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PROTOCOL FOR EXPEDITIOUS

DISPOSAL OF CASES IN CIVIL


COURTS

Prepared by:
Surinder S. Rathi
Additional District Judge

CONTENTS
PROTOCOL FOR EXPEDITIOUS DISPOSAL OF CASES IN CIVIL COURTS

1.

Preface

2.

DEFINITIONS

3.

Part A-Before filing of the suit

4.

Part B Post filing before first hearing

5.

PART C FIRST HEARING AND ORDERSHEET OF THE CASE

6.

Part D Post Completion of pleadings

4
5 to 6

6
6 to 9

7.

Part E Post framing of the issues.

10
10 to 15

8.

Part F Role of DSLSA/DLSA empaneled Advocate

15 to 16

9.

APPENDIX

17 to 25

Protocol for expeditious disposal of cases in Civil Courts by Surinder S. Rathi, AD&SJ

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PREFACE
The objective of this Protocol is to ensure that cases filed in Civil Courts are dealt with
and tried in an expeditious manner. It aims to ensure that Civil Cases are disposed off on
merits preferably within six months but not later than one year.
Judicial Courts in our Country have always been inundated with flood of cases and
have been struggling hard to keep pace with the ever increasing in flow of cases. Speedy
disposal of cases has always been a mirage with which judiciary has been struggling tirelessly.
Causes of delay in quick disposal of cases can be varied viz. lack of infrastructure, poor
judge population ratio, lack of human resource including cumbersome and long drawn
procedure codes. Amendments have been introduced in the Civil Procedure Code and High
Court Rules and Procedures from time to time. On the basis of representations made by
Hon'ble Supreme Court, Hon'ble High Courts and Law Commission of India as well.
This struggle for further simplifying the Procedure Codes so that they aid in timely and
quick disposal of cases while maintaining all the goodness contained in them is an ongoing
process. As an agenda to the CPC and High Court Rules and Procedures, while relying on
various judicial pronouncements and guidelines issued by Hon'ble Courts, this Protocol aims at
providing a simplified methodology of day to day Court working in Civil Courts so that instances
of inordinate delay in dispensation of justice in Courts of Civil Judicature is curtailed or at least
minimized.
This Protocol has been divided into following parts on the basis of Roles to be played
by Stakeholders.
Part A Before filing of the suit.
Part B Post filing before first hearing.
Part C First hearing and ordersheet of the case.
Part D Post Completion of pleadings.
Part E Post framing of the issues.
Part F Role of DSLSA/DLSA empaneled Advocate.
Part G- Appendix

Protocol for expeditious disposal of cases in Civil Courts by Surinder S. Rathi, AD&SJ

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B.

Definitions-

1. Code means Civil Procedure Code and rules framed there under.
2. Legal representative means a person who in law represents the estate of a deceased
person, and includes any person who inter meddles with the estate of the deceased and where
a party sues or is sued in a representative character the person on whom the estate devolves
on the death of the party so suing or sued.( Section as defined in Section 2(11) CPC).
3. Pleader means any person entitled to appear and plead for another in Court, and includes
an advocate, a vakil and an attorney of a High Court.

(as defined in Section 2(15) CPC).

4. Commissioner means Advocate appointed by the Court by name as the Commissioner


under Order 18 Rule 4 CPC for recording of evidence.

Examination-in-chief,

cross-

examination and re-examination as defined in Section 133 of Evidence Act.


5. Document Document means any matter expressed or described upon any substance by

means of letters, figures or marks, or by more than one of those means, intended to be used,
or which may be used, for the purpose of recording that matter. ( as defined in Section 3 of
Evidence Act).
6. Evidence Evidence means and includes-

(1) all statements which the Court permits or requires to be made before it by witnesses, ion
relation to matters of fact under inquiry, such statements are called oral evidence;
(2) all documents including electronic records produced for the inpsection of the Court, such
documents are called documentary evidence. ( as defined in Section 3 of Evidence Act).
7. Relevant means One fact is said to be relevant to another when the one is connected with

the other in any of the ways referred to in the provisions of this Act relating to the relevancy of
facts.
8. Exhibition of documents Primary evidence as defined in Section 62 of Evidence Act and
secondary evidence as defined in Section 63 of Evidence Act.

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9. Electronic record certificate means certificate issued by a responsible officer under 65 B of


the Evidence Act.
11. Commissioner means Lawyer empaneled with DSLSA/DLSA/DHLSC who is assigned
with the matter or a Lawyer appointed by the Court by name.
12. Legal Service includes the rendering of any service in the conduct of any case or other
legal proceedings before any Court or other authority or a Tribunal and the giving of advice on
any legal matter as defined in Section 2 (c) of Legal Services Authorities Act, 1987.
Part A Before filing of the suit.
In so far as every Civil Suit or a Petition is conceived and drafted by the law office of a
Lawyer or that of Legal Services Authority, it is expected of them that they shall take care of
following suggestion:1. That in terms of Order 7 of CPC, the name and address of litigating parties shall be
clearly spelled out alongwith pincodes and nearby landmark, if any.
2. In case the work place or permanent address of litigant is available, the same shall also
be provided.
3. The memo of parties shall specifically disclosed the gender and age of the parties as
nearly as possible.
4. That the memo of parties shall contain the email IDs as well as mobile numbers of not
only litigating parties but also that of their Authorised Representatives, if any, or Ld.
Counsels.
5. In case either of the defendant is impleaded as a Proforma Party and no relief has been
sought qua them, then there shall be a specific mention of the same.
6. In case of a suit is filed by or against a juristic person, the nature thereof shall be clearly
spealt out viz., HUF, partnership, society, company, Trust, or Deity.
7. The plaint should contain a list of dates/events in a chronological manner.
8. A separate portion shall be dedicated to disclose the history of previous or connected
limitations between the same parties or properties or the right asserted or sought to be
denied.

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9. The subject of the suit should be clear and specific.


10. The suit shall accompany the mandatory declaration form mandating disclosure of
valuation of suit for the purpose of jurisdiction apart from valuation of each relief prayed
with specific mention of Court fees paid on each relief.
11. The text of the plaint or the Written Statement shall not be unduly lengthy and should
only contain relevant facts necessary for disposal of reliefs sought.
12. The plaint should not contain judicial pronouncements or repeat facts or reproduction of
statutory provisions.
13. The plaint shall contain dedicated portion disclosing under a specific head, cause of
action, limitation, valuation and Court fees and jurisdiction apart from prayers.
14. The para meant for limitation shall specifically state the Article number of the Schedule
attached to Limitation Act, 1963 under which the limitation of the suit has been
calculated.
15. The verification clause in the company affidavit shall specifically contained the details of
the paras in the plaint which are based on personal knowledge, or information received
and believed to be true or as per legal advice.
16. The list of documents sought to be relied shall be specifically indexed and numbered
and shall contain a disclosure if the document filed is original or certified copy of
photocopy of electronic record.
17. Every document other than original shall be self attested by the party on the rear side of
the document.
18. The vakalatnama shall contain names, signatures and enrollment numbers of all the
lawyers attached to the chamber in addition to the Law firm, if any.
Part B Post filing before first hearing.
1. Upon the suit being filed in the Facilitation Centre, it shall be ensured that the suit
contains the following:
*

The format declaring valuation of suit for the purpose of Court fees and

jurisdiction is duly filled.

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Proper Court fees as per valuation is duly appended.

Duly signed vakalatnama with Court fee stamps is appended.

The paper book of the suit is properly numbered.

The plaint is duly signed and verified.

Part C First hearing and ordersheet of the case.


1. Ld. Judge shall keep in mind the first date on which the judicial file is taken on record is
a very important stage and the summons of the suit and notice of the pending
application shall not be issued mechanically.
2. Ld. Judge shall ensure that the plaintiff is represented by a regular counsel or a duly
authorised counsel who is aware of the facts so as to answer the queries of the Court
qua the case.
3. Upon being presented the fresh suit, Ld. Judge shall carefully go through the entire
plaint in order to ascertain if the broad facts constituting the cause of action are
available.
4. Ld. Judge shall check if the suit is within jurisdiction and it does not suffer from any
other anamoly

as per

Order 7 Rule 11 CPC like lack of territorial or pecuniary

jurisdiction.
5. Ld. Judge shall check that in case the documents relied in the plaint or the pleading are
electronic record, they accompany Section 65 B Evidence Act Certificate.
6. Ld. Judge shall check that in case of any breach of contract like service contract,
landlord builder contract, leave contract, trading of goods etc.if there exist a mandatory
arbitration contract for dissolution of disputes arising therein.

In case of existing

arbitration clause, the plaint shall be rejected and plaintiff be directed to approach the
Arbitral Tribunal and copy of the order be sent to the defendant through registered post
for information.
7. In case of need Ld. Judge shall not hesitate in recording statement of the parties under
Order 10.
8. In case the suit is under Order 37 CPC Ld. Judge shall ensure that all necessary
original documents are filed on record.

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Upon recording his satisfaction on the above issues, Ld. Judge shall pass appropriate
order as per below mention template. The purpose thereof is that no judicial time is
wasted in service of the defendants or completion of pleadings by the parties-----------

Template of the First Order of Civil Court in Fresh SuitPresent:

Shri __________________ Ld. Counsel for the plaintiff.


Fresh suit received by way of assignment. It be checked and registered as per

rules.
I have gone through the plaint and I am per se satisfied that this suit is within
territorial and pecuniary jurisdiction of this Court and is also within limitation. The suit has been
properly valued for the purpose of Court fees and jurisdiction and appropriate Court fees duly
stand paid. The suit does not suffer from any apparent defect warranting its rejection at this
juncture.
Issue summons of the suit and notice of the application on filing of PF within

Part I-

Three (3) to seven (7) days as per (O.5 r.9 CPC) through:
1. Process Server.
2.

Registered post.

3. Speed Post.
4. Authorised courier.
5. Email.
Scan of the summons issued by the Court, soft copy of plaint and the annexures
be sent to the available email IDs of the defendant/s.
Part II- Incharge Nazarat Branch is hereby directed to ensure that the processes issued shall
be executed and served preferably within one week (7 days) but not later than 15 days.
Part III-

In case the defendant refuses to accept the service or is not found available

despite Three (3) mandatory visits, Process Server shall affix the summons at a conspicuous
place of the defendant's address and leave the copy of plaint and annexures there as per O.5
r.17 CPC alongwith affidavit of service.

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In case the defendant is

reported to have left without address, then fresh

process be issued at the fresh address if any available with the plaintiff on new PF. In case no
other address is available, then defendant be served by way of affixation at the last available
address on new PF to be filed within 7 days of inspection of the file. Incharge Nazarat Branch
shall ensure that the served/unserved/affixation report shall reach the Court within outer limit of
15 days as per O.5 r.18 CPC.
Part IV-

Ld. Counsel for plaintiff shall inspect the Judicial File on the 15th day of the filing

of PF. He shall fill the Service Report Form (SRF) available on the file. The Tracking Report
of registered post, speed post, courier and email service proof be also filed at the time of
inspection of record. Ahlmad of the Court shall also fill this SRF qua service position.
Part V- In case no service is effected upon the defendant for any reason and ld. Counsel for
plaintiff deems fit that service needs to be effected by substituted means he shall move an
application within one week of receipt of unserved process.
Part VI-

In case of due service of summons of the suit, defendant shall file Written

Statement within 30 days of receipt thereof. In case defendant finds that the paper book of the
plaint received by him is incomplete or illegible, he/she shall move an interim application before
Court within 7 days instead of waiting for the next date. No such plea shall be entertained
thereafter. Advance copy of Written Statement shall be sent to the plaintiff by registered
post/courier and email, if any.
In case no Written Statement is filed by the defendant within 30 days and no
extension of time is sought, then the Court may pronounce judgment under O.8 r.10 CPC.
Part VIIStatement.

Plaintiff may file replication, if any, within 15 days of receipt of Written


Plaintiff shall serve the copy of the replication upon the defendant through

registered post/courier and email, if any.


Part VIII-

Both the parties are advised to file only self attested copy or print outs of

documents relied and shall retain the original documents with them in their respective custody.
Original documents shall be produced only at the stage of framing of issues, at the time of
evidence and final arguments.
Part IX-

Both the sides are directed to file a separate affidavit qua

Admission/Denial of each or every document filed alongwith the pleadings in the annexed
format, before the date of framing of issues. It is clarified that the admission/denial shall be

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done on the basis of self attested copies and the same shall be subject to production of original
at the time of framing of issues.
Part X- In case either of the parties is desirous of moving an interim application, they shall do
so in between the date of hearings by serving advance copy to the other side by registered
post/courier and email, if any. Such application shall be heard and disposed within one week of
receipt of such application once both parties appear.
Upon completion of pleadings, parties would be given an option to got for ADR
(Viz. Arbitration, Mediation and Lok Adalat). In case no settlement is arrived at then the case
would be sent for recording of evidence by Local Commissioner empaneled with DSLSA/DLSA
in terms of Order 18 Rule 5 CPC, Rameshwari Devi Case and Salem Bar Association Case of
Hon'ble Supreme Court. Evidence will be completed in one month period and case shall be
taken up for final arguments within 15 days of completion of evidence.
Copy of this order be sent to defendant alongwith summons of the suit.
Copy of this order be also sent to plaintiff as well as ld. Counsel for plaintiff apart from
defendant at their following email IDs:
Plaintiff's email ID:
Ld. counsel for Plaintiff's email
ID:
Defendant's email ID:

Now to come up for service, completion of pleadings and disposal of miscellaneous


application, if any and framing of issues on date _________________.
Sd/Civil Judge/ADJ
------------------END OF TEMPLATE----------------------Part D Post Completion of pleadings-

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1. In case defendant does not put in appearance despite due service and does not file the
Written Statement, then Ld. Judge shall decide on striking of the defence of the
defendant and simultaneously go through the plaint and the supporting documents to
ascertain if it is a fit case of passing off judgment under Order 8 Rule 5 CPC R/w Order
8 Rule 10 CPC.
2. In case it is found that the plaint does not warrant passing off immediate decree, then
appropriate legal and factual issues may be identified and plaintiff be invited to lead
evidence by way of affidavit in the Court.
3. Upon completion of pleadings, Ld. Judge shall carefully sift through them to ascertain if
there are admission of facts warranting passing of full or part judgment on admission
under Order 12 Rule 6 CPC.
4. In case of ambiguity in pleadings a need Ld. Judge may examine the parties under
Order 10 CPC.
5. Ld. Judge shall invite the parties to do admission/denial of document if no so done by
way of affidavit by that time, so as to narrow down the factual and legal contentions of
the site.
6. Ld. Judge shall look into the case in terms of ascertaining if there exist elements of
settlement in terms of Section 89 of CPC.
7. In case, case is such where settlement is possible between the parties, the matter shall
be referred to Mediation Centre, Daily Continuous Lok Adalat or National Lok Adalat,
as deemed fit.
8. In remaining cases or in cases where no settlement could be arrived at despite attempt,
issues shall be identified out of the pleadings by the Ld. Judge while clearly specifying
that the onus placed on the respective sides.
Part E Post framing of the issues
1. Upon identification of issues under Order 14 of CPC Ld. Judge shall consider the case
for referral to Ld. Local Commissioner for recording of evidence under Order 18 Rule 4
CPC.
2. All the cases in a Civil Court shall be deemed fit for recording of evidence before Ld.
LC however only in exceptional cases where the facts are such which warrants that the

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evidence shall be recorded before the Ld. Judge itself, the matter shall be retained by
the Court for the purpose of recording of evidence.
3. As per this Protocol the evidence shall be recorded by Ld. Members of the Bar
empaneled by the list at Delhi State Legal Services Authority (DSLSA) or District Legal
Services Authorities (DLSAs) or Delhi High Court Legal Services Committee
(DHCLSC).
4. The evidence can also be recorded by a lawyer appointed by a Civil Court either upon
a consented name provided by the parties or any other member of the Bar found fit by
the Court under the Protocol for the purpose.
5. While assigning the case, Ld. Judge shall pass an order containing the under
mentioned seven heads from A to G.
A.

Assignment of case by court for recording of evidence1. Evidence shall be recorded preferably on the same day. It is is not possible on the
same day, then on the next day. Evidence shall continue on day to
conclusion. Any alteration in schedule for recording of

day basis, till

evidence if needed shall be

decided by the Ld. Commissioner as per convenience of all concerned.


2. Copy of such referral order shall be given dasti to all the parties with one additional
copy for placing before Ld. Commissioner for compliance.
3. It is clarified that the judicial file shall not be sent or summoned for recording of
evidence by the Ld. Commissioner.
4. The affidavit of evidence in chief of a witness shall be prepared within two weeks of
framing of issues by the Court.
5. An advance copy of affidavit may be supplied to opposite party. Even if the same is
not supplied, still the opposite side shall come prepared for cross-examination as per
pleadings. In case the opposite side is desirous of production of any document by the
witness on any other entity for the purpose of cross-examination, an application
requesting the same shall be moved within two weeks of framing of issues.

B.

Recording of evidence by the Commissioner-

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1. Ld. Commissioner shall record evidence only in the Court Complex

at his given

address or not elsewhere. Evidence shall be recorded between 10.00 AM to 5.00 PM.
It can carry on beyond 5.00 PM as well in case both parties agree. It can even be
recorded on a holiday if all the stake holder are comfortable and agreeable.
2. Ld. Commissioner shall proceed to record the examination by first recording the
deposition of litigating party before examining additional summoned witnesses.
3. Ld. Commissioner shall give oath to the witnesses under examination as a delegate of
the Court as per Oaths Act.
4. The evidence shall be preferably typed on a computer or in case of non- availability
shall be neatly hand written.
5. Ld. Commissioner shall conclude the recording of evidence preferably on the same day
or within shortest time possible but not later than within 30 days of assignment of a
case, which is extendable by another 30 days in case the evidence is not concluded
despite best efforts.
6. Both PE and DE shall be concluded within 15 days each of initiation. In case there are
more than two witnesses for each side, one week per witness may be added to the 15
day period.
7. All the witnesses and their Ld. Counsel shall be provided comfortable sitting space.
8. Ld. Commissioner shall exhibit all the documents sought to be proved by a party on
record. In case of any objection to exhibition of the documents by the either side, the
objection shall be recorded

in some detail and left open with an assurance that mere

marking of such exhibits will not be treated as conclusive proof thereof and that
admissibility of such document shall be decided by the referral Court at final stage.
9. Ld. Commissioner shall make an observation in the record of evidence of all original
documents produced and he shall sign the exhibits with an endorsement OSR
wherever necessary.
10. On the first date, when all the concerned parties appear before the Commissioner, he
shall proceed to record the cross-examination and re-examination , if any, of a witness
in English language.

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11. Once started the cross-examination shall be continued on day to day basis.

In case

of any hardship viz. ill health etc. the case can be deferred for a day or two

not later

than three days.


12. On the request of ld. Counsel cross-examining the witness, portions of deposition may
be recorded in question-answer form.
13. All the objections raised during cross-examination/re-examination shall be recorded in
the deposition under titled objections and shall be left open for the decision of the Court
at the stage of final arguments. Witness shall not refuse to the answer the question
raised.
14. In case Ld. Commissioner finds any question not related to the fact and issue, he shall
record his objection but shall allow the question to be put and witness must answer.
15. In case witness is unable to understand the question put to him, Ld. Commissioner
shall elaborate the same in an easy to understand manner in an partial way.
16. Ld. Commissioner shall ensure that the witness is not assisted by his Ld. counsel or
any other third party while under cross-

examination.

17. Ld. Commissioner shall record the demeanor of the witness where ever it is found
pertinent and necessary for sharing with the Court.
18. Ld. Commissioner shall obtain signatures of both the sides on each and every page of
recording of evidence apart from signing them himself.
19. All interested parties shall be provided uncertified copy of the evidence recorded, free
of cost.
20. Ld. Commissioner shall keep the original depositions in his safe custody till such time
they are filed in the Court in original upon completion of each witness individually.
21. Ld. Commissioner shall maintain a miscellaneous proceeding sheet for each day of
week and shall submit it in the Court with the report.
22. In case a witness is sought to be declared hostile, than Ld. LC shall refer both the
parties to Court within three days for exercising powers U/s. 154 Evidence Act.

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C.

Summoning of Official Witnesses1. In case a litigating party is desirous of summoning an official witnesses, it shall obtain
summons from the Court with an endorsement that witness shall appear before the
address of Ld. Commissioner for recording of evidence on scheduled date, time and
place.
2. Diet money shall be paid to such witness by summoning party as per rules.

D.

Advisory to Ld. Commissioner1. Ld. Commissioner shall conduct himself in an impartial way and behave in a polite
manner while recording of evidence.
2. Ld. Commissioner shall be polite with the witness and other stake holder while
recording of evidence.
3. Ld. Commissioner shall maintain confidentiality during the whole process.
4. Ld. Commissioner shall not solicit professional work from the parties.
5. Ld. Commissioner shall not except remuneration or any favour in cash or kind from the
parties over and above the amount fixed by the Court.
6. Ld. Commissioner shall not criticize the professional conduct of litigating parties,
lawyers on their understanding of law of either of the parties or ridicule them in any
manner.
7. Ld. Commissioner shall adhere to punctuality and shall not make excuses like he is
engaged in some personal Court work etc.
8. In case of any foreseen circumstances warranting change of dates of hearing, for his
own case or the request of other side, he shall apprise the other side in advance via
phone call, email, sms etc.
9. He shall not allow the deposition to be inspected by any third party and shall not share
a copy thereof with anybody stranger without permission of the Court.
10. He shall not allow one party to inspect the recorded proceedings in the absence of the
other.

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E.

Remuneration of Ld. Commissioner1. In terms of Order 18 Rule 4 CPC the remuneration for the purposes of Commissioner
shall be fixed by the Court.
2. Such remuneration shall be paid by the party directly for each day's work either by way
of cash, cheque or draft against due receipt.
3. Each party shall bear the cost of leading its evidence, separately.
4. Remuneration fee for recording of evidence is fixed at Rs.2,000/- per hour or
Rs.5,000/- for a three hours session whichever is less, which shall include the cost of
typing, hiring of a stenographer and supply of copy of deposition.
5. Such payments shall be redeemable as cost of litigation at the end of the suit.
6. Parties who are found to be financially not sound by the Court, may not be asked to pay
this fee and under a separate order of the Court

the same shall be borne

by

DSLSA/DLSA.

F.

Judicial Intervention during recording of evidence1. It is expected that both the sides will cooperate with Ld. Commissioner as well as each
other and record evidence in a peaceful manner.
2. In case of any conflicting circumstances they shall resolve issues at their own level with
the active help of Ld. Commissioner.
3. However, in case of any unforeseen situation requiring judicial intervention, Ld.
Commissioner shall fix date and time for joint appearance of both sides before the
Court for removal of any such impediment.

G.

Miscellaneous Applications1. In case either of the party is desirous of moving any miscellaneous application viz.
amending of pleadings, interim injunction etc. they shall share an advance copy with
the opposite side and reply thereof, if any, shall be prepared within seven days.

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2. Upon receipt of reply, both the sides shall get the application fixed for disposal in the
Court in with the help of Reader of the Court and shall not wait till next date fixed for
hearing.
3. All such miscellaneous applications shall be

separately registered, numbered and

indexed as an extension of main suit number.

4. It is clarified that, unless Ld. Counsel is of the view that the application is such that
evidence cannot be recorded before its disposal, the recording of PE/DE shall continue
unabatedly.

Part F- Role of DSLSA/DLSAs and DHLSC in ProtocolUnder the Central Law of Legal Services Authorities Act, 1987, DSLSA is the
constitutionally bound to provide all kinds of legal services to poor and marginalized sections
of society. The beneficiaries enlisted under the law to receive free legal services include all
women, SC & ST member, children, people in custody including those in children home,
shelter home and mental health facility, senior citizens, transgenders etc.
Under the term Legal Services has been defined under the Legal Services Authorities
Act 1987 Section 2 (c) and it includes rendering of all services in the conduct of a case or other
legal proceedings before any Court, authority or Tribunal. As such in all the legal aided cases,
in order to ensure their expeditious disposal, legal services authority can utilize the State and
District Legal Aid Fund as provided in Section 15 and 16 of Legal Services Act, 1987.
DSLSA/DLSAs and DHLSC has empaneled competent Legal Service Advocate who
have been chosen by a High Powered Committee headed by Ld. District & Session Judge.
They are better equipped to help Judiciary, expedite early disposal of cases of not only legal
aided persons but also all litigants who have a legal right of speed Trial in the long pending
matter.
Service of such empaneled Ld. Advocates who have their own chamber space in Court
Complex shall be availed by Ld. referral Court. They shall be paid remuneration as per the
protocol. In case of legal aided cases and cases of economically weaker section of society,

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identified and referred to by referral Court, the remuneration shall be paid by the DSLSA/DLSA
for all.
DSLSA and DLSA, may utilize their own space or any other space provided by Ld.
Chairperson DLSA for the purpose of recording of evidence during court houses in case the
empaneled Ld. Legal Service Advocate does not have own chamber for the same.

Appendix
A.

Statutory ProvisionsWhereas by way of amendment of 2002 CPC under Order 18 Rule 4 CPC has been

introduced whereby it is provided that upon identification of issues, examination-in-chief of


evidence of the parties shall be taken by an affidavit. For the purpose of cross-examination
and re-examination Court has the option to either record the same itself or by appointing a
Commissioner for the same.
For ready reference, Order 18 Rule 4 CPC is reproduced here under:

4. Recording of evidence.(1) In every case, the examination-in-chief of a witness shall be


on affidavit and copies thereof shall be supplied to the opposite
party by the party who calls him for evidence.
Provided that where documents are filed and the parties rely
upon the documents, the proof and admissibility of such
documents which are filed along with affidavit shall be subject to
the orders of the Court.
(2) The evidence (cross-examination and re-examination) of the
witness in attendance, whose evidence (examination-in-chief) by
affidavit has been furnished to the Court shall be taken either by
the Court or by the Commissioner appointed by it:
Provided that the Court may, while appointing a commission
under this sub-rule, consider taking into account such relevant
facts as it thinks fit.

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(3) The Court or the Commissioner, as the case may be, shall
record evidence either in writing or mechanically in the presence
of the Judge or of the Commissioner, as the case may be, and
where such evidence is recorded by the Commissioner he shall
return such evidence together with his report in writing signed by
him to the Court appointing him and the evidence taken under it
shall form part of the record of the suit.
(4) The Commissioner may record such remarks as it thinks
material respecting the demeanour of any witness while under
examination.
(5) The report of the Commissioner shall be submitted to the
Court appointing the commission within sixty days from the date
of issue of the commission unless the Court for reasons to be
recorded in writing extends the time.
(6) The High Court or the District Judge, as the case may be,
shall prepare a panel of Commissioners to record the evidence
under this rule.
(7) The Court may be general or special order fix the amount to
be paid as remuneration for the services of the Commissioner.
(8) The provisions of rules 16, 16A, 17 and 18 of Order XXVI, in
so far as they are applicable, shall apply to the issue, execution
and return of such commission under this rule.

Statutory MandateCHAPTER X-A of Delhi High Court Rules & Procedures


Evidence on Commission at Courts Discretion Commissions to examine parties and
witnesses
Notwithstanding anything contained in Order XXVI of the Code of Civil Procedure,
1908, the Court may, at its discretion, in any suit, at any stage, direct that the parties and
witnesses be examined on Commission. The evidence recorded on Commission shall be read
as evidence in the suit.

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COMMENTS

It is due to some drastic requirement that Chapter X-A had been incorporated in the
Delhi High Court (Original Side) Rules, 1967. We are in agreement with the observations in
Fashion Linkers case on this point. In our view the opinion expressed in Deepak Kapurs
case that the Rule was merely a proviso or an exception to Order 26 of the Code of Civil
Procedure is not the correct view. The beginning part of Chapter X-A clearly states that it is to
apply notwithstanding anything contained in Order 26 of the Code of Civil Procedure. This
itself makes it clear that while exercising powers under this Rule the Court is not
circumscribed by the limits which are laid down under Order 26 of the Code of Civil Procedure.
Under this Rule Court can exercise power even for other reasons i.e.
reasons/circumstances not set out in Order 26 CPC, if in its discretion it is necessary to do so.
However it is also clear that this Rule does not give to the Court an absolute discretion to refer
recording of evidence to a Commissioner without there being any reasons whatsoever.
Recording of evidence by the Court has to be the normal rule/procedure. Examination of
witnesses on commission has to be an exception. The discretion, vested by virtue of this Rule,
has to be exercised judicially and for valid reasons. The Court must while exercising power
under this Rule record those reasons in writing. It is also clear that while the Court may
exercise the power under this Rule, it cannot by virtue of this Rule delegate any judicial
powers to the Commissioner. Thus anything which is required to be dealt with judicially can
only be done by the Court and cannot be delegated to the Commissioner. Thus for example
the power to allow or disallow questions or to decide objections or to decide relevancy cannot
be delegated to a Commissioner. The provisions of Order 26 Rule 16-A of CPC would
continue to apply even though the Court may exercise power under Chapter X-A. Pushpa Devi
v. Bimala Devi & Others, 2000 (52) DRJ 437 : 2000 (2) AD (Delhi) 404.
Appointment of Local Commissioner for recording of evidence - One Division Bench taking a
different view from the earlier division bench. Because the question of law involved in earlier
Bench was left open, the decision of earlier Division Bench ceased to be binding and the
subsequent Division Bench can reconsider the whole matter afresh without referring the same
to a larger bench. The decision in Deepak Kapur v. Ashok K. Ghose, 1994 (30) DRJ 489 is no

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longer good law. Fashion Linkers & others v. Savitri Devi & Anothers, 1995 (35) DRJ 195 :
1995 (60) DLT 169 : 1995 (4) AD (Delhi) 398.
1. Chapter X-A inserted vide Notification No. 28/Rules/DHC dated 28-2-1991.

___________________________________________________________

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CHAPTER 10 of Delhi High Court Rules & ProceduresCommissions and Letters of Request
Part A
GENERAL INSTRUCTIONS
1. Reference to C.P.C.The general law as to Commissions and Letters of Request is
contained in Sections 75 to 78 and Order XXVI of the Code of Civil Procedure, and the Forms
to be used are Nos. 7 or 8 of Appendix H of Schedule 1.
2. Fees of CommissionerApplications for the issue of Commissions should be made as early
as possible. Notice of any such application should be given to the other side. If the Application
is granted, the Court should fix a sum for the expenses of the Commission, which
should,ordinarily provide a reasonable fee to the Commissioner. If, at any time, the sum so
fixed is found to be insufficient, it may, for special reasons, be increased by the Court. When
the Commission is executed to the satisfaction of the Court, the full sum fixed should be paid
to the Commissioner; but where the commission is not executed at all or not fully or
satisfactorily executed or the work done turns out to be less than was expected, it will be in the
discretion of the Court to direct a less amount to be paid, or to make any other order in the
matter which it thinks just and proper in the circumstances.
3. Commission for local inquiry and accountsWhenever it becomes necessary in the course
of a suit to appoint a Commissioner to make a local inquiry or to examine accounts (see
OrderXXVI) the Judicial officer who makes the order for such appointment should write the
order with his own hand, and specify therein:
(a) the precise matter of the inquiry:
(b) the reason why the evidence bearing on that matter could not reasonably have been taken
in the usual way at the trial in Court. A Court cannot issue a Commission merely to save itself
the time and trouble of examining witnesses.
4. Functions of CommissionerThe Commissioners duties should be strictly limited by the
order to such matters as taking accounts and depositions of witnesses, inspecting the land or
other subject of dispute, and reporting to the Court, either by means of a map or plan, or in

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writing, or both, the existing physical features of the subject inspected, its boundaries and
situation relative to other objects, and so on, as the case may be. The functions of the
Commissioner are thus limited to procuring evidence and information, for the purpose of the
trial; and this evidence, including the maps, reports and record of evidence, made by the
Commissioner, must be adduced in open Court before the parties, and placed on records like
all other evidence. The Court has no power to depute 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.
5. Commissioner for partition of propertyUnder Order XXVI, Rules 13 and 14, a Commission
for the partition of immovable property may be issued to such person or persons as the Court
thinks fit. The wishes of the parties in the matter should also be taken into consideration.
6. Execution of Commission in MadrasCommissions for execution in the Presidency Town
of Madras should be addressed either to the Registrar, Court of Small Causes, Madras, or to
the City Civil Judge, Madras.
Part B
APPOINTMENT OF COMMISSIONERS
1. Instructions for the guidance of CourtsInstructions contained in this Chapter are
administrative and are not to be regarded as binding the discretion of Civil Courts in making
appointments of Commissioners.
2. (i) Panel of Commissioners for recording evidenceOrdinarily a panel of not more than four
persons including a lady lawyer, if available, shall be appointed by the High Court in each
district as Commissioners for recording evidence. Such Commissioners should ordinarily be
younger members of the Bar but not men in large practice and retired Civil Judicial Officers.
(ii) District Judge to forward all applications with his recommendations to the High CourtAll
vacancies which arise for appointment of such Commissioners shall be circulated by the
District Judge to the members of the Bar and all applications received shall be forwarded by
him in original to the High Court with his recommendations, duly supported by reasons for
recommending a particular person.

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(iii) Term for such appointmentCommissioners for recording evidence will normally be
appointed to the panel for a period of three years or until further orders, whichever may be
earlier. The term may be renewed for a further period of three years, but after six years there
will normally be no reappointment.
3. Official Receivers to be appointed to the panel ex-officioOfficial Receivers, should be
appointed ex-officio to the panel on the understanding that the appointment is until further or
until the end of the period of appointment as Official Receiver, whichever may be earlier.

4. Measure to prevent delay in the return of CommissionsA consolidated list of


Commissioners with their addresses shall be prepared in the High Court annually and copies
of the list sent to the District Judges for supply to all Courts. It is believed that by sending
commissions direct to Commissioners time would be saved. In order to ensure punctuality of
the return of the Commissions, only a part of the fee should be paid in advance and the
balance should be paid when the Commission is returned by the Commissioner within the
period fixed by the Court.
5. Court Readers or other Ministerial Officers should never be appointed to make local
investigations, such as finding out the market value of the property, etc. Such Commissions
should be issued wherever possible to retired Revenue Officers or professional men, such as
engineers, contractors, auctioneers and accountants. Legal Practitioners are not excluded
from appointment as local investigation commissioners, but the best man for the particular
commission in question should be appointed Revenue Officers in service such as Tehsildars
and Naib-Tehsildars should not, as a rule, be appointed when retired officers suitable for the
work are available. 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.
6. Selection of Commissioner to examine accountsCommissioners to examine accounts
should be selected from men competent in the particular form of accounts. It is absolutely futile
to issue Commissions in a particular form of account to a person who is unable even to read
the script in which those accounts are written.

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7. Selection of CommissionersGreat care should be exercised by the Courts in selecting


persons for appointment as Commissioners for the purpose of making local inquiries; and
District Judges should exercise strict supervision over the action of subordinate Courts in this
respect. The habitual employment of the same person should not be encouraged. The issue of
Commissions to petition-writers, and persons who hang about the Courts should not be permitted.

Judicial PronouncementsThe Supreme Court of India in Salem Advocates Bar Association vs. Union of India, AIR 2003
SC 189 ordered for constituting a committee to suggest model case management rules for
expeditious disposal of cases in Civl Courts.

A Committee consisting of Justice M.

Jagannadha Rao, Chairman Law Commission of India, Shri Kapil Sibal and Shri Arun Jaitley,
Senior Advocates, Supreme Court of India submitted Report No. I,, II and III. The same was
accepted by Supreme Court in Salem Advocate Bar Assn VS UOI, AIR 2005 SC 3353
These three Reports have been prepared at the request of the Supreme Court of India by
"MODEL CASE FLOW MANAGEMENT RULES

Model Case Management Rules for Trial Courts


1. Fixation of time limits while issuing notice
2. Service of Summons/notice and completion of pleadings
3. Calling of Cases (Hajri or Call Work or Roll Call)
4. Procedure on the grant of interim orders
5. Referral to Alternate Dispute Resolution
6. Procedure on the failure of Alternate Dispute Resolution
7. Referral to Commissioner for recording of evidence

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8. Costs
9. Proceedings for Perjury
10. Adjournments
11. miscellaneous Applications.

III. First Appeals to Subordinate Courts


1. Service of Notice of Appeal
2. Essential Documents to be filed with the Memorandum of Appeal
3. Fixation of time limits in interlocutory matters
4. Steps for completion of all formalities (Call Work Hajri)
5. Procedure on grant of interim-orders
6. Filing of Written submissions
.
Referral to Commissioner for recording of evidence :

A) The High Court shall conduct an examination on the subjects of the Code of Civil
Procedure and Evidence Act. Only those advocates who have passed an examination
conducted by the High Court on the subjects of 'Code of Civil Procedure' and
Evidence Act, - shall be appointed as Commissioners for recording evidence. They
shall be ranked according to the marks secured by them.
B) It is not necessary that in every case the Court should appoint a Commissioner from
recording evidence. Only if the recording of evidence is likely to take a long time, or

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there are any other special grounds, should the Court consider appointing a
Commissioner for recording the evidence. The Court should direct that the matter be
listed for arguments fifteen days after the Commissioner files his report with the
evidence.
The Court may initially fix a specific period for the completion of the recording of the
evidence by the Commissioner and direct the matter to be listed on the date of expiry
of the period, so that Court may know whether the parties are co-operating with the
Commissioner and whether the recording of evidence is getting unnecessarily
prolonged.
C) Commissioners should file an undertaking in Court upon their appointment that they will
keep the records handed over to them and those that may be filed before them, safe
and shall not allow any party to inspect them in the absence of the opposite
party/counsel. If there is delay of more than one month in the dates fixed for recording
evidence, it is advisable for them to return the file to the Court and take it back on the
eve of the adjourned date.

SC issues guidelines for Civil Courts in Ramrameshwari Devi v. Nirmala Devi & Ors. (2011)
8
SCC 24952. The main question which arises for our consideration is whether the prevailing delay in civil
litigation can be curbed?
In our considered opinion the existing system can be drastically changed or improved if the
following steps are taken by the trial courts while dealing with the civil trials.
A) Pleadings are foundation of the claims of parties. Civil litigation is largely based on
documents. It is the bounden duty and obligation of the trial judge to carefully
scrutinize, check and verify the pleadings and the documents filed by the parties. This
must be done immediately after civil suits are filed.
B) The Court should resort to discovery and production of documents and interrogatories
at the earliest according to the object of the Code. If this exercise is carefully carried

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out, it would focus the controversies involved in the case and help the court in arriving
at truth of the matter and doing substantial justice.
C) Imposition of actual, realistic or proper costs and or ordering prosecution would go a
long way in controlling the tendency of introducing false pleadings and forged and
fabricated documents by the litigants. Imposition of heavy costs would also control
unnecessary adjournments by the parties. In appropriate cases the courts may
consider ordering prosecution otherwise it may not be possible to maintain purity and
sanctity of judicial proceedings.
D) The Court must adopt realistic and pragmatic approach in granting mesne profits. The
Court must carefully keep in view the ground realities while granting mesne profits.
E) The courts should be extremely careful and cautious in granting ex-parte ad interim
injunctions or stay orders. Ordinarily short notice should be issued to the defendants or
respondents and only after hearing concerned parties appropriate orders should be
passed.
F) Litigants who obtained ex-parte ad interim injunction on the strength of false pleadings
and forged documents should be adequately punished. No one should be allowed to
abuse the process of the court.
G) The principle of restitution be fully applied in a pragmatic manner in order to do real and
substantial justice.
H) Every case emanates from a human or a commercial problem and the Court must make
serious endeavour to resolve the problem within the framework of law and in

accordance

with the well settled principles of law and justice.


I)

If in a given case, ex parte injunction is granted, then the said application for grant of
injunction should be disposed of on merits, after hearing both sides as expeditiously as
may be possible on a priority basis and undue adjournments should be avoided.

J) At the time of filing of the plaint, the trial court should prepare complete schedule and fix

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dates for all the stages of the suit, right from filing of the written statement till
pronouncement of judgment and the courts should strictly adhere to the said dates and the
said time table as far as possible. If any interlocutory application is filed then the same
disposed of in between the said dates of hearings fixed in the said suit itself

be

so that the

date fixed for the main suit may not be disturbed.


53. According to us, these aforementioned steps may help the courts to drastically improve the
existing system of administration of civil litigation in our Courts. No doubt, it would take some
time for the courts, litigants and the advocates to follow the aforesaid steps, but once it is
observed across the country, then prevailing system of adjudication of civil courts is bound to
improve
the Supreme Court considered the use of civil litigation by unscrupulous litigants to the
prejudice, harassment and deprivation of the hapless other side and the necessity to put an
end to such practice and observed as under:43. ........unless we ensure that wrongdoers are denied prot or undue benet from the
frivolous litigation, it would be difficult to control frivolous and uncalled for litigations. In order to
curb uncalled for and frivolous litigation, the Courts have to ensure that there is no incentive or
motive for uncalled for litigation. It is a matter of common experience that Court's otherwise
scarce and valuable time is consumed or more appropriately, wasted in a large number of
uncalled for cases.

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