SALEM ADVOCATE BAR ASSOCIATION, TAMIL NADU versus UNION OF INDIA

Citation: [2002] SUPP. 3 S.C.R. 353 · Decided: 25-10-2002 · Supreme Court of India · Bench: B.N. KIRPAL · Disposal: Directions issued

Judgment (excerpt)

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.] 
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 
B 
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. 
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 
F 
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 a

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