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ORDER X CODE OF CIVIL PROCEDURE: ELUCIDATORY OR OBSTRUCTIVE IN KASHMIR

ORDER X CODE OF CIVIL PROCEDURE: ELUCIDATORY OR OBSTRUCTIVE IN KASHMIR

Order X Rule 2 of the Code of Civil Procedures, 1908 which deals with “Examination of Parties” is one of the indigenous provisions of the Code of Civil Procedure, which was even present at the time when the “Code of Civil Procedure” was first introduced as Act no. VIII of 1859. The Act was then passed by the Legislative Council of India and received the assent of the Governor General on 22nd March 1859. Under Act of 1859 was Section 125, which dealt with “Oral Examination of the Parties by Court”. That in last 164 years the provision has made its way from “MAY” to “SHALL”, which was once from the reading of the language appeared to be Discretionary, carrying on now appears to be mandatory.

The intent of the Provision is clear from its bare reading that at the first hearing of the Suit, the Court with a view to elucidating matters in controversy in the Suit, examine orally such of the parties to the suit appearing in person or present in court. The term elucidating means to understand something in a clearer way. In Kanwar Singh Saini v. High Court of Delhi, (2012) 4 SCC 307 The Hon’ble Supreme Court guided on the first date of hearing in the following manner, “The date of “first hearing of a suit” under CPC is ordinarily understood to be the date on which the court proposes to apply its mind to the contentions raised by the parties in their respective pleadings and also to the documents filed by them for the purpose of framing the issues which are to be decided in the suit. “

The Question arises whether the Order X Rule 2 is a procedural requirement which is to be followed by the Civil Courts in every case pending before it or the same is a discretionary power vested with the Courts, to be exercised only in cases where the Parties have taken unclear or ambiguous stand in the pleadings. One school of thought strongly bats that Order X Rule 2 of the C.P.C. cannot be use as a method to compel a party to, depose contrary to the averments contained in the pleadings filed by the Party. The Hon’ble High Court of Delhi in Dr Vimla Menon & Anr Vs. Gopinah Menon held that “A bare reading of Order X of the CPC makes it apparent that the question of whether any of the parties to the suit is required to be orally examined on any aspect relevant to the controversy is essentially a matter of discretion. Where a court feels that, in order to elucidate matters in controversy in the suit, oral examination of one or more of the parties to the suit is necessary, the court is empowered to so order”

The Delhi High Court Order simplifies that such power is discretionary and not mandatory and the same is to be exercised only in those cases where the Court is of the opinion in order to elucidate matters in controversy in the suit, Oral examination of one or more of the parties to the suit is necessary. 

Though the said Order clarifies the position on Order X power being discretionary , but in the same breath poses a far more practical issue, as to whether , in every case , where the Courts list the matter for Statement under Order X Rule 2 , whether the Court has to pass a detailed order, as to on what ground it seeks presence of the parties in person before the Court and whether there exist any ambiguity in the pleadings , and hence the examination of the Parties becomes imperative. 


That the Hon’ble Supreme Court of India in Supreme Court of India in M/S.Kapil Corepacks Pvt.Ltd.&  Vs Harbans Lal, 2010 examined the scope of Rule 2 of Order 10 of the Code of Civil Procedure and the correctness of invoking Section 340 of the Code of Criminal Procedure in regard to answers given by a party in an examination by the court under the rule. The Supreme Court was specifically concerned with the 4 questions and 1st being “What is the scope and ambit of Order 10, Rule 2 of the code?” the Hon’ble Supreme Court held that while Rule 1 enables parties to a court proceeding to admit or deny any counter allegations that may not have been expressly or implicitly admitted or denied in the pleading itself, Rule 2 is concerned with the broader objective of elucidating any particular matter that may be controversial in the suit. 

The court highlighted that the object of oral examination under Rule 2 is not to record evidence, in as much as the statement made under the aforesaid provision is not under oath nor intended to be a substitute for a regular examination under oath. The court further clarified that the purpose of Rule 2 was not to elicit any admissions, which are merely contemplated in the pleadings during examination of a party by the court under Order 10, Rule 1. The court held that the power under Order 10, Rule 2 cannot be converted into a process of selective cross-examination by the court, calling on any party to admit a document, before the party has an opportunity to put forth its case at the trial.

The position of the Court with respect to the satisfaction of the presiding officer should be on application of mind and that the matters cannot be posted for Examination of the Parties under Order X Rule 2 in a cursory manner. This position of law is well settled and the 2 leading Judgments on Order X Rule, one being Manmohan Das v. Mt. Ramdei & Anr. [AIR 1931 PC 175], the Privy Council observed “No doubt under Order 10, Rule 2, any party present in Court may be examined orally by the Court at any stage of the hearing, and the Court may if it thinks fit put in the course of such examination questions suggested by either party. But this power is intended to be used by the Judge only when he finds it necessary to obtain from such party information on any material questions relating to the suit and ought not to be employed so as to supersede the ordinary procedure at trial as prescribed in Order 18.

The use of the said power should not be done and manner that supersedes the trial , the Hon’ble Court in Vasantharoya Koundan & Ors (AIR 1949 Madras 707), held as follows referring to Order 10 Rule 2 of the Code :

“At the outset it must be pointed out that this (Order 10 Rule 2) does not provide for an examination on oath. This provision was intended to be used to elucidate the matters in controversy in suit before the trial began. This is not a provision intended to be used to supersede the usual procedure to be followed at the trial.”

The provision is intended to elucidate what is obscure and vague in the pleadings. In other words, while the purpose of an examination under Rule 1 is to clarify the stand of a party in regard to the allegations made against him in the pleadings of the other party, the purpose of the oral examination under Rule 2 is mainly to elucidate the allegations even in his own pleadings, or any documents filed with the pleadings.

Supreme Court of India in Vikas Aggarwal vs Anubha on 12 April, 2002 held that “We would like to observe that Order X CPC in an enabling provision providing that the court at the first hearing of the suit shall ascertain from each party about their pleadings. It does not in any manner place any bar on the powers of the court to seek clarification from any party in an appropriate case, at any date earlier than one fixed for framing of issues so as to advance the interest of justice.”

It is clear, from a reading of the said passages that, Order X Rule 2 is intended only to elucidate matters in controversy in proceedings and can be pressed into service only where there is a want of clarity in the pleadings. If, therefore, the pleadings of the parties were wanting in clarity then, in order to identify the exact issue in controversy in the suit, the court could justifiably resort to examination under Order X Rule 2 so as to clear the cobwebs.

The CPC provides for procedure for trial of suits. Procedural law is intended to facilitate the process of justice. As to how a procedural law is to be interpreted and which of the provisions are to be considered as directory or mandatory was considered by Hon’ble the Supreme Court in Mahadev Govind Gharge and others v. Special Land Acquisition Officer, (2011) 6 SCC 321, wherein it has been held that “29. Thus, it is an undisputed principle of law that the procedural laws are primarily intended to achieve the ends of justice and, normally, not to shut the doors of justice for the parties at the very threshold…….”. 

The Order X Rule 2 as on date is being used as a delay tactic and an adjournment tactic on account of unavailability of the Parties, the same obstructs the courts from “Framing of Issues” which consequently delays the trial. That many trial courts also, as a matter of practice , soon after completion of pleading, post the matter for examination of parties in a cursory manner, without respecting the intent of the Provision, which ultimately causes inordinate delay in the process of achieving Justice. 

The Article is authored by Viqas Malik and co-authored by Areeba Ahad  who are practising at the J&K High Court and work at “Malik and Romaan Law offices, Srinagar”. The Authors can be reached at Malikandromaan@gmail.com.

Arbitration Challenges in Government Contracts

Arbitration Challenges in Government Contracts

Competitive tendering in the construction, engineering, and logistics sectors of the UT of J&K holds immense importance. These projects not only hold great public importance, but significant public funds are allocated to them. However, beneath the surface of these initiatives lie multifaceted challenges. The root of these challenges often lies in the initial bidding phase, where proposed bidders must adhere to certain Qualifications. With the award of a project to one contractor, challenges and disputes are raised by unsuccessful bidders, often attributing the decision to alleged connivance within the State Department, in the selection process. This situation creates a divergence between initial bidding approximations and the final selection of the winning bidder, leading to conflicts and court litigation between state departments and participating bidders.

On the flip side, once the contract is awarded to a contractor, the state entity holds the authority to assert that the procedures employed by the contractor during contract performance constitute a breach of contract or that the performance of the contractor falls short of the parameters stipulated in the agreement. Factors like force majeure, court interventions, changes in project requirements mid-way or the department’s failure to make partial payments can further complicate the matters. Such situations not only aggravate the challenges faced by both parties but also contribute to a significant extension of the contract timeline. This extended contract timeline, coupled with the challenges of delayed resolution and payments, introduces a ripple effect on project dynamics. The prolonged uncertainty can strain the contractor’s financial stability, impacting their ability to execute the project operations and fulfil contractual obligations. Additionally, the lingering issues, contribute to an atmosphere of apprehension, affecting the overall collaboration between the contracting parties and thus, results in disputes commonly subject to arbitration. 

Arbitration clauses, a common feature in government contracts, introduce their own set of complexities. The inclusion of government-nominated arbitrators, raises legitimate concerns about impartiality. The recourse for challenging such appointments or dealing with unresponsive or overburdened Govt. appointed arbitrators involves a detour through the courts, consuming valuable time and resources. The Supreme Court, while recognizing the well-established principle that appointment is required to be done as per the terms and conditions of the contract, held that if circumstances exist, an independent arbitrator may be appointed as an exception to the general rule if there is reasonable apprehension of bias and impartiality. In cases where the parties cannot mutually agree on an arbitrator, they are compelled to invoke 

Section 11(6) of the Arbitration and Conciliation Act, 1996, for the appointment of an arbitrator through the court, a process that typically extends over several months. This delay, not to mention the subsequent initiation of arbitration proceedings, significantly undermines the purpose of opting for arbitration as a quick and efficient dispute resolution mechanism. Moreover, the courts are engaged in lengthy inquiries into the validity and effect of the arbitration agreement/clauses before referring parties to arbitration, which severely delays the matter. Recent amendments aim to streamline this process; however, in practice, parties can file multiple applications and delay proceedings, both before and after the closure of arbitration proceedings. Even if these applications are ultimately dismissed on merit, the process of filing applications, serving the other side, hearing applications, and seeking an order on these applications is used by the parties to buy time in a judicial system that is significantly overburdened.

In this intricate web of challenges, the importance of robust arbitration mechanisms cannot be overstated. The intervention of the court cannot be eliminated, as those are statutorily enshrined under the Arbitration and Conciliation Act. The comprehensive solution to the array of issues discussed in the article lies in fully embracing and resorting to institutional arbitration. Institutional arbitration not only addresses concerns related to bias, non-performance by contractors, payment-related issues, and delays in government contracts but also introduces a systematic framework. Typically, institutional arbitration has its own rules that govern the procedure that would be followed. The Government of J&K has recently established the Institutional Arbitration Centre, namely the Jammu and Kashmir International 

Arbitration Centre (JKIAC), which could prove beneficial to counter such issues. The advent of institutional arbitration, exemplified by the J&K International Arbitration Centre (JKIAC), brings a structured
approach to dispute resolution. With a diverse panel of experts covering fields such as law, medicine, engineering, information technology, town planning, etc. to assist in the arbitral proceedings, JKIAC may provide a cost-effective alternative to protracted court battles. For dealing with the arbitration proceedings in the Centre, the Jammu and Kashmir International Arbitration Centre (Arbitration Proceedings) Rules, 2020 have been framed by the High Court. Despite these massive developments, most arbitrations in J&K are still conducted on an ad hoc basis. To fully leverage the benefits of institutional arbitration, suggested arbitration clauses in government contracts explicitly mentioning institutions like JKIAC in the following format may prove beneficial:

“Any dispute, difference, or claim arising out of, in connection with, or relating to the present contract or the breach, termination, or invalidity thereof shall be referred and settled under the Jammu & Kashmir International Arbitration Centre (Arbitration Proceedings) Rules, 2020, by one or more arbitrators appointed by its rules”.

In the framework of institutional arbitration, the administration of Arbitration falls under the purview of the Arbitration Institution. The institution’s panel of arbitrators typically comprises experts from various fields and this setup empowers parties to nominate an arbitrator possessing the requisite skills, experience, and expertise for a quick and effective dispute resolution process. The institution retains the right to refuse an appointment, on request, if it deems the nominated Arbitrator lacks the necessary competence or impartiality. Arbitration institutions oversee the entire arbitration process, starting with notifying the defending party about the Claimant’s request for Arbitration and extending the notification of the arbitral award to all involved parties. Institutional arbitration, therefore, offers a structured, impartial, and cost-effective alternative, providing support and expertise throughout the arbitration process. The recent legislative amendments, particularly in 2019, signal a shift towards institutional arbitration as a preferred mode, aiming to expedite resolution and reduce court interference.

In conclusion, achieving effective dispute resolution in J&K government contracts demands equilibrium. Addressing the aforementioned issues necessitates a comprehensive approach, including streamlined dispute resolution mechanisms, timely payments, and a proactive review of compensation policies in situations not attributable to the contractor. At a broader level, a thorough understanding and adherence to contract requirements, project timelines, and payment provisions by the contractors is essential for successful contract execution. Proactive identification of variations, coupled with transparent communication and timely responses from the departments, significantly contribute to the seamless operation of government contracts. The careful construction of arbitration clauses, along with the integration of institutional frameworks such as JKIAC (Jammu and Kashmir International Arbitration Centre), emerges as a key strategy for unlocking smoother and more efficient contract execution and dispute resolution in the dynamic landscape of the UT of J&K.

The authors, Adv. Romaan Muneeb, Partner at “Malik and Romaan Law Offices, Srinagar, J&K,” along with Associate Adv. Areeba Ahad, are lawyers at the J&K High Court. The authors can be reached at malikandromaan@gmail.com

CCTV, AI (Artificial Intelligence) weapon against Crime: Insights from Indian Law and Future. 

CCTV, AI (Artificial Intelligence) weapon against Crime: Insights from Indian Law and Future. 

The use of Closed-Circuit Television (CCTV) cameras has become an increasingly common tool in law enforcement and security around the world, where Kashmir is no exception, with CCTV cameras being installed in public areas, offices, it is high time that all private facilities including homes should also install CCTV cameras in order to curb crime in the Division. 

From 2009 the CCTV surveillance became an increasingly popular means of monitoring public and private spaces in India. The use of CCTV cameras is widespread in a variety of settings, including residential areas, offices, banks, hospitals, and public transportation systems. The Jammu and Kashmir administration has also installed CCTV cameras throughout the city, offices and public places to enhance public safety and security. In fact the State Administration also issued order for installation of CCTV cameras in all Police Stations and public officer, not only a measure of security but also accountability. In fact in another Order the District Magistrates of various district in Kashmir division in order to deter criminals, anti-social and anti-national elements from committing crimes, directed the installation of CCTV outside establishments, and such installation would work as a force multiplier, which would inspire further confidence in general public/customers visiting these establishments. The District Magistrates exercised their Power under Section 144 of the Code of Criminal Procedure, 1973 directing Shop owners and market associations to install CCTV cameras compulsorily.

Thought the directions for installation of CCTV in markets etc. did raise the concerns raised about privacy violations and the potential misuse of footage, Hence in order to restrict the misuse of such footages, the the Ministry of Home Affairs issued guidelines for their installation and use. Some key features of the guidelines are that the footage from CCTV cameras should be stored securely and should not be shared with unauthorized persons, also that the CCTV should not be installed only in public places and should not be used to invade the privacy of individuals.

Case studies of CCTV footage used in criminal investigations

CCTV footage has become an indispensable tool in criminal investigations in recent years, providing crucial evidence in many high-profile cases. In India, there have been several instances where CCTV footage has led to successful prosecution and conviction of criminals. 

1. Nirbhaya Case (2012): In this infamous gang rape case in New Delhi, CCTV footage from a hotel helped investigators identify and apprehend the six perpetrators.

2. Gauri Lankesh Murder Case (2017): The murder of journalist Gauri Lankesh was captured on her home’s CCTV system. The footage facilitated law enforcement agencies in identifying suspects involved in her assassination.

3. Kathua Rape Case (2018): In this brutal rape case involving an eight-year-old girl from Jammu and Kashmir, investigators were able to assemble multiple pieces of evidence, including CCTV footage of the temple’s vicinity where the crime was committed.

However, it is important to note that the Indian Evidence Act, 1872, regulates the use of CCTV footage in criminal investigations and it’s not merely the installation of cameras but also the handling of the footage for the purposes of reading a Evidence, which also need to be learned and administration must introduce SOPs for the same 

Supreme Court: Paramvir Singh Saini Versus Baljit Singh & Ors. vide its reportable judgement dated 02.12.2020 gave direction for installation of CCTV cameras in all Police Station and office of all other Investigation agencies , which possesses the power of arrest. As per the directions, CCTV cameras are to be installed, inter alia, at all entry and exit points including the main gate of the police station, in front of the police station compound as well as the back portion of the police station, in the lobbies or reception areas, corridors, verandas or outhouses, station halls, and rooms belonging to the inspectors, sub-inspectors, and duty officers, inside and outside lock-up rooms, and outside washrooms. The surveillance systems must be equipped with night vision and should be able to transmit both video and audio footage. Victims of custodial torture, the court had asserted, would have the right to seek the CCTV footage of interrogation by police and other federal agencies. 

The direction by the Hon’ble Supreme Court reflects the confidence of the highest judiciary in the technology and how the same can be a game changer for security as well as accountability.  

Delhi Model 

As per a news report, Delhi was at the top with 1,826 CCTV cameras per square mile in the world. The story behind such numbers is that the NCT of Delhi, through Public Works Department, upon an Application by any Individual, market, association etc. installs the CCTV camera on cost of the State, rather than shifting the onus of installation on the Individuals. Though such applications are subject to the approval of competent authority and location feasibility etc.

Preservation of CCTV footage

In a number of cases the Complainant would entirely leave the matter in hands of the Investigation Agencies, who might due to limited resources and overburden of cases, miss on an essential factor i.e preservation of the CCTV footage. The average life of CCTV footage to replay is around 3-12 Months and upon expiry of such period if the CCTV footage is not secured or preserved the same is lost forever, without any chances of recovery, which not only weakens the case for the prosecution but also sabotages an important link in the chain of events. The Complainants can very well exercise their right under 156(3) Cr.P.C to seek specific directions for preservation of CCTV footage  

The role of CCTV footage in workplace and property monitoring 

CCTV footage plays a crucial role in workplace safety and security. There are several benefits of installing CCTV cameras in the workplace. Firstly, they act as a deterrent to potential criminals, reducing the likelihood of theft, vandalism, or even more severe crimes. Secondly, they can help in identifying perpetrators if a crime does occur, making it easier for law enforcement officials to apprehend them. 

Apart from preventing crime, CCTV cameras can also be used to monitor employee behaviour to ensure compliance with company rules and regulations. For instance, if an employee is caught stealing from the company, the CCTV footage can be used as evidence during disciplinary proceedings. Moreover, CCTV footage can be used to identify safety hazards in the workplace, enabling employers to take corrective actions to prevent accidents. For example, if an employee slips and falls at a particular location, the CCTV footage can be reviewed to identify the cause of the accident, such as a wet floor or an obstruction. This information can then be used to take corrective measures such as putting up warning signs, cleaning up spills immediately, or removing obstructions. 

Overall, the presence of CCTV cameras in the workplace can improve employee safety, reduce the likelihood of criminal activity, and provide valuable evidence in case a crime does occur. Employers should ensure that their CCTV systems comply with all applicable laws and regulations to avoid any legal issues.

Conclusion and the future of CCTV surveillance in India.

In conclusion, the use of CCTV cameras has become an important tool in to ensure public safety and security. The cases discussed in this article demonstrate the value of CCTV footage in providing evidence and solving criminal cases. However, there are also concerns regarding the misuse of CCTV footage, invasion of privacy, and data protection. As technology continues to advance, the future of CCTV surveillance in India will likely involve the integration of Artificial Intelligence (AI) and facial recognition technology. This could lead to more efficient and accurate identification of suspects, but it also raises questions about privacy and civil liberties.

It is important that the use of CCTV cameras is regulated and monitored by the government to prevent abuse and ensure that citizens’ rights are protected. Businesses and individuals should also take responsibility for the use of CCTV cameras on their premises, ensuring that they are used ethically and in compliance with the law.

Overall, the use of CCTV cameras has both benefits and drawbacks, and it is important to strike a balance between public safety and individual privacy. With careful implementation and regulation, CCTV surveillance can continue to play an important role in maintaining law and order in India.

ORDER X CODE OF CIVIL PROCEDURE: ELUCIDATORY OR OBSTRUCTIVE IN KASHMIR

Child Abuse and POCSO Act

There is a saying that, “What you allow to happen in your presence is your standard”. It is hard to digest but it needs to be understood that the issue of child sexual abuse has always been rampant in our society and is now becoming very common in Jammu and Kashmir. It is an ugly truth and it is extremely sickening that such issues are either overlooked or dealt without proper alertness. Children may not be the 100% of our population but they definitely are the 100% of our future. Tender age of the child who is sexually abused is transformed into a lifetime of anxiety and depression. Every human has certain memories from his/her childhood and events like these in early life can lead to devastating consequences in the life ahead of such children. Children are defenseless and need security, affection, and tremendous sensitiveness as a result of their physical, mental, and other underdeveloped abilities.

Sexual abuse against children includes all situations in which a child is used for sexual pleasure either by an adult or a juvenile. Sexual abuse of child is not a phenomenon that is common only in a poor household. It also happens within the wealthy, middle class or rich families. There are several unreported cases of child abuse in schools or other educational centers including religious centers. Children who are sexually abused sometimes have to suffer from mental breakdown and need psychological help. The child loses the sense of dignity and self-worth andsuffers from the loss of confidence in the family and relatives.

Read full Article on http://risingkashmir.com/child-abuse-and-posco-act