The Code of Civil Procedure 1908

Introduction and Order 1

Dr. Karan Jawanda

 Nature, Scope and Significance of Civil
Procedure
• The Code of Civil Procedure 1908 is a set of rules of
procedure which govern all the aspects governing the
conduct of a suit in a court and matters connected
therewith.
• It is a combination of two terms ‘Civil’ and ‘Procedure’. The
former denotes matters related to ‘private’ individuals’ as
opposed to ‘public’ affairs whereas; the latter refers to ‘the
manner of carrying out a certain activity’. When combined,
thus, ‘civil procedure’ would viewed from the aspect of court
proceedings- mean no more than the ‘method of conducting
legal actions relating to the issues of private persons’.
 The Code of Civil Procedure is a procedural
or Adjective Law
Substantive Law
• Determines the rights and
liabilities of parties
• It defines a legal right and
confers legal rights /legal status
• It is generally prospective in
operation
• Example: Indian Penal
Code,1860, The Indian
Contract Act, 1872, Transfer of
Property Act,1882
Procedural/Adjective Law
• It provides the mechanism for
enforcement of the rights and
liabilities created by substantive laws
• It is a legal mechanism for enforcing
laws and is accessory to substantive
law as it provides remedies
• It is generally retrospective in
operation but Code of Civil Procedure
is Prospective
• Example: Code of Civil Procedure
1908, Indian Evidence Act 1872,
Limitation Act 1963, Code of Criminal
Procedure.
What is the Purpose of Procedural Law
• To provide fair trial according to principles of
natural justice
• To provide speedy disposal of cases
• To reduce complications of procedure, so that
everyone can expect justice. It should be
accessible to the poor who do not have sufficient
means to defend their cases
• To reduce chaos and provide a systematic and
uniform mechanism for trial of cases
 The statement of Object
• An Act to consolidate and amend the laws relating to the
procedure of the Courts of Civil Judicature.
• Therefore, after various attempts to form a uniform law of
procedure, first in 1859, then 1877, 1882 finally the code of 1908
was enacted which continues till date. Major amendments were
made in 1977, 1999 and 2002 and 2015
• It applies to whole of India, except the state of Nagaland and
tribal areas. [sec1(3)(b)]. However, after Registrar General
Gauhati High Court v. UOI, 2013, it may be said to apply to courts
established under the civil courts act and not to their customary
courts. After the J&K Reorganization Act 2019, it applies to UT of
J&K and Ladhak (sec 95-96 and fifth schedule)
 Structure of the Code
• Sections: It has 158 sections. Sections deal with provisions of
substantive nature and lay down the general principles
concerning a concept. The sections can only be amended by an
act of the legislature.
• Orders and Rules: It has 51 orders and each order has many rules
in first schedule. These contain the detailed rules of procedure
and the manner in which the jurisdiction may be exercised. These
rules can be amended by the High Court (sections 122-125) but
they cannot be inconsistent with the sections.
• Complimentary: The sections are to be read with orders and
rules and are complimentary to each other and must be
harmoniously construed.
 Civil Suit and its stages
• A suit may be defined as a civil proceeding instituted by the presentation of
a plaint. It is a proceeding in a court of justice by which an individual pursues
the remedy which the law permits. It is different from a criminal case as
there the state has the right to prosecute for commission of a crime.
• Stages:
1. Filing of a plaint
2. Issue of Summons
3. Filing of a Written Statement
4. Framing of Issues
5. Evidence is led by both parties
6. Arguments
7. Court decides and writes judgment
8. Then the decree is passed and judgment is pronounced
9. The decree passed is executed
10.There may be an appeal, review or revision from the decision in a suit.
 Essentials of a suit
• Parties in a suit: In every suit there must be at least one plaintiff
and one defendant. There can be multiple plaintiffs or defendants
also provided they are joined as per the provisions of order 1.
• Cause of Action: Every suit is based upon a cause of action which
means the set of facts which leads up to a suit or the existence of
which entitles a party to seek redress in a court of law.
• Subject Matter: It refers to the right or the property claimed in a
suit.
• Relief Claimed: The relief must be specifically claimed. Eg.
Specific performance, possession, damages, compensation etc.
 Parties to a suit (order1)
• Every suit must have two opposing parties: the
plaintiff and the defendant
• Whenever there is one plaintiff claiming a right
against one defendant, the provisions of order 1 are
not attracted.
• Whenever there are multiple plaintiffs or multiple
defendants then they are to be joined in one suit
keeping in mind the provisions of order 1, rule 1
and 3. This is a situation of joinder of parties.
 Joinder of Plaintiffs
• All persons may be joined in one suit as plaintiffs according to the
conditions required under rule 1 of order 1 namely;
1. That the right to relief alleged to exist in each plaintiff arises out of
the same act or transaction and;
2. If such person brought separate suits, any common question of law or
fact would arise.
Example: A publishes a book bearing the title “The Oxford and
Cambridge Publication” thereby creating an impression that it is a
publication of the Oxford and Cambridge Publication. Both
Universities may join as plaintiffs in one suit for an injunction to
restrain from using the title as the publications and impression
created is a common question of fact arising out of the same act or
transaction.
 Joinder of plaintiffs
• Example: A enters into an agreement jointly with B and C to sell
100 bags of wheat of a certain quality and quantity. However, A
later fails to deliver the said goods. Now B and C can join as
plaintiffs in one suit against A as their right arises out of the
same Act and common questions of law and fact would arise.
• Example: A enters into a contract with B to sell 100 bags of
wheat on a certain date at a certain rate. A also enters into a
separate contract with C to sell 100 bags of wheat at the same
rate and on the same day. If A fails to deliver the said bags to B
and C, they cannot join together in the same suit as the
transactions were different.
 Jointly, severally and alternatively
• The said right to relief being claimed by the plaintiffs or against the
defendants may be said to arise jointly, severally or in the
alternative
Jointly: means that two or more plaintiffs must join together in one
suit. It represents a single indivisible right. E.g. joint owners of a
house must be joined together as plaintiffs in a suit to recover
possession of the property.
Severally: indicates, that an involvement of some common question
of law or fact but not identity of interest or cause of action. The
persons severally entitled to a right may join together in one suit or
may bring separate suits. Where debts of several creditors to the
same person are specified separately in the agreement relating to
such debts and agreement is jointly executed by the creditors,
though each is to take a share, a separate suit by each creditor is
maintainable. Thus, this rule does not necessitate one suit.
 Jointly, severally and alternatively
• Alternatively means the claims of the co plaintiffs must not be
contradictory to each other. The plaintiffs must be suing with consent
although claiming alternatively.
• Eg a Hindu dies leaving a widow, an adopted son, a separate brother.
The brother disputes the adoption. The widow and the adopted son
bring a suit against the brother as co plaintiffs claiming in the
alternative to recover the property for the widow if the adoption is
not valid or in the alternative for the adopted son if the adoption is
valid.
• A alleging that his agent B lent Rs. 1,000 to C, and C had denied a
receipt of money from B sues B and C praying for a decree against B if
it is found that the amount was not paid to C, or in the alternative
against C if it is found that the amount was paid to C.
 Joinder of defendants
• The conditions for joinder of defendants is provided
by Order 1, rule 3.
• The rule provides:
• That the right to relief alleged to exist against the
defendants arises out of the same act or transaction
and
• That, if separate suits were brought against such
person, any common question of law or fact would
arise.
 Joinder of defendants
• Example: A, a passerby is injured in a collision
between two cars belonging to B and C. A may file one
suit for damages against B and C for negligence as
common question of fact arises out of the same act.
• Example: B, C and D each separately enter into an
agreement with A to supply 100 bags of rice of a
certain quantity and quality. They fail to supply the
same. Now, A cannot file one suit against B,C and D as
there are 3 different contracts and thus different
transactions.
 Types of parties
• Necessary Parties: The general test to identify a necessary party
is:
1. There must be right to some relief against such party in respect
of the matter involved in the proceedings in question; and
2. It should not be possible to pass an effective decree in the
absence of such a party.
• Example: All persons claiming a share in partition are necessary
parties
• In an action against selection and appointment by an authority,
candidates who are selected and appointed are directly affected
and, therefore, they are necessary parties.
 Types of Parties
• Proper Parties: A ‘proper party’ is a party who, though not a necessary
party, is a person whose presence would enable the court to
completely, effectively and adequately adjudicate upon all matters
in disputes in the suit, though he need not be a person in favour of
or against whom the decree is to be made
• Example: If the owner of a tenanted property enters into an
agreement for sale of such property without physical possession, in
a suit for specific performance by the purchaser, the tenant would
not be a necessary party. But if the suit for specific performance is
filed with an additional prayer for delivery of physical possession
from the tenant in possession, then the tenant will be a necessary
party in so far as the prayer for actual possession.
• In a suit for partition by a son against their father, the grandson is
only a proper party.
 Non-joinder and Mis-joinder of parties
• Non-joinder: where a person, who is necessary or proper party to a
suit has not been joined as a party to the suit, it is a case of non-
joinder.
• Mis-joinder: Mis-joinder could be of plaintiffs or defendants. If the
parties are joined in contravention of o.1, r.1 or r.3, it results in mis-
joinder.
• Consequences of Non Joinder and Mis-joinder
• Rule 9 of order 1 lays down that no suit shall be defeated by reason
of mis-joinder or non-joinder of parties. However, this rule does not
apply to cases where there is a non-joinder of necessary party. A
suit is not to be dismissed only on the ground of non-joinder or mis-
joinder of parties. The Court may allow the necessary parties to be
joined, in at a later stage. 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.
 Objections to mis-joinder or Non-joinder
• As per Rule 13 of Order 1 of the Code of Civil Procedure, all
objections on the ground of non-joinder or mis-joinder of
parties shall be taken at the earliest possible opportunity and,
in 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.
• Section 99 of the Code of Civil Procedure provides that no
decree shall be reversed or substantially varied, nor shall any
case be remanded, in appeal on account of any mis-joinder or
non-joinder of parties. However, this rule does not apply to
non-joinder of necessary party.
 Addition/ Substitution or Striking of a party
(order 1, rule 10)
• The general rule with regard to impleadment of
parties is that the plaintiff may choose the persons
against whom he wishes to litigate and cannot be
compelled to sue a person against whom he does
not seek any relief.
• Consequently, a person who is not a party has no
right to be impleaded against the wishes of the
plaintiff. But this general rule is subject to the
provisions of Order I Rule 10(2) of Code of Civil
Procedure
 Addition/ Substitution or Striking of a party
(order 1, rule 10)
• As per order1, rule 10(1) the court may at any stage of the
suit, substitute or add a person as plaintiff if there has
been a bonafide mistake and it is necessary for
determination of the real matter in dispute.
• As per order 1, rule 10 (2), the court may at any stage,
upon application of a party or suo moto, strike out the
name of a person wrongly added as plaintiff or
defendant and add the correct party who ought to be
joined or should be joined for effectual adjudication.
However, court may refuse to join a party against whom
the matter is barred by limitation
 Representative Suits (order1, rule 8)
• A representative suit is a suit filed by or against one or more persons on
behalf of themselves and others having the same interest in the suit.

• This provision provides for joinder of parties where the number of

parties are numerous. Unlike rule 1 and 3, rule 8 does not require the
precondition of the rights must arise out of the same act or transaction.
• Order 1, rule 8 is an enabling provision.
• Essentials:
• There are numerous persons
• They have the same interest or some common grievance
• The court has permitted them to sue in the said capacity
• Notice has been served to all the persons being represented
 Representative Suit
• The right of the claim which they seek to establish in the suit must
be one which is common to them all and each individual among
the body of persons must be interested in the litigation. eg a suit
on behalf of villagers, members of a certain community etc.
• No part of such a suit can be withdrawn or compromised without
notice to the parties. The decision in such case will be binding on
all the members represented.
• A person may be added as plaintiff or defendant if he can show
that conduct of suit is not in proper hands
• T.N Housing Board v. Ganpathy (1990)1 SCC 608 where allottees of
L.I.G. flats were entitled to sue the housing board under order 1
rule 8, although they were issued separate demand notices for
increased payment. Thus, even though the causes of action and
transactions were different, the court held that the grievance was
common to all
• Example: A sues 100 persons who have in pursuance of a
conspiracy trespassed on his land, and A asks for
declaratory relief, the court may permit him to sue, say, 3
of the opponents as representatives of all the hundred,
provided there is community of interest among them,
which can be said to exist where there is concerted action
or a common object though the cause of action against
each trespasser is separate.
• Suits filed on behalf of villagers, members of a sect or
community, students , creditors of a person, trade unions
etc.