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costs, so far as the dues of Government are concerned, more in proportion to the amount or value of the property in dispute than is the case at present. This is only just and proper. Financially I do not know that any benefit will accrue to the State from the change; but the advantages of a system of Stamp duties over fees, in rendering unnecessary the keeping of numerous accounts, and in preventing peculation and other irregular practices, are so great that, other things being equal, it seems desirable on this ground alone to make the alteration proposed in the Bill.
At the time when the Bill for constituting Courts of Small Causes in the interior of the country, or beyond the local limits of the jurisdiction of the Courts of Small Causes in the Presidency towns, was under consideration, it was proposed to frame, from the Code of Civil Procedure, a Code, by which the proceedings of the Courts about to be constituted, should be regulated; but the idea was abandoned, as it was found that it would be necessary to embody in the proposed Code so many of the provisions of the general Code, that the one Code would really be to a great extent & repetition of the other. Instead, therefore, of preparing a separate Code of Procedure for the use of the Courts of Small Causes in the interior of the country, a section was introduced into the Act for constituting those Courts, declaring that, except as otherwise provided in the Act, the Code of Civil Procedure should be followed in cases cognizable by them in so far as the same might be applicable and necessary
The only objection, so far as I know, which has been felt to exist to the courso pursued of making the Code of Civil Procedure generally applicable to the cases cognizable by Courts of Small Causes in the interior of the country, has been the difficulty, which is occasionally experienced by the presiding Judges, of determining whether a particular section of the Code is, or is not, applicable to their Courts.
To remove this difficulty and to prevent any such doubt from arising in future, Section 3 of the present Bill provides as follows:
“The sections of this Code having the words 'Small Cause Courts' affixed to them in a parenthesis, extend to Courts of Small Causes constituted under any law for the time
being in force so far as the same are or can be made applicable to such Courts, as well as to other Courts not so constituted. The sections of this Code to which the said words are not so affixed, do not extend to Courts of Small Causes."
The sections thus made expressly applicable to Courts of Small Causes established in the interior of the country, or such of the sections as are to be found in the present Code of Civil Procedure were always, I believe, intended to apply to those Courts; and the publication of the present Bill
, though the provision which it contains on this point will not be binding until the Bill becomes law, will, I think, be of material service to the Judges of the Mofussil Courts of Small Causes whenever any difficulty or doubt, of the nature abovementioned, arises in cases coming before them. It must not, of course, be supposed that the whole, or any large part, of the sections made applicable to Courts of Small Causes will come daily into operation in proceedings before those Courts. The sections which will be most commonly acted upon will probably be very few in number; but cases may arise in which the other sections will be found useful, and when such cases do occur, it is desirable that the Courts should have a uniform rule for their guidance in dealing with them.
It was observed by the Royal Commissioners by whom the Code of Civil Procedure was originally prepared in England, that in the simpler classes of suits, the procedure which the Code prescribed would be equally expeditious and economical with that of the Courts of Small Causes at Calcutta, Madras and Bombay. This remark has been fully justified by the result. As showing how successful the Code has been in expediting the administration of justice it may be mentioned, that in a Court of Small Causes in the North-Western Provinces established under the provisions of Act XLII of 1860, the average duration of suits disposed of during the past year was only eight days, including the day on which the plaint was filed. Under the old system of procedure the average would probably have been between two and three months.
The Bill contains provisions—for the service of summons upon, and for taking the examination as witnesses of, persons confined in jail under criminal process, (the want of whicb
was brought to notice by the Lieutenant-Governor of Bengal) ; -for enabling the Courts to obtain the testimony of skilled persons on any question relating to the law of the religion of the parties, for the determination of which, when such question relates to Hindoo or Mahomedan law, the Courts, as already noticed, will no longer have the assistance of Hindoo and Mahomedan law officers in the service of Government;-and for regulating the proceedings of the Courts in enforcing, without a suit, bonds and other written obligations for the payment of money, when such bonds or other obligations shall have been registered in the manner
provided in Section õl of the Act* recently Act XVI of passed, relating to the Registration of 1864.
Assurances; that is, with an agreement that, in the event of the bond or other written obligation not being satisfied within the time stipulated, the amount may be recovered without a suit. The chapter of “Definitions" and the chapter of " General Rules" have also been greatly enlarged.
These various new provisions have, of course, added considerably to the number of sections of which the present Code consists, and that number has been further greatly increased by the division into two or more sections of several of the sections of the Code which are of inconvenient length. This division will, it is thought, materially facilitate reference, and be otherwise an improvement.
The only other addition to the existing Code, proposed by the Bill, which it seems necessary particularly to notice, has reference to suits brought to enforce the performance of any one or more acts under a contract, without waiting for the time when the whole of the acts required to be performed under the contract ought to have been performed. The part of the Bill referred to (Section 23 and Sections 131 to 135), has been taken with some modifications from the Bill, prepared by my Hon'ble and learned colleague Mr. Maine, for the improvement of the administration of Civil justice in respect of suits of small value, and published some time ago in the Official Gazette. The Code of Civil Procedure seems the fitter place for the provisions in question, and they have been introduced into the present Bill, in the form in which they now appear, with Mr. Maine's entire concurrence. I will not anticipate, in this statement, the
discussion on the principle of Mr. Maine's Bill, for which its introduction into the Council of the Governor-General for making Laws and Regulations will be the proper occasion ; but I desire to take this opportunity of expressing my conviction, that should the Bill pass into law, it will fully justify its title, and will effect a very considerable amount of improvement in the large portion of Indian litigation to which the provisions of the Bill will be applicable; that is, in the thousands of cases, of comparatively small amount and simple character, which are annually brought before our Indian Civil Courts. I may add that the present Bill does not propose to alter the existing law under which, in suits for damages for breach of contract, the Court may, with the consent of the plaintiff, if it appear that the defendant is able to perform the contract, decree specific performance within a time to be fixed by the Court, and award an amount of damages to be paid as an alternative if the contract is not performed. The Bill also leaves untouched the existing law relating to the execution of decrees for the specific performance of contracts, except that it limits to six months the period for which a defendant may be imprisoned, in execution, on failure to comply with the terms of the decree.
H. B. HARINGTON.
The following Table exbibits the numbers of Sections of the new Civil Procedure Code (Act X of 1877) and the numbers of corresponding Sections of the old Code (Acts VIII of 1859 and XXIII of 1861), the Mofussil Small Cause Court Act (XI of 1865) and the Bill of Exchange Act (V of 1866) arranged in the order of Sections of the New Act.