FINANCIAL COMMISSIONER`S OFFICE, PUNJAB STANDING ORDER NO. 3

General Procedure of Revenue Officers and Courts

 

Last printed on 17th December, 1951.

Revised on March 21, 1980.

 

Note.   In connection with the Standing Order, Chapters VI and XXIII of the Land Administration Manual Should be consulted.

 

 

Contents

 

SN

Subject

Section A ----- Procedure of Revenue Officers

  1.  

Revenue Officer and Revenue Court distinguished

  1.  

Procedure of Revenue Officers

  1.  

 

  1.  

Procedure of Revenue Courts

Section B ---- Reception of plaints and applications

  1.  

Time and hour of presentation

  1.  

How filed

  1.  

Preliminary examination

  1.  

Responsibility regarding court-fees, stamps

  1.  

Disposal of unstamped petitions to the Financial Commissioners

Section C--- Examination of the Plaint

  1.  

Examination of the plaint

  1.  

Rules of pleadings noticed

  1.  

Joinder of parties and causes of action

  1.  

Scrutiny of plaint relating to agricultural land when plaintiffs is illiterate.

Section D---- Issue and Service of Processes

  1.  

Court to determine the form of summons

  1.  

Summons to the defendant

  1.  

Difference of Rules

  1.  

Service by post to the general rule

  1.  

Service in foreign territory generally

  1.  

Deleted

  1.  

Service in foreign territories, where no special arrangements exist

  1.  

21-30 Deleted

  1.  

Section 29 of the Code of Civil Procedur

  1.  

Interrogatories

  1.  

Cases in which Indian Officers or Soldiers are concerned

  1.  

Defendant to present a written statement

  1.  

Written statement to be accompanied by documents relied upon

  1.  

Plaintiff may also be called upon to file a written statement

  1.  

Each defendant should, as a rule, file separate written statement

  1.  

Set-off

  1.  

General and special rules as to written statements

Section F. ---- Settlement of Issues

  1.  

Necessity of framing correct issues

  1.  

Main foundation for the issues

  1.  

Procedure in framing issues

  1.  

The same

  1.  

The same

  1.  

Amendment of pleadings

  1.  

Discovery inspection and admission

  1.  

Drawing issue

  1.  

Burden of proof

Section G. --- Documentary Evidence

  1.  

Main provisions with regard to production of documents

  1.  

List of documents must be filed

  1.  

Documents should be produced at the first hearing

  1.  

Documents produced at a later stage

  1.  

Documents with a suspicious appearance or executed on unstamped or insufficiently stamped paper

  1.  

Distinction between mere production and admission in evidence

  1.  

Exhibiting of documents

  1.  

Documents how to be dealt with at the trial

  1.  

Documents admitted by the opposite party to be endorsed and numbered

  1.  

Inconvenience caused by neglect of foregoing directions

  1.  

Objections as to the admissibility or relevancy of the document

  1.  

Mode of proof of documents

  1.  

Examination of witnesses identifying documents

  1.  

Signature by the pen of another

  1.  

Proof of registered documents

  1.  

Certified extracts from Settlement records bearing on the case should be placed on the records

  1.  

Revision of record before judgment

  1.  

Return of documents

Section H -- Production of Revenue Records

  1.  

Requisitions of Appellate Courts to be sent to Deputy Commissioner

  1.  

Production by special Kanungo, or Patwari

  1.  

Duty of courts in such matters

  1.  

Duties of Appellate courts in calling for revenue records

  1.  

Inconvenience resulting from a neglect of the orders pointed out

  1.  

Deputy Commissioners to bring to the notice of the Financial Commissioner the case of any officer who systematically fails to comply with the orders on the subject

Section J ---- Attendance of Patwaris in Revenue Courts

  1.  

Patwaris not to be unnecessarily summoned

  1.  

Patwaris not to be summoned during Girdawari time

  1.  

Patwaris to be summoned through the Tehsildars. Courts to furnish patwaris with certificates showing attendance

  1.  

During Settlement, Patwaris to be examined by Commission

Section K ---- Commissions and Letters of Request

  1.  

General

  1.  

Expenses of Commissioner

  1.  

Issue of Commission to Revenue officials

  1.  

Issue of Commissions for local investigation, etc

  1.  

Duties of Commissioner so appointed

  1.  

Selection of Commissioners

  1.  

The same

  1.  

Deleted

  1.  

Letters of Requests to a foreign country

  1.  

The same

Section L. ---- Hearing of Suits, Adjournments, Examination of witnesses, etc.

  1.  

Notice of day of trial and adjournment

  1.  

Adjournments on payments of costs

  1.  

Witnesses should be examined on the day on which they attend

  1.  

Court to note when each party has used his case

  1.  

Examination of witnesses how to be conducted

  1.  

Cross-examination

  1.  

Re-examination

  1.  

Questions by the Court

Section M. --- Judgments and Decrees

  1.  

General instructions as to the judgment

  1.  

Evidence and final order to be recorded legibly

  1.  

Judgments must be written and announced within 14 dates from the date on which arguments and heard

  1.  

Decree

  1.  

Standard forms of decree prescribed in certain cases

  1.  

Powers of the Court to be disclosed

  1.  

Preparation of decrees

  1.  

Decrees based on compromise

Section N ---- Appeals

  1.  

General

  1.  

Copy of decree to be filed

  1.  

Vernacular copies of English orders not required

  1.  

Terms `Appellant` and ` Respondent` not be used

  1.  

Appellate files transmitted in vernacular

  1.  

rules are made by the Financial Commissioner

Section O. --- Abatement of Proceedings

  1.  

Death, Marriage or Insolvency of parties

Section P. --- Miscellaneous

  1.  

Rent Suits

  1.  

Notice of sale of right of occupancy

  1.  

Tenures to be accurately described

  1.  

Surveys and boundaries

  1.  

References to the High Court under Section 100

  1.  

Court hours, holidays and cause lists

  1.  

Petition Paper

  1.  

Preparation of Records, size and quality of paper

  1.  

Chronological abstract of order to be attached to certain files

Form of Chronological Abstract of Orders

 

 

FINANCIAL COMMISSIONER`S OFFICE, PUNJAB STANDING ORDER NO. 3

General Procedure of Revenue Officers and Courts

 

Section A ----- Procedure of Revenue Officers

 

1.  Revenue Officer and Revenue Court distinguished - A revenue court is simply a revenue officer acting in a judicial instead of an executive capacity. There are, therefore, the same classes of revenue courts as of revenue officers, and ordinarily a revenue officer of any grade is a revenue court of the same grade and his jurisdiction in the one capacity is co-extensive with his jurisdiction in the other. [Section 77(2) of Punjab Tenancy Act, XVI of 1887].

The distinction between revenue and civil courts is more one of agency, than of Procedure. With respect to their respective jurisdiction, paragraphs 792-810 of the Land Administration Manual and Chapter 2-B of the High Court Rules and Orders, Volume 1, should be consulted.

 

2. Procedure of Revenue Officers - Land Revenue Rules 34 to 44 and Rules 2 to 11 of the Tenancy Rules prescribe the Procedure of Revenue Officers and should be consulted.  Briefly, they prescribe that the statements and pleadings made by or on behalf of parties to a revenue proceeding, whether oral or written, shall be as brief as the nature of the case admits; and shall not be argumentative. Every written application or statement filed by a party shall be drawn up and verified in the manner provided by the Civil Procedure Code for written statements in suits. In fixing dates, etc., the Revenue Officer is to follow the Procedure of revenue courts and the provisions of the Civil Procedure Code in respect of commissions also apply in the case of proceedings before a Revenue Officer. In proceedings before a Revenue Officer under the Punjab Tenancy Act, 1887, the Revenue Officer shall make with his own hand a brief memorandum of statements of parties and witnesses at the time when each statement is made. In every proceeding in which an order is passed on the merits after inquiry, the Revenue Officer making the order shall also record a brief statement of reasons on which it is founded. A revenue Officer may at his discretion award expenses of witnesses not exceeding the sum to which they would be entitled in civil courts. In proceedings in which costs have been incurred the final order shall apportion the costs, which will be recoverable in the manner prescribed in section 70 of the Land Revenue Act, 1887. Revenue Officer’s orders of ejectment from and delivery of possession of immovable property shall be enforced in the manner provided in the Code of Civil Procedure, and in enforcing of these orders Revenue Officer shall have all the powers in regard to contempts, resistance and the like which a civil court may exercise.

 

3.         If the memorandum made by a Revenue Officer under Land Revenue Rule 40 or Tenancy Rule 7 or his orders is in English, he may have it translated into the official language of the court. Such a translation should invariably be made if the proceedings have not been conducted in the official language of the court.

 

4.             Procedure of Revenue Courts - General. Power to make special rules of Procedure for revenue courts is given by Section 88(1) of the Tenancy Act, but it has not been exercised. In the absence of any special rules the Procedure of the revenue courts is governed by the Code of Civil Procedure and the Rules and Orders of the High Court as far as these are applicable [Section 88(2) ibid.]

The instructions contained in Chapters 1-A to 1-H, 1-J to 1-L, 9, 10-A 10-B, 11-B and 14-E, of Volume 1, Chapter 7 of Volume IV of the High Court Rules and Orders, as amended from time to time should be followed with special care so far as they pertain to the Revenue Courts. Some of these instructions with the necessary modifications making them applicable to the Revenue Courts are reproduced in this Standing Order.

 

4-A.  The Revenue Officers/Revenue Courts should send history sheets of all the Revenue cases/revenue suits over one year old to the Financial Commissioner, Revenue, through the Commissioner of Division concerned indicating the reasons of delay. The history sheets shall be prepared as prescribed in the High Court rules and orders for submission to the High Court.

 

Section B ---- Reception of plaints and applications

 

5. Time and hour of presentation. Plaints and petitions should be received on every day, which is not an authorized holiday, during office hours.

 

6. How filed. Plaints and petitions 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. Recognized agents are defined in Order III, Rule 2 of the Code of Civil Procedure. As to appointment of a pleader, the provisions of Rule 4, ibid (C.P.C) should be carefully studied.

 

7. Preliminary examination. Every plaint or petition should, if possible, specify the provision of law under which it is presented. The Presiding Officer of the Court should note, or cause to the noted, on the back of the plaint, the date of presentation, and whether it has been presented by the plaintiff in person, or by his duly authorized agent or pleader. The court fees should be forthwith examined and cancelled in the manner prescribed in this behalf.

 

8. Responsibility regarding court-fees, stamps. The instructions contained in the High Court Rules and Orders, Volume IV, Chapters 4 and 5 should be observed mutatis mutandis by all revenue courts.

The Punjab Government have laid it down that the ministerial officials of the court concerned. i.e., the Superintendent Grade III in the case of Commissioner and the Reader in the case of Deputy Commissioner and other courts, shall be personally responsible for seeing that plaints and petitions are properly stamped in all simple and undisputed cases. In cases of doubt regarding the correctness of the court- fee due, he should take the orders of the Presiding Officer. Personal responsibility shall be enforced against the ministerial officer in all cases that he failed to refer to the Presiding Officer for orders, and against the Presiding Officer in other cases. This shall, however, be subject to the proviso that personal responsibility should only be enforced against the Presiding or Ministerial Officer, as may be, where obvious mistakes were made and not in cases in which a genuine doubt was possible regarding the correctness of the court- fee due.

The Deputy Commissioner should impress upon the Presiding Officer of Subordinate Revenue Courts and their Readers, etc., their personal responsibility in this matter and make them understand that as a consequence of this responsibility all Government losses in Stamp Revenue will be dealt with in accordance with the F.D. Memo No. 30161-F, dated 30th September, 1929, and the provisions contained in the Punjab Stamp Losses and Defalcation Rules, 1935.

Serious notice should be taken of failure to cancel stamps by punching. Entries should be made in character rolls of officials who are negligent in this respect.

 

9. Disposal of unstamped petitions to the Financial Commissioners. When an unstamped petition is presented to the Financial Commissioner which is to be transferred to a sub-ordinate officer, a slip will be attached to the effect that no action should be taken on the petition until it is stamped with the prescribed Courts fees stamp under Schedule II (i) (c) of the Court-Fees Act. VII of 1870.

 

Section C--- Examination of the Plaint

 

10. Examination of the plaint - On the presentation or receipt of a plaint, the court should examine it with special reference to the following points viz.: -

(i)          whether the name of court to which the suit is brought is given in the plaint [Order VII, rule 1 (a)];

(ii)          whether the plaint contains the name, description and place of residence of the plaintiff [Order VII, rule 1 (b)];

(iii)         whether it contains the name, description and place of residence of the defendant, so far as they can be ascertained [Order VII, rule 1 (c)];

(iv)         whether any of the parties to the suit are minors and, if so, whether they are properly represented [Order VII, rule 1(d)];

(v)         whether it contains the facts constituting the cause of action and when it arose [Order VII, rule1 (e)];

(vi)         whether the suit is within the jurisdiction of the court or must be returned for presentation to the proper court [Order VII, rule 1(f) and 10];

(vii)        whether the plaint states the relief which the plaintiff claims [Order VII, rule 1(g)];

(viii)       whether it contains the amount allowed or relinquished if the plaintiff has allowed a set off or relinquished a portion of his claim [Order VII, rule 1(h)];

(ix)         whether it contains a statement of the value of the subject-matter of the suit for the purpose of jurisdiction and or court-fees so far as the case admits [Order VII, rule 1(i)];

(x)         whether there is, prima facie, any non-joinder or mis-joinder of parties, or mis-joinder of causes of action;

(xi)         whether the plaint is duly signed and verified;

(xii)        whether the plaint is liable to be rejected for any of the reasons given in Order VII, Rule11;

(xiii)       whether the documents attached to the plaint (if any) are accompanied by lists in the prescribed form and are in order;

(xiv)       whether the plaintiff has filed a proceeding containing his address for service during the litigation as required by Rule 19 of Order VII as framed by the High Court;

 (xv)       instructions contained in paragraph 11 below should also be borne in mind at the time of the examination of plaints.

 

11. Rules of pleadings noticed. The provisions of the Code with regard to the pleadings (which term includes the plaint and written statements of parties) should be carefully studied. The principal rules of pleadings may be briefly stated as follows: -

a)      The whole case must be stated in the pleadings, that is to say all material facts must be stated (Order VI, Rule 2);

b)      Only material facts are to be stated. The evidence by which they are to be proved is not be stated (Order VI, Rules 2, 10, 11,and 12);

c)      The facts are to be stated concisely;

d)      Every pleading is to be signed by the party or person duly authorised by the party, and also by his pleader, if any (Order VI, Rule 14);

e)      Save as otherwise provided for by law for time being in force, every pleading is to be verified at the foot by the party or by one of the parties pleading (Order VI, Rule 15);

f)        The person verifying the pleading is bound to state by reference to the numbered paragraphs of the pleading what he verifies of his own knowledge, and what he verifies upon information received and believed to be true [Order VI, Rule 15(2)];

g)      It is obligatory that the verification should be signed by the person making it stating the date on which and the place at which it was signed [Order VI, Rule 15(3)];

h)      It is not necessary to allege the performance of any condition precedent; an averment of performance is implied in every pleading (Order VI, Rule 6);

i)        It is not necessary to set out the whole or any part of a document unless the precise words, thereof are necessary. It is sufficient to state the effect of the document as briefly as possible (Order VI, Rule 9);

j)        It is not necessary to allege a matter of fact which the law presumes, or as to which the burden of proof lies on the other side (Order VI, Rule 13);

k)      When misrepresentation, fraud, undue influence, etc., are pleaded, necessary particulars must always be given (Order VI, Rule 4);

l)        When a suit is prima facie time-barred, the ground on which exemption is claimed must be stated (Order VII, Rule 6); 

If the plaint is prolix or indefinite or omits to give the necessary particulars or to specify the relief claimed precisely or is defective in any other respect it should be returned to the party or his counsel for such amendment as may be necessary in the actual presence of the Presiding Officer after he has signed the endorsement. The Court has wide Powers in this respect (see Order VI, Rules 5, 16 and 17). Where amendment is directed, an order should be recorded by the court indicating the particulars about the necessary amendment and fixing a date for filing the amended plaint.

 

12. Joinder of parties and causes of action. When the plaintiffs or defendants are more than one, the plaint should be examined with a view to see, if there is prima facie any misjoinder of parties or causes of action.

(i)                      It should appear in the plaint that the persons (if more than one), who sue together as plaintiffs, all, either jointly, severally, or in the alternative, claim the right which is the object of the suit to vindicate. If all the persons jointly entitled to the right, which according to the plaint, has been infringed, cannot be got to sue together, this fact should be stated in the plaint, together with the grounds of refusal, if known. If the plaintiff wishes to use on behalf of or, for the benefit of such persons, he must apply for the permission of the Court under Order 1, Rule 8(1), Civil Procedure Code.

(ii)                     Similarly, it should appear in the plaint that the right to the relief claimed exists against all the defendants either jointly severally or, in the alternative, in respect of the subject-matter in dispute. If the cause for suing one defendant is different from that for suing another, the plaint should be returned for amendment on the ground that the plaintiff has joined causes of action which ought not to be joined in the same suit. Different causes of action against different defendants or groups of defendants cannot be brought into one suit. Under Order 1, Rule 5, however, it is not necessary that every defendant should be interested as to all the reliefs claimed in any suit against him.

(iii)                   Order II, Rule 3, of the Code of Civil Procedure, only permits a plaintiff to unite in the same suit several causes of action against the same defendant or the same defendants jointly. It follows, therefore, that where the defendants are not jointly liable for the several sums which the plaintiff claims from each, or for other relief sought, the provisions of Order II, Rule 3 cannot be applied, and each distinct cause of action must form the subject of a separate suit. Several plaintiffs having distinct causes of action against the same defendant or defendants cannot join in one suit.

(iv)                   The general rule to be observed is that, while no suit may be defeated by mere misjoinder of parties and the rights of the parties actually before the Court may always be disposed of, distinct causes of action can only be joined in one suit where the parties are identical, subject to the provisions of Order II, Rules 4 and 5 and section 15 to 25, of the Code of Civil Procedure.

(v)                    In suits which cannot be properly disposed of unless all persons interested in the matter are before the Court Order 1, Rules 8(2) and 10(2) of the Code enable the Court to add necessary parties, when it discovers that they have been omitted by the plaintiff.

 

13.             Scrutiny of plaint relating to agricultural land when plaintiffs is illiterate - If the plaint relates to agricultural land and the plaintiff is illiterate, it should be scrutinised with special care, according to the following directions: -

Every such plaint shall be accompanied by a statement, in the prescribed form, setting forth the particulars relating thereto recorded in the settlement record and in the last jamabandi. It should also include a copy of Khasra Girdawari of the harvest concerned if the suit is under the Punjab Tenancy Act. This statement shall be verified by the signature of the Patwari of the Circle in which the land concerned is situate. Where by reason of partition, river action or other cause, the entries in the settlement record and in the last jamabandi do not accord, a brief explanation of the reason should be given in the column of remarks. Where the suit is for a specific plot with definite boundaries, it shall also be accompanied by a map, drawn to scale, showing clearly the specific plot claimed, or in relation to which the decree is to be made, and so much of the fields adjoining it, also drawn to scale, as may be sufficient to facilitate identification. The specific plot and adjoining fields shall be numbered in accordance with the statement and the map shall be certified as correct by the Patwari or other person who prepared it. Where, however, the suit is for the whole of one or more khasra numbers as shown in the Settlement map, 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 numbers.

 

 

Section D---- Issue and Service of Processes

 

14.       Court to determine the form of summons. In order V, Rule 5 of the Code of Civil Procedure, it is laid down that the Court shall determine, at the time of issuing the summons, whether it shall be for the settlement of issues only, or for the final disposal of the suit, and the summons shall contain a direction accordingly. Thus, the question of what form of summons is to be issued is one which the Court is bound to consider and determine in each particular case.

 

15.            Summons to the defendant. Summons should be clearly and legibly  written and signed and the seal of the Court must be affixed. Order V, Rule 1(3) of the Code requires that the summons shall be signed by the judge or such officer as he appoints. In Courts, provided with Tehsildar Peshi/Private Secretary (Judicial) or Superintendents Grades III and IV or a Reader, he may be authorized to sign summonses; in all other Courts the Presiding Officer should himself sign them. The signature should in all cases be fully and legibly written. The summons must be framed so as to require the defendant to produce any document called for by the plaintiff, or on which the defendant intends to rely in support of his own case, and must state whether the case is fixed for the settlement of issues only, or for final disposal. It must also have attached thereto one of the copies of concise statements of the plaint which the plaintiff is bound to file with the plaint. Before issuing the summons, the Court should satisfy itself that the form selected is that appropriate to the order made under Order V, Rule 5, of the Code.

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 the defendant to appear has been duly served, that is, has been served strictly in such manner as the law provides. The nature of the proof of service which the Court ought to require in such cases has been noticed in Rule 7, Chapter 1-D, of the High Court Rules and Orders, Volume 1.

 

16.       The Revenue Courts should note that the rules for the service of summons on a person residing within or without India, differ. The two sets of Rules are contained in Rules 21-23 and Rules 25-26, Order V, of the Civil Procedure Code, which should be carefully studied.

 

(i) Service within India. 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, if the process has to be served in another district, but within the state, it should be transmitted by post to the Collector through the Collector for services 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, merely by reason of the process not having been sent through the Collector. In issuing processes to districts in other States, they should be forwarded for execution to the Deputy Commissioner of the district in which service of such process is desired, except where they are to be served within one of the Presidency towns (Order V, Rule 22, Civil Procedure Code) when they should be transmitted for service to the Judge of the Court of Small Causes.

(ii) Service by post. The attention of the Revenue Officers and Revenue Courts is specially drawn to the provisions of section 20 of the Punjab Land Revenue Act and section 90 of the Punjab Tenancy Act, 1887, under which a summons may be served by registered post. This mode of service has proved speedy and useful and may be freely resorted to in addition to, or in substitution for, any other mode.

(iii) The Financial Commissioner is pleased to make the following rules under section 155(1) (C) of the Punjab Land Revenue Act regarding service of Revenue Processes: -

 

RULES

 

           (1) Rules regarding service of revenue processes. Notwithstanding the separation of Revenue from the Civil Courts; Revenue Courts and Revenue Officers shall send the processes issued by them, for which process fee is charged, to the Civil process serving agency for service and execution.

     (2) The control over income derived from process-fees in all Revenue Courts and Revenue Offices and the expenditure on establishment, etc., from this source, shall be retained by the High Court. The Commissioner and the Subordinate Revenue Courts and Officers shall maintain the registers and accounts prescribed by the Rules and Orders of the High Court and submit the annual returns in the prescribed form.

     (3) The Revenue Courts and Officers of the Punjab are for the purpose of levying process-fees divided into three grades as shown in the annexed table: -

Grade

 

             Revenue Courts

First

  

   Financial Commissioners.

Second

  

  Commissioners.

Third

  

  Collectors and Assistant Collectors.

The process fee shall be levied in accordance with the rules framed by the High Court of Punjab State under section 20(1) (ii) of the Court Fees Act, 1870, as contained in Chapter 5-B of the High Court Rules and Orders, Volume IV.

Service of the processes of the Courts in India in places beyond India:

 

17. Service by post to the general rule. Order V, Rule 25, of the Code of Civil Procedure, provides generally, that if that if the defendant resides out of India and has no agent in India empowered to accept the service, the summons shall be addressed to the defendant at the place where he is residing, and forwarded to him by post, if there be postal communication between such place and the place where the Court is situate. In practice, all summonses so sent should, where possible, be sent by registered post, and should be “registered acknowledgment due”

 

18. Service in foreign territory generally. Provisions for service of summonses in foreign territory are contained in Order V, Rule 26. Under this rule the State Government is also empowered to declare by notification that any summons issued by the Court of the State may be served by any court in foreign territory although such Court has not been established or continued by the Central Government. This rule is inapplicable to British or other territories not under or connected with the Indian Government, such as Ceylon, the Straits Settlement, and similar places. The general direction contained in Order V, Rule 25, would apply in all such cases (see above paragraph.)

 

19. Deleted.

 

20. Service in foreign territories, where no special arrangements exist. When service by post under Order V, Rule 25, has failed and it is desired to proceed under Order V, Rule 26, Civil Procedure Code, the summons should be submitted to the Commissioner of the Division for transmission to the State Government. They should never be sent direct to the Court of Foreign territories. Before issuing summons, the Court should enquires from the postal authorities the time that it normally takes for a letter to get to the required place the must then double that time and add not less than two months to it in fixing the date of hearing for the case. But in no case should less than 4 months be allowed for such services.

In forwarding such summonses to Collectors, for transmission to the Commissioner, subordinate Courts must certify that service by post has been tried and failed and also state in what manner it has failed.

On receipt of summonses from subordinate Courts, it will be the duty of the Superintendent Grade IV or Reader to the Collector before transmitting the same to the Commissioner, to examine the summonses carefully and bring the defect, if any to the notice of the Collector, who should send the same back for correction if necessary to the Court issuing the summonses.

Summonses, notices and other judicial documents intended for service in foreign countries should always be accompanied by translations in the language of the country in which service is to be effected, at the expenses of the party at whose instance summonses, etc., are issued. Wherever possible, summonses should be typewritten in English and must be checked and legibly signed by the Presiding Officer of the Court who will be held personally responsible for their nearness and accuracy.

 

Paras 21-30. Deleted.

 

Other Countries

31. Section 29 of the Code of Civil Procedure lays down that the Summonses and other processes issued by ---

(a)                    any Civil or Revenue Court established in any part of India to which the provisions of Code of Civil Procedure do not extend; or

(b)                    any Civil or Revenue Court established or continued by the authority of the Central Government outside India; or

(c)                    any other Civil or revenue Court outside India to which the Central Government has, by notification in the Official Gazette, declared the provisions of this section to apply,

may be sent to the Courts in the territories to which this code extends and served as if they were summonses issued by such Courts. It has further been laid down on Order V, Rule 26(b) that where the Central Government, by notification in the Official Gazette, declare in respect of ay Court situate in any such territory, that service by such Court of any summonses shall be deemed to be valid service.

Apart from such arrangements Courts in India must be guided by Order V, Rules 25 and 26 of the Code of Civil Procedure.

 

32. Interrogatories. In the case of all foreign territories interrogatories should be transmitted through the channels prescribed for summonses.

 

33. Cases in which Indian Officers or Soldiers are concerned. Unnecessary delay in the cases in which Indian officers or soldiers or members of the Military Reserves are concerned should be avoided, and the attention of Revenue Officers is drawn to Chapters 6-A administration 6-B of the High Court Rules and Orders, Volume 1. In disposing also of Revenue business, such as partition cases and appointments of lambardars, in which one of the parties to the case is an Indian officer or soldier on leave for a limited period, this fact should be taken into consideration by the Revenue Officer in fixing the order in which the cases shall be set down for hearing and an attempt should be made to decide such cases within the period for which the officer or soldier has obtained leave to be present at the hearing.

 

34. Defendant to present a written statement. It is laid down in Order VIII, Rule I, of Code of Civil Procedure, that a defendant may, and if so required by the court shall, at or before the first hearing or within such time as the Court may permit, present a written statement of his defence. Ordinarily it is advisable to require which written statement and the Court should at the time of issuing summons call for a written statement from the defendant of the date fixed for his appearance. In most cases, there should be no difficulty in presenting such written statement on the date fixed, and no adjournment should be given for the purpose except for good cause shown, and in proper cases, costs should be awarded to the opposite side. Laxity in granting adjournments for the purpose of filing written statements should be avoided, and it should be noted that in extreme cases contumacious refusal to comply with the Court’s order is liable to be dealt with under order VIII, Rule 10, Civil Procedure Code.

 

35. Written statement to be accompanied by documents relied upon. Rule 1 of Order VIII (as amended by the High Court) further requires the defendant to produce with the written statement all documents in his possession or power on which he bases his defence or claim to set-off, if any. If he relies in support of his case on any other documents, not in his possession or power, he must annex a list thereof to the written statement. With the written statement, the defendant must also file his address for service during the litigation.

 

36. Plaintiff may also be called upon to file a written statement. When the defendant has filed a written statement, the Court may call upon the plaintiff to file a written statement in reply. Under Order VIII, Rule 9 the Court has power to call upon both parties to file written statements at any time and this power should be freely used for elucidating the pleas when necessary, especially in complicated cases. In simple cases, however, examination of the parties, after the defendant has filed his written statement, is generally found to be sufficient.

 

37. Each defendant should, as a rule, file separate written statement. In all cases where there are several defendants the Court should, as a rule, take a separate written statement from each defendant, unless the defences of any defendants filing a joint written statement are identical in all respects. There may be different defences based upon a variety of circumstances and these should not be allowed to be mixed up together in a single statement merely because all the defendants deny the plaintiff’s claim.

 

38. Set-off. Written statement called from the parties may be on plain paper, but when the defendant claims in his written statements any sum by way of set-off under Order VIII, Rule 6, Civil Procedure Code, the statement must be stamped in the same manner as plaint in a suit for the recovery of that sum.

 

39. General and special rules as to written statements. A ‘written statement’ is included in the definition of ‘pleading (vide Order VI, Rule 1)’, and should conform to the general rules of pleading given in order VI as well as the special rules with regard to written statements in Order VIII. All admissions and denials of facts should be specific and precise and not evasive or ambiguous. When allegations of fraud, etc., are set, the particulars should be fully given. When any legal provisions is relied on, not only the provision of law relied upon should be mentioned, but also the facts making it applicable should be stated. For instance, when a plea of res-judicata is raised, not only the provision of law (e.g. section 11 of the Civil Procedure Code) should be mentioned, but also the particulars of the previous suit which is alleged to bar the suit, be given.

 

 

Section F. ---- Settlement of Issues

 

40 Necessity of framing correct issues. The trail of the suit falls into two broad divisions, --- the first part leading up to and including the framing of issues and the second consisting of the hearing of the evidence produced by the parties on those issues and the decision thereof. Issues are material propositions of facts and law, which are in controversy between the parties and the correct decision of a suit naturally depends on the correct determination of these proposition. The utmost care and attention, is, therefore, needed in ascertaining the real matters in dispute between the parties and fixing the issues in precise terms. In most cases the main difficulty of the trail is overcome when the correct issues are framed. A few hours spent by the Court at the outset in studying and elucidating the pleadings may mean a saving of several days, if not weeks, in the later stages of the trial. In some Courts, the framing of issues is left to the pleaders of the parties concerned. This practice is illegal and must cease.

In suits brought under the Punjab Tenancy Act, considerable reliance has to be placed on the revenue records, and the failure of the court of scrutinize the entries recorded in the latest jamabandi and khasra girdawari of the harvest concerned (abstracts of which are produced with the plaints) often leads to the framing of wrong issues or to laying the burden of proof on the wrong party. Such mistakes subsequently cause unnecessary delay in the disposal of cases and financial loss to the parties. It is, therefore, of great importance that the entries recorded in the columns of ownership and cultivation of the revenue records should be carefully examined before framing the issues and allotting the burden of proof.

 

41. Main foundation for the issues. The main foundation for the issues is supplied by the pleadings of the parties, viz., the plaint and the written statements. 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.

 

42. Procedure in framing 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 the 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 pleader and record categorically his admission or denial of those allegations (Order X, RuleI).

 

43.The same. 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 a 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 I, as stated above. The Court will then be in a position to ascertain what facts 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 facts 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.

 

44. The same. In examining the parties or their pleaders, 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 or 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, misjoinder, estoppel, etc., is pleaded, the facts on which the pleas are based should be fully elucidated. Any inclination of a party or his pleader 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 of the opposite party, on that part of the case at any rate, if he failed to substantiate his allegations.

 

45. 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 initialed by the party concerned. If any misjoinder or multifariousness is discovered, the Court should take action to have the defect removed.

 

46. Discovery ‘inspection’ and ‘admission’. The provisions of Order XI and Order XII of the Code with regard to ‘discovery and inspection’ and ‘admissions’ are also very important for the purpose of ascertaining the precise cases of the parties and narrowing down the field of controversy.

These provisions are little understood and are not utilized at present as much as they should be. The Courts should make themselves conversant with them and encourage the parties to make use of them, especially in long and intricate cases. It should be noted that under Section 30 of the Code, the Court has power to make orders suo motu, as regards delivery of interrogatories for the purpose of discovery, inspection and admission. If these provisions are properly used, they will result in a saving of considerable cost to the parties and also curtail the duration of the trial.

 

47. Drawing issue. When the pleadings have thus 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 admission 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 interrogative form one point in dispute. Every issue should form a single question and as far as possible issue should not be put in an alternative form. In other words each issue should contain a definite proposition of fact or law which one party avers and the other 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 ‘Is the plaintiff entitled to a decree’ is meaningless. If there are more defendants than one who make separate answers to the claim the Court should not against each issue the defendant or defendants between whom and the plaintiff the issue arises.

 

48. Burden of proof. The burden of proof as to each issue should be carefully determined and the name of the party on whom the burden lies, stated opposite to the issue.

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