The Salem Advocate Bar Association case stands as a judicial milestone in procedural law,
focusing on the constitutional validity and practical implementation of the Amendments to
the Code of Civil Procedure (CPC) made in 1999 and 2002. These amendments were
designed with the objective of curbing procedural delays, promoting judicial efficiency, and
mainstreaming alternative dispute resolution (ADR) mechanisms into the Indian civil justice
system. The amendments were challenged primarily on the grounds of arbitrariness,
excessive rigidity, and violation of procedural fairness guaranteed under Article 14 of the
Constitution.
The Supreme Court, while upholding the constitutional validity of the amendments, adopted
a contextual and purposive approach. The Court emphasized that procedural laws are tools
to advance justice, not technical barriers to defeat it. For instance, Section 89 CPC, which
mandates courts to explore the possibility of settlement through ADR, was interpreted to
mean that courts must act when there is scope for settlement, but the choice of ADR
mechanism (arbitration, mediation, conciliation, or Lok Adalat) remains discretionary. This
interpretation preserved judicial flexibility while ensuring that ADR processes become an
integral part of civil litigation. Notably, the Court clarified that the judge who refers the
matter to ADR is not disqualified from hearing the matter if ADR fails, thereby ensuring
judicial continuity and avoiding unnecessary delays.
A key point of contention was Order XVIII Rule 4, which required the examination-in-chief
of witnesses to be conducted via affidavit. Critics feared this would dilute the integrity of oral
testimony and deny the court the opportunity to assess the demeanour of witnesses. The
Court upheld the amendment, reasoning that while the affidavit mode reduces court time, the
right to cross-examination and re-examination remains sacrosanct. Moreover, the court
retains discretion to record the evidence itself in complex matters such as cases involving
fraud, forgery, or disputed wills. Importantly, the Court clarified that the power to declare a
witness hostile is retained exclusively by the court and not delegated to commissioners.
In relation to Order VIII Rule 1, which sets a 90-day limit for filing written statements, the
Court ruled that this provision is directory, not mandatory. While the amendment aimed to
curb delays caused by excessive adjournments, the Court underscored that justice should not
be sacrificed at the altar of procedural punctuality. Courts were advised to extend deadlines
only in “exceptionally hard cases” to ensure that procedural law acts as a facilitator of justice,
not a stumbling block.
The Court also examined the three-adjournment limit under Order XVII Rule 1. It held
that the restriction was introduced to prevent unnecessary delays and misuse of the judicial
process, but recognized that exceptions must exist where circumstances are beyond a party’s
control, such as medical emergencies, natural disasters, or accidents. In such cases, the Court
retained its discretion to allow more than three adjournments, provided costs were imposed
and the reasons duly recorded.
Another area of concern was the deletion of Order XVIII Rule 17A, which had permitted
parties to lead additional evidence. The Court held that its removal did not affect the inherent
power of the court to allow further evidence if justified. Similarly, the deletion of Order
XVIII Rule 2(4) did not strip courts of their power to summon any witness at any stage
under inherent powers (Section 151 CPC).
The judgment also addressed Section 80 CPC, which mandates a two-month notice before
instituting a suit against the government. The Court was critical of the government’s frequent
non-compliance with the spirit of the provision, noting that vague or non-existent replies
defeated the purpose of dispute reduction. To remedy this, the Court directed that each
government must appoint a designated officer responsible for issuing reasoned replies to such
notices, failing which courts could impose heavy costs and consider departmental
accountability.
Perhaps one of the most impactful parts of the judgment lies in the Court’s observations on
the award of costs under Sections 35, 35A, and 35B CPC. The Court condemned the
prevalent judicial practice of awarding nominal or no costs, which it viewed as encouraging
frivolous litigation and wasting judicial time. Instead, it mandated that costs must reflect
actual and reasonable litigation expenses, including lawyer's fees, time, travel, and related
expenditures. High Courts were directed to frame rules and guidelines for subordinate courts
to ensure the robust implementation of cost provisions.
The limitation of 30 days for time extensions under Section 148 CPC was also read down.
The Court held that Section 151 CPC, which preserves inherent powers, allows courts to
extend time beyond 30 days in deserving cases. The principle of justice would be violated if
strict adherence to procedural timelines resulted in the denial of hearing or adjudication.
Finally, the Court addressed concerns about the curtailment of revisional powers of High
Courts under Section 115 CPC. It reaffirmed that constitutional powers under Article 227 of
the Constitution remain unaffected and provide an alternate supervisory jurisdiction for the
High Court. This preserved a vital check against judicial errors and procedural injustice, even
if statutory revisions were restricted.
In conclusion, the Salem Advocate Bar Association judgment is a landmark in procedural
reform jurisprudence. It strikes a thoughtful balance between judicial efficiency and
procedural fairness, ensuring that reform does not become rigidity. The Court's interpretive
strategy of reading down potentially harsh provisions and upholding inherent judicial
discretion reflects a commitment to substantive justice over technical formalism. This case
continues to serve as a guiding light in matters of civil procedure, court management, ADR
implementation, and procedural due process.
Page-by-Page Analysis in Paragraph Form
The Salem Advocate Bar Association judgment begins by reaffirming the constitutional
validity of the amendments made to the Code of Civil Procedure (CPC) through the
Amendment Acts of 1999 and 2002. In the earlier 2003 judgment, the Supreme Court upheld
the validity but noted that effective implementation required practical modalities. To this end,
a Committee chaired by Justice M. Jagannadha Rao was formed. The Committee’s work was
submitted in three parts: one addressing grievances on the CPC amendments, another dealing
with ADR (Alternate Dispute Resolution) rules under Section 89 CPC, and the third
providing a conceptual model for case management.
In the initial pages, the Court discusses Report 1. It addresses specific amendments such as
Section 26(2) and Order VI Rule 15(4), which require the filing of affidavits with pleadings.
These provisions are upheld as valid, intended to ensure greater accountability and
responsibility in pleadings, even though they do not by themselves constitute evidence at
trial. The affidavit requirement strengthens procedural integrity without affecting substantive
rights.
Next, the judgment delves into Order XVIII Rule 4, which mandates examination-in-chief
to be submitted via affidavit. The Court clarifies that this amendment is intended to save
judicial time, and does not infringe upon the right to cross-examination or re-examination,
which may still be conducted before a Commissioner. However, in complex cases involving
fraud or forgery, the trial court may record the evidence itself. The Court also confirms that
the power to declare a witness hostile remains with the trial court and cannot be exercised
by the Commissioner under Section 154 of the Evidence Act.
The deletion of Order XVIII Rule 17A, concerning the production of additional evidence, is
explained next. The Court affirms that the deletion does not remove the inherent power of the
Court to permit additional evidence where justified. The Court also takes a flexible approach
to Order VIII Rule 1, which prescribes a 90-day time limit for filing a written statement. It
holds the provision to be directory, not mandatory, and that courts may extend the period in
exceptional cases, provided this discretion is used sparingly and judiciously.
Section 39(4) CPC, which prevents execution of a decree outside a court's jurisdiction, is
interpreted to not override other provisions like Order XXI Rule 3 or 48, which still allow
certain executions across jurisdictions. Section 64(2) introduces a safeguard for bona fide
pre-attachment contracts by requiring them to be registered to protect against fraudulent
claims.
The Court then examines Order VI Rule 17, which allows amendment of pleadings. It
upholds the validity of the new proviso restricting amendments post-trial commencement
unless due diligence is shown. Regarding Order V Rules 9(3) and 9A, service of summons
through courier is allowed, but courts are instructed to issue safeguards against false reports.
One of the more significant clarifications is on Order XVII Rule 1, which limits
adjournments to three. The Court holds that this limitation should not apply where delay is
due to unavoidable circumstances (e.g., natural disasters or medical emergencies). Discretion
is preserved, and realistic costs—including punitive costs—may be imposed for unnecessary
delays.
On Order XVIII Rule 2(4) (now deleted), the Court holds that the deletion does not take
away the court’s inherent power to summon witnesses at any stage. In Order VII Rule 14, a
drafting error ("plaintiff’s witnesses" instead of "defendant’s") is acknowledged, and the
Court suggests a corrective interpretation until legislative correction occurs.
Turning to Section 35, 35A, 35B, and 95, the Court emphasizes realistic and compensatory
costs. It criticizes the prevalent practice of awarding nominal or no costs, and urges High
Courts to issue rules mandating actual cost recovery including court fees, lawyer’s fees, travel
expenses, etc., for the successful party.
The judgment then turns to Section 80, which mandates a 2-month notice before suing the
government. The Court highlights the routine government practice of ignoring such notices or
sending vague replies. Directions are issued for all governments to appoint responsible
officers for issuing timely and reasoned replies. If not complied with, the courts are instructed
to impose heavy costs and recommend action against the concerned officers.
The Court clarifies that the omission of clause (b) from Section 115 CPC (revision powers
of High Court) does not affect the constitutional powers under Article 227, as reaffirmed in
Surya Dev Rai v. Ram Chander Rai. Regarding Section 148, which limits time extension to
30 days, the Court holds that this limit cannot curtail the Court’s inherent powers under
Section 151 CPC. Thus, time may be extended beyond 30 days in exceptional cases.
Lastly, the provisions of Order XI Rule 15 and Order IX Rule 5 (relating to document
inspection and dismissal of suit) are interpreted as directory, not mandatory, allowing the
Court flexibility to ensure justice.
🟥 FLASHCARD 1
Q: What was the primary issue in Salem Advocate Bar Association v. Union of India (2005)?
A: Validity and operationalization of the 1999 and 2002 amendments to the Code of Civil
Procedure (CPC), especially Section 89 (ADR).
🟥 FLASHCARD 2
Q: What were the three reports submitted to the Supreme Court in this case?
A:
1. Report on CPC amendments and grievances
2. Report on ADR and mediation (Section 89)
3. Report on case management and model rules
🟥 FLASHCARD 3
Q: Is the affidavit required under Section 26(2) and Order VI Rule 15(4) evidence?
A: No. It's to ensure truthfulness of pleadings but is not treated as evidence in trial.
🟥 FLASHCARD 4
Q: What did the Court say about Order XVIII Rule 4 (examination-in-chief by affidavit)?
A: It is valid. Cross-examination and re-examination can still be done in court or before a
Commissioner.
🟥 FLASHCARD 5
Q: Can a Commissioner declare a witness hostile?
A: No. Only the Court has that power under Section 154 of the Evidence Act.
🟥 FLASHCARD 6
Q: Is the 90-day limit in Order VIII Rule 1 for filing written statements mandatory?
A: No. It is directory. The Court can extend the period in exceptional cases.
🟥 FLASHCARD 7
Q: Can adjournments exceed the 3-time limit under Order XVII Rule 1?
A: Yes. In circumstances beyond the control of parties (e.g., illness, disaster), further
adjournments are allowed.
🟥 FLASHCARD 8
Q: What interpretation did the Court give to Order VII Rule 14(4)?
A: The phrase "plaintiff’s witnesses" is a drafting error and should be read as "defendant’s
witnesses."
🟥 FLASHCARD 9
Q: What directions were issued under Section 80 CPC (government notice)?
A: Governments must appoint officers to reply to notices within 2 months; non-compliance
may result in heavy costs.
🟥 FLASHCARD 10
Q: Does the omission of Section 115(1)(b) affect High Court’s revisional powers?
A: No. Article 227 jurisdiction remains unaffected.
🟥 FLASHCARD 11
Q: Can courts extend time beyond 30 days under Section 148 CPC?
A: Yes. Courts have inherent powers under Section 151 CPC to extend time if justice
demands.
🟥 FLASHCARD 12
Q: What was said about awarding costs under Sections 35, 35A, 35B?
A: Costs should be realistic and compensatory, not nominal.
IRAC ANALYSIS
Case: Salem Advocate Bar Association, Tamil Nadu v. Union of India
Citation: AIR 2005 SC 3353 | (2005) 6 SCC 344
Bench: Y.K. Sabharwal, D.M. Dharmadhikari, Tarun Chatterjee, JJ.
Date of Judgment: 2 August 2005
I — ISSUES
1. Whether the amendments to the CPC via Acts of 1999 and 2002 are constitutional
and enforceable without violating Article 14 (Right to Equality) or procedural
fairness?
2. Whether Section 89 CPC (Alternate Dispute Resolution) is mandatory, and how
should the apparent contradiction between ‘may’ and ‘shall’ be interpreted?
3. Whether procedural amendments like Order XVIII Rule 4 (affidavit-based chief
examination) and Order VIII Rule 1 (strict 90-day limit for written statement) are
compatible with the principles of natural justice and fair trial?
4. Whether the restriction on adjournments under Order XVII Rule 1 is arbitrary and
leads to injustice in exceptional circumstances?
5. Whether the deletion of certain procedural rules like Order XVIII Rule 17A
(additional evidence) and Order XVIII Rule 2(4) (court’s power to summon
witness) curtails judicial discretion unfairly?
6. Whether the amendment to Section 148 CPC, limiting court's power to extend time
beyond 30 days, undermines the court’s inherent power under Section 151?
7. Whether costs provisions under Sections 35, 35A, and 35B are being implemented
in a way that deters frivolous litigation, or whether courts continue to undermine
the deterrent purpose?
8. Whether the omission of clause (b) in Section 115 CPC affects the revisional
jurisdiction of High Courts under Article 227 of the Constitution?
9. Whether the requirement under Section 80 CPC (notice to Government) is serving
its purpose or being misused by authorities through non-reply or vague responses?
R — RULES (Legal Principles & Doctrines)
Article 14 of the Constitution: Prohibits arbitrariness and mandates equal protection
under the law.
Code of Civil Procedure, 1908: Sets procedural standards, subject to periodic
legislative amendments to improve efficiency.
Section 89 CPC: Empowers courts to refer matters to ADR when a settlement seems
possible.
Section 151 CPC: Grants courts inherent power to pass any order necessary for
justice or to prevent abuse of process.
Doctrine of Harmonious Construction: Statutory provisions must be read together
to give effect to legislative intent.
Natural Justice (Audi Alteram Partem): No party should suffer without being
heard.
Precedent: Surya Dev Rai v. Ram Chander Rai (2003) upheld constitutional powers
under Article 227 even if statutory revisional powers under Section 115 CPC are
curtailed.
A — APPLICATION (Court’s Reasoning)
1. On Constitutionality of CPC Amendments
The Court upheld the amendments, emphasizing that procedure is meant to serve justice, not
thwart it. The amendments were aimed at preventing delay, curbing abuse of court processes,
and ensuring speedy redressal—a legitimate legislative objective. By interpreting rigid
timelines and limits as directory rather than mandatory, the Court ensured that procedural
reform does not undermine fairness.
2. Section 89 and ADR: Mandatory or Directory?
Though Section 89 uses both “shall” and “may,” the Court harmonized this by holding that
referral to ADR is mandatory when a possibility of settlement exists, but the choice of ADR
mode (arbitration, mediation, etc.) is discretionary. Importantly, the referring judge is not
disqualified from hearing the suit if the ADR fails—preserving judicial continuity.
3. Affidavit in Chief and Commissioner Recording Evidence
Order XVIII Rule 4 mandates affidavits for chief examination. The Court upheld this to
reduce trial time, clarifying that cross-examination rights remain intact and courts can, in
complex cases, retain evidence recording. However, the power to declare a witness hostile is
not available to Commissioners—safeguarding adversarial fairness.
4. Time Limits and Flexibility (Order VIII Rule 1 and Section 148)
The 90-day limit for filing written statements was held to be directory, not mandatory. The
Court stressed that procedural rules must aid justice, not obstruct it. Similarly, though Section
148 capped time extension to 30 days, the Court read it down, invoking Section 151 to allow
further extensions where justice so requires.
5. Adjournments and Article 14
Order XVII Rule 1, which limits adjournments to three, was interpreted contextually. The
Court noted that mechanical enforcement would violate Article 14 in hard cases (e.g., medical
emergencies, natural disasters). Hence, further adjournments were allowed, provided courts
record reasons and impose realistic costs, including punitive costs if needed.
6. Deletion of Order XVIII Rule 17A and 2(4)
The deletion of provisions allowing additional evidence or court's power to call witnesses
was not found to restrict judicial discretion. Courts continue to possess such powers under
inherent jurisdiction, especially to prevent injustice. Hence, procedural deletions were treated
as clarification rather than limitation.
7. Costs Must Reflect Reality
The Court was critical of the prevailing practice where litigants are told to “bear their own
costs.” It emphasized that costs must be realistic, proportionate, and reflective of actual
expenses, including travel, time lost, and legal fees. Courts were directed to enforce Sections
35–35B CPC in letter and spirit.
8. Revisional Powers and Article 227
Even though the 2002 amendment omitted clause (b) of Section 115, the Court clarified that
this does not affect the High Court’s constitutional supervisory jurisdiction under Article 227.
Thus, judicial oversight remains robust.
9. Section 80 CPC – Duty to Respond to Notice
The Court lamented the routine governmental practice of ignoring Section 80 notices or
giving vague replies. It directed governments to designate responsible officers to reply
meaningfully. Courts were encouraged to impose heavy costs for evasive or non-responsive
conduct, ensuring accountability in public litigation.
C — CONCLUSION
The Supreme Court, in Salem Advocate Bar Association, adopted a progressive, justice-
oriented interpretation of procedural laws. While upholding the validity of CPC
amendments, it provided liberal and contextual interpretations to prevent procedural
rigidity from denying substantive justice. Key principles such as fair trial, natural justice,
judicial discretion, and access to ADR mechanisms were emphasized. The judgment serves
as a cornerstone in modern procedural jurisprudence, reinforcing that procedural law is a
servant of justice—not its master.
