INTRODUCTION
The term “incidental” or “ancillary” refers to an event that occurs as a result of another event or an unanticipated effect of another event[1]. Incidental proceedings are those that are related to the main action but are incidental to or as a result of an unintended act. The meaning of the term “incidental” may vary in different subjects. While dealing with procedural law, it may include procedural nature but when it is used concerning an agreement or delegated legislation, it may mean something more. The main objective of incidental proceedings is to give some relaxation to the parties of the suit in certain cases where the court finds it fit considering the circumstance of the person. Part III[2] concerns incidental proceedings which can be granted in the matters such as the death of parties, marriage, insolvency, withdrawal of suits, compromise, and commissions.
DEATH OF PARTIES
There is a possibility that a party to a suit will die after the suit is instituted. In case of the death of a party, there must be a determination whether a party’s right to sue survives or his right to seek relief after the death of parties remains or not. If a plaintiff or defendant dies and his or her right to sue survives, the suit shall not be adversely affected[3].
MARRIAGE
When a female plaintiff or defendant marries, the suit shall remain unabated, but the suit may proceed to judgment and the decree may be executed purely against just her. The decree may be executed against the husband also when the husband is legally liable for the debts of his wife[4].
INSOLVENCY
If a plaintiff becomes insolvent in a suit filed by the assignee or receiver for the benefit of his creditors, the suit will not abate, unless such assignee or receiver refuses to continue the suit or to provide security for the costs thereof within a reasonable time directed by the court[5].
WITHDRAWAL OF SUITS
Plaintiffs can abandon a suit or abandon a part of it at any time after instituting legal action against all or any of the defendants[6] but in case of the plaintiff being a minor or person of unsound mind, neither the suit nor any part of claims shall be abandoned without prior notice of the court.
COMPROMISE
Where the defendant has satisfied the plaintiff in respect of the whole or any part of the suit’s subject matter and the court is satisfied wholly or partly by any lawful agreement or compromise. The court may order such agreement or compromise to be recorded, and it may pass a decree following it if it finds that a suit has been settled[7].
COMMISSIONS
The commission is a direction or responsibility granted by the Court to an individual to act and carry out all tasks necessary to provide full and thorough justice. The court may issue a commission to the person it deems fit, instructing him to perform the specified action and report on it to the court if any ministerial act is required to be performed in a suit for the interest of justice.[8]
PURPOSE OF ISSUING COMMISSIONS
Section 75[9] empowers the court to issue a commission for any of the following purposes-
To examine any person: The commission may be issued for a person who is unable to attend court due to sickness, infirmity, or harm to the public interest and also when a witness lives outside the territorial limits of the court’s jurisdiction or on any other grounds the court thinks appropriate, the court may relax the attendance Rule for that witness and grant commission[10].
The Paramhansa Ramkrishna Maunibaba v Trimbak Rajaram Deshmukh[11] concerns, a revision as to whether the learned Civil Judge erred by not allowing the plaintiff to examine himself on commission. Under this case, the order rejecting the plaintiff’s request to be examined on commission was set aside, and instead, it directed that the plaintiff’s evidence be recorded on commission as being Paramhansa, he always remained naked.
To examine a local investigation: It is the purpose of the commission to obtain proper and accurate information and assess the evidence on record and clarifies any unclear points[12].
To examine or adjust accounts: The court may order a commission for accounts that need to be examined or adjusted and in such case, the instructions provided to the commissioner should be as detailed as possible, and the commissioner’s report shall be used as evidence in the suit[13].
To make a partition: the court may issue a commission to whomever it considers appropriate to carry out the partition or separation as determined by the preliminary decree for the partition of immovable property.[14]
To hold a scientific technical or expert investigation: The court may issue a commission to investigate any question arising in a suit that cannot, in its opinion, be conveniently conducted before it so that that person shall be required to conduct such investigation and to report his findings to the court.[15]
The case Arup Bhuyan v. State of Assam[16] involves the fact that the lack of trained people and technical pieces of equipment for scientific investigation attracts conviction based on confession.
To conduct a sale of property: In any suit in which movable property is seized by the court and can’t be conveniently preserved pending the outcome of the suit, it may be necessary to sell it. If a court determines that it is necessary or expedient in the interest of justice, it may issue a commission to such person as it sees fit, direct him to conduct such a sale, and report the results to the court.[17]
To perform any ministerial act: A court may issue a commission to the person that it thinks is necessary for the interest of justice, directing him to perform the ministerial act and to report his findings to the court for the record.[18]
Difference between incidental and supplementary proceedings:
Considering the case of Vareed Jacob v. Sosamma Geevarghese[19] the following differences can be understood –
- Proceedings relating to incidental matters are exercised to achieve a resolution of the case meanwhile; supplemental proceedings are initiated to prevent the obstruction of justice.
- There will be a direct impact on the result of the suit from an order of the incidental proceeding on the other hand the supplemental proceedings are separate and do not impact the ultimate result of the suit.
- The Court has the power to revive orders passed in the ancillary proceedings or incidental proceedings if the suit is revived. However, the Court may need to reissue its order in order to address supplemental proceedings.
CONCLUSION
To conclude the meaning and applicability of the incidental proceedings have been explained from time to time through various judgments. For instance, in the case of Commissioner of Sales Tax v. Sai Publication Fund[20], it was held that a transaction incidental or ancillary to the main activity would not normally amount to “business” unless an independent intention to do so was established. Furthermore, in the case of Bansidhar Ramratan Upadhyay v Ramchandra Ramnarayan[21], the Hon’ble Judge has concluded that orders passed in supplemental proceedings will have to be treated distinctly to order incidental proceedings. Although the court issues commissions in matters where the appearance of a person is derogatory while considering the circumstances, it should be understood that the court or commissioner is not responsible for gathering evidence or protecting a party from the consequences of their actions.
Author(s) Name: Sanjana Mishra (Shri Ramswaroop Memorial University)
References:
[1] G.L. Vijain v K. Shankar (2007) AIR SC 1103
[2] Code of Civil Procedure 1908, p III
[3] Code of Civil Procedure 1908 ord. XXII r 1
[4] Code of Civil Procedure 1908 ord. XXII r 7
[5] Code of Civil Procedure 1908, ord. XXII r 8
[6] Code of Civil Procedure 1908, ord. XXIII r 1
[7] Code of Civil Procedure 1908, ord. XXIII r 3
[8] Code of Civil Procedure 1908, s 75
[9] Ibid
[10] The Code of Civil Procedure, 1908, ord. XXVI r. 1-8
[11] Paramhansa Ramkrishna Maunibaba v Trimbak Rajaram Deshmukh And Anr. (1978) AIR Bom 176
[12]Code of Civil Procedure 1908, ord. XXVI r 9 & 10
[13]Code of Civil Procedure 1908, ord. XXVI r 11 & 12
[14] Code of Civil Procedure 1908, ord. XXVI r 13
[15] Code of Civil Procedure 1908, ord. XXVI r 10A
[16] Arup Bhuyan v State Of Assam (2011) Criminal Appeal No. 889/2007
[17] Code of Civil Procedure 1908, ord. XXVI r 10C
[18] Code of Civil Procedure 1908, ord. XXVI r 10B
[19] Vareed Jacob v Sosamma Geevarghese & Ors (2004) S.L.P. (Civil) N0. 18699/2001
[20] Commissioner Of Sales Tax v Sai Publication Fund (2002) Civil Appeal No. 9445/1996
[21] Bansidhar Ramratan Upadhyay v Ramchandra Ramnarayan Totla (2005) 2 BomCR 43
