Salem Bar Association v. Union Of India (2005)

Facts

The Court rejected the argument that the CPC’s amendments, which were enacted in accordance with the Amendment Acts of 1999 and 2002, were unconstitutional. The ruling noted that a set of guidelines for the application of Section 89 of the Code and, for that matter, other provisions added through modifications, must be developed.

The Committee’s reports were divided into three sections:

Report 1:-Consideration of Various Grievances

Report 2:-Draft Rules for ADR and Mediation

Report 3:-Case Management Conferences.[1]

Issue Involved:

Whether the 1999 and 2002 Amendments to the Civil Procedure Code, 1908, are constitutionally valid?

Report 1

These are the additions of Rule 15(4) to Order VI Rule 15 and Subsection (2) to Section 26.
It was argued that the affidavit mandated by Order VI, Rule 15(4) and Section 26(2) of the Code places an extra burden on the deponent to verify the accuracy of the facts presented in the pleadings.

Amendment in Order VIII Rule 4

• New arguments are offered that try to show that Order XVIII Rules 5(a) and 5(b) contradict with Order VIII Rule 4.
• The point of contention here is that Order XVIII Rule 5 allows the Court to record evidence in instances that are subject to appeal.
• According to the opposing viewpoint, the commissioner is authorized under Rules 4 and 19 of the same order to record statements in any circumstance.
• Any objection expressed during the recording of evidence before the Commissioner will be noted by the Commissioner and decided by the Court during the arguments, as per Order XVIII Rule 4(4).
• Order XVIII Rule 4(8) states that Rules 16, 16-A, 17, and 18 of Order XXVI concerning the issuance, execution, and return of the commission thereunder shall apply to the extent that they are applicable.
• The commissioner has not been given the authority to declare a witness hostile. 

Additional Evidence

• In the Salem Advocates Bar Association’s case, it was made clear that the law that existed prior to the amendment’s introduction would be reinstated with the removal of Order XVIII Rule 17-A, which allowed for the leading of new evidence.
• The Amendment Act of 2002 eliminated the aforementioned rule.
• The Court itself has the inherent authority to let parties to provide evidence that they were either unaware of beforehand or that they were unable to present despite their best efforts.
• Therefore, the removal of Order XVIII Rule 17-A does not preclude the production of evidence in the future. Rule 1 of Order VIII
• According to Order VIII Rule 1, which was modified by Act 46 of 1999, the defendant must give a written statement in defence of himself within 30 days of the summons being served to him.
• Order VIII Rule 1’s use of the word “shall” by itself does not establish whether a provision is mandatory or directory.
• It was argued that the purpose of procedural rules is to promote justice, not to undermine it.
• It must be preferred to construct the rule or process that upholds justice and avoids miscarriages.
• Rather than being the mistress of justice, the rules or process are its handmaid.

Section 39

• The non-authorizing Court is permitted to execute a decree outside of its jurisdiction per Section 39(4).
• However, it satisfies the requirements outlined in those laws without weakening any other rules that grant such authority.
• Therefore, Section 39(4) does not apply to Order XXI, Rule 3, or Rule 48, which provide otherwise.

Section 64(2)

• The Amendment Act, 22 of 2002, added Section 64(2) to the Code.
• The original legislated version of Section 64 has been renumbered as Section 64(1).
• If the aforementioned acts are carried out in accordance with a contract for such a transfer or delivery that was signed and registered prior to the attachment, they are protected by subsection (2).
• The idea of registration was created to stop fictitious and pointless contracts from being created in an attempt to circumvent the attachments.
• Any subsequent sale deed made after attachment will be deemed legitimate if the contract is registered; if it is not, the subsequent sale following attachment will not be.
• There would be no protection for such sales.

Costs

• According to the parties’ contention regarding the litigation, many dishonest parties take advantage of the fact that the losing party either receives no charges at all or only modest fees.
• Unfortunately, requiring parties to cover their own expenses has become commonplace.
• Such an order is typically issued in violation of Section 35(2) of the Code.
• The institution of frivolous cases is also supported by a similar practice.
• Additionally, it encourages the establishment of baseless defence.

Section 80

• It was asserted that, save in cases where an interlocutory order is urgently needed, Section 80 (1) requires providing the government two months’ notice before launching a lawsuit.
• Two months are allotted so that the government can review the claim made in the notification and have the time to respond appropriately.
• The goal is to prevent litigation, but in many instances, either notice is not answered or the response is ambiguous and unclear. [2]
  

Report 2

While “shall” is used in Order X, Rule 1A, “may” and “shall” are both used in Section 89 of the C.P.C.
However, it is clear from reading these clauses that Section 89’s use of the word “may” is unique to the aspect of renegotiating the terms of a potential settlement and its reference to one of the ADR methods.
But there isn’t any conflict.
It is evident that when one of the ADR methods is stated, it implies the conflict outlined in the terms of settlement formed or revised in accordance with Section 89.It was contended, based on the case of P Anand Gajapathi Raju v. P.V.G. Raju, that the Arbitration Act would apply from the moment after reference rather than earlier if arbitration was used under Section 89.
Furthermore, it was contended that the Court would still be able to hear the suit even in the event that the arbitration or any other process was unsuccessful.

Report 3

Report No. 3 is on Model Rules and Case Flow Management. The number of cases resolved can be significantly increased by the case management policy.
Its purpose is to give the judge or other court employees the authority to set deadlines and oversee a case from beginning to end.
Various sets of Model Case Flow Management have been provided to trial courts, first appellate subordinate courts, and the Supreme Court.

Regulations

These draft guidelines go into great depth about each step of the case. The High Courts can review these Rules, discuss the issue, and decide whether to adopt or develop case law management and model rules with or without modifications in order to move toward giving the litigating public fair, quick, and affordable justice.[3]

Conclusion

One of the Supreme Court of India’s landmark rulings, Salem Advocate Bar Association v. Union of India, has been cited by courts and tribunals in over 700 rulings.
In contrast to most judgments, these ones do not include the personal opinions of all the judges, which makes them unique and contributes to excellent legislation.

References

[1] ‘Salem Advocate Bar Association v Union of India’ <https://lawbhoomi.com/salem-advocate-bar-association-v-union-of-india/> accessed 28 May 2025.

[2] Manupatra, ‘Salem Advocate Bar Association, Tamil Nadu V. Union Of India’: The Case That Changed The Course Of Civil Litigation In India’ <https://articles.manupatra.com/article-details?id=undefined&ifile=undefined> accessed 28 May 2025.

[3] ‘Salem Advocate Bar Association, T.N. v Union of India AIR 2005 SC 3353’ (Drishti Judiciary) <https://www.drishtijudiciary.com/alternative-dispute-resolution/Salem%20Advocate%20Bar%20Association,%20T.N.%20v%20Union%20of%20India%20AIR%202005%20SC%203353> accessed 28 May 2025.