CODE OF Civil Procedure AND Limitation ACT-I ( Notes for Exam) PDF

Preview

Summary

Code Of Civil Procedure& Limitation Act-I(SEMESTER VII)Dear Reader,This reading material consists of a total of 78 pages and the source for the same is the textbook (Takwani) and the Bareact. The material however does not contain information on the Unit I which deals with the History of the ...

Description

Code Of Civil Procedure & Limitation Act-I (SEMESTER VII)

Dear Reader, This reading material consists of a total of 78 pages and the source for the same is the textbook (Takwani) and the Bareact. The material however does not contain information on the Unit I which deals with the History of the Civil Procedure Code and the jurisdiction (pecuniary primarily) of various courts. Kindly use the class notes or the textbook, whichever is more suitable for the same. The rest of the information is to the best of my knowledge sufficient. Please check the class notes if you have any incase you want to verify the material or add any further information. Take Care and Best of Luck! Regards Ankita Das

0

Unit I- History of Civil Procedure Code Unit II- Definitions (a) Difference between decree and order Decree1. Defined under S. 2(2) of CPC. NOTE: Essential ingredients of definition have been discussed in the points that follow and have been underlined. 2. There must be an adjudication(i) Adjudication refers to the judicial determination of a matter in dispute. (ii) Such judicial determination must essentially be by a court. (iii) Thus any decision on a matter which is administrative in nature is not a decree or any dismissal of an appeal for want of prosecution is not a decree. (as regards point (i) ) (iv) Further, an order passed by an officer who is not a court is not a decree e.g. decision by an administrative tribunal. (as regards point (ii) ) 3. Such adjudication must have been done in a suit(i) A suit is a civil proceeding which commences with the presentation of a plaint. (Hansraj v. Dehradun-Mussoorie Electric Tramways Co. Ltd.) (ii) If the court rejects an application for leave to sue in forma pauperis, it is not a decree as the rejection of the application means that there exists no plaint. (iii) However, proceedings under certain acts are deemed to be decrees such as those under the Hindu Marriage Act, Indian Succession Act, Land Acquisition Act, Arbitration Act, etc. (iv) Hence, there will be no decree if the proceeding doesn’t commence with a plaint and is not treated as a suit under any other act. 4. There must be a determination of rights of parties as regards the matter in controversy(i) Rights of the parties here refers to substantive and not procedural rights. It thus includes rights of parties inter se relating to limitation, status, jurisdiction, etc. But, doesn’t include matters such as dismissal of a suit for non-appearance, order refusing leave to sue in forma pauperis, etc. (ii) The term parties here refers to only parties to the suit and doesn’t include the rights of any third party. (iii) Interlocutory orders which deal with the procedural rights of parties are not decrees. Also, proceedings preliminary to the institution of the suit are not decrees. (iv) Matters in controversy here refers to the subject matter of the suit with respect to which some relief is sought. 5. There must be conclusive determination of the rights of parties(i) The determination must be final and conclusive as regards the court which passes it. 1

(ii) (iii)

However, it may so happen that an order may conclusively determine the rights of the parties but may not dispose off the suit. (preliminary decree-see later) What needs to be seen is whether the decision is final and conclusive in essence and substance.

6. There must be formal expression of such adjudication(i) All requirements of form must be complied with in terms of the law. (ii) However, the decree need not be in a particular form. For e.g. in case of misdescription of a decision as an order while it is infact a decree will not make it anything less than a decree. 7. Certain decisions which are regarded as being decrees- order of abatement of suit, dismissal of suit as being time barred, dismissal of suit or appeal for want of evidence or proof, rejection of plaint for non-payment of court fees, etc. 8. Certain decisions which are not decrees- dismissal of appeal for default, appointment of commissioner to take accounts, order granting interim relief, etc. 9. Decrees as per the code may be classified as- preliminary decrees, final decrees and decrees that are partly preliminary and partly final. 10. A preliminary decree is one which decides the rights of the parties with respect to a particular suit but does not completely dispose off the suit. 11. It is the stage in which the court only works out the rights of the parties and waits until it is in a position to pass a final decree. 12. Some examples given in the CPC of a preliminary decree- suits for possession and mesne profits, suits for dissolution of partnership, suits for partition and separate possession, etc. 13. There is a conflict of opinion as to whether or not there can be more than one preliminary decree in the same suit. As regards partition suits however, the SC in Phoolchand v. Gopal Lal has taken the view that there can be two preliminary decrees in the same suit. 14. S.97 of the CPC provides that where one party aggrieved by such preliminary decree doesn’t appeal from it, he shall be precluded from bringing up the same when there is an appeal from a final decree. 15. As the preliminary decree is a stage before passing of a final decree, if the appeal preferred against the preliminary decree succeeds, the final decree automatically falls. 16. A decree may be final in two ways, namely(i) When within the prescribed time period no appeal is filed against it or when it is the decree of the highest court OR (ii) When, so far as the court passing it is concerned, it completely disposes off the suit. 17. Generally speaking, there can only be one final decree in a suit unless more than one causes of action are joined in the suit. 18. An example of a final decree may be that of a suit for recovery of money wherein the amount due to the decree holder is declared and also the manner in which such amount is to be paid. Hence, the suit is completely disposed off. 19. An example of decrees that are partly final and partly preliminary may be that of a suit for possession of immovable property with mesne profits wherein the former is a final decree while the latter is a preliminary decree. 20. This section also provides for what may be called as a deemed decree or something which is not actually a decree but is considered a decree in law. The section provides that a rejection 2

of a plaint as well as determination of any question under S.144 (restitution) shall be deemed to be a decree. 21. The rejection of a plaint it must be noted doesn’t preclude the plaintiff from filing a fresh plaint however it is deemed to be a decree. Such a rejection must be one which is authorised by the code. 22. However, the return of a plaint is not a decree as it doesn’t negate any rights of the plaintiff and doesn’t determine the rights of the parties. It is an appealable order and is hence not a decree (check notes under decree later for appealable order). 23. The section also provides that a decree shall not include(i) Any adjudication from which an appeal lies as an appeal to an order, or (ii) Any order for dismissal on default. 24. Examples of an appealable order- an order returning a plaint for presentation to the proper court, an order rejecting an application for permission to sue as an indigent person, setting aside or refusing to set aside a sale under Order 21. 25. The difference between a decree and an appealable order is that no second appeal lies from an appealable order while in case of a decree, a second appeal lies in certain cases. 26. A dismissal for default includes dismissal for want of prosecution, dismissal for nonappearance of parties, etc. Order1. An order is the formal expression of a decision of a court of law not being a decree. 2. Similarities between an order and a decree are as follows(i) Both relate to matters in controversy. (ii) Both are decisions of a court. (iii) Both are adjudications by a court of law. (iv) Both include formal expression of such decision. 3. Differences between the two are as followsSl.no. 1.

Decree Order It determines the rights of parties finally It may not determine the rights of and conclusively. parties finally and conclusively.

2.

It commences with the presentation of a Presentation of a plaint is not plaint in a civil proceeding. required. It may even start with a petition or application. A decree may be preliminary or final or There are no preliminary orders. partly preliminary and partly final. Generally there is only one decree in There can be more than one orders every suit unless it includes a decree in a suit. which is partly preliminary and partly final. All decrees can be appealed against. Only such orders as are declared as being appealable by the CPC can be appealed against. There may be a second appeal to a decree There cannot be a second appeal in certain cases. against orders that are appealable.

3. 4.

5.

6.

3

(b) Mesne Profits1. Mesne profits of property refers to the profits which a person in wrongful possession such immovable property actually received or with ordinary diligence would have received and includes the interest on such profit. 2. However, it does not include profits received by the person in wrongful possession due to improvements made by him with respect to the same. 3. The object of providing for a decree for mesne profits is to ensure that one who is deprived of his property and enjoyment thereof must be restored the same with damages. It is thus compensation and is penal in nature. 4. It can be claimed against(a) A trespasser (b) A person against who decree for possession has been passed. (c) A mortgagor in possession of property after passing of a decree of foreclosure. (d) A mortgagee in possession of property after passing of a decree for redemption (e) Tenant holding over at will after a notice to quit has been put up. 5. Where the plaintiff is dispossessed by several persons, he shall be entitled to receiving mesne profits from all of them. The court may either adjust their respective rights in a suit of contribution later (if not all of them pay the plaintiff at once) or may apportion the same to be paid by them. 6. Test for determining mesne profits is not what the plaintiff has lost but what the defendant has actually gained or could have reasonably gained from such land. 7. It includes interest as well which must be computed as per the court’s discretion. However, it cannot exceed 6% per annum and may be calculated till the day the payment is made. 8. However, mesne profits must be net profits, i.e. must be calculated after making deductions for amount spent by the defendant say on collection of rent, cess, cost of cultivation, etc. 9. Example of calculation of mesne profits- incase of mesne profits with respect to rented property, it should be based on the rent of the property and not the value of land, produce, etc.

4

Unit III- Jurisdiction 1. The Indian legal system has adopted one of the fundamental principles of English law- ubi jus ibi remedium- wherever there is a right there is a remedy. 2. A suit is not barred unless there is a statute that expressly or impliedly bars it. 3. Jurisdiction is the power or authority of a court of law to hear and determine a cause, adjudicate upon it and exercise any judicial power with respect to it. 4. The court may exercise jurisdiction with respect to a cause either on the basis of subject matter, pecuniary value or local limits. 5. In Official Trustee v. Sachindra, it was held that a court will have jurisdiction over a matter only if it has the authority to try the same as well as pass orders with respect to the same. 6. Jurisdiction of a court cannot be created by consent of parties. If a court lacks inherent jurisdiction with respect to a particular cause of action, the same cannot be created by way of acquiescence, waiver or estoppel by the parties. 7. A decree passed without jurisdiction is non est and its validity can be challenged at any point of time. It may be challenged even at the stage of execution or in parallel proceedings. It is treated as being non coram judice. 8. Conversely, the jurisdiction of a court cannot be taken away by way of an agreement between parties. Such an agreement is against public policy. (ex dole malo non oritur actio) 9. But if two or more courts have jurisdiction with respect to a particular cause of action, it is upto the parties as to which court they wish to go to. An agreement for the same would not be invalid. (Hukam Chand v. Gammon India Ltd) 10. There is a difference between lack of jurisdiction and irregular exercise of jurisdiction. 11. Lack of jurisdiction is when the court lacks inherent jurisdiction to decide a case. There cannot be any appeal in such cases and the decision given is void. 12. Irregular exercise of jurisdiction is when a court wrongly decides a case. In such cases, there can be an appeal to such decision. 13. However, now due to the decision given in Anisminic Ltd. v. Foreign Compensation Commission, there is virtually no difference between the two. 14. The basis to determine jurisdiction is the case put forward by the plaintiff in his plaint and not the defendant’s written statement. For example if a plaintiff files a suit in a civil court stating that the defendant is a trespasser, the defendant cannot challenge the validity of the same stating that he is a tenant and hence the revenue court has jurisdiction. 15. The plaintiff however cannot invest jurisdiction in a civil court by cleverly drafting his plaint. It is thus dependent on the substance of the matter and not the form. 16. Again where a court has jurisdiction with respect to a particular dispute but not with respect to a collateral issue, it can prima facie decide the collateral issue. However, this doesn’t bar the court having jurisdiction over the collateral issue from deciding the same. 17. It must be noted that if the court in which the suit is instituted lacks territorial or pecuniary jurisdiction as regards the matter, the plaint shall be returned to be presented in a proper court. However, with respect to lack of subject-matter jurisdiction, the matter will be dismissed in its entirety. 18. The jurisdiction of a court or any other authority is dependent on the fulfillment of a particular fact known as the jurisdictional fact. 19. A court or tribunal has the inherent power to decide whether or not it has jurisdiction with respect to a particular matter. 20. When Parliament by way of statute confers jurisdiction on a tribunal, it has the jurisdiction to exercise the same and no writ of certiorari can be issued challenging its decision. 5

21. The different kinds of jurisdiction may be seen as follows(a) Local/ Territorial jurisdiction- the High Courts and District Courts have jurisdiction only with respect to the particular territory in which they are situated. (b) Pecuniary jurisdiction- This is when a particular court has jurisdiction to try cases only upto a particular amount such as the Presidency Small Causes court can try cases only upto 1000 INR. However, certain courts such as the High Courts and District Courts have no pecuniary jurisdiction. (c) Subject matter jurisdiction- Certain courts can exercise jurisdiction only with respect to certain kinds of cases. For example, Presidency small causes courts cannot decide matters with respect to partition of immovable property, specific performance of contract, etc. Similarly, district judges and civil judge senior division have jurisdiction with respect to divorce cases, testamentary matters, insolvency proceedings, etc. (d) Original and appellate jurisdiction- Courts having original jurisdiction such as Munsif’s courts, courts of civil judges and small causes courts can entertain and decide suits. Courts having appellate jurisdiction can entertain and decide appeals as in the case of District courts and High Courts. 22. S.9 of the CPC provides for jurisdiction of civil courts. It states that a civil court has jurisdiction to try all suits of a civil nature unless they are barred. 23. Suits of a civil nature includes all such suits where primarily, the private rights of parties must be determined and enforced. It is distinguished from criminal or political suits. The principal question to be determined is of a civil nature and such suits have a wider scope than civil proceedings. 24. The first explanation to this section states that a suit with respect to right to property or office shall be considered as being a civil suit even if it may depend entirely on the determination of questions relating to religious rites or ceremonies. What is important is whether or not the principal question is civil in nature. 25. The second explanation to this section which was added by the amendment of 1976 states that it is immaterial whether the office referred to in explanation 1 has any fee attached to it or whether or not it is in a particular place. 26. Examples of suits of a civil nature- suits relating to right to property, suits with respect to right to worship, suits relating to right to sharing in offerings, etc. 27. Examples of suits not of a civil nature- suits which principally involve caste questions, suits against expulsion from a caste, etc. 28. Thus, a civil court may decide any suit of a civil nature provided it is not barred, either expressly or by implication. 29. A suit is said to be barred expressly when it is barred by any enactment for the time being in force. 30. It is thus open to the legislature to exclude the jurisdiction of a civil court with respect to certain matters provided in doing so it doesn’t contravene the legislation which confers such power on it and doesn’t do anything which is unconstitutional. 31. However, generally a presumption is made in favour of the fact that the civil court infact has jurisdiction and the provisions of the statute barring such jurisdiction must be strictly construed. 32. But, if the remedy in the statute is not adequate and all questions cannot be decided by a special tribunal, the civil court shall have jurisdiction over the same. 33. Some examples of such cases are- those to be decided by the revenue court, industrial tribunal, rent court, company law board, etc. 34. Suits barred by implication are those excluded by way of general principles of law. This means that the civil court is prohibited from taking cognizance of such cases as are against 6

public policy such as a contract hit by S.23 of the contract act, an agreement in restraint of trade as under S.27 of the Contract Act, etc. (CASE LAWS) 35. However, the jurisdiction of the civil court must not be barred unless the statute expressly bars the same or where there is a necessary or inevitable implication as regards the same. 36. However, in cases where a tribunal or court created under a statute does not exercise its jurisdiction in compliance with the statute in question or passes orders as are mala fides, ultra vires, arbitrary, etc, the civil court has the jurisdiction to decide whether or not such order is valid or not. Such an act of the court/tribunal cannot be said to be within the act but it is de hors the act. 37. The exclusion of jurisdiction of civil courts was comprehensively laid down in Dhulabhai v. State of MP, wherein the following important principles were laid down(a) If a statute confers jurisdiction upon a special tribunal with respect to certain matters and the remedies to be provided by such tribunal are the same as would be provided by a civil court, the jurisdiction of the civil court will be excluded. However, the civil court will have the authority to adjudicate upon matters such as whether or not the decision of the tribunal was ultra vires the parent statute or whether or not it was unconstitutional, etc. (b) If a statute expressly excludes the jurisdiction of a civil court, an examination of the adequacy of the remedies provided by such statute may be assessed however the same shall not be regarded as being sufficient for the sustaining the jurisdiction of the civil court. (c) The tribunal constituted under the statute cannot go into the fact of the provisions of the statute as being ultra vires....