Matter referred to J&K HC for its opinion
Mohinder Verma
JAMMU, Jan 16: In a significant development, 1st Additional District Judge Jammu Virinder Singh Bhou has questioned the competence of Central Government to make substantive amendments in Code of Civil Procedure (CPC) under J&K Reorganization Act and referred the matter to the High Court of Jammu & Kashmir and Ladakh for its opinion.
The Central Government carried out amendments in Order V Rule 1 and Order VIII Rule 1 and 10 of the Code of Civil Procedure (CPC) by SO 1123(E) dated March 18, 2020 (J&K Reorganization (Adaptation of Central Laws) Order, 2020.
These amendments in the CPC provide that on expiry of 120 days from the date of service of summons, the defendant in a civil suit shall forfeit the right to file the written statement and the court shall not allow written statement to be taken on record.
The issue of validity of these amendments was raised before 1st Additional District Judge Jammu Virinder Singh Bhou in a suit for damages titled “Prediman Krishan Tickoo Versus Roshan Lal and Others”. The defendants/applicants have filed an application seeking reference under Section 113 read with Order XLVI of the CPC by raising issue as to the validity of the amendments brought by the Central Government in Order V Rule 1 and Order VIII Rules 1 and 10 of the CPC by SO.1123 (E) dated March 18, 2020.
Since the defendants/applicants have also filed an application for condonation of delay in filing the written statement beyond the period of 120 days from the date of service of summons, the determination of issues raised by the defendants/applicants was necessary for the disposal/adjudication of the application as also the suit.
After hearing the arguments of Advocate Rahul Sharma for the defendants and Advocate Vikas Mangotra for the plaintiff/non-applicant and perusing the judgments cited at bar, 1st Additional District Judge Jammu observed, “I am of the considered opinion that the amendments brought in the CPC by the Adaptation Order are invalid and have not been so declared by the High Court of Jammu and Kashmir & Ladakh or by the Supreme Court”.
“Order V Rule 1 and Order VIII Rules 1 and 10 of the CPC have been amended by virtue of the Adaptation Order which was issued under Section 96 of the Jammu and Kashmir Reorganization Act. So, effectively, amendments were brought in the CPC under Section 96 of the J&K Reorganization Act”, the court said.
Pointing towards Section 96 of the J&K Reorganization Act, which enables the Central Government to make only such adaptations and modifications in the laws as may be necessary or expedient for the purpose of facilitating the application in relation to the success Union Territories, the court said, “the scope of Section 96 is, therefore, limited to amendments which are only of form and not of substance. Therefore, no substantive amendments could have been brought in CPC made under Section 96 of the J&K Reorganization Act”.
“However, in the present case, substantive amendments have been brought in the CPC by way of the Adaptation Order. These amendments have changed the nature and character of the provisions of CPC, by making it mandatory for the defendant to file written statement within 120 days from the service of summons, failing which his right to file the written statement shall be closed and the court shall not allow the written statement to be taken on record”, the court observed.
The 1st Additional District Judge said, “in my considered opinion, such substantive amendments could have been brought only by a competent legislature and not by the executive in exercise of power under Section 96 of the J&K Reorganization Act. Therefore, such amendments brought by the Central Government by way of Adaptation Order, in my opinion, are invalid being ultra vires of Section 96 of the J&K Reorganization Act”.
In this regard, the court also placed reliance on the decision of the High Court of Telangana in a case titled “Healthcare Reforms Doctors Association and Others Versus the State of Telengana and Others” in which interpretation of Section 101 of the Andhra Pradesh Reorganization Act, 2014, which is on the same subject and matter to Section 96 of the J&K Reorganization Act, was in question.
“I my opinion, the amendments brought in the CPC are otherwise also discriminatory as they have made period of 120 days for filing written statement mandatory in all civil suits, whether commercial or non commercial, within the UT of J&K whereas in rest of India, the stipulated period for filing written statement is mandatory in commercial suits only and is directory in non-commercial suits. Moreover, I could not find any rationale/objective for bringing in such substantive amendment, either in the Adaptation Order or otherwise, which would justify applying different provisions to the UT of J&K in contrast to the law which is applicable in all other parts of India”, 1st Additional District Judge said.
Accordingly, 1st Additional District Judge framed two questions—whether the amendments brought in Order V Rule 1 and Order VIII Rules 1 and 10 of the CPC by S0 1123 (E) dated 18.03.2020 (J&K Reorganization (Adaptation of Central Laws) Order, 2020) by the Central Government are invalid being ultra vires of Section 96 of the J&K Reorganization Act, 2019 and whether the amendments brought in Order V Rule 1 and Order VIII Rules 1 and 10 of the CPC by S.O. 11 23 (E) dated 18.03.2020 are invalid being violative of Article 14 of the Constitution of India?
Both these questions have been placed before the High Court for its opinion.
Follow our WhatsApp channel
