| ——— | Code of Civil Procedure, 1908 Introduction Definitions Cause of Action Foreign Judgment Affidavits Restitution & Execution Chapter No. 2 Civil Procedure Code 1. Meaning, Object, Aim & Scope of C.P.C. 2 Features of the Code of Civil Procedure 3. Hierarchy of Civil Courts Chapter No. 3 urisdiction 1. Jurisdiction of Civil Courts 2. Kinds of Jurisdiction Jurisdictional Bars Chapter No. 4 ‘Suit 1. Meaning & Essentials of Suit 2. Different Stages of a Law Suit 3. Parties to Suit 4, Framing of Suit 5. Institution of Suits 6 Bar of Suit 7. Res Sub Judice or Stay of Suit (Sec. 10) 8 Res Judicata (Sec. 11) % Constructive Res Judicata 10. Place of Suing, Representative Suits Page No. Noes 15owe of Live rroceaure, 1908 pees eeeeeeees 12. Transfer of Suits (Power of SC and HC) i 13. Procedure regarding withdrawal of Suit 14. Alternative Disputes Resolution 15. Summons 16. Service of Foreign Summons Chapter No. 5 Pleading 1. Meaning of Pleading 2 Rules Regarding Pleading 3. Plaint 4, Written Statement 4 5. Amendments in Pleadings 6. Set-Off and Counter-Claim 7. Discovery, Inspection & Production of Documents 8 Framing of Issues \ \ Chapter No. 6 Appearance, Examination. and Trial 1. Appearance of Parties & Consequence of Non- ‘Appearance 2 _Ex-parte Decree 3. Examination of Parties by the Court 4, Admission by Parties 5, Production, Impounding and Return of Documents 6. Hearing of the Suit 7. Adjournments 8. ‘Examination of Witnesses 9, Interim Order, Stay Order 10. Commissions 11, Arrest & Attachment before Judgment 12, Temporary Injunctions 13, Receiver 14, Interest and Cost Chapter No. 7 Execution Conceptof Execution tee . General Principles of Execution of Decree Procedure for Execution Stay of Execution Garnishee Order Modes of Executing a Decree Arrest and Detention NeeseneCode of Civil Procedure, 1908 “a AOAARAAPAAABABARRERERERERPRERLRERLNERERE RA. 10. Attachment 99) Procedure for Sale 101 Delivery of Property ' 102 Chapter No. 8 Suits in Particular Cases Suit by or against Government r 104 Suit by Minors or Persons of Unsound Mind 105 Suits by Indigent/Pauper Persons 108 Interpleader Suit am Suits By or Against Firms 112 When Aliens May Sue 14 When Foreign States May Sue ANS Suits Against Foreign Rulers & Ambassadors amare Public Nuisance 7 Suits Relating to Public Charities oe secseed 7 Suits Relating to Mortgage a9 Chapter No. 9 Incidental and Supplemental Proceedings Incidental Proceedings Supplemental Proceedings Chapter No. 10 Appeals, Reference, Review & Revision First Appeals Second Appeals General Principles relating to Appeal Appeals to the Supreme Court Reference Review Revision Chapter No. 11 Miscellaneous Caveat Inherent Power Additional Evidence in Appellate Courtt Lode of Civit Hrocedure, 1908 PAPA ARP AP AP AP AP AFP RE AP AF AP AP IAP AP AG AP AP AP APG AG REAP AERP NES RAREREARAA REAR RPAPALRERPREAS AP SPRE AEN A Chapter No. 12 Nature and Object of Law of Limitations Sufficient Cause Bar of Limitation Period of Limitation General Disability Continuous Running of Time Effect of Death on Accrual of Right to Sue Effect of Fraud or Mistake Acknowledgement Requirements of a Valid Acknowledgement Effect of Substituting Important MCQs of Code of Civil Procedure Latest Question Papers of Nagpur University Latest Question Papers of Amravati University 136 138 Ad AAD 143 145 148 49 150 151 152 154 168 182 +++Best of Luck «**Code of Civil Procedure, 1908 @ 1 Chapter 1 Sec. 2(12) "Mesne profits" (Popularly pronounced as Means Profit) Mesne profits of property means those profits which the person in wrongful possession of such property actually received or might with ordinary diligence have réceived therefrom, together with interest on such profits, but shall not include profits due to improvements made by the person in wrongful possession. Sec. 2/14] Order is a formal expression of any decision of a civil Court, which is not a decree, is an order. Sec, 2 (2) Decree "Decree" means the formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the maters in controversy in the suit and may be either preliminary or final. It shall be deemed to include the rejection of a plaint and the determination of any question within Section 144, but shall not include a) Any adjudication from which an appeal lies as an appeal from an order, or b) Any order of dismissal for default. Essential Elements of a Decree There must be an adjudication 1) Such adjudication must have been given in a suit. 2) It must have determined the rights of the parties with regard to all or any of the matters in controversy in the said suit. 3) Such determination must be a conclusive nature; and 4) There must be formal expression of such adjudication.Kinds Of Decree The Code recognises the following three classes of decrees: 1) Preliminary decree; 2) Final decree; and 3) Partly preliminary and partly final decree. 1) Preliminary decree: - Where an adjudication decides the rights of the parties with regard to all or any of the matters in controversy in the suit, but does not completely dispose of the suit, it is a preliminary decree. A preliminary a decree is only @ stage in working out the rights of the parties, which are to be finally adjudicating by a final decree.” 2) inal Decree: -Final decree is a decree, which completely disposes of the suit and finally settles the entire question in controversy between the parties and nothing remained decided thereafter. Ordinarily there will be only one final decree in suit, under special circumstances however, may requiring passing of more than one final decree in the same suit. 3) relimi nak - In a suit for possession of immovable property with mesne profits, the Court decrees the possession of the property (it is final decree), decree directs an enquiry into the mesne profits is preliminary decree. Di tween ind Order No. Decree See.2 (2) Order Sec.2 (14) 1 |Aderee only be passedina | An order may be originate suit. , from presentation of plaint, from a suit or may be from a proceeding commenced by a petition or application. 2, | Decree conclusively] May or may not finally determines the rights of| determine such rights. parties with regard to all are any of the matters in controversy 3. |A decree can be preliminary | There cannot be preliminary or final or partly preliminary | order. or partly final. 4, |Generally there can be only| Number of orders may be one decree. passed 5, |Bvery decree is appealable, | Every order is not appealable.Some Common Features of Decree and Order: 1) Both relates to matters in controversy. 2) Both the decisions are given by a Court. 3) Both are adjudication of Court of law. 4) Both are formal expressions. “Decree-ho! It means any person in whose favour a decree has been passed or an order capable of execution has been made. Sec. 2/10) "Judgment-debtor" It means any person against whom a decree has been passed or an order capable of execution has been made. Sec. 2(9) Judament Judgment means a statement given by the judge of the grounds of decree or order. Judgment shall coritain the reasons for the conclusion. Adjudication, in a suit, determination of rights of the parties with regard to all or any of the matters in controversy, conclusive in nature and in a formal expression are the essential of the decree Essential Elements of judgment are as follows: 1) There must be concise statement of the case. 2) It must contain the points for determination 3) Decision thereon and reasons for such decisions. ims A t ‘The object of a judgment is to support by the most cogent reason that suggest themselves final conclusion at which the judge has conscientiously arrived. The object is defeated by the judge elaborately recording the fluctuations of his mind from day to day in reference to the witnesses, the evidence and the arguments. It is a substantial objection to a judgment that it does not dispose of the question as it was presented by the parties [Raghunadha v. Shri Brij Kishore]. If a judgment is unintelligible, the appellate court may setit aside and remand the case to the lower court for the recording of judgment according to law after hearing afresh the agruments of the pleaders. Difference between Decree and Judgment Judgment means the statement given by the judge of the grounds of a decree or order thus," a judgment contemplates a stage prior to passing of a decree or an order, and after pronouncement of the judgment a decree shall follow while the decree is conclusive portion of the Judgment in a formal expression Judgment has to be intimated to the parties and to the world at Jarge by formal pronouncement or delivery in open Court. Decree shall be drawn within 15 days of the judgment. Pronouncement of Judgment is a judicial act, whereas drawing up of decree is basically a magisterial activity. Cause of action means every fact which it would be necessary for the plaintiff to prove in order to support his right to the judgement of the Court. It does not comprise every piece of evidence which is necessary to prove each fact, but every fact which is necessary to be proved to entitle the plaintiff to a decree. It is, in other words, a bundle of essential facts which it is necessary for the plaintiff to prove before he can succeed in the suit. Cause of action has never been defined in the CPC or in any ‘Act, The expression ‘Cause of action’ means a sum total of rights upon which the relief is claimed. A plaintiff's cause of action is not only the right which he asserts but the infringement of that right by the defendant. ‘The ‘cause of action’ has been summarised in Mohammed v. Mahabub Ali Milan: (1) Where the claim in the new suit is in fact founded upon a cause of action distinct and separate from that which was the foundation of the former suit. (2) The cause of action means every fact which will be necessary for the plaintiff to prove that it traverses in order to support his right to the judgment(3) If the evidence to support the two claims is different, then the causes of action are also different. (4) The causes of action in the two suits may be the same if in substance they are identical. (5) The cause of action has no relation whatever to the defence they may be set up by the defendant nor does it depend upon the character of the relief prayed for by the plaintiff. It refers to the media upon which the plaintiff asks the Court to arrive at a conclusion in his favour. lection Code of Civil Pro 1908 Foreign judgement means the judgement of a foreign Court, and ‘Foreign Court’ means.a Court situate outside India and not- established or continued by the authority of the Central Government. A foreign judgement cannot be executed in India, except in the cases mentioned in Section 44-A (Execution of decrees of Courts in the United Kingdom and other ‘reciprocating territory"). Nor can a foreign judgement be transferred for execution in India. The only manner in which a foreign judgement, other than those mentioned in Section 44-A of the Code of Civil Procedure, may be enforced in India, is to bring an independent suit in India, upon that foreign judgement, within 6 years from the date of the judgement (Article 117, Indian Limitation Act, 1908) In such suit, the defendant may raise any of the pleas mentioned in Section 13 of the Code, which runs as follows : A foreign judgement shall be conclusive as to any matter thereby directly adjudicated upon between the same parties or bet- ween parties under whom they or any of them claim litigating under the same title except: (a) where it has not been pronounced by a Court of competent jurisdiction. (b) where it has not been given on the merits of the case. (c) where it appears on the face of the proceedings to be founded on an incorrect view of international law or a refusal to recognise the law of India in cases in which such law is applicableCode of Civit Procedure, 1908 @ . (@) where the proceedings in which the judgement was obtained are opposed to natural justice. (ce) where it has been obtained by fraud. () where it sustains a claim founded on a breach of any law in force in India." Section 14, again, provides “The Court shall-presume, upon the production of any docu- ment purporting to be a certified copy of a foreign judgement, that such judgement was pronounced by a Court of competent jurisdiction, unless the contrary appears on the record; but such presumption may , be displaced by proving want of jurisdiction. Order 19- Affidavits An Affidavit is a declaration as to facts, made in writing sworn before a person having authority to administer an oath. An affidavit is a written statement of the deponent on oath duly affirmed before any court or magistrate or any oath commissioner appointed by the court. Affidavit can be used in the following cases : (1) The Court may at any time either of its own motion or on the application of any party order that any fact may be proved by affidavits. (Sec. 30) (2) The affidavit of any witness may be read at the hearing unless either party bona fide desires to cros's-examine him and he can be produced, (0. XIX, R. 1). (3) Upon application by a party evidence of a witness may be given on affidavit, but the court may at the instance of either party order the deponent to attend the court for cross-examination, unless he is exempted from personal appearance. Affidavits are confined to such facts as the deponent is able of his own knowledge to prove except on interlocutory applications on which statements ‘of his belief may be admitted provided that the grounds thereof are stated, Affidavits should also clearly express, how much is a statement of the deponent's knowledge and how much is a statement on his information and belief and must also state the source and the grounds of information or belief with sufficient particulars without which an affidavit would be no affidavit at all.Code of Civil Procedure, 1908 Restoring to a party the benefit which the other party has received under Decree subsequently held to be wrong. The doctrine of restitution is that on the reversal of a decree, the law imposes an obligation on the party to the suit who received unjust benefit of the erroneous decree to make restitution to the other party for what he has lost. Conditions 1). There must be an erroneous Judgment. 2) Benefit of the judgment received by one party. 3) Erroneous Judgment has been Reversed 4) If these conditions satisfied Court must "grant restitution" Illustration A obtains a decree against B for possession of immoveable property or a decree for the recovery of moveable property, say timber, or a decree for a sum of money, and in execution of the decree, obtains possession of the property or obtains the timber or recovers the money, The decree is subsequently reversed in appeal. B is entitled, on an application under this section to restitution of the property or of the timber or of the money though there may be no direction for restitution in the decree of the Appellate court. Execution Execution means enforcement or giving effect to the judgment or order of Court. It enables the decree holder to realise the fruits of the decree. Execution is the enforcement of Decrees and orders by of Court 8s, 36 to 74 and Order 21 of the code deals with execution. Courts by which decrees may be executed Decrees may be proce} executed either by 1) ‘The Court which passed it or 2) By the Court to which it is sent for execution.8 Code of Civil Procedure, 1908 ® Transfer of decree for execution The General rule is that the Court which passed the decree must execute it. But it may send to another Court on its own motion or upon application of decree holder if any of the following grounds exists: 4) 2) 3) 4) y) 2) 3) ‘The judgment debtor actually resides or carries on business or works for gain, within the local limits of such Court or The Judgment debtor does not have sufficient property to satisfy decree but he has sufficient property at such Court limits. When decree directs for sale of Immovable property situated outside its jurisdiction. When Court feels necessary on any reason by recording transfer the execution. Other conditions are that Transferee Court must have pecuniary jurisdiction to deal with suit. ‘The Court sending decree shall send (i) Copy of Decree (ii) Certification of Non-satisfaction or part satisfaction of decree and (iii) Copy of an order for execution of the decr The transferee Court has same powers as if the decree passed by it. RREKEKKCode of Civil Procedure, 1908 ®@ Meaning And Object The Law relating to the practices and procedure to be followed in the Civil Courts is regulated by the Code of Civil Procedure, 1908. The word CODE means ‘a systematic collection _of statutes, body of laws so arranged as to avoid inconsistency and overlapping’. The main object of Civil Procedure code is to consolidate and amend the laws relating to the procedure and practices followed in the Civil Courts in India. It is concerned with the enforcement of private rights and hence it is the law of the civil courts in which an individual enforces his private rights and obtains compensation for private wrongs. As such, it was enshrined in the preamble of the code that it was enacted to consolidate and amend the laws relating to the procedure to be followed in the civil courts having civil jurisdiction in India. The Civil Procedure Code regulates every action in civil courts and the parties before it till the execution of the degree and order. Aim Of The Civil Procedure Code The aim of the procedural law is to implement the substantive laws i.e, the rights and liabilities of citizens effectively to provide fair justice without any delay. The ultimate aim of the Code is to provide simple and expeditious procedure for doing justice between the parties. It has been aimed to provide uniform procedure so as to avoid diversity in the manner of dealing with cases before the Courts. [ts aim is to remove the hardships created in the dispensation of justice and to maintain the free and uninterrupted flow of fountain of justice. Scope Of The Civil Procedure Code ‘The Code of Civil Procedure applies to proceedings of all the Civil Courts, The Code is the general law. The Code does not limit or otherwise affect the special or local law or any special form of Procedure prescribed by or under any other law. If there arises anyamen iret conflict between the Code of Civil Procedure and the special law, the special law would prevail over the provisions of the Code. However, the Code will apply where the special or local law is silent. In the absence of anything contrary in the special law or the local law, the provisions of the Code will apply. ‘The provisions of the Code are not exhaustive, as the Legislature is incapable of contemplating all the possible circumstances which may arise in future litigation and, therefore, where a particular point has not been specifically default with by the Code of Civil Procedure, the question must be determined by general principles. ‘The Code of Civil Procedure is divided into two parts :- 1. ‘The Body of the Code 2 The Schedule The Body of the Code has 12 parts containing 158 sections. ‘The Schedule is the second part contain 51 Orders and Rules. ‘The Body of the Code creates jurisdiction and lays down general principles relating to Power of the court. The second part, that is, the Schedule provides for the procedures, methods, manners and mode in which the jurisdiction of the court may be exercised. In fact, there were five schedules when this code w: as enacted. Later the Schedules II, III, IV and V were repealed by the subse aa amendments of the code. sen The first schedule which is the only schedule to the has 51 orders. Each order contains rules that vary in cinta ee order to order. There are eight appendices giving m: in, ae egal giving model formats 1, Pleadings (Plaint and Written Statement formats) Process formats Discovery, Inspection and Admission Decrees Execution Supplemental Proceedings Appeal, Reference and Reviews Miscellaneous exrnaunson aE ea anrT The present Code of Civil Procedure, though enacted in 1908 in British India, has stood the test of time with amendments from time to time. The Code contains the following salient features: (1) The Code of Civil Procedure contains sections from 1 to 158 with inclusions and repeals of some sections. (2) The Code of Civil Procedure contains Orders consisting of Rules numbering 51 in First Schedule. (3) Appendix A contains model pleadings relating title of suits and general defences. (4) Appendix B contains forms of process. (5) Appendix C contains the forms relating to discovery, inspection and admission. : (6) Appendix D contains the forms relating to decrees. (7) Appendix E.contains the forms relating to execution. (8) Appendix F contains supplementary proceedings (9) Appendix G contains forms relating to appeal, reference and review. (10) Appendix H contains miscellaneous forms. (11) Code of Civil Procedure, 1908 is a procedural law and an adjective law. It prescribes the procedure for the enforcement of rights, liabilities, and obligations of citizens and makes the procedure simple, expeditious and inexpensive. It simply regulates the procedure of Civil Courts, it regulates the actions of the Court and the parties before it from the day an action is brought before it to the day of the realisations of its fruits ive., the execution of the decree and orders. The Code of Civil Procedure thus, deals with procedural matters i.e. with matters relating to the machinery for the enforcement of substantive rights. (12) The Code of Civil Procedure, 1908 applies to proceedings of all the Civil Courts, but it does not limit or otherwise affect any special or local law or any special form of procedure prescribed by or under any other law for the time being in force, as laid down in Section 4 of the Code of Civil Procedure.(13) The Code of Civil Procedure is divided into two parts: (i) the body of the Code containing 158 sections; and (ii) the rules laid down in 51 Orders in Schedule I. The body. of the Code deals with the principles of jurisdiction. The Rules contain provisions which indicate the mode in which jurisdiction created by the body of the Code is to be exercised. The sections lay down the principles while the Rules provide the means by which they are to be applied. (14) The body of the Code is fundamental. It cannot be altered except by Parliament. The Parliament enacted the State amendments under different sections. The various High Courts are empowered to annul, alter, or add to, all or any of the said rules, embodied ‘in the Schedule I, provided that such annulments, alterations and additions are not inconsistent with the provisions of the first part the Code contained in the sections. (15) The essence of the Code of Civil Procedure is considered to be exhaustive on the matters in respect of which it declares the law. But, however exhaustive it might be, it cannot provide for all matters and all circumstances that may come up before a Court of law in a fast-changing society and in those respects of the Court it is left free to act according to equity, justice and good conscience which principles are prescribed under Section 151, The Code is therefore, not exhaustive and @ particular point not specifically provided in it must be governed by the general principles of law. Hierarchy Constitution of Civil Courts and their functions, classification. Object ‘The civil administration of justice is administered according to the provisions of the Civil Procedure Code, 1908 The object of the Code is to sce that the disputes between the citizens, or between the and the State shall be resolved judicially, so that peace country. The Code lays down the procedure for the g of this function. The Code is a procedural law. It d duties of the parties in the suit. citizens prevails in the smooth runnin; decides the rights an‘For smooth running of this function, entire country is divided into several territorial units. Each of such unit is functioned by the officer/judge appointed by the Government for the purpose of administration of justice. Its objects are convenience, minimise the expenses to the parties, witnesses and the Courts. Classification of Civil Courts The Supreme Court is the Apex Court in the country. Each State shall have one High Court. Two or more smaller States shall have one High Court. For example, one High Court functions for both the Punjab and Haryana States. Besides the Supreme Court and High Courts, the following class of civil courts are constituted: 1) _ District Judge's Courts; 2) Subordinate Courts; 3) District Munsifs Courts; 4) Executive Magistrates. Hierarchy of Civil Courts SUPREME COURT | (Apex Court of India - Any decision /judgment authorised by law) I HIGH COURT (Any judgment/decision authorised by law) | DISTRICT COURT | SUBORDINATE JUDGE | DISTRICT MUNSIF MAGISTRATE District Courts: Section 3 It says that for the purpose of this Code, the District Court is subordinate to the High Court, and every Civil Court of a grade inferior to that of a District and every Court of Small Causes is subordinate to the High Court and District Court.i Revenue Courts: Section 5 It says that where any Revenue Courts are governed by the provisions of this Code in those matters of procedure upon which any special enactment applicable to them is silent, the State Government may, by notification in the Official Gazette, declare that any portions of those provisions which are not expressly made applicable by this Code shall not apply to those Courts, or shall only apply to them with such modifications as the State Government may prescribe "Revenue Court" means a Court having jurisdiction under any local law to éntertain suits or other proceedings relating to the rent, revenue, or profits of land used for agricultural purposes, but does not include a Civil Court having original jurisdiction under this Code to try such suits or proceedings as being suits or proceedings of a civil nature Pecunia ior It lays down that save in so far as is otherwise expressly provided, nothing herein contained shall operate to give any Court jurisdiction over suits the amount or value of the subject-matter of which exceeds the pecuniary limits (if any) of its ordinary jurisdiction. wR KKKCode of Civil Procedure, 1908 15 | Jurisdiction\of Civill Courts A litigant having a grievance of a civil nature has a right to institute a civil suit in a competent civil Court unless its cognizance is either expressly or impliedly barred by any statute. Jurisdiction means the authority, which a Court has, to decide matters that are litigated before it or to take cognizance of matters presented in a formal way for its decision. It is well settled that consent cannot confer nor take away jurisdiction of a Court. If there is inherent lack of jurisdiction the decree passed by a civil Court is’ a nullity. Whether a Court has jurisdiction or not has to be decided with reference to the initial assumption of jurisdiction by the Court. Whenever the jurisdiction of Court is challenged, the Court has inherent jurisdiction to decide the said question. jurisdiction 1) Territorial or local jurisdiction: - Every Court has its own or territorial limits beyond which it cannot exercise its jurisdictions. A Court has no jurisdiction to try a suit for immovable property situated beyond its local limits. Territory of a court is decided after taking into account several factors they are - a) If the suit is with regard to recovery, rent, partition, sale, redemption, determination of right of immovable property it shall be instituted in the court with in the local limits of whose jurisdiction the property is situated. b) Immovable property situated with in the jurisdiction of different courts. In such case the suit may be instituted in any court with in the local limits of whose jurisdiction any portion of the property is situated. _ cee a A I16 Code of Civil Procedure, 1908 2) 3) 4) c) In case of dispute between two or more persons with respect to movable property, business or any other wrong done - In the place where wrong or damage has been caused to a person are any damaged has been caused to movable property then the suit may be instituted either in the place where wrong are damaged caused or in the place where’ defendant (The person who caused the loss) resides. d) where there is a dispute in business, agreement or any kind of civil disputes except matrimonial matter than the suit may be instituted either in a place where the defendant resides or carries on business or in a place where the cause of action has arisen, ie where the dispute or wrong took place. ) In case of matrimonial dispute where a dispute arised between husband and wife with regard to their matrimonial life than the case may be filed in the place where marriage was solemnized, or in the place where opposite party is residing or in the place where husband and wife last resided together or in the place where persons filing the case is residing. Pecuniary jurisdiction: - The code provides that a Court will have jurisdiction only over those suits, the amount or value of the subject matter of which does not exceed the pecuniary Imits of its jurisdiction. wurisdiction as to Subject Matter: -Different courts have been empowered to decide different types of suits. Certain courts are precluded from entertaining certain suits. Thus, the Presidency Small Causes Court has no jurisdiction to try auits for specific performance of a contract, partition of immov: property, foreclosure or redemption of a mortgage, ete, Original and Appellate Jurisdiction: - The jurisdiction of a Court may be classified as original or appellate. In the exercise of original jurindiction, a Court entertains and decides suits and in its appellate jurisdiction it entertains and decides appeals. Junior Civil Judge's Court, Court of Seni and judges of the Small Causes Court are Jurisdiction only while the Courts of District J able ior Civil Judge having original ludges and Highcote ofcivt recta 1308 @ 2 Courts are having original as well as appellate jurisdiction. Under the Code of Civil Procedure, a civil Court has jurisdiction to try all suits of a civil nature unless they are barred. Sec. 9 of the Code provides as under: The Court shall (subject to the:provisions herein contained) have jurisdiction to try all suits of a civil nature excepting suits of which their cognizance is either expressly or impliedly barred. Conditions A civil Court has jurisdiction to try a suit if two conditions are fulfilled: 1) the suit must be of a civil nature; and 2) the cognizance of such a suit should not have been expressly or impliedly barred. The following are some examples of suits of a civil nature: 1) _ suits relating to right to property 2) suits relating to right of worship 3) suits for rent. Suits Expressly Barred : ‘A suit is said to be expressly barred when it is barred by any enactment for the time being in force. In this case the relevant enactment on the Act itself and the rules made there under clearly bar he civil court from entertaining a suit. If there is any doubt about the ousting of jurisdiction of a civil court the court will lean to an interpretation which would maintain the jurisdiction every presumption should be made in favour of the jurisdiction of the civil court and the provisions of exclusions of jurisdiction of a court must be strictly construed. If the remedy provided by the statute is not adequate and all questions can not be decided by a special tribunal the jurisdiction of a civil court is not barred. Suits Impliedly Barred: A suit is. said to be impliedly barred when it is barred by general principals of law and equity or on ground of public policy Where a specific remedy given by a statue, it there by deprive the18 Code of Civil Procedure, 1908 @ person who depend upon a remedy of any other form than that by the statue. Where an act creats an obligation and enforces its performance in a specified manner that performance can not be enforced in any other manner. Similarly certain suits though of a civil nature, are barred from the congnigénce of a civil court on the ground of public policy. Thus no suit shall lie for recovery of cost incurred in criminal prosecution or agairist any judge for acts done in the course of his duties. Like wise a civil court has no jurisdiction to adjudicate upon despite of political nature. KKK KKcote ofcot Proctor, 008 . Chapter 4 Meaning Of Suit A''suit' or a ‘Law suit’ is any proceeding in a Court of Justice on which a plaintiff pursues his remedy to recover a right or claim. A Suit is a process instituted, in a Court of Justice for recovery or Protection of a right, the enforcement of a claim, or the redress of wrong [Sec. 185, C.P.C.]. The word ‘suit’ ought to be confined to such proceedings as, are directly dealt with in the Code of Civil Procedure, or such as by the operation of the particular Act which regulates them are treated as suits. Civil Suit A suit of civil nature is a suit to enforce legal rights, a suit in which any valuable right is sought to be enforced. The right may be against another citizen or the State, Therefore, a suit of a civil nature is a suit for the enforcement of rights or obligations of a citizen. Suits of civil nature are a suit to recover damages against wrongful dismissal from service, a suit for reinstatement, a suit for right to worship, a suit for declaration of right to take out procession, a suit for dissolution of marriage, a suit for recovery of arrears of salary, a suit for office, a suit for damages for defamation ete entia’ ‘The essentials of a law suit are: (i) The opposing parties: (ii) The cause of action; (iii) The subject-matter: and (iv) The relief claimed. (i) The Opposing Parties “In every suit there must be at least one plaintiff and one defendant. There may be more than one plaintiff and more than one defendant. Where an act or transaction proceeds from two or more persons or it affects two or more persons, but in the absence of cither plaintiff or defendant the suit cannot be instituted| 20 Code of Civil Procedure, 1908 7) (ii) (iii) (iv) Q) (2) The Cause Of Action Every suit must have the cause of action. The cause of action means every fact which would be necessary for the plaintiff to prove in order to support his right to the judgment of the Court. It consists of essential facts which have robe proved by the plaintiff to entitle him to a decree of the Court. Thus the cause of action refers to the cause or the set of circumstances which leads upto a suit. The Sub; latter The subject matter of a suit is the right or property claimed by the plaintiff in the suit. The Court adjudicates upon the right of the parties with regard to the subject-matter in dispute. The Relief Claimed Every suit must contain the relief claimed by the plaintiff. The relief claimed should be stated specifically in the plaint.” The relief claimed by the plaintiff must be one which the Court can grant. The plaintiff may sue for one or more of the reliefs available to him and can reserve his right, with the permission of the Court, to sue for the remaining reliefs. nt Of A Law Sui: Various stages of a law suit are as follows; Institution Of A Suit Every plaintiff should institute a law suit by presenting a plaint to the competent Court or officer as it appoints in that behalf. When the plaint has been presented to a proper court mentioning the cause of action, the relief claimed and it is Properly valued and sufficiently stamped and is not barred by time, oF any other law, the Court admits the plaint and it is numbered and registered as a suit. Service Of Summons After the registration of the suit, the Court should serve summons on the defendant(s) who appears and answers the claims of the plaintiff. The plaintiff has to take necessary steps for the service of summons. The summons has to be served in the Prescribed manner with all requirements(3) Written Statement After receiving the summons from the Court, the defendant may, at or before the first hearing or within such time as the Court permit as per the statute, to present a written statement of his defence dealing with each allegation made in the plaint and clearly stating that which of the allegations are admitted or denied. (4) Discovery Every party to a suit is entitled to know the nature of opponent's case, so that he may know before hand what can he has to meet. The discovery is to be generally made by way of interrogatories served on the opponent or by requiring him to disclose the document by affidavit. (8) Hirst Hearing And Striking Of Issues On the day fixed in the summons for the defendant to appear and answer, the suit is heard if both the parties are present, unless the Court adjourns it to a later date, and after perusing the pleading of the parties, answers to the interrogatories, if any, the Court frames issues which have to be determined for deciding the case. If neither party appears when the suit is called on for hearing, the Court may dismiss the suit and if the plaintiff appears and the defendant does not appear, the Court may proceed exparte on the plaintiff's proving his case if the defendant is served summons. When the defendant appears and the plaintiff does not appear, the Court may dismiss the suit, unless the defendant admits the claim. At the first hearing of the case when both the parties are present the Court goes through the plaint, the written statement and answers to interrogatories, if any, and then | examines the parties and records, their admissions and denials. On ascertainment the Court strikes issues which have to be determined to dispose of case. If it is found that the parties are not at issue on any question of law or fact, the court delivers the judgment at this stage itself, (6) Production Of Evidence And Argument After framing of the issues, as is generally the case, a date is fixed for the final hearing when the party having the right to begin, states his case and produces his evidence in support of et RA asuaapeane ‘ 2 e issue and, the rT, is case, iat other party states his 7 the i , thereafter, the Pi produces his evidence and addresses the Court 0 vee After the evidence of both the parties is over, the arguments advanced on their behalf are to be heard by the Court. (7) Judgment After the case has been heard the Court may pronounce judgment at once or it may reserve its judgment and deliver the same on any future date; due notice whereupon shall be given to the parties or their pleaders. (8) Decree ‘After the judgment is pronounced, a decree shall follow ie. a dectee’be prepared in accordance with the judgment containing that date of the judgment. (9) Execution Execution is the final stage of a suit. The execution is the means by which a decree or order of a Court is implemented. The successful party can make an application in writing to the Executing Court specifying the mode of execution legally available to him and thereafter the execution proceedings are commenced for the fulfilment of the decree. Meaning Of Party! The term ‘party’ has not been defined in the Civil Procedure Code. The expression ‘parties to the suit' means the persons whose names appear on the record as parties. Parties To Suit (Order I) One of the essentials of suit is parties and every suit must have two parties: plaintiff and the defendant. Order 1 Rule 1: Who may be joined as Plaintiff Plaintiff is the person who brings an action at law by fil complaint under Code procedure. According to Rule 1 of oa tel the Code of Civil Procedure, all persons may be joined in on suite plaintiffs where— © suit ascoleoscinitrectun,ss08 — @) 2 (a) any right to relief of, or arising out of, the same act or transaction or series of acts or transactions is alleged to exist in such persons, whether jointly, severally or in the alternative; and (b) if such persons brought separate suits, any common question of law or fact would arise Order 1 2 ined All persons may be joined in one suit as defendants where— (2) any right to relief in respect of, or arising out of, the same act or transaction or series of acts or transactions is alleged to exist against such persons, whether jointly, severally or in the alternative; and (b] if separate suits were brought against such persons, any common question of law or fact would arise. Order 1 Rule 9: Mis-joinder and non-joinder No suit shall be defeated by reason of the mis-joinder or non- joinder of parties, and the court may in every suit deal with the matter in controversy so far as regards the rights and interests of the parties actually before it: Provided that nothing in this rule shall apply to non-joinder of a necessary party. fisjoinde bs ler The joinder of any person as a party to a suit, contrary to the provisions of the Code, is called misjoinder. Misjoinder may be of three kinds : (a) mis- joinder of plaintiff (b) misjoinder of defendants (c) midjoinder of causes of action. Non-joinder of parties Where a person who is a proper party to a suit is not Joined as party to the suit, the case is one of non-joinder. A suit should not be dismissed on the ground of non-joinder. The objection for non- joinder should be taken before the first hearing and the plaint may be amended by adding the omitted party either as plaintiff or as defendant, bearing in mind that no person can be added as a plaintiff without his consent though he may be added as a defendant, without such consent.Code of Civil Procedure, 1908 @ Order 1 Rule 13: Objections as to non-Joinder or misjoinder All objections on the ground of non-joinder or mis-joinder of parties shall be taken at the earliest possible opportunity and, i all cases where issues are settled, at or before such settlement, unless the ground of objection has subsequently arisen, and any such objection not so taken shall be deemed to have been waived. As per Rule 1 of Order II of the Code of Civil Procedure, every suit shall as far as practicable be framed so as to afford ground for final decision upon the subjects in dispute and to prevent further litigation concerning them. ‘The following are the intentions of the rule: (1) As far as practicable, all matters in dispute between the parties relating to the same transaction should be framed in the same suit. (2) The suit has to be so framed as to afford ground for final decision upon the subject-and disputes. (3) Subject in the dispute should prevent further litigation concerning them. (4) The term ‘shall’ and not 'may' in the rule indicates that the plaintiffs are duty-bound to claim the entire relief. (5) The subject matters between the parties are mandatory in nature. Rule 2(1) of Order Il of the Code provides that every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action, but a plaintiff may relinquish any portion of his claim in order to bring the suit within the jurisdiction of any Court. Rule 2(2) of Order II of the Code provides that where a plaintiff ect of, or intentionally relinquishes, any portion omits to sue in resp of his claim, he shall not afterwards sue in respect of the portion so omitted or relinquished