete in itself and precise and definite
in its terms. Nature and extent of the relief granted should be
clearly and distinctly specified. A Judge shall see that the decree
or formal order specifies clearly the relief granted or other
determination of the case and that the heading of the decree

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contains definite particulars of the claim. The practice of writing

‘decreed as prayed for’ in judgment and decree is strongly
deprecated and be discontinued forthwith. Decrees should be
drawn up in such a manner that, in order to the understanding
and execution of them, it may not be necessary to refer to any
other document or paper whatever.

(iii) In decree for possession of the agricultural land, it should

be stated whether possession is to be given at once or after the
removal of any crop standing thereon or on or after any specified
date.

(iv) The appellate decree should direct that the decree of lower
Court is affirmed, varied, set aside or reversed and should also be
complete in itself, specifying clearly and distinctly the relief
granted.

(v) The decree should be drawn expeditiously and in any case

within 7 days from the date of pronouncement of the judgment
and shall bear that date. The formal order may, however, be
drawn up only when a party applies for a copy of the formal order
or the Court so directs, within seven days from such application
or direction. After the decree or formal order has been examined
and the provisions of Order XX, Rule 21, have been complied
with, it shall be signed by the judge and the date of such
signature entered by him immediately beneath the signature. The
date of the decree is the date of pronouncement of judgment,
though drawn up on a later date.

(vi) Where rent or mesne profits are granted in a case, the

amount and period thereof must be determined at the hearing
and specified in the decree.

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(vii) Where different valuations are put for purposes of

jurisdiction and for payment of Court-fees, both values should be
stated in the decree. The amount claimed as mesne profits should
be separately shown. In the case of an appellate decree, the
valuation as given in the decree of the first Court should also be
embodied.

(viii) In case of compromise decree, the terms of compromise

should be clearly stated in the decree or written compromise itself
may be made part of the decree. Compromise decree can be
passed between the parties even if it goes beyond the subject
matter of the suit.

(ix) If during the course of the suit, any party is added, deleted
or substituted, it should be properly reflected in the decree sheet.

(x) Order XX Rule 14 of the Code relating to contents of pre-

emption decree should be carefully studied and complied. Sub-
rule (2) relating to the adjudication of rival claims to pre-emption
requires special attention.

(xi) In decree for specific performance of a contract for sale or

lease, if any amount is ordered to be paid by the plaintiff, the
period within which the payment is to be made, shall be specified
along with consequence of default.

(xii) Every decree must set forth the powers of the Officer
passing the decree.

(xii) Whenever an address has been filed for service by a party

under Order VII, Rules 19 and 22, or Order VIII, Rules 11 and 12
of the First Schedule to the Code of Civil Procedure, such address
shall be entered in the decree or formal order instead of the
address given in the plaint or petition. The words, “non-

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contesting”, shall also be written in a bracket against the name of

such defendant as has not appeared or has not filed a written
statement or after having filed written statement has failed to
appear and contest the suit at the hearing, as referred to in Order
V, rule 4-A and Order XXII, rule 4 (4).

(xiii) Every decree and order as defined in Section 2, of the Code

shall be drawn up in such a manner that in order to the
understanding and execution thereof, it may not be necessary to
refer to any other document or paper whatever, which is not made
part of the decree or order.

(xiv) In all cases in which the form of a decree has been

prescribed or indicated by statute, the decree shall be prepared,
as far as possible, in the form so prescribed.

(xv) In taxing costs the diet money of only such witnesses as are
actually examined shall be included unless the Court directs
otherwise. A party may file an affidavit stating the amounts spent
by him on any one or more of the items referred to in clauses (a)
to (f) of Order XX-A. Rule I of the Code of Civil Procedure, and the
Court may award such costs under these items as may appear to
be reasonable, the cost so awarded shall be taxed as costs in the
decree.*

Note: - This rule shall also apply to suits filed under rule 2 of
Order XXXVII C.P.C.

14. Award of Costs

(i) Provisions of Sections 35, 35A and 35B and Order XXA of
the Code relating to costs should be kept in view while awarding
costs in a suit.

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(ii) Costs are in the discretion of the Court but the discretion is
to be exercised judiciously. The general Rule is that costs follow
the event i.e. the costs of the successful party are to be paid by
the unsuccessful party. Order to the contrary should specify the
reasons for the same.

(iii) Costs may be disallowed to successful party and he may

even be saddled with costs of unsuccessful party. In this regard,
Rule 4 of Order XXIV of the Code may also be looked into.

(iv) Costs should be realistic. Costs include court fee stamps,

process fee/service expenses, expenses incurred in procuring
attendance of witnesses whether summoned through the Court or
not, expenses of Commissioner, if any appointed and advocate’s
fee as per Rules. The list is inclusive and not exhaustive.

(v) Special or compensatory costs for false or vexatious claim or

defence and for causing unnecessary delay may also be awarded
in appropriate case. The mere failure of a party to prove its claim
or defence may not justify granting of compensatory costs. The
maximum amount of compensatory costs is Rs. 3,000/-.

(vi) In drawing up decrees costs are to be very carefully

calculated. Where “proportionate costs” 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. When “corresponding
costs” or “costs according to success” are decreed, the assessment
is to be made as if the suit had been originally brought at an
amount representing the value of the successful part of the claim.

(vii) Without prejudice to the generality of the provisions of the

Code of Civil Procedure relating to cost, costs in respect of items

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specified in Order XXA, Rule 1, C.P.C. shall form part of the costs
of the case unless otherwise directed by the Court.

15. Award of Interest

(i) Provisions of Section 34 of the Code and of the Himachal

Pradesh Debt Reduction Act, 1976 and the Usurious Loan Act,
1918 relating to interest may be carefully studied and kept in
view.

(ii) Interest for pre-suit period is governed by common law or

specific statutory provision or mercantile usage or agreement
between the parties.

(iii) Section 34 of the Code provides for pendente lite and future
interest. Regarding pendente lite interest from the date of suit to
the date of decree, discretion is vested in the Court to award
interest at reasonable rate. The discretion should be exercised
judiciously.

In drawing up decrees interest, if any, allowed by the Court

should be clearly shown and also the period for which and the
rate at which interest has been allowed.

Future interest from the date of decree till payment cannot

be exceed 6% per annum except in the case of commercial
transaction in which case rate of future interest may exceed 6%
per annum but shall not exceed the contractual rate of interest or
in the absence of contractual rate, the rate at which monies are
lent or advanced by the Nationalized Banks in relation to
commercial transactions.

(iv) Interest cannot be awarded on the amount of costs.

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(v) Contractual rate of interest should not be reduced for pre-

suit period merely on the ground of being excessive unless it is
found to be penal in nature or substantially unfair.

However, the Court has the discretion to reduce the

contractual rate of interest even for the pre-suit period in an
appropriate case.

16. No decree to be drawn up in certain cases

Decrees or formal orders need not be drawn up in the case

of—

(i) Interlocutory orders made during the course of a suit or

execution proceeding.

(ii) Final orders such as those under Order IX, Rules 9 and 13,
Order XXI, Rules 2, 58, 91, 92, 99, 100, 101, Order XXIII, Rule 1,
Order XLI, Rules 19, 21, 23, Order XLVII, Rule 1, and an order
rejecting a plaint.

Provided that where any such order is capable of execution

or affects execution by reason of cost to be paid by one party to
the other such costs may be shown in the order-sheet with a
short note showing the result of the case and the name of the
party by whom such costs are to be paid as well as that of the
party who is to receive the same so that the latter, if desirous of
executing the order may not be compelled to take a copy of the
judgment.

In suits for money including suits upon mortgage, in suits

for specific movables, in suits for accounts and in suits for arrears
of rent no decrees need be drawn up, if—

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(i) neither party has to recover anything unless the Judge

otherwise directs;

(ii) the claim is satisfied after judgment but before the decree is
drawn up.

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Chapter 22
Execution of decrees

1. General

It is aptly said that trouble of a litigant starts when the

decree is passed in his favour, although it is a disgrace to the
system of administration of justice. It is the duty of all Judicial
Officers executing decrees (including orders or awards executable
as decrees) to remove this blot from the face of the system. The
decree-holders face trouble in execution proceedings because the
Judicial Officers do not pay necessary personal attention to the
execution proceedings. The practice of leaving the execution
proceedings to Execution Clerk or other official is strongly
deprecated and is required to be discontinued forthwith. Judicial
Officers must pay personal attention to the execution proceedings
to ensure that the decrees are executed expeditiously in
accordance with law. Every presiding Judge shall see that
execution cases are not neglected or needlessly prolonged but
disposed of with the same care and regularity as original suits.
Sufficient time should be allowed for the execution of all
processes, warrants, and orders issued. Processes and orders
ordered to be given dasti to a party or counsel shall be promptly
prepared and given out the same day. The Judge shall see that
the orders issued by him are carried out: and frequent or habitual
carelessness, unpunctuality or procrastination in the execution
department should be adequately punished. If the decree is not
executed expeditiously, it results in great dissatisfaction to the
decree-holder and brings disrepute to the system, besides
resulting in a miscarriage of justice.

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In order to ensure prompt attention to the execution

petitions, it has been stipulated that every working Saturday
should be reserved exclusively for execution work, besides some
other miscellaneous work, or a little of regular work if necessary,
with the consent of parties or their counsel. If the Judicial Officers
do not have much of the other work on that day, they would be
able to devote time and attention to the execution work which is
very essential.

2. The provisions of CPC

Provisions of Sections 36 to 74, 82, 135 and 135-A and

Order XXI of the Code of Civil Procedure as amended by the High
Court are required to be studied carefully and refreshed
periodically and require careful consideration. Some of the said
provisions which are important or are commonly unknown but
useful would be dealt with in this Chapter.

3. Recording of orders in execution.

All orders in execution cases shall be recorded on the order

sheet in consecutive order with serial number prefixed and all
such orders shall be legibly signed and dated by the Judge.

4. Duty of District Judges

District Judges are responsible to ensure that proper

arrangements are made for execution work by all Courts
subordinate to them. They should also ensure proper distribution
of execution work amongst the Subordinate Courts. They should
also provide for execution of decrees passed by Officers whose
Courts have ceased to function in the District and for execution
proceedings already pending in such Courts. Ordinarily, the
Court passing the decree should be required to execute the same.

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District Judges should exercise close supervision and control to

see that execution work is not neglected in Courts subordinate to
them and also to see that execution petitions are not disposed of
in a perfunctory manner. If any Officer does so habitually, District
Judge may report it to the High Court.

5. Stay of Execution

(i) The filing of an appeal from a decree is by itself no bar to its

execution unless it is stayed by the Court which passed the
decree or by the Appellate Court.

(ii) All applications for stay of execution should be treated as

urgent.

(iii) Where an order for sale of immovable property in execution

of a decree is made during pendency of an appeal from such
decree, the Executing Court, on application of the judgment-
debtor, is bound to stay the sale although it can impose such
terms and conditions as to security or otherwise as it deems fit,
until the appeal is disposed of (Order 41, Rule 6 (2) of the Code).

(iv) Where execution of a decree is stayed by transferee Court

under Order 21, Rule 26 of the Code to enable the judgment-
debtor to obtain a stay from the Court passing the decree or from
Appellate Court, the judgment-debtor has to be required to
furnish security or to comply with other suitable conditions.

6. Money realized to be accounted for

To prevent defalcation or embezzlement, Presiding Officer

should personally verify by examining the previous warrants that
any money previously realized by the execution bailiff or process
server has been duly accounted for in the Nazir's account.

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7. Immediate execution before transfer of decree

As per amendment made by the High Court in Order 21,

Rule 10 of the Code, a decree-holder may apply to the Court
within whose jurisdiction the judgment-debtor is, to order
immediate execution on the production of the decree and an
affidavit of non-satisfaction, pending the receipt of an order of
transfer of the decree to that Court for execution.

8. Transmission of decrees transferred

In view of the amended provision of Order 21, Rule 5 of the

Code, where the decree is to be sent to another Court for
execution, the Court which passed the decree shall send it
directly to the transferee Court of competent jurisdiction whether
or not situated in the same District or same State. The Transferee
Court of competent jurisdiction is to execute the decree as if it
had been passed by it. The transferee District Court may also
send the decree for execution to any subordinate Court of
competent jurisdiction.

9. Certificate of execution

The transferee Court is required to send a certificate

showing the extent of execution or non-execution of the decree to
the Court which passed the decree, along with circumstances of
non-execution. Particulars of the extent of execution should be
entered in the Register of civil suits of the Court passing the
decree to avoid double execution.

10. Register of decrees sent or received by transfer

Entry of decrees sent or received by transfer is required to

be made in the relevant prescribed Register with necessary
particulars to maintain proper record thereof.

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11. Procedure on receipt of a decree from another Court.

(1) A decree received for execution from the High Court or from
a Court subordinate to the High Court shall be entered in the
register of applications for execution of decrees and orders. It
shall on receipt be laid before the Court which will pass an order
more or less to the following effect, “Let this be put up on this day
year, or earlier if an application is received for execution.” As soon
as an application for execution of the same is made, along with
such application the documents mentioned in O.XXI. r. 6, shall be
laid before the Court and the Court to which the decree is sent
shall proceed to execute the decree.

The record of proceedings shall be returned to the Court by

which the decree was sent for execution:-

(a) when the decree has been executed, wholly or in part,

by the Court to which it has been sent;

(b) when the decree is found for any reason to be

incapable of execution, or

(c) if no application is made for execution, after the expiry

of one year from the date on which the decree was received.

In the case of (b) or (c), a statement explaining the reason

for the return of the record shall be sent along with the file. In no
case shall such file be consigned to the record room of the Court
to which the decree has been sent for execution. The Court by
which the decree was sent for execution shall, on receiving back
these papers, cause them to be filed with the application of the
decree-holder for execution.

(2) A similar procedure shall be followed when a decree is

received by the District Judge for execution from a Court not

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subordinate to the High Court except that the District Judge may
send the decree together with the application for execution to a
Court subordinate to him which shall, after the execution has
been carried out, return the papers to the District Judge. The
District Judge shall consign the papers to the record room of his
Court certifying the results to the Court which passed the decree
as required by Section 41 of the Code.

(3) According to section 44A of the Code, a decree of any of the

superior Courts of any reciprocating territory may be executed as
if it had been passed by the District Court, in accordance with the
procedure provided therein.

12. Copy of decree need not accompany execution

application.

The application for execution of a decree need not be

accompanied by a copy of the decree sought to be executed. But
an application for an order for sale under O. XXI, r. 66(3) of the
Code, shall invariably be accompanied by a verified statement
containing all information the decree-holder can ascertain from
the Collector‘s registers and all other sources bearing upon the
matters specified in sub-rule (2) of O.XXI, r. 66.

13. Mode of execution

(i) Out of various modes of execution provided by Section 51 of

the Code, the methods specified in clauses (a), (b) and (c) i.e. by
delivery of property, decreed, by attachment and/or sale, and by
arrest and detention in civil prison alone are commonly resorted
to and found adequate. Appointment of receiver for execution
should be resorted to only in rare suitable cases having regard to
the facts thereof.

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(ii) In execution of a decree for specific performance, restitution

of conjugal rights or injunction, the period of attachment of
property of judgment-debtor stipulated in Order 21, Rule 32 sub-
rules (3) and (4) has been reduced to three months by the
amendment made by the High Court.

(iii) An Executing Court cannot go behind the decree or question

the jurisdiction of the Court which passed it. The decree has to be
executed as it stands. However, to ascertain its true meaning if
the decree is ambiguous, Executing Court may refer to the
judgment.

(iv) There is an exception to the aforesaid rule. Where the decree

is a nullity for lack of inherent jurisdiction in the Court passing it,
its validity can be challenged in execution proceedings.

(v) In view of Section 47 of the Code, all questions relating to

execution, discharge or satisfaction of the decree arising between
the parties to the suit or their representatives have to be decided
by the Executing Court and not by a separate suit. A purchaser of
property at a sale in execution of the decree is deemed to be a
party to the suit for this purpose and all questions relating to
delivery of possession of such property to such purchaser are also
to be decided by the Executing Court.

(vi) In view of new sub-section (4) of Section 39 of the Code, the

Court passing a decree is not authorized to execute it against any
person or property outside the local limits of its jurisdiction.

14. Scrutiny of execution application

On execution application being filed, the Court shall

scrutinize it to see that all requirements of Order XXI Rules 11,
11A, 12, 13 and 14 of the Code have been duly complied with.

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The application should state distinctly the mode in which the

assistance of the Court is sought. The proceedings should be
confined to that mode including amended mode if any. Special
care should be taken that for attachment of immovable property,
specification and verification required by Order XXI Rule 13 of the
Code have been furnished. In case of agricultural land, a copy of
jamabandi may be ordered to be produced.

15. Limitation

According to the Article 135 of the Schedule to the

Limitation Act, 1963, limitation period for execution of a decree
for a mandatory injunction is three years whereas according to
the Article 136, the limitation period for execution of any other
decree or order is 12 years. However, there is no limitation period
for filing application for execution of a decree for a permanent
injunction. These provisions need the careful attention of the
Courts. Subsequent applications for execution have to be filed
within 3 years of the date of final order passed on a previous
execution application made to proper Court in accordance with
law.

16. Procedure on execution application.

If the execution application is in order and within limitation,

the Court shall cause the application to be entered in the proper
register and also note thereof being made in the register of civil
suits and then proceed to execute the decree in accordance with
law Order XXI Rule 17(4) of the Code. Courts should not insist on
the filing of a copy of decree with execution application filed in the
Court passing the decree because necessary information
regarding decree can be obtained from the register of civil suits

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and if necessary, by summoning and examining the original

decree.

17. Court to ascertain the amount due.

When in the course of execution proceedings, it is necessary

to ascertain the amount of money which is or remains due, the
Judicial Officer shall himself ascertain the same and should not
rely on mere notes or calculations made by ministerial officers.

18. Mode of certifying under O. XXI. r. 2.

A certificate in the form given below may be presented under

O. XXI, r. 2(1) of the Code to the Court without any formal written
application. Such certificate need not be stamped. Should the
certificate accompany a formal written application, such
application shall be stamped under H.P. Court Fees Act, but the
stamp shall not be charged as costs against the judgment –
debtor. The form of the certificate shall be as follows:

FORM

IN THE COURT OF THE.......................... OF

Plaintiff

Versus

Defendant

Suit No. of 19

Certified by decree-holder under O. XXI, r. 2(1) of Act No. V of

1908.

I, ....., decree-holder, certify to the Court payment or adjustment

in the following terms of the amount of Rs. .. in the above suit by
.. on the ......

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Date: Decree-
holder

19. Several Decree-holders.

Where execution application is filed under Order XXI Rule

15 of the Code by one or more out of several decree-holders,
notice thereof should be given to the remaining decree- holders.
Such an execution application should be for execution of the
entire decree and for the benefit of all the decree-holders.
However, where the decree is severally in favour of more persons
than one, specifying what each is entitled to, there may be
execution applications for partial execution by each decree-holder
regarding his entitlement.

20. Transferee

If execution application is filed by transferee from the

original decree-holder by an assignment in writing, notice thereof
must be given to the transferor and the judgment - debtor, and
the Court cannot grant the execution application unless it is
satisfied, after giving opportunity of hearing to the transferor, and
the judgment-debtor, that the transfer has in fact been effected.
Where such application is granted, the name of the transferee
applicant should be ordered to be recorded as decree-holder
instead of the original decree-holder.

21. Process fees for notice in execution cases.

The process-fee for the issue of notice either under rule 16

or rule 22 of O.XXI shall be paid when the application for
execution is presented. After service of notice if the Court directs
execution to issue, the fee for attachment or arrest, as the case
may be, shall be paid promptly and if the judgment debtor’s

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property is, after the attachment, ordered to be sold, the

necessary sale fees shall be deposited.

22. Process fees deposited in previous execution not to be

used in the later execution.

When an application for execution of a decree has been

disposed of and a fresh application is made the process – fee
deposited in connection with the previous execution and not
spent shall not be utilized for the issue of a fresh process.

23. Notice to judgment-debtor

If execution application is made more than two years after

the date of the decree and also in some other cases mentioned in
Order XXI Rule 22(1) of the Code, the Court must first issue
notice to the judgment-debtor, unless the case falls within proviso
to the said sub-rule or service of notice is dispensed with under
sub-rule (2) of the same Rule. The Court also has discretion to
first issue a notice to the judgment-debtor in appropriate cases
even when execution application is filed within two years from the
date of the decree.

24. Attention to Service of process

The attention of the Court is invited to Rules 24 and 25 of

Order XXI of the Code. If the process is not executed, the court
should not blindly accept the report of the process. The Court
should satisfy itself regarding reasons for its non-execution and
should pass appropriate orders. It will eliminate unnecessary
delay in the execution proceedings.

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25. Address for service

Service on any party in execution proceedings shall be

deemed to be sufficient if it is effected at the last registered
address of the party under Order VI Rule 14A of the Code.

26. Period of pendency

If the decree-holder has realized his instalment or obtained

the satisfaction asked for in the execution application, the
execution application should be disposed of as satisfied or partly
satisfied, as the case may be. Similarly, if the applicant does not
take necessary steps to prosecute his execution application, it
should be dismissed as unsatisfied or partly satisfied, as the case
may be.

27. Attachment of money due to judgment-debtor

If money due to the judgment-debtor from some third

person is attached in execution proceeding, such third person
(garnishee) should be issued notice requiring him to remit the
said due amount or the decretal amount, whichever is less, to the
Executing Court for being paid to the decree-holder or to show
cause why he should not do so.

28. Arrest and Detention

(i) Provisions of Sections 51, 55 to 59, 135 and 135-A and

Order 21, Rules 21 and 37 to 40 of the Code need to be studied
and observed very carefully because arrest and detention of a
person in prison in execution proceedings is a very serious matter
impinging on his precious personal liberty.

These provisions contain procedural safeguards and are

required to be meticulously complied with before ordering the

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arrest and/or detention of a person in prison in execution

proceedings.

(ii) Section 56 of the Code provides for exemption of a woman

from arrest or detention in the execution of a money decree.
Sections 135 and 135-A of the Code provide for the exemption of
Judicial Officers, Members of Legislatures and some other
persons from arrest and detention in execution proceedings, in
some circumstances only. Exemption or release from
arrest/detention may also be claimed on the ground of illness as
per Section 59 of the Code, but such person may be rearrested.

(iii) Section 55 (3) of the Code inter alia stipulates that a

judgment-debtor, on being brought before the Court after arrest
in execution proceedings, shall be informed that he may apply to
be declared as insolvent and may claim discharge on the
satisfaction of necessary conditions. Decree-holder has to pay
subsistence allowance for the judgment-debtor from the time of
arrest till being brought before the Court and also has to pay
monthly subsistence allowance in advance for the current month
in Court and subsequently to prison in charge for the period of
detention in civil prison as required by Order 21 Rule 39 of the
Code. Such amount paid by the decree-holder shall be deemed to
be costs in the suit.

Or

Decree-holder has to pay subsistence allowance for arrest and

detention of the judgment-debtor as detailed in Order XXI Rule 39
of the Code. Such amount shall be deemed to be costs in the suit.

(v) Warrant of arrest should be held in suspension/abeyance

during the summer vacation. Decree-holder has to pay

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subsistence allowance for arrest and detention of the judgment-

debtor as detailed in Order, XXI Rule 39 of the Code. Such
amount shall be deemed to be costs in the suit.

29. Execution by delivery of immovable property.

(i) Provisions of Order XXI Rules 35 and 36 of the Code lay

down the procedure for delivery of possession of the immovable
property in a different situation, in execution proceedings. The
same has to be followed.

(ii) Before issuing a warrant of possession for the delivery of

immovable property, the Court should ascertain from the decree-
holder or his agent, the name of the person whom he believes to
be in possession of such property, to guide it in selecting the
particular mode of delivery suitable to the case.

(iii) Where such property is in possession of judgment-debtor or

any person claiming through or under him, he may be called
upon to vacate the property and on his refusal, he may be
removed from the property. If necessary, possession may also be
delivered by breaking open any lock or bolt or door or by doing
other necessary act for putting the decree-holder in possession,
after giving reasonable warning to the occupants and time and
facility to them to withdraw from the property. Necessary details
of the manner of delivery of possession should be recorded in the
report of the Bailiff on the warrant.

(iv) Where the decree is for joint possession of immoveable

property, or if the property is in the occupancy of a tenant or
other person entitled to occupy it and not bound by the decree to
relinquish the possession, possession should be delivered by
affixing a copy of the warrant in some conspicuous place on the

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property, and by proclamation by beat of drum to the occupant at

some convenient place, the substance of the decree and the
factum of execution of the warrant of possession, as required by
Order XXI Rules 35 and 36 of the Code. Necessary details of the
manner of delivery of possession, including the part of the
property where a copy of the warrant was affixed and the place
where the proclamation was made should be recorded in the
report of the Bailiff on the warrant of possession.

(v) When a decree is for giving possession of agricultural land,

the date on which possession is to be delivered should always be
specified in the decree along with necessary order regarding
standing crop, if any, on the land, but if it has not been done in
the decree, it should be done in the warrant of possession to be
sent to the Collector by the Executing Court. If it is not so done,
the Collector should refer the matter back to the Executing Court
for necessary instructions.

30. Attachment

(i) The law as to attachment is contained in Sections 60 to 64

and Order XXI, Rules 41 to 57 of the Code read with Section 153
of the Himachal Pradesh Land Revenue Act, 1953 which may be
carefully gone into.

(ii) Not more than one-fourth of the agricultural produce of a

judgment debtor shall be liable to attachment in execution of a
decree in view of section 10 of H.P. Debt Reduction Act, 1976

(iii) The proviso to Section 60 of the Code exempting certain

properties from attachment and sale in execution of a decree
needs special attention.

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31. Mode of attachment of immovable property.

(i) The immovable property should be attached in accordance

with the procedure laid down in Order XXI, Rule 54 of the Code.
In case of land paying revenue, three copies of the prohibitory
order shall be prepared whereas in other cases, only two copies
are necessary. The details of property given in the schedule to the
prohibitory order shall be identical with those given in the
warrant.

(ii) The warrant together with the requisite copies of the

prohibitory order shall be delivered to the Nazir who will depute
the bailiff to make attachment by complying with all legal
requirements. The bailiff shall return the warrant with a detailed
report stating the manner, date and hour of making the
attachment.

(iii) Warrant of attachment of land paying revenue should be

addressed and sent to the Collector as required by Section 153 of
the Himachal Pradesh Land Revenue Act, 1954 along with the
copies of prohibitory Order. The Collector and his office then will
be responsible for executing it in accordance with specified legal
formalities. Entry of attachment shall also immediately be made
in the last jamabandi with red ink in the column of remarks. The
Collector will return the warrant after execution to the Court
concerned with an endorsement certifying that all legal formalities
for attachment have actually been complied with.

32. Serving officers’ endorsement on warrants.

The officer executing a warrant of arrest or attachment shall

endorse on the warrant the fact of satisfaction of the decree in
whole or in part only when the amount is paid to such officer

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himself or paid to the decree-holder in his presence or payment of

the amount is admitted by the decree-holder or his recognized
agent in writing. The Court shall then fix a date for recording the
reported satisfaction of the decree. Due notice of date shall be
given to the decree-holder or his counsel. The notice will be issued
without any process fee and be served like a summons. If the
decree-holder or his counsel does not appear in spite of sufficient
service, the Court shall record the decree satisfied to the extent of
the payment so made or admitted by the decree-holder or his
agent to have been made.

33. Scrutiny of attachment report.

It is impressed on the Civil Courts to carefully scrutinize the

service/report of a warrant of attachment before further action for
sale of the attached property is taken. The Court should satisfy
itself that all legal formalities necessary for attachment have been
complied with.

Failure to comply with the same may sometimes constitute

material irregularity and may thereby cause very serious trouble,
loss or prejudice to the parties later on. The Reader or Ahlmad
should be required to record a note on the file that all the legal
formalities for attachment have actually been complied with. The
Judge should carefully scrutinize such note and then pass
appropriate order.

34. Precept

Section 46 of the Code provides for the issuance of a precept

by the Court passing a decree to another Court to attach the
property of judgment-debtor Courts should be aware of this

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provision which is of great utility for decree-holder in an

appropriate case.

35. Effect of dismissal of execution petition

In view of amended rule 57 of Order XXI of the Code,

Executing Court while dismissing the execution application is
required to direct whether the attachment shall continue or cease
and to also mention the period up to which the attachment shall
continue or the date on which the attachment shall cease. If no
such order is passed, the attachment shall be deemed to have
ceased.

36. Exemptions to public servants:

Notification No. 186/37 dated the 2nd October 1940 issued

by the Central Government in the exercise of the power conferred
by Clause (l) of the proviso to 60 (1) of the Code may be looked
into by the Courts which have exempted the following allowances
being paid to any public officer in the service of the said
Government, or any servant of a Federal Railway or of a
Cantonment authority or of the port authority of a major port,
shall be exempt from attachment by order of a Court, namely:
(1) All kinds of travelling allowances.

(2) All kinds of conveyance allowances.

(3) All allowances granted for meeting the cost of:

(a) Uniforms; and

(b) Rations.

(4) All allowances granted as compensation for the higher cost of

living in localities considered by Government to be expensive
localities including hill stations.

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(5) All house rent allowances.

(6) All allowances granted to provide relief against the increased

cost of living.

(7) A foreign allowance or, in the case of heads of Diplomatic

missions, frais de representation, assigned to an officer serving in
posts abroad.

37. Officer to whom notices of attachment of salary etc.

may be given under Order XXI, Rule 48—

In pursuance of sub-rule (1) of Rule 48 of Order XXI of the

First Schedule to the Code of Civil Procedure, 1908 (V of 1908),
the Central Government hereby appoints the officers specified in
column 1 of the table below as officers to whom notices of orders
attaching the salaries and allowances of the officers specified in
the corresponding entries in column 2 of the said table shall be
sent.

Table

Serial Officers to whom Officers whose salaries

Number Notice should be sent and Allowances are
attached

1 Accountant-General, Ministry of Finance

Central Revenues, New (Defence), Gazetted Officers
Delhi

2 Assistant Financial Non-Gazetted Officers

Adviser, (Establishment),
Ministry of Finance
(Defence), New Delhi

3 Controller General of Office of the Controller

Defence Accounts, New General of Defence
Delhi Accounts, New Delhi
Gazetted and Non-Gazetted

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Serial Officers to whom Officers whose salaries

Number Notice should be sent and Allowances are
attached
Officers

4 Controller of Defence Organization of the

Accounts, Eastern Controller of Defence
Command, Meerut Accounts, Eastern
Command, Meerut Gazetted
and Non-Gazetted Officers

5 Controller of Defence Organization of the

Accounts, Western Controller of Defence
Command, Meerut Accounts, Western
Command, Meerut Gazetted
and Non-Gazetted Officers

6 Controller of Defence Organization of Controller of

Accounts, Southern Defence Accounts, Southern
Command, Poona Command, Poona Gazetted
and Non-Gazetted Officers

7 Joint Controller of Organization of the Joint

Defence Accounts, Patna Controller of Defence
Accounts, Patna Gazetted or
Non-Gazetted Officers

8 Controller of Defence Organization of the

Accounts, (other ranks), Controller of Defence
Secunderabad Accounts (other ranks),
Secunderabad Gazetted or
Non-Gazetted Officers

9 Controller of Defence Organization of the

Accounts (Officers), Poona Controller of Defence
Accounts (Officers), Poona
Gazetted or Non-Gazetted
Officers

10 Controller of Defence Organization of the

Accounts (Pensions), Controller of Defence
Allahabad Accounts (Pensions),
Allahabad Gazetted or Non-

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Serial Officers to whom Officers whose salaries

Number Notice should be sent and Allowances are
attached
Gazetted Officers

11 Controller of Defence Organization of the

Accounts (Factories), Controller of Defence
Calcutta Accounts (Factories),
Calcutta) Gazetted and Non-
Gazetted Officers

12 Controller of Defence Organization of the

Accounts (Air Force), Controller of Defence
Dehra Dun Accounts (Air Force), Dehra
Dun Gazetted and Non-
Gazetted Officers

13 Controller of Defence Organization of the

Accounts (Navy), Bombay Controller of Defence
Accounts (Navy), Bombay
Gazetted and Non-Gazetted
Officers

(Government of India, Ministry of Finance (Defence), Notification

No. S.R.O. 1417, dated the 15th June, 1956.)

38. Claims and objections

(i) Claims to attached property or objections to attachment of

property made under Order XXI Rule 58 of the Code are
frequently responsible for the long delay in disposal of execution
cases. Such objections are at times collusive or frivolous on the
face of it and should be scrutinized with care and disposed of
promptly.

(ii) Under proviso to Order XXI Rule 58 (1) of the Code, the
Executing Court shall not entertain any such claim or objection in
the circumstances mentioned in the proviso, with liberty to the
aggrieved party to file suit to establish his alleged right.

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(iii) When claim or objection is entertained by the Executing

Court, all questions including questions relating to right, title or
interest in the attached property have to be adjudicated by the
Executing Court and not by a separate suit. The order of
adjudication has the same force and is subject to the same
conditions as to appeal or otherwise as if it were a decree.

39. Custody and disposal of attached movable property

For proper custody and disposal of the movable property

attached (other than agricultural produce), provisions of Order
XXI Rules 43 to 43D of the Code lay down the necessary
guidelines and are required to be kept in view.

40. Valuable and portable property

(i) Light and readily portable articles of all kinds and especially
valuable property of small bulk, such as jewels etc., shall after a
seizure on attachment, be taken to the Executing Court and made
over there to the custody of such officer as the Court may direct.

(ii) If such property is placed in the custody of the Nazir, he

may place it in his cash chest and lodge in the outer room of
Treasury, if it is open, and if the Treasury is closed, the Presiding
Officer of the Executing Court must make other suitable
arrangements for its safe custody.

41. Form of Schedule of Property

The Schedule of property to be annexed to the bond which is

to be furnished by a custodian of attached moveable property
must be in the following form:-

Schedule of the property attached.

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Schedule of the property attached and made over to

........................, son of.......................resident of
...........................................as custodian on the .................. of
................................20.................

Detail of Property Estimated value.

Total...............................

........................

Sd/..................... Sd/-.........................

Witness. Custodian.

Sd/- -----Surety of Custodian Sd/---------Surety of

Custodian

Sd/..................... Sd/-.........................

Witness. Attaching Officer.

Sd/-.........................

Judgment-debtor.

(TO BE PRINTED ON THE REVERSE OF THE FORM)

Directions in regard to attached property.

I. No person can be compelled by the Court or attaching officer

thereof to take charge of attached property as a custodian.

II. A custodian may at any time terminate his responsibilities

by giving notice to the Court of his desire to be relieved of his
trust and delivering to the proper officer of the Court the property
made over to him.

III. When any property is taken back from a custodian, he

should be granted a receipt for the same.

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IV. When property is made over to a custodian, schedule of

property should be drawn up by the attaching officer in triplicate,
dated and signed by-

(a) the custodian and his sureties;

(b) the officer of the Court who made the attachment;

(c) the person whose property is attached and made over;

and

(d) two respectable witnesses.

One copy will be transmitted to the Court by the attaching officer

and placed on the record; one copy will be made over to the
person whose property is attached and one copy will be made over
to the custodian.

V. (a) In regard to livestock the following directions apply:-

The custodian is bound to take all reasonable and proper care of

any live-stock entrusted to him.

(b) The custodian is responsible for the value of any

livestock which he fails to deliver to the Court or its authorized
officer when required so to do. If any livestock is lost or stolen or
dies while in the hands of a custodian, such custodian is bound
to satisfy the Court that its loss or death was not due to his fault
or neglect.

(c) If the judgment-debtor or any person claiming to be

interested in any attached animal has been permitted to make
arrangements for feeding the same (not being inconsistent with its
safe custody, while it is under attachment), he may, in the case of
poultry, milk cows, etc., take the eggs, milk, etc.

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(d) A note shall be added on the Schedule to show the

arrangements made for proper upkeep of the attached livestock
i.e. whether it is to be fed by the custodian or by the judgment-
debtor or by any other interested person, consistent with its safe
custody.

42. Property liable to deterioration

If the property is of such a nature that its value will

deteriorate unless special arrangements are made for its storage
or for carrying out some preparatory process during the period of
attachment, the necessary arrangement shall be made and noted
at the foot of the schedule; provided that, if in such cases the
judgment-debtor and decree-holder agree in writing to the
immediate sale of the property, the officer shall proceed to sell it
by auction forthwith, after giving such notice to intending
purchasers as the circumstances of the case allow.

43. Approval of Court

(i) All arrangement under the aforesaid rules shall be made

subject to the approval and confirmation of the Executing Court.

(ii) If the arrangements made by the Attaching Officer are

modified by the Executing Court, a note of the modifications shall
be made on the schedule and signed by the persons who signed
the original schedule or a fresh schedule shall be prepared in the
manner provided hereinbefore as the Court may direct.

44. Release of Property

If the Court directs the release of the property, in whole or

in part, the articles released shall be made over to the person to
whom the Court orders them to be delivered, by an officer of the
Court, in the presence of the custodian, judgment-debtor and the

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witnesses mentioned; or, if their presence cannot be conveniently

obtained, two other respectable witnesses.

45. Reclamations

If any reclamations are then made, a note of such

reclamations shall be made at the time by the officer of the Court,
and such note shall be signed by the person making them. The
statements of the custodian and witnesses shall, likewise, be
recorded on the subject by the officer of the Court, and shall be
signed by such custodian and witnesses.

46. Liability of Custodian

A custodian of attached moveable property shall be liable to

be proceeded against as a surety under Section 145 of the Code
and shall if a criminal breach of trust is found, be also liable to be
prosecuted for that offence.

47. Property not left in local custody.

If the attached moveable property is not left in local custody,

the attaching officer should, as far as possible, be careful to
attach the property in the presence of two respectable of the
locality where the attachment is made and to draw up a schedule
of the property attached and to procure their signatures to it.

Sale of Property

48. References

The provisions of the Civil Procedure Code, on the subject of

sales, are contained in Order XXI Rules 64 to 106 as amended by
the High Court. Rules 64 to 73 deal with ‘sale generally’; Rules 74
to 81, with ‘sale of moveable property’; and Rules 82 to 106, with
‘sale of immovable property’. These provisions are required to be

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carefully studied and observed to avoid any irregularity or

illegality in conducting the sale in execution of the decree.

49. Application for sale

Every application for an order for sale shall in addition to

the particulars required by Order XXI, Rule 66, clause (3), state
everything known or believed by the person verifying the same to
exist which relates to the nature or affects the value of the
property and shall further state that he is not possessed of any
further information regarding it.

Every application for the sale of immovable property shall,

in addition to other particulars required, state the area of the land
involved.

50. Settlement of proclamation of sale.

Rules for the sale of revenue paying or revenue free land or

interest therein are prescribed in the next part. In case of any
other property, the Court shall fix a short date for ascertaining
the particulars specified in Order XXI Rule 66(2) of the Code and
for settling the proclamation of sale after giving the opportunity of
hearing to the parties or their Advocates.

51. Enquiry as to encumbrances

In case of immovable property, the Court may, to prevent

fraud, call upon the concerned Sub-Registrar to search his
registers and report, before the next date of hearing, as to whether
the property is subject to any encumbrance, provided that the
decree-holder is willing to pay the necessary search fees at the
rates prescribed by notification of concerned Government. The fee
amount will be deposited in Court and then paid to the
Registration Department by repayment voucher. The report of the

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Sub-Registrar shall be open to the inspection of the parties or

their advocates, free of charge, till the settlement of the
proclamation of sale.

52. Determination of estimated value and settling the sale

proclamation

The Court shall after perusing the record, giving the

opportunity of hearing to the parties or their Advocates and
making necessary inquiry, if any, determine the estimated value
of the property to be sold and other particulars required to be
specified in the proclamation of sale. The Court shall settle the
proclamation of sale specifying as clearly and accurately as
possible the matters required by Order XXI Rule 66 (2) of the
Code, in the following form:-

Descripti Name Extent of Details of The Estimat Any

on of of interest encumbran amount ed value other
property judgme of ces if any to be of the particul
including nt judgment to which recover property ar
name of debtor debtor so the ed to be bearing
village far as it property is sold on the
and has been liable so far nature
boundary ascertain as they can and
if ed by the be value of
necessary court ascertained the
by the propert
court y
Settling the proclamation of sale is very important part of
the proceedings and necessary details should be ascertained and
noted with care. This will remove the basis for many objections to
the sale at a later stage.

The Court may not necessarily give its own estimated value
of the property in the proclamation. However, the proclamation

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should include the estimated value, if any, given by either or both

the parties.

The proclamation when settled shall be signed by the Judge

and shall be made in the manner prescribed by Order XXI Rule
67 of the Code.

Copies of orders of attachment and proclamations of sale

shall be so affixed with paste or gum that they may be maintained
in a condition to attract the attention of those for whose
information they are intended. The Court may also put the
proclamation on its website in a section specifically created for it
so as to give wide publicity to the same.

A direction for publication under the second paragraph of O.

XXI, r. 67(2) of the Code shall be given only in exceptional cases.

53. Information obtained after proclamation

If after the proclamation has been published, any matter,

which is material for intending purchasers to know, is brought to
the notice of the Court, the Court shall cause the same to be
notified to intending purchasers at the time of auction sale.

54. Costs of Proclamation

The costs of aforesaid proceedings shall, in the first instance

be paid by the decree-holder but they shall be charged as costs of
execution unless the Court otherwise directs.

55. Grant of time to Debtor to arrange private alienation

Attention is drawn to Order XXI Rule 83 of the Code

enabling the Court to postpone the sale of immovable property at
the instance of the judgment-debtor to enable him to raise the
decretal amount by the private alienation of the attached property

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or any other property. This power should be exercised with

caution, so that the judgment-debtor may not delay the execution
with mala fide intention. This provision does not apply if the sale
of the property is ordered in the decree itself to enforce a mortgage
of or charge on, the property.

56. Adjournment of Sale

The sale shall be held at the time and place specified in the
proclamation. However, the sale may be adjourned or stopped as
provided by Order XXI Rule 69 of the Code, unless the Court
adjourns it to a specified day and hour, or the officer conducting
the sale (with the leave of the Court, if the sale is made in or
within the precincts of the Court-house) adjourns it for reasons
which must be duly recorded. Whenever a sale is adjourned for a
longer period than thirty days, a fresh proclamation shall be
made, unless the judgment-debtor consents to waive it.

57. Purchase by Decree-holder, Mortgagee or Officer

connected with auction

Attention is drawn to Order XXI Rule 72 and Rule 72A of the

Code, prohibiting the decree-holder and the mortgagee of
immovable property respectively from bidding for or purchasing
the property without the express permission of the Executing
Court and to Order XXI Rule 73 of the Code prohibiting an Officer
connected in any manner with sale from directly or indirectly
bidding for, acquiring or attempting to acquire any interest in the
property sold. In case of permission being granted to the
mortgagee, reserve price, which shall not be less than the gross
amount due under the mortgage, has to be fixed.

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The Court may dispense with the deposit of earnest money if

the decree-holder is the purchaser and is entitled to set off the
purchase money.

58. Disbursement of purchase money

Purchase money deposited in Court on the sale of

immovable property shall be retained by the Court till the expiry
of thirty days from the date of the order confirming the sale. If no
notice of appeal having been presented against the said order is
received during that period, the purchase money, after deducting
the commission, may be paid to the decree-holder to the extent of
the decretal amount. If any such appeal is preferred, the purchase
money shall not be so paid, until the appeal is decided. However,
it may be paid if the decree-holder gives the necessary security to
repay the same on being required to do so. The balance amount, if
any, is to be disbursed to the judgment-debtor subject to the
same conditions.

59. Applications to set aside the sale.

Applications to set aside sales are frequently made under

Order XXI Rule 90 of the Code. Such applications can be made by
the decree-holder, the purchaser, any person entitled to rateable
distribution or by any person whose interests are affected by the
sale. The grounds to set aside the sale are restricted, being only
material irregularity or fraud in publishing and conducting the
sale and substantial injury suffered by the applicant on account
thereof. Both these conditions must be satisfied to set aside any
sale. No sale can be set aside on any ground which the applicant
could have raised before the proclamation of sale was drawn up.

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The purchaser also has the additional right under Rule 91

to make an application to set aside the sale on the ground that
the judgment-debtor had no saleable interest in the property at
all. However, this provision does not apply when the judgment-
debtor had some, however small, interest in the property.

60. Confirmation of sale

Where property is sold pending final disposal of any claim to

the attached property or objection to the attachment thereof, the
Court should not confirm the sale, until the final disposal of such
claim or objection. In other cases, if no application to set aside the
sale is made or the application if made, is disallowed, the Court
must confirm the sale. An order confirming or setting aside a sale
is appealable but cannot be challenged by way of a separate suit.

61. Refund to Purchaser

When a sale is set aside, the purchaser is entitled to

repayment of his purchase money with or without interest as the
Court may direct. The money should be recovered and repaid in
the execution proceedings. The purchaser should not be required
to file a separate suit for the same.

62. Certificate of sale

When a sale of immovable property has become absolute,

the Court shall grant a certificate stating the property sold and
the name of the purchaser, who, at the time of the sale, is
declared to be the purchaser. This certificate should be in the
prescribed form and must bear the date of the confirmation of the
sale, and be stamped, at the expense of the purchaser, in
conformity with the provisions of the Indian Stamp Act, 1899 as
applicable.

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A certificate of sale issued under O. XXI, r. 94 shall

invariably contain the following particulars:-

(a) the “addition” (as defined in section 2 of Registration Act, 1908

Act No. XVI of 1908) of the person who is declared to be the
purchaser;

(b) particulars sufficient to identify the property as required in

sections 21 and 22 of the said Act.

A certificate issued under O. XXI, r.94 in respect of any sale

held after the first day of April, 1879, shall be drawn up upon a
stamp paper of the value required by section 3 clause (a) and
Article 18 of the 1st Schedule and section 35 of the Indian Stamp
Act (No.II of 1899) as amended in its application to State of
Himachal Pradesh from time to time.

On each copy of the certificate, the amount of stamp duty

paid on the original certificate shall be noted.

N.B. - Copies prepared in compliance with section 89 (2) of Act

No. XVI of 1908 are by Article 24(a) of Schedule 1 of Act No. II of
1899, exempt from stamp duty.

All copies of certificates of sale shall be prepared upon

durable paper, sufficient margin being left for binding.

When the terms of the certificate have been finally settled,

the draft shall be signed by the Judge and placed with the record
of the execution proceedings, and the certificate granted to the
purchaser (which should be in exact conformity with such draft)
shall be engrossed on the stamp paper, free of copying charge.
Instances have occurred where the purchaser, to avoid stamp
duty, has not taken his certificate, but has asked merely for a
draft certificate to be appended to the file of execution, his idea

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being to use the draft certificate in proof of his title to the property
purchased. Subordinate Courts are warned to guard against such
subterfuges. No draft certificate should, in any case, be drawn up
until the stamp duty required by law has been paid.

It should be noted that the title to the purchaser accrues

from the date of the sale, though a certificate can only be granted
after its confirmation.

In case of immovable property, a copy of the certificate shall

be sent to the Registering Officer concerned to be filed in his
supplementary Book No.1. This copy should be drawn up with
permanent black ink or registration ink or typewritten/computer
printed, on the prescribed form.

63. Court officials for conducting sales

(i) Sales in the execution of decrees shall ordinarily be

conducted by the Court Auctioneer. The District Judge may direct
by special order that the sale in a particular case or cases shall be
conducted by the Nazarat Staff.

(ii) At the headquarters of each sub-division in a district, save

as otherwise directed, the District Judge shall, with the prior
approval of the High Court, appoint a Court Auctioneer to
conduct sales in execution of decrees within the limits of the sub-
division. The Official Receiver shall ordinarily be appointed as the
ex-officio Court Auctioneer for the sub-division at the District
headquarters.

(iii) Every Court Auctioneer shall give security in the sum of Rs.
20,000, over and above any security he may have given as Official
Receiver, for the satisfactory discharge of his duties. This security
shall be furnished to the satisfaction of the District Judge. The

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rules which govern the taking of security from Official Receivers

shall, mutatis mutandis, apply also to Court Auctioneers.

64. Procedure for return of sale warrant

A warrant of sale shall not be delivered to the Court

Auctioneer direct by the Court ordering the sale but shall be
forwarded to him through the process-serving Agency. After the
sale, the warrant and connected Papers shall be returned by the
Auctioneer to the process- serving Agency which shall forward it
to the court concerned.

65 Sale under the supervision of Court Auctioneers:

All sales of property whose estimated value exceeds Rs.

50,000/- shall be conducted under the general supervision of the
Court Auctioneer. Sales of property whose estimated value is Rs.
50,000/- or less may be conducted by agents of the Court
Auctioneer. In all cases, the Court Auctioneer is responsible for
proper compliance with all legal requirements and for all the acts
of his agents.

66 Deposit of sale proceeds into Government treasury:

The Court Auctioneer shall himself deposit into the treasury

or State Bank of India all sums realized at auction sales
conducted by him or his staff, on the first working day after the
sale.

67. Commission

(i) Commission at the following rates shall be deducted from

the proceeds of sales under this Chapter:—

(a) If the sale proceeds do not exceed rupees one lac, at five
per centum.

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(b) If the sale proceeds exceed rupees one lac, at five per
centum on rupees one lac and one per centum on the
remainder.

(ii) If the sale is conducted by the Court Auctioneer, 80 percent

of the Commission will be paid to him and 20 percent will be paid
into the Treasury to the credit of Government. All incidental
expenditure shall be met by the Auctioneer. The amount of
commission of the Court Auctioneer shall not, however, exceed
rupees fifty thousand in respect of one sale.

(iii) If the sale is conducted by the Nazarat staff, the whole of the
commission shall be credited to Government and nothing shall be
paid to the officer conducting the sale. In such cases, the
expenses incurred in conducting the sale, including the cost of
advertisement, must not exceed the amount of commission.

68 Expenses of custody etc.:

The expenses incurred in the care, custody and keep of

attached property (as taxed by the Court) shall be a first charge
on the sale proceeds thereof, after the deduction of the
commission mentioned above.

69. Charges of Court Auctioneers

(i) No commission shall be paid on the proceeds of sales set

aside for a material irregularity in publishing or conducting the
sale. The commission on the proceeds of a sale set aside for any
other cause shall be paid by the person at whose instance or for
whose benefit the sale is set aside and the Court Auctioneer shall
be entitled to his share of such commission.

(ii) If a sale is set aside, the purchase money shall be refunded

in full to the Auction Purchaser unless it is set aside at his

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instance and for his benefit in which event the commission due
under the preceding rule shall be deducted from the sum to be
refunded.

(iii) Where a sale is set aside after the commission has been paid
to the Court Auctioneer, the court shall recover it from him and
shall refund it to the Auction Purchaser if he is entitled to the
refund of the whole of the purchase money. In such cases, the
Government share of the commission shall also be refunded.

(iv) In cases in which auction sales are ordered, but not

completed or do not take place at all, the court auctioneer shall be
paid only his actual expenses, provided that if there has been, in
the opinion of the Court, clear negligence on the part of the
auctioneer (e.g., failure to advertise leading to absence of bidders),
he will not be entitled to any compensation. The amount of actual
expenses if held due under this rule will be determined by the
Court and shall be paid by the decree-holder or the judgment-
debtor as the Court may direct.

70. Conduct of sale by Nazarat Staff

(i) Where the District Judge directs that a sale be conducted by

the Nazarat Staff, the proper officer to conduct the sale is:-

(a) Where the sale is ordered by a Court of Small Causes—the

Departmental Officer or such other officer as the Court may
appoint.

(b) Where the sale is ordered by a Court other than a Court of

Small Causes:

(1) The Civil Nazir, for all sales ordered by Courts located
at District Headquarters and for all other sales in

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which the value of the property to be sold is estimated

is less than Rs. 50,000/-.

(2) The Naib Nazir of the Court ordering the sale, for other
sales.

(ii) In every case in which the Civil Nazir is not required, under
these directions or the directions of the District Judge, to
conduct the sale in person, such sale may be conducted
under the orders and upon the responsibility of the Civil
Nazir, by the Naib Nazir deputed by him for the purpose.

(iii) When it is desirable to have the sale conducted at the place

where the attached property is situate and the property is of
small value, and a Nazir or Naib Nazir is not available for the
duty, an execution bailiff may be deputed to conduct the
sale.

(iv) A process-server shall not be employed to conduct a sale

without the authority in writing of the Officer in charge of
the Process-serving Agency concerned. Such order shall not
be made unless no other officer is available and the value of
the property to be sold is estimated at Rs. 10,000/- or less

(v) The District Judge may issue instructions, consistent with

these directions, for the further regulation of the conduct of
sales by the Civil Nazir and his establishment.

71. Sale of guns or arms

Whenever guns or other arms in respect of which licenses

have to be taken by purchasers under the Arms Act, 1959, and
Rules thereunder, are sold by public auction in execution of
decrees, the Court directing the sale shall give due notice to the
Magistrate of the district of the names and addresses of the

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purchasers and of the time and place of the intended delivery to

the purchasers of such arms, so that proper steps may be taken
by the Police to enforce the requirements of the Arms Act.

Sale of Revenue paying or Revenue free land.

72. Law applicable:

Provisions of Section 153 of the Himachal Pradesh Land

Revenue Act, 1887 and the H.P. Debt Reduction Act, 1976 should
be looked into while dealing with applications for the sale of
revenue paying or revenue free land. However, the land which has
been built upon ceases to be ‘land’ within the meaning of Section
153 (ibid), notwithstanding that it is assessed to land revenue.

73. Objections to be decided by Civil Courts:

Powers of Civil Courts to deal with objections made under

Section 47 or Order XXI, Rule 58 of the Code are the same
irrespective of whether the objections are received by the Court
directly or through the Collector. Objections under Section 19 of
the H.P. Debt Reduction Act, 1976 are also to be decided by the
Civil Court and not the Collector.

74. Returns:

Civil Courts and Collectors are required to furnish quarterly

returns in prescribed forms regarding the aforesaid cases.

75. Money specifically charged on land:

In cases where the decree is for recovery of money

specifically charged on the land ordered to be sold, the warrant of
sale has to be issued by the Civil Court. According to Section 153
of the H.P. Land Revenue Act, 1954, orders for sale of land have
to be addressed to the Collector or such Revenue Officer as the

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Collector may appoint. The warrants for sale in such cases may,
therefore, after arrangement with the Collector, be sent directly to
the Tehsildar or such other Revenue Officer as the Collector may
appoint who will return them after execution to the Court
concerned through the Collector. Duplicate copies of the warrants
for sale should also be sent directly to the Collector for
information.

76. Execution of decrees against agriculturists:

It is reiterated that proviso to Section 60(1) of the Code

relate to the exemption of certain properties, including those of
agriculturists, from attachment and sale in execution. Besides it,
under Section 10 of H.P. Debt Reduction Act, 1976, not more
than 1/4th of the agricultural produce is liable to attachment in
execution of the decree. Section 76 of H.P. Land Revenue Act,
1954 also exempts so much of the produce as is necessary for
subsistence and for seed grain from attachment. All these
provisions should be kept in view while dealing with execution
application against agriculturist judgment-debtor. However, there
is no bar to the sale of land belonging to an agriculturist.

(ii) Attachment and sale of the land and its produce will be
carried out by an order addressed by the Civil Court to the
Collector or such Revenue Officer as he may appoint in this
behalf.

77. Payment by judgment-debtor and receipt by decree-

holder

(i) Receipts should invariably be furnished by decree-holders

for money paid or goods delivered through the courts in
satisfaction of decrees.

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(ii) Amount tendered by a judgment-debtor in full or part

payment of a decree shall be received by the concerned Court
(competent to execute the decree) whether the decree-holder has
taken out execution or not and whether he is actually present in
the Court or not.

(iii) If the decree-holder is present in the Court at that time, the

money so received by the Court shall be made over to him upon
his giving a receipt (duly stamped where required), and the receipt
shall be filed with the proceedings.

(iv) If the decree-holder is not present in Court at that time, the

amount paid by the judgment-writer shall be made over by the
Court to the Nazir/Naib Nazir who shall forthwith deposit it in the
Treasury and notify to the Court the number and date of entry in
the deposit register. A corresponding entry will be made in the
Court’s record. However, if the Treasury is closed when the money
is paid, it should be placed in cash chest of Nazir in the manner
provided in Rule 34(ii) for valuable property.

(v) An unstamped acknowledgment will be given to the

judgment-debtor by the concerned Nazir. Notice of the deposit
shall be given to the decree-holder.

(vi) When the decree-holder claims the sum so deposited in the

Court, the Court shall give the claimant, on identification, a
cheque on the Treasury for the said amount and shall note
thereon the date of deposit and the number in the deposit
Register. An unstamped receipt containing an amount of the
cheque, its date, and number, and the deposit number and date
shall be taken from the decree-holder and placed on record.

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(vii) The cheque mentioned in the preceding sub-rule shall be

presented to the Treasury Officer for payment and the receipt of
the payee, endorsed thereon, shall be sufficient acquaintance for
the Treasury Officer who will forward the endorsed cheque to the
Accountant General as his voucher for the withdrawal of the
amount from the deposit.

(viii) Where a decree-holder has been placed in possession of

immovable property in execution of decree, the dakhalnama or
acknowledgement taken from him is not required to be stamped
either under the Court Fees Act or the Stamp Act; not being an
acknowledgement of receipt of money or other movable property,
it is not a ‘receipt’ within the meaning of Section 2(23) of the
Stamp Act.

78. Resistance by Judgment debtor etc.

(i) Provisions of Order XXI, Rules 97 to 106 of Civil Procedure

Code are required to be carefully studied and applied in
appropriate cases. Non-observance of these provisions properly
may give rise to avoidable litigation.

(ii) According to Order XXI, Rule 98 of the Code, if the holder of

a decree for possession of immovable property or purchaser
thereof at sale in execution is resisted or obstructed, the
executing Court can now take action not only when the resistance
or obstruction was occasioned by the judgment-debtor himself or
his transferee pendente lite bound by the decree but also when it
was caused by some other person at his instigation or on his
behalf.

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79. Dispossession of third person.

If any person not bound by the decree is dispossessed of any

property in execution, whether by decree-holder or by the
purchaser thereof in execution, he may apply to the Executing
Court to establish the right claimed by him in the property. Such
an application may be moved even before such third person is
actually dispossessed of the property in execution proceedings. If
such applicant was/is in possession of the property on his own
account or on account of some person not bound by the decree,
possession of the property should be restored to such person by
the Executing Court and if not already dispossessed, he shall not
be liable to be dispossessed in such execution. Such question is
to be adjudicated in the execution proceedings and not by a
separate suit. An order determining such question has the same
force and is subject to the same conditions as to an appeal or
otherwise as if it were a decree.

80. Decree holder’s liability to pay for civil prisoner’s

detention in jail.

The Court shall direct the attention of a decree-holder,

taking action under sections 55 and 59 of the Code, to the
provisions of section 33 of the Prisons Act, 1894 requiring the
payment of subsistence allowance.

Section 33 of the Prisons Act, 1894.

"33 (1) Every civil prisoner and un-convicted criminal prisoner

unable to provide himself with sufficient clothing and bedding-
shall be supplied by the Superintendent with such clothing and
bedding as may be necessary.

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(2) When any civil prisoner has been committed to prison in

execution of a decree in favour of a private person, such person,
or his representative, shall within forty-eight hours after the
receipt by him of a demand in writing, pay to the Superintendent
the cost of the clothing and bedding so supplied to the prisoner;
and in default of such payment the prisoner may be released"

The first payment of the subsistence allowance by the

decree-holder shall be for such portion of the current month as
remains unexpired on the date of committal of the judgment-
debtor to prison and shall be made to the proper officer of the
Court committing him. If the money is not received from the Court
within a reasonable time, the Superintendent shall remind it.
Subsequent payments of subsistence allowance due, if any, shall
be made by the decree-holder to the Superintendent of the jail by
monthly payments for the whole month, or part thereof, in
advance, before the first day of each month.

When a civil prisoner is detained in a jail which is more

than five miles from his place of residence, a charge shall be made
at the time of his admission to the jail in order to cover his
travelling and diet expenses for the journey back to his home on
release. If the money is not received along with the subsistence
allowance, the Superintendent shall request the Court which
directed the judgment-debtor's detention, to order the decree-
holder to deposit the same forthwith. The money shall be paid to
the judgment-debtor on the day of his release to enable him to
meet the expenses of the journey from the jail to his place of
residence.

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81. Costs in execution proceedings

(i) Fees of counsel:

Fees of counsel in execution cases should be allowed on the

scale laid down for the same by the High Court from time to time
unless there is a reason to the contrary.

(ii) Costs of clothing and bedding

The cost of clothing and bedding, if supplied by the decree-

holder to a civil prisoner committed to prison in execution of a
decree, being returnable to the decree-holder at the time of the
prisoner's release (as per Jail Manual), should not be included in
the costs of the execution.

(iii) Subsistence expenses.

Money spent by the decree-holder for the subsistence of the

judgment-debtor arrested in execution shall be included in the
costs.

(iv) Compensatory costs.

In view of Section 35-A of the Civil Procedure Code, the

Executing Court may award compensatory costs in case of false or
vexatious claim or defence in execution proceedings, to the
opposite party.

82. Reciprocal arrangements with foreign countries:

Section 44-A of the Code provides for execution by Courts in

India of decrees passed by Superior Courts in reciprocating
foreign countries as may be declared by the Central Government
and vice versa. This arrangement is confined to only decrees for
the payment of money, not being sums payable as taxes, fines or
penalties etc. The arrangement does not extend to arbitration

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award even if it is enforceable as decree or judgment. This

arrangement stands extended qua following countries by
notifications of the Central Government issued under Section 44-
A of the Code.

(a) United Kingdom:-

Extended to the High Court in England, the Court of

Sessions in Scotland, the High Court in Northern Ireland, the
Court of Chancery of the County Palatine of Lancaster, and in
Court of Chancery of the country Palatine of Durham. Vide
Central Government Notifications Nos. 47 to 51 dated the 25th
February 1953 and 1st March 1953 and also extended to the
House of the Lords and the Court of appeal vide Ministry of Law
GSR 201 dated 13.3.1958.

Similarly, the Government of Great Britain have vide the

Reciprocal Enforcement of Judgments (India) Order, 1953,
extended Part I of the Foreign Judgments (Reciprocal
Enforcement) Act, 1933 to the territories of the Union of India and
the following Courts shall be deemed to be superior courts of the
said territories for the purposes of Part I of the said Act:-

(i) All High Courts and Judicial Commissioners' Courts.

(ii) All District Courts.

(iii) All other courts whose civil jurisdiction is subject to no

pecuniary limit provided that the judgment sought to
be registered under the said Act is sealed with a seal
showing that the jurisdiction of the Courts is subject
to no pecuniary limits.

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(b) Myanmar:

Reciprocal arrangements have been made between India and

Myanmar in the matter of execution, vide Government of India
Notification No. 286-36-Judicial, dated the 27th March 1939, and
Government of Myanmar (then Burma) Notification No. 141, dated
the 7th March 1939.

According to these notifications the following courts have

been declared to be superior Courts for the purposes of Section
44-A:-

Myanmar:

(1) High Court at Yangon.

(2) All District Courts in Myanmar,

(c) Aden: Extended to Supreme Court of Aden by

Government of India, Ministry of Law Notification No.
SRO 183 dated the 18th January 1956.

(c) Fiji:

Reciprocity has also been established between Fiji and India

vide Central Government Notification No. SRO 959 dated the 22nd
March 1954.

(d) Singapore:

Extended to Supreme Court of Singapore vide Government

of India, Ministry of Law Notification No. SRO 1867 dated the 1st
September 1955.

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(e) Federation of Malaya:

Extended to High Court and Courts of Appeal of the

Federation of Malaya by Government of India, Ministry of Law
Notification No. SRO 4 dated the 3rd January 1956.

83. Reciprocal arrangements with Jammu & Kashmir:

The Code of Civil Procedure, 1908 does not extend to the

State of Jammu & Kashmir although it is part of India. However,
there is a reciprocal arrangement under Section 43 of the Code
with Jammu & Kashmir vide Section 44 of the Jammu & Kashmir
Code of Civil Procedure, 1977 under which Government of
Jammu & Kashmir has issued Notification vide Order No. 914-C
of 1954 dated the 10th July 1954. Accordingly, the decree passed
by any Civil Court in India (outside Jammu & Kashmir) may be
executed in Jammu & Kashmir as if it had been passed by a
Court of the said State.

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Chapter 23
Transfer of cases

1. Transfer of part-heard cases or cases in which evidence

stands concluded.

Section 24 of the Civil Procedure Code provides for the

transfer of suits, appeals or other proceedings pending in
subordinate Courts. This power may be exercised at any stage of
the case. However, a case which is part heard or in which
evidence has been concluded should not ordinarily be transferred
from one Court to another.

2. Courts requesting for transfers:

(i) In making a request to Superior Court for the transfer or

withdrawal of any case, civil Courts should state their reasons for
making the request.

(ii) Whenever a suit or appeal comes before a Judge in which he

is personally interested or in which the decree or order appealed
against was passed by himself, a report should at once be made
to the Superior Court concerned with a view to the case being
transferred to another Court.

(iii) A subordinate Court while sending a case to the District

Judge with a request for its transfer should give the parties the
date for appearance before the District Judge.

3. Parties to be informed of the date for an appearance on

transfer:

(1) If orders for transfer of any case are passed, the parties
present should be informed of the transferee Court and the date
for their appearance in that Court. The Court should get the order

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of transfer signed by counsel of the party or parties if any party is

unrepresented information shall be sent to his registered address.

(2) A note to the effect that a party or the parties have been
informed in accordance with sub-rule (1) shall be made on the
record by the transferring Court.

(3) The case shall be called out by the other Court on the date
already fixed by the transferring Court and the presence of the
parties noted.

4. Bulk Transfer

(1) Where cases are transferred in a large number, the Court

from which they are transferred shall draw up a list mentioning in
it the numbers and years of the cases and the names of the
parties and their counsel, and shall cause one copy of it to be
posted on the notice board of the local bar association for
information of the members of the bar and another copy to be
posted on the notice board of the Court for information of the
general public. It shall also send to the other Court along with the
records of the transferred cases, a copy of the list (or relevant
extract of it); the other Court shall post it on its own notice board.
If the other Court is situated in a different place in which there is
another bar association, an extra copy of the list shall be sent to it
for being posted on the notice board of the bar association. In
addition to this, the list shall be uploaded on website of the Court.

(2) The Court to which cases are transferred shall not proceed
without satisfying itself that the parties or their counsel, as the
case may be, have been informed of the transfer.

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5. Records to be sent immediately to the Transferee Court:

When a case is transferred by administrative order from one

Court to another, the Presiding Officer of the Court from which it
has been transferred shall be responsible for informing the parties
regarding the transfer, the transferee Court and the date for an
appearance there. The District Judge passing the order of transfer
shall see that the records are sent to the Court concerned and
parties informed of the date fixed with the least possible delay.
When a case is transferred by judicial order, the Court passing
the order should fix a date for the appearance of the parties in the
transferee Court.

6. Transfer of appeal:

District Judge can, without reference to the High Court,

transfer or withdraw any appeal pending in the Court of
Additional District Judge in his District. An appeal once
transferred under the orders of the High Court cannot be
retransferred by District Judge without further orders from the
High Court.

7. A separate record of transfer applications:

Applications for transfer of civil cases along with

proceedings therein should form files separate from the records of
the main cases sought to be transferred. The records of such
transfer applications should be separately consigned to the record
room. The original order on transfer application should be kept in
record thereof and a copy of the order should be sent to the
Courts concerned.

However, cases transferred by a Court of its own motion or

on administrative grounds should not be entered in any Register

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nor it is necessary to keep any statement of the cases so

transferred or to make a separate record of the transfer
proceedings. The original order of transfer (instead of a copy) may
be sent to the Court concerned.

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Chapter 24
Appeals and Revisions

1. Provisions of CPC:

Provisions of Sections 96 to 108 and Orders XLI to XLIV of

the Code of Civil Procedure relating to appeals may be looked into
carefully.

2. Classes of Appellate Courts:

Presently there are two classes of Appellate Courts in the

States of Himachal Pradesh i.e. the High Court and the Court of
District Judge (which includes the Court of Additional District
Judge).

Note: - Under Section 21 (3) of the Himachal Pradesh Courts Act,

1976, the High Court may invest the Court of Senior Civil Judge
or Civil Judge with powers to hear appeals. However, at present,
no such appellate power has been conferred on any Civil Judge.

3. Forum of Appeal:

(i) An appeal from a decree or appealable order passed in any

original suit by any Senior Civil Judge or Civil Judge lies to the
District Judge.

(ii) An appeal from a decree or appealable order of a District

Judge or an Additional District Judge lies to the High Court.

4. Second Appeal:

In view of Section 100 of the Code, the second appeal to

High Court from a decree passed in appeal by any Subordinate
Court lies only if the High Court is satisfied that the case involves
a substantial question of law. In view of Section 102 of the Code,

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no second appeal shall lie from any decree when the subject
matter of the original suit is for recovery of money not exceeding
Rs. 25,000.

5. No appeal against consent decree:

In view of Section 96 (3) of the Code, no appeal shall lie from

a decree passed with the consent of parties.

6. Appeal from Preliminary decree:

According to Section 97 of the Code, if an appeal has not

been preferred from a preliminary decree, such decree shall not
be questioned in any appeal preferred from the final decree.

7. Appeal from orders:

The orders which are appealable are specified in Section 104

and Order XLIII Rule 1 of the Code and no other orders are
appealable.

8. (i) Copies to accompany the memorandum of appeal

The memorandum of appeal shall be accompanied by a copy

of the judgment and decree appealed against. However, if two or
more cases are disposed of by one judgment and two or more
appeals are filed against any decree covered by the judgment, the
Appellate Court may dispense with the filing of more than one
copy of the judgment.

(ii) In second appeals, the memorandum of appeal shall also be

accompanied by a copy of the judgment and decree of the Court of
the first instance, unless the Appellate Court dispenses therewith.

(iii) When some issues are disposed of at first and the rest by
the final judgment, it is sufficient to attach a copy of the final
judgment.

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9. Exclusion of time spent in obtaining copies

Since according to Section 12 of the Limitation Act, 1963,

the time requisite for obtaining a copy of the judgment and decree
appealed from is to be excluded for computing the limitation
period for filing appeal, the Court or the Copying Agency should
be careful to endorse on the copy the following dates:

(a) The date of presentation of the application for a copy.

(b) The date on which the copy was examined and

attested i.e. was ready for delivery.

(c) The date of delivery or dispatch of the copy.

The time since after the copy was ready for delivery till the
delivery was actually taken is not to be excluded for computing
limitation period for filing the appeal.

Appellate Courts should be careful to notice any delay in

furnishing the copies and to take appropriate action.

10. Reception and examination of appeal and service of

processes and address for service.

(i) The general Rules regarding the reception of plaint in

Chapter 2, examination of the plaint in Chapter 3 and service of
summons on the defendant in Chapter 4 of this Volume shall, so
far as may be, apply mutatis mutandis to the reception and
examination of appeal and service of notice on the respondent.

(ii) The appeal shall be filed by the appellant or his advocate as

the case may be, at the Judicial Service Centre of the Court
between 10:00 a.m. to 4:00 p.m. on every working day. Subject to
availability of such facility an appeal may be filed online by

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posting on the online filing portal of the Court as per the practice,
directions or orders issued in this behalf by the High Court.

(iii) The official at the Judicial Service Centre shall ensure that
it contains complete particulars of the parties, namely, their
addresses along with email addresses if any, cell numbers as well
as of their advocates and the list of the documents attached if
any.

(iv) When the appeal filed is prima facie complete in all respects,
the official at the Judicial Service Centre shall enter the name of
sole/all appellant(s) and the sole/all respondent(s) and then
assign a specific case number generated by the computer to it.
The said number shall be pasted on the memorandum of appeal
and documents annexed with it.

(v) After entering the necessary particulars in the computer at

the Judicial Service Centre, the official shall immediately send the
record to the District Judge for further distribution and also ask
the appellant or the advocate to appear before the District Judge
for further orders. He shall give an auto-generated receipt to the
advocate or the appellant regarding the filing of the appeal at the
Judicial Service Centre.

(vi) When the record is complete in all respects, the court shall
order the registration of appeal if the registration has not been
done at the Judicial Service Centre. Whereupon the Ahlmad of the
court shall register the appeal by entering necessary particulars of
the appeal in a register maintained in the computer software.
Besides this, the court as a matter of abundant caution shall also
make entries in a register maintained in the physical form, if
prescribed by the High Court.

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(vii) Latest registered address of a party filed under Order VI

Rule 14A of the Code during the course of trial holds good for
service of notice in appeal also and such address should be stated
in the memorandum of appeal.

11. Admission

The appeal, if found proper and complete in all respects

(including Court fee, prescribed form, limitation period etc.), shall
be admitted for hearing and shall be registered in the register of
appeals and in the CIS 2.0 by the concerned official.

12. Preliminary hearing

(i) After hearing the appellant or his counsel, the Appellate

Court may (without or after calling for and perusing the records of
the lower Court) dismiss the appeal by recording reasons, even
without issuing a notice to the respondent. The decree shall be
drawn accordingly.

(ii) If on the date fixed for the preliminary hearing, the appellant
or his agent/counsel does not appear, the appeal may be
dismissed in default. In that event, the appeal should not be
decided on merit.

(iii) If the appeal is not so dismissed, notice of the appeal shall

be ordered to be issued to the respondent and record of the trial
Court shall be requisitioned.

(iv) The notice to the respondent shall be accompanied by a

copy of the memorandum of appeal. The appellant shall file the
requisite number of such copies immediately after notice of the
appeal has been ordered to be issued to the respondent. However,
the Court may also dispense with service of notice on a proforma

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respondent or on a respondent who was not represented in the

Lower Court.

(v) The date for hearing an appeal shall be fixed so as to allow

sufficient time to the respondent to file a cross-objection, if any,
under Order XLI, Rule 22, Civil Procedure Code

(vi) The Court should be slow in dismissing an appeal for

default or in proceeding ex parte against the respondent and every
reasonable endeavour should be made to decide the appeal on
merits as far as practicable. If either party does not appear on the
first call, the file may be kept aside and taken up again after other
work is finished.

13. Amendment after admission

After admission and registration of appeal, the appellant

cannot urge any ground of objection not set forth in the
memorandum of appeal except with the leave of the Court.
Application for such leave should ordinarily be in writing,
preferably before the date fixed for the hearing, so as to avoid
unnecessary adjournment.

14. Filing of appeal in Trial Court

According to Order XLI Rule 9 of the Code, the Court

passing a decree under appeal is required to entertain the
memorandum of appeal and to endorse thereon the date of its
presentation and to register it in the register of appeals. However,
even if such memorandum of appeal is not filed in the said Court,
the appeal filed in the Appellate Court will not become defective
one merely on this ground.

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15. Special power

Special attention is invited to Order XLI Rule 33 of the Code

whereby an Appellate Court has been given the fullest power to
pass any decree or make any order as the case may require, even
in favour of any respondent or party although such respondent or
party may not have filed any appeal or cross-objection. Such
power may also be exercised in respect of all or any of the decrees
passed in cross suits or two or more decrees passed in one suit
although an appeal may not have been filed against such decree.
However, such power has to be exercised only in rare and
exceptional case and for very strong reasons to be recorded by the
Appellate Court.

16. Prompt disposal of miscellaneous appeals

Appeals from orders in pending proceedings should be

disposed of as promptly as possible, so as not to delay those
proceedings unnecessarily. Notice to respondent in such appeal
may be served on his counsel, if any, in the Lower Court so as to
avoid delay in service of notice on the respondent and to avoid
consequent delay in disposal of the appeal. Such service of notice
on the counsel shall be legal and valid service.

Record of Lower Court in such case, if requisitioned, should

not be retained till the next date of hearing and should be sent
back forthwith when the appeal is adjourned, and may be
requisitioned again, to be received by the appellate court only a
day before the next date of hearing, so that in the meanwhile,
proceedings may not be held up in the Lower Court for want of its
records.

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17. Judgement and decree

(i) Provisions of Chapter 22 relating to judgment and decree of

Trial Court shall, so far as may be, apply mutatis mutandis to
judgment and decree of First Appellate Court.

(ii) The judgment should be complete in itself and should

contain a concise account of the case, the points for
determination and the decision thereon with the reason therefor
and should clearly state the relief granted to the appellant when
the decree appealed from is reversed or varied.

(iii) The judgment of the First Appellate Court may not

ordinarily be as detailed as that of the Trial Court. However, the
Appellate Court should give an intelligible and clear summary of
the evidence considered by it and the reasons why it is worthy of
consideration. If any ground of appeal is withdrawn or is not
pressed at the hearing, this fact should invariably be mentioned
in the judgment.

(iv) The finding of fact arrived at by the Court of First Appeal is,
as a rule, final and cannot be challenged in the Second Appeal
except when it raises a substantial question of law within the
purview of Section 100 of the Code. The Court of First Appeal
should, therefore, realize its responsibility and see that the
finding of fact is clear and precise.

The judgment should indicate that all relevant evidence, oral

as well as documentary, has been considered. Second appeals
may have to be admitted if a necessary finding of fact is either
vague or non-existent or important evidence has been ignored,
misread or misconstrued.

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(v) Confusion frequently arises from the use of the words

'appellant' and 'respondent'. Appellate Court should use these
terms with the addition of the word 'plaintiff' or 'defendant', as the
case may be, or the latter terms alone may be used.

(vi) The decree of the Appellate Court shall contain the number
of the appeal with the date of institution and date of the decision,
the names and description of the parties, clear statement of the
relief granted or other determination of the appeal, and an order
as to costs with amount thereof.

18. Remand

(i) Whenever a case is remanded, the Appellate Court ordering

the remand shall fix a date on which the parties shall appear
before the Trial Court and shall inform the parties or their
counsel who are present.

(ii) When the case is remanded under Order XLI, Rule 23 or

Rule 23- A of the Code, it must be restored to its original number
on the Register of the Trial Court and shall be considered as a
pending suit. However, if the case is sent under Order XLI, Rule
25 of the Code, it should remain on the Register of the Appellate
Court and shall be considered as a pending appeal.

(iii) When the case is remanded under Order XLI, Rule 23 or

Rule 23- A of the Code, formal decree is not to be drawn by the
Appellate Court.

(iv) When a case is sent under Order XLI, Rule 25 of the Code,
reasonable time should be fixed for the return of the finding by
the Lower Court. The Lower Court should make every effort to
submit the finding by the date fixed, but if this is found to be
impracticable, it should apply at once for extension of time,

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stating the reasons and the expected date of submitting the

required finding.

(v) Appellate Court should give reasonable time to the parties to

file objections, if any, against the finding submitted by the Lower
Court under the preceding sub-rule. The objections, if any filed,
shall be determined along with the decision of the appeal.

19. Additional Evidence

Additional evidence may be allowed to be led in appeal

within the four corners of Order XLI, Rule 27 of the Code. The
grounds on which additional evidence may be allowed in the
appeal are specified in the said provision which should be
carefully studied and kept in view while dealing with an
application for additional evidence in an appeal. The test for
admitting such additional evidence and the manner of exercise of
discretion in this behalf have been laid down in various
judgments by High Courts and Supreme Court.

20. Statement of serving Officer

In the case of summons from the High Court, the Court

serving the summons shall record the statement of the process
server as to such service on solemn affirmation and shall verify
the same with its signature before returning the summons.

21. Security in revision cases

(i) When in an application for revision filed under Section 25 of

the Provincial Small Cause Courts Act, 1887 or under Section 115
of the Code of Civil Procedure or under Article 227 of the
Constitution of India, it is ordered by the High Court that the
applicant shall give security in any Subordinate Court for the due
performance of the decree or order sought to be revised, such

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Subordinate Court shall accept from the applicant any amount or

security which he may tender for the purpose, and shall retain
the same in its custody pending the further order of the High
Court.

(ii) The Subordinate Court shall, on the request of the applicant

or on receipt of a percept from the High Court, certify in writing to
the High Court what has been done by the applicant, with its own
opinion, if required, as to the sufficiency of the security tendered.

(iii) Same practice may be followed while taking security in

pursuance of an order made under Order XXI Rule 26 (3) or
under Order XLI Rule 5 of the Code of Civil Procedure.

(iv) The preceding provisions shall apply, so far as may be,

when a person intending to file an application for revision in the
High Court, has performed or deposited the amount of, the decree
or order sought to be revised, or tendered security for
performance thereof.

22. Appeals and applications presented after limitation

period

(i) The concerned official shall examine the memorandum of

appeal to see that requisite copy of judgment and decree has been
attached and whether the appeal has been presented within the
limitation period.

(ii) If the appeal appears to be presented after limitation period

or there is doubt whether it is within the limitation period, the
concerned official shall make a note of the calculation regarding
limitation period.

(iii) The calculation regarding the expiry of the limitation period

is to be made irrespective of the last day being a closed day for the

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Court. The official shall also bear in mind that the date on which
the application for copy is made and the day on which the copy is
ready for delivery will be reckoned separately as one day each
unless both events occur on the same day.

(iv) When copies of judgments are despatched by post, in

accordance with rules, the period intervening the completion and
despatch of copies must be excluded in computing the limitation
period.

(v) On the date fixed for the preliminary hearing, the court shall
see that if the appeal has been presented after the expiry of the
limitation period, it is accompanied by an application, supported
by affidavit, for condonation of delay setting forth the facts on
which the appellant relies for this purpose. Such an application, if
not presented with the memorandum of appeal, may also be filed
subsequently.

(vi) If the Court is of opinion that assuming all the facts stated
in the application for condonation of delay to be true, the
explanation for the delay is insufficient, the Court shall dismiss
the application and reject the appeal as barred by limitation.

(vii) If the application is not dismissed under the preceding sub-

rule, notice thereof shall be given to the respondent. The parties
shall be given the opportunity of giving evidence for and against
the facts stated in the application, by affidavit or oral testimony
and documents.

(viii) The Court after giving the opportunity of hearing to the

parties shall then decide the application for condonation of delay.
If the delay is condoned, the Court shall proceed with the hearing
of the appeal as per procedure laid down hereinbefore. If the delay

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is not condoned, the Court shall dismiss the application and

reject the appeal as time-barred.

(ix) Where no application for condonation of delay is filed either

with the memorandum of appeal or subsequently, the Court shall
dismiss the appeal as time-barred without considering the merits
of the appeal.

(x) Similar procedure should be observed, so far as may be, in

respect of applications filed under Section 5 of the Limitation Act,
1963, for condonation of delay in other cases e.g. applications for
review, for readmission of appeals under Order XLI Rule 19, for
restoration of suits under Order IX Rule 4 or Rule 9, for setting
aside of ex parte decree under Order IX Rule 13, of the Code of
Civil Procedure.

23. Transmission of Orders of Appellate Court to Lower

Court.

(i) The Appellate Court will send a copy of its judgment to the
concerned Lower Court.

(ii) The Appellate Court will attach a form mentioning the date
of dispatch of judgment while sending back the original record.

(iii) The Record-Keeper will maintain a running list of the cases

prepared from the above form. When the copies of judgments are
returned to him by the original Court, he will add the copies to
the records, fill in the date of receipt in the above form and strike
those cases off his running list. However, if copies are not
returned within 15 days of dispatch, he will issue a letter of
request to the original Court and if that is ineffective, report the
matter to the Appellate Court.

(iv) The running list will be in the following form:

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Name of Case Date of Original Court Date of Letter of

Dispatch Request, if any.

(v) If the Presiding Officer of a Subordinate court desires to see

the original record, in any case, he will be allowed to call for it,
provided that it must not leave his Court Room.

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Chapter-25
References to the High Court
1. Relevant provisions for making references

(i) A reference to the High Court may be made by any Civil

Court under Section 113 and Order XLVI of the Code of Civil
Procedure. A reference by Civil Court or Revenue Court may also
be made to the High Court under Sections 80 and 81 of the
Himachal Pradesh Tenancy and Land Reforms Act, 1972.

(ii) Under Section 113 and Order XLVI, Rules 1 and 6 of the
Code and Section 80 of the Himachal Pradesh Tenancy and Land
Reforms Act, 1972 the power to make reference is discretionary.
However, under the proviso to section 113 of the Code and under
Section 81 of the Himachal Pradesh Tenancy and Land Reforms
Act, 1972 it is mandatory to make the reference if conditions
mentioned therein are satisfied. Under Order XLVI Rule 7(1) of the
Code, the District Judge has discretion to make the reference
under first part (if not required by a party) whereas under second
part of the Rule, it is mandatory for the District Judge to make
the reference (if required by a party), if conditions mentioned in
the said Rule are satisfied.

(iii) Reference by the District Judge shall be made directly to the

High Court whereas reference by any other Civil Court shall be
made through the District Judge, who should forward it without
avoidable delay. Reference by Revenue Court under Section 80 of
the Himachal Pradesh Tenancy and Land Reforms Act, 1976
should be made through the Commissioner whereas reference by
Revenue Court under Section 81 of the said Act should be made
through the District Judge.

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(iv) A reference under Order XLVI Rule 1 of the Code should be

made only when the Presiding Officer entertains a reasonable
doubt on the point of law or usage having the force of law, and
not merely on the importunity of counsel.

(v) A Subordinate Court cannot be supposed to entertain a

reasonable doubt on a point of law if it has been decided clearly in
a judgment of the High Court unless some doubt has been thrown
on the correctness of the same by another judgment of the High
Court or by a judgment of the Supreme Court.

2. Mode of Reference

(a) In making a reference, the Presiding Officer should be

careful to conform to the requirements of Order XLVI Rule 1, of
the Code by:-

(i) drawing up a statement of the facts of the case;

(ii) stating the point on which doubt is entertained; and

(iii) stating his own opinion on such point.

Each of the above statements should be precise and clear

because otherwise, the High Court may be compelled to return
the reference for amendment under Order XLVI Rule 5 of the
Code.

It is also essential that the true character of the suit should

be described with precision and accuracy in the heading of the
reference.

(b) Every reference under Section 80 or Section 81 of the

Himachal Pradesh Tenancy and Land Reforms Act shall state the
reasons for making the reference, and shall indicate the Revenue
Court which in the opinion of the Court making the reference, has

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or had jurisdiction under Section 81 of the said Act over the case
in question. The Revenue Court should be accurately described
according to the nomenclature prescribed in Section 7 of the
Himachal Pradesh Land Revenue Act, 1954 read with Sections 81
of the Himachal Pradesh Tenancy and Land Reforms Act, 1976.

3. References under Order XLVI Rule 7

It should be noted that reference under Order XLVI Rule 7

of the Code may be made only when the District Court forms an
opinion that the Subordinate Court has committed the
jurisdictional error of the nature mentioned in the said Rule.
Without forming such opinion, reference cannot be made. Even
after forming such an opinion, the District Court still has the
discretion to make or refuse to make a reference, unless it is
required to make it by a party. In the latter case, the Court is
bound to make a reference.

4. A reference under Section 80 of the Himachal Pradesh

Tenancy and Land Reforms Act, 1976.

When a Revenue Court has returned a plaint for lack of

jurisdiction and the plaint is subsequently presented in Civil
Court and such Civil Court is of the opinion that the suit is in fact
not triable by a Civil Court, the Civil Court should not again
return the plaint, but should refer the point at once to the High
Court under Section 80 of the Himachal Pradesh Tenancy and
Land Reforms Act, 1976.

5. Parties to be heard

(i) A reference to the High Court shall not be made unless the
parties to the case have been given the opportunity of hearing to

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show cause against such reference in the Court which proposes to

make it.

(ii) The Court making the reference shall in its order of

reference certify that such opportunity has been given, and shall
place on record the objections, if any, filed by any party against
the making of such reference.

(iii) The Court making the reference shall give notice to the
parties being represented before it while making the reference:-

(a) that the attendance of the parties in the High Court at

the hearing of the reference is not obligatory;

(b) that any party desirous of attending such hearing

must enter an appearance at the office of the Registrar
(Judicial) of the High Court on or before a date to be
specified in the notice.

(iv) The date specified in the aforesaid notice shall ordinarily be

not less than one month from the date of making the reference, so
as to allow a reasonable time for the parties to appear in the High
Court.

(v) The Court shall certify in its order (a) that the notice
required under sub-rule (iii) has been duly given and (b) the date
specified in such notice.

6. Necessary records to be sent

The Court making the reference shall forward with its order,
the record of the case in which the reference is made and of all
proceedings, if any, by way of execution or otherwise in such case
subsequent to the decree, and also the records of any other

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connected proceedings necessary for consideration of the

reference in the High Court.

7. Reference by Revenue Courts.

The aforesaid provisions apply mutatis mutandis to

references by Revenue Courts.

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Chapter 26
Advocates
I Power of Attorney:-

(i) Every appointment of an Advocate (including a pleader) to

act shall contain in full the name of the person or every person
who thereby authorizes the Advocate to act on his behalf and
shall be executed by every such person.

(ii) When such appointment is not executed by the principal

himself but by some person on his behalf, the Advocate will not be
recognized by the Court without proof that such person was duly
authorized by the principal to execute such appointment.

(iii) In cross-appeals, an Advocate who has already filed a power

of attorney or memorandum of appearance for the appellant shall
not be required to file another power of attorney or memorandum
of appearance for his client as a respondent in the cross-appeal.

(iv) The Power of Attorney or memorandum of appearance shall

be filed in the Court by the Advocate shortly after his engagement,
indicating the date of engagement.

2. Fees of Counsel:

In exercise of the powers conferred by Article 227 of the

Constitution of India and Section 34 (IA) of the Advocates Act,
1961 and all other powers enabling it in this behalf, the High
Court of Himachal Pradesh makes the following rules fixing and
regulating the fees payable as costs by any party in respect of the
fees of adversary's Advocate upon proceedings in Civil Courts
Subordinate to the High Court.

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(1) Suits for recovery of money, property etc.:

In suits for recovery of money or of specific property or

share therein, whether immovable or movable or for the breach of
any contract or damages:-

(a) If the amount or value of the property, debt or

damages decreed does not exceed Rs. 1,00,000, the fee shall
be Rs. 3,000.

(b) If the amount or value exceeds Rs. 1,00,000 but does

not exceed Rs. 5,00,000, the fee shall be calculated at 3% of
the value.

(c) If the amount or value exceeds Rs. 5,00,000, the fee

shall be Rs. 15,000 plus 1% of the amount in excess of Rs.
5,00,000, however, that in no case, the amount of fee shall
exceed Rs. 50,000.

II. Less contested suits etc.

In the case of:-

(i) Summary suits under Order XXXVII of the Code of Civil

Procedure, 1908, where the defendant does not appear or where
leave to defend is refused or where a decree is passed on the
defendant failing to comply with the condition 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 Order X of the Code of
Civil Procedure;

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(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 Order XII of 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) Short causes, commercial causes and long causes 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 for evidence under Rule 2 of Order X
of the Code of Civil Procedure;

(viii) Any formal party to a suit or appeal 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 or appeal which has abated;

(x) A plaint returned for presentation to the proper Court, the

amount of Advocate's fee to be allowed shall be fixed by the Court
disposing of the matter, but shall not exceed half of that payable
according to the rate specified in Rule 1.

Provided that the fee shall not be less than Rs. 1500/-.

3. Other suits:

In suits for injuries to the person, property or character of

the plaintiff or to enforce rights where the pecuniary value of such
injury or right cannot be exactly defined or the suits which do not
admit of being satisfactorily valued, the Court may order the

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counsel's fee allowed to the plaintiff to be calculated according to

Rule 1 with reference to the amount decreed or such other sum as
the Court thinks reasonable with reference to the importance of
subject of dispute but the same shall not be less than Rs. 3,000.

4. Miscellaneous Proceedings:-

In miscellaneous proceedings including arbitration cases,

probate cases etc., the counsel's fee to be allowed by the Court
shall not exceed Rs. 10,000 if contested and Rs. 5,000 if
uncontested. The amount of fee shall be fixed by the Court
keeping in view all the circumstances of the case.

5. Execution proceedings:-

In execution proceedings, the Advocate's fee to be allowed in

the case of the contest shall be 1/3rd of the fee allowed in the suit
or original proceedings and in case of uncontested proceedings,
shall be 1/5th of the fee allowed in the suit or original
proceedings. Such fee shall be charged in the first execution
application only. However, if first execution application is not
contested and some subsequent execution application is
contested, then the difference in the fee for contested application
shall be allowed in such subsequent application.

6. The fee allowed to the defendant.

(i) If the suit is dismissed for default, the Court shall allow
such fee for the counsel of the defendant, not exceeding 3/4th of
the fee calculated according to preceding rules, as may be
considered reasonable keeping in view the stage of the suit and all
other circumstances.

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(ii) If the suit is dismissed on merits, counsel's fee to the

defendant shall be allowed as calculated according to the
preceding rules.

7. Fee if case decreed partially:

If the suit is decreed partly and dismissed partly, the

counsel's fee allowed to each party should be fixed with reference
to the value of that part of the claim in respect of which he has
succeeded and shall be calculated according to preceding rules.

8. Suits for damages:

If in any suit for damages, the plaintiff succeeds as to the

whole of his cause of action but the suit is not decreed for the full
amount of damages claimed, the defendant shall not be entitled to
any allowance in counsel's fee in respect of the difference between
the amount of damages claimed and the amount decreed unless
the Court is of the opinion that the amount claimed was
unreasonable or excessive and the Court may, for that reason or
any other reason to be recorded, direct that a fee shall be allowed
to the defendant.

Such fee shall be calculated according to preceding rules

with reference to the number of damages dis-allowed to the
plaintiff.

9. Undefended suits:

If a suit remains undefended, the fee shall be calculated at

half the sum at which it would have been calculated in case of
contested suit.

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10. Residuary:

(i) In suits for the declaration, injunction etc., the value of the
suit for purpose of jurisdiction may be determined according to
law and counsel's fee calculated thereon accordingly. However, in
cases which do not admit of a proper determination of value for
purpose of jurisdiction, the Court may allow a reasonable amount
of fee keeping in view all the circumstances of the case, but it
shall not be less than Rs. 3,000.

(ii) In original cases relating to the matrimonial cause, land

acquisition, claims regarding motor vehicle accident, the Court
shall fix a reasonable amount of fee which shall be not less than
Rs. 3,000 and more than Rs. 15,000. However, in connected case,
lesser fee, as deemed reasonable, may be allowed.

(iii) An Advocate who has been engaged by the heirs of a

deceased party is not entitled to have fresh fee taxed.

(iv) Where two counsel are required by rules to represent a

party, the fees of the assisting counsel shall be equal to 1/3rd of
that of the main/ senior counsel's fee.

11. Several defendants:

(i) If several defendants having a joint or a common interest

succeed on joint defence or on separate defences substantially the
same, not more than one fee shall be allowed unless the Court
orders otherwise for reasons to be recorded. The Court shall also
direct to which of the defendants, it shall be paid or the Court
shall apportion it among the defendants in such manner as the
Court thinks fit.

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(ii) If several defendants, who have separate interest, set up

separate distinct defences and succeed thereon, a fee for each of
the defendants or set of defendants, who appeared by a separate
counsel, may be allowed in respect of his separate interest. Such
fee shall be calculated to according to preceding rules with
reference to the value of his separate interest.

12. Review:

(i) The fee to be allowed to the successful party in case of

contested review shall not exceed half of the amount allowed by
the preceding rules in case of an original decree.

(ii) If the review application is allowed, the fee in respect of

review will be irrespective of the fee which may be included in any
costs in respect of the original suit, adjudged to the successful
party by the judgment in the review.

13. Appeal:

The rules relating to the fee in original suits shall, so far as

may be, apply mutatis mutandis to the calculation of fee in
appeals. Rule 11 will apply in case of several respondents in
appeal.

14. Remand cases:

(i) If a case is remanded in an appeal to the trial Court to be

tried on merits, the trial Court may, in respect of the re-hearing,
allow such fee to the successful party as the Court considers to be
reasonable but not exceeding half the amount calculated
according to preceding rules.

(ii) If report from the trial court is called by the appellate Court
on some issue(s) (whether original or additional), the appellate

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Court may allow such additional fee for the same as it considers
to be reasonable but not exceeding half the amount calculated
according to the preceding rules, in addition to the full amount for
original trial.

(iii) In appeal preferred against a decree passed on remand, the

appellate Court shall allow such fee to the successful party as it
considers reasonable but not exceeding half the amount
calculated under the preceding rules, besides full fee for the
appeal.

15. Fee Certificate:

(i) No fee of any counsel appearing in civil cases shall be

allowed or included in an amount of costs unless, before the
commencement of arguments, a certificate signed by the counsel
regarding the amount of fee paid to him or any other counsel in
the case for the same party is filed in the Court.

(ii) However, the filing of fee certificate by a District Attorney or

other Law Officer receiving fixed monthly salary and not a
separate fee for a case and who appears on behalf of or under the
instructions of State Government or Union of India shall not be
required. In other cases, it shall be sufficient to certify that a fee
has been fixed by the appropriate authority though may not have
been actually paid.

(iii) In the case of counsel appearing on behalf of Municipality,

Local Body, Improvement Trust, Public undertaking/
Corporations/Companies/Authorities etc., it shall be sufficient to
certify that a fee has been fixed by an appropriate authority
although may not have been actually paid.

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16. Form of Certificate:

The fee certificate shall so far as possible be in the following

form:

In the court of__________________District Judge/Civil Judge,

_________.

Nature and number of the case__________________________

A.B. (add description and residence _____________________)

(Plaintiff or appellant).

Versus

C.D. (add description and residence___________________)

(Defendant or respondent).

For the purpose of having my fee allowed on taxation as against

the party or parties, who may be liable for costs under the
judgment or order of the Court, I___________, in accordance with
the rules regulating the fees of counsel in the Court, hereby
certify that in the above case, the following fees were paid to me
as my exclusive fee on the dates and by the person or persons
specified below before the commencement of the argument and
that no portion of such fees has been, or has been agreed to be,
returned or remitted or appropriated to the use of any other
person by me or by any one acting on my behalf.

Matter Fee Date of By whom Address of person who

payment paid actually made such
payment

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Signature_______________________________

Date of Signature__________________________

Address of Legal Advocate___________________"

17. Discretion of Court.

Nothing in these rules effects the discretion of the Court to

allow such fee as may appear just, reasonable and equitable in
any particular case.

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Chapter-27
Petition Writers
In exercise of the powers conferred by Section 25 of the
Himachal Pradesh Courts Act, 1976 (Act No. 23 of 1976) read with
Section 477 of the Code of Criminal Procedure, 1973 (Act No. 2 of
1974), the High Court of Himachal Pradesh with the previous
approval of the State Government has made the rules, regarding
the grant of licence and conduct of Petition Writers in Himachal
Pradesh. Some of the salient features are as under:-

(i) Practice as a Petition Writer:-

No person can practice as a Petition Writer in Himachal

Pradesh unless he has been duly licensed under these rules.
However, this does not apply to any Advocate or Pleader.

(ii) Writing of Petition

A petition shall not be received by a Court unless it is

written by the party or his recognized agent, or by a legal
practitioner or his clerk on his behalf and bearing the signatures
of the legal practitioner or by a Petition Writer except in the case
of an application filed by an accused person in the custody
bearing the name and status of the person writing the document
appears on it.

(iii) Number of licences

The number of licences granted to the petition writers shall

be in accordance with the volume of work at a particular place.

(iv) Examination compulsory

It shall be mandatory for the petition writer to pass the

examination prescribed under the Rules.

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(v) Qualifications

A person seeking his appointment as petition writer should

be a permanent resident of the district where he wants to
practice, have passed at least the matriculation or the Higher
Secondary Examination or equivalent examination and should
have attained the age of 21 years on the date on which he is
seeking license but should not be a Government servant or a
quasi-Government servant or is engaged in any remunerative
profession or trade, or in service of any legal practitioner as a
licensed Clerk nor any person be so licensed within six months of
his quitting the service of the legal practitioner; or should not
have been declared as a tout, or should not have been convicted
for a Criminal offence involving moral turpitude; or should not
have been removed from the Government or quasi-Government
service or from the service of a Local body on grounds of
misconduct.

(vi) Procedure of appointment:

The District judge shall notify the vacancies and the place
where they are available on the notice board. The last date for
submitting the application shall also be mentioned in the notice.
A person desirous of appointment as petition writer shall apply in
prescribed form along with the prescribed documents. The date of
examination shall be notified at least 15 days prior to the date
fixed for the same. The examination shall be conducted in the
prescribed subjects at the prescribed place. The list of successful
candidates shall be declared and maintained by District Judge.

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(vii) Grant, Renewal and Suspension of License:-

The successful candidate will apply for the grant of license

in the prescribed form and if the number of successful candidates
are more than number of vacancies, the licenses shall be granted
on the basis of merit. A fee of Rs. 5/- in Court fee stamps shall be
charged for each licence on enrolment and the licence shall
remain valid only up to 30th day of December in each year and will
be renewed between the 1st and 31st of December, on payment of
renewal fee of Rs. 5/- in court fee stamps. A person to whom the
license has been granted shall be entitled to practice as petition
writer till the license is surrendered, revoked, suspended or
cancelled in accordance with the Rules.

Every licensed petition writer shall, between the first and

thirty first day of July of each year, produce or if he ordinarily
practices in a Subordinate Court, forward through that Court, his
licence, for the inspection of the District Judge. District Judge will
make a note of such production and inspection with the date on
the licence. In case of failure the license shall be suspended and
notice to this effect posted on the notice board. It will be
permissible for the petition writer whose license has been so
suspended to produce his license within one month of the due
date and the order of suspension may be withdrawn by the
District Judge on showing sufficient cause subject to deposit of
late fee of Rs. 5/- in the form of court fee stamps. The petition
writer shall practice at the place for which the license has been
granted but the place can be transferred by the District Judge.

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(viii) Conduct of Petition Writer:-

Petition writer shall maintain a register in the prescribed

form for each calendar year in the prescribed form in which all
the petitions written by petition writer shall be entered. No blank
space shall be kept in the same and if any blank space occurs the
same shall be cancelled by the Presiding Officer under his
signatures. The register shall be inspected by the principal
Judicial Officer and in his absence by the Revenue Officer at the
place for which the licence is held at the close of the year. The
register will be personally deposited by the petition writers
working in the headquarters and through the Civil Judge for the
area concerned in the Record Room of District Judge within one
month of the expiry of the calendar year and in case of failure to
do so, the license shall be suspended after one month and
cancelled after three months of the expiry of stipulated time after
affording an opportunity of hearing to the petition writer.

The petition writer shall put his seal in the prescribed form
on every document written by him. Every petition shall be written
in simple language and shall bear the certificate at the foot that to
the best of his knowledge and belief, the petition expresses the
true meaning of the petitioner and that its contents have been
fully explained to the petitioner. Where a petition is found to be
illegible, obscure, and prolix or contains any irrelevant matters of
mis-quotation or is due to any other cause objectionable, the
court may order a licensed petition writer to rewrite at his own
cost any petition written by him and may record note on the
licence to this effect. No licensed petition writer shall dictate
petition to, or cause a petition to be written by, a person who is
not a licensed petition writer. He shall not write an unnecessary

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petition nor shall cause it to be written from any other person. He

shall charge the fee according to the approved rates only and shall
not agree to share fruits of litigation. He shall also not accept
Mukhtiarnama for the conduct of any civil, criminal or revenue
case, other than a case in which he himself or his near relation is
a party. He shall surrender the license in case of his resignation,
acceptance of govt. job or the service of legal practitioner or on
suspension, revocation or cancellation under the Rules forthwith
and in any case not later than within a week from the date the
order of suspension/cancellation and/or revocation is served
upon him, surrender his licence to the Court of District Judge.

A licence issued under these rules shall be liable to be

revoked or cancelled by the District Judge if the petition writer:-

i) is habitually irregular in attending the court or

generally remains absent during court house; or has
remained absent from his headquarters for more than a
week without sufficient cause; or have been declared a
tout; or has been found guilty of abetment or
participation in any illegal transaction or unfair
dealings; or has been found guilty of disobedience of
any lawful order; or has participated in any seditious or
disloyal movement; or has been found guilty of conduct
unbecoming of a petition writer; or is found to have
tampered with any court record; or habitually writers
petitions contrary to rules 25 containing irrelevant
matter, or which are informal or otherwise objectionable
or uses disrespectful, insulting or abusive language in
the course of his business as petition writer; or is found
to be unfit to practice as a petition writer by reason of

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any fraudulent or improper conduct in the discharge of

his duties; or is convicted of a criminal offence involving
moral turpitude; or is found to have charged excessive
amount for writing petitions; or is found to have acted
in violation of any of these rules.

Name of a petition writer who gives up practicing as such for

over two years shall be struck off the register without any notice
to him.

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Chapter-28
Subordinate Courts’ Employees

A. Annual Reports

1. A separate file of annual reports of work and conduct shall

be maintained for every official. The annual reports shall be
submitted in the prescribed form.

2. In the first week of April every year, blank forms should be

supplied to the Judicial Officers by the Superintendent to the
District and Sessions Judge and the Clerk of Court to Senior Civil
Judge, as the case may be, for general line and process serving
establishment respectively, for them to record remarks on the
work and conduct of the officials serving under them for the
preceding calendar year. The personal files of any officials against
whom adverse remarks have been made in the previous year
should accompany these forms to enable the Judicial Officers to
state expressly what steps, if any, have been taken by the officials
concerned to remedy the defects communicated to them
previously. The Judicial Officers should get relevant part of the
form completed by the concerned officials and should then record
their own remarks and transmit the forms in a closed cover to the
District and Sessions Judge/Senior Civil Judge according to as
the official concerned is a member of the general line or process-
serving establishment. A Judicial Officer on leaving a District
should, if he has not already furnished a report, obtain copies of
the prescribed forms from the office of District and Sessions
Judge/ Senior Civil Judge, record his remarks on the officials
working under him and transmit the forms to the District and
Sessions Judge/Senior Civil Judge, as the case may be.

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3. District and Sessions Judge/Senior Civil Judge should take

steps to see that annual reports on the work and conduct of all
officials in the District are received by them not later than the 30th
April each year. After they have recorded their own remarks, these
reports should be communicated to the officials concerned. The
original reports should be kept in their offices. In deciding
questions of promotions including the grant of higher scales, due
regard should invariably be paid to the entries made in the
annual reports.

B. Security

4. Every ministerial officer of a Court who is entrusted with the

custody of public money or property or who by reason of his office
is entrusted with the receipt, custody or control of moneys,
securities for money or other property, shall give security in such
an amount for the due discharge of the trusts of his office and for
the due account of all moneys, securities for money or other
property which shall come into his possession by reason of his
office as shall be equal to the maximum amount which he
ordinarily has in his hands at any one time.

The District Judge, subject to the control of the High Court,

shall use his discretion in calculating this amount and shall be
responsible for seeing that the sum left in the hands of any of his
subordinates is not more than the amount of the security taken
from such subordinate.

Security shall in no case be dispensed with except where an

exemption may be made under special or general orders of
Government. The exemption cannot be sought on the ground that
a person is an apprentice, outsider or another temporary

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incumbent, and he shall be required to furnish security or

execute a personal bond as may be necessary under the rules.

5. The amount of security to be taken should ordinarily be as

given in the table below; provided that if the permanent advance
held by the official is more than the amount specified, the security
should not be less than the permanent advance so held:-

DISTRICT AND SESSIONS COURTS

Superintendent Rs. 2000/-

Nazir Rs. 2000/-

Copyists or Independent Examiners in-Charge Rs.

1000/- of Copying Agencies Accounts

CIVIL JUDGES COURTS

Civil Nazir Rs. 3000/-

Bailiff Rs. 2000/-

Clerk of Court of Senior Civil Judge Rs. 1000/-

Naib Nazirs Rs. 2000/-

Readers, Civil Judges’ Courts Rs. 1000/-

Process Servers Rs. 500/-

Any other official required to receive, retain Rs. 1000/-.

Or pay money or have custody of property:

6. A register of officials required to give security shall be

maintained in the office of District and Sessions Judge and Senior
Civil Judge with following particulars:

1. Name of the Official.

2. Designation of the Official,

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3. Amount of security deposited.

4. Date of deposit of security.

5. Date on which the security bond is executed.

6. Certificate in the Head of the Office’s own handwriting that he

has satisfied himself that the bond has been executed by the
person or persons whose signature it bears.

7. Form of security.

8. Where deposited for safe custody.

9. Remarks.

The register shall be kept by the Superintendent or the

Clerk of Court, as the case may be, and inspected half-yearly by
the District Judge/Senior Civil Judge, as the case may be, who
shall date and sign the register in token of inspection.

A person required to furnish the security but who fails to do

so as required by the preceding sub-rule shall not be allowed to
hold that post and also other posts of equivalent status. A leave
vacancy of any of such official who is required to furnish security
shall be filled up by an official who has already furnished security
in his former office or from a reserve of men who have furnished
securities for these appointments.

In order to provide against cases in which discovery may be

made, after the official has vacated his office, of defalcations made
prior to such vacation of office, the security deposited by him
shall be retained by the District Judge for 6 months after the
official has vacated his office.

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MISCELLANEOUS

1. Dress of Military Officers and Soldiers appearing in

Courts.

Courts shall see that the following instructions for the dress
of Officers and men of Army, Navy and Air Force appearing before
a Civil Court are observed:-

(1) Any such person required to attend a Court in his official

capacity should appear in uniform with a sword or side arms.

Attendance in an official capacity includes attendance –

(a) as a witness, when evidence has to be given of matters

which come under his cognizance in his official capacity;

(b) by an officer for the purpose of watching a case on behalf of

a person under his command.

(2) Any such person required to attend a Court otherwise than

in his official capacity may appear either in plain clothes or
uniform.

(3) Any such person shall not wear his sword or side arms if he
appears in the character of an accused person, or under military
arrest or if the Presiding Officer of the Court thinks it necessary to
require the surrender of his arms, in which case a statement of
the reasons for making the order shall be recorded by the
Presiding Officer and, if so requested, forwarded for the
information of the Chief of the Army Staff.

(4) Firearms shall under no circumstances be taken into Court.

(3) An Officer wearing a European head-dress shall remove the

same while the Judge is present, except when he is on duty
underarms with a party or escort inside the Court.

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2. Restriction on carrying of arms.

Save as provided in the preceding Rule, no person, not

belonging to the police force on duty, shall carry or have in his
possession any arm as defined in clause (c) of subsection (l) of
section 2 of the Arms Act, 1959 within the Court premises.

EXPLANATION-I:

The expression “police force on duty” includes such

members of the police force who escort under trials or are posted
as guard of the judicial lock up or are otherwise posted within the
Court premises for purposes of security and maintenance of law
and order, or come to Court for evidence or monitoring of
Government cases or other Government work.

EXPLANATION-II:

The expression “Court premises” includes all lands,

buildings, and structures therein, but does not include residential
quarters, if any, of the officers and the staff, situate within its
limits.

3. Court dress for officers and lawyers.

All Presiding Officers of District and Civil Courts and

advocates appearing before them shall wear a buttoned-up coat,
achkan or sherwani of a black colour. They may wear an open
neck coat of the same colour instead, but if they are not entitled
to use bands, they shall wear a black tie with it. With the coat,
trousers and with the achkan or sherwani churidar pyjama or
trousers shall be worn. Lady presiding officer shall wear a black
or white sari and blouse or salwar and kameez. Ladies appearing
before the Civil Courts as advocates shall wear a black or a white
sari and blouse or salwar and kameez. They may also wear

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dark/sober coloured dress to the court. When presiding on the

Bench, District Judges, Additional District Judges may wear, over
a dark-coloured coat, a Judge’s or King’s Counsel’s gown made of
back alpaca, with Barrister’s bands.

4. Government servants prohibited from participation in

the political movement.

The following instructions issued by the Government

regarding the attitude to be maintained by officers in the service
of Government towards political or quasi-political movements
shall be observed:-

(i) As a general rule, no officer of Government should take part

in any political movement or attend a political meeting, except
when it is necessary for him to do so in the legitimate discharge of
his official duties.

(ii) No officer of Government may take part in the proceedings

of a political meeting, or in organizing or promoting a political
meeting or agitation.

(iii) If in any case, an officer is in doubt whether any action

which he proposes to take would contravene the terms of this
order the matter shall be referred to the head of the department
or district, and, if necessary to the Government of the Himachal
Pradesh.

5. Report of casualty among Judicial Officers.

All District Judges shall report to the High Court, without

delay, any casualty that may occur among gazetted judicial
officers subordinate to them.

6. Prohibition against becoming arbitrator

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No Judge or ministerial official of a Civil Court shall accept

the office of the arbitrator in any civil action without the
permission of the High Court in the case of a Judge and of the
District Judge in the case of a ministerial official being first
obtained. In any application for such permission, the
circumstances of the case and the names of the parties shall be
stated, and the special reasons which may have led the officer to
entertain a request for his services as an arbitrator shall be
specified.

7. Permission to District Judge to leave the district.

Subject to the general instructions by the High Court no

District Judge shall leave the district whether during closed
holidays or at any other times, previously having obtained
permission from the High Court.

8. Permission to other officers to leave the district.

No Judicial Officer under the Administrative Control of the

District Judge, including the Additional District and Sessions
Judge and Additional Sessions Judge shall leave the district to
which he is attached, either during closed holidays or at any other
time, without having previously obtained permission from the
District Judge, with whom he shall leave his address in order to
enable the District Judge to communicate with him at once in his
absence, should this be necessary. Any breach of this rule shall
be reported to the High Court by or through the District Judge.

The District Judge shall pass orders on such applications

and communicate the same to the Judicial Officers, within a
reasonable time.

9. Channel of correspondence for Judicial Officers.

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Every communication made to the High Court by a Judicial

Officer under the administrative control of the District Judge,
whether it be an application regarding leave, transfer, promotion,
or any other matter, shall be made through the District Judge
and not otherwise.

10. Information about a casual leave of transferred officer.

When an Additional District and Sessions Judge or a Civil

Judge is transferred from one district to another, the District
Judge authorized to grant him casual leave, shall transmit to the
District Judge of the District to which he is transferred a copy of
the relevant extract from the register of casual leave relating to
the casual leave taken by him during the calendar year and the
District Judge of the district to which he is transferred shall cause
such extract to be copied in his register.

11. Delegation of power under various enactments:

High Court and state government has delegated the power

conferred under various Acts on the judicial officers as under:

(I) Guardian and Wards Act

C.L. No. HHC. Admn. 6(24)/74-

5356.Dated Ist November, 1978

Adopted following notification:

“ In exercise of the powers vested in it under Sec. 4-A of the

Guardian and Wards Act, 1890, read with Section 14(1) of the
Himachal Pradesh Courts Act, 1976 and in supersession of all
previous notifications issued in this behalf, the High Court of
Himachal Pradesh empowers all the Senior Sub Judges in

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Himachal Pradesh to dispose of any proceedings under the

Guardian and Wars Act, 1890 with in their local jurisdiction with
effect from the date of publication of this notification in the
Himachal Pradesh Rajpatra.”

(ii) Provincial Small Cause Courts Act

C.L. No. HHC. Admn. 6(24)/74-7334, Dated Ist November,

1978

Adopts notification as under:-

“ In exercise of the powers vested in it under Sec. 13 of the

Himachal Pradesh Courts Act, 1976 (Act No. 23 of 1976), the High
Court of Himachal Pradesh in supersession of all previous
notifications issued in this behalf is pleased to confer the Senior
Subordinate Judges of the First Class working in Himachal
Pradesh with the jurisdiction of judge of court of Small Causes
under the Provincial Small Cause Court Act, 1887 for trial of suits
up to value of Rs. 1000/- within their respective territorial
jurisdiction with effect from the date of publication of this
notification in the Himachal Rajpatra.”

(iii) Probate Provisions

C.L. No. HHC/Admn.6(24)/74-7345,Dt. 1st November,

1978

Conveys notification as follows:

“In exercise of powers vested in it under Section 265 of

the Indian Succession Act (Act No XXIX of 1925) & in
supersession of all previous notifications issued in this behalf, the
High Court of Himachal Pradesh is pleased to appoint all the

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Subordinate Judges of the 1st Class in the State of Himachal

Pradesh to act for the District Judges as the Delegates to grant
probate and letters of administration in non-contentious cases
within their local jurisdiction from the date of publication of this
notification in the Himachal Pradesh Rajpatra.”

(iv) Rent Act

(Endst.) C.L. No. HHC/Admn. 6(16)75-6620, Dated 4th/7th

June, 1988 adopting letter No. LSg-A(3)-1/71-II, Dated
26th May, 1988

Conveys that in supersession of the Departments

Notification No. 1-38/70-LSG-II, Dated 7th July, 1975, and in
exercise of the powers conferred by clause © of Section 2 of the
Himachal Pradesh Urban Rent Control Act, 1978 (Act No. 25 of
1987), the Governor Himachal Pradesh, is pleased to appoint all
the Senior Sub Judges and Sub Judges in Himachal Pradesh to
perform the functions of the Controllers under the aforesaid Act
within their respective jurisdictions, with immediate effect.

(v) Succession Act.

(Endst.) C.L. No. HHC/Admn. 6(24)/74-II- 3266, Dt. 8th

March, 1990 adopting Notification No. Home-II-(B) 4-
4/76-III, Dt. 21st Feb., 1990, received from the
Financial Commissioner-cum- Secty. (Home) to the
Govt. of HP.

Conveys’ In supersession of all previous notification issued

in this behalf and in exercise of the powers vested in him under
Section (1) of Section 388 of the Indian Succession Act, 1925 (Act
No. 39 of 1925) the Governor, Himachal Pradesh is pleased to

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invest all the Subordinate Judges First Class, in the Sate with the
Power to exercise functions of the District Judge under Part ‘X’ of
the Act ibid with in their respective territorial jurisdiction with
immediate effect.”

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