destroying the foundation for the levying of this fee, which was based on the theory that as the Fiscal has to serve notice the cost of such notice had to be paid in advance by the party requiring such service. We have also now enlarged the time limit in various directions by fixing first of all the period within which the Court has to determine the amount and nature of the security and providing a further period after such security has been fixed by Court to furnish the security. 186. We have also conferred on the Court ample powers to grant relief in cases where, through no negligence or default on the part of the appellant, the service of the notice of appeal is delayed or has not been effected as required by law. The object we have had in view is to enable a party to have his appeal heard without being hampered by vexatious technicalities. CHAPTER XXXVIII-TYPEWRITTEN COPIES 187. The insistence upon the tendering of the correct fees for typewritten copies and of any additional fees within the time prescribed therefor has also resulted in many an appellant being thwarted in his attempt to have his appeal adjudicated upon. We have in this instance too softened the rigour of the requirements and vested in the Court both of first instance and of appeal powers to grant relief. 188. We have also deemed it necessary, in view of the representations made to us, to increase the fees for typewritten copies so as to make it worth the while of typists to attend to this branch of the work. We are satisfied that the present fees payable to typists are unattractive and inadequate. 189. With a view to facilitate the disposal of the cases in order of the presentation of the petitions of appeal, we have provided that the Secretaries and Chief Clerks of the original Courts should forward weekly to the Registrar a list giving details of the cases in which petitions of appeal have been filed. The Registrar would, on receipt of the list, number thein, and the age of a case on the Supreme Court list would be determined not by the date of receipt of the record, as now, but by the date of the actual filing of the petition of appeal. Provision has also been made for the Registrar to keep a check on any delay in forwarding the record to the Supreme Court and to call for such record if it be deemed necessary by him to have the briefs typed in the Registry. CHAPTER XXXIX-PROCEDURE IN COURTS OF 190. The provisions in regard to the procedure in Courts of Requests contained in the Civil Procedure Code are an effective way of enabling actions in respect of small claims to be prosecuted. Except for verbal modifications, we have introduced no substantial alterations in the existing provisions. We have however not sought to introduce into the Court of Requests the two types of procedure we have provided for actions in the District Court. We think that the procedure of the Courts of Requests should be directly and effectively controlled by the Court. It is also likely that more cases will be instituted or defended in person in this Court which is really a small causes Court. The new procedure will not therefore apply to the Courts of Requests. 191. In regard to appeals, we have provided that the application for leave to appeal should be made within seven days from the date of the judgment, decree or order against which an appeal is intended to be lodged; and where the Commissioner grants leave the applicant is required within seven days from the date of the grant of leave to file in the Court of Requests itself a petition of appeal. Where the Commissioner refuses to grant leave, the aggrieved party may within seven days from the date of the refusal file in the Court of Requests a written petition to the Supreme Court for leave to appeal. The Commissioner will thereupon forward forthwith all papers and proceedings and a record of his grounds for refusal to grant the leave, and a single Judge of the Supreme Court will dispose of this application ex parte. In regard to matters affecting leave to appeal, we have modified the existing provisions of the law. CHAPTER XL-CONTEMPT 192. The provisions in regard to contempt of Court are not grouped together but are scattered all over the Code. We think that the main provisions in regard to contempt should be grouped together in the body of the Code as that is a matter which will affect the powers of the Court and ought therefore to be under the direct attention of the legislature. We have however provided that the existing general powers of the Court to punish for contempt should remain unaffected. We have not altered. the procedure in regard to contempt or the punishments now contained in the Code. We have however provided that in proceedings for contempt all processes should be executed or served in accordance with the provisions contained in that behalf in the Criminal Procedure Code. We are of the opinion that the enforcement of an order for contempt should not be subject to the limitations imposed on the service of civil process. The Judicial Commission also took this view. CHAPTER XLI-PRIVILEGE OF IMMUNITY FROM ARREST ON CIVIL PROCESS 193. We have provided in the main enactment that no member of the Senate or House of Representatives should be liable to arrest under service of process while going to, attending or returning from any meeting of the Senate or House of Representatives, or of any committee of such Senate or House, or any joint sitting of the Senate and House of Representatives. We have had no similar provision in the existing Code but a similar provision is contained in section 135A of the main enactment of the Indian Civil Procedure Code. We now find that section 5 of the Parliamentary Privileges Act, No. 21 of 1953, contains provision similar to those contained in section 53 of our draft main enactment. We have allowed our section to stand. We think that our section is even wider than section 5 of Act No. 21 of 1953. The Fiscals' Commission urged that provision should be made in the Civil Procedure Code setting out the immunities and privileges in regard to the service of civil process on High Commissioners of the Commonwealth countries and foreign diplomatic representatives and the officials of the High Commissioners and the Foreign Embassies. We do not think it is necessary to incorporate those provisions as they are the subject matter of international practice and are now incorporated in various statutes. CHAPTER XLII-PRIVY COUNCIL APPEALS 194. We have not made any recommendations in regard to the Rules that govern appeals to the Privy Council as they fall outside the Civil Procedure Code. We have however provided that the validity of a proxy filed in an action will extend to proceedings before Her Majesty in Council. This provision is likely to remove the hardships now experienced in serving notices in connection with appeals to the Privy Council. CHAPTER XLIII—AMENDMENTS TO STATUTE LAW 195. Our draft Code includes all our recommendations for the improvement of the Civil Procedure, while our report has commented only on the more important aspects of the changes we have introduced. The Schedule to the Code contains a statement of the repeals. There are, however, some statutes which need amendment to give effect to our recommendations. We set out below a summary of the amendments recommended: Ordinance and Section Reason for Amendment (1) Courts Ordinance (Cap. 6) To enable Judges of Civil Courts to function at any convenient Section 52 spot within their territorial limits-vide para. 219 (2) Courts Ordinance (Cap. 6) To increase the jurisdiction of the Court of Requests as recomSection 75 mended in paragraph 224 (3) Estate Duty Ordinance (Cap. 187) Sec. 52 (4) Prescription (Cap. 55) To legalise the issue of provisional certificates-vide paragraph 174 (6) Ordinance Rule 33 of Order 86 which is a reproduction of the present section 737 is in conflict with the Prescription Ordinance and it may be advisable to amend the Prescription Ordinance to give effect to this Rule (5) Registration of Documents To give effect to our recommendations in para 134 Ordinance (Cap. 101) Sec. 31 (6) Stamp Ordinance (Cap. To enable, by way of Rules, the grant of exemptions from 189) Stamp duty in respect of particular classes of documents for the purpose of Court proceedings-vide Order, Rule 4, Order 76, Rule 35, &c. CHAPTER XLIV-GENERAL 196. We now conclude our general observations on the pattern of the new draft Code and on the more important changes we have introduced into the Code with the object of expediting the progress of the case from the stage of the institution to the stage of satisfaction of decree being entered. The preparation of the draft Code has involved more labour and difficulty than can be gathered from merely reading our Report. We have examined every section of the existing Code and compared the corresponding provisions in the Civil Procedure of progressive countries like England, India, Scotland and the United States of America. We have made only such changes as we have considered necessary after full and careful examination. No changes have been introduced for the mere sake of effecting changes. We are presenting our new Draft Code in the full belief and expectation that it will tend to expedite the despatch of the business of the Civil Courts and bring down the cost of litigation. We are not unaware that the profession always views any change with some suspicion. We can only ask the profession to examine the new draft Code carefully and patiently before expressing any opinion. The present Civil Procedure Code, despite its defects, has taken a firm root in the minds of legal practitioners. Those who practised in the Courts before 1889 took the same view in regard to the old Rules and Orders which existed prior to the introduction of the Civil Procedure Code. The late Mr. Joseph Grenier, K.C., who had a large practice in the original Courts and was a District Judge of Colombo and subsequently a Puisne Justice, expressed himself strongly against the present Civil Procedure Code several years after its enactment (1923) in the following words : "We had not then the Civil Procedure Code with its involved and complicated procedure and its unnecessary provisions, tending only to delay and vex both suitors and judges. When the Code was first introduced, I remember the endless arguments on the meaning and effect of certain sections which might have been clothed in simple language. The old Rules and Orders served their purpose exceedingly well, and lawyers and laymen understood them, but the Civil Procedure Code, on the whole revolutionised the simple procedure which had hitherto obtained, and there was chaos and confusion for a long time in our Courts. Judges and Counsel, with a predilection for technicalities, revelled in objections to the "bad English" used in the wording of several of the sections, and even to the punctuation. I had no trouble with the Rules and Orders when acting on the Jaffna Bench. They seemed to work so smoothly and automatically that I do not remember any point of procedure ever coming up before me for decision and settlement. The present generation of lawyers will certainly wonder whether the late Mr. Joseph Grenier actually meant what he said. This only illustrates that the contemporary reaction of lawyers to any change is not always accurate. We have, however, been encouraged by the views expressed before us by many lawyers all over the Island about the need for changes. We have not effected any major change in the Code which has not had the support of an appreciable part of the legal profession. We are therefore confident that the legal profession will welcome our Draft Code. (1) "Leaves from my Life ", by J. Grenier, K. C., page 99. PART II THE CIVIL COURTS-THEIR CONSTITUTION, CHAPTER I-GENERAL 197. Henry Sidgewick wrote in his "Elements of Politics" that "the importance of the Judiciary in political construction is rather profound than prominent. On the one hand, in popular discussion of forms and changes of Government, the judicial organ often drops out of sight; on the other hand, in determining a nation's rank in political civilization, no test is more decisive than the degree in which justice as defined by the law is actually realized in its judicial administration, both as between one private citizen and another and as between private citizen and members of the Government ". Professor Laski was only amplifying this comment when he said: "Obviously, therefore, the men who are to make justice in the Courts, the way in which they are to perform their functions, the methods by which they are to be chosen, the terms upon which they shall hold power; these and their related problems lie at the heart of political philosophy. When we know how a nation-State dispenses justice, we know with some exactness the moral character to which it can pretend. "It is therefore important that our Courts should be so constituted and administered as to enable the citizen to get justice swiftly and cheaply. We have already pointed out that the high reputation which our Courts enjoy for impartiality and independence is adversely affected by the complaints in regard to the law's delays and the expenses of litigation. The scandal of the law's delays was commented upon in an ejectment action which came up before our Appellate Court only last year. The action was first instituted in the Court of Requests on February 5, 1951; judgment was entered in October the same year, eight months later. The typewritten briefs did not reach the Supreme Court Registrar until May, 1952, and the appeal finally came up for hearing on February 12, 1953more than two years after the institution of the action. The Appellate Tribunal remarked that "the simple catalogue of dates is a cynical commentary on the law's delays at the present time". These complaints, it has been said, are as old as Methuselah. Hamlet may have decided to endure with fatalistic resignation the law's delays like all other ills of life. But the State has a duty to see that the legal process does not weigh unduly heavily on the citizen. We have indicated in Part I of our Report the recommendations we have made and the amendments we have suggested to the existing civil procedure with the object of eliminating the contribution which the law of procedure itself has made towards these complaints. In this part of our Report it is our aim to endeavour to point out those defects in the administration of the Civil Courts which we think should be remedied for the purpose of expediting the despatch of business in the Civil Courts of this country. 198. The Courts having civil jurisdiction are the Supreme Court, the District Courts, the Courts of Requests and the Rural Courts. It may now be appropriate to analyse the present constitution of these Courts and examine how they function as this will enable an easier understanding of the causes of delays and the direction in which changes may be effected. (1) Elements of Politics, p. 481. (2) A Grammar of Politics, p. 541. |