INTRODUCTION

Rights and obligations of the members of a civilised society must be determined and
enforced.

This is possible by two sets of laws, namely

a) Substantive Laws (Indian Penal Code, 1860; Contract Act, 1872; Partnership Act,
1932; Sale of Goods Act, 1930, etc.) and
b) Procedural Laws (Code of Civil Procedure, 1908; Criminal Procedure Code, 1973;
Evidence Act, 1872, etc.).

The former determines the rights and obligations of the members of the society, whereas the
latter prescribes the procedure for their enforcement.

There is no doubt regarding the fact that substantive laws are more important than the
procedural laws, but the efficacy of substantive laws mainly depends upon the quality of the
procedural laws. Unless the procedure for enforcing a right is simple, effective, expeditious
and inexpensive, substantive laws, however well they have been made, would fail in their
purpose and object. It has rightly been remarked that "Procedure should always be indeed the
handmaid of justice".

A procedural law is always in aid of justice, not in contradiction or to defeat the very object
which is sought to be achieved. A procedural law is always subservient to the substantive
law. Nothing can be given by procedural law what is not sought to be given by the
substantive lawand nothing can by the substantive law.

History of the Code.—

There was no uniform law of Procedure for Civil Courts in India prior to the Act of 1859.
Very often, different systems of procedure prevailed in the same region. Thus, for example,
there were as many as nine different systems of procedure in Bengal alone which were in
force simultaneously. The procedure of the Mofussil Courts was regulated by special Acts
and Regulations which were repealed in 1861.

The first Civil Procedure Code was enacted and passed in 1859, which applied to Mofussil
Courts only. In 1862, on the abolition of the Supreme Court and SaddarDiwaniAdalat, the
Code was made applicable to High Courts as well. The next Code was passed in the year

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1877, which repealed that of 1859. Several amendments were made in it and third Code was
passed in 1882. It was further superseded by the present Code of 1908, after several
amendments. The present Code of 1908 was amended several times. Necessity was felt then
to make some other changes in the present Code.

Scheme of the Code.—

The Code of Civil Procedure, 1908 has been divided into two parts;

1) the first part consists of 158 sections - lay down the provisions of a substantive nature
and the principles regarding jurisdiction of the courts
2) the second part consists of the First Schedule wherein there are 51 Orders and every
order contains rules – the First Schedule deals with the procedure and the mode and
the method of which is to be followed by the courts while exercising jurisdiction
bestowed by the code.

While the main principles are contained in the sections, the detailed procedure with regard to
the matters dealt with by the sections are specified in the orders.

Order 1 to 20 – is theoretical part

Order 21 to 51 – is practical part

The sections under the code can be amended only by the legislature.

But the orders and rules provided in the First Schedule of the code can be amended by the
High Court. Under section 122, the High Courts have powers to amend, by rules, the
procedure laid down in the orders.

The sections and the rules, therefore, must be read together and harmoniously construed.
However, if the rules are inconsistent with the sections, the sections will prevail.

The sections create jurisdiction while the rules indicate the manner in which the jurisdiction
is to be exercised, the inherent power of the court to do justice is in additions to and
complementary to the powers conferred under the Code.

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The Code consolidates and amends the laws relating to the procedure in India. The Code
applies to the procedure of all Courts of Civil Judicature.

But it does not affect any special or local law. In case of conflict between Civil Procedure
Code and a Special law, the latter prevails over the former.

The code is a code conferring powers on Courts and is not a code restricting and delimiting
its unlimited powers.

Foreigners are not exempted from the operation of the Code.

The Code cannot of itself establish a right which does not exist under the ordinary law of the
land.

The Code is not retrospective so as to affect vested rights. However, it has been held as well
settled that all procedural laws are retrospective unless the Legislature expressly states to the
contrary, that the procedural laws in force must be applied at the date when the suit or
proceeding comes on for trial or disposal, and that a Court is bound to take notice of the
change in the law and is bound to administer the law as it was when the suit came up for
hearing.

The Code of Civil Procedure, 1908 deals with the procedural matters that is, with matters
relating to the machinery for the enforcement of substantive rights, as contra-distinguished
from the substantive rights themselves.

Suit under Article 131 between two states or union and states cannot and ought not to be
decided with very technical approach in so far as pleadings and procedure are concerned. A
suit filed in original jurisdiction of Apex Court is not governed by the procedure prescribed in
Code of Civil Procedure, save and except the procedure which has been expressly made
applicable by the Supreme Court rules.

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The domain of Code of Civil Procedure, 1908 becomes active as soon as an application under
section 34 of the Arbitration and Conciliation Act of 1996 is made. This is further fortified by
the fact that Arbitral award has to be enforced under the Code of Civil Procedure, 1908 in the
same manner as if it were a decree of the court.

Interpretation of the Code.—

The object of the code is not only to amend but also to consolidate the law of civil procedure
for the whole of India. The Supreme Court in Sangram Singh v Election Tribunal, AIR 1955
SC 425 (429) : (1955) 2 SCR 1 : (1955) 2 MLJ (SC) 3 observed as: "A code of procedure is
designed to facilitate justice and further its ends; not a penal enactment for punishment and
penalties; not a thing designed to trig people up. Too technical a construction of section that
leaves no room for reasonable elasticity of interpretation should be guarded against."

It has been held that the headings prefixed to sections are regarded as preambles to those
sections and cannot control the plain words of the statute, but they can be referred to for
resolving doubts when the words of the enactments are ambiguous.

Marginal notes to the sections of an Act are not to be referred to for the purpose of construing
the Act. 34 All procedural laws are based on the principles of natural justice. There may, of
course, be some exceptions, and where they are defined, those may be specifically given
effect to. 35 It has been held that procedure is a handmaid and not mistress of law and rules
of procedure should only sub-serve and not govern. Procedure is only channel to administer
law and thus it should not be instrumental in impleading or obstructing justice. In case of
conflict between Civil Procedure Code, 1908 and its Schedule, the code must prevail.

Law of Civil Procedure Code is based on the principle that, as far as possible, no proceedings
in a court of law should be allowed to be defeated on grounds of mere technicalities. The
provisions of the code, therefore, must be interpreted in a manner so as to sub-serve and
advance the cause of justice rather than to defeat it. 38 Further the provisions of Civil
Procedure Code are subject to the provisions of Limitation Act. Both Acts are general Acts
and are in parimateria. The Acts must, therefore, be read together and must be treated as
complementary to each other. 39

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Discretion of Courts.—

It has been held that the Code in many of the sections leaves certain matters to the discretion
of the Court. 40 However, the discretion must not be exercised in an arbitrary, vague or
fanciful manner but on judicial principle. 41 The term "judicial discretion" means that in
certain proved or admitted circumstances the Court has been given power to act or not to act
in a particular way and such discretion must be exercised within the limits to which an honest
man competent to the discharge of his office ought to confine himself. 42

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ASKED many times

Necessary party not made party – it is non-joinder of parties

Not necessary party made party – it is mis-joinder of parties.

Proper party – is a party, who though not necessary party, is a person whose presence would
enable the Court to completely, effectively and adequately adjudicate upon all matters in
dispute in the suit, though he may not be a person in favour of or against whom the decree is
to be made.

Necessary party is the party without whom no order can be made effectively and proper
party is one in whose absence an effective order can be made but whose presence is necessary
for a complete and final decision in the proceeding. If the necessary party is not joined, it is
fatal to the suit. In such cases, the Court will dismiss the suit in limine. If the plaintiff has not
made a necessary party to the suit as one of the defendants and if the plaintiff has not made
any application for addition of such necessary parties, then

a) If the Court after reading the suit comes to a conclusion that a party is
necessary party for the adjudication of the suit, then it will direct the plaintiff
to amend the suit.
b) If any of the defendants in the suit has in his written statement pointed out that
a party who is a necessary party to the suit has not been made party, the Court
will direct the plaintiff to add such party.

If the plaintiff fails to add the necessary party, the Court may dismiss the suit in limine as per
Order VII Rule

In case of death of any defendant, the plaintiff must make an amendment application within
90 days from the death of the defendant. Death certificate of the deceased defendant and the
List of the legal heirs of the deceased stating their name, age, address, occupation shall be
enclosed. In case a legal heir is a minor, then against his name state the name of his guardian
who will represent him along with similar details of the guardian. “Through the guardian” has
to be mentioned in the title of the suit, otherwise the suit will be considered to have been
made by the minor and, therefore, the suit will be rejected.

The LR can be brought only when the right to sue does not die.

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In case of divorce proceedings and criminal offence, the legal heirs cannot be brought on
record.

In case of trust, the LR of the defendant trustee who has deceased cannot be brought on
record. The LR must be first made a trustee and then he can replace the defendant deceased
trustee. Otherwise, an outsider must be made trustee and then he can replace the deceased
trustee as defendant.

Once the Court grants leave to file the amendment, the amendment must be made within 14
days. Thereafter, serve amendment on the Legal Representatives, then the LR can file their
Additional Written Statement. The LR should take care not to modify the statements made in
the Original Written Statement which was filed by the deceased defendant. In the Additional
Written Statement, the LR may take this opportunity to cover all the events or change in
circumstances that have happened from the date of filing of the suit by the Plaintiff. The
Plaintiff can, though not specified in the CPC but as per prevailing practice, file his rejoinder
to reply to the Additional Written Statement filed by the LR’s. It should be noted that the
original defendant did not have the opportunity to cover all the events or change in
circumstances that have happened from the date of filing of the suit by the Plaintiff.

Essentials of a suit:

1) Parties

2) Cause of action
If the court based on the facts presented prima facie finds that there is no cause of
action, it will reject the plaint under Order VII Rule 11.
Rejection of plaint is covered under Order VII to XI.
If the defendant produces different facts and evidence, and the Court finds that there
is no cause of action, it will dismiss the plaint.

3) Subject matter of suit

Subject matter decides the Court which you have to approach.

a) Criminal matters to criminal courts and civil matters to civil courts.

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 In an accident case, the damage caused to the car by the public is a civil matter
and the beating up of the driver by the public is a criminal matter.

b) Property dispute
Property value upto Rs.1 Crore – City Civil Court
Property value above Rs. 1 Crore – High Court
The territorial jurisdiction also to be taken into consideration.

c) Consumer cases
UptoRs. 50 lakhs – District Commission
Rs. 50 lakhs to uptoRs. 10 crore – State Commission
Above Rs. 10 crore – National Commission

Husband and wife formed partnership firm, which has property. They were having
very cordial and close personal relations. There was dispute in business. However,
their personal and marital relations continued to be good. – The matter goes to Civil
Court.

Man has self-acquired property. He has a son. His wife expired. He has illicit
relationship with a woman. They have an illegitimate child. The man dies without
making a Will. The illicit wife is still alive. The legitimate son files a suit claiming
that 100% property belongs to him. The illegitimate son also filed a suit claiming 50%
property belongs to him. – The matter goes to Civil Court under Hindu Marriage Act
and Hindu Succession Act. The illegitimate son will make following prayers in his
suit:

i) I be declared as the legal heir – to obtain a declaratory decree under section 34

and 35 of Specific Relief Act, 1963.
He has to prove that he is son with the help of the illicit mother.

ii) I am entitled to 50% property.

iii) Interim and ad-interim relief

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 Interim is for maintain stauts quo – the defendant be restrained by this Court
from creating any right, title or interest over the said property in favour of any
third party till this suit is finally disposed of. Seek injunction under section 36
to 42 of the Specific Relief Act, 1963.

Where temporary injunction is granted

You have to say temporary injunction has been granted in favour, it may
please be extended till the next hearing. – this every hearing you have to do
and don’t miss any hearing date, otherwise the opposite party will take
advantage to get the injunction removed.

For getting injunction, you have to make Notice of Motion and the otherside
will reply, then Court will decide on the injunction. Notice of Motion is
application for the grant of injunction under Specific Relief Act, 1963 when
your substantive right is violated.

iv) Costs of petition

v) Any other order which the court thinks fit.

4) Prayer clause
All that you want you have to claim in prayer clause.
You can asks for costs of litigation without stating the amount – Costs is granted at
the discretion of the Court. You cannot file an appeal if costs granted is low or not
granted at all.
Amendments cannot be made to Prayers. When the defendant dies and his legal heirs
are to be brought on record, OR when there is change in circumstances, then the
Plaint is allowed to be amended. At that time you can amend the Prayers.

Remember for appeals

First appeal can be made based on questions of facts and law.

Second appeal can be made based questions of law.

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In Divorce by mutual consent, in the Plaint they should mention that there is no connivance
between the Petitioner and Respondent, only then the plaint will be admitted.

In the Family Court, it is the petitioner and respondent.

In Consumer Court, it is the complainant and opposite party

Place of suing

Colaba to Mahim – City Civil Court

Bandra to Dahisar – Dindoshi Court

Claim value upto Rs.1 Crore – City Civil Court

Claim value above Rs. 1 Crore – High Court under its original jurisdiction

Chartered Courts – Bombay, Madras and Calcutta.

MCQ – Supreme Court established on 28th January 1950.

Suits may be divided into 3 classes:

1) Suits for immovable property – section 16 and 17 of CPC
2) Suits for wrong done to the person or to movable property – it is good to ask compensation
for perishable goods under section 19 of CPC.
3) Suits of all other kinds – section 20 of CPC.

Dispute between brother and sister over ancestral property of deceased father situated at
Mumbai and Ahmedabad. - You have to file the suit taking following order of priority:
1) Subject matter
2) Pecuniary jurisdiction
3) Territorial jurisdiction

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In the petition you have to mention that part of the property is beyond the jurisdiction of this
Court and, therefore, pray for grant of leave to file the suit for the property outside the
jurisdiction.

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