May 10, 2018

Highlights of the New Delhi High Court (Original Side) Rules, 2018- Part I of II: A Handbook for Lawyers

Source: www.delhihighcourt.nic.in


Pursuant to Supreme Court’s Order dated January 09, 2018, in Suo Moto Writ Petition in Re: Case Management of Original Suits[1] , wherein the bench, constituted by Justices Ranjan Gogoi and R Banumathi, asked the Delhi High Court to lead by framing new procedural rules for cases heard under its Original Jurisdiction. It was stated in the order that “the Hon’ble Judges of the Delhi High Court have to work out ways and means for effective disposal of the IPR matters before it so that a model for disposal of civil suits can be culled out from the ways and means adopted by the Delhi High Court which can form the basis of an uniform action plan for the rest of the country.”

Following the said order, the Delhi High Court notified the Delhi High Court (Original Side) Rules, 2018, which provides for cutting down time of litigation, streamline the procedure for completion of Pleading, interrogatories, discovery, appointment of Local Commissioner, checking unnecessary adjournments and imposing cost for causing delay etc. The said rules came into force with effect from March 01, 2018.

The Rules are running in to XXXI Chapters, and for the sake of convenience, we dealt with Chapter I to XV in our first post and Chapter XVI to XXXI are dealt with in our second post. Some of the highlighted changes brought about by the new rules are as follows:

CHAPTER II: EXERCISE OF ORIGINAL CIVIL JURISDICTION

The new rules have done away with Rule 7 of Chapter II of the Delhi High Court (Original Side) Rule, 1967, which dealt with disposal of matter by Judge in Chambers, for eg., appeal from the order of the Registrar or a reference made by him or directed to be made by the Judge in Chambers; application for arrest before judgement, for attachment before judgement and for appointment of receiver etc.

CHAPTER III: FORM OF PLEADINGS

  • Rule 1, every Plaint, Written Statement, Application, Petition and the like presented to Court, shall be, subject to Annexure- C to these Rules, lithographed or printed in double spacing on one side of A4 size white paper[2] with the following format settings:

    • Paper size : A- 4

    • Margins : Top & left- Three centimeter, Right- One centimeter & Bottom- two centimeter

    • Justification : Full

    • Font : Times New Roman

    • Font size : 14

  • Rule 2- At the foot of every pleading and vakalatnama[3] , the name, enrolment number, phone number, email-id of the advocate, along with his/her signatures, must be mentioned thereto.

  • Rule 3- The address for service filed with every initial Pleading on behalf of the party, shall contain, as far as possible, the complete address the phone number(s), mobile number(s), fax number(s) and e-mail address(es), if any, of the addressee.

  • Rule 5- English translation of the document, in addition to the previous prescribed ways, prepared by an official translator from authorities/bodies duly recognized by the Court, Central or State Government is also recognized.

  • Rule 6 is added in respect of service of Petitions under the Arbitration & Conciliation Act, 1996. It is now mandatory to serve an advance copy of the Petition/Application together with annexures, if any, upon each opposite party where an Application/Petition under Section 9, Section 11, Section 14, Section 15, Section 27, Section 34 or Section 37 is filed. If the Petition is to be filed against Union of India, State Government, Statutory Authority, Public Sector Undertakings or a Government Department; the copies shall be served upon their nominated counsel and not directly to the government offices.

CHAPTER IV: PRESENTATION OF PLEADINGS, OTHER DOCUMENTS & MAINTENANCE OF CASE FILES

  • Rule 1(d) provides that the Plaintiff shall also specify in the index whether original(s) of documents are filed and in whose custody, power, control and possession, and on what basis Plaintiff makes the said statement. Rule 1(e) provides that where a document relied upon, is an entry in a shop book; other accounting records or an electronically maintained record, shall file a certificate from an internal accountant or an external auditor, confirming the correctness of the same, besides filing an affidavit under Section 65B of the Indian Evidence Act, 1872, wherever applicable.

  • Rule 3 provides that, if on scrutiny, the pleading/document is found defective, the same must be returned for amendment and re-filing within a time not exceeding 7 days at a time and 30 days in aggregate. If the same is not done, then it shall be registered and listed before the court for its dismissal for non-prosecution. Beyond the prescribed time, it shall be accompanied with an application for condonation of delay in re-filing of the said pleading/document.

  • Rule 9 prescribes the new way in which the files/documents are to be arranged as under:

    1. Main file or part I of the suit record, which, shall comprise of two sub-parts, 1-A and 1-B;

    2. Interlocutory application file or Part II of the suit record;

    3. Documents file or Part III of the suit record;

    4. Evidence file or Part IV of the suit record; and

    5. Miscellaneous file or Part V of the suit record.

    The order of contents of the abovementioned files are specified in Rule 9-13.

CHAPTER VI: PROCESSES/NOTICES ETC

  • A new clause (e) has been added and service by way of electronic mail, fax, SMS and any other web based or virtual communication mode have been recognized and publically available email address and fax number either on the website of the party or in the public domain/records shall be deemed to be the correct email address, fax numbers, respectively.

  • As per Rule 13, service by any of the recognized modes shall be deemed to be service.

  • Rule 19 provides for practice direction for issuance of summons has been added in the rules as Annexure A- “Practice Directions for issuance of summons/ notices through speed post/ registered post with Proof of Delivery (POD) in the High Court of Delhi”

CHAPTER VII: APPEARANCE BY DEFENDANT, WRITTEN STATEMENT, SET OFF AND COUNTER-CLAIM

  • If the summons is for appearance and for filing Written Statement, then the Written Statement shall not be taken on record unless filed within 30 days from the date of such service or within the time provided under these Rules or CPC or Commercial Act as applicable.

  • Defendant & Plaintiff shall file their Affidavit of Admission & Denial of documents alongwith their Written Statement and Replication respectively. Without that, their Written Statement and Replication, as the case may be, shall not be taken on record.

  • In case the Defendant & the Plaintiff fails to file their Affidavit of Admission & Denial of Documents of each other, they shall be deemed to have been admitted the documents of one another.

  • 30 days’ time extendable to further 15 days is also granted to the Plaintiff to file Replication.

  • For each delay in filing Written Statement & Replication, the Defendant & the Plaintiff, respectively, shall be burdened with cost.

CHAPTER VIII: DISCOVERY, INSPECTION AND INTERROGATORIES

  • Under Rule 1(f) of Chapter IV, Plaintiff is entitled to file an application for Discovery & Inspection of Documents & Interrogatories alongwith the Plaint. Under the chapter, the Plaintiff is also entitled to file an application for Interrogatories within 15 days of receipt of written statement from the Defendant.

CHAPTER IX: MEDIATION/SETTLEMENT, JUDGEMENT WITHOUT RECORDAL OF EVIDENCE, EXAMINATION OF PARTIES & FRAMING OF ISSUES

  • On the first hearing of the proceedings, the court shall ascertain from the parties whether they admit the allegation of fact made against each other. If any party makes such admission, court may record such admission and pronounce the judgement.

CHAPTER X: INTERLOCUTORY APPLICATIONS

  • Where an advance copy of the application has been served on the non-applicant or his advocate, the court shall proceed to hear the application and pass appropriate order without issuing any notice to the non-applicant or his advocate, unless it directs otherwise.

  • Applicant shall be bound to intimate all the opposite parties by any or all modes including SMS, email or fax etc. the date on which the said application is scheduled to be listed.

  • Provision is made to file an application for the purpose of hearing ex-parte ad-interim injunction in camera and if such application is allowed, only the names/pseudo names of the Applicant shall appear in the cause list as may be directed by the court.

CHAPTER XI: EVIDENCE & WITNESSES

  • Rule 1 - Cases for recording of evidence have to be categorized into following classes:

    1. Cases where evidence is to be recorded in Court;

    2. Case where evidence is to be recorded before the Registrar; and

    3. Cases where evidence is to be recorded before a commissioner;

    However, the court may in its discretion, considering the nature of the witness, issue notice in nature of the witness to be examined, give directions with regard to recording of evidence of such witness(es) before itself. Even the court may change the category of a case, if the circumstances so require.

  • Rule 3a has prescribed therein a form for filing the list of witnesses.

  • Rule 11- objections to exhibiting any document or its production, shall be recorded to be decided at the time of decision of the suit other than original proceeding, unless the registrar/ commissioner deems that the objections needs to be decided forthwith, he shall place the matter before the court, without delay after recording of rules.

  • Under Rule 13, the evidence of an outstation witnesses shall be done on day-to-day basis, till the witness(es) is discharged.

  • Under Rule 20, the party-in-person or his authorized agent or representative of corporate body is to appear before any witnesses on its behalf are examined, however the Court/Registrar/Commissioner may on an application, allow them to appear as his/her own witness at a later date and be examined later.

  • Under Rule 24, any party seeking to tender any electronic record shall do so in a CD/ DVD/ Medium, encrypted with a hash value, the details of which shall be disclosed in a separate memorandum, signed by the party in the form of an affidavit.

  • Under Rule 28, the parties/ witnesses shall be entitled to a copy of deposition, free of cost, at the conclusion of each date.

  • Under Rule 34, except with the leave of the court, no document which is not in English, shall be read or received in evidence, unless it is translated in English in accordance with these Rules.

  • Under Rule 38, the Court/ Registrar/ Commissioner may, if it deems appropriate, direct use of video conferencing in accordance with guidelines issued by Court, from time to time, for conduct of court proceedings between Court(s) and remote site(s). Guidelines are provided in Annexure B.

CHAPTER XII: COMMISSONS

  • Rule 3- in addition to various modes of service, in cases where the Local Commissioner is appointed for search, seizure, etc., he may be directed to serve the summons on the defendant alongwith Plaint, documents etc. with direction to mention such service in its report and such report would be deemed as sufficient service of the concerned person.

  • Rule 4 says that Commissioner shall make disclosure of its conflict of interest with any party/lawyer/law firm involved in the matter.

  • The names of the persons appointed as Commissioner(s) together with details of cases in which they were appoint shall be maintained in a database. [4]

  • The Commissioner shall complete recording of evidence, within the time stipulated by the Court and in any case within six months from the date first fixed before him. In case the recording of evidence cannot be completed within the timeline fixed by the Court, the Commissioner shall furnish a report explaining reasons for delay and direct parties to seek appropriate orders from Court.

  • For the first time, the rules provides a provision for Foreign Commissions, wherein the examination of witnesses is to be conducted in foreign countries, which will be governed by directions issued by appropriate authorities from time to time.

CHAPTER XIII: ADJOURNMENTS

  • As per the rules, adjournment shall be granted only in exceptional cases, which must be recorded in writing. From now onwards, the consent of the parties shall not be a good cause for seeking adjournments. Now exemplary cost may also be applied as per Chapter XXIII of 2018 Rules.

CHAPTER XIV: HEARING IN FINAL MATTERS ETC.

  • Rule 2(b) provides that it will be the duty of the advocates of parties to exchange their final arguments, list of judicial precedent to which they are likely to refer, atleast one week before the date of final hearing.

  • Rule 2(c) prescribes that the advocates shall submit a short synopsis of not more than five pages, arranged issue-wise, atleast two days before the date of fixed for final hearing of arguments.

  • Rule 3 provides that the court master shall make a note of the time at which each hearing commenced and terminated on each day and it shall be recorded as part of record of proceedings for that day.

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[1] Suo Moto Writ Petition (Civil) No(s). 08/2017.
[2] Rule 1 (ii), Chapter III, Delhi High Court (Original Side) Rules, 2018.
[3] Rule 3, Chapter V, Delhi High Court (Original Side) Rules, 2018.
[4] Rules 7, Chapter XII, Delhi High Court (Original Side) Rules, 2018.

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