The B

PUBL

(NO. PATNA 519) P

No. B/Estt.(H.C.)-

which the High Court of

section (1) of Section 12

Notification No. 4238 d

September, 2008 inviting

thereby and notice was gi

or after fifteen days from t

AND WHEREAS, th

the publication 05th Septe

AND WHEREAS, no

rules by the High Court of

NOW, THEREFORE,

122 read with Section 126

the following rules mad

Government is hereby pub

Bihar (Cases Flow

REGISTE

Bihar Gaze

XTRA ORDIANARY

LISHED BY AUTHORIT

9 KARTIK 1930 (S)

ATNA, FRIDAY, 31ST OCTOBER 2

LAW DEPARTMENT

————

NOTIFICATION

24th October 2008

-06-03/2008/5254/J Whereas the draft of th

f Patna proposed to make was published as

22 of the Code of Civil Procedure, 1908 (A

dated 05th September, 2008 in Bihar G

objections or suggestions from the persons li

ven that the said draft rules will be taken int

the date of its publication in the Official Gaze

he said copy of the Gazette Notification was

ember, 2008.

o objections or suggestions have been receive

f Patna.

in exercise of the powers conferred by Sect

6 and 127 of the Code of Civil Procedure, 19

de by the High Court, Patna and appro

blished namely:-

Management in Subordinate Courts) Rules, 2

By order of the G

RAJENDRA KU

Sec-cum-legal R

ERED NO. PT.-40

ette

2008

he following rules

s required by sub-

Act 5 of 1908) in

Gazette dated 05th

ikely to be affected

to consideration on

ette.

s made available to

ed to the said draft

tion 89 and Section

908 (Act 5 of 1908)

ved by the State

2008.

Governor of Bihar,

UMAR MISHRA,

Remembrancer.

BIHAR GAZETTE (EXTRA), 31ST OCTOBER 2008

Bihar (Case Flow Management in Subordinate Courts) Rule, 2008

1. Title, application and commencement:

(i) These rules may be called Bihar (Cases Flow Management in

Subordinate Courts) Rules, 2008.

(ii) These rules shall apply to all suits and Civil, Criminal and other

Proceedings before the Subordinate Civil Courts and Tribunals

under the control of High Court.

(iii) These rules shall come into force from the date of their publication

in the Official Gazette.

PART-I

Division of Civil Suits and Appeals into Tracks:

(1)

The Presiding Officer of the Court shall categorize the suits and

proceedings in his Court into Track I, track II, Track III and Track IV.

(a)

Track I:

(i) Maintenance

(ii)

Child Custody

(iii)

Divorce

(iv)

Visiting Rights

(v)

Appointment of Guardian and Wards

(vi)

Letter of Administration

(vii)

Succession Certificate

(viii)

Eviction Cases

(ix)

Permanent Injunction.

(b)

Track II:

(i) Execution Cases

(ii) Recovery of Rent

(iii) Money Suits

(iv) Suits based on Negotiable Instruments

(v) Proceedings Under M.V. Act

(c)

Track III:

(i) Partition

(ii)

Declaration

(iii)

Specific Performance

(iv)

Possession

(v)

Mandatory Injunction

(vi)

Appeals

(vii)

Damages

(viii)

Easements

(ix)

Trade Marks, Copy right, Patents.

(d)

Track IV: All other matters, not included in Track I to III.

(2)

The Presiding Officer shall endeavour to dispose of the cases in

Track I within 9 months, the cases of Track Ii within 12 months and the cases in

Track III and IV 24 months from the date of appearance of defendant-

respondent.

(3) The Presiding Officer at the request of the parties and for valid reason

can dispose of the case early, irrespective of the Track norms prescribed.

(4) Once in a month, the Ministerial Officer of each Court will prepare a

report as to the stage and progress of cases which are proposed to be listed in

next month and place the report before the Court. When the matter are listed on

BIHAR GAZETTE (EXTRA), 31ST OCTOBER 2008

each day, the judge concerned may take such decision and he may

consider/deem fit in presence of counsel / parties in regard to each case for

removing any obstacles in service of summons, completion of pleadings etc. with

a view to make the case ready for disposal.

(5) The Judge referred to in clause (4) above may shift a case from one

Track to another, depending upon the complexity and other circumstances of the

case.

(6) Where computerization is available, the monthly date will be fed into

the computer in such a manner that the Judge referred to in clause (4) above, will

be able to ascertain the position and the stage of every case in every Track from

the concerned screen, and after some period, all cases pending in his Court will

be covered. Where computerization is not available, the monitoring will be done

manually.

PART - II

Original Suit:

1. Fixation of time limits while issuing notice:

(a) Wherever notice is issued in a suit, the notice should indicate that

the Code prescribes a maximum of 30 days for filing written

statement (which for special reasons may be extended up to 90

days) and, therefore, the defendants may prepare the written

statement expeditiously and that the matter will be listed for that

purpose on the expiry of eight weeks from the date of issue of

notice (so that it can be a definite date). After the written statement

is filed, the replication (If any, proposed and permitted) should be

filed within six weeks of receipt of the written statement. If there are

more than one defendant, each one of the defendant should

comply with this requirements within the time-limit.

(b) The notice referred to in clause (a) shall be accompanied by a

complete copy of the plaint and all its annexure / enclosures and

copies of the interlocutory applications, if any.

ex-parte interim order is not passed and the Court is desirous of

hearing the respondent, it may, while sending the notice along with

the plaint, fix an earlier date for the hearing of the application (than

the date for filling written statement) depending upon the urgency

for interim relief.

2. Service of Summons / Notice and completion of pleadings:

(a) Summons may be served as indicated in clause (3) of Rule 9 of

Order V.

(b) In the case of service of summons by the plaintiff or a courier where

a return is filed that the defendant has refused notice, the return will

be accompanied by an undertaking that the plaintiff or the courier,

as the case may be, is aware that if the return is found to be false,

he can be punished for perjury or summarily dealt with for contempt

of Court for abuse of the provisions of the Code. Where the plaintiff

comes forward with a return of 'refusal', the provisions of Order 9A

Rule (4) will be followed by re-issue of summons through Court.

9 of Order V, the provisions of Rule 17 of Order V shall apply and

⁴

BIHAR GAZETTE (EXTRA), 31ST OCTOBER 2008

the plaintiff shall within 7 days from the date of its inability to serve

the summons, to request the Court to permit substituted service.

The dates for filling the written statement and replication, if any,

shall accordingly stand extended.

3. Calling of Cases (Hajri or Call Work or Roll Call):

The present practice of the Court-Master or Bench-Clerk calling all the

cases listed on a particular day at the beginning of the day in order to confirm

whether Counsel are ready, whether parties are present or whether various steps

in the suit or proceeding has been taken, is consuming a lot of time of the Court,

sometimes almost two hours of the best part of the day when the judge is fresh.

After such work, the Court is left with very limited time to deal with cases listed

before it. Formal listing should be first before a nominated Ministerial officer of

the Court Administration, one or two days before the listing in Court. He may give

dates in routine matters for compliance with earlier order of Court. Cases will be

listed before Court only where an order of the Court is necessary or where an

order proscribing the consequences of default or where a peremptory order or an

order as to costs is required to be passed on the judicial side. Cases which have

to be adjourned as a matter of routine for taking steps in the suit or proceeding

should not be unnecessarily listed before Court. Where parties / counsel are not

attending before the Ministerial-officer or are defiant or negligent, their cases may

be placed before the Court. Listing of cases on any day before a Court should be

based on a reasonable estimate of time and number of cases that can be

disposed of by the Court in a particular day. The Courts shall, therefore, dispense

with the practice of calling all the cases listed adjourned to any particular day.

Cases will be first listed before a nominated senior officer of the Court,

nominated for the purpose.

4. Procedure on the grant of interim orders:

(a) If an interim order is granted at the first hearing by the Court, the

defendants would have the option of moving appropriate

applications for vacating the interim order even before the

returnable date indicated in the notice and if such an application is

filed, it shall be listed as soon as possible even before the

returnable date.

(b) If the Court passes and ad-interim ex-parte order in an interlocutory

application, and the reply by the defendants is filed, ad if,

thereafter, the plaintiff fails to file the rejoinder (if ay) without good

reason for the delay, the Court has to consider whether the stay or

interim order passed by the Court should be vacated and shall list

the case with that purpose. This is meant to prevent parties taking

adjournment with a view to have undue benefit of the ad interim

orders. The plaintiff may, if he so chooses, also waive his right to

file a rejoinder. A communication of option by the plaintiff not to file

a rejoinder, made to the Ministerial Officer will be deemed to be the

completion of pleadings in the interlocutory application.

5. Referral to Alternate Dispute Resolution:(In the hearing before the

Court, after completion of pleadings, time limit for discovery and inspection, and

admission and denials, of documents shall be fixed preferably restricted to 4

weeks each)

BIHAR GAZETTE (EXTRA), 31ST OCTOBER 2008

After the completion of admission and denial of documents by the

parties, the suit shall be listed before the Court (for examination of parties under

Order X of the Civil Procedure Code. A joint statement of admitted facts shall be

filed before the said date). The Court shall thereafter, follow the procedure

prescribed under the Alternative Dispute Resolution and Mediation Rule, 2008.

6. Procedure on the failure of Alternate Dispute Resolution:On the

filing of report by the Mediator under the Mediation Rules that efforts at Mediation

have failed or a report by the Conciliator under the provisions of the Arbitration

and conciliation Act, 1996, or a report of no settlement in the Lok Adalat under

the provisions of the Legal Services Authority Act, 1987 the suit shall be listed

before the Ministerial Officer within a period of 14 days. At the said hearing

before the Ministerial Officer, all the parties shall submit the draft issues

proposed by them. The suit shall be listed before the Court within 14 days

thereafter for framing of issues.

When the suit is listed after failure of the attempts at conciliation,

arbitration or Lok Adalat, the Judge may merely inquire whether it is still possible

for the parties to resolve the dispute. This should invariably be done by the Judge

at the first hearing when the matter comes back on failure of conciliation,

mediation or Lok Adalat.

if the parties are not keen about settlement, the Court shall frame the

issues and direct the plaintiff to start examining his witnesses. The procedure of

each witness filing his examination-in-chief and being examined in cross or re-

examination will continue, one after the other. After completion of evidence on

the plaintiff's side, the defendants shall lead evidence likewise, witness after

witness, the chief examination of each witness being by affidavit and the witness

being then cross-examined or re-examined. The parties shall keep the affidavit in

chief examination ready whenever the witness's examination is taken up. As far

as possible, evidence must be taken up day by day as stated in clause (a) of

proviso to Rule 2 of Order XVII. The parties shall also indicate the likely duration

for the evidence to be completed, and for the arguments to be thereafter heard.

The Judge shall ascertain the availability of time of the Court and will list the

matter for trial on a date when the trial can go on from day to day and conclude

the evidence. The possibility of further negotiation and settlement should be kept

open and if such a settlement takes place, it should be open to the parties to

move the Ministerial Officer for getting the matter listed at an earlier date for

disposal.

7. Referral to Commissioner for recording of evidence:

(a) The High Court shall conduct an examination on the subjects of the

Code of Civil Procedure and Evidence Act. Only those advocates

who have passed an examination conducted by the High Court on

the subjects of Code of Civil Procedure and Evidence Act - shall be

appointed as Commissioners for recording evidence. They shall be

ranked according to the marks secured by them.

(b) It is not necessary that in every case the Court should appoint a

Commissioner for recording evidence. Only if the recording of

evidence is likely to take a long time, or there are any other special

grounds, should the Court consider appointing a Commissioner for

recording the evidence. The Court should direct that the matter be

⁶

BIHAR GAZETTE (EXTRA), 31ST OCTOBER 2008

listed for arguments fifteen days after the Commissioner filed his

report with the evidence.

The Court may initially fix a specific period for the completion of the

recording of the evidence by the Commissioner and direct the

matter to be listed on the date of expiry of the period, so that Court

may know whether the parities are co-operating with the

Commissioner and whether the recording of evidence is getting

unnecessarily prolonged.

appointment that they will keep the records handed over to them

and those that may be filed before them, safe and shall not allow

any party to inspect them in the absence of the opposite party /

counsel. If there is delay of more than one month in the dates fixed

for recording evidence, it is advisable for them to return the file to

the Court and take it back on the eve of the adjourned date.

8. Costs:-So far as awarding of costs at the time of Judgment is

concerned, awarding of costs must be treated generally as mandatory is as much

as the liberal attitude of the Courts in directing the parties to bear their own costs

had led parties to file a number of frivolous cases in the courts or to raise

frivolous and unnecessary issues. Costs should invariably follow the event.

Where a party succeeds ultimately on one issue or point but loses on number of

other issues or points which were unnecessarily raised, costs must be

appropriately apportioned. Special reasons must be assigned if costs are not

being awarded. Costs should be assessed according to rules in force. If ay of the

parties has unreasonably protracted the proceedings, the Judge should consider

exercising discretion to impose exemplary costs after taking into account the

expense incurred for the purpose of attendance on the adjourned dates.

9. Proceedings for Perjury:-If the Trial Judge, while delivering the

judgment, is of the view that any of the parties or witnesses have willfully and

deliberately uttered blatant falsehood, he shall consider (at least in some grave

cases) whether it is a fit case where prosecution should be initiated for perjury

and order prosecution accordingly.

10. Adjournment:-The amendments to the Code have restricted the

number of adjournment to three in the course of hearing of the suit, on

reasonable cause being shown. When a suit is listed before a Court and any

party seeks adjournment, the Court shall have to verify whether the party is

seeking adjournment due to circumstances beyond the control of the party, as

required by clause (b) of proviso to Rule 2 of Order XVII. the Court shall impose

costs as specified in Rule 2 of the Order XVII.

11. Miscellaneous Applications:-The proceedings in a suit shall not be

stayed merely because of the filing of Miscellaneous Application in the course of

suit unless the Court in its discretion expressly thinks it necessary to stay the

proceedings in the suit.

PART-III

First Appeals to Subordinate Courts

1. Service of Notice of Appeal:

(a) A memorandum of appeal before the Appellate Court for obtaining

interim orders may be filed before the Appellate Court immediately

after filing of Memo of Appeal.

BIHAR GAZETTE (EXTRA), 31ST OCTOBER 2008

(b) Advance noticed should simultaneously be given by the counsel for

the party who is proposing to file the appeal, to the counsel for the

opposite party who appeared in the Subordinate Court so as to

enable the respondents to appear if they so choose, even at the

first hearing stage.

2. Essential Documents to be filed with the Memorandum of Appeal:

The appellant shall, as far as possible, file, along with the appeal, copies

of essential documents marked in the suit, for the purpose of enabling the

appellate Court to understand the points raised or for purpose of passing interim

orders.

3. Fixation of time limits in interlocutory matter:-Whenever notice is

issued by the appellate Court in interlocutory matters, the notice should indicate

the date by which the reply should be filed. The rejoinder, if any, should be filed

within four weeks of receipt of the reply. If there are more parties than one who

are Respondents, each one of the Respondent should comply with this

requirement within the time limit and the rejoinder may be filed within four weeks

for the receipt of the last reply.

4. Steps for completion of all formalities / (Call Work) (Hajri):-The

appeal shall be listed before the Ministerial Officer of the Court for completion of

all formalities necessary before the appeal is taken up for final hearing. The

procedure indicated above of listing the case before a senior officer of the

Appellate Court Ministerial Officers for giving dates in routine matters must be

followed to reduce the 'call work' (Hajri) and only where judicial orders are

necessary, such cases should be listed before Court.

5. Procedure on grant of Interim-orders:-If an interim order is granted at

the first hearing by the Court, the Respondents would have the option of moving

appropriate applications for vacating the interim order even before the returnable

date indicated in the notice and if such an application is filed, it shall be listed as

soon as possible even before the returnable date.

If the Court passes an ad-interim ex-parte order, and if the reply is filed by

the Respondents and if, without good reason, the appellant fails to file the

rejoinder, Court shall consider whether it is a fit case for vacating the stay or

interim order and list the case for that purpose. The appellant may also waive his

right to file the rejoinder. Such choice shall be conveyed to the Ministerial Officer

on or before the date fixed for filing of rejoinder. Such communication of option

by the applicant to the Ministerial Officer will be deemed to be completion of

Pleadings.

6. Filing of Written submission:-Both the appellants and the

respondents shall be required to submit their written submissions two weeks

before the commencement of the arguments in the appeal. The cause-list should

indicate if written submissions have been fled or not. Wherever they have not

been filed, the Court must insist on their being filed within a particular period to

be fixed by the Court and each party must serve a copy thereof on the opposite

side before the date of commencement of arguments. There is no question of

parties filing replies to each other's written submission. Continue

The Court may consider having a Caution List / Alternative List to take

care of eventualities when a case does not go on before a Court and those cases

may be listed before a Court where, for any reason, the scheduled cases are not

taken up for hearing.

⁸

BIHAR GAZETTE (EXTRA), 31ST OCTOBER 2008

7. Costs:-Awarding of costs must be treated generally as mandatory in as

much as it is the liberal attitude if the Courts in not awarding costs that has led to

frivolous points being raised in appeals or frivolous appeals being filed in the

courts. Costs should invariably follow the event and reasons must be assigned

by the Appellate Court for not awarding costs. If any of the parties have

unreasonably protracted the proceedings, the Judge shall have the discretion to

impose exemplary costs after taking into account the costs that may have been

imposed at the time of adjournments.

PART-IV

Application / Petition under Special Acts

This chapter deals with the applications / petitions, filed under special Act,

like the industrial Dispute Act, Hindu Marriage Act, India Succession Act, etc.

The practice directions in regard to original suits should mutatis mutandis

apply in respect of such applications / petitions.

PART-V

Criminal Trials and Criminal Appeals to Subordinate Courts

(a) Criminal Trail

1. Criminal Trials should be classified based on offence, sentence and

whether the accused is on bail or in jail and the Presiding Officer of the Court

shall categorize the trials and proceedings in his Court into Track I, Track II,

Track III, Track IV and Track V.

(a) Track I: Capital punishment, rape and cases involving sexual

offences or dowry deaths should be kept in this category.

(b) Track II: Other cases where the accused is not granted bail and is in

jail, should be kept in this category.

(c) Track III: Cases which affect a large number of persons such as

cases of mass cheating, economic offences, illicit liquor tragedy

and food adulteration cases, etc. should be kept in this category.

(d) Track IV: Offences which are tried by special courts such as POTA,

TADA, NDPS, Prevention of Corruption Act, etc. should be kept in

this category.

(e) Track V: all other offences.

2. The Presiding Officer shall endeavour to dispose of the trails in Track I

cases within a period of nine months, Track II and Track III cases within twelve

months and Track IV within fifteen months.

(b) Criminal Appeals:

3. Wherever an appeal is filed by a person in jail, and also when appeals

are filed by State as far as possible, the memorandum appeal may be

accompanied by important documents, if any, having a bearing on the question

of bail.

4. In respect of appeals fled against acquittals, steps for appointment of

amicus curie or Stage Legal Aid Counsel in respect of the accused who do not

have a lawyer of their own should be undertaken by the registry (State Legal

Services Authority) immediately after completion of four weeks of service of

notice. It shall be presumed that in such an event the accused is not in a position

to appoint counsel.

BIHAR GAZETTE (EXTRA), 31ST OCTOBER 2008

5. Advance notice should simultaneously be given by the counsel for the

party who is proposing to file the appeal, to the counsel for the opposite party in

the Subordinate Court, so as to enable the party to appear if they so choose

even at the first hearing stage.

PART-VI

Notice issued under section 80 of Code of Civil Procedure:-Every

public authority shall appoint an officer responsible to take appropriate action on

a notice issued under S. 80of the Code of Civil Procedure. Every such officer

shall take appropriate action on receipt of such notice. If the Court finds that the

concerned officer, on receipt of the notice, failed to take necessary action or was

negligent in taking the necessary steps, the Court shall hold such officer

responsible and recommend appropriate disciplinary action by the concerned

authority.

PART-VII

Note: Whenever there is any inconsistency between these rules and the

provision of either the Code of Civil Procedure, 1908 or the Code of

Criminal Procedure 1973 or the Civil and Criminal Court Rule of

High Court of Judicature at Patna or ay other statutes, the

provisions of such Codes and Statutes shall prevail.

—————

PUBLISHED AND PRINTED BY THE SUPERINTENDENT,

BIHAR SECRETARIAT PRESS, PATNA.

Bihar Gazette (Extra) 519—571+400—D.T.P.