SALEM ADVOCATE BAR ASSOCIATION, TAMIL NADUversusUNION OF INDIA

      SALEM ADVOCATE BAR ASSOCIATION, TAMIL NADU                              A
                                    v.
                           UNION OF INDIA

                          OCTOBER 25, 2002

 [B.N. KIRPAL, CJ., Y.K. SABHARWAL AND ARIJIT PASSAYAT, JJ.]                  B


      Code of Civil Procedure, 1908-Sections 2 7, 89, I OOA, Order 7, Rule
11 (e) and (f), Order 18 Rule 4(1), 4(2), Order 18, Rule 17A, Order 41 Rule
9 (as amended by Amendment Act 46 of 1999 and Amendment Act 22 of C
2002)-Writ Petition in Supreme Court challenging the amendments-During
hearing Constitutional validity of amendments not challenged and clarification
sought-Appropriateness of the amended provisions clarified-Direction to
constitute a Committee so as to ensure the amendments become ejfective-
Committee to consider the difficulties and make necessary suggestions in its
report and file the report in Supreme Court.                                   D
      The Present writ petitions were filed by petitioner Bar Association
challenging the amendment to Code of Civil Procedure, 1908 by way of
Amendment Act 46of1999 and Amendment Act 22 of 2002. Petitioner's
prayer to withdraw the petition was declined as the petition was filed in
public interest and amicus curiae was appointed to assist the Court.          E
     The counsel did not challenge the Constitutional validity of the
amendments, but submitted that there might be some practical difficulties
in implementing some of the amendments, where clarification by the Court
was required.
                                                                              F
      Issuing certain clarifications and directions, this Court

      HELD: 1. If Section 27 CPC is read as a whole the words "on such
day not beyond thirty day from the day of institution of the suit" would
not be susceptible to the meaning that summons must be served within
thirty days of the date of institution of the suit. The words added by        G
amendment, it appears, fix outer time frame, by providing that steps must
be taken within thirty days from the date of the institution of the suit to
issue summons. The object is to avoid long delay in issue of summons for
want of steps by the plaintiff. 1358-E-Gl

                                   353                                        H
                                                                                      ..

354                           SUPREME COURT REPORTS (2002] SUPP. 3 S.C.R.

A           2.1. The reason why section 89 has been inserted is to try and see
      that all the cases which are filed in Court need not necessarily be decided
      by the court itself. Keeping in mind the laws delays and the limited number
      of Judges available, it has now become imperative that resort should be
      had to Alternative Dispute Resolution Mechanism with a view to bring to
B     an end litigation between the parties at an early date. The Alternative
      Dispute Resolution (ADR) Mechanism as contemplated by Section 89 is
      arbitration or conciliation or judicial settlement including settlement
      through Lo~ Adalat or mediation. Sub-section (2) of Section 89 refers to
      different Acts in relation to arbitration, conciliation or settlement through
      Lok Adalat, but with regard to mediation Section 89(2)(d) provides that
C     the parties shall follow the procedure as may be prescribed. Section
      89(2)(d), th~refore, contemplates appropriate rules being framed with
      regard to mediation. 1360-A-CI

         2.2. There is a requirement that the parties to the suit must indicate
   the form of ADR which they would like to resort to during the pendency
D of trial of the suit. If the parties agree to arbitration, then the provisions
   of the Arbitration and conciliation Act, 1996 will apply and that case will
   go outside the stream of.the court but resorting to conciliation or judicial
   settlement or mediation with a view to settle the dispute would not ipso
  facto take the case o'utside the judicial system. All that this means is that
E effort has to be made to bring about an amicable settlement between the
   parties but if conciliation or mediation or judicial settlement is not possible,
   despite efforts being made, the case will ultimately go to trial. 1360-D-FI

            2.3. Section 89 is a new provision and even though arbitration or
      conciliation has been in place as a mode for settling the disputes, this has
F     not really reduced the burden on the courts. Modalities have to. be
      formulated for the manner in which Section 89 and, for that matter, t.he
      other provisions which have been introduced by way of amendments, may
      have to be iii operation. For this purpose, it will be appropriate that a
      Committee is constituted so as to ensure that the amendments made
      become effective anti result in quicker dispensation of justice. 1360-G-Hl
G
        2.4. With the constitution of such a Committee, any creases which
  require to be ironed out can be identified and apprehensions which may
  exist in the minds of the litigating public or the lawy~rs clarified. This
  Committee may consider devising a model case management formula as
H well as rules and regulations which should be followed while taking
             SALEMADVOCATEBARASSOCIATIONv. U.O.I.                     355
recourse to the ADR referred to in Section 89. The model rules, with or       A
without modification, which are formulated may be adopted by the High
Courts concerned for giving effect to Section 89(2)(d). [361-A-CI

      3. Section lOOA deals with two types of cases which are decided by
a Single Judge. One is where the Single Judge hears an appeal from an
appellate decree or order. The question of there being any further appeal B
in such a case cannot and should not be contemplated. Where, however,
an appeal is filed before the High Court against the decree of a trial court,
a question may arise whether any further appeal should be permitted or
not. Even at present depending upon the value of the case, the appeal from
the original decree is either heard by a Single Judge or by a Division Bench C
of the High Court. Where the regular first appeal so filed is heard by a
division Bench, the question of there being an intra-court appeal does not
arise. It is only in cases where the value is not substantial that the rules of
the High Court may provide for the regular first appeal to be heard by a
Single Judge. In such a case to give a further right of appeal where the
amount involved is nominal to a Division Bench will really be increasing D
the workload unnecessarily. No prejudice would be caused to the litigants.
by not providing for intra-court appeal, even where th•! value involved is
large. In such a case, the High Court by Rules, can provide that the
Division Bench will hear the regular first appeal. No fault can, thus, be
found with the amended Section 100 A. [361-G, H; 362-A, BJ
                                                                              E
      4. Clauses (e) and (I) to Order 7 Rule 11 being procedural would
not require the automatic rejection of the plaint at the first instance. If
there is any defect as contemplated by Rule l l(e) or non-compliance as
referred to in ,Rule 11(1), the court should ordinarily give an opportunity
for rectifying the defects and in the event of the same not being done the    p
Court will have the liberty or the right to reject the plaint. (362-C, DJ

      5. Reading the provisions of Order 16 and Order 18 together, Order
18 Rule 4(1) will necessarily apply to a case contemplated by Order 16
Rule IA, i.e. where any party to a suit, without applying for summoning
under Rule 1 brings any witness to give evidence or prodi::e any document.    G
In such a case, examination-in-Chief is not to be recorded in Court but
shall be in the form of an affidavit. In cases where the summons have to
be issued under Order 16, Rule 1, the stringent provision of Order 18 Rule
4 may not apply. When summons are issued, the Court can give an option
to the witness summoned either to file an affidavit by way of examination-    H
    356                    SUPREME COURT REPORTS [2002) SUPP. 3 S.C.R.

A in-chief or to be present in Court for his examination. In appropriate cases,
    the Court can direct the summoned witness to file an affidavit by way of
    examination-in-chief. In other words, with regard to the summoned
    witnesses the principle incorporated in Order 18 Rule 4 can be waived.
    Whether a witness shall be directed to file affidavit or be required to be
B   present in Court for recording of his evidence is a matter to be decided
    by the Court in its discretion having regard to the facts of each case.
                                                         (362-G, H; 363-A, BJ

          6. It is not the correct interpretation of Order 18 Rule 4(2) that once
    the Court decides that the evidence will be recorded by the Commissioner,
C   then evidence of other witnesses cannot be recorded in Court. Under the
    said sub-rule the Court has the power. to direct either all the evidence being
    recorded in Court or all the evidence being recorded by the Commissioner
    or the evid-enc.~ ;,.,ing recorded partly by the Commissioner and partly
    by the Court. The use of the word 'mechanically' in Order 18 Rule 4(3)
    indicates that the evidence can be recorded even with the help of electronic
D   media, audio or audio-visual, and in fact whenever the evidence is recorded
    by the. Commissioner it will be advisable that there should be
    simultaneously at least an audio recording of the statement of the witnesses
    so as to obviate any controversy at a later stage. (363-D-F[

           7. In the Code of Civil Procedure, 1908, a provision similar to Rule
E   17 A did not exist. This provision was inserted in 1976. The effect of the
    deletion of this provision in 2002 is merely to restore status quo ante, that
    is to say, the position which existed prior to the insertion of Rule 17 A in
    1976. Th_e remedy, if any, that was available to a litigant with regard to
    adducing additional evidence prior to 1976 would be available now and
p   no more. It is quite evident that Rule l 7A has been deleted with a view
    that unnecessarily applications are not filed primarily with a view to
    prolong the trial. (363-H; 364-A, BJ

           8. The apprehension that Rule 9 to Order 41 requires the appeal to
    be filed in the Court from whose decree the appeal is sought to be filed, is
G   not correct. The appeal is to be filed under Order 41 Rule 1 in the Court
    in which it is maintainable. All that Order 41 Rule 9 requires is that a
    copy of memorandum of appeal which has been filed in the appellate Court
    should also be presented before th·e Court against whose decree the appeal '
    has been filed and endorsement thereof shall be made by the decreeing
H   Court in a book called the Register of Appeals. Perhaps, the intention of
         SALEM ADVOCATE BAR ASSOCIATION v. U.0.1. [KIRPAL, CJ.]         357
the Legislature was that the Court against whose decree an appeal has          A
been filed should be made aware of the factum of the filing of the appeal
which may or may not be relevant at a future date. Merely because a
memorandum of appeal is not filed under Order 41 Rule 9 will not make
the appeal filed in the appellate Court as a defective one. (364-D-F[

      (Court directed that if any difficulties are felt, these can be placed   B
before the Committee; The Committee would consider the said difficulties
and make necessary suggestions in its report; It would be open to the
Committee to seek directions, the Committee has to file its report within
a period of four months.) (364-G-H; 365-A)

        CIVIL ORIGINAL JURISDICTION : Writ Petition (C) No. 496 of             C
2002.

        (Under Article 32 of the Constitution of India)

                                    WITH
                                                                               D
        W.P. (C) No. 570 of 2002.

     Soli J. Sorabjee, Attorney General, Mukul Rohtagi, Additional Solicitor
General, C.S. Vaidyanathan, (A.C.), R. Sundaravardan, Kapil Sibal, M.N.
Krishnamani, G.L. Sanghi, K.V. Vishwanathan, (A.C.), T. Raja, P.N. Puri,       E
Dhruv Mehta, Shreekant N. Terdol, Sanjeev Sachdeva, Adish Agarwala, S.K.
Karvendan and Ms. Shalini Gupta for the appearing parties.

        The Judgment of the Court was delivered by

        KIRP AL, CJ. Rule.
                                                                               F
     These writ petitions have been filed seeking to challenge amendments
made to the Code of Civil Procedure by the Amendment Act 46 of 1999 and
Amendment Act 22 of 2002.

       Writ Petition (C) No. 496 of2002 was filed by the Salem Advocate Bar G
Association and after notice was issued the Petitioner sought leave of this
Court to withdraw the writ petition. By order dated 16th September, 2002,
the prayer to withdraw the writ petition was declined, as the petition had been
filed in public interest. At the request of the Court, Shri C.S. Vaidyanathan,
Sr. Adv. assisted by Shri K.V. Vishwanathan, Advocate agreed to assist the
Court as Amicus Curiae and they have rendered assistance to the Court for H
    358                      SUPREME COURT REPORTS [2002] SUPP. 3 S.C.R.

A dealing with the.case. The Court records its appreciation for the assistance
    given.

          In the petitions, the amendments which were sought to be made by the
    aforesaid Amendment Acts, have been challenged, but we do riot find that
    the said provisions are in any way ultra vires the Constitution. Neit.her Mr.
B   Vaidyanathan nor any other learned counsel made any submissions to the
    effect that any of the amendments made were without legislative competence
    or violative of any of the provisions of the Constitution. We have also gone
    through the provisions by which amendments have been made and do not
    find any constitutional infirmity in the same.
c            Mr. Vaidyanathan, however, drew our attention to some of the
    amendment~ which have been made with a view to 'show that there may be
    some practical difficulties m implementing the same. He also contended that
    some clarifications may be necessary. We shall deal with the said provisions
    presently.
D
         Amendment has been made to Section 27 dealing with summons to the
    defendant which, after the amendment, reads as follows:

              "Summons to Defendants - Where a suit has been duly instituted a
              summons may be issued to the defendant to appear and answer the
E             claim and may be served in the manner prescribed on such day not
              beyond thirty days from the date of the institution of the suit."

           It was submitted by Mr. Vaidyanathan that the word "on such day not
  beyond thirty days from the date of the institution of the suit" seem to
  indicate that the summons must be served within thirty days of the date of
F the institution, of the suit. In our opinion, the said provisions read as a whole
  will not be susceptible to that meaning. The words added by amendment, it
  appears fix outer time frame, by providing that steps must be taken within
  thirty days from the date of the institution of the suit, to issue summons. In
  other words, if the "suit is instituted, for example, on 1st January, 2002, then
G the correct addresses of the defendants and the process fee must be filed in
  the court within thirty days so that summons be issued by the court not-
  beyond thirty days from the date of the institution of the suit. The object is
  t~ avoid long delay in issue of summons for want of steps by the plaintiff.
   It 'is quite evident that if all that is required to be done by a party, has been
  performed within the period of thirty days, then no fault can be attributed to.
H the party. If for any reason, the court is not in a position or is unable to or
      SALEM ADVOCATE BAR ASSOCIATION v. U.0.1. [KIRPAL, CJ.)            359

does not issue summons with in thirty days, there will, in our opinion,        A
compliance with the provisions of Section 27 once within thirty days of the
issue of the summons the party concerned has taken steps to tile the process
fee along with completing the other formalities which are required to enable
the court to issue the summons.

      Our attention was then drawn to a new Section 89 which has been          B
introduced in the Code of Civil Procedure. This provides for settlement of
disputes, etc., and reads as under:

       "89. Settlement of disputes outside the Court.-(!) Where it appears to
       the Court that there exist elements which may be acceptable to the C
       parties, the Court shall formulate the terms of settlement and give
       them to the parties for their observations and after receiving the
       observations of the parties, the Court may reformulate the terms of a
       possible settlement and refer the same for-

       (a) arbitration;
                                                                               D
       (b) conciliation;

       (c) judicial settlement including settlement through Lok Adalat; or
       (d) mediation.
                                                                               E
       (2) Where a dispute has been referred -

       (a) for arbitration or conciliation, the provisions of the Arbitration
       and Conciliation Act, 1996 (26 of 1996) shall apply as if the
       proceedings for arbitration or conciliation were referred for settlement
       under the provisions of that Act;                                        F
       (b) to Lok Adalat, the Court shall refer the same to the Lok Adalat
       in accordance with the provisions of sub-section ( 1) of section 20 of
       the Legal Services Authority Act, 1987 (39 of I987) and all other
       provisions of that Act shall apply in respect of the dispute so referred
       to the Lok Adalat;                                                       G
       (c) for judicial settlement, the Court shall refer the same to a suitable
       institution or person and such institution or person shall be deemed
       to be a Lok Adalat and all the provisions of the Legal Services
       Authority Act, 1987 (39 of 1987) shall apply as if the dispute were
       referred to a Lok Adalat under the provisions of that Act;                H.
    360                     SUPREME COURT REPORTS (2002] SUPP. 3 S.C.R.

A           (d) for mediation, the Court shall effect a compromise between the
            parties and shall follow such procedure as may be prescribed."

         It is quite obvious that he reason why Section 89 has been inserted is
  to try and see that all the cases which are filed in court need not necessarily
  be decided by the court itself. Keeping in mind the laws delays and the
B limited number of Judges which are available, it has now become imperative
  that resort should be had to Alternative Dispute Resolution Mechanism with
  a view to bring to an end litigation between the parties at an early date. The
  Alternative Dispute Resolution (ADR) Mechanism as contemplated by Section
  89 is arbitration or conciliation or judicial settlement including settlement
C through Lok Adalat or mediation. Sub-section (2) of Section 89 refers to
  different Acts in relation to arbitration, conciliation or settlement through
  Lok Adalat, but with regard to mediation Section 89(2)(d) provides that the
  parties shall follow the procedure as may be prescribed. Section 89(2)(d),
  therefore, contemplates appropriate rules being framed with regard to
  mediation.
D
          In certain countries of the world wh~re ADR has been successful to the        ..
    extent that over 90 per cent of the cases are settled out of court, there is a
    requirement that the parties to the suit must indicate the form of ADR which
    they would like to resort to during the pendency of the trial of the suit. If the
E · parties agree to arbitration, then the provisions of the Arbitration and
    Conciliation Act, 1996 will apply and that case will go outside the stream of
    the court but resorting to conciliation or judicial settlement or mediation with
    a view to settle the dispute Would. not ipso facto take the case outside the
    judicial system. All that this means is that effort has to be made to bring
    about an amicable settlement between the parties but if conciliation or
F mediation or judicial settlement is not possible, despite efforts being made,
    the case will ultimately go to trial.

         Section 89 is a new provision and even though arbitration or conciliation
  has been in place as a mode for settling the disputes, this has n?t really
  reduced the burden on the courts. It does appear to us that modalities have
G to be formulated for the manner in which Section 89 and, for that matter, the
  other provisions which have been introduced by way of amendments, may
  have to be in operation. All counsel are agreed that for this purpose, it will
  be appropriate if a Committee is constituted so as to ensure that the
  amendments made become effective and result in quicker dispensation of
H justice.
       SALEM ADVOCATE BAR ASSOCIATION v. U.0.l. [KIRPAL, CJ.]               361
       In our opinion, the suggestion so made mt:rits a favourable consideration.   A
With the constitution of such a Committee, any creases which require to be
ironed out can be identified and apprehensions which may exist in the minds
of the litigating public or the lawyers clarified. As suggested, the Committee
will consist of a Judge sitting or retired nominated by the Chief Justice of
India and the other members of tht: Committee will be Mr. Kapil Sibal,              B
Senior Advocate, Mr. Arun Jaitley, Senior Advocate, Mr. C.S. Vaidyanathan,
Senior Advocate and Mr. D.V. Subba Rao, Chairman, Bar Council of India.
This Committee will be at liberty to co-opt any other member and to take
assistance of any member of the Bar or Association. This Committee may
consider devising a model case management formula as well as rules and
regulations which should be followed while taking recourse to the ADR               C
referred to in Section 89. The model rules, with or without modification,
which are formulated may be adopted by the High Courts concerned for
giving effect to Section 89(2)( d).

       Mr. Vaidyanathan drew our attention to Section JOOA which deals with
intra-court appeals. This Section reads as follows:                         D
        "1 OOA. No further appeal in certain cases. - Notwithstanding anything
        contained in any Letters Patent for any High Court or in any other
        instrument having the force of law or in any other law for the time
        being in force, where any appeal from an original or appellate decree       E
        or orders
                ,.. is heard and decided by a single Judge or a High Court, no
        further appeal shall lie from the judgment and decree of such single
        Judge."

       It was submitted by j\1r. Vaidyanathan .that where the original decree is
reversed by a Single Judge of the High Court, there should be a provision for       p
filing a Letters Patent Appeal.

      Section 1OOA deals with two types of cases which are decided. by a
Single Judge. One is where the Single Judge hears an appeal from an appellate
decree or order. The question ofthere being ahy further appeal in such a case
cannot and should not be contemplated. Where, however, an appeal is filed G
before the High Court against the decree of a trial court, a question may arise
whether any further appeal should be permitted or not. Even at present
depending on the value of the case, the appeal from the original decree is
either heard by a Single Judge or by a Division Bench of the High Court.
Where the regular first appeal so filed is heard by a Division Bench, the H
    362                      SUPREME COURT REPORTS [2002] SUPP. 3 S.C.R.

A question of there being an intra-court appeal does not arise. It is only in cases
    where the value is hot substantial that the rules of the High Court may
    provide for the regular first appeal to be heard by a Single Judge. In such a
    case to give a further right of appeal where the amount involved is nominal
    to a Division Bench will really be increasing the workload unnecessarily. We
B   do not find that any prejudice would be caused to the litigants by not providing
    for intra-court appeal, even where the value involved is large. In such a case,
    the High Court by Rules, can provide that the Division Bench will hear the
    regular first appeal. No fault can, thus, be found with the amended provision
    Section !OOA.

C        Our attention has been drawn to Order 7 Rule 11 to which clauses (e)
  and (f) have been added which enable the court to reject the plaint where it
  is not filed in duplicate or where the plaintiff fails to comply with the provisions
  of Rule 9 of Order 7. It appears to us that the said clauses being procedural
  would not require the automatic rejection of the plaint at the first instance.
  If there is any defect a as contemplated by Rule 11 (e) or non-compliance as
D referred to in Rule 1 l(f), the court should ordinarily give an opportunity for
  rectifying the defects and in the event of the same not being done the court
  will have the liberty or the right to reject the plaint.

          In Order 18, rule 4 has been substituted and sub-rule (I) provides that
E in every case examination-in-chief of the witnesses shall be on affidavits and
  copies thereof shall be supplied to the opposite parties by the party who calls
  them for evidence. It was contended by Mr. Vaidyanathan that it may not be
  possible for the party calling the witness to compel the witness to file an
  affidavit. If often happens that the witness may not be under the control of
  the party who- wants to rely upon his evidence and that witness may have to
F be summoned through court. Order 16 Rule I provides for list of witnesses
  being filed and summons being issued to them for being present in court for
  recording their evidence. Rule I A, on the other hand, refers to production of
  witnesses without summons where any party to the suit may bring any witness
  to give any evidence or to produce documents. Reading the provisions of
G Order 16 and Order 18 together, it appears to us that Order 18 Rule 4( I) will
  necessarily apply to a case contemplated by Order 16 Rule IA, i.e. Where
  any party to a suit, without applying for summoning under rule 1 brings any
  witness go give evidence or produce any document. In such a case,
  examination-in-chief- is not to be recorded in court but shall be in the form
  of an affidavit.
H
       SALEM ADVOCATE BAR ASSOCIATIONv. U.0.1. [KIRPAL, CJ.]               363

       In cases where the summons have to be issued under Order 16 Rule l,         A
the stdngent provision of Order 18 Rule 4 may not apply. When summons
are issued, the court can give an option to the witness summoned either to
file an affidavit by way of examination-in-chief or to be present. in court for
his examination. In appropriate cases, the court can direct the summoned
witness to file an affidavit by way of examination-in-chief. In other words,       B
with regard to the summoned witnesses the principle incorporated in Order
18 Rule 4 can be waived. Whether a witness shall be directed to file affidavit
or be required to be present in court for recording of his evidence is a matter
to be decided by the court in its discretion having r.egard to the facts of each
case.
                                                                                   c
       Order 18 Rule 4(2) gives the court the power to decide as to whether
evidence of a witness shall be taken either by the court or by the Commissioner.
An apprehension was raised to the effect that the court has no discretion and
once it decides that the evidence will be recorded by the Commissioner then
evidence of other witnesses cannot be recorded in court. We do .not think that
this is the correct interpretation of sub-rule. 4(2). Under the said sub-rule, the D
court has the power to direct either all the evidence being recorded in court
or all the evidence being recorded by the Commissioner or the evidence
being recorded partly by the Commissioner and partly by the court. For
example, if the plaintiff wants to examine I 0 witnesses, then the court may
direct that in respect of five witnesses evidence will be recorded by the E
Commissioner while in the case of other five witnesses evidence will be
recorded in court. In this connection, we may refer to Order 18 Rule 4 (3)
which provides that the evidence. may be recorded either in writing or
mechanically in the presence of the Judge or the Commissioner. The use of
the word 'mechanically' indicates that the evidence can be recorded even
with the help of the electronic media, audio or audi 0-visual, and in fact F
whenever the evidence is recorded by the Commissioner it will be advisable
that there would be simultaneously at least an audio recording of the statement ·
of the witnesses so as to obviate, any controversy at a later stage.

      Mr. Vaidyanathan drew our attention to the fact that by amendment in G
1976, Rule I 7A had been inserted in Order I 8 which gave an opportunity to
a party to adduce additional evidence under the circumstances mentioned
therein. He submitted that by the Amendment Act of 2002, the sub-rule has
been deleted which may cause hardship to the litigants.

      We find that in the Code of Civil Procedure, 1908, a.provision similar H
    364                      SUPREME COURT REPORTS [2002] SUPP. 3 S.C.R.

A to Rule 17A did not exist. This provision, as already noted, was inserted in
   1976. The effect of the deletion of this provision in 2002 is merely to restore
   status quo ante, that is to say, the position which existed prior to the insertion
   of Rule 17 A in 1976. The remedy, if any, that was available to a litigant with
  regard to adducing.additional evidence prior to 1976 would be available now
B and no more. It is quite evident that Rule 17 A has been deleted with a view
  that unnecessarily applications are not tiled primarily with a view to prolong
  the trial. '

         Lastly, Mr. Vaidyanathan drew our attention to Rule 9 which was inserted
    in Order 41 which reads as follows:
c           "9. Registry of memorandum of appeal.-(!) The Court from whose
            decree an appeal lies shall entertain the memorandum of appeal and
            shall endorse threon the date or presentation and shall register the
            appeal in a book of appeal kept for that purpose.

            (2) Such book shall be called the register of appeal."
D
           The apprehension was that this rule requires the appeal to be filed in
    the court from whose decree the appeal is sought to be filed. In our opinion,
    this is not so. The appeal is to be filed under Order 41 Rule I in the court
    in which it is maintainable. All that Order 41 Rule 9 requires is that a copy
E of memorandum of appeal which has been filed in the appellate court should
    also be presented before the court against whose decree the appeal has been
    filed an endorsement thereof shall be made v :/ the decreeing court in a book
    called the Register of Appeals. Perhaps, the intention of the Legislature was
 . that the court against whose decree. an appeal has been filed should be made
  . aware of the factum of the filing of the. appeal which may or may not be
F relevant at a future. date. Merely because a memorandum of appeal is not
    filed under Order 41 Rule 9 will not, to our mind, make the appeal filed in
    the appellate court as a defective one.

          No other contentions were raised. As already observed, if any difficulties
G are felt, the.se can be placed before the Committee constituted hereinabove.
    The Committee would consider the said difficulties and make necessary
    suggestions in its report. It is hoped that the amendments now made in the
    Code of Civil Proc~dure would help in expeditious disposal of cases in the
    trial courts and the appellate courts.

H          It would be open to the Committee to seek directi.'"o. The Committee
         SALEM ADVOCATE BAR ASSOCIATION v. U.O.L(K!RPAL, CJ.]              365

is requested to file its report within a petiod of four months. To consider the   A
report, list these petitions after four months. Copies of this judgment be sent
to the Registrars of all the High Courts so that necessary action can be taken
by the respective High Courts and any writ petition pending iii those High
Courts can be formally disposed of

K.K.T.                                    Issued clarifications and directions.   B