Civil Court Rules of the High Court of Judicature at Patna
(VOLUME 1)
Contents
Preliminary
PART I [Pg. 6-38]
General Rules Relating to Practice and Procedure
Chapter I
Pleadings, Petitions and Affidavits.
Chapter II
Processes and Process-Servers
(I) Processes—
(A) General.
(B) Method and Proof of Service.
(C) Additional rules relating to the service of notice of Appeal issued by the High Court.
(D) Summons on persons in Civil and Military employ of Government, etc.
(E) Production of Public Documents and Records.
(II) Process-servers and the Nazarat—
(A) Process-serving establishment.
(B) Method of recruitment and appointment of Process Servers.
(C) Arrangement of work.
Chapter III
Adjournments.
Chapter IV
Hearing of suits and Examination of Witnesses.
Chapter V
Judgment and Decree
(I) Judgment.
(II) Decree.
Chapter VI
Execution of Decrees
(I) General.
(II) Attachment.
(III) Sale.
(IV) Arrest, Imprisonment and Release.
(V) Execution by another Court.
Chapter VII
(I) General.
(II) Commissions for Examination of Witnesses.
(III) Commissions for Local Investigations and to examine Accounts.
Chapter VIII
Suits by or against Government or Officers.
Chapter IX
Appointment of Receivers.
Chapter IX-A
Ex-Parte Injunctions.
Chapter X
Appeals.
Chapter XI
Rules framed by the High Court for the Guidance of Guardians-ad-item of minor Defendants and minor Respondents.
PART II [Pg. 38-71]
Special Rules relating to Acts other than the Code of Civil Procedure and the Court-fees Act
Chapter I
Bengal Wills and Intestacy Regulation, 1799.
Indian Succession Act, 1925.
Guardians and Wards Act, 1890.
Land Registration Act, 1876.
Court of Wards Act, 1879.
Bihar Tenancy Act, 1885.
Provincial Small Cause Courts Act, 1887.
Indian Stamp Act, 1899.
Indian Registration Act, 1908.
Indian Lunacy Act, 1912]1
Administrator Generals Act, 1913.
Indian Companies Act, 1913]2
1. Now, Mental Health Act, 1987.
2. Now, Companies Act, 1956.
Provincial Insolvency Act, 1920.
Rules for the Disposal of Audit Reports, etc.
Rules under Section 41 of the Special Marriage Act, 1954.
Rules under Section 44 of the Arbitration Act (X of 1940)]1
Rules under Sections 14 and 21 of the Hindu Marriage Act, 1955.
PART III [Pg. 71-101]
Records
Chapter I
Classification of Records of Judicial
Proceedings.
Chapter II
The Arrangement, Preparation and Inspection of Records in the trial court.
(I) Arrangement and preparation of record—
(A) Division of the Record into files.
(B) The Title Page.
(C) The Table of Contents.
(D) The Order-sheet.
(E) The Record.
(F) Document.
(II) Inspection of records.
Chapter III
Transmission of Records to the District Record-Room.
Chapter IV
District Record-Room.
(I) Record-room arrangement and general duties of the Record-keeper.
(II) Receipt of Records in the District Record-room.
(III) Arrangement of Records in the Record-room.
(IV) Custody, removal and transmission of records and of documents contained therein.
(V) Inspection of Records.
(VI) Destruction of Records.
Chapter V
Records of the Court of Small Causes.
Chapter VI
Wills
(I) Custody and Preservation of Wills.
(II) Inspection of Wills.
PART IV [Pg. 101-110]
Rules relating to Information, Copies and Copying Department
Chapter I
Information and Copies.
(I) General.
(II) Information.
(III) Copies.
Chapter II
Copying Department and Copyists.
PART V [Pg. 110-131]
Fees and costs, including rules and orders under the Court-fees Act
Chapter I
Fees and costs
(I) Process Fees.
(II) Reduction and Remission of Courtfees.
(III) Other Fees.
(IV) Postage.
(V) Witnesses’ Expenses.
(VI) Expenses of Commission, Order
XXVI, Rule 15.
(VII) Fees of Advocates and Pleaders.126
(VIII) Mukhtar’s Fees.
Additional fees recoverable by the successful party.
Chapter II
Rules and Instruction relating to court-fee stamps.
(I) Use of adhesive and impressed stamps.
(II) Cancellation of Court-fee stamps.
(IIII) Inspection of records by Registration Officers.
PART VI [Pg. 131-147]
Rules relating to registers, periodical returns, statements and annual reports
Chapter I
(I) Registers.
(II) Periodical Returns and Statements—
(A) Forms.
(B) Classification of cases—
(i) Suits and Appeals from Decrees
(ii) Miscellaneous Judicial Cases .
(iii) Miscellaneous Non-Judicial Cases.
(iv) Miscellaneous Appeals.
Now, Arbitration and Conciliation Act, 1996.
(C) Compilation of Statements and Returns.
(D) Submission of Periodical Returns.
(III) Annual Reports.
PART VII [Pg. 147-156]
Legal Practitioners
Chapter I
The qualification, admission and certificates of Pleaders and Mukhtars in courts subordinate to the High Court.
(I) General.
(II) Qualifications of Pleaders.
(III) Qualifications of Mukhtars.
(IV) Admission to practice.
(V) Certificates.
(VI) Fees.
(VII) Penalties.
Chapter II
Annual renewal of legal practitioners certificates and returns of the same, etc.
Chapter III
Rules as to the functions, etc., of Mukhtars.
Chapter IV
Rules Regarding Vakalatnamas and Mukhtar-namas.
Chapter V
Miscellaneous including Rules regarding Registered clerks.
PART VIII [Pg. 157-159]
Libraries, Forms and Stationery
Chapter I
Libraries.
Chapter II
Forms and Stationery.
PART IX [Pg. 159-168]
Miscellaneous Instructions
Chapter I
(I) Office.
(II) Correspondence.
(III) District Judges and Subordinate Judicial Officers.
(IV) Construction and Repair of Buildings.
(V) Application for temporary Additional Officer.
(VI) Leave and Extension of Service—
(A) Casual Leave of District Judges and Additional District Judges.
(B) Leave of Subordinate Judges and Munsifs.
(C) Extension of Service.
(VII) Inspections by District Judges.
PART X [Pg. 168-198]
Account Rules
Chapter I
(I) General.
(II) Receipt of Money.
(III) Payment of Money.
(IV) Account-keeping and remittance to Treasury.
(V) Deposit and Repayment Registers.
(VI) Control over Subordinate Courts.
(VII) District Monthly Returns.
(VIII) Annual Clearance Register of Deposits.
(IX) Lapse of Deposits.
(X) Supplementary Rules as to Receipts under heads (b) to (g) of Rule 5.
(XI) Miscellaneous.
APPENDIX I [Pg. 199]
List of Registers to be compared daily by judge-in-charge
APPENDIX II [Pg. 199]
Judge’s Daily Examination of Accounts
APPENDIX III [Pg. 200]
List of Returns
Civil Court Rules
Preliminary
[Nothing in the Civil Court Rules will interfere with the general powers of supervision of the District Judge over the Courts and officers subordinate to him.]
1. All Courts shall ordinarily sit at 10.30 A.M. and rise at 4.30 P.M., standard time. It is expected that the Judges will so arrange the business of their Courts as to supply work for these hours.
Note 1.—Between 1st April and 30th June, the exact date being settled in consultation with the Heads of Offices in the station, the Courts may commence their sittings at 6 A.M., or as soon thereafter as convenient. When this arrangement is in force the Court expect that Judicial Officers will sit for at least five hours each day. However, if the local weather conditions so necessitate or for any other sufficient reason or cause the subordinate Courts may sit in the morning at any time of the year with the prior approval of the High Court.
Note 2.—Judges are at liberty to rise for half an hour or less at about 1.30 P.M. (or at about 8.30 A.M. in the case of morning sittings).
2. Every Civil Court shall maintain a Diary in the prescribed form. Each case fixed for any day shall be entered in advance immediately upon a date or adjourned date being fixed, and the entry as to each case shall show the purpose for which it is set down on each particular date, such as for final disposal at the first hearing, or for settlement of issues, or for trial after adjournment. The Diary will show briefly the progress made in each case, and when witnesses are examined in any case, the number of such witnesses shall be stated. A running total in red ink should be
inserted from day to day, in order to show the total number of witnesses examined during each quarter of the year. A new serial number should be started at the commencement of each quarter. [G.L. 6/55]
Note 1.—The above instructions are intended for strict observance, and the hours of the sitting and the rising of the Court must be regularly and carefully entered. In the case of any unusually short sitting on any day, a short note explaining the reason shall be given in the diary.
Note 2.—When an officer has to perform Revenue or Criminal duties in addition to his work as a Civil Judicial Officer, he will, when at headquarters, note in the diary whether the day has been spent wholly or partly in the performance of any one class of such duties. The whole of the days spent by him on tour will be credited, in the non-Regulation districts, to Revenue alone.
Comments & Case Law
[Every civil court has to maintain a diary in the prescribed form which among other things, contains the adjourned dates. M/s Maliram Mahabir Prasad vs. Shanti Debi, 1991(2) BLJ 290 : 1991(1) PLJR 480 : 1991 (2) BLJR 1219 : AIR 1992 Pat. 66.]
3. A daily list of cases shall be posted in some conspicuous place in every Court-house for the information of the parties and their pleaders. The cases should, as far as possible, be arranged in the order in which they are likely to be taken up. Execution and Miscellaneous cases may be shown either in the same list or in a separate list. The list shall be prepared and posted on the preceding working day at 4.30 P.M., or in the case of morning sittings before 11 A.M. In the list the cases will be sufficiently described by their number, year and class. [H.C. letter no. 11392,
dated 15th November, 1957.]
Note.—Judgments ready for delivery should ordinarily be notified in the cause list for the day.
4. At the close of each day a list shall be prepared and posted up in the Courthouse showing all cases for the hearing or adjourned hearing of which dates have been fixed during the day, and dates so fixed.
Note 1.—The number of cases fixed for each day should be restricted to such number as, after making allowance for unavoidable postponements, the Court may reasonably expect to be in a position to deal with.
Note 2.—Lists shall be prepared in the language of the Court and shall remain posted for seven working days after which they shall be filed in office for future reference, if necessary. At the end of every quarter the lists for the previous quarter will be destroyed.
Note 3.—The daily list referred to in Rule 3 will be used at the end of the day as the list referred to in Rule 4.
Note 4.—The list shall be signed by the Presiding Judge and exhibited before he leaves the Court.
Comments & Case law
[Rule 4 provide that at the close of each day a list shall be prepared and posted up in the Court house showing all cases for the hearing or adjourned hearing of which dates have been fixed during the day. The date of the case has to be fixed by passing a judicial order on the order sheet of the concerned case and only after such date is fixed the case be shown in the cause list. M/s Maliram
Mahabir Prasad vs. Shanti Debi, 1991(2) BLJ 290 : 1991(1) PLJR 480 : 1991 (2) BLJR 1219 : AIR 1992 Pat. 66.]
5. Without the consent of the parties and in the absence of urgent necessity no Civil Trial should proceed on Sundays or holidays gazetted under Section 15 (2) of Act XII of 1887.
6. The Government of Bihar have declared the following as Court language in the State of Bihar in supersession of all previous notifications and orders on the subject—
“Hindi” to be written in “Devanagri” character;
7. With the permission of the Presiding Judge any Advocate or Pleader may address the Court in English when any of the pleaders on the opposite side is acquainted with that language or whenever the senior of such pleaders or his client consents to this being done.
8. Plaints may be presented any time during the Court hours. [G.L. 1/36, G.L. 4/62.]
9. Petitions, applications, etc., should always be taken in open Courts, and usually at the commencement of the daily sitting of the Court. The majority of petitions can be disposed of by an order passed in Court as soon as they are filed. Where a reference to the record or to other papers is necessary before an order can be made, petitions should, unless they are of an exceptionally urgent nature, be brought up with such record or papers on the following open day and orders should then be passed in Court.
Note.—The District Judge shall fix for his Court and for all Courts subordinate to him a time for the presentation of such applications, petitions, etc., as can be presented to the Presiding Officer only.
10. No documents or proceeding required to be presented to or filed in Court, which is sent by post or telegraph, shall be received or filed in Court. [G.L. 12/65.]
11. The administrative work connected with Civil Courts will be carried on in the office, which will be divided into Departments, and each such Department will be in charge of a Judicial Officer.
12. The Regular Seal of the Court shall be placed in custody of a responsible officer of the Court and documents required to be sealed with it should be sealed under his superintendence. Similar precautions shall be taken with respect to the Date Seal, which is affixed to all documents and papers on their presentation to Court. The Regular Seal is to be used for sealing judgments, decrees, writs, processes, sale-certificates, copies or other documents made or issued judicially.
The date seal shall be affixed to all documents and papers presented to Court in such a way as to show clearly the date on which they were presented. If any Court-fee labels appear on them, the Date Seal shall be affixed a second time in such a way as to deface the Court-fee labels.
PART I
General Rules Relating to Practice and Procedure
CHAPTER I
Pleadings, Petitions and Affidavits
13. Parties should file pleadings, petitions, applications and affidavits in the language of the Court as far as practicable, or in English and type-written, if possible.
14. Every pleading, petition, affidavit or application filed in Court shall be—
(1) type-written or written on foolscape water-marked plain demi-paper, one side of the paper only being used and a quarter margin together with at least one inch of space at the top and bottom of each sheet being allowed;
Note.—The paper indicated is that generally known as “pie” or “cartridge” paper and is sold by all stamp-vendors.
(2) couched in proper language;
(3) dated, and signed by the person presenting it and also, where necessary, by such other person as may by law be required to sign such pleading, petition, affidavit or application;
(4) signed by the scribe or typist, who shall state the capacity in which he writes it.
Note 1.—This Rule shall apply as far as possible to vakalatnamas, mukhtar namas, process-fee sheets and similar other papers.
Note 2.—A Mukhtar is not permitted to sign pleadings. When a plaint or written statement is presented or tendered by a Mukhtar an endorsement shall be made thereon by the officer of the Court receiving it in the following terms— “Presented by A.B., Mukhtar.” The endorsement shall be signed by such officer and the Mukhtar.
15. When the person presenting a pleading, affidavit, petition or application is not a pleader or a mukhtar, he shall, if so required by the Court, be identified. In the case of an illiterate person his thumb impression shall be affixed in place of the signature required in this connection.
16. Every petition or pleading shall state concisely and clearly—
(1) the facts, matters and circumstances upon which the applicant relies;
(2) the matter of complaint, if any, and the relief sought or prayer made.
17. Every interlineation, alteration or erasure in a petition or pleading shall be authenticated by the initials of the pleader, or recognised agent of the party by whom it is presented. In the case of an affidavit such authentication shall be made by the initials of the Commissioner.
18. On every interlocutory application or petition filed in a suit valued at less than Rs. 50 the parties shall note the valuation to enable a proper check to be made of the Court-fee paid.
19. Applications in regard to distinct subject-matters shall be made in separate petitions.
Comments & Case Law
[Though two prayers in one petition are not permissible but the subject matters in such prayer were not distinct subject matters in terms of rule 19 – held permissible. Baikunth Prasad Verma vs. Lachmi Paper House, 1990(1) PLJR 668 : 1991 (2) PLJR 479.]
20. Petitions requiring verification shall be verified in the manner prescribed in Order VI, Rule 15, Civil Procedure Code.
21. In contested original suits no written statement, application or list of documents shall be filed unless copies thereof have been previously served on the pleader for each set of parties whose interests are not joint. Pleaders served with such copies shall give receipts on the original written statements, applications or lists.
Note.—The above Rule shall apply mutatis mutandis to all contested execution proceedings and miscellaneous judicial cases.
22. An order appointing an officer to receive plaints under Order IV, Rule 1 of the Code of Civil Procedure must be in writing. [G.L. 12/26, G.L. 1/18.]
23. All plaints and petitions required to be entered in any register must be registered on presentation irrespective of any question as to their possible rejection or of their having to be returned for amendment. [G.L. 2/25, G.L. 6/29.]
24. No plaint shall ordinarily remain unregistered for more than one day; but should it be found impossible for any reason to register a plaint within 24 hours of its receipt, the fact shall be reported to the Presiding Officer of the Court concerned.
25. A list of the plaints filed each day shall be posted the same day in the prescribed form in the language of the Court at some conspicuous place in the Court-house for the information of the plaintiffs and their pleaders. It shall be signed by the Presiding Officer and exhibited as early as possible and in all circumstances before he leaves the Court. When a large number of rent suits is instituted at one time special arrangements shall be made so that the information may be supplied as quickly as possible, and previous notice shall be given to the Bar and the public of such modifications of the ordinary procedure as may be necessary on these occasions. The list shall be affixed one above the other in the form of a guard file. They shall remain posted for one week. The lists for a quarter shall be destroyed at the end of the succeeding quarter.
Note.—The above procedure will apply mutatis mutandis to memoranda of appeals, but the District Judge shall decide whether the list of memoranda of appeals shall be in the vernacular or in English.
26. All Sarishtadars shall be ex-officio Commissioners of affidavits in respect of matters and causes arising within and subject to the jurisdiction of the respective Courts in which they are employed.
27. All Nazirs shall be Commissioners of affidavits when such affidavits relate to service of processes and sworn to by process servers under them.
28. District Judges should be careful to satisfy themselves that persons whom, in the exercise of the power vested in them under clause (c) of Section 139 of the Code of Civil Procedure, they propose to appoint to be Commissioners to administer oaths on affidavits, are trustworthy and capable of discharging that function with efficiency.
29. Every affidavit to be used in a Court of Justice shall be entitled “In the Court of … … … … … … … … … … … … … … … … at … … … … … … … … … … … … …” naming such Court.
30. If there be a cause in Court, the affidavit in support of, or in opposition to, an application respecting it must also be entitled in the cause.
31. If there be no cause in Court, the affidavit shall be entitled “In the matter of the petition of …………”.
32. Every affidavit containing any statement of facts shall be divided into paragraphs, and every paragraph shall be numbered consecutively and, as nearly as may be, shall be confined to a distinct portion of the subject.
33. Every person, other than a plaintiff or defendant in a suit in which the application is made, making any affidavit, shall be described in such a manner as will serve to identify him clearly, that is to say, by the statement of his full name, the name of his father, his profession or trade, and the place of his residence.
34. When the deponent in any affidavit speaks to any fact within his own knowledge, he must do so directly and positively, using the words “I affirm” (or “make oath”) “and say”.
35. When the particular fact is not within the deponent’s own knowledge, but is stated from information obtained from others, the deponent must use the expression “I am informed” (and, if such be the case, should add) “and verily believe it to be true”, or he may state the source from which he received such information. When the statement rests on facts disclosed in documents, or copies of documents procured from any Court of Justice or other source, the deponent shall state what is the source from which they were procured, and his information, or belief, as to the truth of the facts disclosed in such documents.
36. Every person making an affidavit, if not personally known to the Commissioner, shall be identified to the Commissioner by some person known to him, and the Commissioner shall specify at the foot of the petition, or of the affidavit (as the case may be), the name and description of him by whom the identification is made, as well as the time and place of identification, and of the making of the affidavit. [G.L. 3/53.]
37. If any person making an affidavit shall be ignorant of the language in which it is written, or shall appear to the Commissioner to be illiterate, or not fully to understand the contents of the affidavit, the Commissioner shall cause the affidavit to be read and explained to him in a language which both he and the Commissioner understand, either doing so himself, or causing another person to do so in his presence. When any affidavit is read and explained as herein provided, the Commissioner shall certify in writing at the foot of the affidavit that it has been so read or explained, and that the deponent seemed perfectly to understand the same at the time of making the affidavit.
38. In administering oaths and affirmations to deponents, the Commissioner shall be guided by the provisions of the Indian Oaths Act, Act X of 1873. Christian deponents shall be sworn on the New Testament. The following forms are to be used—
OATH
I swear that this my declaration is true, that it conceals nothing, and that no part of it is false. So help me God.
AFFIRMATION
I solemnly declare that this my declaration is true, that it conceals nothing and that no part of it is false.
39. In all suits and appeals, evidence should, as a general Rule, “be taken orally in open Court in the presence, and under the personal direction and superintendence of the Judge” (Order XVIII, Rule 4). The power to order that any particular fact or facts may be proved by affidavit, or that the affidavit of any witness may be read at the hearing, should be exercised only under special circumstances, or as Order XIX, Rule 1, declares, “for sufficient reason”, which should always be specified in the order. General orders cannot therefore be given for the admission of affidavits in suits or appeals; where any such orders have been given, they should be withdrawn.
Comments & Case Law
[The processual law so dominates in certain systems as to overpower substantive rights and substantial justice. The humanist rule that procedure should be the hand maid, not the mistress of legal justice compels consideration of vesting a residuary power in Judges to act ex debito justitiae where the tragic sequel otherwise would be wholly inequitable. Justice is the goal of jurisprudence.
Processual, as much as substantive. Sushil Kumar Sen vs. State of Bihar, 1975(1) SCC 774.
No person has a vested right in any course of procedure. He has only the right of prosecution or defence in the manner for the time being by or for the Court in which the case is pending, and if, by an Act of Parliament the mode of procedure is altered, he has no other right than to proceed according to the altered mode. Blyth vs. Blyth, 1966 (1) All E.R. 524 (HL).
A procedural law should not ordinarily be construed as mandatory, the procedural law is always subservient to and is in aid to justice. Any interpretation which eludes or frustrates the recipient of justice is not to be followed. Shreenath vs. Rajesh, AIR 1998 SC 1827.
Processual law is not to be a tyrant but a servant not an obstruction but an aid to justice. Procedural prescriptions are the handmaid and not the mistress, a lubricant, not a resistant in the administration of justice. Rani Kusum vs. Kanchan Devi, 2005(3) BLJ 719 : 2005 AIR (SC) 3304 : 2005(6) SCC 705 : 2005 AIRSCW 3985.
Claim for promotion to the post of Seristadar. Rules not indicating that an employee who is already in the super time scale is not entitled to be considered for promotion as Seristadar unless he has passed the aforesaid proficiency test. Petitioner was promoted in the super time selection grade much prior to the said Rules coming into force. Held, petitioner who was senior to respondent No. 4 has been arbitrarily deprived of his promotion to the post of Seristadar. Writ allowed. Alladin Ashraf vs. State of Bihar, 1995(1) BLJ 480.]
40. The Court should be careful to enforce Order XIX, Rule 3, and except in interlocutory applications (see Order XIX, Rule 2), to confine the use of affidavits to such facts as the deponent is able to prove of his own knowledge and to refuse statements founded on mere belief.
41. In determining how the costs of affidavits should be borne by the parties to the suit, a Court should have special regard to the circumstances under which they were admitted. When an affidavit has been allowed for the convenience of one of the parties, or of one of his witnesses, the costs so incurred should not form costs in the suit and be charged against the opposite party.
CHAPTER II
Processes and Process-Servers
I.—PROCESSES
A.—General
42. In every process and order (of whatever description) issued by a Judicial Officer, for whatever purpose it may be issued or made, the name of the district and of the Court from which the same is issued, and also the name and powers of the officer issuing or making it, shall be clearly set out in such a manner that they may be easily read.
43. (a) Processes should ordinarily issue in the language of the Court; but processes sent for service at any place where the language is different from that of the Court issuing them should be accompanied by a translation in the language of such place or in English certified to be correct. [G.L. 1/21, G.L. 12/55.]
(b) Processes in English should be issued to Europeans and Anglo-Indians.
44. Every person on whom a process is to be served or executed shall be described therein in such a manner as to identify him clearly, by a statement of his correct name and address and such further description as will serve to identify him.
Note.—In the case of service or execution of processes to be effected in large towns, the name of the street or section and the number of the house, where possible, should be given. Where addresses for service were filed by the opposite parties in the Lower Court, notices and processes shall issue from the appellate Court to such addresses, vide Order 41, Rule 38, Code of Civil Procedure.
45. (1) With every plaint and every application for the issue of process, parties shall file the necessary number of printed forms of the same duly filled up in bold, clear and easily legible writing leaving the date of appearance and the date of the process blank. On application such forms will be supplied free of charge.
(2) The parties or their pleaders shall sign the forms in the left bottom corner and will be held responsible for the accuracy of the information entered therein.
(3) When orders for the issue of process are passed by the Court, the date fixed for appearance will be inserted in the form and the process will be dated by an officer of the Court before the processes are signed.
(4) The Presiding Officer may, in his discretion, direct in any particular case that the forms of processes be entirely filled up in the office of the Court.
46. If service in sufficient time before the date fixed is impracticable, the process is to be returned to the issuing Court with reasons and thereupon a fresh date may be fixed.
47. A summons issued under Order V, Rule 21, shall ordinarily be sent to the Court of the Munsif within whose jurisdiction the defendant or the witness, as the case may be, resides, with a covering letter or an endorsement signed by the Presiding Officer.
Note.—Summons and notices issued by Superior Courts for service within the jurisdiction of outlying Munsifs of the same district shall be forwarded to the Court of the Munsif concerned and not ordinarily served by a peon from Sadr. This procedure is to be followed also in the case of notices received from the High Court.
B.—Method and Proof of Service
48. Service should be personal wherever practicable and the Courts ought not in ex parte cases to act upon anything short of personal service until they are satisfied that personal service could not reasonably be effected.
49. When a summons or notice is served personally, the service and the signature or thumb-impression of the person served on the back of the summons or notice should be proved and, in the case of a defendant or judgment-debtor his identity should also be proved.
50. If the service is made under Order V, Rule 12, of the Code, on an agent, it should be proved that such agent was empowered to accept service, either by reason of his being one of the class of recognised agents described in Order III, Rule 2, Order XXVII, Rule 2, or Section 85(1), or by virtue of appointment for that purpose in writing. The party causing the service to be effected must, in both the last mentioned cases, furnish the necessary proof to this effect. [G.L. 1/50.]
51. Where service is made under Order V, Rules 14, 15, 17 or 20 the necessary particulars must be strictly proved. In the case of such service it must also be proved that a reasonable attempt was made to find out the person to be served. Where service is made under Order V, Rule 20, it should, in addition to the particulars required by law, be proved how long and until what time the defendant or respondent resided in the house and what has become of him.
52. If the service is made under Order XXIX, Rule 2, it should be proved that the summons or notice was left at the registered office of the Company, or was delivered to any Director, Secretary or other principal officer.
53. In the case of Railway Administrations or Companies in addition to service in the usual way, a copy of the summons should be sent by post under Order XXIX, Rule 2 (b); provided that if the summons is sent by registered post, service in the usual way may be dispensed with. [G.L. 6/16, G.L. 1/24.]
54. If the service is made under Order XXX, Rule 3, clause (b), it should be proved that the person on whom the summons was served has at the time of service the control or management of the partnership business. [G.L. 14/49.]
55. If the summons or notice, when tendered, is declined by the defendant or his agent, or a male member of his family, besides the proof required as to identity, etc., as stated above, it should be proved that the party was informed that the document tendered was summons or notice, and that he was made acquainted with the nature and contents thereof. [G.L. 2/31]
56. The proof required under the preceding Rules 49, 51 and 55 shall in the following cases ordinarily be—
(1) in the case of a respondent, the affidavit of the person by whom the service was effected;
(2) in the case of a defendant or judgment-debtor, the affidavit of the person by whom the service was effected, and in addition at least one of the following—
(a) The affidavit of an identifier provided by the plaintiff or decreeholder and present at the service;
(b) verification in the form printed upon the back of the process and made, at the scene of the service, by a local villager, Chaukidar, Dafadar, Mukhia or Sarpanch present thereat :
Provided that if deemed necessary the Court may require the examination upon oath or affirmation of such person or persons as it may think fit; Provided further that in the case of service upon any adult member of the family, whether male or female, residing with the defendant or respondent or Judgment-debtor or opposite party (as the case may be), the affidavit of the person by whom service was effected shall contain a statement that the adult member of the family receiving or taking the notice was residing with the defendant or the respondent or the judgment-debtor or the opposite party at the time of the service and that he was satisfied that the person upon whom service was effected was not a servant but a member of the family:
Provided further, that in rent suits and execution cases arising therefrom and in case of pleaders appointed as guardians ad-litem, Government Pleaders in suit against Government and Public Officers, service of summons or notice should be accepted as sufficient upon the peon’s affidavit alone, if the peon certifies that he has served the summons or notice in the presence of two witnesses (name and addresses of the witnesses are to be given).
57. As there is no legal obligation upon a plaintiff, decree-holder or appellant to supply an identifier for service of process or notice, process-servers must not return unserved any notice, process or summons tendered to them for service, by reason only of the fact that no identifier has been supplied by the party. They must make every possible endeavour to find out the person to be served and to secure the verification referred to in Rule 56 (2) (b) above, making for that purpose careful enquiries in the locality. The Nazir should personally deal with all cases in which the process-server reports that he could not find the person upon whom service was to be made, and when necessary he should bring the matter to the notice of the Judge-in-charge of the department.
58. When the summons which has been served is the summons of another Court transmitted to the serving Court for the purpose of service only, then, upon service being effected, this latter Court should retransmit the summons to the Court by which it was issued together with (1) the Nazir’s return and the affidavits, verified statements, or depositions of the serving officer and the witnesses relative to the facts of the service, (2) the record of such Court’s proceedings with regard thereto (Order V, Rule 23), and (3) in case where any of these documents is in a language
different from that of the district from which the process issued, an English translation of such document certified to be correct.
C.—Additional Rules Relating to the Service of Notice of Appeal Issued by High Court
59. On receipt of the proceeding of the High Court transmitting notices of appeals, the Lower Court, shall cause service of the notice without the payment of any further fee and without any further action by the appellant.
Proviso 1.—Any additional fees for boat-hire or ferry-toll exigible under Rule 405 of the Rules framed under clause (i) of Section 20 of the Court-Fees Act, VII of 1870, shall be deposited by the appellant in the Court serving the notices.
Proviso 2.—The appellant or some one employed by him may accompany the serving officer for the purpose of pointing out the residence of the respondent.
60. The Lower Court shall issue all notices received for service immediately on receipt thereof.
61. In every case the Lower Court shall satisfy itself that a valid service has been made or that there has been a failure of service and shall certify such opinion to High Court with the reasons in case of failure. This certificate may be endorsed on the process and it shall be accompanied by the return of service or of failure to serve the notice and the affidavit or solemn declaration of the serving officer. [G.L. 8/16.]
62. Where a notice is sent for service by the Lower Court to another Court whether within the same district or in a different district, such latter Court shall make its return of service or of the failure of service (as the case may be) direct to the High Court and shall be guided by Rules 59, 60 and 61 above.
D.—Summons on Persons in Civil and Military Employ of Government, etc.
63. When a summons is issued on a person who is in Civil or Military employ of Government or is a servant of a Railway Administration or Company or Local Authority a reasonable time should be allowed for the making of arrangements for the relief of the person summoned.
E.—Production of Public Documents and Records
64. All Subordinate Courts should take special care to prevent the unnecessary production in Court of public documents as defined in Section 74 of the Evidence Act. When an officer objects to the production of any documents stating the grounds of such objection it will be the duty of the Court to consider and decide if it should compel the production of such documents. [G.L. 10/55.]
65. Whenever any document or documents, which are required to be produced in a case are in the custody of the House of the People/Council of States/ State Legislatures or whenever a witness whose presence is required in a case, for being examined, is an officer in the Secretariat of the House of the People/Council of States/State Legislatures or any duly informed officer of the Secretariat of the House of the People/Council of States/State Legislatures a letter of request in Form No. (M) 8-A shall be issued instead of a summons in the ordinary form.]
66. 2 [ * * * * *]
67. A summons for the production of any of the records of a post office or a certified extract from or copy of any of such records shall be addressed to the Postmaster.
Note.—For instructions issued by the Director-General of Post Offices, see Rules 739—742, pages 217-218, Post Office Manual, Volume II.
II.—PROCESS-SERVERS AND NAZARAT
A.—Process-Serving Establishment
68. There shall be a joint process-serving establishment for all Courts at the same station under the direct control of the Nazir, who will be responsible for proper service of processes made over to him for the purpose. The Nazir and all his staff shall also be subordinate to any such Court issuing a process, for the purpose of execution of that particular process and shall place themselves under the orders of the Presiding Officer in that regard. A register of process-serving peons shall be maintained in the following form [G.L. 1/59, G.L. 16/62.]—
Sl. Name of Date of Place of Father’s Date of Signature Remarks No. peon birth abode name appoint- of Judgement in-charge
Note.—The dates of security bonds for peons and the names of sureties should always be noted in the ‘Remarks’ column, and the Nazir should test the entries once in two years and note the result with the date in the same column of the register. If the security bond is invalid, the Nazir should bring the fact to the notice of the Judge-in-charge, Nazarat, for the execution of a fresh bond.
69. The peons employed in the service or execution of process in Civil Courts will draw pay in the scale of 1[Rs. 70—½—80. [G.L. 4/55, G.L. 1/56.]
70. The Judge of every district shall ascertain after every five years the average number of original processes issued from his own Court and from each of the Courts subordinate thereto during the immediately preceding 5 years and fix the number of process-servers to be employed, each peon being for this purpose considered capable of executing during the year the number of original processes given in the following table
Note 1.—For the purpose of this Rule all copies of a process served in one village in one case by a process-server at one and the same visit shall be reckoned as one original process; while copies served in the same village on separate visits or in different villages shall be reckoned as so many original processes as the number of different villages or separate visits to the same village.
Note 2.—Where a summons or notice is served by a peon at Sadr within the jurisdiction of an outlying Munsifi under the special order of the Court it will be treated as belonging to the class mentioned in column 3.
Note 3.—Processes served by special peons as in the case of warrants of arrest, etc., should be reckoned as service of 3 original processes. See Rule 81 post.
Note 4.—Each day on which a peon is occupied in keeping custody of attached movable property, standing crops or of a person under arrest, in attending on Commissioners deputed to deliver possession or in taking records, letters, etc., from one station to another, should be reckoned as service of 3 original processes of the class specified in column 2.
71. The District Judge may authorize the appointment of such total number of peons for the whole district as may suffice for the execution of all the processes issued for service within it and may from time to time apportion such peons among different stations in such manner as may appear necessary.
72. On the examination of the figures in the manner as in Rule 70 the District Judge shall increase or reduce, the number of peons according as the number of processes has increased or decreased by 10 per cent, the surplus permanent hands in case of diminution being gradually absorbed against permanent vacancies by stopping fresh recruitment until the permissible limit has reached.
Comments & Case Law
In exercise of powers laid down under these Rules High Court can issue directions from time to time where no specific provision has been made in the rules to meet an eventuality and to make the rules clear and consistent with the mandate of Articles 14 and 16 of Constitution of India. Bihar Rajya Beyawahar Nayalaya Lipik Umidwar Sangh vs. Coordination Committee, 1998(2) PLJR 700 : 1998(3) BLJ 13.
B.—METHOD OF RECRUITMENT AND APPOINTMENT OF PROCESS-SERVERS.
73. The Nazir shall keep a register of candidates for filling up leave and permanent vacancies. These candidates will be enrolled under orders of the Judgein- charge of Nazarat and their number shall not exceed 15 per cent of the total strength of permanent peons employed at any station.
Comments & Case law
[Appointment of Bihar Civil Court Class III & IV Staff. The earlier directive of the High Court on its Administrative Side . State Act that for appointment to Class IV staff in Civil Court, newspaper advertisement not necessary. But the notices should be placed on the Notice-Board of the respective Civil Court premises and in the local daily newspaper of the Distt. Such directive was binding. Non compliance. No advertisement issued in any newspaper as well as no evidence of the Distt. Judge putting up any notice even on the notice board. High Court order striking down the
appointments held to be unimpeachable. Binod Kr. Gupta vs. Ram Ashray Mahto, 2005(2) PLJR (SC)218 : 2005 AIR (SC)2103 : (2005)4 SCC 209.]
74. No candidate shall be enrolled who cannot read and write the vernacular of the district satisfactorily.
75. No process-server shall be appointed except from these candidates.
Note.—Orderlies, office peons and night watchmen will be eligible for appointment as process-servers without being enrolled as candidates.
76. No process-server shall be permanently appointed unless he is found fit by the Judge-in-charge of the Nazarat.
Note.—In order to ascertain fitness the Judge-in-charge of the Nazarat shall hold periodical examinations and strike off unfit or undesirable candidates.
77. Vacancies occurring at any station shall ordinarily be filled up by ‘appointment’ of enrolled candidates attached to that station. [G.L. 5/44.]
Note.—The appointment of peons lies with the District Judge.
Comments & Case law
[Appointment of Bihar Civil Court Class III & IV Staff. The earlier directive of the High Court on its Administrative Side . State Act that for appointment to Class IV staff in Civil Court, newspaper advertisement not necessary. But the notices should be placed on the Notice-Board of the respective Civil Court premises and in the local daily newspaper of the Distt. Such directive was binding. Non compliance. No advertisement issued in any newspaper as well as no evidence of the Distt. Judge putting up any notice even on the notice board. High Court order striking down the appointments held to be unimpeachable. Binod Kr. Gupta vs. Ram Ashray Mahto, 2005(2) PLJR (SC)218 : 2005 AIR (SC)2103 : (2005)4 SCC 209.]
78. No process-serving peon should be appointed who cannot give a security bond of Rs. 50, executed by some person of known respectability and solvency, for his good and honest conduct. The form of the bond is given below— I know A, B, to be an honest man, and I agree to forfeit Rs. ………… if called upon to do so, should he be proved to have embezzled Government money up to or
beyond that amount, or having received money on behalf of Government failed within fifteen days of demand to credit it to Government, or to account for the same for any cause whatever.
Note.—One process-serving peon cannot stand security for another peon.
Comments & Case law
[Appointment of process servers. Non-existence of separate cadre of process server. They are part of general category of class-IV staff hence it is difficult to concede that there is any separate rule of recruitment relating to process servers.
C.—ARRANGEMENT OF WORK
79. The Nazir shall maintain for the jurisdiction for which he is the proper officer for service of processes (1) a list of villages within 1[eight kilometres] radius of his office, (2) a list of villages outside such 1[eight kilometres] radius. [G.L. 6/22, G.L. 11/26, G.L. 4/29, G.L. 4/45, G.L. 1/51, G.L. 4/52, G.L. 5/60, G.L. 4/64, G.L. 7/ 64.]
80. Process for service at places within 1[eight kilometres] radius shall be sent out every working day and should ordinarily be returned either next day or on the day following.
81. The Nazir shall divide the area outside 1[eight kilometres] radius into beats and shall make the best arrangement possible for the prompt service of process of each beat.
82. The Nazir is responsible that processes to be served in the same beat are as far as practicable made over for service to one peon provided that the number of processes so made over must not be unusually large.
83. In making over any process for service the Nazir will fix a returnable date within which it must be returned to office by the process-server after execution.
84. The following processes may be executed by special peons—
(1) Warrant of arrest.
(2) Warrant of attachment of movables.
(3) Any process respecting which there is such a direction by the Court.
Note.—More than one peon may be deputed for the execution of any process where there is a special direction of the Court to that effect.
85. Processes received in the office, must be made over to the Nazir, if possible, on the same day on which they are filed, and in no case later than two days after their receipt.]
86. Processes made over to the Nazir for service must be returned to the issuing Court as soon as possible after return and at least one day before the date fixed.
87. When not employed in serving processes process-servers should be employed in miscellaneous work of the Courts.
Note.—No process-server shall be employed in doing clerical work for the office.
88. The attendance and deputation of peons should be entered regularly by the Nazir in the register in Form No. (R) 13.
89. (i) Whenever a process-server is entrusted with the service of a process under which he is authorized to receive money, he shall be given by the Nazir a loose form of cheque with counterfoil in Form No. (A)12C. The cheque made over to the peon shall be entered by the Nazir in the register of cheques in Form No. (R) and the peons’s signature shall be taken in column 7 of the register in token of receipt. The peon on receiving any payment under the process shall give a receipt in the cheque form supplied to him by the Nazir for the amount paid to him, and shall obtain the signature or thumb impression of the payer on the counterfoil and shall in his service-report invariably mention the number and year of the receipt granted. In the case of illiterate payers the peon shall make every endeavour to obtain the signature of a literate witness on the back of the counterfoil. The Nazir on the return of the peon shall scrutinize the counterfoil with the service-report and countersign the counterfoil. The Nazir shall record the return of the counterfoil (or of the unused form, as the case may be), in the register of cheques. If the cheque has been used the Nazir shall send the counterfoil with the service-report to the Court concerned, to be filed with the record of the case. [G.L. 4/47.]
(ii) The cheque forms issued by the Nazir during each calendar year shall bear consecutive serial numbers for the year.
(iii) All blank cheques shall be kept by the Nazir under lock and key. The total number of the cheque forms received on indent and made over to the Nazir shall be entered on each occasion on the inside of the cover of Register (R)30A, under the signature of the Judge-in-charge of the Nazarat.
(iv) Cheque forms returned unused shall not be re-issued. Such forms shall be kept by the Nazir in yearly bundles and destroyed at the end of the year following. [G.L. 2/44.]
CHAPTER III
Adjournments
90. Sufficient time should be given to litigants to enable them to take the necessary steps towards getting their cases ready for hearing, but more than one adjournment for the same step ought not generally to be required and, if it is allowed, the question of compensating the other party by means of adjournment costs should be considered. Except in difficult cases, issues should be framed on the day on which the written statement is filed or on the next day. Lengthy adjournments should not be granted for interlocutory matters such as calling for records, service of interrogatories, issue of commissions, filing of lists of witnesses and payment of costs for issuing summonses. [G.L. 10/49, G.L. 11/62, G.L. 3/63.]
91. Dates for the hearing of cases ought not to be fixed at random or automatically as a matter of form. It is a matter that should be controlled by the Presiding Officer himself and not left to the discretion of subordinates. While it is desirable that a case should be disposed of as early as possible it is no less important that care should be taken to see that the parties are not put to the
expense and inconvenience of having to attend on a date when it is manifest that the case cannot be taken up. The date for hearing should, therefore, be fixed with due regard to the state of the file, the nature of the case and the time it is likely to occupy. If the file is congested it is better to fix a distant date than to require the parties to appear, even without their witnesses, from month to month on dates on which there is no reasonable expectation that the case will be heard. In contested suits, the pleaders of the parties should be consulted whenever it is practicable to do so. It may well be that in some instances it is less hardship to detain the witnesses from day to day than to discharge them, requiring them to return after a considerable interval. In every case, however, the adjournment must be to a day certain and judicial proceeding of whatever nature shall be postponed sine die.
92. It is of the utmost importance that frequent and unnecessary postponements and attendance of witnesses should be consistently discouraged, and a District Judge should call for and scrutinise some of the records of the cases before any of his subordinates who appear, from their explanations regarding long pending cases or otherwise, to be wanting in firmness in the matter.
93. When witnesses are in attendance for any party the fact should be noted in the order-sheet. In every case adjourned for hearing or for further hearing, there shall be recorded, as part of the order of adjournment, a specific order to the witnesses who have attended but have not been examined, to attend on the day to which the case stands adjourned. It shall also be recorded that the said order has been communicated to the witnesses in attendance. [G.L. 5/54.]
94. On the day finally fixed for the hearing of a suit after adjournment, the parties shall be directed to have their witnesses in attendance; and the trial when once commenced, shall, except for good and sufficient cause (to be noted in the order-sheet) 1[subject to the proviso to Rule 1(2) of Order XVII of the Code of Civil Procedure], proceed throughout the day on which it has been opened, and from day to day, throughout each day following, until it is completed.
Note 1.—This Rule is not intended to prohibit, in the case stated, the taking up of other cases for the purpose of passing such necessary routine orders as will occupy a short time only, or the taking up of miscellaneous and Small Cause Court cases on days regularly set apart for them.
Note 2.—The above Rule applies also to Small Cause Court and Miscellaneous cases.
95. In the absence of specific direction by the Court to the contrary, the stamps on adjournment petitions should not form part of the taxed costs of the suit or proceeding.
96. Costs of adjournments ordered to be paid by a party under Order XVII, Rule 1(2), must not be diverted to purposes other than that for which they are intended, that is the recoupment to the other party of the cost which the adjournment may entail on him. Such payments must invariably be made direct by one party to the other unless the Court otherwise directs, and the receipt of the party or his pleader should be taken on the order-sheet against the order allowing such costs.
Note 1.—While the Courts have full liberty to exercise their discretion in each individual case, the High Court consider that, in the absence of special circumstances, and when the costs allowed do not exceed a few rupees, it is reasonable that the party desiring the adjournment should be prepared to compensate his opponent for the inconvenience to which he is put, and that the Court will be justified in making the adjournment conditional on the money being paid then and there.
Note 2.—Where adjournment costs have been paid into Court, under head (h) of Account Rule 607, Part X, the fact of such payment should be noted on the order-sheet by the Sarishtadar. It will thus be possible to see from the order-sheet what sum, if any, still remains unpaid. All costs of which payment has not been noted under the foregoing orders must be entered in the decree as costs of the suit.
CHAPTER IV
Hearing of suits and examination of witnesses [G.L. 7/61.]
97. Parties shall file in Court their lists of witnesses who are in attendance to give evidence on their behalf before 11.30 A.M., or in the case of morning sittings before 6.45 A.M. 1[Where a party himself wishes to appear as a witness he shall so appear before any other witness on his behalf has been examined unless the Court, for reasons to be recorded, permits him to appear as his own witness at a later stage.] The omission to file a hazri within the time fixed shall be no bar to witnesses for any party being examined if presented for examination, but nothing shall be allowed to any witness on account of his expenses for the day’s attendance if he is neither entered in the list nor actually examined.
Note.—This Rule in no way affects the obligation on the part of witnesses to attend punctually at the time for which they are summoned.
98. The following forms of oaths and affirmations are prescribed under Section 7, Act X of 1873—
FOR WITNESSES
Oath
I swear that the evidence which I shall give in this case shall be true, that I will conceal nothing, and that no part of my evidence shall be false.
So help me God.
Affirmation
I solemnly declare that the evidence which I shall give in this case shall be true, that I will conceal nothing, and that no part of my evidence shall be false.
FOR INTERPRETERS
Oath
I swear that I will well and truly interpret, translate, and explain all questions and answers, and all such matters as the Court may require me to interpret, translate, and explain.
So help me God.
Affirmation
I solemnly declare that I will well and truly interpret, translate, and explain all questions and answers, and all such matters as the Court may require me to interpret, translate or explain.
99. Christian witnesses and interpreters shall be sworn upon the New Testament. In other cases the oaths are to be administered upon such symbol or accompanied by such act as may be usual or as such witness or interpreter may acknowledge to be binding on his conscience.
100. The evidence of each witness in appealable cases shall be read over in presence of the Judge and of the witness and the Judge shall if necessary, correct the same and shall sign it.]
101. Every Presiding Judge shall in the examination of witnesses record in his own handwriting in each deposition the name of the person examined, the name of his or her father and, if a married woman, the name of her husband 2[the nationality-religion] profession and age of the witness and the village, thana and district in which the witness resides 3[and if the witness belongs to Scheduled caste or Scheduled tribe, a statement to that effect.] The entry of age shall be the Presiding Judge’s own estimate and in his own handwriting. [G.L. 13/19.]
102. Arguments should be heard immediately after the evidence closes.
CHAPTER V
Judgment and Decree
I.—JUDGMENT
103. Shorthand-typists may be employed to record judgments in civil cases provided that the Presiding Judge attaches a certificate to the effect that the judgment has been recorded at his dictation and attests each page thereof by his signature. [G.L. 2/20, G.L. 1/34, G.L. 2/40, G.L. 3/41, G.L. 3/42, G.L. 4/49, G.L. 2/ 53, G.L. 5/55, G.L. 3/60, G.L. 9/65.]
Note.—When a Presiding Judge uses a type-writing machine himself a certificate must be given that this has been done and each page of the record so made shall be attested by his signature.
104. (1) Long judgments must not be recorded on the order-sheet.
(2) Judgments in ex-parte cases should state what reliefs in the plaint are granted.
(3) Judgments should state specifically whether any or what interest (including interest pendente lite) is allowed.
(4) The last para of judgment shall state in precise term the relief which has been granted by such judgment.
(5) If the judgment is not pronounced within 15 days from the date on which the hearing of the case was concluded, the Court shall record the reasons for such delay in the order-sheet. If the judgment is not delivered even within 30 days from the date on which the hearing of the case was concluded the Court shall record the reasons for such further delay in the order sheet and shall also furnish an explanation for the delay alongwith quarterly statement submitted to the High Court.
II.—DECREE
105. Decrees of District and Subordinate Judges should ordinarily be drawn up in English. Decrees of Munsifs should also be drawn up in English wherever possible. [G.L. 13/49.]
106. Decrees should be drawn up in such a manner that, in order to the understanding and execution of them, it may not be necessary to refer to any other document or paper whatever. [G.L. 3/29, G.L. 2/33, G.L. 1/45.]
Note 1.—Petitions of compromise, maps prepared by the direction of or accepted by the Court and other similar papers necessary to illustrate the terms of the order passed shall be embodied in the decree. [G.L. 3/55.]
Note 2.—The particulars of the claim and the date of institution of the suit shall appear in the decree. [G.L. 1/57.]
Note 3.—Where different valuations are put for purposes of jurisdiction and for payment of Court-fees, both values should be stated in the decree. The amount claimed as mesne profits should be separately shown. In the case of an appellate decree the valuation as given in the decree of the first Court should also be embodied. [G.L. 6/44.]
Note 4.—In drawing up decrees interest, if any, allowed by the Court should be clearly shown and also the period for which and the rate at which interest has been allowed.
106-A. The decree should be drawn up as expeditiously as possible and in any case, within 15 days from the date on which the judgment is pronounced, but where the decree is not drawn up within the time aforesaid, the Court shall if requested so to do by a party desirous of appealing against the decree, certify that the decree has not been drawn up and indicate in the certificate the reasons for the delay as required by Order XX, Rule 6A.
107. Whenever an address has been filed for service by a party under Order VII, Rules 19 and 22, or Order VIII, Rules 11 and 12 of the First Schedule to the Code of Civil Procedure, such address shall be entered in the decree or formal order instead of the address given in the plaint or petition. The following note shall be made in the decree or formal order below the names and addresses of the parties and the note shall be signed by the clerk by whom the decree or formal order is drawn up—
The addresses given above are the addresses for service filed by the parties with the exception of ………………………………………………… who did not appear or omitted to file their addresses.
108. In drawing up decrees costs are to be very carefully calculated. Where “proportionate costs” are allowed such costs shall bear the same proportion to the total costs as the successful part of the claim bears to the total claim. When “corresponding costs” or “costs according to success” are decreed, the assessment is to be made as if the suit had been originally brought at an amount representing the value of the successful part of the claim.
108-A. Without prejudice to the generality of the provisions of the Code of Civil Procedure relating to cost, costs in respect of items specified in Order XXA, Rule 1, C.P.C. shall form part of the costs of the case unless otherwise directed by the Court.
109. Decrees shall be prepared under the supervision of the Sarishtadar of the Court who shall initial the same. [G.L. 4/17.]
110. As soon a decree has been drawn up the Court shall cause a notice to be exhibited on the notice board stating, that such decree has been drawn up and that it may be perused by the parties or their pleaders within three days from the date of posting the notice. 1[The notice shall remain exhibited during this period. At the end of every quarter the notices for the previous quarter will be destroyed.]
111. When such notice has been posted any party or his pleader may before the expiry of the time prescribed in the last preceding Rule peruse the decree and either sign it or if it is incorrectly prepared bring the matter to the notice of the Court.
112. If no such objection is made on or before the date specified in the notice the Judge shall sign the decree giving the date of his signature.
113. Decrees or formal orders need not be drawn up in the case of
(i) Interlocutory orders made during the course of a suit or execution proceeding.
(ii) Final orders such as those under Order IX, Rules 9 and 13, Order XXI, Rules 2, 58, 91, 92, 99, 100, 101, Order XXIII, Rule 1, Order XLI, Rules 19,21,23, Order XLVII, Rule 1, and an order rejecting a plaint; provided where any such order is capable of execution or affects execution by reason of cost to be paid by one party to the other such costs may be shown in the order-sheet with a short note showing the result of the case and the name of the party by whom such costs are to be paid as well as that of the party who is to receive the same so that the latter, if desirous of executing the order may not be compelled to take a copy of the judgment.
Comments & Case Law
[Meaning of the word “decree”. Maxim “verbia legis non-recedendum est”. Rule 113 is of mandatory nature. No excuse for not preparing the decree in a case where appeal was dismissed as time-barred. As the First Appeal under Section 96 or Second Appeal under Section 100, CPC was preferred against a decree, the preparation of decree was an essential duty of the office of D.J. Held, office of D.J. was wholly unjustified in saying that no decree was prepared, that order was set aside. D.J. was directed to direct the official concerned to prepare the decree and to hand over a certified copy of it to appellants. Ram Ashish Sah vs. Anil Kumar, 1996(1) BLJ 139 : 1996(2) BLJR 937.]
114. In suits for money including suits upon mortgage, in suits for specific movables, in suits for accounts and in suits for arrears of rent no decrees need be drawn up, if—
(i) neither party has to recover anything unless the Judge otherwise directs;
(ii) the claim is satisfied after judgment but before the decree is drawn up.
115. A list of cases in which succession certificates, probates or letters of administration have been prepared shall be exhibited on the notice board in the language of the Court. The certificates, probates or letters of administration shall be delivered to the parties or the pleaders concerned in open Court on the third day after the publication of the list.
CHAPTER VI
Execution of Decrees
I.—GENERAL
116. Execution cases should receive as much attention as original suits and appeals. The Presiding Officer should see that the processes of the Court are not abused. All cases of fraud, negligence, suppression of processes and resistance to execution should be carefully scrutinized by him with a view to his taking such steps as may be necessary to prevent their recurrence. [G.L. 1/20, G.L. 1/42.]
117. The application for execution shall ordinarily be put up before the Presiding Officer for orders on the day following the day of its presentation, with all defects, if there are any, noted thereon and if a searching fee of twenty-five Paise [vide Rule 408 (2), post] has been paid by means of a Court-fee stamp affixed to the application, information available in the office which will enable the defects to be remedied shall also be noted on the back of the application.
118. The attention of Courts is drawn to the provisions contained in Order XXI, Rule 1, Code of Civil Procedure 1[* * *]. It has now been made optional for the judgment-debtor to serve notice through Court or by registered post direct. No challan tendering the money should, therefore, be rejected by reason only of not being accompanied by forms of notice and process-fees. [G.L. 5/21.]
119. Judgment-debtors desirous of sending decretal dues to the Court by postal money-order must use the green money-order form specially approved by the High Court for the purpose. They must fill in all the particulars indicated in the coupon of the money-order form. If any particular be not entered, the money-order clerk or sub or branch post-master will refuse the money-order. [G.L. 2/51.] Payment under such money-orders will be made by book transfer. The provisions in Rules 11–23 in Parts II and III, Chapter XVII of the Board’s Miscellaneous Rules, 1939; and of the Post Office Rules in respect of payment and adjustment of accounts of Government money-orders relating to the procedure to be followed in the Post Office and in the Treasury or Sub-Treasury in regard to the payment of money-orders by book transfer should, so far as applicable, be followed in dealing with such money-orders. In the offices of the Court and the Treasury or Subtreasury
concerned, the following procedure shall be observed—
(a) The Treasury or Sub-treasury will send the money-order coupon and acknowledgment to the Court with its daily advice list in High Court Form No. (A) 9 and advice list of money-orders in form 4—G.M.O. On receipt thereof from the Treasury or Sub-Treasury the Accountant of the Civil Court will at once enter the amount in the Deposit Register and fill up columns 1, 2, 4 and 6 and enter “by money-order” in column 3 and in column 5 only, the suit or case number, leaving other particulars to be filled in later. He will then send the money-order coupon and acknowledgment to the Chief Ministerial Officer.
(b) The Chief Ministerial Officer will scrutinise the tender in the manner laid down in Rule 613, Part X, Chapter I. If he finds the tender to be in order, he will sign the acknowledgment portion of the money-order form after obtaining orders of the Presiding Officer, the orders being written on the order-sheet and send it immediately to the post office for despatch to the remitter. The money-order coupon with his endorsement of correctness will be sent to the Accountant who will enter the remaining particulars in column 5 of the Deposit Register, prepare a money-order credit slip in the form prescribed below for his own record and return the money-order coupon with an endorsement of compliance to the Chief Ministerial Officer to be kept with the record. (c) If, on the other hand, the tender is found to be defective, the Chief Ministerial Officer will, under the orders of the Presiding Officer, make a note on the acknowledgment portion of the defects found stating that the amount will be transferred to the credit of the decree-holder on the date on which information to cure defects is received, by post or otherwise and will then send the acknowledgment to the post office, and retain the coupon with the record. When the information necessary to cure the defect is received, the Chief Ministerial Officer should obtain the orders of the Presiding Officer on the order-sheet specifying the person to whose credit the amount is to be entered in the Deposit Register and should then send the coupon with necessary corrections to the Accountant for action as in sub-clause
(b). If the particulars supplied be found to be still incomplete, the Court will not take any action nor enter into correspondence about them.
(d) For administrative purposes the deposits shall bear date, the date on which the deposit was made into the Treasury. Money-Order Credit Slip
1. Name of the Court passing the decree or order.
2. Number of the suit or case and date of judicial decree or order (if any) under which the amount is tendered.
3. Name, father’s name and address of person or persons on whose behalf the money is tendered.
4. Name, father’s name and address of person or persons to whose credit the amount is to be placed in the Court’s Books.
5. Amount tendered.
6. Deposit number and date in the Deposit Register.
120. The temporary deputation of the Presiding Officer of a Court to some other station does not necessarily mean an abolition of his Court and the Judicial Officer placed incharge thereof during such absence becomes, subject to the question of pecuniary jurisdiction and special powers, if any, the Presiding Officer also of that Court in addition to his being the Presiding Officer of his own Court. Thus all decrees passed by the latter in the cases belonging to the file of the first named Court may be executed by that Court presided over by the officer sent on deputation when he returns.
II.—ATTACHMENT
121. An officer deputed to attach movable property should be furnished with a certificate stating the period for which the fee required under Part V, Chapter I, Rule 397, has been paid, and he shall give notice thereof to the judgment-debtor or other person at whose instance he remains in possession at the place of attachment and if such person shall desire that the property shall remain at that place for a longer period, he shall be bound to pay into Court in advance the further fee as required by the second paragraph of Note 1 to that Rule. [G.L. 4/30.]
122. A register should be maintained by the Nazir in the prescribed Form No. (R) 13A showing the securities, jewellery and other valuable articles in his custody. A separate register should also be maintained in Form No. (R) 13B, for ordinary movables and live-stock attached in execution cases.
III.—SALE
123. Every application for an order for sale shall in addition to the particulars required by Order XXI, Rule 66, clause (3), state everything known or believed by the person verifying the same to exist which relates to the nature or affects the value of the property and shall further state that he is not possessed of any further information regarding it. [G.L. 1/26, G.L. 3/81.]
124. Every application for the sale of immovable property shall, in addition to other particulars required, state the area of the land involved.
125. If, after the sale proclamation under Order XXI, Rule 66, has been published, any written communication regarding the property to be sold which it considers material for purchasers to know is received by the Court, the Court shall cause the same to be read out when the property is put up for sale.
126. The selection of local newspapers in which sale proclamation may be published under Order XXI, Rule 67, rests with the District Judge. The name or names of the papers selected shall be notified to the public and to the Subordinate Courts.
127. Subject to the proviso in Order XXI, Rule 43, sales of property in execution of decrees in the several Courts of each district (not being Courts of Small Causes) shall be held and commenced at a certain day of each month to be fixed by the District Judge.
128. All property, except property of the nature specified in the proviso to Order XXI, Rule 43, of the Code or Rule 132 of this Chapter, to be sold at each place of sale, shall be entered in lists for each place, the lists of movable and immovable properties being distinct. The lists shall be so prepared as to contain in regular order each item of property to be sold in execution of the decrees of each Court severally. Such lists shall be stuck up in the Courts where the sales are to be held in the case of movables not less than seven days, and in the case of immovables not less than 15 days, before the date fixed for the commencement of each set of sales.
129. At the stated hour upon each fixed date the sales shall be commenced, and shall be carried on in the order stated in the lists, above mentioned. No sale shall continue after sunset; but the sales shall be held from day to day, except when the Court is closed and until the lists are finished : Provided that this Rule shall not interfere with the adjournment of any particular sale according to law. (See Order XXI, Rule 69.)
130. The same days shall not ordinarily be fixed for the sale of movable and immovable property.
131. Except as regards property of the kind mentioned in the next succeeding Rule, sales in execution of decrees of any Court shall be conducted in that Court by the Nazir or other officer of the Court in the immediate presence of the Presiding Officer. Where this is not possible the sales may be held in another place within the Court premises to be selected by the Presiding Officer. [G.L. 5/27.]
132. All sales of live stock, agricultural produce, articles of local manufacture, and of other things commonly sold at country markets shall, unless the Court otherwise directs, be held at such market in the neighbourhood of the place where the goods were attached, as may appear likely to be for the greatest advantage of the debtor, regard being had to the prospect of good prices and to the saving of expenses in conveyance and carriage.
133. Whenever guns or other arms in respect of which licenses have to be taken by purchasers under the [Indian Arms Act, XI of 1878]1, are sold by public auction in execution of decrees, the Court directing the sale, shall give due notice to the Magistrate of the district of the names and addresses of the purchasers and of the time and place of the intended delivery to the purchasers of such arms, so that proper steps may be taken to enforce the requirements of the Indian Arms Act]1.
134. Whenever the Civil Courts have occasion to sell, in execution of a decree or other order, any house or other building situated within the limits of a military cantonment or station, they shall, on confirming the sale forward a copy of the sale-certificate to the Commanding Officer of such cantonment or station, for his information and for record in the Brigade or other proper office.
135. As soon as sale is made absolute and the auction-purchaser has filed the necessary sale certificate stamp under Order XXI, Rule 94, of the Civil Procedure Code, a sale certificate shall be prepared in the prescribed form and the fact shall be noted in the order sheet. The sale certificate shall be made ready within 21 days of the date of the filing of the sale certificate stamp. In addition to the original certificate, two more copies thereof shall be prepared, one of which shall be kept with the record and the other despatched to the Registration office as soon as
the certificate is prepared. On each copy the amount of stamp duty paid on the original certificate under Article 18 of Schedule I of the Indian Stamp Act, 1899, shall be noted. Under Article 24 (a) of the same Schedule such copies do not themselves require to be stamped. The original certificate if undelivered should be kept with others in bundles of a convenient size in the custody of the Sarishtadar and destroyed in the presence of Registrar and if there is no Registrar, in the presence of the Presiding Officer concerned after 1[one year] from the date of confirmation of the sale. [G.L. 7/41 read with H.C. letter no. 2891–92, dated 2nd May, 1952.]
Note.—When a sale certificate is ready, notice thereof should be exhibited on the notice board in form no. (M) 17-A which shall remain pasted for a period of one week. At the end of every quarter the notices for the previous quarter will be destroyed.
136. The following particulars should be inserted in the sale certificates—
(1) The “addition” (as defined in Section 2 of the Indian Registration Act, 1908), of the person who is declared to be the purchaser;
(2) Particulars sufficient to identify the property, as required by Section 22 (2) of the same Act;
(3) The name of each registration sub-district in which any part of the property is situate;
(4) The date on which the sale became absolute.
137. In the case of sales under Sections 164 and 165 of the Bihar Tenancy Act, 1885, the certificate of sale should state that the tenure or holding, and not the right, title and interest of the judgment debtor therein, has been sold.
IV.—ARREST, IMPRISONMENT AND RELEASE
138. As inconvenience and danger are likely to arise from the arrest under civil process of Railway servants, unless such previous notice be given as may enable measures to be taken to provide for the proper performance of their duties, all warrants issued by any Civil Court for the arrest of Railway servants should be entrusted for execution to a selected peon, who, if he finds on proceeding to execute the warrant that the immediate arrest of the Railway servant would occasion risk or inconvenience, shall make all arrangements necessary to prevent escape, and defer removing the person arrested from his post for at least twenty-fours hours, giving immediate notice of the arrest to the nearest Station-Master.
139. Attention is invited to Article 181 of the Indian Articles of War Act (V of 1869), which exempts persons belonging to the Army from arrest for debt.
140. Warrants for release should not be despatched by a Court after sunset, or, if so despatched, should be endorsed with instructions for release as early as possible next morning.
Note.—The above provisions apply to witnesses arrested under a warrant and detained in the Civil prison.
V.—EXECUTION BY ANOTHER COURT
141. The attention of Courts is drawn to the provisions of Section 41 of Civil Procedure Code. There should be no unnecessary delay in carrying out the directions contained in that section. [H.C. Memo No. 8917–32, dated 17th April, 1962.]
142. Civil Courts should not send decrees for execution to the French Courts; but should direct the parties concerned to apply themselves to Courts.
CHAPTER VII
Commissions
I.—GENERAL
143. Courts must issue commissions with promptitude and District Judge should at the time of their periodical inspections satisfy themselves that this is done.
144. Before issuing a commission the Court shall—
(a) call on the party at whose instance the commission is issued to supply an abstract of the pleadings and issues for the use of the Commissioner;
(b) after consulting the parties, make an estimate of the probable duration of the examination of each witness. When the estimate is exceeded, the Court should enquire into the cause of delay and disallow any charges of the Commissioner which it finds to be unreasonable.
145. In issuing a commission the Court shall fix a date allowing sufficient time for its return after execution. It must be clearly understood that the commission is to be returned by the date fixed.
146. If for any reason the Commissioner finds that the date fixed is likely to be exceeded, he should obtain an extension of time before proceeding with the execution of the commission or its further execution as the case may be.
II.—COMMISSIONS FOR EXAMINATION OF WITNESSES
147. If a commission is to issue to a pleader the commission shall be transmitted together with the fee, to the Court in which the Commissioner is practising as a pleader, and, when such Court is the High Court, to the Registrar.
Note 1.—Commissions should not be addressed to the Judicial Commissioner of Oudh. They should be addressed either to the nearest local Court, if known, or to the Court of the Deputy Commissioner which is, in Oudh, the District Court, or, in Lucknow, to that of the Civil Judge.
Note 2.—Fees transmitted to the Registrar shall be remitted by money-order payable to the Accountant of the Registrar’s Office.
148. The Court or officer receiving a commission issued to a pleader shall immediately deliver it to him unless he refuses to act.
149. All commissions for the examination of witnesses at Hyderabad should be addressed to the Chief Secretary, Hyderabad Government, Hyderabad (Deccan) and all remittances sent with such commissions should be made payable to the Chief Secretary, Hyderabad Government, Hyderabad, without giving the name of the gentleman holding the appointment.
150. Commissions for examination of witnesses residing at Secunderabad (Hussen Sagar) or at Bolaram (Alwal) should be addressed to the Cantonment Magistrate Secunderabad, and the Superintendent of Police, Bolaram respectively; and remittances in such cases should be made payable to the officer to whom the commission is addressed.
151. Distant dates should be fixed for the return of commissions sent to these places.
152. When a Court in India issues a commission, or a letter of request under Section 77, Code of Civil Procedure, for the examination of witnesses in England, the High Court in England will itself appoint an examiner to take the evidence, if application be made to it for the purpose. But the High Court in England cannot act in any way unless put in motion by a proper application; therefore, in every case in which it is desired to obtain the appointment of an examiner by the High Court in England the parties interested must instruct a solicitor to apply to the High Court in England to make the necessary orders. The Court in India shall for this purpose make over the commission or letter of request in Form No. 8 of Appendix H to the First Schedule of the Code of Civil procedure, which should be addressed to ‘The Supreme Court of Judicature’, to the interested party, whose duty it is to take all further necessary steps under Section 1 of the Evidence by Commission Act, 1859 (22 Victoria, cap. 20) and the Rules framed under Section 6 of that Statute [(vide) Order 37, Rules 54 to 58, of the Rules of the Supreme Court, 1883—Annual Practice, 1935, pages 681–684].
153. (a) Letters of Request issued by a Court in India for the examination of witnesses in foreign countries should be forwarded to Government for transmission through the regular channel. Such Letters of Request must be issued in English, and must be accompanied by a list of interrogatories, in English, to be put to the witness, and also by a translation, in the language of the Court in which it will be executed, of the Letter of Request itself, of the interrogatories and of any other documents which accompany the letter. In cases in which the parties on both sides agree to be represented at the examination of the witness in the Foreign Court, the Court issuing the Letter of Request may, if it thinks fit, ask that the agent of the parties be permitted to put such further questions to the witness in examination and cross-examination as they may be advised.
(b) When issuing such Letter of Request, Courts in India should observe the law in force in different countries affecting the execution of commissions issuing out of the English Courts for the examination of witnesses abroad.
154. A Commissioner for examination of a witness shall ordinarily give previous notice of the time and place of such examination to the witnesses and to the parties or their pleaders and it shall be their duty to attend at such time and place. In fixing the time and place the Commissioner shall have due regard for the convenience of the witnesses particularly in the case of those whose attendance is ordinarily excused, such as, pardanashin ladies, persons unable to be removed from their houses owing to old age, sickness, or other bodily infirmity, or persons of rank exempted by an order under Section 133, Civil Procedure Code, from personal attendance in Court. [G.L. 7/23]
III.—COMMISSIONS FOR LOCAL INVESTIGATIONS AND TO EXAMINE ACCOUNTS
155. The responsibility of ordering an inquiry under Order XXVI, Rule 9 of the Code of Civil Procedure rests entirely with the Court before which the suit is pending. Such Court may order such inquiry when it deems a local investigation to be necessary or proper for the purpose of elucidating the matters in dispute, or of ascertaining the amount of any mesne profits or damages or annual net profits. The Court is, therefore, to consider, when it is moved to order any such inquiry, whether the nature of the case calls for that particular mode of inquiry, whether the application has been made at a proper stage of the proceedings, whether the importance of the case warrants that expense being imposed upon the parties, and whether such inquiry may not be attended with a delay which will counterbalance the advantage to be derived from it.
156. When the commission is for a local inquiry a proceeding in Form No. (J) 27 or, where it is more suitable, in Form No. (J) 28 shall be drawn up giving the points which require elucidation or ascertainment in that particular way, leaving to be substantiated by the parties by evidence at the trial those points which conveniently can ought to be so substantiated. A copy of such proceeding shall be forwarded to the Commissioner.
157. When in any suit or proceeding a local investigation for any of the purposes specified in Order XXVI, Rules 9 and 13, Civil Procedure Code, or any other local investigation under the said Code, requiring knowledge of surveying for the purpose of effecting a delivery of possession, or for any other purpose is deemed necessary, the Court shall before issuing a commission apply to the
District Judge for his instructions regarding the particular person whose services are available for that duty and shall issue a commission in accordance with his nomination. The application shall contain a statement of the nature of the work, the value of the suit or subject-matter, the time which it is estimated the commission will take to execute and the cost including proposed fee (which should be inclusive wherever possible) and travelling allowance, if any.
158. When a commission, order or writ, issued by a Civil Court under the Code of Civil Procedure, 1908, is of such a nature as to require that the person executing it should have some knowledge of surveying, it should, so far as possible, be issued only to a person whose name is entered in a list to be maintained by each District Judge or persons qualified to execute such Commissions. The qualifications for entry in this list shall be as follows [G.L. 1/30.]:—
(i) the holding of a certificate of a proficiency in surveying granted in accordance with the Rules framed by the Government of Bihar and promulgated with the Bihar Government notification no. B/PSE-01/ 56—758-J., dated the 10th February, 1956, published at page 673 in Part II of the Bihar Gazette, dated the 22nd February, 1956 or in accordance with the Rules promulgated with Bengal Government Resolution No. 2047-J.D., dated the 9th October, 1901 and No. 2724- J.D., dated the 24th September, 1904, which were published in the issues of the Calcutta Gazette of the 16th October, 1901, and 28th September, 1904, respectively and notification no. 4962-J., dated the 24th June, 1922, republished at page 918 of Part II of the Bihar and Orissa Gazette, dated the 6th September, 1922; as subsequently amended by Bengal Government notification no. 1382-J., dated the 7th February, 1930, republished at page 62 of Part III of the Bihar and Orissa Gazette, dated the 12th March, 1930; or in accordance with the Rules promulgated in the Bihar and Orissa Government notification no. 4783-J.R., dated the 26th October, 1934, published in Part II of the
Bihar and Orissa Gazette, dated the 7th November, 1934, or in accordance with the Rules promulgated in the Bihar Government notification no. 2088-J., dated the 27th July, 1938, published at page 1177 in Part II of the Bihar Gazette, dated the 3rd August 1938; or in accordance with the Rules promulgated in the Bihar Government notification no. 1775-J., dated the 19th September, 1942, published at page 762 in Part II of the Bihar Gazette, dated the 23rd September, 1942, and subsequently amended by the Bihar Government notification no. 902-J., dated the 20th February, 1951, published at page 473 in Part II of the Bihar Gazette, dated the 7th March, 1951;
(ii) the possession of an equivalent or higher qualification. This shall include the passing of the following examinations; Bachelor of Civil Engineering; Intermediate Civil Engineering; the examination for Overseers of the Public Works Department (but not that for suboverseers); Subordinate Engineer’s Examination;
(iii) the satisfactory execution of survey commissions for the Civil Courts in the judgeship during a period of not less than ten years before the 1st December, 1934 :
Provided that a Civil Court is not precluded from issuing a commission to salaried Amins in judgeships in which they still exist. [H.C. letter no. 3481–96, dated 28th March, 1966.]
As between persons included in the aforesaid list, preference should ordinarily by given to those who are pleaders, except in those special cases in which an expert knowledge of survey may be more important than a knowledge of law.
159. Whenever transmission by post is necessary for the issue of a commission whether to a Court or to a pleader, the papers are to be sent and returned by registered post and the cost of doing this should be realised from the parties.
160. The District Judge should keep a careful watch upon the work of each Commissioner included in the list maintained under Rule 158 and a record of the work of each should be kept by him in a form similar to that of a service book. When issuing his nomination under Rule 157 the District Judge should invariably direct the Court concerned to submit a report indicating the fee paid and stating whether the commission in question was executed satisfactorily and punctually. The report should be submitted by the Court immediately after the fee has been paid to the Commissioner. If, after considering such reports and making such enquiries as he may deem necessary, the District Judge is satisfied that any Commissioner is incompetent or is doing unsatisfactory work, he shall strike off the name of the Commissioner from the list. Ordinarily, payment should be made to the Commissioner after the hearing of objections to his report, or, if no objection is filed
to his report, after the expiry of the period fixed for filing the objection. The District Judge should see that only reasonable remuneration is paid. [GL, 2/17]
161. When the work of a Commissioner is completed he shall submit, with the report, his diary showing how he was occupied during the enquiry.
CHAPTER VIII
Suits by or against Government or public officers
162. All suits in Civil Courts, for the prosecution or defence of which persons in the service of Government, officers in the army, or soldiers have obtained leave of absence, shall be disposed of by such Courts as soon as they are ripe for hearing, irrespective of the order in which they may stand in the register and as speedily as may be consistent with the due administration of justice.
163. The above orders, under which officers and soldiers of the active army can claim priority of hearing in civil suits, are extended to the Army Reserves.
164. In every case in which the Government Pleader appears for the Government, whether for the Government as a party on its own account, or for the Government as undertaking, under the provisions of Order XXVII, Rule 8 of the Code of Civil Procedure, the defence of a suit against an officer of the Government, he shall, in lieu of a vakalatnama, file a memorandum on unstamped paper signed by him, and stating on whose behalf he appears. Such memorandum shall be, as nearly as may be, in the terms of the following form:—
Title of the suit, etc.
I, A, B, Government Pleader, appear on behalf of the Union of India (or the State of Bihar or as the case may be), Respondent (or etc.), in the suit; or, on behalf of the State which, under Order XXVII, Rule 8 of the Code of Civil Procedure, has undertaken the defence of the suit, Respondent (or, etc.) in the suit.
Note.—In other cases the Government Pleader shall file a vakalatnama in the same manner as any other pleader.
165. No Civil Judicial authority shall pay out money to Government Pleaders or persons acting on behalf of Government in any suit, unless they produce an authority in writing from the Collector or other officer representing Government, directing them to apply to the Court for such money.
CHAPTER IX
Appointment of Receivers
166. When any Civil Court commits land paying revenue to Government to the management of a Receiver appointed under Order XL, Rule 1 of the Code of Civil Procedure, information of the fact should always be given to the Collector without delay.
167. No Civil Court officer should be appointed Receiver except with the sanction of the District Judge, which should only be given in petty cases where the receivership cannot interfere with the officer’s ordinary work, and in no case shall remuneration be given to an officer so appointed.
CHAPTER IXA
Ex-parte injunctions
The following Rules, though they do not profess to be exhaustive or fetter the Court’s discretion, are recommended for use by the subordinate Courts:—
168. The powers under Order XXXIX, Rule 3 of the Code of Civil Procedure, to issue an ex-parte injunction should be exercised with the greatest care. The issue of an injunction on the application of one party and without previously giving to the person affected by it an opportunity of contesting the propriety of its issuing, is a deviation from the ordinary course of justice, which nothing but the existence of imminent danger to property if it be not granted, can justify. The Court should, if possible, always require notice, however short, to be given to the opposite party.
169. An application for an ex-parte injunction should not ordinarily be granted unless it is made promptly.
170. Every application for an injunction must be supported by affidavit. All material facts must be fully and fairly stated to the Court and there must be no concealment or misrepresentation of any material fact. 1[If any time it appears to the Court that an ex-parte injunction was obtained by such misstatement or suppression of material facts as to lead the Court to grant the injunction, the
injunction shall be dissolved unless for the reasons to be recorded Court considers that it is not necessary so to do in the interest of justice.] The plaintiff cannot be heard to say that he was not aware of the importance of the facts so mis-stated or concealed or that he had forgotten them.
171. An affidavit in support of an ex-parte injunction should always state the precise time at which the plaintiff or the person acting for him became aware of the threatened injury. It must also show either that notice to the defendant would be mischievous or that the matter is so urgent that the injury threatened would, if notice were served on the defendant, be experienced before the injunction could be obtained. The case of irremedial mischief impending must be made out. Mere allegation of irreparable injury will not be sufficient. The facts on which the allegations are founded must be set forth clearly and specifically in the affidavit.
172. The notice to be given should be for the shortest possible time. The Presiding Judge must take particular care to arrange for prompt service of 2[a copy of the plaint, a copy of the application for injunction together with copy of affidavit filed in support of the application and copies of documents on which the applicant relies] upon the opposite party and to bring the matter to hearing as early as possible.
173. If the opposite party evades service of notice or makes unreasonable delay in showing cause, the Court may find it necessary to make an appropriate order of injunction. On the other hand an interim injunction should be dissolved if the plaintiff makes wilful default in depositing the process fee, causing the service of notice on the opposite party or otherwise prosecuting the matter with diligence.
174. When an ex-parte injunction has been-granted the Court shall make an endeavour to finally dispose of the application within thirty days from the date, on which the ex-parte injunction was granted, and where it is unable so to do it shall record its reasons for such inability.]
175. When an interlocutory injunction or an interim restrain order applied for, the Court may require the plaintiff, as a condition of interference in his favour to enter into an undertaking to abide by any order of the Court may make as to damages, or in some cases it may require the defendant to enter into terms as a condition of withholding an interlocutory injunction.
176. When an injunction is granted the greatest care should be taken to state exactly and very clearly what it permits and what it prohibits. When a series of acts of different kinds are sought to be restrained, the order granting an ex-parte injunction should embrace only the acts regarding which such an order is really needed.
177. Dissolution of an ex-parte injunction on the ground of mis-statement or concealment of material facts will not operate as a bar to a fresh application for another injunction on the merits.
CHAPTER X
Appeals
178. All memoranda of appeal should, when practicable, be in English and type-written.
179. Every memorandum of appeal shall clearly specify the relief sought and state the value of the appeal.
Note.—Valuations for purposes of jurisdiction and for payment of Court-fee, shall be separately shown.
180. Every memorandum of appeal when signed and presented by a pleader shall, at its foot or when presented by the party in person or by his recognized agent and a pleader is afterwards retained by such party, on a separate sheet of paper which shall be annexed to such memorandum of appeal, contain the following statement to be subscribed by the pleader before he is, as the case may be, allowed to present it or to appear to support the appeal [G.L. 3/46.]— “I certify that I have examined the record and that in my opinion the grounds of appeal are good and I undertake to appear and support them before the Appellate Court.”
181. All memoranda of appeal must be registered on presentation irrespective of any question as to their possible rejection.
182. When two or more cases are tried together and decided by the same judgment and two or more appeals are filed against such judgment, whether by the same or different appellants, the appellate Court may in its discretion, and if satisfied that the questions for decision are analogous in each appeal, dispense with the production of more than one copy of the judgment.
183. The date for hearing an appeal shall be fixed so as to allow sufficient time to the respondent to file a cross-objection, if any, under Order XLI, Rule 22, Civil Procedure Code.
184. The provisions of Rules 178, 179 and 180 shall, as far as they may be applicable, apply to the memorandum of cross-objection.
CHAPTER XI
Rules framed by the High Court for the guidance of guardians-ad-litem of minor defendants and minor respondents
I.—ORIGINAL SUITS
185. (1) Where there are both major and minor defendants and there is no appearance, the guardian with a view to obtain instructions in the case should communicate with the natural guardian of the minor and ordinarily with the major defendants in the case by registered reply post-card in which the subject-matter of the suit should be briefly stated. [G.L. 4/31, G.L. 3/49.]
(2) Where the sole defendant is a minor, the aforesaid communication should be addressed to his natural guardian, and in any case where the interests of the minor require, may be addressed to persons other than those actually parties in the suit.
(3) If no response is received to the communication mentioned in sub-Rules (1) and (2) or if the response is not helpful and the guardian is unable to have a personal interview with the defendants or their agents, he should report the fact to the Court with a statement of the circumstances and apply for leave to go to the locality for necessary enquiry.
(4) The guardian’s report on any local enquiry made with the permission of the Court should contain the following particulars—
(a) Date and hour of departure for the locality.
(b) Mode of journey, viz., whether by rail or steamer or boat or road,
(c) Date and hour of reaching the locality.
(d) The names of persons who identify the minor.
(e) Age of the minor as stated by the minor’s people and as estimated by the guardian.
(f) The names and residences of persons in whose presence the enquiry is held.
(g) Whether the minor has any defence.
(h) If there is defence what is the nature of it and what benefit is expected to accrue to the minor out of the defence.
(i) Whether the minor or his people are able and prepared to meet the costs of the defence, and if not, what is the probable amount of such costs.
(j) If no defence is filed, the reasons thereof together with the statements of the persons on whose report the decision is arrived at.
(5) In case the Court refuses to grant leave for local enquiry, the guardian will proceed according to the instructions of the Court given in each case.
(6) Where in response to the communication mentioned in sub-Rule (2) or otherwise, the minor or his natural guardian, or any other persons on his behalf, come and see the guardian, his subsequent proceedings and report should conform as far as applicable to sub-Rule (4) (g to j).
(7) The guardian’s report mentioned in sub-rules (4) and (6) may contain such other facts as he may think necessary to bring to the notice of the Court.
(8) In petty rent suits and money suits the Court shall not ordinarily grant leave to the guardian-ad-litem to go to the locality for enquiry.
II.—APPEALS
(9) The foregoing Rules will apply mutatis mutandis to the appointment of guardians of minor respondents subject to the following Rules—
(10) If no response is made to the registered post-card mentioned in sub-Rule (1), the guardian should, before applying for leave to go to the locality, similarly communicate with the pleader who conducted the case in the lower Court on behalf of the minor or his predecessor-in-interest, and ascertain from him, if possible, the probable cause of the non-appearance of the minor, reporting the result to the Court.
(11) If the step taken under the last preceding sub-Rule does not elicit any satisfactory results, the guardian should consult the record and submit a report to the Court in which he should state whether in his opinion the judgment and decree of the lower Court can be supported and if such opinion is in the affirmative, why he should not argue the case himself before the Court. A written note on the merits of the case should accompany the report.
(12) An amount estimated to cover the actual travelling and halting expenses of the guardian, not exceeding the scale laid down by Rule 186 will be required by the Court to be deposited by the party at whose instance the guardian is appointed before an order is passed for a local enquiry mentioned in sub-Rule (3). The amount so deposited or so much of it as may be found due will be paid out to the guardian when he has submitted his report mentioned in sub-Rule (4).
(13) The actual postal charges for communication mentioned in sub-Rules (1), (2) and (10) will be deposited and paid to the guardian along with the fee prescribed by the High Court.
TRAVELLING ALLOWANCE
186. The rate of travelling allowance to be allowed to the guardian, both in the case of an original suit and of an appeal, shall be that admissible to a second class officer under the Bihar Travelling Allowance Rules with a daily allowance of Rs. 3 for the days for which he may be away from headquarters.
PART II
Special Rules relating to Acts other than the Code of Civil Procedure and the Court-fees Act
CHAPTER I
The Bengal Wills and Intestacy Regulation, 1799 (Bengal Regulation V of 1799)
187. The notice under Section 7 of Regulation V of 1799 calling for claimants to the personal property of intestates should be issued as soon as the property of the intestate is in the custody of the Magistrate, as delay in such matters is not advisable.
Note 1.—In dealing with property belonging to the persons of Dutch and other nationalities who may die intestate within the province the Consular representative should, besides a notice of death, be given an opportunity of enquiring whether there are in fact any legal heirs or not and whether special arrangements should not be made with regard to part of the property where such property is of any intrinsic value or of such a character that it would be prized by his relatives and friends.
Note 2.—Disposal of estates of deceased Nepalese subjects,—
(a) Officers wishing to dispose of the estate of a deceased Nepalese subject, should send to the Resident in Nepal, at one and the same time, a statement indicating the value of the estate in full, together with a list giving the name and place of residence, in detail, of the person nominated by the deceased as heir. In the event of the nominated heir being untraceable or dead, the same particulars should be furnished in regard to any other person or persons, to whom the estate may be made over.
(b) On receipt of the above information, the Resident will arrange with the Nepal Darbar to make over the estate to the nominated heir, or, failing him, to the next legal heir. The payee’s receipt will then, in due course, be forwarded by the Resident to the officer from whom the request issued, or, in the event of the heir or other authorized payee not being forthcoming, the value of the estate will be returned.
THE INDIAN SUCCESSION ACT, 1925 (XXXIX OF 1925)
188. In uncontested proceedings under the Indian Succession Act and Guardians and Wards Act, it shall be competent to the Court exercising jurisdiction therein to permit or direct, except when otherwise provided by any law or Rule for the time being in force, that any particular fact or facts may be proved or evidence upon any application may be given, by affidavit.
Note—When a District Delegate, acting under Section 288 of the Indian Succession Act, 1925, returns the petition and documents filed therewith to the person by whom the application was made, he should forward to the District Judge, and not to the Record-room, such other papers in connection with the application as may have been produced before him.
THE GUARDIANS AND WARDS ACT (ACT VIII OF 1890)
189. The following Rules have been made by the High Court under Section 50 of the Guardians and Wards Act, 1890 (Act VIII of 1890):—
(1) The application made under Section 8 of the Act shall, in addition to the particulars required by Section 10, state whether the minor is entitled to any property absolutely, or subject to the rights or interests of any other person, and the incumbrances, if any, to which the property is subject; and shall specify all persons of the same degree or relationship as, or of nearer degree than, the proposed guardian, and where a female is proposed as guardian, the nearest male relation of the minor.
(2) Where the father of the minor is living, and is not proposed as guardian, the application shall also state any facts relied on as showing that he is unfit to act as guardian of the minor, or that he consents to the application. Whenever the petition made under Section 10 of the Act states that the property of the minor consists of land or any interest in land, a copy of the petition shall be sent free of charge to the Collector of the district in which such property or any part of it is situate.
(3) The notice required by Section 11 of the Act shall be in Form (P) 59.
(4) Unless for reasons to be recorded the Court excuses him from giving security, a person appointed or declared to be a guardian shall give a bond as nearly as may be in Form (M) 14. Such bond, unless it be otherwise ordered by the Court, shall be for the amount or value of the movable property, and twice the amount of the annual rents, profits or other income of the movable and immovable property to be received or accounted for by the guardian.
(5) Where security is required the Court shall fix a time within which such security shall be furnished; and the order of appointment or declaration shall be made conditional on the furnishing of such security.
(6) At the time of the appointment or declaration of a guardian, the Court shall require an inventory of all the property of the ward and of all debts due from the estate to be furnished to the Court within six months under Section 34 (b) of the Act unless for reasons to be recorded it dispenses with the same and shall fix a date for the inventory to be brought to the Court for such further orders thereon as may be deemed necessary.
(7) Any appreciable increment to or diminution of the property of the ward shall be reported immediately by the guardian to the Court and the Court shall cause the same to be noted in the inventory produced under Rule (6).
(8) The Court shall direct the guardian to keep such accounts as may be deemed necessary having regard to extent and circumstances of the estate unless the Court, for reasons to be recorded, dispenses with accounts.
(9) The accounts to be kept by the guardian shall, unless the District Judge otherwise directs, be for the year beginning with the 1st April and ending with the 31st March.
The Court shall require the guardian to submit within one month after the expiry of the account year in each year after the date of his appointment copies of such accounts as have been required under Rule (8) to be kept by him during the preceding year; provided that the Court may in all cases call for the original accounts at any time it thinks fit to do.
(10) Accounts filed by the guardian shall be exhibited and preserved with the record of the application and shall be open to inspection with the permission of the Court by persons legitimately interested in the same on payment of a fee of one rupee to be paid by means of a Court-fee stamp to be affixed to the application for inspection.
(11) An application for leave to deal with immovable property of a ward by way of sale, mortgage, lease, or otherwise, shall state concisely the substance of the order prayed for, the value of the property proposed to be dealt with, and the necessity or advantage of the proposed disposition of the property and shall be supported by an affidavit of the guardian.
(12) An application for leave to sell or mortgage immovable property of a ward for the discharge of debts or other liabilities of the ward, shall be accompanied by a statement in Form No. (M) 13 of the movable and immovable properties of the minor and of all debts due from the estate unless such statement has already been delivered to the Court by the guardian under Section 34 (b) of the Act. The particulars of each debt should be separately specified.
Note.—The form of application to sell or mortgage immovable property can be obtained from the Nazir at six paise each or six rupees per hundred.
(13) When the guardian applies for an order of the Court to do any of the acts mentioned in Sections 28 and 29 of the Act and the Court considers it necessary to call upon the Collector or a Subordinate Court for a report as to the necessity or expediency of the proposed act, the guardian shall deposit as the costs of the enquiry such sum as may be fixed by the Court. If it is found that the application was not made in good faith the guardian shall be required to refund the cost of the application and inquiry to the estate within such time as may be allowed by the Court.
(14) Moneys belonging to wards shall not, without the leave of the District Court, be invested in securities other than those mentioned in the clauses (a), (b), (bb), (c) and (d) of Section 20 of the Indian Trusts Act, 1882 (II of 1882), or deposited in any bank other than a Government Savings Bank. [G.L. 9/62.]
(15) The accounts of Wards estates of which the annual income is Rs. 4,000 or more shall ordinarily be audited by the Examiner of Local Accounts, Bihar; provided that where in the opinion of the Court, for reasons to be recorded in writing, exceptional circumstances render such course advisable, they may in the alternative, with the previous sanction of the High Court, be audited by persons who are holders of certificates granted by a State Government under Section 144 of the Indian Companies Act, 1913]1, or who are members of any institution or association
the members of which have been declared under that Section to be eligible to act as auditors of companies throughout India.
(16) The accounts of Wards estates of which the annual income is below Rs. 4,000 will be audited by the Sarishtadar or any other officer, judicial or administrative subordinate to the District Judge, whom the latter may appoint. When the audit is made by a ministerial officer of the Court the District Judge may, in exceptional cases of special difficulty, and provided it has been necessary to do the work outside office hours, sanction a small remuneration to the ministerial officer concerned, out of the funds of the estate.
(17) Unless otherwise directed by the Court for reasons to be recorded in writing, the accounts of Wards estates shall be audited annually or once in two years according as the annual income thereof does or does not exceed Rs. 10,000.
THE LAND REGISTRATION ACT (BENGAL ACT VII OF 1876)
190. When an order under Section 32 of Bengal Act VII of 1876, directing the transfer of proprietary possession to be registered in the Register of the Collector of the district, is passed by any Civil Court, the Presiding Officer of such Court shall send a copy of his order to the Collector, with a view to such transfer being registered in the Collectorate Register.
THE COURT OF WARDS ACT (BENGAL ACT IX OF 1879)
191. Officers presiding in the Civil Courts should send under cover to the Collector, or Deputy Commissioner, as the case may be, for transmission to the Court of Wards, all applications addressed to such Court, under Section 10, Bengal Act IX of 1879, asking it to take charge of the properties of minors.
THE BIHAR TENANCY ACT (ACT VIII OF 1885)
192. No suit for arrears of rent shall be heard ex parte unless the summons has been served at least 14 clear days before the date of hearing. Where it appears that the above period has not expired on such date the Court should proceed under Order IX, Rule 6, Clause (c), Civil Procedure Code. [G.L. 4/22, G.L. 2/29, G.L. 3/38, G.L. 1/43.]
193. A record should be kept by all Civil Courts of the number of cases reported to the Collector under Section 58 (4) of the Act, which should be referred to in the annual reports on the administration of Civil Justice, and the matter should also receive notice in the reports on the inspection of Subordinate Courts.
RULES UNDER SECTION 100
194. Every Manager, appointed under Chapter IX of the Bihar Tenancy Act, shall in all matters act in accordance with such orders as may, from time to time, be issued by the District Judge.
195. The Manager, shall pay the Government revenue, rent and other demands of the like nature, as also all just liabilities upon the estate, in due and proper time.
196. No Manager shall sell or mortgage any property, nor shall he grant or renew a lease for any period exceeding three years, without the express sanction of the District Judge; provided that this rule shall not render valid any lease for a shorter time than three years, if the District Judge directs by a written order that his sanction is to be obtained as regards all leases granted by the Manager.
197. The Manager shall apply for the sanction of the District Judge to any act which may involve extraordinary expense.
198. No Manager shall have power to compromise any suit or relinquish any claim without the express sanction of the District Judge.
RECORD-OF-RIGHTS UNDER SECTION 101.
199. Every Civil Court trying a suit under Section 106, or disposing of an appeal in such a suit, shall communicate to the Collector of the district, a note of its final decision in the case for incorporation in the final record-of-rights prepared under the Bihar Tenancy Act, 1885.
THE PROVINCIAL SMALL CAUSE COURTS ACT (ACT IX OF 1887).
200. The following Rules of Practice shall be observed in Courts of Small Causes—
(1) The summons shall ordinarily be served on the defendant seven clear days before the day on which the Court shall be held at which the cause is to be tried, unless the Court shall otherwise order, but a summons may be made returnable at a longer or a shorter date in the discretion of the Court, with reference to distance or to any other cause.
(2) The cause of action shall be transcribed from the plaint into the Cause- Sheet [Form No. (J) 15] to be attached to the record immediately before the plaint.
(3) The substance of the evidence, the judgment, and the decree shall be entered in the Cause-Sheet referred to above. [G.L. 5/61.]
(4) In a case in which the defendant has moved the Court for a review of judgment, and the Court is of opinion that such review should be granted, the date for hearing shall be fixed within seven days, unless the Court shall for special reason fix a later date.
THE INDIAN STAMP ACT (ACT II OF 1899).
201. When a Judicial Officer sees reason to doubt the genuineness of a stamp filed before him, the stamp should be forwarded to the Collector of the district, who will examine it, and satisfy himself if possible, as to its character, reporting the result to the officer sending it. Care should be taken to retain and examine copy of any document bearing a stamp which may be forwarded to the Collector under the above orders. [G.L. 3/18.]
202. In all cases in which the Civil Courts find any document which comes before them to have been stamped after its execution in contravention of law, they should give a copy of their judgment to the Government Pleader with a view to the prosecution, if necessary, by the Revenue Authorities of the parties concerned in such after-stamping.
203. When submitting a reference to the High Court under Section 60 of the Stamp Act, the District Judge shall forward a copy of the same to the Superintendent and Remembrancer of Legal Affairs together with an expression of opinion as to whether that officer should engage Counsel or Pleader to argue the matter before the High Court.
THE INDIAN REGISTRATION ACT (ACT XVI OF 1908).
204. In any case in which a registered document is discredited by the judgment of a Court on grounds connected with registration, such as false personation, forgery, want of execution, presentation or admission of execution beyond the statutory period, minority, idiocy or lunacy of the executant, such Court shall send a copy of its judgment to the District Registrar within whose jurisdiction the instrument was registered.
THE INDIAN LUNACY ACT (IV OF 1912)]1.
205. When a person has been adjudged by a Civil Court to be a lunatic and the Court is satisfied that the lunatic is a proper person to be detained in a Lunatic Asylum, it shall obtain and forward with such person a certificate from the medical officer with whose assistance the person was so adjudged and a medical history sheet of the lunatic in Form no. (M) 18.
THE ADMINISTRATOR-GENERAL’S ACT (ACT III OF 1913).
206. In exercise of the power conferred by Section 57 of the Administrator- General’s Act, 1913 (III of 1913), and in supersession of the notification of the Government of India in the Home Department No. 270, dated the 11th February, 1903, the Governor-General in Council is pleased to direct that where a subject of a State specified in the Schedule hereto annexed dies in British India, and it appears that there is no one in British India, other than the Administrator-General, entitled to apply to a Court of competent jurisdiction for Letters of Administration of the estate of the deceased, Letters of Administration shall on the application to such Court of any consular officer of such State, be granted to such consular officer on such terms and conditions as the Court may, subject to the following Rules, think fit to impose, namely [G.I., H.D. notification no. F.–620/32 Judicial, dated the 25th July, 1932.]:—
(i) Where the deceased has not left in British India any known heirs or testamentary executors, by him appointed, the local authorities, if any, in possession of the property of the deceased, shall at once communicate the circumstances to the nearest consular officer of the State of which the deceased was a subject in order that the necessary information may be immediately forwarded to persons interested.
(ii) Such consular officer shall have the right to appear, personally or by delegate, in all proceedings on behalf of the absent heirs or creditors of the deceased until they are otherwise represented.
SCHEDULE
THE INDIAN COMPANIES ACT (ACT VII OF 1913)]1.
207. The Rules made by the High Court under Section 246 of the Indian Companies Act, 1913]1 (as amended by Act XXII of 1936), referred to in Chapter XXII of the Patna High Court Rules, shall be deemed to apply to all District Courts subordinate to the High Court empowered by the State Government under subsection (1) of Section 3 to exercise all or any of the jurisdictions conferred by that Act.
THE PROVINCIAL INSOLVENCY ACT, 1920 (V OF 1920).
208. The following rules may be cited as “the Provincial Insolvency Rules”— (1) Every insolvency petition shall be entered in the Register of Insolvency petitions in Form No. (R) 2-A.
(2) All insolvency proceedings may, at such times and subject to such restrictions as the District Judge may prescribe, be inspected by the Receiver, the debtor and any creditor who has proved, or any legal representative on their behalf. 2[(3) (i) The insolvency notice to be given under Section 6 (2) of the Act shall be in Form No. (P) 65A.
(ii) The notice shall state—
(a) the name and address of the creditor (s).
(b) the name and address of the debtor, decree (s) or order (s) for payment of money on which the creditors or creditors claims are based with particulars thereof (viz., the number of the suit or proceeding in which the decree (s) or order (s) has/have been made the date thereof and the amount as claimed due thereunder).
(c) the aggregate amount due to the creditor (s) (in case there are more than one decree or order); the fact that the decree (s) or order (s) has/ have become final and that the execution thereof has not been stayed.
(d) particulars of decree (s) or order (s) viz., the number of the suit or proceeding in which the decree (s) or order (s) has/have been made, the date thereof and the amount due thereunder to such creditor (s).
(e) in case there are more than one decree or order, aggregate amount due thereunder to the creditor (s).
(f) the date (which shall not be less than one month from the date of the service of the notice) before which compliance with the requirements of the notice is asked for.
(iii) The notice shall require the debtor to pay to the creditor (s) the amount claimed or to furnish security for the payment of the amount to the satisfaction of the creditor (s) or his/their agent(s).
(iv) Service of insolvency notice shall be personal. Notice shall be served in the manner provided in Rules 9 to 19 of Order V of the Code of Civil Procedure or by the registered post.
(v) If the notice is refused, or it is returned unserved and the Court is satisfied that the debtor is keeping out of the way for the purpose of avoiding service, it shall be published in a local daily newspaper and such publication shall be deemed to be sufficient service of notice.
(vi) Any person served with an insolvency notice may within the period allowed for compliance with that notice, apply to the Court to set aside the insolvency notice on any of the grounds specified in sub-section (5) of Section 6 of the Act.
(vii) Where an application to set aside the insolvency notice has been made and it cannot be disposed of until after the expiry of the period specified in the notice as the day on which the act of insolvency will be complete, no act of insolvency shall be deemed to have been committed under the notice until the application shall be disposed of.
Notices
(3) Whenever publication of any notice or other matter is required by the Act, to be made in an Official Gazette, a memorandum referring to and giving the date on which such advertisement appeared, shall be filed with the record and noted in the order-sheet.
(4) Notice for an order fixing the date of the hearing of a petition under Section 19 (1) shall be forwarded by registered post to each creditor to the address given in the petition. Such notice, where the Court so directs, may, in addition, also be published in the local official Gazette or in some selected newspapers, or in both. The same procedure shall be followed in respect of notices of the date for consideration of a proposal for composition or scheme of arrangement under Section 38 (i).
(5) Notice of an order of adjudication under Section 30 is required by the Act to be published in the local official Gazette. The Court may also order that it should be published in such local newspapers as it may direct. When the debtor is a Government servant, a copy of the order shall be sent to the head of the office in which he is employed. The same procedure shall be followed in regard to notices of orders annulling an adjudication under Section 37 (2).
(6) The notice to be given by the Court under Section 50 shall be served on the creditor or his pleader and shall be sent throught the post by registered letter.
(7) The notice to be issued by the Receiver under Section 64 before the declaration of a final dividend to the persons whose claims to be creditors have been notified but not proved, shall be sent through the post by registered letter.
(8) Notices of the date of hearing of an application for discharge under Section 41 shall be published in the local Official Gazette or in such local newspapers as the Judge may direct, and copies shall be sent by registered post to all creditors whether they have proved or not.
(9) A certificate of an officer of the Court or of an Official Receiver, or an affidavit by a Receiver that any of the notices referred to in the preceding Rules has been duly posted accompanied by the post office receipt, shall be sufficient evidence of such notice having been duly sent to the person to whom the same was addressed.
(10) The Court may instead of or in addition to forwarding a notice by registered post under the foregoing Rules cause it to be served in the manner prescribed for the service of summons.
(11) In addition to the prescribed methods of publication any notice may be published otherwise in such manner as the Court may direct, for instance, by affixing copies in the Court-house or by beat of drum in the village in which the insolvent resides.
Receivers
(12) Every appointment of a Receiver shall be by order in writing signed by the Court. Copies of this order sealed with the seal of the Court should be served on the debtor, and forwarded to the person appointed.
(13) (i) A Court when fixing the remuneration of a Receiver should, as a Rule, direct it to be in the nature of a commission or percentage of which one part should be payable on the amount realised after deducting any sums paid to secured creditors, out of the proceeds of their securities and the other part on the amount distributed in dividends.
(ii) When a Receiver realizes the security of a secured creditor, the Court may direct it additional remuneration to be paid to him with reference to the amount of work which he has done and the benefit resulting to the creditors,
(14) The Receiver shall keep a cash-book and such books and other papers as to give a correct view of his administration of the estate, and shall submit his accounts at such times and in such forms as the Court may direct. Such accounts shall be audited by such person or persons as the Court may direct. The costs of the audit shall be fixed by the Court, and shall be paid out of the estate.
(15) Any creditor who has proved his debt may apply to the Court for a copy of the Receiver’s accounts (or any part thereof) relating to the estate as shown by the cash-book up to date, and shall be entitled to such copy on payment of the charges laid down in Rules of this Court regarding the grant of copies.
(15A) The Receiver shall keep a record of his proceedings and shall state in it his reasons for all important acts and decisions. Any person affected by any such act or decision shall be entitled to a copy of the proceedings relating thereto on payment of the charges laid down in the Rules of this Court regarding the grant of copies.
(16) In any case in which a meeting of creditors is necessary and in any case in which the debtor proposes a composition or scheme under Section 38, the Receiver shall give seven days’ notice to the debtor and every creditor of the time and place appointed for each meeting. Such notices shall be served by registered post.
(16A) If on the expiry of one year after the date of the order of adjudication the Receiver has not been able to realize all the property of the insolvent, he shall refer the case to the Court for decision under Section 64 of the Act whether as much has been realized as can be realised without needlessly protracting the receivership.
Proof of Debts.
(17) A creditor’s proofs should be in Form No. (M) 27 with such variations as circumstances may require.
(18) In any case in which it shall appear from the debtor’s statement that there are numerous claims for wages by workmen and others employed by the debtor, it shall be sufficient if one proof for all such claims is made either by the debtor or by some other person on behalf of all such creditors. Such proof should be in Form No. (M) 28.
Procedure where the Debtor is a Firm.
(19) Where any notice, declaration, petition, or other document requiring attestation is signed by a firm of creditors or debtors in the firm’s name, the partner signing for the firm shall also add his own signature, e.g. “Brown and Co., by James Green, a partner in the said firm.”
(20) Any notice or petition for which personal service is necessary, shall be deemed to be duly served on all the members of a firm if it is served at the principal place of business of the firm within the jurisdiction of the Court, on any one of the partners, or upon any person having at the time of service the control or management of the partnership business there.
(21) The provisions of the last preceding rule shall, so far as the nature of the case will admit, apply in the case of any person carrying on business within the jurisdiction in a name or style other than his own.
(22) Where a firm of debtors files an insolvency petition the same shall contain the names in full of the individual partners, and if such petition is signed in the firm’s name the petition shall be accompanied by an affidavit made by the partner who signs the petition showing that all the partners concur in filing of the same.
(23) An adjudication order made against a firm shall operate as if it were an adjudication order made against each of the persons who at the date of the order is a partner in that firm.
(24) In cases of partnership the debtors shall submit a schedule of their partnership affairs, and each debtor shall submit a schedule of his separate affairs.
(25) The joint creditors, and each set of separate creditors, may severally accept compositions or schemes of arrangement. So far as circumstances will allow, a proposal accepted by joint creditors may be approved in the prescribed manner, notwithstanding that the proposals or proposal of some or one of the debtors made to their or his separate creditors may not be accepted.
(26) Where proposals for compositions or schemes are made by a firm, and by the partners therein individually, the proposals made to the joint creditors shall be considered and then voted upon by them apart from every set of separate creditors; and the proposal made to each set of creditors shall be considered and voted upon by such separate set of creditors apart from all other creditors. Such proposals may vary in character and amount. Where a composition or scheme is approved, the adjudication order shall be annulled only so far as it relates to the estate, the creditors of which have confirmed the composition or scheme.
(27) If any two or more of the members of a partnership constitute a separate and independent firm, the creditors of such last mentioned firm shall be deemed to be a separate set of creditors, and to be on the same footing as the separate creditors of any individual member of the firm. And when any surplus shall arise upon the administration of the assets of such separate or independent firm the same shall be carried over to the separate estates of the partners in such separate and independent firm according to their respective rights therein.
Sale of Immovable Property of Insolvent.
(28) If no Receiver is appointed and the Court, in exercise of its powers under Section 58 of the Act, sells any immovable property of the insolvent, the deed of sale of the said property shall be prepared by the purchaser at his own cost, and shall be signed by the Presiding Officer of the Court.
Dividends.
(29) The amount of the dividend may, at the request and risk of the creditor, be transmitted to him by post.
(30) When an estate is ordered to be administered in a summary manner under Section 75 of the Act—
(i) There shall be no advertisement of any proceedings in the local Government Gazette or in a local newspaper.
(ii) The petition and all subsequent proceedings shall be endorsed “Summary case”.
(iii) The notice of the hearing of the petition to the creditors shall be in Form No. (P) 65.
Costs.
(31) All proceedings under the Act down to and including the making of an order of adjudication shall be at the cost of the party prosecuting them, but when an order of adjudication has been made, the costs of the petitioning creditor including the costs of the publication of all gazette notices required by the Act or Rules which, by the Act or Rules, the petitioning creditor is required to pay shall be taxed and be payable out of the estate.
(32) Before making an order in an insolvency petition presented by a debtor, the Court may require the debtor to deposit in Court a sum sufficient to cover the costs of sending the prescribed notices of the hearing of petition and the costs of the publication of all gazette notices required by the Act or Rules which, by the Act or Rules, the debtor is required to pay.
(33) The cost of the publication in the Gazette of
(a) An order fixing the date for the hearing of an insolvency petition under Section 19 (2) shall when the petition is by creditor, be paid by the creditor, and, when the petition is by the debtor, be paid out of the sum deposited in Court by the debtor under clause (32);
(b) Notice of a proposal for a composition under Section 38 (1) and notice of an application for discharge under Section 41 (1) shall be paid by the debtor.
(34) The publication in the Gazette of
(a) Notice of adjudication under Section 30,
(b) Notice to creditors whose claims have been notified but not proved under Section 64,
(c) Notice of an order annulling an adjudication under Section 37 (2), shall be made free of charge.
(35) No costs incurred by a debtor of, or incidental to, an application to approve a composition or scheme shall be allowed out of the estate if the Court refuses to approve the composition or scheme.
(36) If the assets available are not sufficient in any case for taking proceedings necessary for the administration of the estate, the Receiver or Interim Receiver or Official Receiver, as the case may be, may call upon the creditors or any of them to advance the necessary funds, or to indemnify him against the cost of such proceedings. Any assets realized by such proceedings shall be applied, in the first place, towards the repayment of such advances with interest thereon at 6 per cent per annum.
RULES FOR THE DISPOSAL OF AUDIT OBJECTIONS AND AUDIT REPORTS RELATING TO ESTATES UNDER THE FIDUCIARY CONTROL OF THE CIVIL COURTS.
209. The following Rules have been framed by the High Court for the disposal of audit notes and audit objections relating to estates under the fiduciary control of the Civil Court:—
(1) The Auditor should give reasonable notice through the Court of the date when the audit is to begin of the estate the accounts of which are under audit should arrange to give every facility to the Auditor in the conduct of his business. All accounts, registers and other documents which the Auditor may demand for this purpose should be laid before him with due expedition. If the Auditor is not given any necessary document demanded by him, he should bring the fact to the notice of the Court before making a representation to the Examiner of Local Accounts.
(2) The results of each audit should be communicated as follows—
(i) The objection statements which are issued daily by the Auditor in the course of the audit, and
(ii) The audit report which is issued formally after the close of the audit over the signature of the Examiner of Local Accounts.
(3) The daily objection statements issued by the Auditor in the course of the audit should be returned to him within three days from date of receipt with replies showing the action which is taken and which it is proposed to take to settle the objections raised. These replies should be signed by the of the estate the accounts of which are under audit. The objection statements should all be returned without fail on or before the date on which the audit closes. No objection statement should remain unanswered on this date.
(4) When the objection statements are received back by the Auditor he will write out the draft audit report and will show it to of the estate the accounts of which are under audit. If the latter finds any inaccuracies in the draft he should point them out. He may also take such action as he may consider necessary. He should return the draft audit report with such remarks as he may consider necessary within a week of the date of receipt by him.
(5) The audit report as finally approved will be signed by the Examiner of Local Accounts and copies will be sent by him to the of the estate, to the Presiding Officer of the Court concerned, to the Registrar of the High Court of Judicature and to the Secretary to Government in the Judicial Department.
(6) On receipt of the audit report the must take steps to remove the objections mentioned therein and should submit his reply to the Examiner of Local Accounts through the Court within one month. His reply to the audit report showing the action which has been taken on it must be sent in duplicate. A tabular form should be adopted providing separate columns for the record against each item or paragraph of the audit report of—
(i) the reply and explanation of the
(ii) the remarks of the Examiner, and
(iii) the final order of the Court.
If the Examiner remains unsatisfied with the reply offered to any point raised in audit he will forward one copy with his remarks to the Court for consideration and the orders of the latter will be final, subject to appeal and the superintendence of the High Court.
(7) An audit objection is usually removed by the requisite sanction or making the necessary recovery, by correcting or completing the relevant account or voucher, by furnishing the necessary documents or information, or by otherwise securing compliance with the provisions of a specified rule. In cases in which a protest is made against an audit objection as being incorrect, objection should be held to be in force unless formal intimation of its withdrawal is received from the Audit Department or it is disallowed by the Court under rule (6).
(8) The final disposal of the audit report by the Court shall be communicated by or through the District Judge with copies of the tabular statement, to the High Court, the Examiner of Local Accounts and the
(9) Auditors have instructions to mention prominently in the audit report unremedied objections of previous audit reports. The should pay particular attention to these items and in explaining or replying to them it should invariably be stated why the objections could not be removed.
ACCOUNT RULES AND FORMS FOR ESTATES UNDER THE FIDUCIARY CONTROL OF THE CIVIL COURTS AND SUBJECT TO AUDIT BY THE EXAMINER OF LOCAL ACCOUNTS, BIHAR.
210. (1) The following registers, accounts and forms are prescribed for Estates under the fiduciary control of the Civil Courts the accounts of which are subject to audit by the Examiner of Local Accounts, Bihar. All estates should also prepare budget estimates showing all anticipated heads of income and expenditure in such form as may suit the requirement of each estate. Receipts for rent, where rent is collected in cash or in kind, should be granted in the form prescribed by Government under the Tenancy Act. Need not be written up every year except in the case of large estates
if found necessary. All sorts of articles, namely, forms stationery, furniture, tools, live-stock, etc., should be entered in this register which should be divided into the necessary parts, one or more pages being allotted to each item according to necessity. There should be an index in the beginning and the register should be balanced quarterly. One Jamabandi Register should be kept at headquarters for ready reference, a copy of the same being given to the mufassil staff for the purpose of collection. An abstract account of the total assets should be given at the end of the Jamabandi which must show separately the area under Nagdi, Bhaoli, Gairmazrua and Bakasht together with rent and other miscellaneous income from Jalkar and Sairat, etc. This register should be compared annually with the mufassal Jamabandi with a view to check any surreptitious act done by the mufassal staff. All mutations should be reported to the Manager, or guardian or Receiver and changes in red ink made in the office copy of the Jamabandi. To be written up from the Cash Book or Rokar to show the progress of income and expenditure under each budget head. It should not be necessary to maintain this General Ledger in small estates. To be written by carbon process on the spot, the pencil copy being sent to the Head Office at the close of the day.
N.B.—The paper should be kept mauza by mauza. Where rent is collected on the basis of an estimate of produce, signatures or thumb impressions of the party concerned, the persons making
the appraisement and of some respectable witnesses present thereat, should be taken on the appraisement papers, wherever possible. If it is necessary to note that a particular area has been
kept fallow an entry may be made in the remarks column. May be used for both system of Bhaoli rent—Batai and Danabandi.
To be drawn up half-yearly with a statement showing collection, remission and balance.
F.E.F. No. 7 may be used, description and quantity of produce being noted in the column provided for rent.
F.E.F. No. 6 may be used, description and quantity of produce being noted in the column provided for rent.
Note 1.—The registers and forms may be kept in English or in the Vernacular as may be found convenient.
Note 2.—The registers and forms should be preserved for the periods given in “note” at page of Volume II. The periods stated therein are to be reckoned from the date of the last entry in the Register and at the expiration of those periods the registers shall be destroyed.
(2) “Essential” Registers, “Optional” Registers.—The registers and accounts under class I are essential and must be maintained by all estates. The District Judge or the Court concerned may modify them only in detail, if necessary, but must not dispense with any of them entirely. The registers and forms under class II may not be necessary for all estates and the District Judge or the Court concerned may modify or dispense with the keeping of any of these upon application by the Guardian, Common Manager or Receiver. The District Judge may also accept in extreme cases a register or even a note book in which some of the items of class II are entered. In deciding whether any particular register or form of class II should be dispensed with or should be combined with others into one register, the District Judge or Court should take and consider the advice of the Examiner of Local Accounts, who should be consulted in the matter as soon as possible after the first
audit subsequent to the date on which these Rules and forms come into force.
(3) The forms prescribed under clause (1) above are contained in Appendix D, Volume II.
RULES UNDER THE BANKERS’ BOOKS EVIDENCE ACT (XVIII of 1891).
211. Scale of fees.—(1) A Bank ordered under the Banker’s Books Evidence Act, XVIII of 1891, to supply certified copies of entries from its books shall be entitled to charge on the following scale
Searching fee—For each year or part of a year in respect of which search is made—Rs. 5.
Copies—For each Bank folio or part thereof—Rs. 5. Certificate—For the certificate under Section 6 of the Act—Rs. 5. A Bank folio for this purpose is a page of the Bank’s books of not less than 40
and not more than 50 lines.
(2) Application how made.—An application for an order under the said Act shall be made ex-parte upon petition and the Court or a Judge may direct that notice of the application shall be served on the Bank or Banks named in the application. The petition shall set out particulars of which it is desired to obtain copies (or, if this is impossible, the year or years in which such entries will appear) and the materiality of such entries.
(3) Application made in insufficient time and procedure to be followed in such cases.—All applications shall be made in sufficient time to allow three clear days’ notice required to be given by Section 6 (2) of the Bankers’ Books Evidence Act, and all applications made in insufficient time shall state the reason thereof.
(4) Service of order in Bank.—The party who has obtained such order shall serve it upon the Bank or Banks affected and at the same time pay to the Bank or Banks the searching fee of which the amount shall be stated in the order.
(5) Bank to make search and make out demand for fee for copies.—Upon service of the order the Bank or Banks shall forthwith cause search to be made and shall thereafter forthwith inform the party who has obtained the order for the amount to be paid to such Bank or Banks for copies of the entries to be made in terms of the order.
(6) Party to pay for certified copies and certificate.—Thereupon the party concerned shall pay to the Bank or Banks the amount so stated and the fee for the certificate and the Bank or Banks shall upon receipt thereof forthwith prepare and deliver to the party the copies of the relevant entries together with the certificate under Section 6 of the Act.
(7) Saving.—Nothing in the above rules shall be construed as derogating from the power of the Court or the Judge to make such orders as to costs in particular cases as may seem appropriate to it or him under Section 7 of the Act.
RULES UNDER SECTION 41 OF THE SPECIAL MARRIAGE ACT, 1954 (ACT XLIII OF 1954)
212. (1) Short title and commencement.—(i) These Rules may be called the Special Marriage Act Rules, 1955. [G.L. 1/58.]
(ii) The Rules shall come into force on the date of publication1 in the Bihar Gazette.
(2) Definitions.—(i) “The Act” means the Special Marriage Act, 1954 (Act XLII of 1954).
(ii) “District Court” or “the Court” means the Court of the District Judge or of the Judicial Commissioner, as the case may be.
(3) Form of the proceedings—The following proceedings under the Act shall be initiated by original petitions:—
(i) under Section 22 for restitution of conjugal rights;
(ii) under-sub-section (1) of Section 23 for judicial separation;
(iii) under sub-section (2) of Section 23 for rescinding a decree for judicial separation;
(iv) under sub-section (1) of Section 24 for declaring a marriage null and void;
(v) under sub-section (2) of Section 24 for declaring the registration of a marriage to be of no effect;
(vi) under Section 25 for annulment of a marriage by a decree of nullity;
(vii) under Section 27 for divorce;
(viii) under Section 28 for divorce by mutual consent; and
(ix) under Section 38 to make, revoke, suspend or vary an order or provision regarding the custody, maintenance or education of minor children.
(4) Every other proceeding, subsequent to the original petitions mentioned in rule 3, shall be initiated by an interlocutory application.
(5) Every petition, application, affidavit, decree or order under the Act shall be headed by a cause title in Form No. 1 given in the schedule to these rules with such variation as may be necessary and shall be drawn up, so far as possible in the forms prescribed in the schedule to the Indian Divorce Act, 1869 (IV of 1869). The rule was published in the Bihar Gazette, dated the 23rd November, 1955 (vide notification no. 258-R, dated the 10th November, 1955).
(6) When a husband or a wife is a lunatic or an idiot, any petition under the Act, other than a petition for restitution of conjugal rights may be brought on his or her
behalf by the person entitled to his or her custody.
(7) Petitions of minors.—(i) Where the petitioner is a minor he or she shall sue by his or her next friend to be approved by the Court; and no petition presented by a minor under the Act shall be filed until the next friend has undertaken in writing to be answerable for costs. Such undertaking shall be filed in Court, and the next friend shall thereupon be liable in the same manner and to the same extent as if he were a plaintiff in an ordinary suit.
(ii) The next friend shall, file an affidavit along with the petition which shall state age of the minor, that the next friend has no adverse interest to that of the minor, and that the next friend is otherwise a fit and proper person to act as such. (iii) The Court may, on considering the affidavit and such other material as it may require, record its approval to the representation of the minor by the next friend or pass such order of orders as it may deem fit.
(8) Contents of petitions.—In addition to the particulars required to be given under Order VII, Rule 1 of the Code of Civil Procedure, every original petition shall state—
(i) the place and the date of the marriage;
(ii) the names of the parties and their occupation;
(iii) the principal permanent address where the parties cohabited including the address where they last resided together;
(iv) the names of the children, if any, of the marriage together with their dates of birth or ages;
(v) if prior to the date of the petition there has been any proceeding between the parties to the petition with reference to their marriage in any Court in India, the result and the full particulars thereof.
(vi) if the petition is for restitution of conjugal rights, the date on or from which and the circumstances under which the respondent withdrew from or terminated conjugal relationships with the petitioner;
(vii) if the petition is for judicial separation or divorce the matrimonial offence alleged or other grounds upon which the relief is sought, together with full particulars thereof so far as such particulars are known to the petitioner, e.g.,—
(a) in the case of alleged desertion the date and the circumstances under which it began;
(b) in the case of presumption of death, the last place where the parties lived together and the date when and the place where the respondent was last seen or heard of as alive and the steps, if
any, taken to ascertain his whereabouts;
(c) in the case of cruelty or adultery the specific acts of cruelty or adultery and the occasions when and the places where such acts were committed;
(d) in the case of incurable unsoundness of mind, the time when such unsoundness began to manifest itself the nature and period of any curative steps taken together with the name and address
of the person, if any, who treated for such unsoundness of mind;
(e) in the case of leprosy, or venereal disease in a communicable form, when such ailment began to manifest itself, the nature and the period of the curative steps if any, taken, together with the
name and address of the person who treated for such ailment and whether or not such ailment was contracted from the petitioner;
(f) in case of an allegation of fraud a complete specification of the facts which constitute the fraud;
(viii) if the petition is for a decree of nullity of marriage on the ground specified in clause (ii) or clause (iii) of Section 25 of the Act, the time when the facts relied on were discovered and whether or not marital intercourse with the consent of the petitioner took place after the discovery of the said facts;
(ix) if the petition is by a husband for divorce or judicial separation on the ground that his wife committed adultery with any person, the name, occupation and place of residence of such person, so far as they can be ascertained;
(x) if the petition is by a wife for divorce or judicial separation on the ground that her husband committed adultery with any woman, the name, occupation and place of residence of such woman, so far as they can be ascertained;
(xi) if the petition is by the wife for divorce on the ground that her husband has been guilty of rape, sodomy and beastiality, all particulars in proof of the same, accompanied by a certified copy of judgment, if any, in case of conviction;
(xii) if the petition is one for a decree of dissolution of marriage, or of nullity or annulment of marriage or for judicial separation, that there is no collusion or connivance between the petitioner and the other party to the marriage or alleged marriage;
(xiii) set out at the end the relief or reliefs sought, including any claim for—
(a) damages against the co-respondent;
(b) custody, care and maintenance of children;
(c) permanent alimony and maintenance; and
(d) costs.
Where a claim is made under (c) the petition shall specify the annual or capital value of the husband’s property, the amount of his annual earnings and other particulars relating to his financial resources and also the annual or capital value of the wife’s property.
(9) Verification.—Statements contained in every petition shall be verified by the petitioner or some other competent person in the manner required by the Code of Civil Procedure for the time being in force for the verification of plaints.
(10) An application under the proviso to Section 29 of the Act for leave to present a petition for divorce before three years have passed from the date of the marriage shall be supported by an affidavit setting forth the circumstances relied on as constituting exceptional hardship to the petitioner or exceptional depravity on the part of the respondent.
(11) Every petition made under the Act, shall be accompanied by a certified copy of the certificate from the marriage certificate book, about the solemnisation or the registration of the marriage under the Act or under Section 13 of the Special Marriage Act (Act III of 1872).
(12) When a petition is admitted, the Chief Ministerial Officer of the Court shall assign a distinctive number to the petition and all subsequent proceedings on the petition shall bear that number.
(13) Along with the petition, the petitioner shall furnish a copy thereof for service on the respondent and if a co-respondent is impleaded an additional copy for service on him together with the fee prescribed under the Court-fees Act for service of notices.
(14) (i) Notice of the petition shall be in Form No. 2 given in the schedule to issues these rules of settlement of issues and shall require the respondent and the co-respondent, if one is named in the petition, to enter appearance in person or by pleader, and file a written statement not less than seven days before the day fixed in the notice.
(ii) The notice together with a copy of the petition shall be served on the respondent and the co-respondent, if named in the manner prescribed in Order V of the Code of Civil Procedure, not less than 21 days before the day appointed therein: Provided that the Court may dispense with such service altogether in case it seems necessary or expedient so to do.
(15) Co-respondent in husband’s petition.
In any petition presented by a husband for divorce or judicial separation on the ground that his wife has since the solemnisation of the marriage, been guilty of adultery, the petitioner shall make the alleged adulterer if alive, a co-respondent in the said petition, unless he is excused from so doing by an order of the Court which may be made on any or more of the following grounds which shall be supported by an affidavit in respect of the relevant facts:—
(i) that the respondent is leading the life of a prostitute, and the petitioner knows of no person with whom the adultery has been committed;
(ii) that the name of the alleged adulterer is unknown to the petitioner, although he has made due efforts for its discovery;
(iii) that the alleged adulterer is dead;
(iv) for any other sufficient reason that the Court may deem fit to consider.
(16) Respondent wife’s petition.—Unless, otherwise directed where a wife’s petition alleges adultery with a woman named and contains a claim for costs against her, she shall be made a respondent in the case.
(17) Intervention.—(i) Any person other than a party to the proceeding under Chapter V or Chapter VI, including a person charged with adultery or sodomy, not made a respondent or co-respondent shall be entitled to appear and intervene in the proceedings. The application shall be supported by an affidavit setting forth the facts on the basis of which the intervention is sought for.
(ii) Notice for the application together with a copy of the affidavit shall be served on all parties who shall be at liberty to file counter affidavits.
(iii) If, after hearing all the parties, the Court grants leave, the intervenor may take part in the trial subject to such terms and conditions as the Court may deem fit to impose.
(iv) If the Court is satisfied that the intervention was made without sufficient cause it may order the applicant to pay the whole or part of the costs occasioned by the intervention. If, on the other hand, the Court finds that the intervention is justified, it may pass suitable orders for payment to the applicant the whole or any of the costs of intervention.
(v) A person to whom leave to intervene has been granted may file in the Court an answer to the petition or written statement containing the charges or allegations against such intervenor.
(18) Written statement in answers to petition filed by respondents.—The respondent may and, if so required by the Court shall present a written statement in answer to the petition and the provisions of Order VIII of the Code of Civil Procedure shall apply mutatis mutandis to such written statements. In particular, if in any proceedings for divorce the respondent opposes the relief sought in the petition on the ground of the petitioner’s adultery, cruelty or desertion, the written statement shall state the particulars of such adultery, cruelty or desertion.
(19) Damages.—Any husband may, in a petition for divorce, claim damages from the co-respondent on the ground of his having committed adultery with the wife of such petitioner—
(i) Such petition shall be served on the said co-respondent and the wife unless the Court dispenses with such service in accordance with the provisions of Rule 15.
(ii) The damages to be recovered on any such petition shall be ascertained by the Court, although the respondent or either of them may not appear. After the decision has been given, the Court may direct in what manner the damages shall be paid or applied.
(20) Costs.—The Court may direct that the whole or any part of the costs of the petitions for nullity of marriage or for divorce, incurred by any of the parties to such petitions may be paid by any of the other parties thereto : Provided that the co-respondent shall not be ordered to pay the petitioner’s cost—
(i) if the respondent was at the time of the adultery living apart from the husband and leading the life of a prostitute; or
(ii) if the respondent had not, at the time of the adultery, reason to believe the respondent to be a married woman.
The award of costs shall be in the discretion of the Court and the Court shall make an order for the same while passing the decree.
(21) Unless otherwise directed by the Court, the costs of the petition under the Act shall be costs as taxed in suits under the Indian Divorce Act IV of 1869.
(22) Appeal.—Appeals to the High Court from the decrees and orders made by the Court in any proceedings under Chapter V or Chapter VI shall be governed by the Rules of the High Court, Patna, as far as they may be applicable.
RULES UNDER SECTION 44 OF THE ARBITRATION ACT (X OF 1940)
213. (1) (a) These rules shall be called the Arbitration Rules, 1956. All references therein to the ‘Act’ shall mean the Arbitration Act, 1940 (X of 1940).
(b) These Rules shall come into force with effect from the date they are published]1 in Bihar Gazette.
(2) Title of application.—(a) Save as hereinafter provided, all applications, affidavits and proceedings, under the Act, shall be instituted in the matter of the Act, and in the matter of the Arbitration.
(b) Applications under Chapter IV of the Act shall be instituted in the suit or matter in which order of reference is made.
(c) Applications under Section 34 of the Act shall be instituted in the suit which the applicant seeks to have stayed.
(d) Applications under Section 7 (2) of the Act shall be instituted in the matter of the insolvency in which the reference to arbitration is sought or claimed.
(e) Applications under Sections 14(2) and 20(1) of the Act shall, if the Court is satisfied that the petition is in order, be numbered and registered as regular suits. Other applications under the Act shall be numbered and registered as Miscellaneous Judicial cases.
(3) Mode of application.—All applications under the Act shall be made by petition and shall be presented to the proper Court in the same manner as plaints or other applications. The petition shall be verified in the manner prescribed by rule 15 of Order VI of the Code of Civil Procedure, 1908, or if the Court so directs, supported by an affidavit.
(4) Content of petition.—The petition shall be divided into paragraphs, numbered consecutively and shall contain the name, description and place of residence of the petitioner and the opposite party, a statement in summary form—
(a) of all material facts;
(b) of the facts showing that the Court to which the application is presented has jurisdiction to deal with it; and
(c) of the nature of the relief asked for; and shall specify the names, descriptions and places of residence of other persons liable to be affected thereby.
(5) Applications to the Court which are consented to by the parties affected thereby shall be made with the consent of the said parties endorsed thereon and signed by them.
(6) The forms (J) 44, (J) 45, (J) 46, (J) 47, (J) 48 and (P) 40, which will be found in the High Court General Rules and Circular Orders (Civil), Vol. II, shall be used for the purposes to which they severally relate with such variations as the circumstances of each case may require.
(7) (i) In a reference under Section 13(b) of the Act the question of law and the facts out of which they arise shall be distinctly stated in Form No. (J) 44. A copy of the arbitration agreement, if any, shall be annexed to such reference. The Arbitrators or Umpire making the reference shall give notice of the action taken by them to the parties concerned.
(ii) When the Court has pronounced its opinion under Section 14(3), it shall be the duty of the Arbitrators or Umpire making the reference to have a certified copy of such opinion added to and made a part of the award.
(8) Every application under Section 14(2) of the Act for filing an award in Court shall be in writing.
(9) Every application made to a Court under Section 20(1) of the Act shall be accompanied by the original agreement or if the same be not in the possession or control of the applicant, then a copy, thereof.
(10) After a petition has been presented the Court may, if it is not in order or according to law, reject it. If it is not so rejected, the Court shall direct notice thereof to be given to all persons mentioned in the petition and to such other persons as may seem to it to be likely to be affected by the proceedings, requiring all or any of such persons to show cause, within the time specified in the notice, why the relief sought in the petition should not be granted. Such notice shall be accompanied by copies of the petition and the affidavit, if any, copies being supplied by the petitioner.
(11) The petitioner shall deposit the necessary process fees for service of notice on the other parties concerned (including persons likely to be affected by the proceedings) within seven days of the order directing the issue of notice or within such further time as the Court may, for sufficient cause shown, allow.
(12) (i) The Arbitrators or Umpire or any of the parties to the arbitration may cause an award or signed copy thereof to be filed in Court in the manner prescribed in Rule 3.
(ii) Where an award is filed by the Arbitrators or Umpire under Section 14(2) of the Act, they shall send to the Court under sealed cover the award or a signed copy thereof together with any proceedings or depositions and documents which may have been taken and proved before them and the opinion pronounced by the Court on the special case under Section 14(3) of the Act, if any, together with the full address of all the persons who are parties in the arbitration proceedings. They shall also send with the award a copy of the notice given to the parties concerned under Section 14(1) of the Act together with an affidavit of service of such notice and of attestation of their signatures on the award. If the sealed cover is sent by post, it shall be sent under registered cover, acknowledgment due. The award so filed shall form part of the record.
(iii) Where the award is filed by a party to the arbitration under clause (2), any party to the arbitration may move the Court to direct the Arbitrators or Umpire to produce before it any proceedings or depositions or documents which may have been taken and proved before them together with the record of the arbitration which may be in their possession.
(13) The Court shall forthwith issue notice of the filing of the award or a signed copy thereof—
(i) to the other parties concerned, if any of the parties to the arbitration has filed it, on the requisites being supplied by that party; or
(ii) to all the persons concerned who are parties in the arbitration proceeding free of costs when it has been filed by the Arbitrators or Umpire under Section 14(2) of the Act.
(14) Limitation for application for judgment on award.—An application for judgment in terms of an award shall not be made until after the expiration of 30 days from the date of service of the notice of filing the award.
(15) When an application under Section 20(1) of the Act is filed and registered the Court shall, on the application, issue a notice, returnable within not less than 10 days from the date of service thereof, calling upon the opposite party to show cause why the arbitration agreement should not be filed.
(16) (i) Processes to parties to the arbitration proceedings or to witnesses shall be issued by the Court on the written application of the Arbitrators or Umpire.
(ii) If the proceedings are under Chapter II of the Act, the application for such processes must be accompanied by a copy of the agreement under which the Arbitrators or the Umpire is acting. If, otherwise, the date of the order appointing an Arbitrator or Umpire shall be mentioned in the application.
(17) The Court-fees and process-fees chargeable for all petitions shall be in accordance with the Court-fees Act and the Rules for the levy of process-fees in force for the time being.
(18) Form No. (P) 40, so far as it can be made applicable, shall be used with necessary modifications in issuing the notice required to be given by the Court for the purposes of the Act.
(19) The orders of reference under Sections 20(4) and 23(1) of the Act shall be made in Form No. (J) 47.
(20) The order of appointment of Arbitrators or Umpire under Sections 8(2) and 12 shall be made in Form No. (J) 48.
(21) Every application under Section 21 of the Act shall be made in Form no. (J) 45 with due regard to the provisions of Rule 5 above.
(22) In making the award under the Act, the Arbitrators or Umpire, as the case may be, shall use Form No. (J) 46 for the purpose.
(23) With regard to the preservation, interim custody or sale of any goods which are the subject-matter of a reference, Courts shall be guided by the relevant provisions of the Code of Civil Procedure and of the rules in Chapter VI of Part I ante.
(24) The rules in Chapter X of Part I ante shall, as far as they are applicable, apply to appeals under Section 39 of the Act.
(25) In matters not provided for in the foregoing rules or in the Act, the provisions of the Code of Civil Procedure, 1908, and the Patna High Court General Rules and Circular Orders (Civil) mutatis mutandis shall apply to all proceedings before the Court and to all appeals under the Act.
RULES UNDER SECTIONS 14 AND 21 OF THE HINDU MARRIAGE ACT, 1955 (ACT XXV OF 1955)
214. (1) Short title and commencement.—(i) These rules may be called the Hindu Marriage Act (XXV of 1955) Rules, 1956. [G.L. 1/58.]
(ii) The Rules shall come into force on the date of publication1 in the Bihar Gazette.
(2) Definitions.—(i) “The Act’ means the Hindu Marriage Act, 1955 (Act XXV of 1955).
(ii) ‘Court’ means the Court mentioned in Section 3(b) of the Act.
(3) Form of the proceeding.—The following proceedings under the Act shall be initiated by original petition:—
(i) Under Section 9 for restitution of conjugal rights;
(ii) Under sub-section (1) of section 10 for judicial separation;
(iii) Under sub-section (2) of section 10 for rescinding a decree for judicial separation;
(iv) Under section 11 for declaring a marriage null and void;
(v) Under section 12 for annulment of a marriage by a decree of nullity;
(vi) Under section 13 for divorce;
(vii) Under section 26 to make, revoke, suspend or vary an order or provision regarding the custody, maintenance or education of minor children.
(4) Every other proceeding, subsequent to the original petitions mentioned in rule 3, shall be initiated by an interlocutory application.
(5) Every petition, application, affidavit, decree or order under the Act shall be headed by a cause title in form no. 1 given in the schedule to these rules with such variation as may be necessary and shall be drawn up, so far as possible in the forms prescribed in the Schedule to the Indian Divorce Act, 1869 (IV of 1869).
(6) When a husband or a wife is a lunatic or an idiot, any petition under the Act, other than a petition for restitution of conjugal rights may be brought on his or her behalf by the person entitled to his or her custody.
(7) Petitions of minors.—(i) Where the petitioner is a minor, he or she shall sue by his or her next friend to be approved by the Court; and no petition presented by a minor under the Act shall be filed until the next friend has undertaken in writing to be answerable for costs. Such undertaking shall be filed in Court, and the next friend shall thereupon be liable in the same manner and to the same extent as if he were a plaintiff in an ordinary suit.
(ii) The next friend shall file an affidavit along with the petition which shall state the age of the minor, the next friend has no adverse interest to that of the minor and that the next friend is otherwise a fit an proper person to act as such.
(iii) The Court may, on considering the affidavit and such other material as it may require, record its approval to the representation of the minor by the next friend or pass such order or orders as it may deem fit.
(8) Contents of petitions.—In addition to the particulars required to be given under Order VII, Rule 1 of the Code of Civil Procedure, every original petition shall state—
1. Published in the Bihar Gazette, dated the 7th August, 1957 (vide notification no. 221-R, dated the 23rd July, 1957).
(i) the place and the date of the marriage;
(ii) the names of the parties and their occupation;
(iii) the principal permanent address, where the parties cohabited including the address where they last resided together;
(iv) the names of children, if any, of the marriage together with their date of birth or ages;
(v) if prior to the date of the petition there has been any proceeding between the parties to the petition with reference to their marriage in any Court in India, the result and the full particulars thereof;
(vi) if the petition is for restitution of conjugal rights, the date on or from wihich and the circumstances under which the respondent withdrew from or terminated conjugal relationship with the petitioner;
(vii) if the petition is for judicial separation or divorce, the matrimonial offence alleged or other grounds upon which the relief is sought together with full particulars thereof so far as such particulars are known to the petitioner e.g.:—
(a) in the case of alleged desertion, the date and the circumstances under which it began;
(b) in the case of presumption of death, the last place where the parties lived together and the date when and the place where the respondent was last seen or heard of as alive and the steps, if
any, taken to ascertain his whereabouts;
(c) in the case of cruelty or adultery, the specific acts of cruelty or adultery and the occasions when and the places where such acts were committed;
(d) in the case of incurable unsoundness of mind, the time when such unsoundness began to manifest itself the nature and period of any curative steps taken, together with the name and address
of the person, if any, who treated for such unsoundness of mind;
(e) in the case of leprosy, or venereal disease in a communicable form when such ailment began to manifest itself, the nature and the period of the curative steps, if any, taken, together with the
name and address of the person who treated for such ailment and whether or not such ailment was contracted from the petitioner;
(f) in case of an allegation of fraud, a complete specification of the facts which constitute the fraud;
(viii) if the petition is for a decree of nullity of marriage on the ground specified in clause (c) or clause (d) of Section 12 of the Act, the time when the facts relied on were discovered and whether or not marital intercourse with the consent of the petitioner took place after the discovery of the said facts;
(ix) if the petition is by a husband for divorce on the ground that the wife is living in adultery, or judicial separation on the ground that his wife committed adultery with any person, the name, occupation and place of residence of such person, so far as they can be ascertained;
(x) if the petition is by a wife for divorce on the ground that the husband is living in adultery, or judicial separation on the ground that her husband committed adultery with any woman, the name, occupation and place of residence of such woman, so far as they can be ascertained;
(xi) if the petition is by the wife for divorce on the ground that her husband has been guilty of rape, sodomy and beastiality, all particulars in proof of the same, accompanied by a certified copy of judgment, if any, in case of conviction;
(xii) if the petition is one for a decree of dissolution of marriage or of nullity or annulment of marriage or for judicial separation, that there is no collusion or connivance between the petitioner and the other party to the marriage or alleged marriage;
(xiii) the details of the property, if any, mentioned in Section 27;
(xiv) set out at the end the relief or reliefs sought, including any claim for—
(a) damages against the co-respondent,
(b) custody, care and maintenance of children,
(c) permanent alimony and maintenance, and
(d) costs.
Where a claim is made under (c) the petitioner shall specify the annual or capital value of the husband’s property, the amount of his annual earnings and other particulars relating to his financial resources and also the annual or capital value of the wife’s property.
(9) Verification.—Statements contained in every petition shall be verified by the petitioner or some other competent person in the manner required by the Code of Civil Procedure for the time being in force for the verification of plaints.
(10) Application for leave under Section 14 of the Act.—(i) Where any party to a marriage desires to present a petition for divorce within three years of such marriage, he or she shall obtain leave of the Court under Section 14 of the Act on ex-parte application made to the Court in which the petition for divorce is intended to be filed.
(ii) The application shall be accompanied by the petition intended to be filed bearing the proper Court-fee under the law and in accordance with the rules. The application shall be supported by an affidavit made by the petitioner setting out the particulars of exceptional hardships to the petitioner or exceptional depravity on the part of the respondent on which leave is sought.
(iii) The evidence in such application may, unless the Court otherwise directs, be given by affidavit.
(iv) When the Court grants leave, the petition shall be deemed to have been duly filed on the date of the said order. Within a week of the said order or within such further time as may be fixed by the Court, the petitioner shall file sufficient number of copies of application for leave and order of the Court thereon and of the petition for divorce for service upon the respondents in the petition.
(11) Service of copy of application for and order granting leave on the respondents and procedure after service.—(i) When the Court grants leave under
the preceding rule, a copy of the application for leave and order granting leave shall be served on each of the respondents along with the notice of the petition for divorce.
(ii) (a) When the respondent desires to contest the petition for divorce on the ground that leave for filing the petition has been erroneously granted or improperly obtained, he or she shall set forth in his or her written statement the grounds with particulars on which the grant of leave is sought to be contested.
(b) The Court, may, if it so deems fit, frame, try and decide the issue as to propriety of leave granted as preliminary issue.
(c) The Court may, at the instance of either party, order the attendance for examination or cross-examination of any deponent in the application for leave under the preceding rule.
(12) Every petition made under the Act shall be accompanied by a certified copy of the certificate from the Hindu Marriage Register, if any, prescribed by the State Government about the solemnisation of the marriage under the Act. A petition for divorce on any of the grounds mentioned in clauses (viii) and (ix) of sub-section (1) of section 13 of the Act shall be accompanied by a certified copy of a decree for judicial separation or for restitution of conjugal rights as the case may be.
(13) When a petition is admitted, the Chief Ministerial Officer of the Court shall assign a distinctive number to the petition and all subsequent proceedings on the petition shall bear that number.
(14) Along with the petition the petitioner shall furnish a copy thereof for service on the respondent and if a co-respondent is impleaded, an additional copy for service on him, together with the fee prescribed under the Court-fees Act for service of notices.
(15) (i) Notice of the petition shall be in Form No. 2 given in the Schedule to these rules for settlement of issues and shall require the respondent and the corespondent, if one is named in the petition, to enter appearance in person or by pleader, and file a written statement not less than seven days before the day fixed in the notice.
(ii) The notice together with a copy of the petition shall be served on the respondent and the co-respondent, if named, in the manner prescribed in Order V of the Code of Civil Procedure, not less than 21 days before the day appointed therein: Provided that the Court may dispense with such service altogether in case it seems necessary or expedient so to do.
(16) Co-respondent in husband’s petition.—In any petition presented by a husband for divorce on the ground that the wife is living in adultery or judicial separation on the ground that the wife has, since the solemnisation of the marriage, been guilty of adultery, the petitioner shall make the alleged adulterer, if alive, a corespondent in the said petition, unless he is excused from so doing by an order of the Court which may be made on any or more of the following gounds which shall be supported by an affidavit in respect of the relevant facts—
(i) that the respondent is leading the life of a prostitute, and that the petitioner knows of no person with whom the adultery has been committed;
(ii) that the name of the alleged adulterer is unknown to the petitioner, although he has made due efforts for its discovery;
(iii) that the alleged adulterer is dead;
(iv) for any other sufficient reason that the Court may deem fit to consider.
(17) Respondent in wife’s petition.—Unless otherwise directed, where a wife’s petition alleges adultery with a woman named and contains a claim for costs against her, she shall be made a respondent in the case.
(18) Intervention.—(i) Any person other than a party to the proceeding including a person charged with adultery or sodomy, not made a respondent or corespondent, shall be entitled to appear and intervene in the proceedings. The application shall be supported by an affidavit setting forth the fact on the basis of which the intervention is sought for.
(ii) Notice for the application together with a copy of the affidavit shall be served on all parties who shall be at liberty to file counter affidavits.
(iii) If after hearing all the parties, the Court grants leave, the intervenor may take part in the trial subject to such terms and conditions as the Court may deem fit to impose.
(iv) If the Court is satisfied that the intervention was made without sufficient cause, it may order the applicant to pay the whole or part of the costs occasioned by the intervention. If on the other hand, the Court finds that the intervention is justified it may pass suitable orders for payment to the applicant the whole or any part of the costs of intervention.
(v) A person to whom leave to intervene has been granted may file in the Court an answer to the petition or written statement containing the charges or allegations against such intervenor.
(19) Written statement in answers to petition filed by respondents.—The respondent may and, if so required by the Court shall present a written statement in answer to the petition and the provisions of Order VIII of the Code of Civil Procedure shall apply mutatis mutandis to such written statements. In particular, if in any proceedings for divorce the respondent opposes the relief sought in the petition on the ground of the petitioner’s adultery, cruelty or desertion, the written statement shall state the particulars of such adultery, cruelty or desertion.
(20) Damages.—Any husband may, in a petition for divorce, claim damages from the co-respondent on the ground of his having committed adultery with the wife of such petitioner:—
(i) Such petition shall be served on the said co-respondent and the wife unless the Court dispenses with such service in accordance with the provisions of Rule 15.
(ii) The damages to be recovered on any such petition shall be ascertained by the Court, although the respondent or either of them may not appear. After the decision has been given, the Court may direct in what manner the damages shall be paid or applied.
(21) Costs.—The Court may direct that the whole or any part of the costs of the petitions for nullity of marriage or for divorce, incurred by any of the parties to such petitions may be paid by any of the other parties thereto: Provided that the co-respondent shall not be ordered to pay the petitioner’s cost—
(i) if the respondent was at the time of the adultery living apart from the husband and leading the life of a prostitute; or
(ii) if the respondent had not, at the time of the adultery, reason to believe the respondent to be a married woman.
The award of costs shall be in the discretion of the Court and the Court shall make an order of the same while passing the decree.
(22) Unless otherwise directed by the Court, the costs of the petition under the Act shall be costs as taxed in suits under the Indian Divorce Act IV of 1869.
(23) Appeals under the Act shall be governed by the relevant rules in the Patna High Court General Rules and Circular Orders, Civil or by the Rules of the High Court at Patna, as the case may be, so far as they may be applicable. shall also bring with or send by your pleader any documents which the petitioner desired to inspect and any documents on which you intend to rely in support of your defence.
Note.—A copy of the petition accompanies this notice.
PART III
Records
CHAPTER I
The Classification of Records of Judicial Proceedings.
215. The records of judicial proceedings, whether suits or cases, are divided into six classes. This classification relates only to the preparation and the preservation or destruction of the record, and does not affect any other classification of suits or cases for the purpose of returns or statements.
216. Class I includes records of—
(a) Suits for or affecting immovable property other than suits under Order XXXIV, Civil Procedure Code, 1908.
Note.—Suits under Section 9 of the Specific Relief Act, 1877]1, should be included, not in this class, but in class III.
(b) Suits in respect of the succession to an office, or to establish or set aside an adoption, or otherwise determine the status of an individual.
(c) Suits relating to public trusts, charities or endowments.
(d) Proceedings under the Indian Divorce Act, Suits under the Hindu Marriage Act and the Special Marriage Act and Suits for dissolution of marriage by exercise of the option of puberty under the Muhammadan Law. [G.L. 8/22, G.L. 1/58.]
(e) Suits for perpetual injunctions and declarations of right in matters other than those specified in clauses (a), (b) and (c) above.
(f) Suits between landlord and tenant to determine the rate of rent, or in which a question of the right to enhance or vary the rent of a tenant, or any question relating to a title to land or to some interest in land as between parties, having conflicting claims thereto, is in issue.
Note.—The phrase “suits between landlord and tenant to determine the rate of rent” refers only to such suits as are brought expressly for the determination of the rate, e.g., under section 52 of the Bihar Tenancy Act, and should not be extended to cover all cases in which the rate at which rent is payable is brought in issue.
(g) Cases under Section 158 of the Bihar Tenancy Act, 1885, to determine the incidents of a tenancy.
(h) Cases under section 109 A(2) of the Bihar Tenancy Act, and Section 87 (2) of the Chota Nagpur Tenancy Act.
(i) Cases under section 84 of the Bihar Tenancy Act.
(j) Cases under the Mussalman Wakf Act, 1923 (XLII of 1923)1, and applications for the sanction required by the Muhammadan Law for the transfer of Wakf property.
(k) Applications under the Charitable and Religious Trusts Act (XIV of 1920).
(l) Applications under sections 14 and 20 of the Arbitration Act, 1940 (Act X of 1940)2.
(m) Applications under sections 32 (3), 43 (1) and 48 of the Bihar Hindu Religious Trusts Act (Act I of 1951).
(n) Appeals under Section 70, sub-clause 2 (b) of the Bihar Hindu Religious Trusts Act (I of 1951).
(o) Applications under sections 11, 22, 32, 34, 36, 41, 46, 49, 53, 71, 72, 73 and 74 of the Indian Trusts Act (II of 1882).
217. Class II includes records of—
(a) Suits under Order XXXIV of the Code of Civil Procedure, 1908.
(b) Suit for declaration of a right to maintenance with or without a charge on immovable property or to determine the rate thereof.
(c) Contested and uncontested suits and cases for Probate and Letters of Administration, and for the revocation of the same.
Note 1.—The custody and the preservation of a will itself is provided for by Chapter VI, and consequently a will is not a part of the record within the meaning of this rule, unless Probate or Letters of Administration have been refused.
Note 2.—Orders in an enquiry made at the instance of the Collector under clause 5 of Section 19H of the Court-fees Act, VII of 1870, should be written on the order-sheet of original cases to which they relate; and the papers of the proceedings will form part of the original case.
(d) Cases under Guardians and Wards Act, 1890, and the Hindu Minority and Guardianship Act, 1956 (Act 32 of 1956) relating to the guardianship of minors and the administration of their property.
(e) Cases under the Indian Lunacy Act, 1912]3, relating to the guardianship of lunatics and the care of their estates.
Note.—An application by an executor or administrator or by the guardian of a minor or lunatic, to sell, mortgage or otherwise dispose of property belonging to the estate, is an application in the case, and together with all the proceedings connected with it, must form part of the record of the case.
(f) Cases for Succession Certificate under the Indian Succession Act, 1925.
(g) Application under Section 30 of the Industrial Finance Corporation Act, 1948 (Act XV of 1948).
(h) Application under Section 31 (1) of the State Financial Corporations Act, 1951.]
218. (1) Class III includes records of—
(a) All suits which do not come under Class I or Class II, excluding suits of the Small Cause Court class which are tried in the Regular Civil Courts under the procedure prescribed for Small Cause Courts and suits falling under Class III-A.
(b) Suits for the recovery of arrears of maintenance.
(c) Cases under Part VII of the Indian Succession Act (XXXIX of 1925).
Cases under the Land Acquisition Act, 1894, Parts III and IV.
Cases under the Land Registration Act, 1876, section 59.
Cases under the Transfer of Property Act, 1882, section 83, regarding the redemption and foreclosure of mortgages.
Cases under the Legal Practitioners, Act (Act XVIII of 1879).
Cases under the Bihar Tenancy Act, 1885, sections 91 to 93. [G.L. 5/65.]
Cases under the Civil Procedure Code for a declaration of insolvency, or under the Provincial Insolvency Act, 1920.
Cases under the Bengal Wills and Intestacy Regulation, 1799, section
7, regarding the property of intestates in which a claimant appears.
(d) Applications to sue or appeal in forma pauperis, if rejected.
(e) Cases under sections 98 (8) and 99 of the Bihar Tenancy Act.
(f) Applications under section 78 of the Village Administration Act, 1922 (III of 1922), and under sections 70 and 73 of the Bihar Panchayat Raj Act (VII of 1948).
(g) Applications under section 5 of the Religious Endowments Act, 1863 (XX of 1863).
(h) Cases under section 17 of the Payment of Wages Act, 1936 (IV of 1936).
(i) Applications for deposit of money under section 24 of the Bihar Money-Lenders Act, 1938 (Bihar Act III of 1938).
2(j) Cases arising out of Election Petitions under the Bihar District Board Election Petitions Rules, 1939.
(k) [Deleted]
(l) Cases arising out of Election Petitions under the Bihar Municipal Election Petitions Rules, 1941.
(m) [Deleted]
(n) [Deleted]
(o) Application under sections 7, 8, 9, 11, 12 and 33 of the Arbitration Act, 1940 (Act X of 1940).
(p) Applications under sections 28 (3) and 47 of the Bihar Hindu Religious Trusts Act (Act I of 1951).
(q) Applications under section 22 of the Hindu Succession Act, 1956 (Act 30 of 1956).
(r) Such other cases as the High Court may from time to time direct to be included.
(r) Application under section 11 of the Bihar Panchayat Samiti and Zila Parishads Act, 1961.
(s) Petition under Rule 149 of the Bihar Panchayat Samities and Zila Parishads (Elections, Co-options and Election Petitions) Rules, 1963.]
(2) Class III-A includes records of—
(a) Suits for arrears of rent under the Bihar Tenancy Act where the claim does not exceed Rs. 250.
(b) Cases under section 153 (last paragraph) of the Bihar Tenancy Act.
(c) Applications under sections 11B and 12 (3) of the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1947]2.
(d) Applications under sections 75, 89, 113, 141, 234, 240 and 614 and cases under sections 118, 144, 163, 196, 219, 304, 307 and 375 of the Companies Act, 1956 (1 of 1956).
(e) [Deleted]
(f) Applications for compensation under section 110A of the Motor Vehicle Act, 1939.
Note.—Proceedings under the Civil Procedure Code for the transfer or for the restoration of a suit or appeal, or for a review of judgment, are proceedings in the suit or appeal, and must form part of the record relating thereto.
219. (1) Class IV includes—
Proceedings in execution of decrees in suits belonging to Classes I, II, and III.
(2) Class IV-A includes—
Proceedings in execution of decrees in suits belonging to Class III-A.
Note 1.—Under the law, all such proceedings are proceedings in the suit and they must be entitled as such; but for the purpose of the arrangement and ultimate disposal of the record, each application for execution shall be treated as a separate case, the record of which shall include the papers on all matters connected with the execution from the date on which the application was presented until it is finally disposed of.
Note 2.—Proceedings by which decrees are sent or transferred for execution are included under this general heading.
Note 3.—Orders under section 169 of the Bihar Tenancy Act should be written on the order-sheet of the case on which the proceedings arise and the papers relating thereto should form part of the record of the case.
220. Records of suits of Small Cause Court class tried under the Small Cause Court Procedure by Judicial Officers empowered under section 25, Act XII shall be disposed of in accordance with the Rules hereinafter provided for records of Courts of Small Causes (Chapter V).
221. A separate record having its own order-sheet and containing appropriate papers or extracts from the original record should be started in proceedings under the Criminal Procedure Code arising out of a suit, appeal or execution case. A reference to the initiation and termination of the proceeding will be made in the order-sheet of the original suit, appeal or case and the record of the proceedings will be kept in the record-room with that of the original suit, appeal or case, annexed to that file thereof which under the rules is to be preserved for the shortest period.
CHAPTER II
The arrangement, preparation and inspection of records in the Trial Court.
I—ARRANGEMENT AND PREPARATION OF RECORDS
A—THE DIVISION OF THE RECORDS INTO FILES
222. Every record shall as hereinafter provided consist of one or more of the following files to be ordinarily preserved for periods noted against each
223. Every record under Class I shall consist of three files to be styled and marked, respectively, File A, File C and File C-I.
224. File A shall contain—
(a) Table of contents.
(b) Order-sheet.
(c) The plaint or application, together with any schedule annexed thereto.
(d) The written statement of the defendant or the counter petition.
(e) Memorandum of the Issues.
(f) Award of arbitrators or petitions of compromise, if given effect to in the decree; also the return or report and the map and field-book (if any) of a Commissioner in matters relating to immovable property, if referred to or given effect to in the decree, but not any portion of the evidence taken by such Commissioner; also, in the case of Minors or Lunatics, any order of the Court sanctioning a compromise as beneficial to the Minor or Lunatic.
(g) The preliminary decree (if any), with the further directions (if any) given and the judgment upon which the preliminary decree is founded.
(h) The Judgment.
(i) The final decree.
(j) The copy of the judgment and decree of the Appellate Court or Courts (if any).
225. File C shall contain—
(a) Table of contents.
(b) All the evidence, oral and documentary, upon which the subject matter of the suit is decided.
(c) Lists of documents admitted in evidence.
226. File C-1 shall contain—
(a) Table of contents.
(b) All other papers.
227. Every record under Class II shall consist of two files to be styled and marked File B and File C-1.
(a) File B shall contain the papers specified and included in Files A and C, Class I.
Note.—Security bonds filed in cases mentioned in clauses (c) and (d) and applications referred to in the note under clause (e) of rule 217 as also other papers the preservation of which has been directed by the Judge, will form part of File B.
(b) File C-1 shall contain all other papers.
Note.—The papers of the proceedings of an inquiry made at the instance of the Collector under clause 5 of Section 19H of the Court-fees Act, VII of 1870, should be kept in this file.
228. Every record under Class III shall consist of two files to be styled and marked File C and File C-1 and every record under Class III-A shall consist of Two files to be styled and marked File D and D-1 containing all the papers relating to the case.
229. (a) Every record under Classes IV and IV-A shall, except as provided in sub-rules (b) and (d) consist of one file which shall contain all the papers relating to the case. It shall be styled and marked File D where the decree under execution has been passed in a suit belonging to Class III-A and File C in all other cases. (b) If the proceeding comprised in a Class IV record arose out of an application to execute a decree in a suit included in Class I, and a question is determined as to the construction of the decree, of its effect as regards all or any of the parties thereto, the record shall be divided into two files to be styled and a marked respectively File A and File C.
(c) In cases falling under sub-rule (b), File A shall contain—
(a) Table of contents.
(b) The Order-sheet.
(c) The application for execution.
(d) The petition raising any question as to the construction or effect of the decree, and any counter-petition.
(e) The judgment of the Court on such question.
(f) The copy of the judgment of the Appellate Court or Courts (if any).
(d) Where delivery of possession of immovable property has been made in execution of a decree for recovery of possession or where immovable property has been sold in execution of a decree and the sale has been confirmed, the record shall be divided into two files to be styled and marked respectively File B and C-1, the essential papers, namely, the order sheet, the application for execution, the copy of the sale certificate and the writ of delivery of possession with Nazir’s report being placed in File B and other papers in File C-1.
230. (a) Every record of an Appellate Court shall be arranged in the same way as that of the Court of Original Jurisdiction except that there shall be no C File in respect of Class I records, the papers which would belong to that file where additional evidence is taken being attached to the C-1 File.
(b) The files must be marked A, B, C or D as in the Court of First Instance according to the nature of the case.
Note 1.—The copy of the judgment and decree which accompany a memorandum of appeal should be placed with File C-1.
Note 2.—In the case of Civil Appeals except miscellaneous appeals the certified copies of judgments and decrees filed with the memorandum of appeal should be returned to the appellants on their applying for them after the disposal of the appeals, since the original record is kept with the appellate record in the district record room. In the case of appeals from the decisions of Settlement Officers and civil miscellaneous appeals, these documents should not be returned, but should be retained with the appellate records until the “C” File with which they are placed is due for destruction.
231. The distribution of papers into the proper files must be made immediately after the first hearing and shall be continued from day to day as the case proceeds.
232. Notwithstanding anything contained in the foregoing rules, the record in the following cases shall be preserved for one year and shall consist of one file only unless such distribution has already taken place before disposal—
(i) Where the plaint 1[or Memorandum of appeal] has been rejected.
(ii) Where the case has been dismissed under Order IX, Rule 2 in consequence of the plaintiff’s failure to pay cost of summons to the defendant, or Rule 3 where neither party appears. [G.L. 2/85.]
(iii) Where the case has been dismissed on satisfaction before decree.
(iv) Where the plaint or memorandum of appeal has been returned for presentation to proper Court.
Note 1.—In case (ii) the file will be split up when an application for restoratio n is filed. When a question as to the construction, effect or scope of the decree is raised and determined
Note 2.—In cases where costs have been awarded by the final order the record should be classed as File C. On the record of every such case the Court Muharrir shall stamp or write conspicuously the words “rejected”, “dismissed for default”, “satisfaction” or “plaint returned”, as the case may be.
B—THE TITLE PAGE
233. To each file of every record shall be prefixed a title page in the prescribed form showing the period of its preservation.
Note—No title page need be attached to records of cases referred to in Rule
232 until these are called for by some superior Court. Then the title page of the first file according to classification, shall be attached.
234. The title pages shall be of different colours—
File A … White
File B … Red
File C and C-1 … Yellow
File D … Blue
File D1 … Colour Blue.
C—THE TABLE OF CONTENTS
235. The table of contents shall be written in English day by day as the case proceeds, and except as otherwise provided shall show all the papers in the file in the order they are filed, A separate serial number will be assigned to the ordersheet (e.g., i, ii, iii, iv, etc.) and it will not be taken into account in giving page marks to the other papers in the file.
236. The transfer of any paper from one file to another shall be noted in the table of contents of both the files.
237. Document filed in any case and the exhibits are not to be entered in the table of contents; but their lists are to be shown in their proper places in the table of contents.
D—THE ORDER SHEET
238. The order-sheet shall be written in English and shall contain all orders passed by the Court.
Note.—Orders shall not be written on petitions, reports and other similar documents. The serial number and the date of the order passed on any petition shall be noted on such petition.
Comments & Case Law
[Issuance of warrant of arrest. Order-sheet shall be written in English and shall contain all orders passed by the Court. Orders shall not be written on petitions, reports and other similar documents. Serial number and date of order passed on any petition shall be noted on such petition. Order passed by Magistrate in the margin of petition filed by I.O. is clear violation of Rule 238. Krishna Murari Yadav vs. State of Bihar, 2005(3) PLJR 746 : 2005(3) PCCR 24.]
239. The order-sheet, being intended to show the course of a suit or case from first to last, shall also contain a note of every order made in the suit or case, and shall show the date of, and the proceedings at, every hearing. It shall show, among other matters, the dates on which the plaint and written statements were filed, issues were recorded or amended, witnesses examined and the names of such witnesses, the date of the delivery of judgment, of the signing of the decree, and of any application for review of judgment or amendment of the decree. It shall also contain a note of proceedings, such as the reading of the deposition of a witness examined by Commission, the reading of a Commissioner’s report, and of the fact of any objection being made thereto, and if witnesses are in attendance when a case is adjourned, the fact shall be noted.
Note.—Orders in proceedings under the Code of Civil Procedure for the transfer, or for the restoration of a suit or appeal, or for a review of judgment (see note to Rule 218, Chapter I of this Part), should be entered in the order-sheet of the main suit or appeal. A separate order-sheet should not be prepared. In all cases the order of an Appellate Court calling for the record of a suit or appeal, should be recorded on a separate paper and reproduced on the order-sheet of a suit or appeal when the records have been received from the Lower Court. When such proceedings are disposed of without the main record being called for by the Appellate Court, the order on the application should, in the same way, be recorded on a separate paper, and directions given to the Subordinate Court to reproduce the same on the order-sheet of the main record.
240. Orders, the reasons for which require to be recorded at length, shall not be written on the order-sheet, but a note of the order and of the date on which it was made, shall be entered in it.
241. Orders directing anything to be done by the parties or their pleaders, shall be signed then and there by the parties or their pleaders.
242. The order-sheet may be written by an officer of the Court at the dictation of the Presiding Judge, who, however, shall sign and be responsible for the correctness of the entries in it. Rubber stamps may conveniently be used for recording routine orders.
E—THE RECORD
243. The pleadings, applications, proceedings and other papers in every suit or case shall be attached as the case proceeds to the files to which they belong, and shall be arranged in the order in which they are brought before the Court.
244. The depositions of witnesses for each party shall be arranged in the order in which they are given. The examination of the parties recorded by the Court under Order X, Civil Procedure Code, shall precede such depositions. The depositions of witnesses examined by the Court shall be placed after the depositions of witnesses for the parties.
F—DOCUMENTS
245. Documents admitted in evidence shall be marked with figures 1, 2, 3, etc., and capital letters A, B, C, etc., accordingly as they are admitted on behalf of the plaintiffs or defendants and separate lists of such documents in Form No. (J) 11 shall be prepared by the Bench Clerk which will be signed by the Presiding Judge. The entries in these lists shall be made day by day. [G.L. 15/19, G.L. 1/22, G.L. 4/60, G.L. 3/65.]
246. When there are two or more parties of defendants, the documents of the first party may be marked A-1, B-1, C-1, etc., and those of the second, A-2, B-2, C-2, etc.
(a) Where an exhibit forms part of a voluminous document, such account book, Khata and counterfoil receipt book, etc., it should be clearly indicated by means of a slip of paper pinned to the sheet or page on which it occurs, the exhibit mark being noted on the slip.
(b) When an entry in an account book is admitted in evidence the portion so admitted shall be clearly indicated by enclosing the same in red ink.
247. When documents are admitted at the instance of the Court and neither party is willing to accept them as evidence on his behalf; they shall be marked as I, II, III, etc.
248. When a number of documents of the same nature are admitted, as for example, a series of rent receipts, the whole series should bear one number or capital letter, a small letter or small number being added beneath the number or letter, and separated from it by a line to distinguish each paper of the series.
249. Exhibits must not be defaced in any way except in so far as the law permits, that is to say, by marking them as Exhibits filed in a case. [G.L. 3/23.]
250. When a document of historical or antiquarian interest is in question the Court should make every possible endeavour to prevent it being defaced by endorsement or exhibit marks or by having the seal of the Court impressed upon it. If the parties do not agree to a photograph copy being substituted for the original, the document may be enclosed in a sealed cover or in a locked or sealed box, the necessary particulars being endorsed outside such box or cover. If every other means fails measures should be taken for the safe custody of the document pending instructions from higher authorities.
250A. Any party to a suit or proceeding may file photostat copy of any valuable and important document and the original thereof may be produced at the time of evidence. The original document may be returned to the party concerned soon after it has been inspected or put in evidence unless its retention is considered necessary. In case retention of original document is considered necessary by the Court, all measures should be taken by the Court for its safe custody.
251. When an original document, after being marked for the purpose of identification, is returned, and a copy thereof substituted under the provisions of Order VII, Rule 17, or Order XIII, Rule 5, Code of Civil Procedure, a note of the return of the original shall be made in the lists referred to in the preceding rules.
252. When any public document (not being the record of a suit or of a judicial proceeding) or a document in public custody has been produced in Court in compliance with a summons the Court shall after the document has been inspected or put in evidence, as the case may be, cause it to be returned with the least possible delay to the officer from whose custody it has been produced after the preparation of such copies as the Court may require under Order XIII, Rule 5, clause (2) Civil Procedure Code, unless its detention is considered to be necessary till the delivery of the judgment.
Note.—While returning any public document, the Court shall make an endorsement therein near about the exhibit mark and by a separate order in the order-sheet of the case direct that it shall not be destroyed without previous permission of the Court and the Court shall not accord such permission until the trial is concluded, or in case where appeal lies until sufficient time has elapsed for
appeal, or, if an appeal is preferred, until the determination thereof. The Court shall forward to the department concerned a copy of the order and before according permission for destruction, shall satisfy itself that no appeal is pending. The term “appeal” includes a second appeal and an appeal to the Supreme Court.
253. Should any document or book produced at any time in the course of the proceeding, present a suspicious appearance or be held by the Court to be forged or fabricated, the Court shall make a note of the fact on the order-sheet of the case and direct therein that it shall be kept in safe custody and shall not be returned to the parties concerned without permission of the Court. The Court shall not accord such permission unless all proceedings connected with such document or book have been completely disposed of. A note in red ink to the above effect shall also be made in the exhibit list as well as on the list with which the document has been filed in Court. A similar note shall be made on a separate piece of paper which shall be attached to document or book concerned.
254. Where the Court does not make any direction to the contrary unexhibited documents, if not returned earlier, shall, at the conclusion of the trial, be returned to the person producing them or his pleader after he has signed the receipt for the same in the proper column on the list. A pleader, when required to do so, is bound to take back any document produced by his client and to sign the receipt referred to above. [G.L. 3/29.]
255. (1) A private person, not a party to the suit, producing a document in Court in compliance with a summons, should be required to state in writing the address to which the document is to be returned, if not returned to him personally. If it is desired that the document should be returned to a pleader, a vakalatnama shall be filed along with the document.
(2) Where the document is not tendered or admitted in evidence it shall be returned at once to the person producing it either personally or by registered post.
(3) Where the document is admitted in evidence, a certified copy thereof shall be prepared and placed on the record, if not already there. The original shall then be returned to the person producing it personally or by registered post, or to his pleader unless the genuineness of the documents is in controversy, in which case the original shall, unless the Court otherwise directs, be returned after the trial is concluded, or, in cases where an appeal lies, after sufficient time has been allowed for appealing, or, if an appeal is preferred, after the determination thereof. The word
“appeal” includes a second appeal where a second appeal lies.
(4) (a) In the case of voluminous documents, such as account books or collections of zamindary papers, which cannot conveniently be returned by registered post, the person producing them shall, if they are not returned to him at once, be informed in due course by registered letter that he is at liberty to take them back, and that his reasonable travelling expense will be furnished.
(b) This procedure shall also be adopted where the person producing the document states in writing at the time of production that the document is of value to him and that he will take it back personally.
(5) In cases where the person producing a document has any pleader or mukhtar authorised to take back documents on his behalf the document may be returned under the foregoing Rules to such pleader or mukhtar, unless at the time of production the person producing it states in writing that it should be returned to him personally or by registered post.
(6) (a) Before a document such as is referred to in sub-rule (1) is called for at the instance of a party to the suit, such party shall deposit a sum sufficient to meet such expenses as are likely to be incurred, including the cost of returning the document by registered post, the cost of preparing a certified copy under sub-rule
(3) and in cases under sub-rule (4) the travelling expenses both ways of the person producing the document.
(b) In cases under sub-rule (4) the travelling expenses shall be transmitted to the person producing the document along with registered letter therein referred to.
256. A period of three months from the date of the decree should ordinarily elapse before the documents exhibited in a case are returned to the person who produced them. The Presiding Officers of outlying Courts should see that exhibits are as far as possible returned before the periodical despatch of the records to the District Record Room.
256-A. Rule 298 of Chapter IV shall in so far as it is not inconsistent with these rules apply to applications for the return of documents from the Courts.]
II—INSPECTION OF RECORDS
257. No record not deposited in the Record-Room shall be inspected without the permission of the Presiding Officer of the Court to whose file it appertains.
258. The Presiding Officer may either in his presence or in the presence of his Sarishtadar allow inspection of any such record to public officers and pleaders in the case subject to the general conditions laid down for inspection of Records in the Record-Room (vide Chapter IV, Rules 312, et seq post). [G.L. 9/24, G.L. 1/38, G.L. 10/53.]
Note.—The permission of the Presiding Officer may be obtained on a written application in Form No. (M) 41 which will be supplied free of cost.
CHAPTER III
The Transmission of Records to the District Record-Room
259. The records of decided, contested and uncontested suits and cases of Classes I, II, III and III-A other than those referred to in rule 232, of the preceding chapter, and the records of miscellaneous non-judicial cases and of cases belonging to Classes IV and IV-A shall be forwarded to the District Record-Room by Judicial Officers at headquarters in the course of the second month and by Judicial Officers at out-stations in the course of the fourth month next succeeding that in which they were decided or disposed of. [G.L. 1/35, G.L. 1/36.]
Note 1.—For the purposes of this rule suit in which preliminary decrees are made should be regarded as finally disposed of only when the final decree has been passed but where in suits for partition the final decree cannot be drawn up owing to the failure of the party concerned to pay stamp duty of the requisite value, the record shall be forwarded to the District Record-Room by the Courts at headquarters on the expiry of six months, and by the Courts at out-stations on the expiry of one year, after the date on which the final decree was passed.
Note 2.—In suits relating to mortgage, if no final decree is passed the record shall be retained in the Trial Court for three years from the date fixed for the payment of the sum declared in the preliminary decree to be due. [G.L. 5/41.]
Note 3.—Where the decree directs a partition, or under Order XX, rule 12, of the Code of Civil Procedure, an enquiry as to rent or mesne profits, and no final decree is passed, the record shall be retained in the Trial Court for three years from the date of the preliminary decree.
260. The District Judge shall fix the dates on which in the course of the month the records from each Court at headquarters and out-stations, respectively, shall be despatched to the District Record-Room, the dates being so arranged as to secure an even distribution of work in the Record-Room. [G.L. 3/45.]
Note 1.—The orders passed by the District Judge under this rule, fixing the date for the transmission of records, shall be copied and posted in the Record- Room and in the offices of the Courts to which they relate.
Note 2.—A list in Form No. (R) 20A should be kept posted each year in the Record-Room showing clearly for each Court the dates of which the records are due for deposit and the dates on which they are actually received.
261. (a) A separate list in Form No. (R) 20 written in English shall accompany the records of each class. These lists should be of uniform size to enable their being bound up in separate annual volumes for each class of records of the same Court so as to constitute a catalogue of records in the Record-Room to be preserved for the same period as the records to which they relate. [G.L. 5/52.]
(b) The list required by this rule shall be prepared in duplicate and shall contain an entry of every suit or case other than those referred to rule 232 of the preceding chapter, disposed of during the period. The duplicate copy shall be forwarded to the District Judge, under a separate cover and will be returned to the issuing Court duly signed by the Record-Keeper who shall acknowledge that the records have been received. The duplicate copies shall be preserved for three years unless the period is extended by the District Judge.
Note.—Zanetic, that is, pen carbon paper should be used in making duplicate copies if a typewriter is not available.
(c) If any record included in the list is kept back for any reason the fact should be noted in the remarks column, clearly distinguishing between those kept back though due for despatch and those referred to in notes 1–3 to rule 259, which though entered in the list are not yet due for despatch. The ‘kept back’ records of both such classes should be entered also in a separate list to accompany the despatch list.
262. The records of cases referred to in rule 232 of the preceding chapter shall be entered in a separate list [in Form No. (R) 20] and kept in the respective Courts to which they belong and will be destroyed after one year from the date of final disposal unless there has been an order for restoration to file. When such destruction takes place the fact should be noted in such list and in the Court’s Register against the entry for the particular case. The list referred to above shall be preserved for three years. [G.L. 6/47, H.C. letter no. 2765–80, dated 26th February, 1965.
263. When preparing the list [in Form No. (R) 20] referred to in the preceding rule, a second hole shall be punched with a triangular punch, on each Court-fee label distinct from the first in the records mentioned in the said rule, and a note shall at the same time be made upon the title page or the first sheet of each record of the date on which the stamps on documents contained in it have been so punched.
Note.—Before signing the order of destruction of such records, the Presiding Officer shall satisfy himself that Court-fee labels have been repunched with a triangular punch.
264. All registers which have to be permanently preserved shall, after 12 years from the date of the last entry therein, be sent to District Record-Room with a list in Form No. (R) 21.
CHAPTER IV
District Record-Room
I—RECORD-ROOM ARRANGEMENT AND THE GENERAL DUTIES OF THE RECORD-KEEPER
265. “The Record-Room” is a room set apart for the storage of decided cases and the “Record Keeper” is the ministerial officer in immediate charge of such records.
266. It is desirable, and whenever possible it should be arranged, that each Record-Room shall have only one combined entrance and exit, and that the Record-Keeper’s table shall be so placed that no one can enter or pass papers out of the Record-Room unseen by him.
Note.—Repunching peons should work near the Record-Keeper’s table.
267. All other windows, doors or openings in the walls of the Record-Rooms, and all inner and outer windows, doors, or openings giving access from the Record- Room, to any office or verandah which is not part of the Record-Room, shall be protected by iron gratings and wire-netting, in such manner as to render it impossible that papers should be passed through them, and the Record-Keeper shall, by periodical inspection, satisfy himself that the railings and netting are in good order.
267-A. The Record Keeper shall be the custodian of the keys of the Record Room. Where the Civil Courts are in reasonable proximity to the Revenue Courts, duplicate keys of the Record-Room shall be kept in a sealed cover with the Head Constable of the Treasury Guards who should be instructed to hand over the keys only in the event of an alarm of fire between sunset and sunrise, or upon presentation of written order from the Judge-in-charge, Record-Room. In other case, the duplicate keys shall be kept by a Selection Grade Clerk of the Civil Courts to be appointed as custodian for the purpose by the District Judge. The clerk so appointed should be required to live as near as possible to the Civil Court buildings. The keys shall be sent for once a year in the month of April, examined by actual insertion in the locks and returned either to the Head Constable of the Treasury Guards or to the Clerk appointed for the purpose, as the case may be, under fresh
seal. For other precautionary measure, the instructions contained in Government Resolution Nos. 2745J, and 2746J, dated the 30th October, 1909, No. 529J, dated the 11th May 1910, and other instructions issued by the Government from time to time, should be followed.]
268. The Record-Keeper must obtain and keep in his guard-file a copy of the instructions issued by Government for the protection of buildings and records against fire, and he will be held responsible for ensuring that these instructions are carefully observed.
269. The distribution of work among the clerks should so far as possible, be arranged on the basis of the various Courts in the district, each clerk dealing with the records of the Court or Courts of which he is in charge and all matters connected with them.
270. The Record-Keeper shall submit to the Judicial Officer placed by the District Judge in charge of the Record-Room a fortnightly progress report in Form No. (M) 30. [G.L. 7/46.]
271. A plan and index of the Record-Room shall be prepared by the Record- Keeper on the lines of the specimen plan and form of Index reproduced as Appendix C, and as Form No. (M) 31 respectively in Volume II, and should be hung up in a conspicuous place in his office. The plan should indicate the position and serial number of the several racks and almirahs in each room, and the entrance to, and number of, each room. It should also include an end section of the racks, showing the serial number of the several shelves in each. The information required for the “Index” should be set out below the plan by Courts.
272. This plan and index must be kept up to date, and should be corrected yearly after the periodical destruction of records has been carried out.
273. The rooms, racks and shelves in the Record-Room should be numbered conspicuously. The rack number should be fixed at the end of each rack nearest to the passage way, and at a height where it can easily read; the letters A and B should be marked to denote the left and right hand shelves of the rack.
274. An Index-board, typed or printed in foolscap size in Form No. (M) 32, should be hung up in a conspicuous place at the end of each rack.
275. Every almirah in the Record-Room should be clearly marked outside with a letter or figure and the shelves therein should be numbered. A list in English showing its contents should be kept in each almirah.
276. The Record-Keeper shall keep in a guard-file all inspection notes (or copies thereof) made by the District Judge or by any other officer on inspecting the Record-Room, and shall note on the margin of such notes the action taken upon them.
277. Registers not in current use and kept in the Record-Room, should be arranged on shelves vertically and should be labelled on back of the volume.
II—RECEIPTS OF RECORDS IN THE DISTRICT RECORD-ROOM
278. On the arrival of a batch of records in the District Record-Room, the Record-Keeper shall see—
(a) that each record is stamped with a rubber stamp bearing the words “District Judge’s Record-Room”, the name of the district and date;
(b that the records correspond in number and description with the entries in the despatch lists;
(c) that a second hole is punched with a triangular punch, on each Courtfee label distinct from the first and a note is at the same time made upon the title-page of each record of the date on which the stamps on documents contained in it have been so punched;
(d) that the classification and arrangement under Chapters I and II of this Part have been carried out; that the contents of each file correspond with the Table of Contents, that the papers bear the Court-fee stamps shown in such table; that the stamps have been duly cancelled and that the papers requiring Court-fee stamps have been properly stamped;
(e) that all records kept back in the Trial Courts after the due date for despatch under rule 261 (c), Chapter III, Part III, are entered in Register (R) 19 so that they may be dealt with under rule 308.
Note.—The second or triangular punching of Court-fee stamps prescribed in this rule should be made on the day the records are received in the District Record-Room, and should not await the inspection or examination of records.
279. If in the course of carrying on the duties enumerated in these rules, the Record-Keeper finds that any stamp shows signs of having been tampered with or discovers any deficiency, irregularity in cancellation, or other circumstance exciting suspicion, he must at once submit a report to the Judge-in-charge of the Record- Room.
Note.—The reports should be submitted separately for each record and should not be delayed until the examination of a complete batch of records is concluded.
280. The Record-Keeper shall enter the date of the receipt of the records, the date on which they were actually due and the number of records received, in the space provided in the despatch list. Should there have been material delay in despatching the records, the fact should be brought to the notice of the Judge-incharge.
281. Reports under rules 279 and 288, if forwarded under the orders of the District Judge for explanation to Courts concerned, should be submitted to the Judge-in-charge on return, and when finally disposed of should be filed by the Record-Keeper in chronological order, and in a separate file for each Court.
III—ARRANGEMENT OF RECORDS IN THE RECORD-ROOM
282. The records in the District Judge’s Record-Room should be arranged by Courts, different racks being allotted for the records of each Court whenever the number and disposition of racks permit of this arrangement.
283. The records of each Court for each year should be made up into bundles, each such bundle containing records of only one of the classes referred to in rules 216–219, Chapter I of this Part, according to their dates of disposal as shown on the title-pages. [G.L. 9/49.]
284. The bundles will be arranged on the racks, class by class, and in each class year by year in sequence. As the time for destruction of records of Classes II, III, IIIA and IV (other than those comprising A files and IV-A of a particular year arrives, the bundle or bundles for that year will be removed from the rack or section of a rack which they occupy, and the rack will then become available for the records of the in-coming year.
285. If the records of a single Court for one year cannot be contained in one bundle, the bundles should be serially numbered so as to show the total number of bundles for that year. Thus, if there are three bundles, they should be numbered 1– 3, 2–3 and 3–3, respectively. The bundle numbers should be shown in column 7 of the bound lists, and should be altered as the bundles are amalgamated on destruction of records.
286. The bundle shall be of foolscap size. To the back and front of each bundle a flat board or a piece of stout mill board, of the same width as the record, should be tied. Each bundle should be of sufficient depth to occupy fully the depth of the shelf.
287. Against each bundle will be exhibited a label in Form No. (M) 34 showing in bold figures the dates on which the different files therein contained are liable for destruction. These labels should be of a uniform size and should have paste board backs.
288. As the bundles decrease in size owing to the removal or destruction of records, the Record-Keeper will re-arrange the bundles so as to fill up the depth of the shelf on which they stand, and should re-write, if necessary, the index referred to in the previous rule.
289. A wooden board, or tin-sheet index 8–13, setting out in English, the Court and the class of records kept on each shelf of the record rack should be so hung on the shelf that it can be removed when the position of the records is for any reason altered.
290. Where the system of depositing records in cloth bundles exists it should be discontinued as soon as possible and the system of flat bundles laid down in these rules should be introduced provided that this can be done within the available Record-Room grant. Meanwhile the bundles should be indexed as indicated in these rules.
IV—CUSTODY, REMOVAL AND TRANSMISSION OF RECORDS AND DOCUMENTS CONTAINED THEREIN
291. No record should be retained in a District Record-Room which does not find an entry in one of the prescribed Record-Room registers.
292. No record deposited in the Record-Room shall be removed or allowed to be removed, by the Record-Keeper, except for the use of the officers of the Court or with the sanction of the Judge-in-charge of the Record-Room.
293. When a record is called for, except by superior Judicial authority or by a Civil Court acting under Order XIII, Rule 10, of the Code of Civil Procedure, the Court or officer calling for it shall state the circumstances which render its production necessary. The Judge may decline to forward it if in his opinion no sufficient grounds are shown. It is improper and inconvenient that records of the Courts of Justice should be sent to other public officers or functionaries. If a reference to their contents is required, the proper procedure is ordinarily to obtain copies of the requisite papers. [G.L. 4/26, G.L. 6/54.]
Note.—Civil Judges of every grade should exercise a careful discretion in acting under the provisions of Order XIII, Rule 10, Code of Civil Procedure.
294. No requisition made under the provisions of Order XIII, Rule 10, of the Code of Civil Procedure, by a Court subordinate to any of the High Court other than the High Court at Patna for production of the record of a case appertaining to, and in the custody of a Court subordinate to the High Court at Patna should be complied with unless such requisition is transmitted through the High Court at Patna and is accompanied by copy of the affidavit referred to in the rule above quoted together with a duly certified translation into English if such affidavit be in the vernacular.
Note.—The above procedure will apply when a Civil Court subordinate to the High Court at Patna calls for a record appertaining to and in the custody of any other High Court or Court subordinate thereto.
295. When, in the course of proceedings in a Criminal Court, it becomes necessary to refer to the contents of records deposited in another Court, the ordinary procedure is to require copies of the necessary papers to be filed. It frequently happens, however, that in the course of a criminal trial the production of an original record becomes necessary. In such cases the Court where the record is deposited shall comply with the requisition of the Criminal Court even though the reasons given for the production of the original record may be considered insufficient.
296. All requisitions for documents or records other than those received from the Copying Department shall on receipt be entered by the Record-Keeper (or by a clerk under the Record-Keeper’s personal direction) in a Register in Form No. (R) 18, and then handed for compliance to the clerk in charge of the required document or record. The latter shall immediately enter the application in a Register in Form No. (R) 19, and bring the required document or record to the Record-Keeper, who shall then despatch it to the requiring Court, after nothing compliance in column 4 of
Register (R) 18. [H.C. memo no. 3500–14, dated 29th March, 1966.] When a requisition is so defective that the Record-Room staff cannot comply with it, it shall be returned to the requiring Court or Officer, and the Record-Keeper shall note the return in column 4 of Register (R) 18. In Record-Rooms where the records have been divided into several separate charges for administrative convenience, each clerk in charge of a separate batch of records shall maintain a copy of Register (R) 19 in respect of the records in his charge. On the return of the document or record, he shall note in this Register the date of such return.
Note 1.—A separate requisition shall be sent for every record or for any number of documents out of the same record called for by any Court.
Note 2.—A memorandum of removal with the date should also be made in the remarks column of the despatch list against entry relating to a record removed.
Note 3.—Requisitions for records should, at the time of registration under this rule, be stamped with a date stamp and numbered serially.
Note 4.—All actions necessary to comply with a requisition for a record including the preparation of the letters to accompany the record and advising the despatch in Form Nos. (M) 3 and (M) 2, and packing and despatch of the record shall be taken by the Record-Keeper or a clerk in his office deputed for the purpose.
Note 5.—All requisitions for records should be despatched without delay.
Note 6.—Such records on receipts should be forthwith placed and carefully kept with the records of the cases in connection with which they have been requisitioned.
Note 7.—After disposal of the cases in question, such records must be returned to the Record-Rooms at latest at the time of the next periodical despatch of records.
At the time of each periodical despatch of records certificate under the signature of the Court and countersigned by the Sarishtadar to the effect that all outstanding records called for reference in cases disposed of up-to-date have been returned and records retained or kept back under the notes to rule 259 or rule 261 (c), Chapter III, Part III, and which have subsequently become due for despatch or which are no longer required have been despatched, shall be forwarded with the records despatched.
Note 8.—Requisitions received and issued for records and replies thereto shall be treated as correspondence and shall be entered in Register (R)(R) 19A or (R) 19B as the case may be, to be kept by or under the supervision of the Sarishtadar of the Court.
297. In complying with a requisition for copies of papers contained in a record, the Record-Keeper should not permit the entire record to be removed to the Copying Department, but only such documents as are specified in the application, unless the documents specified in the application constitute the entire record. All such requisitions shall on receipt in the Record-Room be entered by the Record- Keeper or a clerk to be specially deputed for the purpose in Register No. (R) 17.
Note 1.—Applications for information should be noted in this register in red ink.
Note 2.—Clerks of the Record-Room establishment should bring to the notice of the Record-Keeper any delay on the part of the Copying Department in returning documents to the Record-Room and the Record-Keeper should take such steps as will secure their return.
298. (a) Applications for the return of documents from records in the District Record-Room shall be made in Form No. (M) 42 to the Judge-in-charge of the Record-Room during the time to be fixed by the District Judge. The Judge-incharge will initial the printed order “Return if no objection” and transmit the applications to the Record-Keeper immediately on the expiry of the time so fixed. The Record- Keeper or a clerk deputed specially for the purpose shall then enter the applications in a Register in Form No. (R) 22. [G.L. 5/45, G.L. 2/49.]
(b) If the application has been made by the proper person and there is no objection to its being allowed, the Record-Keeper or any other clerk specially deputed for the purpose shall return the documents ordinarily on the next open day of the Court under the supervision of the Judge-in-charge or any other gazetted officer specially appointed by the District Judge for the purpose, during the time to be fixed by the District Judge. The dated signature of the person to whom the document is returned shall be obtained on the application and in the list of exhibits in acknowledgment of the receipt of the document as well as in column 8 of the Register. The application when complied with shall be attached to the file containing the documents. If the applicant does not appear to take back the document within three days from the date of filing the application, his application shall be rejected.
(c) If the application has not been filed by the proper person, or is defective in respect of material particulars and the information furnished is not sufficient to enable the documents to be traced by any other means or there is any objection to the return of document, or if the document cannot be returned on account of its non-availability or otherwise, the application with a report of the defects noted on it shall be submitted ordinarily on the next open day of the Court to the Judge-incharge who on the persuing the report will pass appropriate orders. Such applications as cannot be complied with for any of the reasons mentioned above shall be returned to the applicant by the Record-Keeper in the presence of the Judge-incharge during the time to be fixed by the District Judge, to be re-filed after removing the defects if possible. In case the applicant does not turn up to take back the defective application, or is not available, within three days of the filing of the
application, the application shall be rejected. If the application is re-filed it shall be proceeded with as before. The date of refiling the application shall be entered in red ink in column 2 of the Register in Form No. (R) 22 under its original serial number and entries in columns 7 and 8 thereof in respect of re-filed applications shall be made below the original entries against the fresh entry in column 2.]
Note 1.—The rejected applications shall be collected in monthly bundles in chronological order and preserved for three months.
Note 2.—The form of application for return of documents can be obtained from Nazir at two paise each or two rupees per hundred.
299. Whenever a record or a document from a record is removed from the Record-Room there shall be inserted in its place a removal slip in Form No. (M) 36 in which a full description of the record or document and the purpose and the date will be entered. Such slip shall be initialled by the Record-Keeper or the clerk handling the application for requisition.] Where, however, a document or record is removed in compliance with a requisition from any Court such requisition shall be used as a removal slip. When a record is removed for any purpose which would have the effect of transferring it to some other collection in the Record-Room by reason of an alteration in the date of disposal for purposes of destruction (e.g., in connection with appeal, remand, petition of re-hearing, restoration, review, etc., respecting the same case) no such removal slip will be necessary.
300. If the record removed is to be sent to another Court the word “Removed” shall be stamped on its title page in bold type.
301. The records of cases called for by the High Court, on appeal from the judgments and orders passed therein should be despatched within seven days from receipt of the requisition in the event of any delay occurring in their despatch, a reply should be sent explaining the cause of delay and the probable date of their despatch. [G.L. 5/19, G.L. 9/23, G.L. 2/30, G.L. 2/47, G.L. 2/48.]
Note.—Whenever voluminous documents such as account books, khata and counterfoil receipt books, etc., are sent to the High Court in connection with an appeal or reference, care should be taken to see that the instructions contained in clause (a) of Rule 246 have been complied with.
302. Records of execution cases sent up in appeal to the High Court should invariably be accompanied by all the papers connected with them in the Lower Courts, whether original or appellate.
303. The following instructions should be observed in transmitting records from one Court to another—
(a) If the two Courts are situated in the same station, the record should be despatched by hand properly packed with a despatch register in which a serial number and date should be entered, and the signature of the recipient should be taken. The serial number and date appearing in the despatch register should be reproduced in the remarks column of the Register of records removed. If the requisitioning Court is situated in a different station, records should ordinarily be sent by parcel post, the postage being paid by means of service stamps. But if the transmitting Court whether Civil, Criminal or Revenue, thinks fit, the record may be sent through a special messenger, in which case, on intimation thereof being given (and such intimation should be given forthwith), the cost of sending the special messenger including his pay and travelling allowance, if any, shall be realized in advance by the requisitioning Court from the party calling for the record, and shall be
paid under an order of the requisitioning Court. Civil Courts should ordinarily refrain from issuing summons for production of a record through a clerk or special massenger, leaving it to the transmitting Court to decide by what method the record shall be sent. [G.L. 2/24.]
(b) Records relating to different cases may, if not inconvenient be packed in the same parcel provided such records are separately tied up.
(c) In the parcel containing a record should be enclosed a forwarding letter, and the cover of the parcel should bear the distinguishing number and date of that letter.
(d) A letter of advice should forwarded simultaneously with the despatch of the parcel by post but separately and by ordinary letter post, and in it the number and date of the forwarding letter referred to in the preceding clause should be quoted.
(e) An acknowledgment should invariably be required from the Court to which a parcel containing a record has been sent and in the event of none being received within a reasonable time, enquiry should be made to ascertain the cause.
Note 1.—All letters advising the despatch of civil records to the High Court and parcel containing such records, as also all returns of civil processes issued by the High Court, should be addressed to the Deputy Registrar of the High Court, Appellate Side.
Note 2.—The procedure in clause (a) of this rule is to be followed also where the District Judge sends for a record from his own Record-Room.
304. When a record is received back in the Record-Room the following procedure should be followed:—
(a) The record shall be carefully examined by the Record-Keeper to see that it is complete and in order. If the Record-Keeper notices that any document is missing or that the record discloses any other defect, he should at once report the matter to the Judge-in-charge who should, if necessary, draw the attention of the District Judge.
(b) An entry should be made in column 8 of the Register of records removed, and initialled by the Muharrir making it.
(c) The entry in the despatch list should be cancelled.
(d) The removal slip should be removed from the bundle, the entry upon it cancelled, and the record restored to its place.
(e) If the record is not restored to its original bundle for any reason, a note should be made in the despatch list that it is kept with record No. ………… of ………… of the ………… Court.
(f ) An acknowledgment in the prescribed form is to be sent.
Note.—Above procedure, as far as applicable, is to be followed when documents sent to the Copying Department are received back. The entry referred to in clause (b) is to be made in the appropriate Register [Form (R) 17].
305. When an original record which has been called for in appeal, is received back in the Record-room together, with the judgment and other papers relating to the disposal of the appeal in the Appellate Court, the original and the appellate records should be kept together. These records should be arranged according to the date of the appellate judgment. [G.L. 9/49.]
306. The record of an appeal transferred to another district for hearing shall after disposal of the appeal be deposited in the Record-Room of the district in which the appeal had been instituted.
Note.—The Court hearing the appeal will send the record to the district of its origin after the expiry of the period of appeal to the High Court. If there is such an appeal the record will be sent after it is received back from the High Court.
307. Original records received back from the High Court, together with the High Court’s judgment on appeal, should be kept together and indexed “High Court Appeals”. These records should be arranged according to the date of the High Court’s final judgment. A note should also be made against the various entries relating to the records in the remarks column of the despatch list, showing where the respective records may be found, and giving the date of the final judgment of the High Court.
308. It is the duty of the Record-Keeper to see that records sent out are returned and that records kept back though mentioned in the list are despatched without undue delay. With the object he shall cause the serial number of records not returned or kept back after the due date of despatch to be brought forward and entered in red ink in the register of records removed before any entries are made relating to a new year. He should also cause to be prepared from this register a Reminder list consisting of entries of all records which have been sent out of or kept back from the Record-Room after their due date for more than three months. On the return or receipt of any such record the entry relating to it prescribed by this rule should be struck out, and in the case of a record kept back the entries in the remarks column of the despatch list and in the separate list prescribed by rule 261 (c) of Chapter III should also be cancelled. If the record is not restored to its original
bundle for any reason, a note should be made in the despatch list that it is kept with record number ………… of ………… of the ………… Court.
Note.—In the case of records referred to in Notes 1, 2 and 3 of rule 259 of the preceding chapter this rule shall come into operation only after the expiry of the periods mentioned therein.
309. From time to time reminders should be issued by the Record-Keeper in respect of such records, and if they do not result in the return of the record, he should take the orders of the Judge-in-charge.
Note.—A note of all reminders should be made in the Reminder list and in the remarks column of the Register of records removed.
310. Reminders relating to records sent to the High Court should be issued in the first instance on the expiry of twelve months and thereafter at intervals of not less than six or more than twelve months.
311. The above rules so far as they are applicable shall be followed in sending and in complying with requisitions for records in pending cases.
V—INSPECTION OF RECORDS
312. The Record-Rooms of Civil Courts are not open to the public but public officers of the district including Sarishtadars, may, with the permission of the Judgein- charge, be allowed to enter the Record-Room and to examine the record of any specified case free of any charge provided that such entry is made in pursuance of a public purpose.
313. On a written application in Form No. (M) 41 with the prescribed fee affixed to it, pleaders duly authorised by any person in that behalf, may, under similar conditions, and at a place to be provided for the purpose in the Record- Keeper’s office, examine any specified record; but in doing so, shall make only brief notes (to be written in pencil on slips to be provided by the Record-Keeper). If any extract from the record is required, it shall be obtained through the Copying Department in the usual way.
Applications for inspection of records shall be kept pending for three days, during which period the relevant records shall remain available for inspection. If the pleader does not appear to inspect the record within this period, the application shall be rejected and no inspection will be allowed on such application.
Note.—A notice in the sense of this rule should be exhibited, in English, in the office in which records are inspected. No Legal Practitioner shall be allowed access to the Record-room or the offices appertaining thereto, otherwise than in accordance with this rule.
314. Pleaders duly authorised by any person in that behalf may be allowed to inspect Registers of Suits and Appeals maintained under the Rules of the High Court at a time and place to be fixed by the Presiding Officer or the Judge-incharge, as the case may be.
315. The inspection of records by pleaders shall be allowed only on days on which the Court is open, and during such office hours as the Judge-in-charge may prescribe.
316. Defective applications for inspection of records shall be returned to the parties concerned after noting the defects thereon for compliance. If the applications are re-filed after removing the defects within three days from the date on which they are returned, they shall be accepted and dealt with in the usual course. Applications filed after three days shall be rejected.
317. All disposed of applications including rejected application for inspection of records of decided cases shall be kept separately in monthly bundles in chronological order and preserved for three months. All disposed of applications including rejected application for inspection of records of pending cases shall be kept attached with the respective records.
318. For the inspection of documents or records a separate table should be set apart, which should be kept clear and be so placed as to be in full view of the Record-Keeper. All inspections must be carried out at this table under the supervision of the Record-Keeper or a clerk deputed by him for the purpose.
VI—THE DESTRUCTION OF RECORDS
319. The periods of preservation of different files laid down in rule 222, Chapter II of this Part, shall be calculated as regard suits, cases, or appeals of Classes I, II, III and IIIA from the date of the final decree or order: Provided that the period of preservation of the record of a suit or case where the decree or the order directs payment by instalments, shall commence from the date of last instalment allowed by the Court, except in the case of Files C-1 of such records which may be destroyed in accordance with above rule.
Note.—Where in a suit for partition the necessary steps for obtaining a new final decree are not taken within twelve years from the date of the preliminary decree. Files C and C-1 of the record of the suit shall be destroyed on the expiry of that period.
320. In cases of Classes IV and IV-A, such period shall be reckoned from the date on which the application for execution was finally disposed of by the Court executing the decree or by a Court of Appeal, whichever is the later date. For the purposes of this rule, each execution record shall be dealt with separately, irrespective of any other application to execute the same decree or order.
321. Cases under Section 7 of the Bengal Wills and Intestacy Regulation, 1799, regarding the property of intestates, in which no claimant appears, and cases arising out of applications for the refund of lapsed deposits shall be treated as miscellaneous non-judicial cases and the records thereof shall be classed as C files and preserved for 12 years. The records of all other miscellaneous non-judicial cases shall be destroyed at the end of three years from the date of disposal.
322. Exhibits which can be conveniently preserved with the records of the trials in which they have been used shall not be destroyed, but shall be kept in their proper files and shall be preserved with such files until the period for the destruction of the B, C and D files, viz., 25, 12 1[and 12 years respectively] shall have arrived, when they shall be destroyed along with their files.
323. Cumbrous and bulky exhibits, e.g., account books, khatas, zamindari papers and the like, which cannot be conveniently put up with the records of the trials in which they have been used, but which have to be preserved separately, e.g., in almirahs, boxes and bundles, may be destroyed earlier, under the orders of the District Judge, after the expiry of the period of one year from the date of the decree in each case becoming final, and of one month from the date of service of a final notice in Form No. (P) 41.
Note.—This notice should be served upon the parties or their pleaders concerned at their last known address. The original notice is to be attached to the file and when destruction takes place the fact should be noted on the list of Exhibits.
324. Destruction of records should be carried out quarterly and the Record- Keeper shall, in the first month of each quarter, cause the B, C and D files which are due for destruction to be removed from their shelves for the purpose. As each record is destroyed, the necessary entries should be made in column 8 of the Bound Lists and on the Index Board.
325. Requisitions, Acknowledgments Reminder Lists, Removal Slips and Defect Reports for which there is no further use shall be destroyed at such intervals as the Judge-in-charge may direct.
326. The destruction of all papers shall be carried into effect by burning in the presence of the Record-Keeper or one of his assistants. [G.L. 10/19.]
CHAPTER V
Records of the Court of Small Causes
327. In Small Cause Court cases no Order-Sheet is necessary, the orders being recorded on the back of the plaint. When, however, a case becomes contested and the hearing extends for more than one day, an Order-Sheet will be attached and orders continued on it.
328. The Record shall be prefixed by Table of Contents and shall consist of only one file including proceedings in execution taken in a Small Cause Court. Papers connected with any proceedings will be shown in the Table of Contents under a separate heading giving the number of the case: Provided that where a Small Cause Court decree has been transferred to the Court of Ordinary Civil Jurisdiction for execution, the record should be treated and dealt with as an ordinary execution record of Class IV.
329. The Records of suits decided by Judges of Small Cause Courts shall remain in the Trial Courts until the period for their destruction shall arrive.
330. The Records of suits decided by officers vested with the powers of a Small Cause Court Judge shall, in the course of the next succeeding month be deposited in the District Record-Room at headquarter stations and the Munsif’s Record-Room at outlying Munsifs and preserved there until such time as they are destroyed under these rules.
331. The Records shall be divided into two groups and sent in separate bundles to the Record-Room with separate lists in Form No. (R) 20, each record being prominently market A or B in accordance with the following classification :—
Group A— Records of cases in which any one has to recover anything.
Group B— Records of cases in which no one entitled to recover anything, e.g., cases dismissed for default or on satisfaction, in which the decretal amount has been paid up before the arrival of record, etc.
Note.—The Record-Keeper shall note in the lists the date of removal and return whenever a record is taken back by the Trial Court in connection with Execution and other proceedings or is called for under Order XIII, Rule 10 of the Code of Civil Procedure. The lists shall be preserved for the same period as the records to which they relate.
332. (a) The Record-Keeper shall arrange the records of each Court by groups and place them on the shelves in monthly bundles.
(b) The records will be kept in the bundles in order of their dates of disposal.
(c) The names of the groups will be prominently shown on the shelves and the space allotted to Group A should be sufficient for the accommodation of records [for twelve years] and that to Group B for one year.
(d) Besides Groups A and B there will be the following two subsidiary groups formed out of records transferred from Group A by reason of steps taken in execution or of subsequent satisfaction :—
Group A-1— Records of cases in which execution has been applied for either to enforce the decree or any unpaid instalment.
Group B-1— Records of cases in which the decree has been fully satisfied.
The records of these two groups will be made up into separate monthly bundles. A-1 bundles will be kept on the shelves with A bundles and B-1 bundles with B bundles of the corresponding month.
(e) The transfer of a record from A to A-1 or B-1 Group or from one bundle in A-1 Group to another bundle will be effected as occasion arises, regard being had to the provisions in clause (d) of this rule. When an execution is applied for there will be no difficulty in finding out the proper record from Group A or Group A-1 as the case may be.
(f) A conspicuous note should be made of the date of disposal and of the results of the suit and of every subsequent proceeding 1[x x x] on the outer sheet of each record.
333. Records of Groups A and A-1 left over after transfer in pursuance of the above Rules by reason of execution or other proceeding shall be destroyed [at the end of twelve years], and those belonging to Groups B and B-1 at the end of one year from their dates of disposal. After twelve years from the date of decree or from the date of payment fixed by the Court all records shall be destroyed whether there has been a satisfaction or not.
Note.—The period of 12 years for the purpose of this rule is to be calculated in accordance with the provisions in column 2 of Article 136 of the Limitation Act (Act 36 of 1963).]
334. Destruction shall be carried out monthly. The Record-Keeper shall during the first week of every month remove the bundles due for destruction and note the number of the cases in a bound book to be kept for the purpose. He shall take the orders thereon of the Judge-in-charge and then destroy the records making a note in the lists where necessary.
Note.—Lists destroyed should also be entered in this book which is to be preserved 4[for twelve years].
CHAPTER VI
Wills
Rules issued by the Government of Bengal and Assam for the custody, preservation and inspection of Wills under section 294 of the Indian Succession Act, XXXIX of 1925.
I—RELATING TO THE CUSTODY AND PRESERVATION OF WILLS
335. All original Wills presented to the District Judge or District Delegate, in accordance with the provisions of section 244 of Act X of 1865, and section 62 of Act V of 1881, shall, immediately upon the passing of the order for granting Probate or Letters of Administration under sections 254 and 255 of Act X of 1865, and sections 76 and 77 of Act V of 1881, be committed to the care of the Head Clerk, or Chief Ministerial Officer of the Judge’s or District Delegate’s Court, who shall be responsible for their safe custody. Sections 244, 254 and 255 of Act X of 1865 and sections 62, 76 and 77 of Act V of 1881 correspond respectively to sections 276, 289 and 290 of Act XXXIX of 1925.
Note.—All Wills, as soon as they are filed in a Court for the purpose of being proved, should be made over for safe custody in the presence of the District Judge or Delegate either to the Head Clerk or to the Sarishtadar of the Court, who should give a receipt for them, and should personally produce them before the Court, on the date of hearing, and, if the Will has to be retained in Court, should take a written receipt for it from the Bench Clerk. The latter officer will be responsible for the custody of the Will so long as it remains in the Court. The rule as to return of unexhibited documents shall apply to unexhibited Wills.
336. The said officer shall, on the receipt of each original Will, cause a copy of the same to be carefully entered in a register to be kept for that purpose, and shall also cause to be prepared an alphabetical index, in which the name of the testator, etc., and the number and page of the register in which a copy of the Will is entered, shall be recorded in the annexed form :—
Name of Testator Residence, etc. Number and Year of Register Page
Note 1.—Every volume of the register in which copies of Wills are made must be ruled and the pages numbered before it is brought into use, a note being made at the beginning of the volume of the number of pages it contains. Each copy should follow immediately upon that which precedes it and should be written in a clear hand, corrections being written above the line and initialled by the officer who compares the copy with the original, no erasures being permitted. All copies should be made immediately on receipt of the original, and should be compared with the original by the Sarishtadar or Head Clerk, who should certify at the bottom of each page and at the end of the copy that such comparison has been made and that the copy is correct. Should the number of pages at the end of a register be insufficient to include a copy of the Will which would ordinarily be inserted there, a fresh volume should be taken into use and the blank sheets scored across, a note being added at the beginning of the volume.
“Pages to blank.”
Note 2.—Each volume of the register should be legibly marked on the back with its own serial number, with the year to which it relates and with the serial numbers of the first and last copies contained in it.
Note 3.—In preparing the alphabetical index referred to in this rule—
(a) In the case of European names the surnames shall be taken as the index word, and
(b) Indian names shall be indexed according to their first letters as they stand in the Will, except that appellations such as Saiyid, Sheikh, etc., if appearing at the beginning of the name, shall be shown in the index at the end of the name and shall be transliterated in the same form as that in which they are written in the Will.
Note 4.—This rule does not apply where an application for Probate or Letters of Administration has been refused. In such cases the Will is to be attached to the record provided that this is not done before the expiry of the period for an appeal or if there has been an appeal before its disposal. This procedure is also to be followed when the order granting Probate or Letters of Administration is revoked in a subsequent proceeding or in appeal. In such cases appropriate notes should be made in the index and in the Register of Copies.
These instructions will have a retrospective effect and Wills in connection with unsuccessful applications the records of which have without them been transmitted to the Record-Room may now be sent to the Record-Keeper to be attached to the records to which they appertain or to be destroyed as the case may be in accordance with the rules for periodical destruction of records.
337. The original Wills shall be deposited in a fire-proof safe, which shall be kept in the office-room of the Head Clerk or other officer aforesaid to whom the safe custody of the Wills may have been entrusted. Where the Court has no iron safe, the Wills may be placed in a small block-tin box, the key of which shall remain with the Judge or District Delegate; and the District Registrar or Sub-Registrar of the place shall, if the Judge or District Delegate require him, lock up this box in his fireproof safe, giving it up to the Judge of District Delegate on his written demand from
time to time.
Note 1.—Each original Will shall have endorsed upon it the number and page of the volume in which its copy is entered, and shall be kept in a separate envelope marked outside with the same particulars and with the testator’s name and the year of execution. Wills should be kept in the safe or box in their proper serial order.
Note 2.—When an original Will is removed from the custody of the officer responsible for it, a note of the date of despatch and return should be made against the entry in the index prescribed in Rule 336, and for such entries sufficient space should be left in the form.
Note 3.—All copies of Wills shall be prepared, in the presence of the officer responsible for the custody of the original, which shall not be removed by the copyist. The same officer shall check the copy and certify its accuracy.
Note 4.—In all cases when an original Will is removed from the custody of the officer in charge, he should note upon the envelope (which should be retained in its proper place) the date and place of removal, scoring out the entry, with a note of the date, on return. Careful examination should be made of all Wills so returned, to ensure that no alterations have been made.
338. At the expiration of every calendar year each District Delegate shall transmit to the Court of the District Judge all the original Wills in respect of which a grant has actually been made of Probate or Letters of Administration during the year, together with the register containing the copies thereof and the index and these shall then be preserved along with the Wills deposited in the District Court subject to the same rules as to custody, inspection, etc.
II—RELATING TO INSPECTION OF WILLS
339. Every inspection of original Wills or the register thereof, as well as applications for copies of Wills, shall be made within the hours fixed by the Judge or District Delegate, and published by a notification posted in a conspicuous place in the Court, and shall be subject to the following conditions :—
340. The inspection of an original Will shall be allowed only on the written order of the Judge or of the District Delegate previously obtained, and shall take place in the presence of the Head Clerk, or other officer who may have charge of the same, and that officer shall be responsible for the Will not being taken out of his sight during such inspection, and also that no erasures or alterations are made in it.
Note.—The same procedure should be followed in respect of inspection of a copy of a Will in the Register.
341. Application for a copy of an original Will shall be submitted to the Judge or District Delegate and such copy shall only be granted subject to the conditions which attach to the inspection of original Wills.
342. The following fees shall be levied in Court-fee stamps or the inspection of Wills, etc. :—
(i) For the inspection of an original Will, Court-fee stamp of the value of one rupee.
(ii) For the inspection of a copy of a Will in the Register, Court-fee stamp of the value of fifty paise.
(iii) For copies, the same fee as for inspection, in addition to the copying charges, which shall be at the usual rate obtaining in the Civil Courts, and shall be levied in the same way as such charges are levied in the Civil Courts.
343. All applications for copies or inspection of Wills and Registers of Wills shall be entered in the Register of applications for copies prescribed by the High Court.
Note.—Applications for inspection may be entered instead in the Inspection Register Form No. (R) 23.
344. In cases where the fees collected exceed Rs. 5 per mensem, District Judges or District Delegates may assign a moiety to the officer entrusted with the custody of the Wills, the balance being credited to Government. In cases where the collections do not average more than Rs. 5 per mensem, District Judges or District Delegates may sanction the payment to such officer of the full amount realized.
Note.—District Judges should not pass bills for remuneration under this rule unless they are satisfied that the work has been carried out methodically and completely up to date.
345. (a) The following certificate should be appended to each bill in which the charges referred to in the preceding rule are drawn :—
“Certified that the charges included in this bill have been drawn in accordance with the scale laid down by Government in the notification, dated the 23rd May, 1892, and that each Court-fee stamp for which commission is drawn is defaced with the words “Commission allowed”. Certified also that the fees drawn on previous bills (with the exception of those deducted above) have been disbursed to the proper person and his receipt taken in the acquittance roll filed in my office.”
(b) As there is a separate Budget Allotment for the expenditure, the charges should be drawn on separate bills showing the allotment and expenditure up to date of each drawal.
Note.—The rules in this chapter apply also to Subordinate Judges and Munsifs taking cognizance of proceedings under the Indian Succession Act, 1925 (Act XXXIX of 1925), under the authority conferred by section 28(2)(d) of the Bengal, Agra and Assam Civil Courts Act, 1887 (Act XII of 1887).
PART IV
Rules Relating to Information, Copies and Copying Department.
CHAPTER I
Information and copies.
I—GENERAL RULES
346. All applications for information or copies shall be made in the prescribed form during the first two hours of the Court’s sitting, to the Judge-in-charge of the Copying Department or to some other officer designated by him for the purpose.
Note.—The form of application for information or copy can be obtained from the Nazir at two paise each or two rupees per hundred.
347. Applications shall be consecutively numbered and registered as they are received and the date of receipt shall be noted or stamped thereon; the receipt portions after being initialled shall be forthwith made over to the applicants.
Note.—Urgent applications will be entered in the register in red ink. An application for information will be entered under a sub-number to the last preceding application for copy.
348. Each clerk through whose hands the application passes shall put his initials and the date and hour of receipt and passing on by him on the back of the applications. These entries should be made one below the other and must be legibly written, the dates and hours being shown against the entries beyond a vertical line on the left to be drawn about three inches from the left hand side of the reverse of the application. Each clerk receiving an application shall at once comply with the requisition on its back or pass on to another who can do so.
Note.—There should be no unnecessary delay in complying with the requisitions of the Copying Department.
349. Applications in respect of which the information or copy asked for cannot for any reason be given, shall be rejected. Such applications and receipts are to be destroyed at the end of the next quarter. If the application is merely defective in that search is necessary in order to trace the record, a searching fee shall be demanded and affixed to the application for copy and the information shall be supplied on the application form without any separate application, in accordance with rule 408(2) (2). The application shall thereupon be complied with in accordance with the rules.
This concession is to be liberally interpreted in favour of the applicant for copy. Note.—When an application for copy is rejected on the ground that the original has been destroyed, the fact should be noted on the back of the application and the endorsement should be signed by the Judge-in-charge.
II—INFORMATION
350. Any person may apply for information from the records and registers of any Court.
351. Information may be asked for in one application in respect of one matter from a single record or register and shall ordinarily be limited to a single question.
Note.—Questions regarding particulars of any document or record necessary to be inserted in an application for copy for its proper identification (e.g., date of document, date of disposal, number of the case, names of parties, etc.) will be treated as a single question.
352. Information requiring anything but short answers shall not be given. If any extract from the record is desired the proper course is to apply for a copy.
353. Information will be given in writing in the remarks column of the application ordinarily on the next open day after its presentation. Urgent applications for information will, if possible, be complied with on the same day. [G.L. 1/64.]
354. After an application for information has been registered it shall be sent to the Ministerial Officer in immediate charge of the record and it shall be the duty of the latter to note the necessary information and to return the application to the Head Comparing Clerk with the least possible delay. On the applicant’s appearance and on his giving up the receipt referred to in rule 347 above, the application shall be made over to him. Rule 380 infra of this chapter shall apply mutatis mutandis to all applications for information.
III—COPIES
355. A plaintiff or a defendant who has appeared in the suit is entitled at any stage, before or after decree, to obtain copies of the record of the suit including exhibits which have been put in and finally accepted by the Court as evidence. A party interested shall be entitled to apply for a copy of the last paragraph of the judgment only without being required to apply for a copy of the whole of the judgment as provided in Order XX, rule 6A.
Note. 1.—A party who has been ordered to file a written statement is not entitled to inspect or take a copy of a written statement filed by another party until he has filed his own.
Note. 2.—This rule does not prohibit the grant to parties at any stage of copies of documents produced along with the plaint or under Order XIII, Civil Procedure Code, in cases where they do not wish to take copies themselves under the provisions of Order XI, Rule 15.
Note 3.—Suit in this rule and in rules 356, 357 and 358 includes execution and miscellaneous cases.
355-A. A copy of the type-written judgment shall where it is practicable so to do be made available to the party on payment of prescribed charges if application for the same is made before the hearing of the case is concluded.
356. A stranger to the suit may after decree obtain, as of course, copies of plaints, written statements, affidavits and petitions filed in the suit and may, for sufficient reason to be shown to the satisfaction of the Court, obtain copies of any such document before decree.
357. A stranger to the suit may also obtain, as of course, copies of judgments, decrees or order at any time after they have been passed or made.
358. A stranger to the suit has no right to obtain copies of private documents except with the consent of the person by whom they were produced or his successor-in interest. He may obtain copies of other documents in which he has a interest including depositions for bona fide use in the Courts, and case maps, at any time after they have been proved or completed.
358-A. Copies of papers required to be furnished to the Officer for public purposes free of cost as provided in rule 410 at page 118 of Part V, Chapter I may be prepared in the Copying Department, after obtaining permission of the Judge-incharge of the Department, who shall consider the merit of each case before passing any order in the matter. The charges incurred in preparing the copies shall be met from the head ‘Civil and Session Courts’.
359. Copies of printed and lithographed maps and plan will not ordinarily be supplied by the Copying Department. Application should be made to the office where the original maps are deposited.
360. Every application for copy shall state whether or not the person applying is a party to the case from the record of which copy is wanted. If such person is not a party or his pleader the application shall state the object for which a copy is required.
361. Only one application is necessary when a copy is applied for any number of documents on the same record.
Note.—For the purposes of this rule records called for in connection with an original case or appeal will be treated as a part of the record of such case or appeal.
362. An application for copy of a paper or record transmitted to another Court in compliance with a requisition shall be forwarded to the requisitioning Court for compliance if there is no objection to the copy being granted.
363. After an application for copy has been registered the Head Comparing Clerk shall forward the application to the proper officer who shall at once enter it in a register to be kept in Form No. (R) 17, bring out the document to be copied and keep it in readiness for the estimating of the folios and court-fee stamps required for the copy. The Head Comparing Clerk shall depute a comparing clerk to make the estimate by reference to the original document. The comparing clerk shall enter the amount of court-fee stamps and the number of folios required in the space provided for the purpose in the application, sign and date the entries, make the necessary entry in column 5 of register no. (R) 17 and return the completed application to the Head Comparing Clerk. The number of folios required should be carefully calculated so that it may not be necessary to obtain additional folios from the applicant, a contingency which under a proper system ought never to arise.
Note 1.—The expression “Head Comparing Clerk” in the rules in this Chapter includes a comparing clerk to whom the functions of the Head Comparing Clerk have been delegated by the District Judge for the purposes of these rules.
Note 2.—If the record from which copies are required is in the Record-Room the comparing clerk should be shewn the record in the Record-Keeper’s office.
Note 3.—In outlying stations where there is only one comparing clerk the estimating of the folios and court-fee stamps may, if the Judge-in-charge so directs, be made by the officer to whom the application is forwarded.
364. The Head Comparing Clerk shall notify the number of folios required for the copy and defect, if any, in the case of each application on the same day, or at the latest, on the day following, unless they have already been filed, by means of an entry in the prescribed register [Form No. (R) 15]. This register shall be kept at a convenient place prescribed by the District Judge for public inspection during such hours as the Judge-in-charge may direct. When the folios are deficient, the deficit shall be notified in the same manner. Rejected applications shall also be shown in
this register and reasons for rejection stated in the remarks column. [G.L. 8/62, H.C. memo no. 6818–32, dated 18th July, 1966.]
365. The requisite folios shall be filed before the Head Comparing Clerk and defects removed within three days 1[excluding holidays and Sundays)] of the giving of the notice prescribed in rule 364 (excluding the date of notification) 2[failing either of which the application may be rejected]. The applicant should file along with the folios list showing the number and date of application, the name of the applicant and the number of folios filed. Court-fee stamps for either copying fees or for value of forms or tracing cloth should be affixed to sheets of plain paper, on which the value
of each Court-fee stamp together with the number and date of the application and the name of the applicant should be noted. Before they are made over to the copyists these lists and papers are to be stitched to the respective original applications and should be compared with the reports of the comparing clerk in the space provided for the purpose in the form of application and should be initialled by the Head Comparing Clerk as a token that the correct number of folios, plain paper and court-fees of required value has been filed. If this is not done the application may be
rejected. If the application has been rejected a note to that effect shall be made against the entry of the application in the register no. (R) 15. The comparing clerk while going round the offices to make estimates shall take with him the rejected applications and show them to the proper officers who shall sign the applications on the reverse and after restoring the documents to the proper places make the appropriate entries in columns 7, 8 and 9 of register no. (R) 17.
366. The District Judge should make special arrangements for the proper custody of the documents removed from the shelves for compliance with applications for copies until the document is sent to the copying department to be copied or until intimation is received of the rejection of the application.
367. When the folios are filed, the date shall be entered in the place provided in the form for the purpose. The applicant shall, at the same time, present the counterfoil of his application, which has been returned to him and a memorandum shall be made thereon stating the date and hour when the copy will be ready. A corresponding note shall be made on the body or main portion of the form. The Head Comparing Clerk will at the same time take the applicant’s signature with date on the middle portion of the application below the entries as to the date of filing the folios and the date when the copy will be ready for delivery. The applicant shall retain the counterfoil, and it shall be his duty to attend on the date fixed for the
368. The comparing clerk deputed for the purpose by the Head Comparing Clerk shall take the application on the same day to the proper officer with an endorsement requiring him to send the necessary document. Such officer shall immediately hand over the document with the application to the comparing clerk and note on the application the fact of compliance with the requisition. The comparing clerk shall make the necessary entry in column 6 of register no. (R) 17. The comparing clerk deputed to make estimates of folios and Court-fee stamps shall take with him original documents of which copies are ready and return them to the proper officer who will make the necessary entries in column 7 of register no. (R) 17. The comparing clerk will at the same time receive from such officer the documents for copies of which the requisite folios and stamps have been filed by the applicant.
369. Every application for copies of depositions in a case which is being heard shall be laid before the Trial Judge for such orders as he in his discretion may make. If such Judge so directs so much of the deposition shall each day be given to the Head Comparing Clerk as there is a reasonable hope of being copied in the course of the day. The Head Comparing Clerk shall return the portion to the Judge at the close of the day. [H.C. letter no. 4726–41, dated 22nd April, 1965.] Subject always to (a) the precedence which must invariably be accorded to applications on which an expedition fee has been paid and (b) no delay occurring as a consequence in respect of ordinary applications, of an earlier date, such copies will ordinarily be issued on the same day or the following day.
Note.—If sufficient folios to cover the full charge for copy are not filed with the
370. The Head Comparing Clerk will be responsible for all documents received in the Copying Department until they are returned. At the end of the day all undistributed work and all incomplete copies with the originals, shall be locked up in an almirah or chest of which the key will be kept by the Head Comparing Clerk. Separate compartments in the almirah or separate boxes, as the case may be, shall
371. Copies of English documents shall as far as possible be type-written.
372. As the copies required under each application are completed they shall be made over together with all unused folios and the original documents to the Head Comparing Clerk. He should examine the copy with reference to the original and pay careful attention to the points mentioned in rule 396 of Chapter II.
Note.—Every date on which extra folios are called for shall be shown after the copy is prepared in the proper space at the back of the folio.
373. All copies must be examined before issue by a salaried officer.
Note.—The duty of examining copies should as a rule be entrusted to the Comparing or Examining Clerks or if there are none in the office, to the Head Clerk or Sarishtadar. The copyists and typists must not be allowed to examine for each
374. The officer entrusted with the duty of examining a copy shall be held responsible for its being a correct copy. In the event of any copy being found to be
(i) has not been clearly, legibly or neatly written or typed and with proper
(ii) is not in the prescribed form;
(iii) is so incorrect that revision has rendered it unfit for issue;
(iv) does not conform to the rules and orders of the High Court;
(v) is otherwise incomplete, defective or open to objection;
the examining or certifying officer shall report the matter to the Judge-incharge of the Copying Department, who will cancel the copy and require the copyist
375. A copy must be “certified to be a true copy”, must bear the seal of the Court and must be signed, if not by the Judge-in-charge, then by the officer At the headquarters of a district—By such officer as may be appointed by the At out-stations—By the Sarishtadar of the Judge-in-charge. In Courts of Small Causes constituted under Act IX of 1887—By the Head In every case the certifying officer will append to his signature the words “Authorised under Section 76, Act I of 1872”. The words—
“Certified to be a true copy.
Authorized under section 76, Act I of 1872,” may be impressed by means of a
Note.—The above certificate shall not be given on a blank sheet. If the last sheet has been fully taken up by the copy, the certificate may be given on its
376. In the case of copies filed, exhibited or recorded in any Court the Courtfee chargeable under Court-fees Act should be levied by affixing the necessary
377. (a) The following particulars must invariably be recorded on the last
Date of application for copy …
Date fixed for notifying the requisite number of folios …
Date of delivery of the requisite folios …
Date on which the copy was ready for delivery …
Date of making over the copy to the applicant …
In the case of a copy of a judgment, decree or order the dates, excepting the date of making over the copy to the applicant, shall also be expressed in words.
Note.—Each date on which extra folios are to be notified and each date on
(b) On the back of the last sheet of the copy shall be recorded the cost paid by the parties applying for copies in the form given below
The entries shall be made by the examiner of the copy. A rubber stamp may
378. In ordinary circumstances a copy shall be furnished not later than 4 P.M. or 10 A.M., as the case may be, on the 5th open day 1[excluding holidays and Sundays] after the application; [G.L. 11/35.] Provided that in case of notification regarding filing of deficit stamps and folios, copies shall ordinarily be furnished on the next open day following the date of filing deficit stamps and folios, if the time prescribed in the above rule has expired.]
379. Urgent copies should be furnished on the day of the application and where this is not possible on the day following.
Note 1.—No application is complete until the necessary folios have been filed. When these are not filed with the application the periods referred to in this rule
Note 2.—If sufficient folios to cover the full charge for an urgent copy are not filed with the application the estimate of the deficit in respect thereof shall at once be personally communicated to the applicant and the fact will be noted on the application and signed with date by the applicant. Where the applicant cannot be
380. All copies ready for delivery shall be entered day by day between 2 and 3 P.M. or in the case of morning sittings between 9 and 10 A.M. in a register which shall be placed outside for public inspection. The register will be in form No. (R) 16. The copies shall be made over in open Court in the presence of the Judge-incharge or any other gazetted officer specially appointed for the purpose by the District Judge, the appropriate entries in the register being at the same time struck out, initialled and dated by the Officer in whose presence the copies have been
delivered.]
Note.—Loose forms of the above register may also be used for the purpose
381. When the copy is delivered to the applicant his receipt therefor with the date will be taken on the reverse of the application, the counterfoil being at the same time given up. Unused folios returned with the copy should be noted by the applicant in the receipt taken as above from him. The counterfoil will be kept
382. (a) Should the applicant in any case fail to appear to claim either the copy or the unused folios both must of necessity be retained temporarily but on the last day of each month all unclaimed copies ready for delivery before the preceding month together with all unused folios attached thereto shall be destroyed in the (b) In any case in which copy cannot be granted, the folios supplied by the applicant for the copy should be returned to him when he is so informed. This should be done also where the application is withdrawn or rejected and the folios have not been used. If such folios are not taken back by the applicant, they shall be destroyed according to rule 382(a). The stamps affixed to the application as
383. Applications for copies which have been disposed of shall be recorded in the Copying Department and filed in a separate bundle for each month. At the close of each quarter they will be examined by the Sharishtadar who will bring to notice any irregularity or unpunctuality that may be apparent in the department. The Judge-in-charge after satisfying himself as to the working of the office by an inspection of the forms recorded will then direct their destruction and they will be
CHAPTER II
Copying Department and Copyists
384. At stations where there are more Courts than one there shall be one amalgamated Copying Department. Of this Department such officer as the District Judge may nominate will be incharge and the clerk appointed to be the Chief Examiner
385. The Copying Department shall have as many copyists as may be required for the purpose of supplying all applicants with copies without inconvenient
386. No one but a copyist appointed by the District Judge shall be employed in the preparation of copies : Provided that where it appears that the granting of ordinary copies is likely to be temporarily appointed by the Judge-in-charge for the number of days actually
387. The number of copyists appointed must not be greater than will admit, under ordinary circumstances, of each Vernacular Copyist earning at least Rs. 50 and of each English Copyist earning at least Rs. 100 per month. If the average establishment. Note.—No new appointment is to be made in an office until the above
388. No one except a Typist shall be employed by the District Judge as an
389. No person shall be appointed as Vernacular Copyist who is unable to copy both English and Vernacular documents, efficiently, legibly and with reasonable
390. English copies shall be typed by English Copyists provided that where there is not enough work for both an English and a Vernacular Copyist a Vernacular
391. The services of copyists whose work is inaccurate or in other respects
392. The Head Comparing Clerk will make a proper distribution of work among
393. When an application is made for the copy of any documents in a language or character with which no Copyist on the Court’s establishment is acquainted, the Judge-in-charge shall arrange, if possible, for a copy to be made aforesaid language or character as are forthcoming and may in his opinion be relied
394. Seventeen and a half paise out of the charge levied of 35 paise per folio (see Chapter I, Part V, Rule 408) represents the payment to Government on account of the salary of examiners and cost of paper, and the remaining seventeen and a half paise will represent the earnings of the Copyists or Typists, whose accounts will be made up monthly (Fractions of paise, if any, in the total of monthly earnings should be ignored). The amount due to each shall be paid out of the contingencies. These payments must be checked at the time with the upper part of each stamp, which when the copy is ready, must be torn off each sheet along the perforated line and endorsed with the copyist’s or typist’s name and kept till the end of the month. In the case of maps and plans half the copying charges levied will be paid to the copyist and half will go to Government on account of examination fees and cost of materials. The upper halves of adhesive stamps used in maps, plans
and copies on forms shall be treated in the same way as upper portions of impressed stamped sheets. Care must be taken to see that nothing in excess of two-thirds or half, as the case may be, of the amount realised in stamps is paid to
Note 1.—The copyist or typist is paid by the folios copied, whether the copies are subsequently taken out or not.
Note 2.—Expedition fees (Part V, Chapter I, Rule 408) are for credit to Government and no part of them is payable to the copyists or typists.
Note 3.—In case the necessary materials for preparation of maps and plans are not supplied from the Government stock the parties should be asked to file the tracing cloth and the copyists to provide other materials. In such cases, the Judge-in-charge, Copying Department, shall determine, what part of the copying charges should be paid to the copyists and what part should go to the Government and in doing that he should bear in the mind the price of the materials provided by the copyists.
395. To prevent the risk of stamp slips and upper halves of adhesive stamps being used more than once, the officer passing a copyist’s or typist’s account will, after checking it as directed, tear up the slips and upper halves of adhesive stamps and cause them to be burnt in his presence. A certificate that this has been done must be attached to the bill on which the copyist’s or typist’s fees are drawn.
396. To protect the interest of Government care must be taken to see that all copies issued from the Court are prepared on the prescribed stamp paper, they must be written or typed on one side of the sheet only, and must not contain more than the authorized number of words. On the other hand, care must be taken to see that applicants are not imposed upon by the copyists or typists spreading their writing or typing over a larger number of sheets than is necessary. By insisting on the number of the lines in each sheet or space being uniform control may easily be exercised in this matter, the number of words in a few of the lines in each folio being checked.
PART V
Fees and Costs including Rules and Orders under the Court-Fees Act
CHAPTER I
Fees and costs
I—PROCESS FEES
Rules framed by the High Court under clause (1) of section 20 of the Court- Fees Act, 1870, declaring the fees chargeable for the service and execution of process issued by the Civil and Revenue Courts.
397. The fees in the following tables shall be charged for serving and executing the several processes against which they are respectively ranged :—
In Courts of Munsifs and of Small Causes and in Revenue Courts where the suit in which process is issued does not exceed Rs. 1,000 and exceeds Rs. 50 in value.
1. In Courts of District Judges.
2. In Courts of Subordinate Judges.
3. In Courts of Munsifs and Revenue
Courts where the suit in which process is issued is valued at over Rs. 1,000. In Courts of Munsifs and of Small Causes and in Revenue Courts where the suit does not exceed Rs. 50 in value.
Article 1.—In every case in which personal or substituted service of any process on parties to the cause is required, where not more than four persons are to be served with the same document—one fee. When such persons are more than four in number, then the fee above mentioned and an additional fee as mentioned in the table for every such person in excess of four.
Article 2.—In every case falling within columns 2 and 3 in which personal or substituted service of any process on any persons who are not parties is required, when the number of such persons is not more than four—one fee. When there are more than four such persons, then the fees above mentioned for the first four, and an additional fee as mentioned in the table for every one in
excess of that number. In every case falling within column 4 in respect of a similar process for each person.
Article 3.—Where process of attachment of property by actual seizure is issued—
(b) for each man necessary to ensure safe custody of property so attached when such man is actually in possession, per diem.
Article 4.—For the proclamation and publication of any order of prohibition under Order XXI, Rule 54 of the Code of Civil Procedure, irrespective of the number of such proclamations or publications.
Article 5.—For the publication by posting up of a copy or copies of the notification of any proceeding or process not specially mentioned in any article irrespective of the number of such publications.
Article 6.—For executing a decree by the arrest of the person or for executing a warrant of arrest before judgment.
Article 7.—Where an order for the sale of property is issued—
(a) for proclaiming the order of sale under Order XXI, Rule 66 of the Code of Civil Procedure, a fee of—
(b) for settling the property, a percentage or poundage on the gross amount realized by the sale up to Rs. 1,000 at the rate of— together with a further fee on all excess of gross proceeds beyond Rs. 1,000 at the rate of—
Article 8.—For service of any process not specified in any preceding articles.
Note 1.—(1) When process of attachment mentioned in Article 3 is issued in a number of cases relating to the same or neighbouring villages, the fee (a) must be paid in each case, the daily fee (b) only for the men actually employed.
(2) The daily fee (b) is to be deposited with the Cashier as peremptory receipt at the time of obtaining the process for so many days, as the Court shall order, not being ordinarily less than fifteen days, and the number of days required for the coming and going of the officer; but where the officer is not to be left in possession, then the daily fee is to be deposited only for the time to be occupied by the officer going, effecting the attachment and returning. When the inventory filed by the judgment-creditor shows the property to be of such small value that the expense of keeping it in custody may probably exceed the value the Court shall fix the daily fee with reference to the provisions of Order XXI, Rule 43 of the Code of Civil Procedure:
Provided that, if it appears that for any reasons the number of days fixed by the Court under this note, and in respect of which fees have been paid, is likely to be exceeded and the decree-holder desires to maintain the attachment, the decreeholder shall apply to the Court to fix such further number of days as may be necessary and the additional fees in respect thereof shall be deposited in advance. If such additional fees be not paid within the period originally fixed and in respect of which fees have been paid, the attachment shall cease on the expiry of that period. The Nazir will purchase a Court-fee Stamp of the amount actually incurred in deputing a peon and affix it to the process under the signature of the Presiding Officer in payment of the fees. The balance of the deposit, if any, will be available for refund to the party.
Note 2.—(1) When a sale of immovable property mentioned in Article 7 is set aside, under section 47, or under Order XXI, Rule 58, or under Order XXI, Rule 92 of the Code of Civil Procedure, or under section 174 of the Bihar Tenancy Act (Act VIII of 1885), any poundage or other fee charged for selling the property shall, on application, be refunded.
(2) The fee under clause (a) must be paid when the process is obtained. The percentage or poundage under clause (b) must be paid (1) in a case where the purchaser is a person other than the decree-holder, at the time of making the application for payment of the proceeds of sale out of Court, as provided in Rule 400 and (2) in a case where the decree-holder has been permitted to purchase, at the time of the presentation of his application for permission to set off the purchasemoney against the amount of his decree as provided in Rule 401.
(3) The percentage leviable under this article shall be calculated on multiples of Rs. 25 (i.e., a poundage fee of 50 paise should be levied for every Rs. 25 or part of Rs. 25 realized by the sale upto Rs. 1,000 and in the cases of the proceeds of the sale exceeding Rs. 1,000 an additional fee of 25 paise for every Rs. 25 or part thereof should be levied).
(4) In cases in which several properties are sold in satisfaction of one decree, only one poundage fee, calculated on the gross sale-proceeds should be levied, 2 per cent, being charged on the gross sale-proceeds up to Rs. 1,000 and one per cent, on such proceeds exceeding Rs. 1,000.
398. Notwithstanding the provisions of Rule 397 no fee shall be chargeable for serving and executing any process, such as a notice, rule, summons or warrant of arrest, which may be issued by any Court of its own motion, if it considers such a step necessary to serve the ends of justice.
399. The fees hereinbefore provided, except those mentioned in the next rule, shall be payable in advance at the time when the petition for service or execution is presented, and shall except where otherwise provided be paid by means of stamps affixed to the petition in addition to the stamps necessary for its own validity.
400. The proceeds of a sale effected in execution of any decree will only be paid out of Court on an application made for that purpose in writing, and the poundage fee for selling the property provided in clause (b) of Article 7 must be paid by stamps affixed to, or impressed upon, the first of such applications, whether it be or be not made by the person who obtained the order for sale or whether it does or does not extend to the whole of the proceeds. No fee will be chargeable upon any such application subsequent to the first.
401. When a decree-holder happens to be the auction purchaser his application for an order to set off the purchase money shall in addition to the stamp necessary for its own validity be stamped with stamps of the value of the poundagefee due for selling the property under clause (b) Article 7.
402. The Sarishtadar or the clerk concerned should note on the application for payment of sale-proceeds or on the application for an order to set off the purchase money, as the case may be, that poundage fees have been paid.
403. Upon the hearing of such petition, the costs of execution, including the amount of the stamps attached to the petition, shall be ascertained and shall be added to the decree; and in cases in which the amount of the purchase-money exceeds the amount of the decree and of such costs, the decree-holder who has so purchased the property shall pay into Court 25 per cent, of the balance of the purchase-money after deducting the amount of the decree and of such costs, and shall pay the balance at the expiration of fifteen days in accordance with Order XXI, Rule 85 of the Code of Civil Procedure.
404. When in order to the service of any process, a peon has to cross a ferry, the amount, if any, legally exigible as toll shall be paid by the Court executing such process from its special permanent advance sanctioned by the State Government for the purpose.
Note.—This Rule will not apply to the district of Purnea and the Madhipura Munsifs in the district of Bhagalpur for the period of the year during which additional fees under the next succeeding rule are leviable.
405. Throughout, or in any part of the district of Purnea and the Madhipura Munsifi in the district of Bhagalpur and for the periods of the year during which travelling except by boat is, in the opinion of the District Judge impracticable, the fees chargeable for the service of processes shall be increased by 25 per cent, in order to provide for payment of the boat-hire or ferry-toll rendered necessary by the state of the country. The additional fees may, however, be reduced to 12½ per cent, over the fees ordinarily leviable, at the discretion of the District Judge, in any part of the district where, or at any season of the year when, the levy of the larger amount is found to be unnecessary.
Note 1.—The process-servers’ boat-hire passed under this rule should alone be included under the head of “Process-serving Charges” under “Special contingencies” (Vide Resolution of the Finance Department of the Government of Bengal, dated the 4th August, 1890).
406. In cases in which the process is to be served in the jurisdiction of another Court, the proper fee chargeable under rule 397 read with rule 404 shall be levied, in the manner above directed on the application for the transmission of the process to that Court, and a note shall be made on the process stating that this has been done. A Court which receives from another Court, whether in the same State or not, a process bearing a certificate that the proper fee has been levied, shall cause it to be served without further charge.
Note 1.—The fees paid in pursuance of these rules must in all proceedings be deemed and treated as part of the necessary and proper costs of the party who pays them.
Note 2.—Civil process for service or execution within Hyderabad will be issued and served in accordance with the above rule. Process issued by Civil Courts in Hyderabad will be served or executed in Bihar free of charge.
Note 3.—Processes issued by Courts in India for service by Colonial Courts must be accompanied by a remittance sufficient to meet the cost of service. In Mauritius, the cost of service is Rs. 3 per person in town, and to this must be added 75 cents per mile travelling allowance for service in the country. For processes not accompanied by an English translation and requiring translation in
Mauritius, an additional fee of Rs. 10 should be remitted.
Note 4.—By arrangement between the Government of Bihar and the State of Johore, a State in the Unfederated Malay States, all summons and processes for service within the territories of the said State will be issued and served in accordance with the above rule. All summons and processes issued by Civil Courts within the territories of the said State will be served in Bihar free of charge.
II—REDUCTION AND REMISSION OF COURT-FEES
407. For notifications, under reducing and remitting the Court-fee, issued by the Government under Section 35 of the Court-Fees Act, see Appendix A-III, pages 76 to 84 of the Bihar Stamp Manual, 1940 Edition. [G.L. 3/49.]
III—OTHER FEES
408. The following are the charges (1) for affidavits and (2) in connection with inspection, information and copies [G.L. 17/62.]—
Note 1.—No searching fee is to be charged to pleaders for looking at records of pending cases.
Note 2.—For fees for inspection of Wills, see Chapter VI, Part III.
Note 3.—(1) For fees for inspection of accounts filed by guardians, see Rule 189 (10), Chapter I, Part II. (2a) For inspection of each volume of Registers of suits and appeals.
(3) For copy (in addition to the prescribed fee of two annas under the Court-fees Act) where the record relates to a decided case.
Note 1.—One searching fee shall be charged for any number of copies taken from the same record and included in the same application.
Note 2.—Records called for in connection with original case or appeal will be treated as a part of the record of such case or appeal.
(4) For sending for documents involving a search in the Collector’s office.
2. For information in order to remedy defects that may be found in an application where the supply of such information without a separate application for it has been authorised by the
High Court.
(a) Manuscript copies …
(b) Typed copies containing—
(i) Not exceeding 150 words.
(ii) Exceeding 150 but not exceeding 300 words.
By means of a Courtfee stamp to be affixed to a separate sheet of paper which will be forwarded to the Collector.
By a Court-fee stamp affixed to the application.
By means of an impressed stamp of 35 paise on each sheet of paper corresponding with the folio to be provided by the applicant for a copy.
Note.—There are 25 lines in each sheet. No line shall contain more than six words English or Hindi in Devanagri script or twelve words vernacular.
(1) For issuing certified photo copies of the documents by the Civil Courts, Photo copying charges has been fixed at Re. 1 (Rupee one) per page which will be realised by the Copying Department of each Civil Courts in addition to the usual charges for the certified copies under the Rules.
(2) Photocopying charges shall be realised against separate receipt and the amounts so realised shall be recorded in a Register to be maintained separately under specific head, with date of realisation, case number and name of the Court and number of pages photocopied.
(3) Entries of the total day’s receipt shall be regularly maintained every day and the total shall be carried forward to the following day till the end of the month.
(4) A Bank account in the joint names of the District and Sessions Judge and the Registrar of the Civil Courts concerned shall be opened in which the amount of the Photo copying charges shall be deposited.
(5) A separate Register for expenses incurred towards purchase of consumables required for the photo copier machine, shall be separately maintained and a balance-sheet of the final accounts thereof, shall be prepared at the end of the each financial year.
(6) The surplus amounts, if any, which may be left in the Accounts shall be deposited with the Government at the end of the every financial year under intimation to the High Court, of such deposit, made if any.
409. (1) In the case of documents, such as Jamabandis, measurement papers, order-sheets, accounts and others which are not written continuously like a deposition, or which are not written right across the page, every endeavour should be made to write as many as 1[150 words English or Hindi in Devanagri script] or 300 words vernacular (except Hindi in Devanagri script) on each folio.
(2) If it is found impossible to do this on each folio without distorting the form of the original document, as many additional sheets of plain cartridge paper as may be necessary (to be provided by the applicant for the copy) should be pasted on below, or at the side of the first sheet.
(3) In consideration of the additional time and trouble involved in copying documents of the nature described above, an additional charge may be levied from the applicants according to the following scale— In all cases requiring more than three folios, one additional folio may be taken for every four folios, that is to say, one additional folio may be taken in cases requiring four to seven folios, two additional folios in cases requiring eight to eleven folios, three additional folios in cases requiring twelve to fifteen folios, and so on. No additional charge should be levied in cases which require from one to three folios.
410. No fees are to be required or paid for searching or for copying papers wanted by public officers for public purposes.
411. In the case of maps and plans, no general rule can be laid down. In each case the charge will have to be fixed with reference to the difficulty or intricacy of the work to be done. The charge will be levied by means of adhesive stamps to be affixed to the map or plan, the upper half being kept by the copyist as his voucher. In the case of urgent copies the expedition fee will also be fixed by the Judge-in-charge to be paid by means of a Court-fee stamp affixed to the application for copy.
412. Finger prints are only sent for examination to the Finger Print Bureau at the instance of a private party on receipt of the consultation fee and the fee for three photographic enlargements of each of the finger prints to be examined as prescribed under rule 417 (c) (v) post. If more than three photographic enlargements of any finger print are required, an additional charge of Re. 1 for each such additional enlargement shall be realised from the party concerned in the manner laid down in note 4 to rule 607 (h).
Note.—For procedure as to deposit and credit, see rule 607 (h), note 4.
IV—POSTAGE
413. The Governor-General in Council has been pleased to direct that the postage charges on all processes, notices and such other documents are issued from any Judicial or Revenue Court, and are required to be transmitted by post, shall be paid by means of service postage stamps, without any additional charge being levied from the parties at whose instance the processes are issued.
Note.—It is to be understood that processes, thus issued, should not be registered. If registered, the postage must be prepaid by stamp by the party concerned.
414. Postage need not be paid by the parties (1) for the transmission and retransmission of requisitions upon the District Court at the sadar station for the payment of money in deposit to decree holders or other persons, or to when transmitting copies of decree and certificates under sections 39 and 41 (Order XXI, Rules 4 to 6) of the Code of Civil Procedure, from one district to another, for execution. Such documents should be forwarded with service labels, no additional charge for postage being levied from the persons at whose instance they are sent.
V—WITNESSES’ EXPENSES
415. The Civil Courts shall not receive postage stamps in payment of the travelling and other expenses of witnesses. A party applying for a summons on a witness shall deposit for the latter’s expenses a sum in cash sufficient to cover (when necessary) the transmission of the amount to another Court by money order. 416. (a) Money orders for the payment of witnesses’ expenses shall be made payable to the Cashier of the Court to which the money is remitted. The Cashier will receive the money as provided in rule 617 and will deal with it as directed in rule 623 of the Account Rules (Part X).
(b) In the case of money orders the number of the suit and other necessary particulars shall be entered in the coupon which is now attached to all money orders.
417. (a) The expenses which a party applying for a summons shall be required to deposit in Court shall ordinarily be (a) diet allowance and (b) in the case of a witness residing at a distance from the Court, if the journey cannot be performed on foot or the age and habits of life of the witness render it impossible for him to walk, also his travelling allowance, according to the following scale :— Explanation.—(a) The above rates are maxima. The Court may direct a reduced allowance to be deposited or paid according to circumstances.
(b) In addition to the above, the authorized charges for tolls at ferries shall be deposited by the party applying for the summons to the extent to which such charges will be incurred.
(c) Notwithstanding anything in clauses (a) and (b) of this rules—
(i) In the case of officers serving under Government the word “expenses” in this rule means the travelling and halting allowances admissible under the Bihar Travelling Allowance Rules.
(ii) When a Government servant is summoned to give evidence of facts which have come to his knowledge, or of matters with which he has had to deal, in his public capacity, he shall, if (1) the case is one to which Government is party and (2) his salary exceeds Rs. 10 per mensem, be granted a certificate of attendance in Form No. (M) 19 and the sum deposited on account of his expenses shall be credited to Government.
(iii) In all other cases the expenses of the witness shall be paid to him by the Court and a certificate in the form above prescribed shall be granted to him. [G.L. 2/42.]
(iv) When a Government servant is summoned to give evidence at a Court situated not more than 2[eight kilometers] from his headqarters and is not entitled to travelling allowance under the ordinary rules the Court may direct payment to him of the travelling expenses actually incurred.
Note.—No expense shall be deposited when a Government servant is summoned on behalf of Gvoernment. Where the salary of such Government servant does not exceed Rs. 10 a month or where he is summoned to give evidence at a Court which is situated not more than 2[eight kilometers] from his headquarters, the expenses admissible under the rules shall be advanced by Court and recouped by drawing a regular contingent bill upon the treasury.
(ivA) When Government servants are summoned by private parties to give evidence in a Civil Court, their salaries for the period they are absent from their duties, in addition to the expenses in accordance with the above rule, must be paid by the parties summoning them. The amount paid into Court as salary should be credited to Government.
Note 1.—For procedure as to recovery and credit, see Note 4 to rule 607 (h).
Note 2.—The term “Government Servants” in this rule includes employees of the Central Government in the Commercial Department as well as State Railway employees.
Note 3.—“Salaries” in this rule has the same meaning as “Subsistence allowance or compensation” in rule 129 of the Bihar Travelling Allowance Rules.
Note 4.—The word “Government” in this rule means the Central Government, the State Government or a State Railway according as the Government servant is an employee of the Central Government, the State Government or a State Railway.
(v) Whenever it is considered necessary to obtain the opinion of a Finger Print Expert, the documents bearing the finger prints shall first be sent to the Criminal Investigation Department for examination, in a sealed cover properly attested, together with the specimen finger prints with which a comparison is desired, the specimen being prepared by an officer accustomed to the work. In private cases a consultation fee of Rs. 30 per case and a fee at the rate of Rs. 5 for each finger print sent for examination to cover the cost of three photographic enlargements of each such finger print shall be realized from the party concerned and paid into the treasury by the Court. A copy of the chalan supporting the deposit 1[in Court] shall accompany the request for examination. If
subsequently a finger print expert of the Criminal Investigation Department is summoned to give evidence, a fee of Rs. 30 a day in each case shall be realised from the party concerned in addition to the expert’s salary and travelling expenses. The fee and salary (calculated at Rs. 420 per month) so realised shall be credited into treasury by the Court and a copy of the chalan 2[showing the deposit thereof in Court] shall be sent to the Criminal Investigation Department with the letter summoning the expert. The travelling expenses should be made over to the expert on arrival in Court. [G.L. 7/45, G.L. 7/62.]
Note.—For procedure as to recovery of the expert’s fees, etc., see Note 4 to Rule 607 (h).
(vi) For witnesses following any profession, such as Medicine or Law, special allowance shall be given according to circumstances.
VI—EXPENSES OF COMMISSION (ORDER XXVI, RULE 15, CODE OF CIVIL PROCEDURE)
418. The following table shows the scale of remuneration, besides incidental expenses of commission which the High Court consider reasonable though it is not intended to fetter the Court’s discretion in any way particularly in cases where superior expert knowledge is required and is available. The scale is intended for cases where the work is likely to take only a day or two. When a consolidated fee is to be paid for work taking some time, a considerable reduction in the rates specified below will ordinarily be desirable. These rates are maxima only rarely to be
exceeded and they should not be applied indiscriminately in all classes of cases.
N.B.— (a) In respect of cases valued up to Rs. 2,000.
(b) In respect of cases valued above Rs. 2,000.
Note 1.—(a) Before the issue of a commission a consolidated inclusive fee which must not be exceeded save in special circumstances should be fixed wherever practicable with due regard to all the circumstances of the case, the probable duration of the commissioner’s work including desk work and the time likely to be spent on journey and the current fees of pleaders of the standing and
practice of the commissioner concerned. Prompt and efficient execution of the commission is implied.
(b) In case any work is finished or is likely to be finished in less than six hours, it may be treated as full one day’s work.
Note 2.—The following statement of daily outturn of work required by the
Survey Department from professional agency will afford some guidance to the Courts in determining the work involved in a particular commission :—
(1) Boundary survey … Half a square mile.
(2) Plain table survey of field … 15 acres.
(3) Extraction of areas … 250 plots.
(4) Tracing and numbering … 750 plots.
(5) Traverse line … 100 chains.
A diary showing clearly the work done each day must be kept by the commissioner and submitted to the Court with his report.
Note 3.—The foregoing rates of remuneration are intended, in the case of the persons included in class (iii), only as a general guide. When possible, the remuneration of professional Surveyors should be regulated by the rules framed by Government regarding the employment of such officers in Government service.
Note 4.—Fees payable to Civil Court Amins should be realized in cash and deposited under the head miscellaneous receipts [clause (b) of Rule 607 Part X] to the credit of Government.
Note 5.—The cost of sending and returning the papers relating to a commission by registered post should also be realised in cash from the parties.
419. No general rule can be laid down for commission to make partition, except in the case of Civil Court Amins who should be paid at the rate given in the next preceding rule. In other cases the Court should fix a sum commensurate with the difficulty and importance of the work to be done.
420. As a general rule, the amount to be allowed as incidental expenses should be regulated by the scale of travelling and halting allowance prescribed for officers of Government of the class to which the Commissioner belongs; but in exceptional circumstances and if the Commissioner is not a Judicial Officer, should the Court be of opinion that his actual expenses cannot be covered by allowances calculated on this scale, it may order such further sum to be paid as it thinks reasonable.
421. Commissioners who are Judicial Officers are not entitled to fees, nor to any further remuneration than is permissible under the Government Travelling Allowance Rules. Nothing should therefore be demanded of the parties for the expenses of a commission issued to such an officer in excess of the sum so permissible. The sum paid will be credited to Government and the Commissioner will recoup himself by drawing travelling allowance under the Bihar Travelling Allowance Rules.
Note.—The above Rule also applies where a Judicial Officer proceeds to make a local investigation or to examine a witness in a case pending before him.
422. Judicial Officers should bear in mind that a Commissioner would be justified in refusing to execute a commission if the party has not deposited cash sufficient to pay his fee as well as all his necessary incidental expenses. A Commissioner’s remuneration should be paid in cash, unless he is a Judicial Officer or a Civil Court Amin.
423. If a commission for the examination of witnesses be issued to a Court, the expenses to be charged should include only the necessary process fees for summoning the witnesses, to be paid in Court-fee stamps, and the usual allowance to witnesses for their attendance to be paid in cash. In the event of non-attendance of a witness or witnesses, any surplus payment should be refunded.
424. Where a commission for examination of witnesses has been executed by a pleader of another Court the fee in respect of the witnesses actually examined shall, on his returning the commission, be paid over to him; and the surplus should be sent back together with the commission to the Court which issued it and shall be refunded to the party who paid it.
425. In any case in which the sum fixed for the expenses of the commission and paid into Court shall have been calculated with regard to the time likely to be occupied in the execution of such commission, the Commissioner shall, in the event of his finding that the time is insufficient, give timely notice to the party at whose instance the commission was issued, and report the fact to the Court. The sum necessary to cover the expenses for such further period as may be required to complete the execution of the commission should then be deposited in Court by the party, and the Commissioner, unless certified of such deposit, should suspend the investigation at the close of the period originally fixed, pending the further, instructions of the Court. If the additional deposit required be not made within a reasonable time, the trial should proceed.
VII—FEES OF ADVOCATES AND PLEADERS
426. (i) The advocates’ and pleaders’ fees shall be in the discretion of the Court.
The following scale of advocates’ and pleaders’ fees shall ordinarily be allowed to the successful party
Note 1.—In cases under Part III of the Land Acquisition Act (I of 1894) such fees will be calculated on the amount decreed in excess of the sum tendered by the Collector.
Note 2.—In uncontested cases the fee shall not exceed half the fee calculated as above unless the Court otherwise directs.
Note 3.—When several defendants having a joint or common interest succeed upon a joint defence or upon separate defences substantially the same not more than one advocate’s or pleader’s fee shall be allowed unless the Court otherwise directs for a reason which shall be recorded. If several defendants having separate interest set up separate and distinct defences and succeed thereon a fee for one advocate or pleader for each of the defendants who shall appear by a separate advocate or pleader may be allowed in respect of his separate interest.
Note 4.—A probate case which the Court certifies to have been seriously contested shall be treated as an original suit for assessment of advocate’s or pleaders’ fee.
(ii) In Execution and Miscellaneous proceedings and appeals—
In the Court of a District or Subordinate Judge Not exceeding Rs. 150. In the Court of a Munsif Not exceeding Rs. 50.
Note.—A specific sum shall be awarded as payable on account of the adversary’s advocate’s or pleader’s fee and award of such sum shall be distinctly recorded at the foot of the order unless each party is directed to bear his own costs.
(iii) In Review and Remand cases :—
Half the fee otherwise admissible under these rules.
427. The scale of remuneration besides incidental expenses of guardianad-
litem which the High Court consider reasonable, should be between Rs. 16 and Rs 32 resting on the discretion of the Court trying the suit, who may fix the amount considering the valuation, nature and status of the parties: Provided that a pleader appointed by a Court to be a guardian-ad-litem shall not incur any expenses on account of travelling without the leave of the Court.]
VIII—MUKHTAR’S FEES
428. Where a Mukhtar is employed, 15 per cent of the sum allowed as Pleader’s fee shall be allowed as such Mukhtar’s fee and the remaining 85 per cent only shall be allowed as the Pleader’s fee.
429. In addition to the fee hereinbefore prescribed the successful party shall ordinarily be allowed to recover the following charges :—
(i) The party or his agent according to the circumstances of each individual case may be allowed subsistence allowance according to the scale prescribed for witnesses’ expenses in rule 417 ante for such days of attendance in Court as the Court may direct.
(ii) The entire costs of obtaining copies of documents (including searching fees) which are admitted in evidence shall be entered in the table of costs. Such costs shall be allowed in respect of such copies of documents only as are obtained for the purpose of the suit or application.
(iii) Copying or typing charges of a plaint, memorandum of appeal, application or written statement which is filed in the Court and served upon the opposite party shall in addition to the price of paper, be ordinarily allowed at the following rates—
Copying—6 paise each page of copy size.
Typing—19 paise each page of copy size.
430. In all decrees and orders a sum calculated at the rate of 5 per centum of the pleader’s fee taxed, and subject to a minimum of Re. 1 shall be taxed as costs on account of the fee of the pleader’s clerk or clerks.
CHAPTER II
Rules and Instructions relating to Court-fee stamps
I—USE OF ADHESIVE AND IMPRESSED STAMPS
431. The following rules to regulate use of adhesive and impressed stamps have been framed by Government :—
When, in any case, the fee chargeable under the Act is less than Rs. 25 and the amount can be denoted by a single adhesive stamp, it shall be denoted by a single adhesive stamp of the required value. If a single adhesive stamp of the required value is not available or if the amount cannot be denoted by a single adhesive stamp, a stamp of the next lower value available shall be used, and the deficiency shall be made up by the use of one or more additional adhesive stamps of the next lower values which may be required to make up the exact amount of the fee. When, in any case, the fee chargeable under the Act amounts to or exceeds Rs. 25 and the amount can be denoted by a single impressed stamp, it shall be denoted by a single impressed stamp of the required value. If a single impressed stamp of the required value is not available, or if the amount cannot be denoted by a single impressed stamp, an impressed stamp, of the next lower value available shall be used, and the deficiency shall be made up by the use of one or more additional impressed stamps of the next lower values available, which may be required to make up the exact amount of the fee in combination with adhesive stamps to make up fractions of less than Rs. 25. Any adhesive stamp so used shall be affixed to the impressed stamp of the highest value employed in denoting the
fee, or to the first sheet of the document to be inscribed in such manner as not to conceal the value of the stamp thereon. [R. 17, P. 61, Stamp Manual, 1924.]
When the application for the required stamp is made to a licensed vendor of Court-fee stamps, and such vendor is unable to furnish a single stamp of the required value, he shall give a certificate to that effect in the form below, which must be affixed to the document and filed with it [R. 18, pp. 61-62, Stamp Manual, 1924.]—
Form of certificate
Certified that a single stamp of the value of Rs. ………… required for this document is not available, but that, in lieu thereof, I have furnished a stamp of the next lower value available, and made up the deficiency by the use of one or more stamps of the next lower values available required to make up the exact amount of the fee.
Certificates are not required in similar circumstances from official vendors, but they shall as far as practicable, follow the above instructions. A document stamped otherwise than in accordance with the preceding rules is not properly stamped within the meaning of section 28 of the Court-fees Act, 1870. [R. 19, p. 62, Stamp Manual 1924.]
When two or more impressed stamps are used to make up the amount of the fee chargeable under the Court-fees Act, a portion of the subject-matter shall ordinarily be written on each stamped sheet. Where this is impracticable or seriously inconvenient, the document shall be written on one or more sheets bearing impressed stamps of the highest value, and the remaining stamps shall be punched and cancelled by the Court and filed with the record, a certificate being recorded by the Court on the face of the first sheet of the document to the effect that the full Court-fee has been paid in stamps. The writing on each stamped sheet shall be attested by the signature of the person or persons executing the document. [R. 20, p. 62, Stamp Manual, 1924.]
When one or more impressed stamps used to denote a fee are found insufficient to admit of the entire document being written on the side of the paper which bears the stamp, so much plain paper may be joined thereto as may be necessary for the complete writing of the document, and the writing on the impressed stamps and on the plain paper shall be attested by the signature of the
person or persons executing the document. [R. 21, p. 62, Stamp Manual, 1924.]
II—CANCELLATION OF COURT-FEE STAMPS
432. Each Judicial Officer should under section 30 of the Court-fees Act, 1870 formally appoint an officer for the purpose of cancelling stamps, and should see that the officer and no other is allowed to do the work. [G.L. 12/26, G.L. 8/45, G.L. 13/55.]
433. The Record-Keeper of every Court or office shall, when a case is decided and the record consigned to his custody, punch a second hole with a triangular punch in each label distinct from the first and at the same time note upon the fly-leaf the date of his doing so. The second punching should not remove so much of the stamp as to render it impossible or difficult to ascertain its value or
nature. These directions apply only to adhesive labels used under the Court-fees Act. Impressed stamps used for denoting Court-fees need not be cancelled or punched otherwise than as required by section 30 of the Court-fees Act.
433A. Each Presiding Officer shall cause an inspection of the disposed of records before they are consigned to the Record Room so as to check the sufficiency or otherwise of the Court-fee stamps affixed on documents. This check applies to all papers which are chargeable with stamp duty.]
434. The Court or office receiving copies, certificates, or other similar documents liable to stamp duty shall, on receipt, cancel the labels affixed to them by punching out the figure-head with a round punch. As an additional precaution, the clerk in charge of the Register of Petitions and Court-fees shall, when entering the value of the Court-fee stamps in the said Register, put his signature with date across the label and upon the paper on either side of it, as is frequently done by persons signing stamped receipts.
Note.—Stamps affixed to affidavits presented to a Commissioner for the purpose of administering an oath or affirmation to the deponent, shall be cancelled by punching out with a square punch portion of the stamp in such a manner as to remove neither the figure-head nor the part of the stamp upon which its value is expressed.
435. The Court or office issuing Succession Certificates, Probates, Letters of Administration or other similar documents liable to stamp duty shall, before issue, cancel the impressed stamps, on which the documents are engrossed, and the labels affixed to them by punching out with a round punch, a portion in such a manner as to remove neither the figure-head nor that part of the impressed stamps or labels upon with the value is expressed.
436. Each Judicial Officer should cause an occasional inspection to be made of documents that have been filed in order to ascertain that the stamps have been properly punched and defaced, and have not been subsequently removed from the documents on which they have been used. The inspection should be made at least once a quarter. The check herein prescribed applies equally to all papers which require adhesive labels, and they should be subjected to similar scrutiny. [G.L. 12/ 26, G.L. 8/45, G.L. 13/55.]
III—INSPECTION OF RECORDS BY REGISTRATION OFFICERS
437. Government having directed the Inspector-General and Inspectors of Registration to examine Record-Rooms of the various Courts in the mufassal in order to see how far the rules and instructions on the subject of the punching, custody, and sale of stamps are carried out, every assistance should be afforded by Judicial Officers to such officers in the discharge of their duty.
438. Government having ordered that on the discovery of any irregularity in respect of punching or otherwise defacing Court-fees stamps, the inspecting Registration Officer shall at once bring the matter to the notice of the Presiding Officer of the Court, such latter officer should inquire into the matter at once, and thus trace the person who is responsible for the omission pointed out by the
inspecting officer.