PART III
Original Jurisdiction
ORDER XXII
1. Two or more plaintiffs may join in one suit in whom any right to relief in respect of or arising out of the same act or transaction or series of acts or transactions is alleged to exist.
2. Two or more defendants may be joined in one suit against whom any right to relief in respect of or arising out of the same act or transaction or series of acts or transactions is alleged to exist.
3. (1) The Court may at any such stage of the proceedings, either upon or without the application of either party, and on such terms as may appear to the Court to be just, order that the name of any plaintiff or defendant improperly joined be struck out, and that the name of any plaintiff or defendant who ought to have been joined, or whose presence before the Court may be necessary in order to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the suit, be added.
(2) No person shall be added as a plaintiff without his consent.
4. Where it appears to the Court that any cause of action joined in one suit cannot conveniently be tried or disposed of together the Court may order separate trials or make such other order as may be expedient.
5. Where it appears to the Court that any joinder of plaintiffs or defendants may embarrass or delay the trial of the suit, the Court may order separate trials or make such order as may be expedient.
ORDER XXIII
PLAINTS
1. Every suit shall be instituted by the presentation of a plaint.
2. A plaint shall be presented to the Registrar, and all plaints shall be registered and numbered by him according to the order in which they are presented.
3. Every plaint shall comply with the rules contained in Order XXVI of these rules so far as they are applicable.
4. A plaint shall contain the following particulars:—
(a) the names of the plaintiff and of the defendant;
(b) the facts constituting the cause of action and when it arose;
(c) the facts showing that the Court has jurisdiction;
(d) the declaration or relief which the plaintiff claims.
5. The plaintiff shall endorse on the plaint, or annex hereto a list of the documents (if any) which he has produced along with it and the Registrar shall sign the list if on examination he finds it to be correct.
6. The plaint shall be rejected:—
(a) where it does not disclose a cause of action.
(b) where the suit appears from the statement in the plaint to be barred by any law.
7. Where a plaint is rejected the Court shall record an order to that effect with the reasons for the order.
8. The rejection of the plaint shall not of itself preclude the plaintiff from presenting a fresh plaint in respect of the same cause of action.
9. Where a plaintiff sues upon a document in his possession or power, he shall produce it to the Registrar when the plaint is presented and shall at the same time deliver the document or a copy thereof to be filed with the plaint.
10. Where the plaintiff relies on any other documents (whether in his possession or power or not) as evidence in support of his claim, he shall enter such documents in a list to be added or annexed to the plaint.
11. Where any such document is not in the possession or power of the plaintiff, he shall, if possible, state in whose possession or power it is.
12. A document which ought to be produced in Court by the plaintiff when the plaint is presented, or to be entered in the list to be added or annexed to the plaint, and which is not produced or entered accordingly, shall not without the leave to the Court, be received in evidence at the hearing of the suit.
ORDER XXIV
ISSUE AND SERVICE OF SUMMONS
1. When a suit has been duly instituted a summons shall be issued to the defendant to appear and answer the claim.
2. Every summons shall be signed by the Registrar, and shall be sealed with the seal of the Court.
3. Every summons shall be accompanied by a copy of the plaint.
4. The summons shall be served by being sent by registered post to the Attorney- General for India or the Advocate-General for the State, as the case may be, or to an advocate on record of the defendant empowered to accept service.
5. There shall be endorsed on every summons a notice requiring the defendant to enter an appearance within twenty-eight days after the summons has been served.
6. A defendant shall enter the appearance by filing in the Registry a memorandum in writing containing the name and place of business of his advocate on record if any, and in default of appearance being entered within the time mentioned in the summons, or as hereinafter provided, the suit may be heard ex parte.
7. The defendant shall forthwith give notice of his having entered an appearance to the plaintiff.
8. The plaintiff shall within fourteen days after the defendant has entered an appearance take out a summons for directions returnable before the Judge in Chambers, and the Judge shall on the hearing of the summons give such direction with respect to pleadings, interrogatories, the admission of documents and facts, the discovery, inspection and production of documents and such other interlocutory matters as he may think expedient.
ORDER XXV
WRITTEN STATEMENT, SET-OFF AND COUNTER-CLAIM
1. It shall not be sufficient for a defendant in his written statement to deny generally the facts alleged by the plaintiff but he shall deal specifically with each allegation of fact of which he does not admit the truth, except damage.
2. Where a defendant denies an allegation of fact he shall not do so evasively but shall answer the point of substance.
3. Each allegation of fact in the plaint, if not denied specifically or by necessary implication, or not expressly stated to be not admitted in the pleading of the defendant, shall be taken to be admitted, but the Court may in its discretion require any fact so admitted to be proved otherwise than by such admission.
4. Where the defendant claims to set-off against a demand by the plaintiff any ascertained sum of money, he may in his written statement, but not afterwards without the leave of the Court, state the grounds of his claim and the particulars of the debt sought to be set-off.
5. The written statement containing the particulars mentioned in rule 4 of this order shall have the same effect as a plaint in a cross suit so as to enable the Court to pronounce a final judgment in respect both of the original claim and of set-off.
6. The rules relating to a written statement by a defendant shall apply to a written statement by a plaintiff in answer to a claim of set-off.
7. No pleading subsequent to the written statement of a defendant other than by way of defence to a set-off shall be presented except by the leave of the Court and upon such terms as the Court may think fit, but the Court may at any time require a written statement or additional written statement from any of the parties and may fix a time for presenting the same.
8. Where any party from whom a written statement is so required fails to present the same within the time fixed by the Court, the Court may pronounce judgment against him or make such orders in relation to the suit as it thinks fit.
9. The defendant, in addition to his right of pleading a set-off may set up by way of counter-claim against the claims of the plaintiff any right or claim in respect of a cause of action accruing to him either before or after the filing of the suit but before he has delivered his defence and before the time limited for delivering his defence has expired whether that counter-claim sounds in damages or not, and the counter-claim shall have the same effect as a cross-suit, so as to enable the Court to pronounce a final judgment in the same suit, both on the original claim and on the counter-claim.
10. The Court may if in its opinion the counter-claim cannot be disposed of in the pending suit or ought not to be allowed, refuse permission to the defendant to avail himself thereof, and require him to file a separate suit.
ORDER XXVI
PLEADINGS GENERALLY
1. In this Order ‘pleading’ means plaint or written statement.
2. Every pleading shall contain, and contain only, a statement in a concise form of the material facts on which the party pleading relief, but not the evidence by which those facts are to be proved, nor any argumentative matter, and shall be divided into paragraphs numbered consecutively.
3. Dates, sums and numbers shall be expressed in figures.
4. A further and better statement of the nature of the claim or defence, or further and better particulars of any matter stated in any pleading may in all cases be ordered, upon such terms as to costs and otherwise, as may be just.
5. Wherever the contents of any document are material, it shall be sufficient to state the effect thereof as briefly as possible, without setting out the whole or any part thereof, unless the precise words of the document or any part thereof are material.
6. Every pleading shall be signed by an advocate on record on behalf of the Attorney-General for India or by an advocate on record on behalf of the Advocate-General for the State, as the case may be.
7. The Court may at any stage of the proceeding order to be struck out or amended any matter in any pleading which may be unnecessary or scandalous or which may tend to prejudice or embarrass or delay the trial of the suit, or which contravenes any of the provisions of this Order.
8. The Court may, at any stage of the proceedings, allow either party to amend his pleading in such manner and on such terms as may be just, but only such amendments shall be made as may be necessary for the purpose of determining the real question in controversy between the parties.
9. If a party who has obtained an order for leave to amend does not amend accordingly within the time limited for that purpose by the order, or if no time is thereby limited then within fourteen days from the date of the order, he shall not be permitted to amend after the expiration of such limited time or of such fourteen days, as the case may be unless the time is extended by the Court.
10. Amendments of pleadings made only for the purpose of rectifying a clerical error may be made on an order of the Registrar without notice, but unless otherwise ordered a copy of the order shall be served on all other parties.
ORDER XXVII
DISCOVERY AND INSPECTION
1. Order XI of the First Schedule to the Code except rules 5 and 23 of that order, shall apply with respect to discovery and inspection in suits instituted before the Court.
2. Where the Court has made an order allowing one party to deliver interrogatories to the other, those interrogatories shall be answered by such persons as the Court may direct.
3. No application for leave to deliver interrogatories shall be made by the defendant until he has filed his written statement.
4. After an order has been made for the delivery of interrogatories one set of the interrogatories, as allowed shall be annexed and served with the order upon the person to be interrogated.
5. The Court may, for sufficient reason, allow any affidavit to be sworn, on behalf of the party from whom discovery, production or inspection is sought, by any person competent to make the same.
6. Where any document is ordered to be deposited in Court a copy of the order and a schedule of the document shall be left in the Registry at the time when the deposit is made.
7. When the purpose for which any documents have been deposited in Court is satisfied, the party by whom they were deposited may, pending the suit, have them delivered out to him, if he has the consent in writing of the other party, or an order of the Court.
ORDER XXVIII
ADMISSIONS
Order XII in the First Schedule to the Code with respect to admissions shall apply in suits instituted before the Court.
ORDER XXIX
SUMMONING AND ATTENDANCE OF WITNESSES
1. The provisions of sections 28 and 32 of the Code shall apply to summons to give evidence or to produce documents under these rules.
2. Order XVI in the First Schedule to the Code with respect to the summoning and attendance of witnesses shall apply, with the exception of the proviso to sub-rule (3) of rule 10, and the words ‘(a) within the local limits of the Court’s ordinary original jurisdiction, or (b) without such limits but’ in rule 19.
ORDER XXX
ADJOURNMENTS
In suits instituted before the Court, Order XVII in the First Schedule to the Code with respect to adjournments shall, apply, with the substitution in rule 2 of the words ‘in such manner as it thinks just’ for the words ‘in one of the modes directed in that behalf by Order IX or make such other order as it thinks fit’.
ORDER XXXI
HEARING OF THE SUIT
1. Rules 1, 2, 3, 16, 17 and 18 of Order XVIII in the First Schedule to the Code with respect to the hearing of suits and examination of witnesses shall apply in suits instituted before the Court.
2. Witnesses in attendance shall be examined orally in open Court and their evidence taken down in shorthand in the form of question and answer by such officers of the Court as may be appointed for the purpose.
3. The transcript of the shorthand note shall be signed by the officer recording the note and shall be deemed the deposition of the witness and shall form part of the record.
4. The party to any suit or matter in which the evidence has been taken in shorthand, and the witness whose evidence has been taken, shall be entitled upon payment of the prescribed fee to be furnished with a certified copy of the handscript.
ORDER XXXII
WITHDRAWAL AND ADJUSTMENT OF SUITS
1. Rules 1, 2 and 3 of Order XXXIII in the First Schedule to the code with respect to the withdrawal and adjustment of suits shall apply in suits instituted before the Court.
2. No new suit shall be brought in respect of the same subject-matter until the terms or conditions, if any, imposed by the order permitting the withdrawal of a previous suit or giving leave to bring a new suit have been complied with.
ORDER XXXIII
PAYMENT INTO COURT
Order XXXIV in the First Schedule to the Code with respect to payment into Court shall apply in suits instituted before the Court.
ORDER XXXIV
SPECIAL CASE
Rules 1, 2 and 5 of Order XXXVI in the First Schedule to the Code with respect to procedure by way of special case shall apply in suits instituted before the Court, except the words—‘which would have jurisdiction to entertain a suit the amount or value of the subject-matter of which is the same as the amount or value of the subject-matter of the agreement’ in sub-rule (1) of rule 3, the words ‘claiming to be interested as plaintiff or plaintiffs’ to the end of sub-rule (2) of rule 3; and the words ‘and upon the judgment so pronounced a decree shall follow’ in sub-rule (2) of rule 5.
PART IV
ORDER XXXV
(Article 32 of the Constitution)
1. (1) Every petition under article 32 of the Constitution shall be in writing and shall be heard by a Division Court of not less than five Judges provided that a petition which does not raise a substantial question of law as to the interpretation of the Constitution may be heard and decided by a Division Court of less than five Judges, and, during vacation, by the Vacation Judge sitting singly.
(2) All interlocutory and miscellaneous applications connected with a petition under article 32 of the Constitution, may be heard and decided by a Division Court of less than five Judges, and, during vacation, by the Vacation Judge sitting singly, notwithstanding that in the petition a substantial question of law as to the interpretation of the Constitution is raised.
2. No Court-fees shall be payable on petitions for habeas corpus or other petitions under article 32 of the Constitution arising out of criminal proceedings, or in proceedings connected with such petitions.
Habeas Corpus
3. A petition for a writ of habeas corpus shall be accompanied by an affidavit by the person restrained stating that the petition is made at his instance and setting out the nature and circumstances of the restraint:
Provided that where the person restrained is unable owing to the restraint to make the affidavit, the petition shall be accompanied by an affidavit to the like effect made by some other person acquainted with the facts, which shall state the reason why the person restrained is unable to make the affidavit.
The petition shall state whether the petitioner has moved the High Court concerned for similar relief and if so, with what result.
4. The petition shall be posted before the Court for preliminary hearing, and if the Court is of the opinion that a prima facie case for granting the petition is made out, rule nisi shall issue calling upon the person or persons against whom the order is sought, to appear on a day to be named therein to show cause why such order should not be made and at the same time to produce in Court the body of the person or persons alleged to be illegally or improperly detained then and there to be dealt with according to law.
5. On the return day of such rule or any day to which the hearing thereof may be adjourned, if no cause is shown or if cause is shown and disallowed, the Court shall pass an order that the person or persons improperly detained shall be set at liberty. If cause is shown and allowed, the rule shall be discharged. The order for release made by the Court, shall be a sufficient warrant to any gaoler, public official, or other person for the release of the person under restraint.
6. In disposing of any rule, the Court may in its discretion make such order for costs as it may consider just.
Mandamus, Prohibition, Certiorari, Quo-Warranto
and other directions or Orders
7. A petition for a direction, or order, or writ including writs in the nature of mandamus, prohibition, quo-warranto or certiorari shall set out the name and description of the petitioner, the nature of the fundamental right infringed the relief, sought and the grounds on which it is sought and shall be accompanied by an affidavit verifying the facts relied on and at least 1[seven] copies of the petition and affidavit shall be lodged in the Registry. The petition shall also state whether the petitioner has moved the High Court concerned for similar relief and, if so, with what result.
8. The petition shall be posted before the Court for preliminary hearing and orders as to the issue of notice to the respondent. Upon the hearing, the Court, if satisfied that no fundamental right guaranteed by the Constitution has been infringed or that the petition is otherwise untenable, shall dismiss the petition and if not so satisfied, shall direct a rule nisi to issue to the respondent calling upon him to show cause why the order sought should not be made, and shall adjourn the hearing for the respondent to appear and be heard.
2[8A. If the Court, on preliminary hearing, orders issue of show cause notice to the Respondent, he shall be entitled to file his objections within 30 days from the date of receipt of such notice or not later than 2 weeks before the date appointed for hearing, whichever be earlier.]
9. Upon making the order for a rule nisi, the Court may, if it thinks fit, grant such ad interim relief to the petitioner as the justice of the case may require, upon such terms if any as it may consider just and proper.
3[10. (1) Unless the Court otherwise orders, the rule nisi together with a copy of the petition and of the affidavit in support thereof shall be served on the respondent not less than twenty-one days before the returnable date. The rule shall be served on all persons directly affected and on such other persons as the Court may direct.
(2) Affidavits in opposition shall be filed in the Registry not later than four days before the returnable date and affidavits in reply shall be filed within two days of the service of the affidavit in opposition.
(3) Within four weeks of the filing of the pleadings, the petitioner shall file written brief prepared in the following manner, namely:—
(a) At the outset, the brief shall contain a short summary of the pleading essential for the decision of the points in issue. This shall ordinarily not exceed two pages;
(b) Thereafter, the petitioner shall formulate propositions of fact and law that are proposed to be advanced at the hearing citing under each of those propositions, authorities including text books, statutory provisions, regulations, ordinances or bye-laws or orders that are desired to be relied upon. In the case of decisions, reference shall be given to official reports, if available. In the case of text books reference shall, if possible, be given to the latest edition. Where any statute, regulation, rule or ordinance or bye-law is cited or relied upon, so much thereof as may be necessary for the decision of the points in issue shall be set out.
(4) Within four weeks of the service of the petitioner’s written brief on him, the contesting respondent shall file his written brief setting out briefly the grounds on the basis of which he is opposing each of the propositions formulated by the petitioner. Under each of those grounds he shall cite such authorities as he may seek to rely in the same manner as the petitioner is required to do under sub-rule (3). In his written brief, the respondent may raise objections as to the maintainability or sustainability of either the petition as a whole or any relief claimed therein in the form of propositions, supported by authorities in the manner mentioned earlier.
(5) Within one week of the receipt of the brief filed by the respondent, the petitioner may submit his reply brief which shall be concise and to the point in respect of the points raised in the respondent’s brief.
(6) Copies of affidavits and briefs required to be filed under this rule shall be served on the opposite party or parties and the affidavits or brief shall not be accepted in the Registry, unless they contain an endorsement of service signed by such party or parties. Every party to the proceeding shall supply to any other party on demand and on payment of the proper charges, copies of any affidavit or brief filed by him. At least seven copies of affidavits and briefs shall be lodged in the Registry.
(7) If the Court considers any of the propositions formulated or grounds taken by any of the parties in the written briefs filed as being irrelevant of frivolous the Court may award against such party or parties such costs as the Court may consider fit.
(8) At the hearing of rule nisi, except with the special permission of the Court, no party shall be allowed to advance any proposition or urge any ground not taken in the written briefs, nor shall be allowed to rely on any authorities (including provisions of statute, rule, bye-law, regulation or order) other than those mentioned in the briefs, unless such authorities or provisions have been published or made after the written briefs were filed into Court.
(9) At the hearing of rule nisi, if the Court is of the opinion that an opportunity be given to the parties to establish their respective cases by leading further evidence, the Court may take such evidence or cause such evidence to be taken in such manner as it may deem fit and proper.
(10) No party to a petition under this rule shall be entitled to be heard by the Court unless he has previously lodged his written brief in the petition.
11. The provisions contained in rules 4[1 to 10] respectively of Order XVIII relating to petitions shall, so far as may be applicable, apply to petitions under this Court.
ORDER XXXVI
APPLICATIONS FOR TRANSFER OF CRIMINAL PROCEEDING UNDER 5[SECTION 406 OF THE CRIMINAL PROCEDURE CODE, 1973] 6[AND SECTION 11 OF THE TERRORIST
AFFECTED AREAS (SPECIAL COURTS) ACT, 1984.]
1. Every petition for transfer under 5[section 406 of the Code of Criminal Procedure, 1973] 6[or under section 11 of the Terrorist Affected Areas (Special Courts) Act, 1984] shall be in writing. It shall set out concisely in separate paragraphs the facts and particulars of the case, the relief sought and the grounds therefor and shall be supported by an affidavit or affirmation.
2. The petition shall be posted before the Court for preliminary hearing and orders as to issue of notice. Upon the hearing the Court, if satisfied that no prima facie case for transfer has been made out or that the petition is otherwise not tenable, shall dismiss the petition; and if upon such hearing the Court is satisfied that a prima facie case for granting the petition is made out, it shall direct that notice be issued to the respondent to show cause why the order sought for should not be made; 7[[such notice shall be given to the accused person where he is not the applicant, to the respondent State and to such other parties interested as the Court may think fit to direct.]
3. The notice shall be served not less than twenty-one days before the date fixed for the final hearing of the petition. Affidavits in opposition shall be filed in the Registry not later than four days before the date appointed for hearing and the affidavit in reply shall be filed not later than 2 p.m. preceding the day of the hearing of the petition. Copies of affidavits in opposition and in reply shall be served on the opposite party or parties and the affidavits shall not be accepted in the Registry unless they contain an endorsement of service signed by such party or parties.
4. Where the petition is dismissed, the Court, if it is of opinion that the application was frivolous or vexatious, may order the applicant to pay by way of compensation to any person who has opposed the application such sum not exceeding one thousand rupees as it may consider proper in the circumstances of the case.
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1. Subs. by G.S.R. 410, dated 26th February, 1968 (w.e.f. 26-2-1968).
2. Ins. by G.S.R. 127(E), dated 22nd February, 2006 (w.e.f. 1-3-2006).
3. Subs. by G.S.R. 1066, dated 24th September, 1973 (w.e.f. 29-9-1973).
4. Subs. by G.S.R. 407, dated 9th December, 1997 (w.e.f. 20-12-1997).
5. Amended by G.S.R. 1697, dated 7th December, 1977 (w.e.f. 17-12-1977).
6. Added by G.S.R. 96(E), dated 16th February, 1987 (w.e.f. 16-2-1987).
7. Amended by G.S.R. 387, dated 13th March, 1978 (w.e.f. 18-3-1978).
PART IVA
1[ORDER XXXVIA
1. Every application under Article 139A (1) of the Constitution shall be in writing. It shall set out concisely in separate paragraphs, the facts and particulars of the cases, pending before the Supreme Court and one or more High Courts or as the case may be, before two or more High Courts, the names and addresses of the parties, the questions of law involved and a statement that the same or substantially the same questions of law are involved in all the cases and that such questions are substantial questions of general importance. 2[In the case of an application made by the Attorney-General no affidavit shall be necessary in support thereof but it shall be accompanied by a certificate of the advocate on record to the effect that such questions are substantial questions of general importance in terms of clause (1) of article 139A of the Constitution, and in the case of an application made by a party to a case it shall be accompanied by an affidavit in support thereof and also by a certificate as aforesaid.] The petition shall be made on a Court-fee stamp of the value of rupees ten.
2. The application shall be posted before the Court for preliminary hearing and orders as to issue of notice. If upon such hearing, the Court is satisfied that a prima facie case for granting the application is made out, it shall direct that notice be issued to the parties in the case concerned to show cause why the cases be not withdrawn. A copy of the order shall be transmitted to the High Courts concerned which shall report within four weeks the stages at which the concerned cases stand in the High Courts.
3. The notice shall be served through the High Court not less than six weeks before the date fixed for the final hearing of the application. Affidavits by the parties shall be filed in the Registry not later than two weeks before the date appointed for hearing and the affidavit in reply by the Attorney-General shall be filed not later than two days preceding the day of the hearing of the application. Copies of affidavits shall be served on the parties and the Attorney-General and the affidavits shall not be accepted in the Registry unless they contain an endorsement of service.
4. After hearing the Attorney-General and the parties, if the Court is satisfied that a case for granting the application has been made out, it shall require the High Court to transfer the case to this Court for its decision after it is ripe for hearing. The order will be transmitted to the High Court with utmost expedition.
3[5. (1) On transfer, the case shall be registered in the Court as Transferred Case.
(2) The Registrar of the High Court shall have the record of the transferred case prepared and printed in accordance with the First Schedule to the Rules and transmit, within six months from the date of the order of the transfer, twenty copies of the said printed record, one copy of which shall be duly authenticated by him.
(3) Where the Court has ordered the transfer of the case at the instance of a party, the record abovesaid shall be prepared at the cost of such party.
(4) Where the Court has directed the transfer of the case upon the application by the Union of India or the State Government, the record abovesaid shall be prepared at the cost of the Government of India or the State concerned, as the case may be.
(5) Where the Court has directed the transfer of a case on its own motion, the record shall be prepared in accordance with the Rules of the High Court or subject to the directions of the Court, if any, regarding the cost thereof:
Provided, however, that where the record has been printed for the purpose of the case before the High Court and sufficient number of copies of the said printed record are available, the same shall be sent to the Court and no fresh printing of the record shall be necessary, except, however, such additional papers as may be required.
(6) The Registrar of the High Court shall give notice to the parties to the transferred case regarding the transmission of the printed record to the Court simultaneously with such transmission of the printed record.
(7) Where in a case, the Court directs that the original record be sent for and the case record, prepared in the Court, the record shall be prepared under the supervision of the Registrar of the Court, and in accordance with the provisions of rules 15 to 18 of Order XV and the First Schedule to the Rules, the cost of the preparation of the record being borne as per the sub-rules (3), (4) and (5) of rule 5 of this Order, and as soon as the index of the record is settled, the Registrar of the Court shall cause an estimate of the cost of the preparation of the record to be prepared and served upon the party who is to bear the cost as per the sub-rule abovesaid and require the said party to deposit the said amount of cost within 30 days of the service of the estimate. The said party may deposit the amount of estimate in lump sum or in such instalments as the Registrar may prescribe.]
6. The parties shall enter appearance in this Court in the Transferred Cases within 30 days of the service on them of such notice of transmission of the record unless they have already entered their appearance at an earlier stage.
7. Within sixty days of the receipt of the said notice regarding the despatch of the record to this Court, the petitioner/appellant/plaintiff shall file his written brief prepared in the following manner, namely:—
(1) At the outset the brief shall contain a short summary of the facts essential for the decision of the questions in issue.
(2) Thereafter, it shall contain propositions of law that are proposed to be advanced at the hearing, citing under each of those propositions, authorities including text books, statutory provisions, regulations, rules or Ordinances or bye-laws or orders that are desired to be relied upon. In the case of decisions, reference shall be given to official reports, if available. In the case of text books reference shall, if possible, be given to the latest edition. Where any Statute, Regulation, Rule or Ordinance or bye-law is cited or relied upon so much thereof as may be necessary for the decision of the questions in issue shall be set out. A list of the dates of the relevant events leading upto and concerning the litigation, in chronological order shall also be given at the end of the brief.
(3) Within four weeks of the service of the written brief, the respondent/defendant shall file his written brief setting out briefly the grounds on the basis of which he is opposing each of the propositions of the Petitioner/Appellant/Plaintiff. Under each of those grounds, he shall cite such authorities as he may seek to rely on in the same manner as is required under sub-rule (2).
(4) Copies of the briefs shall be served by such parties on the Attorney-General for India, and the Advocate-General for the State, where necessary, and he may file his written brief within four weeks of such service.
(5) Within one week of the receipt of the brief filed by the respondent/defendant/Attorney-General/Advocate-General, the petitioner/appellant/plaintiff may submit his reply brief which shall be concise and to the point.
(6) Copies of the briefs required to be filed shall be served on the opposite party or parties and briefs shall not be accepted in the Registry unless they contain an endorsement of service signed by such party or parties. Every party to the proceeding shall supply to any other party, on demand and on payment of the proper charges, copies of any briefs filed by him. At least fifteen copies of the written briefs shall be lodged in the Registry.
(7) At the hearing of the reference, except with the special permission of the Court, no party shall be allowed to advance any proposition or urge any ground not taken in the written briefs nor shall he be allowed to rely on any authorities (including provisions of statute, Ordinance, rule, bye-law, regulation or order) other than those mentioned in the briefs unless such authorities or provisions have been published or made after the written briefs were filed in Court.
(8) No party to the Transferred Case shall be entitled to be heard by the Court unless he has previously lodged his written brief.
8. The Transferred Cases shall thereafter be listed for final hearing before the Court.
9. The Court may pass such orders as to costs as it may deem proper.
10. Save as otherwise provided by the rules contained in this Order, the provisions of other Orders shall, so far as may be, apply to a Transferred Case under this Order.]
4[ORDER XXXVIB
APPLICATIONS FOR TRANSFER UNDER ARTICLE 139A(2)
of THE CONSTITUTION AND SECTION 25 OF
the CODE OF CIVIL PROCEDURE, 1908
1. Every petition under article 139A(2) of the Constitution or section 25 of the Code of Civil Procedure, 1908, shall be in writing. It shall state succinctly and clearly all relevant facts and particulars of the case, the name of the High Court or other Civil Court in which the case is pending and the grounds on which the transfer is sought. The petition shall be supported by an affidavit.
2. The petition shall be made on a Court-fee stamp of the value of rupees ten.
3. The petition shall be posted before the Court for preliminary hearing and orders as to issue of notice. Upon such hearing the Court, if satisfied that no prima facie case for transfer has been made out, shall dismiss the petition and if upon such hearing the Court is satisfied that a prima facie case for granting the petition is made out, it shall direct that notice be issued to the parties in the case concerned to show cause why the case be not transferred. A copy of the Order shall be transmitted to the High Court concerned.
4. The notice shall be served not less than four weeks before the date fixed for the final hearing of the petition. Affidavits in opposition shall be filed in the Registry not later than one week before the date appointed for hearing and the affidavit in reply shall be filed not later than two days preceding the day of the hearing of the petition. Copies of affidavits in opposition and in reply shall be served on the opposite party or parties and the affidavits shall not be accepted in the Registry unless they contain an endorsement of service signed by such party or parties.
5. The petition shall thereafter be listed for final hearing before the Court.
6. Save as otherwise provided by the rules contained in this Order the provisions of other orders (including Order XLIII) shall, so far as may be, apply to petition under this Order.]
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1. Ins. by G.S.R. 1024, dated 9th August, 1978 (w.e.f. 19-8-1978).
2. Subs. by G.S.R. 506, dated 21st May, 1981 (w.e.f. 30-5-1981).
3. Subs. by G.S.R. 821, dated 22nd September, 1987 (w.e.f. 7-11-1987).
4. Ins. by G.S.R. 1024, dated 9th August, 1978 (w.e.f. 19-8-1978).
PART V
ORDER XXXVII
1. On the receipt by the Registrar of the Order of the President referring a question of law or fact to the Court under article 143 of the Constitution the Registrar shall give notice to the Attorney-General for India to appear before the Court on a day specified in the notice to take the directions of the Court as to the parties who shall be served with notice of such reference, and the Court may, if it considers it desirable, order that notice of such reference, shall be served upon such parties as may be named in the order.
2. Subject to the directions of the Court the notice shall require all such parties served therewith as desired to be heard at the hearing of the reference to attend before the Court on the day fixed by the order to take the directions of the Court with respect to statements of facts and arguments and with respect to the date of the hearing.
3. Subject to the provisions of this Order, on a reference under article 143 of the Constitution, the Court shall follow as nearly as may be the same procedure as is followed in proceedings before the Court in the exercise of its original jurisdiction, but with such variations as may appear to the Court to be appropriate and as the Court may direct.
4. After the hearing of the reference under article 143 of the Constitution the Registrar shall transmit to the President the report of the Court thereon.
5. The Court may make such order as it thinks fit as to the costs of all parties served with notice under these rules and appearing at the hearing of the reference under article 143 of the Constitution.
1. A reference under section 257 of the Income-tax Act, 1961, shall be forwarded to the Registrar of the Supreme Court.
2. On receipt of such reference, the reference shall be numbered as “Tax Reference Case No. ..........of 19 ”. No Court-fee shall be payable on such reference.
3. The reference shall be in the form of a statement of case containing numbered paragraphs setting out all relevant facts and proceedings, which have a bearing on the question or questions raised in chronological order with relevant dates. It shall contain an account of the conflict in the decisions of the High Courts which necessitate the Reference.
4. The Income Tax Appellate Tribunal shall, together with the reference through the President, submit the following documents:—
(i) A copy of the order of the Income Tax Officer;
(ii) Memorandum of appeal to the Appellate Assistant Commissioner;
(iii) A copy of the order of the Appellate Assistant Commissioner;
(iv) Memorandum of appeal to the Appellate Tribunal;
(v) A copy of the order of the Income Tax Appellate Tribunal under section 254 of the Income-tax Act, 1961;
(vi) A copy of the application for reference under section 256 of the Income-tax Act, 1961;
(vii) Such other documents, as in the opinion of the Income Tax Appellate Tribunal, may be required by the Supreme Court at the hearing of the reference.
5. The Income Tax Appellate Tribunal shall together with the reference prepare and transmit through its President at the expense of the party who moved the application under section 256 of the Income-tax Act, 1961, along with the order of Reference, three copies of the transcript in English of the documents mentioned in rule 4, one of which shall be duly authenticated.
6. When the Income Tax Appellate Tribunal refers a case to the Supreme Court and transmits the transcript record of the said reference, it shall give notice of that fact to the parties, calling upon them to take such steps in the Supreme Court as may be necessary for bringing the reference to a final hearing and certify to the Registrar of the Court, the date or dates of service of notice.
7. The parties to the reference under section 256 of the Income Tax Act, 1961, shall, within 30 days of the service of the notice referred to in rule 6, enter appearance in this Court and take further steps for bringing the reference to a final hearing.
8. Upon receipt from the Income Tax Appellate Tribunal of the English transcript of the record as aforesaid, the Registrar of the Court shall require the party, who moved the application under section 256 of the Income Tax Act, 1961, to deposit the charges for printing the said record within such time as he may prescribe, but not exceeding 30 days and with all convenient speed arrange for preparation thereof.
9. The rules contained in Order XV, shall apply mutatis mutandis to such References with regard to the preparation of record and authentication thereof.
10. Upon the receipt of the reference along with the documents mentioned in rule 4, the Registrar shall lay the matter before the Chief Justice of India who shall appoint a bench of not less than three judges to hear the reference.
11. Unless otherwise ordered by the Court, costs shall be taxed by the Taxing Officer under the provisions of Second Schedule to these rules as may be applicable.
12. A copy of the order made by the Court hearing the reference, shall be sent forthwith to the Income Tax Appellate Tribunal under the Seal of the Court and the signature of the Registrar.
13. Save as otherwise provided by the rules contained this Order, the provisions of other rules (including the rules relating to appearance of Advocates, but excluding rules 7, 35, 36 and 37 of Order XV) shall so far as may be, apply to references under section 257 of the Income-tax Act, 1961.]
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1. Ins. by G.S.R. 410, dated 26th February, 1968 (w.e.f. 26-2-1968).
1[PART VIB
ORDER XXXVIIIB
1. A reference under sub-section (2) of section 7 of the Monopolies and Restrictive Trade Practices Act, 1969 (54 of 1969) shall be forwarded to the Registrar of the Supreme Court.
2. (1) The reference shall contain inter alia all the relevant facts of the case, definite charges against the member and the statement of grounds on which each such charge is based.
(2) The Central Government shall together with the reference transmit seven copies thereof and eight copies of transcript in English of the documents relating to the grounds on which the removal of the member is sought, one of which shall be duly authenticated.
3. On receipt of such reference, it shall be registered in the Register maintained for the purpose and numbered as “Reference No. ..........of 19 ........under Monopolies and Restrictive Trade Practices Act, 1969 (54 of 1969)”. No Court-fee shall be payable on such reference.
4. (1) As soon as the reference is registered and numbered the Registrar shall give notice to the member concerned calling upon him within four weeks from the date of service of notice on him to put in a written statement of his defence together with seven copies thereof and to state whether he desires to be heard in person. A copy of the documents mentioned in rule 2 shall be enclosed with the notice.
(2) Notice stating the date fixed for filing written statement by the member shall be given to the Attorney-General for India and the Central Government.
5. (1) After the written statement is received from the member or if no such written statement is received within the time allowed, the Court shall fix a date for the inquiry.
(2) If the member does not appear on the date fixed for inquiry, the Court may proceed with the inquiry in the absence of the member.
(3) At the inquiry, the oral and documentary evidence as the case may be, in support of the grounds on which the removal of the member is sought, shall be exhibited. The member shall be entitled to cross-examine the witnesses.
(4) The evidence for the defence shall then be exhibited and the witnesses examined who shall be liable to cross examination by the prosecution.
(5) The provisions of Order XXXI shall, as far as may be, apply to the recording of evidence.
6. The member shall have a right to be defended by a legal practitioner of his choice.
7. Every witness who is summoned to give evidence or to produce a document or thing before the Court shall be paid travelling and daily allowances at such rates as the Court may fix.
8. (1) After the close of the inquiry, the Court shall make an order at once or on such other day as may be fixed by it.
(2) The Court may pass such orders as to costs as it may deem proper.
9. After the order of the Court has been announced, the Registrar shall send a copy thereof to the Central Government.
10. Save as otherwise provided by the rules contained in this order, the provisions of other Orders shall, so far as may be, apply to references under sub-section (2) of section 7 of the Monopolies and Restrictive Trade Practices Act, 1969 (54 of 1969).]
2[ORDER XXXVIIIC
REFERENCE UNDER SECTION 130A OF THE CUSTOMS ACT, 1962 (52 OF 1962), SECTION 35H OF THE CENTRAL EXCISES AND SALT ACT, 1944 (1 OF 1944), AND SECTION 82C OF THE
GOLD (CONTROL) ACT, 1968 (45 OF 1968)
1. Rules 1 to 13 of Order XXXVIIIA of the rules relating to ‘Reference under section 257 of the Income Tax Act, 1961, shall, with necessary modifications and adaptations, apply to reference under this Order’.]
3[Order XXXVIIID
Reference under sub-section (2) of Section 7 of the Sick Industrial Companies (special Provisions) Act, 1985 (1 of 1986)
Rule 1 to 10 of Order XXXVIIIB of the Rules relating to "Reference under section 7(2) of the Monopolies and Restrictive Trade Practices Act, 1969, shall, with necessary modifications and adaptations, apply to reference under this order”.]
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1. Ins. by G.S.R. 73, dated 7th January, 1971 (w.e.f. 16-1-1971).
2. Ins. by G.S.R. 322, dated 14th April, 1983 (w.e.f. 23-4-1983).
3. Ins. by G.S.R. 307, dated 1st August, 2000 (w.e.f. 12-8-2000).
PART VI
ORDER XXXVIII
1. On receipt by the Registrar of the order of the President referring to the Court a case for inquiry under article 317(1) of the Constitution, the Registrar shall give notice to the Chairman or Member of the Public Service Commission concerned and to the Attorney-General for India or the Advocate-General of the particular State to appear before the Court on a day specified in the notice to take the directions of the Court in the matter of the inquiry. A copy of the charges preferred against him shall be furnished to the respondent along with the notice.
2. The Court may summon such witnesses as it consider necessary.
3. After hearing of the reference under article 317(1) of the Constitution, the Registrar shall transmit to the President the Report of the Court.
4. No Court-fees or process fees shall be payable in connection with any reference dealt with by the Court under this Order.
PART VIII
ORDER XL
REVIEW
1. The court may review its judgment or order, but no application for review will be entertained in a civil proceeding except on the ground mentioned in Order XLVII, rule 1 of the Code, and in a criminal proceeding except on the ground of an error apparent on the face of the record.
1[2. An application for review shall be by a petition, and shall be filed within thirty days from the date of the judgment or order sought to be reviewed. It shall set out clearly the grounds for review.]
2[3. 3[Unless otherwise ordered by the court] an application for review shall be disposed of by circulation without any oral arguments, but the petitioner may supplement his petition by additional written arguments. The court may either dismiss the petition or direct notice to the opposite party. An application for review shall as far as practicable be circulated to the same Judge or Bench of Judges that delivered the judgment or order sought to be reviewed.]
4. Where on an application for review the court reverses or modifies its former decision in the case on the ground of mistake of law or fact, the court, may, if it thinks fit in the interests of justice to do so, direct the refund to the petitioner of the court-fee paid on the application in whole or in part, as it may think fit.
2[5. Where an application for review of any judgment and order has been made and disposed of, no further application for review shall be entertained in the same matter.]
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1. Amended by G.S.R. 387, dated 13th March, 1978 (w.e.f. 18-3-1978).
2. Ins. by G.S.R. 387, dated 13th March, 1978 (w.e.f. 18-3-1978).
3. Added by G.S.R. 1024, dated 9th August, 1978 (w.e.f. 19-8-1978).
PART IX
ORDER XLI
COSTS
1. Subject to the provisions of any statue or of these rules, the costs of and incidental to all proceedings, shall be in the discretion of the court. Unless the court otherwise orders an intervener shall not be entitled to costs.
ORDER XLII
TAXATION
1. The Registrar, or such other officer as the Chief Justice may appoint for the purpose, shall be the Taxing Officer of the court.
2. The Taxing Officer shall allow such costs, charges and expenses as appear to him to have been necessary or proper for the attainment of justice or for defending the rights of any party, and shall not allow any costs, charges and expenses which appear to him to have been incurred or increased unnecessarily or through negligence or mistake.
3. Where in the opinion of the Taxing Officer a fee ought to be allowed for any matter not provided for in these rules or a question arises in taxation on which he considers it necessary to obtain the directions of the Chamber Judge, the Taxing Officer may refer such matter to the Chamber Judge for orders.
4. Where the Taxing Officer is of opinion that any costs have been injuriously or unnecessarily occasioned by the negligence or improper conduct of any advocate on record, he shall not allow any charge for the same without the leave of the court.
5. The Taxing Officer shall without delay bring to the notice of the Chamber Judge any wrong charge which appears to him to have been wilfully made in any bill of costs.
6. Every bill of costs lodged for taxation between party and party shall contain a certificate from the advocate lodging the same that the fee paid to him by his client or agreed to be paid to him is not less than the amount of fee claimed by him in the bill.
7. Every bill of costs shall be properly dated throughout and shall show in a column or the purpose the money paid out of pocket.
8. Every bill of costs shall be certified by the signature of the advocate on record in the case.
9. The fee for taxation and registration of every bill of costs shall be paid in court-fee stamps when the bill is lodged for taxation.
10. Every bill of costs shall, wherever possible, be accompanied by vouchers, and every item of disbursement and the cause thereof shall be distinctly specified, and no payment out of pockets shall be allowed except on production of the necessary voucher, or in the case of advocate’s fee, without the signature of the advocate that the fee has been paid, or agreed to be paid.
11. Within eight weeks from the date of the judgment or order awarding costs, or within such further time not exceeding four weeks as the Taxing Officer may for good cause allow, the party to whom the costs have been awarded shall lodge in the Registry the bill of costs and vouchers. He shall also serve on the opposite party a copy of the bill of costs and file in the Registry proof of such service. The Taxing Officer shall fix date for the taxation of the bill and shall notify the parties of the date fixed.
12. A bill of costs presented out of time shall be returned to the party and the Taxing Officer shall not receive or tax the same except by order of the Chamber Judge.
13. Except as otherwise provided in these rules or by any law for the time being in force, the fees set out in the Second and Fourth Schedule to these rules may be allowed to advocates and officers of court respectively.
14. No retaining fee to an advocate shall be allowed on taxation as between party and party.
15. Where an advocate appears for different parties in the same suit, appeal or matter only one set of fees shall be allowed unless the court otherwise orders.
16. Where two or more appeals arising out of a single proceeding are heard together and costs are awarded in both or all of them, only one set of advocate’s fee shall be allowed for the hearing, unless the court or the Chamber Judge otherwise directs.
17. In defended appeals, suits and references under article 143 and 317 (1) of the Constitution, the first day’s hearing fee shall be allowed in full, for the first four and a half hours of the hearing or part thereof, in accordance with the Schedule subject to the provisions contained in rules 19 and 20.
1[18. No refresher shall be allowed unless the hearing has lasted for more than two days i.e. nine hours, and the Taxing Officer shall have discretion to reduce the refresher or to allow a refresher having regard to the duration of the hearing after the first nine hours:
Provided that when a matter is adjourned without any arguments on merits, no fee shall be charged for that day.]
19. Where the hearing of a part-heard case is held up on account of the court being occupied with any miscellaneous matters, the time taken in the hearing of such miscellaneous matters shall be taken into consideration by the Taxing Officer for the purposes of a refresher.
20. In cases involving less than twenty thousand rupees in value the Taxing Officer shall have discretion to reduce the fees, including the first day’s hearing fee and the ‘acting fee’ suitably according to the nature of the case.
21. Where an appeal is compromised prior to its being set down for hearing the fees to be allowed to advocate under item 1 of Part I of the Schedule II shall be half the amounts specified therein subject to the terms of the compromise.
22. The fees provided in items 3 to 8 of Part I of the Second Schedule shall be subject to reduction in the discretion of the Taxing Officer according to the nature of the case.
Rules relating to Advocates and Client Taxation
23. Where a dispute arises between the advocate on record and his client as to the fees and charges payable to the advocate, either party may apply to the Chamber Judge for an order to have the bill taxed and, on an order for taxation being made, the Taxing Officer may proceed to tax the bill. The application when made by the advocate, shall be accompanied by a copy of the bill sought to be taxed:
Provided that where the client has expressed his consent in writing to the taxation of costs between himself and his advocate on record in any proceeding, the advocate may present his bill of costs in that proceeding for taxation without an order of the Chamber Judge, and the Taxing Officer shall thereupon proceed to tax the bill.
24. In every case of taxation between advocate and his client, the client shall be duly summoned by the Taxing Officer to attend the taxation, and the summons shall be served on the client at least two weeks prior to the date fixed for taxation.
25. Subject to any agreement in writing to the contrary, the rules regulating the taxation of costs between party and party shall be applicable as far as may be to taxation between advocate and client.
26. No agreement between the advocate on record and his client to pay fees higher than those prescribed in the Second Schedule shall be recognised unless the same has been recorded in writing and is signed by the client and has been filed before the commencement of the hearing.
Explanation.—For the purpose of this rule “agreement in writing” shall include the correspondence between the advocate on record and his client from which such an intention may be gathered.
27. Where the Taxing Officer is of the opinion that any such agreement filed as aforesaid is unfair or unreasonable, he may place the matter before the Chamber Judge 2[for orders] and the Judge may make such order as he may think just, and the taxation shall proceed in accordance with such order:
Provided that where fees are payable by the client personally or out of a fund belonging entirely to him, any fees actually paid by the advocate on record to the senior or other advocate in excess of the fees prescribed in the Schedule shall not be called in question if the payment of such fee is duly authorised by the client.
28. Where the amount of a bill of costs between advocate and client is reduced by 1/6th or more, the advocate’s fee for attending taxation shall be disallowed.
29. An advocate whose bill against his client has been taxed may apply to the Chamber Judge for an order against his client or his legal representative for payment of the sum allowed on taxation or such sum thereof as may remain due to him. The order so made may be transmitted for execution to such Court as the Chamber Judge may direct.
Review of Taxation and Miscellaneous Provisions
30. Any party who is dissatisfied with the allowance or disallowance by the Taxing Officer of the whole or any part of the items in a bill of costs may apply to the Taxing Officer to review the taxation in respect thereof.
31. An application for review shall be made within three weeks and a copy of the application shall be served on the opposite party.
32. Objections in writing specifying concisely the items or parts of the bill objected to and the grounds for the objections shall be served with the notice on the other party, and a copy thereof shall at the same time be carried in before the Taxing Officer.
33. Objections which were not taken in at the time of the taxation shall not be taken in at the stage of review, unless allowed by the Taxing Officer.
34. Upon application to review his order, the Taxing Officer shall reconsider his taxation upon the objections carried in and may, where he thinks fit, receive further evidence in respect thereof, and shall state in a certificate the grounds of his decision thereon and any special facts or circumstances relating thereto.
35. Any party dissatisfied with the decision of the Taxing Officer on review may, not later than seven days from the date of the decision, or within such further time as the Taxing Officer or the Chamber Judge may allow, apply to the Chamber Judge for an order to review the decision of the Taxing Officer and the Chamber Judge may thereupon make such order as may seem just.
36. No evidence shall be received by the Chamber Judge upon the review of the Taxing Officer’s decision which was not before the Taxing Officer when he taxed the bill or reviewing his taxation unless the Chamber Judge otherwise directs.
37. The certificate of the Taxing Officer by whom any bill has been taxed shall unless it is set aside or altered by the Chamber Judge, be final as to the amount of the costs covered thereby.
38. The allowance to be made to witnesses per diem shall be such as the Taxing Officer may think reasonable having regard to the profession or status of the witness.
39. Witnesses residing more than five miles from the place where the Court sits shall be allowed travelling expenses according to the sums reasonably and actually paid by them and shall also be allowed such sums for subsistence money and carriage hire as the Taxing Officer, having regard to the daily allowances under rule 38, considers reasonable.
40. Every person summoned to give evidence shall have tendered to him with the summons a reasonable sum for his travelling expenses (if any) and for the first day’s attendance and shall, if obliged to attend for more than one day, be entitled, before giving his evidence, to claim from the party by whom he has been summoned the appropriate allowances and expenses for each additional day that he may be required to attend.
41. Witnesses who have not been paid such reasonable sums for their expenses as the court allows by its rules may apply to the Court at any time in person to enforce the payment of such sum as may be awarded to them.
42. For the purposes of these rules, a folio shall be deemed to consist of two hundred words; seven figures shall be counted as one word; and more than half a folio shall be reckoned as a folio.
43. Where the costs of any proceeding which terminated prior to the 26th of January, 1954, have to be taxed, such costs shall be taxed in accordance with the taxation rules which were in force prior to the said date.
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1. Subs. by G.S.R. 409, dated 3rd July, 1990 (w.e.f. 7-7-1990).
2. Subs. by G.S.R. 410, dated 26th February, 1968 (w.e.f. 26-2-1968).
PART X
MISCELLANEOUS
ORDER XLIII
1. The court may direct notice of any proceedings to be given to the Attorney-General for India or to the Advocate-General of any State, and the Attorney-General for India, or the Advocate-General to whom such notice is given may appear and take such part in the proceedings as he may be advised.
2. The Attorney-General for India or the Advocate-General of any State may apply to be heard in any proceedings before the Court, and the Court may, if in its opinion the justice of the case so requires, permit the Attorney-General for India or the Advocate-General so applying to appear and be heard, subject to such terms as to costs or otherwise as the Court may think fit.
ORDER XLIV
FORMS TO BE USED
1. Every writ, summons, orders, warrant or other mandatory process shall bear the attestation of the Chief Justice, and shall be signed by the Registrar with the day and the year of signing, and shall be sealed with the seal of the Court.
2. The forms set out in the Fifth Schedule to these rules, or forms substantially to the like effect with such variations as the circumstance of each case may require, shall be used in all cases where those forms are appropriate.
ORDER XLV
SERVICE OF DOCUMENTS
1. Except where otherwise provided by any Statute or prescribed by these rules, all notices, orders or other documents required to be given to or served on, any person shall be served by the Registry in the manner provided by the Code for the service of a summons.
1[2. Service of any notice, order or other document on the Advocate-on-record of any party shall be deemed sufficient service on the party whom he represents and may be effected by delivering it to the Advocate-on-record or by leaving it with a clerk in his employ at his office.]
3. Service of any notice, order or other document upon a person who resides at a place within the territory of India may ordinarily be effected by posting a copy of the document required to be served in a pre-paid envelope registered for acknowledgement addressed to the party or personally at the place where he ordinarily resides and through the District Judge concerned:
Provided that the Registrar may direct in a particular case or class of cases, that the service shall be effected in the manner provided by the Code for the service of summons.
4. A document served by post shall be deemed to be served at the time at which it would be delivered in the ordinary course of post.
5. Except where the notice or process has been served through Registry, the party required to effect the service shall file an affidavit of service, along with such proof thereof as may be available stating the manner in which the service has been effected.
6. Where the notice, order or other document has been served through another Court, the service may be proved by the deposition or affidavit of the serving officer made before the Court through which the service was effected.
7. Service effected after Court hours shall for the purpose of computing any period of time subsequent to that service be deemed to have been effected on the following day.
2[8. If service of any notice, order or document has not been completed within six months from the date of issue of notice, the matter shall be reported to the Court for direction after notice to the Advocates-on-record for the parties. The Court may thereupon dismiss the matter for non-prosecution or give such direction in the matter as it deems fit.]
ORDER XLVI
COMMISSIONS
1. Order XXVI in the First Schedule to the Code with respect to commissions shall apply except rules 13, 14, 19, 20, 21 and 22 thereof.
2. An application for the issue of a commission may be made by summons in Chambers after notice to all parties who have appeared or ex parte where there has been no appearance.
3. The Commissioner shall, if the advocate or other person examining a witness so desires, record a question disallowed by the Commissioner and the answer thereto, but the same shall not be admitted as evidence until the Court before which the deposition is put in evidence shall so direct.
4. The Court may, when the commission is not one for examination on interrogatories, order that the Commissioner shall have all the powers of a Court under Chapter X of the Indian Evidence Act, 1872 (1 of 1872), to decide question as to the admissibility of evidence and to disallow any question put to a witness.
5. Unless otherwise ordered, the party at whose instance the commission is ordered to issue, shall lodge in the Court, copies of the pleadings in the case within twenty-four hours of the making of the order and those copies shall be annexed to the commission when issued.
6. Any party aggrieved by the decision of the Commissioner refusing to admit evidence or allow a question to be put may apply to the Court to set aside the decision and for direction to the Commissioner to admit the evidence or to allow the question but no such application shall be entertained if made later than seven days after the examination of the witness has been closed.
7. After the deposition of any witness has been taken down and before it is signed by him, it shall be read over and where necessary, translated to the witness, and shall be signed by him and left with the Commissioner who shall subscribe his name and the date of the examination.
8. Commissions shall be made returnable within such time as the Court may direct.
ORDER XLVII
POWER TO DISPENSE AND INHERENT POWERS
1. The Court may, for sufficient cause shown, excuse the parties from compliance with any of the requirements of these rules, and may give such direction in matters of practice and procedure as it may consider just and expedient.
2. An application to be excused from compliance with the requirements of any of the rules shall be addressed, in the first instance, to the Registrar, who shall take instructions of the Judge in Chambers thereon and communicate the same to the parties, but, if, in the opinion of the Registrar, it is desirable that the application should be dealt with in open Court, he may direct the applicant to serve the other party with a notice of motion returnable before the Court.
3. The Court may enlarge or abridge any time appointed by these rules or fixed by any order enlarging time, for doing any act or taking any proceeding, upon such terms (if any) as the justice of the case may require, and any enlargement may be ordered, although the application therefor is not made until after the expiration of the time appointed or allowed.
4. The Court may at any time, either of its own motion or on the application of any party, make such orders as may be necessary or reasonable in respect of any of the matters mentioned in rule 8 of Order XXIV of these rules, may issue summonses to persons whose attendance is required either to give evidence or to produce documents, or order any fact to be proved by affidavit.
5. Where there are two or more appeals arising out of the same matter, the Court may at any time either on its own motion or on the application of any party, order that the appeals be consolidated 3[***].
Unless otherwise ordered by this Court the liability of the parties to pay separate Court-fees shall not be affected by any order for consolidation.
6. Nothing in these rules shall be deemed to limit or otherwise affect the inherent powers of the Court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the Court.
4[7. At any time before or as soon after the commencement of arguments at the final hearing of a case as may be feasible, the Court will ascertain from the counsel of each party to be heard the time which the counsel’s arguments on the matter are likely to take. The Court may then fix the time for the arguments of each party or each counsel. The counsel may be permitted to supplement the oral arguments by written submission, but will not be allowed to exceed the time so fixed unless the Court itself considers it necessary, or desires that he should do so on any matter requiring further elucidation by oral arguments.]
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1. Subs. by G.S.R. 410, dated 26th February, 1968 (w.e.f. 26-2-1968).
2. Ins. by G.S.R. 387, dated 13th March, 1978, (w.e.f. 18-3-1978).
3. Omitted by G.S.R. 466, dated 22nd June, 1983 (w.e.f. 2-7-1983).
4. Ins. by G.S.R. 387, dated 13th March, 1978 (w.e.f. 18-3-1978).
1. The record in appeals to the Court shall be printed in the form known as demy quarto on both sides of the paper with single spacing.
2. The size of the paper used shall be such that the sheet, when folded and trimmed, will be about 11 inches in height and 8½ inches in width 1[or 29.7 cm. in height and 21 cm. in width].
3. The type to be used in the text shall be pica type but “Long Primer” shall be used in printing accounts, tabular matter and notes. Every tenth line shall be numbered in the margin.
4. Records shall be arranged in two parts in the same volume, where practicable, viz.—
Part I— The pleadings and proceedings, the transcript of the evidence of the witnesses, the judgments, decrees, etc., of the Courts below, down to the orders admitting the appeal.
Part II— The exhibits and documents.
5. The Index to Part I shall be in chronological order, and shall be placed at the beginning of the volume.
The Index to Part II shall follow the order of the exhibit mark, and shall be placed immediately after the Index to Part I.
6. Part I shall be arranged strictly in chronological order, i.e., in the same order as the index.
Part II shall be arranged in the most convenient way for the use of the Court, as the circumstances of the case require. The documents shall be printed as far as suitable in chronological order, mixing plaintiff’s and defendant’s documents together when necessary. Each document shall show its exhibit mark, and whether it is a plaintiff’s or defendant’s document (unless this is clear from the exhibit mark) and in all cases documents relating to the same matter such as—
(a) a series of correspondence, or
(b) proceedings in a suit other than the one under appeal, shall be kept together. The order in the record of the documents in Part II will probably be different from the order of the Index, and the proper page number of each document shall be inserted in the printed Index.
The parties will be responsible for arranging the record in proper order for the Court, and in difficult cases counsel may be asked to settle it.
7. The documents in Part I shall be numbered consecutively.
The documents in Part II shall not be numbered, apart from the exhibit mark.
8. Each document shall have a heading which shall consist of the number of exhibit mark and the description of the document in the Index, without the date.
9. Each document shall have a heading which shall be repeated at the top of each page over which the document extends viz.—
PART I
(a) Where the case has been before more than one Court the short name of the court shall first appear. Where the case has been before only one court, the name of the court need not appear.
(b) The heading of the document shall then appear consisting of the number and the description of the documents in the Index, with the date, except in the case of oral evidence.
(c) In the case of oral evidence, ‘plaintiff’s evidence’ or ‘Defendant’s evidence’ shall appear next to the name of the court and then the number in the Index and the witness’s name, with ‘examination’, ‘cross-examination’ or ‘re-examination’, as the case may be.
PART II
The word ‘Exhibit’ shall first appear and next to it the exhibit mark and the description of the document in the Index with the date.
Sufficient space shall be left after the heading to distinguish it from the rest of the matter printed on the page.
10. The parties shall agree to the omission of formal and irrelevant documents, but the description of the document may appear (both in the Index and the record), if desired, with the words ‘not printed’ against it.
A long series of documents, such as accounts, rent rolls, inventories, etc., shall not be printed in full, unless counsel advises, but the parties shall agree to short extracts being printed as specimens.
11. In case where maps are of an inconvenient size or unsuitable in character, the appellant shall, in agreement with the respondent, prepare maps, drawn properly, to scale and of reasonable size, showing as far as possible, the claims of the respective parties, in different colours.
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1. Ins. by G.S.R. 410, dated 26th February, 1968 (w.e.f. 26-2-1968).