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Salem Advocates Bar Association, Tamil Nadu v. Union of

India: The Case that changed the course of Civil
Litigation in India

Article · March 2018

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Bharati Law Review, Jan. – Mar., 2016 272

 
SALEM ADVOCATE BAR ASSOCIATION, TAMIL NADU V. UNION
OF INDIA’: THE CASE THAT CHANGED THE COURSE OF CIVIL
LITIGATION IN INDIA
Mr.Swapnil Tripathi∗

Abstract

The legislature in 1999 and 2002 came up with amendments to

the Civil Procedure Code, changing the nature of the statute.
These amendments provided for reforms which if uniformly
implemented could further the aim of justice as envisaged by our
Constitution makers. However, the practicability of the
amendments was questioned and a report for the same was
drafted. This report was challenged in the Supreme Court of India,
in the case of Salem Advocates Bar Association v. Union of India.
The court affirmed the amendments and upheld the report. The
decision was appreciated by both academicians and scholars.
However, despite the judgment bringing a change in civil litigation
in India, it also suffered from certain flaws. Therefore, this paper
aims to analyze the said judgment, focusing on both the pros and
cons. The paper will also throw light on where the court went
wrong and the loopholes in the judgment. It will also make a case
for the judgment, and highlight the commendable aspects of the
judgment.

Case Analysis:
Name of the Case: - Salem Advocate Bar Association, Tamil Nadu
v. Union of India1

Provisions Involved:-

• Section 26(2) of the Civil Procedure Code

• Rule 15(4) and Order VI read with Rule 15 of the Civil
Procedure Code
• Order XVIII, Rule 4 of the Civil Procedure Code
• Order VIII, Rule 1 of the Civil Procedure Code
• Order VI, Rule 17 of the Civil Procedure Code
• Section 35 of the Civil Procedure Code
                                                            
∗
Student, 2nd Year , National Law University, Jodhpur.
1
AIR 2005 S.C. 3353.
Bharati Law Review, Jan. – Mar., 2016 273

 
• Section 80 of the Civil Procedure Code
• Section 148 of the Civil Procedure Code
• Section 89 of the Civil Procedure Code

Brief Facts-

I. A committee was formed to ensure that the 1999 and 2002

Amendments to the Civil Procedure Code are effectively
implemented and result in quicker dispense of justice.
II. The report was submitted in three parts,
(a) Consideration of various grievances
(b) Draft Rules for ADR and mediation
(c) Case management conferences
III. The validity of this report and the amendments was
challenged before the Court, in the matter.

Main Issue-

I. Whether the 1999 and 2002 Amendments to the Civil

Procedure Code were constitutionally valid?

Arguments/ Pleadings

The case in depth discussed the report put forward. The report
was classified into three parts, each one of them was discussed in
great lengths.

Report One-

• The Report discussed Section 26(2) and Rule 15(4) to

Order VI, wherein it was contended that filing of an
affidavit is illegal and unnecessary as there exists a
requirement of filing verification.
• Another contention by the parties was that there is a
conflict between Order XVIII, Rule 5(a) and (b) and Order
XVIII, Rule 4. The conflict here, was that Order XVIII, Rule
5 provides for recording of evidence by the Court itself in
appealable cases. However, Rule 4 and 19 of the same
order enable the commissioner to record the statements in
any case, notwithstanding any situation. Therefore, it
appeared as if the latter provision overrode the former.
• The report also discussed an ambiguity that existed in
Order VIII, Rule 1 of the Civil Procedure Code, with respect
to time limit for filing of plaint.
Bharati Law Review, Jan. – Mar., 2016 274

 
• The report dealt with a very niche area in Court
proceedings i.e. service of summons through courier. It
was contended that the courier’s report about the
defendant’s refusal to accept service is likely to lead to
serious malpractice
• The parties also raised a contention with respect to the
costs in a suit. It was contended that unscrupulous parties
take advantage of the fact that either there is no awarding
of costs by the Court or nominal costs are awarded on the
unsuccessful parties. It was submitted that only costs
which are reasonably incurred by successful parties
should be granted.
• Section 80 of the Civil Procedure Code, was also brought
into discussion wherein it was contended that prior notice
should be served to the government before filing of a suit
unless the matter is urgent and in need of an interim
order.
• Section 148 of the Civil Procedure Code, was also
mentioned wherein the power of Court to enlarge time was
discussed. Reliance was placed on the case of Mahanth
RamDas v. Ganga Das,2 and it was submitted that
extension should be provided if the act could not be
provided within 30 days for reasons beyond the control of
the party but not for acts where the Limitation Act
provides for limits.

Report Two-

• The main contention by the parties in this part of the

repor,t was with respect to Section 89 of the Code i.e.
settlement of disputes outside Courts. The said Section
provides the discretion to the Court as to if it deems fit,
that certain elements can be settled between the parties,
then the Court shall formulate those terms and send them
for observation by the parties. However, there existed an
ambiguity with respect to the applicability of the
Arbitration and Conciliation Act3 and the CPC
simultaneously. Relying on the case of P Anand Gajapathi
Raju v. P.V.G. Raju,4 it was contended that if reference is
made to arbitration under Section 89, the Arbitration Act
will apply from the stage after reference and not before.

                                                            
2 Mahanth Ram Das v. Ganga Das, (1961) 3 S.C.R. 763 (India).
3 Arbitration and Conciliation Act, 1996 (India).
4 P Anand Gajapathi Raju v. P.V.G. Raju, (2000) 4 S.C.C. 539 (India).
Bharati Law Review, Jan. – Mar., 2016 275

 
Further, it was also submitted that even if the arbitration
or any other proceeding is not successful, the Court would
not be barred to try the suit afterwards.

Report Three-

This report dealt with introduction of case flow management and

model rules. Model high court rules were provided for, which
contained various regulations provided by the Committee.

Analysis-

Salem Advocate Bar Association v. Union of India, is a landmark

judgment of the Supreme Court of India which has been relied by
Courts and tribunals in over 700 judgments. The judgment is in
furtherance to the aim of speedy justice and effective functioning
of the judiciary. The judgments amounts to a good law and is
unlike the usual kind, as it does not feature opinions of every
judge as is witnessed in most of the judgments. The judgment has
its commendable features but also has certain shortcomings, all of
which are discussed in detail below.

The judgment is commendable for certain aspects which are

discussed below-

1. No denial of justice on procedural grounds

The judgment allowed for acceptance of the proposal of adducing

evidence at a later stage in trials mostly when certain evidence not
known to the parties earlier emerges. Such an act of the court
furthers its aim of justice instead of denying it on procedural
grounds.

2. Deterrence from misuse of Court proceedings

The judgment needs to be appreciated for its stance on serving of

summons. The court upheld the contention, that in cases of
summons being served through courier and not being delivered,
both the parties have to sign an undertaking that if such a claim
by them is false then they will be charged for perjury and
contempt of court. This step, acts as a deterrent against
misleading the Court, as the parties are aware of the risk and
have willingly signed it. Further, the concept of awarding costs
reasonably keeping in mind the position of the parties and the
course of litigation, is commendable in itself as the idea that the
Bharati Law Review, Jan. – Mar., 2016 276

 
losing parties in every circumstance have to bear the cost, will be
negated. It will further lead to no frivolous claims being raised by
any party, as they will be aware that they will be penalized for the
same. The report has also taken into account various unforeseen
circumstances that may come up before a party, providing for
various extensions in form of time, so as to prevent denial of
justice merely on procedural rigmaroles.

3. Case Flow Management

This judgment has also been revered for its idea of introduction of
case management flow in the Indian judiciary. Case flow
management despite being a nascent concept in India, is of
central focus in the administration of judiciary in countries like
the United States of America.5Case flow management primarily
includes number of processes, starting from filing of disposition to
the dismissal or trial.6

However, the judges keeping in mind the diversity and difference

in the administration of courts in India provided for a modified
version of this feature. One such noteworthy modification was the
division of cases in three tracks i.e. track one, two and three. The
basis for such division seems to be the amount of time taken by
the judge generally to decide such cases, keeping in view the
subject matter in each case. Further, the judgment also provides
the judges with discretion to categorise the matter accordingly
and also change the track keeping in view the status of the case.

Such a modification provides for speedy disposal of cases and also

gives the litigant an assurance of his case status. Further, it
minimises the bureaucracy which the procedural rigmarole brings
in with it.

4. Improvisation in Cause List of the Court

A common practice that prevails in the courts is of listing the

cases to be heard in the cause list of the court. However, not even
half of them are heard by the court on the allotted date. This
problem is not just restricted to India as a similar instance

                                                            
5 Robert J Brink, Court Records- Review, Preservation, Storage and Access,73 LAW
LIBR. J. 997(1980).
6 R WHEELER & H WHITCOMB, JUDICIAL ADMINISTRATION: TEXT AND READINGS,
161(Englewood Cliffs NJ: Prentice Hall 1977).
Bharati Law Review, Jan. – Mar., 2016 277

 
occurred in the Court of Hong Kong, where more than a 1000
cases were listed to be heard in a span of 3 days.7

In order to tackle such a problem, the Court has accepted the

proposal that listing of cases should be based on reasonable
estimate time i.e. the number of cases that can be reasonably
heard in a day. Further, another proposal put forward was that
every cause list should be first listed before a senior officer of the
court, who shall review it before it is released.

Drawbacks in the Judgment

The judgment despite being one of its kind also suffers from
certain flaws. The author has listed these drawbacks in this part
of the paper.

1. Contradictory Stance

The judgment at various instances contradicts itself. For instance,

paragraph 4 of the judgment does not consider an affidavit as an
evidence for court purposes; however Order XIX Rules 1 and 2 of
the code categorically provide the contrary. Hence, despite being a
one of a kind judgment it suffers from certain contradictions in
itself.

2. Departure from the doctrine of Generalia Specialibus Non

Derogant
 
Another flaw in the judgment is its departure from settled
doctrines. One such doctrine is that of generalia specialibus non
derogant. The rule of generalia specialibus non derogant, is a
settled doctrine and provides that in cases where two
interpretations of a single law are present, the Court should let
the specific one prevail over the other.8

Order XVIII, Rule 5 of the Code provides for recording of evidence

by the Court itself in appealable cases. However, Rule 4 and 19 of
the same order enables the commissioner to record the
statements in any case, notwithstanding any situation. Therefore,
                                                            
7 Chris Lau, More than 1000 Court cases in three days- Hong Kong magistrate
says it’s close to absurd, (Sep. 6, 2015, 7:30:45 PM) available at
http://www.scmp.com/news/hong-kong/law-crime/article/1856640/over-
1000-court-cases-three-days-hong-kong-magistrate-says.
8 Commissioner of Income Tax, v. Shahzada and Sons and Ors. A.I.R. 1966 S.C.
1342 (India).
Bharati Law Review, Jan. – Mar., 2016 278

 
the former provision is more specific in nature, as it deals with
appealable cases alone. However, the Court in the judgment by
allowing the commission to record any statement even including
appealable cases has accepted the latter rule, hence overriding a
specific interpretation over a more general one.

3. Special Grounds for appointing Court commissioner not

provided

The judgment acknowledges the need to appoint court

commissioners for recording evidences, when certain exceptional
and special situations exist. However, the flaw here is that the
Court has not listed what these ground will be, therefore leaving it
to the discretion of the judges.

4. Anomaly between definitions of ‘mediation’ and ‘judicial

settlement.’

Another flaw with the judgment is that it creates an anomaly by

mixing up the definitions of ‘mediation’ and ‘judicial settlement’
under Clause (c) and (d) of Section 89(2).9 Clause (c) of the said
Section states provides the Court with the power to refer a matter
to a person who is qualified and deemed to be a Lok Adalat.
Further, on similar lines with respect to compromises in
mediation it uses a similar procedure.

However, the above stated view of the Court goes against the
settled definition of mediation, wherein a neutral third party
assists the parties in dispute to reach an amicable solution
without resorting to trial.10Contradictorily, the stance of the court
in the present case gives it the upper hand.

Further, the procedure for judicial settlement provided by the

Court here is also twisted. Judicial settlement primarily involves
adjudication by a judge not assigned officially to adjudicate on the
matter.11 The Court, on the contrary here, provides for a person
whose qualifications and nature is nowhere specified, leaving
lacunae again.

                                                            
9 Justice R Raveendran, Alternate Dispute Resolution under Section 89 of the Code
of Civil Procedure Rules, (Sep. 8, 2015, 6:30:54 PM) available at
http://www.legalblog.in/2011/09/alternate-dispute-resolution-under.html.
10 Ararammal Parkum A.B. & Ors. v. Panangadan Vachali Subhadra & Ors.,
2008(2)K.L.J. 508 (India).
11 Afcons Infrastructure Ltd. and Anr. v. Cherian Varkey Construction Co. (P) Ltd.
and Ors., (2010)8S.C.C. 24 (India).
Bharati Law Review, Jan. – Mar., 2016 279

 
5. Procedure envisaged goes against the basic premise of
Alternative Dispute Resolution Forum

A plain reading of Section 89(1) provides that every judge before

framing issues is required to identify whether there exists any
element of settlement which the parties may accept. This
procedure is then followed by the formulation of the term of
settlement, a reference to the parties and final handing over to the
dispute resolution mechanism so chosen.

However, the problem this mechanism puts forward is that since,

the entire procedure of settlement is already handled by the
Court, there is barely anything left to be done by the arbitrator,
mediator, or the adjudicator. Therefore, it allows for the judge to
step into the shoes of the above named.

Suggestions

• Revision of the deadline for filing a plaint

The Court accepted the proposal of the Report, that the judge has
the discretion to accept the plaint after the expiry of 90 days or
not. The reason for the same was that there might be certain
factors that might have not let the plaintiff file the plaint on time.
However, a better suggestion to deal with the delay of filing a
plaint, was provided by the 253rdLaw Commission Report, 2015.12
The Commission provided for acceptance of plaint only till 120
days and a blanket ban after that. This recommendation of the
law commission seems to be a better alternative, as four months
is a reasonable time which takes into account all circumstances
that might arise and lead to a delay in filing the plaint. In the
past, when the discretion to accept a plaint or not was left with
the judges it has led to exorbitant delays in the cases being filed
and reaching the trial.

• Institution of a Compliance Committee

A major problem that the courts face today despite having efficient
reforms is that of implementation. A suggestion to tackle that
front is the constitution of a Compliance Committee, which checks
the implementation of the said guidelines and ensures
                                                            
12 253 Law Commission Report, 2015 available at
http://lawcommissionofindia.nic.in/reports/Report_No.253_Commercial_Divisi
on_and_Commercial_Appellate_Division_of_High_Courts_and__Commercial_Cou
rts_Bill._2015.pdf.
 Bharati Law Review, Jan. – Mar., 2016 280

 
compliance. Such a committee can be headed by the Chief Judge
of the Court.

Such a committee will have a two-fold effect. First, it will ensure

that cases are being handled efficiently and being disposed off
speedily and second since the Chief Judge of the Court will be
heading it, the working of the committee will be effective and
adherence to its commands will follow too.

XW

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