SRINAGAR: The 1st Additional District Judge Jammu Virinder Singh Bhou has questioned the competence of the Central Government to make substantive amendments to the Code of Civil Procedure (CPC) under the Jammu and Kashmir Reorganisation Act and referred the matter to the High Court of Jammu & Kashmir and Ladakh for its opinion, The Daily Excelsior reported.
“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,” said 1st Additional District Judge Jammu Virinder Singh Bhou.
The Code of Civil Procedure, 1908 is a procedural law related to the administration of civil proceedings in India. The Code is divided into two parts: the first part contains 158 sections and the second part contains the First Schedule, which has 51 Orders and Rules.
“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.
“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 Reorganisation Act,” the court pointed out.
“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 a 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.
“In my considered opinion, such substantive amendments could have been brought only by a competent legislature and not by the executive in the 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,” stated 1st Additional District Judge Jammu.
“I my opinion, the amendments brought in the CPC are otherwise also discriminatory as they have made period of 120 days for filing written statements 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,” 1st Additional District Judge remarked.
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 March 18, 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.
