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Code of Civil Procedure, 1908
Code of Civil Procedure, 1908
Procedure,
1908
History of the Code
First code in India by Warren Hastings, on
November 3, 1780
Efforts by Sir Charles Wood, President of the Board
for affairs of India to make uniform procedure
1859 – combination of four codes (Madras,
Bombay, North-Western Provinces, Lower
provinces of Bengal)
1859 Act revised by Dr. Whitley Stokes, Secretary
Govt. of India and Lord Arthur Hobhouse and new
Act of 1877 was passed
1877 Act was amended in 1879 and later it was
replaced by Act of 1882
New Draft prepared by Select Committee was
referred to Special Committee headed by Sir Earle
Richards. The committee included Dr. Rashbehary
Ghose resulting in the enactment of Act of 1908
Scheme of the Code
Body of the Code
158 sections
First Schedule
51 Orders
Harmonious construction between two
parts
Reasons for unique scheme of the
Code
Multiplicity of Procedures
Flexibility vis-à-vis Rigidity
Part X, section 122 & 125
Scope, Object and Interpretation
Procedural/Adjective Law
Objective is to Consolidate the procedure
Interpretation – as a handmaid to the
administration of justice – too technical
construction to be avoided
Mahadev Govind Gharge & others v. Special Land
Acquisition Officer, Karnataka, AIR 2011 SC 2439
Discretion of the
court
Counter Claim r. 6A-6G
Introduced in 1976
Laxmidas v. Nanabhai, AIR 1964 SC 11
Cross action by the defendant
Like plaint in cross suit
Cause of action may arise after the presentation of the plaint but before
written statement
Shall not exceed pecuniary jurisdiction of the court
May be for ascertained sum of money
Generally Courter claim is more than the original claim
Bollepanda P. Poonacha & Anr v. K.M. Madapa, AIR 2008 SC 2003 ; A right
to file counter claim is an additional right. It may be filed in respect of any
right or claim, the cause of action therefore, however, must accrue either
before or after the filing of the suit but before the defendant has raised his
defence. A belated counter claim must be discouraged.
Set off : Counter Claim
Defence Ground of attack
Money Suit Any suit
Ascertained sum of May be
money unascertained sum
Must be of money
Recoverable on the Must be
date of the suit recoverable on the
Amount is equal to date of w/s
or less than the Amount is
original claim generally greater
than the original
Appearance of Parties and consequences
of Non appearance (Order IX)
To appear in person, if the summons contain
such a direction
Otherwise to appear in person or through
pleader
If plaintiff has not deposited the court fee,
postal charges etc., copies of plaint not filed,
and summons could not be served – suit may be
dismissed
Two options –
to make an application to set aside such order and
restoration of suit to file
to file fresh suit
Consequences of non appearance
If no party appears – may dismiss the suit
Two options
to make an application to set aside such order and restoration of
suit to file
to file fresh suit
If plaintiff appears and defendant does not appear
If summons duly served in time – court ‘may’ make an order
that suit be heard ex-parte
If defendant appears before the next date and shows
reasonable cause, suit to be restored to file
If summons duly served but not in time
Adjournment of hearing to a future date
Notice to be given to the defendant
If summons not duly served
Second summons to be issued
Duty of plaintiff to apply for fresh summons
within seven days (r. 5)
If application not made within 7 days, suit to be
dismissed qua such defendants unless the court is
satisfied
Plaintiff made best efforts to locate the defendant
Defendant is avoiding the service
Sufficient cause for extending time
If only defendant appears (r. 8,9)
Suit to be dismissed
No fresh suit can be filed (r. 9 read with
section 12)
An application for restoration of suit to file
– if sufficient cause is shown
Notice of such application to defendant
Setting aside Ex parte decrees (r. 13)
When ex parte decree passed, various options
To make an application for setting aside u/r 13 within 30 days
To file an appeal against the decree
To file review
Application u/r 13 and appeal can be taken up simultaneously????
Application on the following grounds:
Summons not duly served
Sufficient cause shown
Notice to other party
The court on payment of cost or such terms
Set aside the ex parte decree and fix day for proceeding with suit in
usual manner
No decree to be set aside on mere irregularity in service of
summons – if defendant had notice of the proceedings and had
sufficient time
Examination of the parties by the
Court O. X
At the first hearing
With a view to find out the matters in
controversy
With a view to frame issues
Oral examination of the party or any person who
accompanied the pleader and who is aquainted
with the facts of the case.
If pleader/that person refuses to answer, the
court will direct the party to appear within seven
days
If does not appear within 7 days, court may
pronounce judgment against him
O. 10 r. 1A
Inserted in 2002
With the object of reducing the burden on
the courts
Court shall direct the parties to opt for one
of the modes of ADRS detailed in s. 89
Arbitration, Conciliation, Mediation and
Judicial Settlement through Lok Adalats
Discovery and Inspection O. XI
Interrogatories
Set of questions to be put by one party to
another to clarify factual position
Purpose – to know the case of the opponent;
to obtain admissions etc.
No interrogatory to know what evidence the
other party has got
Usually after filing of written statement
One set of interrogatories usually
Application to be made to the court for leave to
serve interrogatories
Application to contain the particulars of
interrogatories
Which interrogatory to answered by whom
Interrogatories in Appendix C
If opposite party is minor/unsound mind-
interrogatories to be served upon the guardian/next
friend
Answer to Interrogatories
By way of an affidavit within 10 days or such extended time
Answer in Form No. 3, Appendix C
Party replying may take objections in their affidavit viz., scandalous,
unreasonable, unwarranted at the present stage etc.
If answer inadequate or insufficient, an application may be made to
the court and court can ask for further answer.
Application may be made within seven days for setting aside of
interrogatories
If answer not filed/refusal – if plaintiff suit be dismissed and if
defendant – defence be struck out
No fresh suit can be filed (O. XI(21)(2) read with section 12
Discovery of Documents
Documents annexed with the pleadings – notice, at or before the
settlement of issues, to produce such documents and to take
extracts therefrom. Within 10 days of notice, the reply to be given,
three days to inspect
Other documents
Application u/r 12 to know what documents are in possession/power
of the opponent
If court orders, the other party to file affidavit
Production of documents
Inspection of documents
Premature discovery
Failure to produce – if plaintiff- dismissal, if defendant – defence to
be struck out. No fresh suit
Admissions Order XII
Notice to other party to admit a document within
seven days from date of service
Notice in Form 9, Appendix C
If not denied – deemed to be admitted
Notice to admit facts – not later than 9 days
before the date of hearing
To be answered within 6 days after service of
notice
Court may pronounce judgment on the basis of
admissions
Framing of Issues, O. XIV
Backbone of a suit (State of Gujarat v. Jaspal Singh
(1994) 35 (1) Gujarat Law Reporter, p. 258)
Issues – meaning
Issues of law, fact or mixed issues
Materials from which issues to be framed
Plaint, Written Statement, Answers to interrogatories,
Replication, Examination under order X, documents produced by
the parties
Court may examine witnesses
First Hearing – Sangram Singh v. Election Tribunal AIR
1955 SC 425
Court to frame the issues, parties and
counsels to assist the court in framing of
issues
To pronounce judgment on all issues –
generally (r. 2)
Power to amend, frame additional issues
and strike out issues at any stage of the
suit
Agreement between the parties
Disposal of Suits at the first hearing
(Order XV)
Parties are not at issue
When the evidence required to adjudicate on the
issues is sufficient or can be immediately
produced by the parties
If the summons are for settlement of issues only
– then with the consent of the parties
If the summons for final disposal and for
producing evidence – party fails without
sufficient cause
Summoning and Attendance of
Witnesses (O. XVI)
No person can be summoned as witness unless:
He resides within the jurisdiction of the court
He resides beyond such jurisdiction but within 100
KMs
He resides beyond 100 but upto 500 KMs where 5/6th
of the distance is covered by established public
conveyance system
Where the air transport is available and air fare is
paid
List of Witnesses
List of witnesses to be furnished within 15 days of
settlement of issues
If a witness’s name not in list, he can not be called as
witness. The court may permit on sufficient cause
after recording reasons.
The party to obtain summons within five days of
presenting the list of witnesses
Expenses fixed by the court to be paid into the court
before issue of summons within seven days of
application for obtaining summons
Party may summon the witnesses without the
intervention of the court whose name is in the list of
witnesses – expenses to be paid
If amount paid is insufficient
Further sum to be paid
If default – attachment and sale of
movable property or discharge the witness
or both
If witness to be detained for more than
one day – further sum to be paid – on
default – may discharge the witness or
attach and sell movable property or both.
Summoning of Witness
Service of summons in the same manner
as is under Order V
Summons should disclose the particulars
Summons may be given to the party for
service on witness (r. 7A)
If summons could not be served by party
or refused, to be served by court in the
ordinary manner.
If witness does not comply with
summons
If summons duly served - examination of serving officer
Court is of the opinion that witness is material
Witness is intentionally avoiding service or not complying with without
reasonable cause
Proclamation to be issued
The court may attach property or issue warrant for arrest
If witness appears and shows sufficient cause, attachment to be withdrawn
If he does not appear, the court can proceed u/s 32 i.e. attachment and
sale of property, warrant of arrest, impose fine upto 5000?? Or order him to
furnish security
No witness to leave unless all the witnesses examined or without the
permission of the court
If leaves, the court can proceed as if he has not appeared
Court can summons witnesses on its own motion
Witnesses lodged in Jail
(Order XVIA)
If witness is material and jail is within 25 kms.
Form the court house
If beyond 25 kms, ordinarily no personal
appearance unless the court is of the opinion
that examination on commission would be
inadequate
Expenses to be paid into court
The state govt. can exempt certain categories of
prisoners from personal appearance
Examination on commission
Adjournments (O. XVII)
Adjournments for reasons to be recorded in writing
Not more than three adjournments during the hearing of the suit
Hearing of the suit to be on day to day basis untill all the witnesses
in attendance are examined
No adjournment during hearing except for reasons beyond the
control of the party
Pleader busy in other court – no ground for adjournment
If pleader is sick – adjournment only when the party could not have
engaged another counsel
If witness present but party/pleader not present or if present not
ready to examine/cross examine – court may record the statement
and examination and cross examination may be dispensed with
Hearing of Suit and Examination of
Witnesses (Order XVIII)
S. 153B trial to be in open court
Ss. 101-114 of Evidence Act, 1872 – Right to
begin
The party having right to begin to present his
case/evidence/arguments
The other party to reply/present his evidence
The first party to conclude the whole case
Oral arguments/written arguments
Where party is to appear as witness, it should
appear first before other witnesses
Recording of Evidence (r.4)
Examination in chief- shall be on an affidavit
Cross examination and re-examination of
witnesses in attendance may be by court or by
the commissioner
Commissioner to record the objections raised by
the parties and court to decide on those
objections
Commissioner to submit report within 60 days
Evidence recorded by the commissioner
alongwith the report shall form part of the
record of the case.
In appealable cases, the whole of the evidence to be recorded in
the language of the court
In non appelable cases, only the substance of the evidence to be
recorded.
Evidence to be read over to the witness who is to sign the
statement
Evidence in English when English is not the language of the court –
if given in English and taken down in English
Otherwise, only if, the pleaders/parties do not object
The questions objected by a party and allowed by court shall be
recorded together with decision on those objections
Examination de bene esse (r. 16)
Power to appoint Commission (r. 19 read with Order 26 r. 4A)
Commission (ss. 75-78, O. XXVI)
Discretionary Remedy
Either suo motto or on application of either party
Power to issue commissions (s.75)
To examine witnesses (rules 1-8 of O. XXVI)
To Make Local Investigation (rules 9-10)
To Examine or adjust accounts (r. 11-12)
To Make a partition (r. 13-14)
To Hold scientific, technical and expert investigation (r. 10A)
To conduct sale of movable property (r. 10C)
To perform ministerial acts (r. 10B)
To Examine Witnesses
Person resident within the jurisdiction of the
court (r. 1)
When he is exempt from appearance in court
Paramhansa Ramkrishna v. Trimbak Rajaram, AIR 1978
Bom., 176 (Paramhansa)
Unable to attend due to sickness or infirmity
Interest of Justice (r. 4A)
Expeditious disposal of case (r. 4A)
Any other sufficient reason (r. 4A)
Bandhua Mukti Morcha v. Union of India, AIR 1984 SC 802
To Examine Witnesses
Other Cases (r. 4)
Resides outside the jurisdiction of the court
Witness is about to leave the jurisdiction of the court
Government servant – appearance in court will be
detrimental to public interest
Where personal appearance can not compelled (100
KM to 500 KM and beyond), if examination is
necessary in the interest of justice
Person is resident outside India and his examination
is necessary (r. 5)
To Examine Witnesses
The Evidence collected will be read in evidence
with the consent of the opposite party except
where (r. 8)
Witness is beyond the jurisdiction of the court
Witness is dead
Witness is unable due to sickness or infirmity
Exempted from personal appearance
Government servant – detriment to public
Court authorises
Local Investigations
To collect evidence on the spot
To ascertain market value
To investigate any dispute
To investigate mesne profits
To investigate damages
To determine net profits
Report by commissioner alongwith the evidence
shall be the evidence in the suit
Commissioner may be examined by court or with
the permission of the court by any party
Commissions on the request of
foreign courts (r. 19-22)
If HC is satisfied on the
Certificate signed by consular office through CG
Letter of request transmitted through CG
Letter of request produced directly by party in HC
Suit of civil nature
Witness is resident within appellate jurisdiction
of the HC
On application by the party or
On application by law officer of the state govt.
General provisions regarding
commissions
Expenses (r. 15)
Powers of commissioners (r. 16)
Examine the parties, witnesses or any other person
Call for and examine documents
Enter upon any land or building at reasonable time
Objections of parties, answers and names to be
reduced into writing
All powers of a civil court regarding summoning,
attendance and examination of witnesses
Affidavits (Order XIX)
An Affidavit per se does not become evidence in the
suits, but it can become evidence only by consent of the
party or where it is specially authorized by particular
provision of law. Affidavits are not included in the
definition of ‘evidence’ as provided in Section 3 of The
Evidence Act, 1872.
Court may order any fact to be proved by affidavit (r. 1)
Cross examination
Affidavit to be confined to matters of personal
knowledge except in interlocutory applications where it
may include statement on his belief
Judgment and Decree (O. XX)
Balraj Taneja v. Sunil Madan, AIR 1999 SC 3381
Judgment in Open Court
Immediately or as early as practicable
Notice
30 days
Exceptional and extra-ordinary circumstances – endeavour
should be made to pronounce judgment within 60 days
Anil Bhai v. State of Bihar, AIR 2001 SC 3173
Bachan Singh v. State of Punjab, AIR 1980 SC 898, Bhagwati
J. (16-08-1982)
Only the final order to be pronounced
Judgment to be signed
Where parties not represented by pleaders, court to inform
about right to appeal, period of limitation
Contents of Judgment
Small Cause Courts
Points for determination
Decision on those points
Other Courts
Concise statement of facts
Points for determination
Decision on those points
Reasons for those decisions
Decree
Within 15 days ‘endeavour’ shall be made
Appeal against decree without filing copy of decree (01-
07-2002)
Decree date- date of judgment
Signed by judge
Contents of decree
Suit number
Name of parties
Addresses
Particulars of claim
Relief granted
Cost of the suit, by whom to be paid
Contents of Decree – Specific Cases
Decree for recovery of immovable property
Description of property
Survey numbers
Decree for delivery of movable property
The amount of money as an alternative remedy
Decree for payment of money
May order payment in instalments
May postpone the payment of money
Order to pay in instalments may be made after the
passing of decree on the application of judgment
debtor with the consent of decree holder
Contents of Decree – Specific Cases
Decree for possession, rent and mesne profits
Possession of property
Rent
Mesne profit
Future rent rent and mesne profits
Specific performance of a contract of sale or
immovable property
Purchase to be made
Time period
Contents of Decree – Specific Cases
Administration Suit
Preliminary Decree
Enquiry into accounts
Final decree on the basis of preliminary decree
If the property insufficient – provisions relating to insolvency to be
applicable
Pre-Emption Suit
Dissolution of partnership
Principal and agent
Partition
Set off and Counter Claim
Supplemental Proceedings – ss. 94-95
Arrest before Judgment (O. XXXVIII)
At any stage of the suit
Other than suits relating to immovable property
Intent to delay the plaintiff or to avoid the process of
the court/obstruct or delay the execution of decree -
defendant
Absconded or left the limits of the jurisdiction
About to abscond or leave
Disposed or removed his property or any part
Defendant is about to leave India
Court may issue a warrant of arrest – to show cause –
why he should not furnish security
Arrest before Judgement (O.
XXXVIII)
If defendant furnishes security - he can not be
arrested
If does not show cause – shall furnish security
If does not furnish security – confinement in civil
prison – upto Rs. 50 – 6 weeks
More than Rs. 50 – 6 months
If security is in the form of surety – he can give
application for discharge – summons/warrant for
defendant and surety will be discharged on
appearance of defendant
Attachment before Judgement (O.
XXXVIII)
At any stage of the suit
Intent to obstruct or delay the execution
About to dispose of the property or part
About to remove the property
To furnish security or produce and place the property at
the disposal of the court
If no cause shown or security not furnished –
Attachment
If security furnished later on – attachment to be
withdrawn
Agricultural produce – not attahable
Attachment before Judgement (O.
XXXVIII)
Premraj v. Maneck Gazi, AIR 1951 Cal. 156 – Principles
Question of Fact
Merely because no harm would be caused – no ground
Merely because he is selling his properties
Only small portion of properties sold
Mere transfer not enough – additional facts to be proved
Defendant in an insolvent condition
Business closed or turnover reduced
Sale at undervalue
Extraordinary remedy
Utmost care and caution
Temporary Injuction (O.XXXIX)
Grounds
Property in dispute is in danger of being
wasted/damaged/alienated/wrongfully sold
Defendant threatens or intends to remove or
dispose of the property – defrauding creditors
Defendant threatens to dispossess the plaintiff
To restrain from committing breach of contract
Temporary Injunction
Notice to other party
Notice may be dispensed with – if the purpose
will be defeated
Reasons to be recorded
Copy of the order, application, affidavit, plaint,
and documents are to sent to the opposite party
immediately by regd. Post or delivered
To file the affidavit on the same day or
maximum next day that these copies have been
sent
Application within 30 days to be disposed off
Temporary Injuction – Principles
Dalpat v. Prahlad, AIR 1993 SC 276
Mandali Ranganna v. T. Ramchandra, 2008(8) SCALE 277
Kishorsinh Ratansinh Jadeja v. Maruti Corpn., 2009 (11) SCC 229
Prime facie case – strong case, needs trial – probability that
applicant is entitled to relief
Whether on evidence lead, it is possible to arrive at the conclusion in
question and not whether it is the only conclusion
Irreparable Injury
Balance of Convenience
Conduct of the parties
Delay/laches acquiescence
Suppressed material facts
Clean hands
Interlocutory Orders
Interim sale
Detention, preservation and inspection of any property
Authorise any person to enter upon any immovable
property
Auhorise samples to be taken, experiment to be
conducted
Application at any time
Notice to other party-except where purpose will be
defeated
Where subject matter is money or other property
capable of delivery – party admits - trustee
Receiver (O. XL)
Before or after the decree
Court can confer powers
Remuneration to be fixed by the court
Duties – shall furnish security
Furnish accounts
Pay the amount due from time to time
Responsible for loss due to his wilful default/gross negligence