Cpc - Lecture notes 40 PDF

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Jurisdiction Even courts derive their power to interpret the law and impart justice from a higher law. In this case, the Constitution of India gives powers to the Central Government to enact a procedural statute such as the Civil Procedure Code which lays down the limits of the jurisdiction of vario...

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Jurisdiction Even courts derive their power to interpret the law and impart justice from a higher law. In this case, the Constitution of India gives powers to the Central Government to enact a procedural statute such as the Civil Procedure Code which lays down the limits of the jurisdiction of various courts. Jurisdiction may be defined as the power or authority of a court to hear and determine a cause and to exercise any judicial power in relation to it. Thus, if a court passes an order on a case that is outside its jurisdiction, the order is void and need not be heeded by the party. Similarly, where a court has jurisdiction, the parties do not have any power to take away the same by virtue of an agreement. The way a civil case precedes is that a matter is first brought to the court by one of the parties and the court examines the claim being made. Upon deciding whether it is a just claim, a notice is served upon the alleged wrong-doer; the court sets the process of adjudication in motion.

What are the special features of Civil Procedure? (a)

Any private party may file a civil suit against another private party. In a criminal court proceeding, the prosecution, which is the State’s counsel, levels the charges. (b) Also, in a criminal proceeding, the burden of proving that the crime was committed by the defendant lies on the prosecution. The defendant only has to ensure that the evidence brought forward is not enough to find him guilty. (c) In a civil case, if the plaintiff establishes that it is more likely that the offence was committed than not, a notion is known as ‘preponderance of probability’, the burden of proof will shift to the defendant. A civil offence may concern issues such as property disputes, matrimonial disputes and most economic offences.

Suit and Adjudication The word suit has been defined by the courts. The word ‘suit’ means a civil proceeding instituted when a person, known as the plaintiff, presents a written statement known as aplaint to the court. It is brought against the defendant, and when there is no civil suit there is no decree. When the court makes a determination on judicial grounds on the matter that was brought up in the dispute, it is known as adjudication. This means, that when a court considers the issues at hand, using well-developed judicial principles, and makes a decision regarding the dispute, it has done its job. When a suit is brought to the court, the court takes steps to hear both sides of the dispute, and then after examining the evidence adjudicates upon the dispute. A decree is passed by the court after adjudicating upon the matter or all the matters raised in the suit; this decree directs the losing party to take the necessary action for the winning party.

Decree, Judgement and Order A Court may pass an adjudication relating to certain matters in a suit or all the matters in the suit. There are basically three types of decrees: 1. Preliminary decree 2. Final decree 3. Partly preliminary and partly final. Preliminary decree When a Court’s 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 decree is passed in those cases in which the Court has first to adjudicate upon the rights of the parties and has then to remain inactive until it is in a position to pass a final decree. In the case of an appeal against a preliminary decree, the final decree automatically falls for there is no preliminary decree thereafter in support of it. For example, a wife sues her husband for maintenance. In the course of making a determination, the court must also decide whether she gets maintenance during the time the trial is taking place. This would amount to a preliminary decree.

Final decree A decree may be said to be final in two ways, when there has been no appeal filed against the decree or when the matter has been decided by the highest Court, or when the Court passing it completely disposes of the suit. A final decree is one which completely disposes of the suit and finally settles all the questions in controversy between the parties and nothing further remains to be decided thereafter. Ordinarily there will be only one final decree in the suit. However, where two or more causes of action are joined together there can be more than one final decree. For example, in a suit for the title of a particular property, when the court decides who has the title of the property it is the final decree in the suit.

Partly preliminary and partly final A decree may be partly preliminary and partly final and this may be explained by way of example. For example, here, two brothers argue over who inherits the family property from their late father. This property is currently leased out to a family. While the determination of who gets the property is the subject of the final decree, the determination of who gets the profits that accrue from the lease rent being paid during the length of the trial, is a matter of partly preliminary and partly final decree. For example, Santosh and Mohan were fruit wholesalers who received a large contingent of fruits by delivery. Once there arose a dispute as to who owned the fruit contingent after it had been delivered. A plaint was presented and the court began to look into the matter. However, the fruits were perishables and could not have withstood the duration of the trial. When the plaintiff

pointed this out, the court ordered that the defendant must sell off the fruits, but an account of the cost and profits must be kept. Is this a final decree by the court? No, this is not a final decree as it does not determine the issue of the ownership of the fruits. Since that was the matter which was brought before the courts, and it has not been determined, this is not a final decree.

Ex-parte Decree An ex parte decree is a decree passed in the absence of the defendant. Such a decree is neither null and void nor inoperative but is merely voidable and until it is annulled, it has all the force of a valid decree. Remedies in case of ex parte: The procedure prescribed for an ex parte decree goes against the principle of granting everyone a fair hearing. Thus, there are many provisions for the defendant to apply for setting aside the ex parte decree. He can apply under Order 9, Rule 13 by proving that he could not attend court due to either of the following grounds: (1) the summons was not served properly, or that (2) he was prevented by any sufficient cause from appearing when the suit was called for hearing. For example, in a suit where the decree was passed against both the defendants, but only one had received the summons and was present in Court, the Court set aside the decree of the party who was not present. It was held that the decree was still valid against the attending party.

Judgement Judgement means the statement given by the Judge on the grounds of a decree or order. The essential element of a judgment is that there should be a statement of the grounds of the decision. Every judgment must contain: 1. A concise statement of the case 2. The points for determination – the decision thereon 3. The reasons for such acquisition. A judgment can be distinguished from a decree in the sense that a judgment means the statement given by the Judge of the grounds of a decree or order. A judgment contemplates a state prior to the passing of a decree or an order, and after the pronouncement of a judgment, a decree shall follow.

Order An order means ‘the formal expression of any decision of a civil court which is not a decree’. A judicial order must contain the discussion of the question at issue and the reasons which prevailed with the Court to pass the order. The distinction may be drawn between a decree and order on the following grounds 1. A decree can only be passed in the suit which commenced by the presentation of a plaint. An order may arise from a petition or application. 2. A decree conclusively determines the rights of the parties however an order may not finally determine such rights. 3. There cannot be a preliminary order. 4. In certain suit is one preliminary decree and the other final decree may be passed, however, a number of orders may be passed in the same suit. 5. Every decree is appealable but every order is not unless specified.

Sub Judice There are some suits that are barred from being filed in a Court, for reasons apart from the Court’s lack of jurisdiction. The Court can proceed with the trial of any suit if the subject matter of the suit is already in issue in a previously instituted suit between the same parties. This is subject to the fact that the Court in which the previous suit is pending is competent to grant the relief claimed. For example, Kumar instituted a suit against Akshara for divorce on grounds of mental cruelty. Akshara filed a suit against Kumar at the same time for custody of their child. The subsequent suit is not barred by sub judice because it is not the same subject matter being adjudicated upon in the second suit. For example, Trina instituted a suit against Munni for recovery of some property. While the suit was still pending in court, Trina instituted another suit against Munni for the profits from the property during the pendency of the suit. This subsequent suit is barred by sub judice as it relates to the same property.

Res Judicata Section 11 bars a suit where the matter has already been adjudicated upon in a previous suit. It bars the trial of a suit or an issue in which the matter directly and substantially in issue has already been adjudicated upon in the previous suit. The object of Section 10 is to prevent the courts from simultaneously entertaining and adjudicating upon two parallel litigations in respect of the same cause of action, the same subject matter and the same relief. The policy of the law is to confine the plaintiff to one litigation process, thus negating the possibility of two contradictory verdicts on the same matter. It intends to protect the person from multiplicity of proceedings and avoid a conflict of decisions. Certain conditions must be fulfilled for the application of this section. These are: 1. There must be two suits, one previously instituted and the other subsequently instituted

2. The matter in issue in the subsequent suit must be directly and substantially in issue in the previous suit 3. Both the suits must be between the same parties or their representatives. 4. The previously instituted suit must be pending in the same Court where the subsequent suit is brought in or in any other Court in India or any other Court beyond the limits of India established or continued by the Central Government or before the Supreme Court 5. The Court in which the previous suit is instituted must have jurisdiction to grant the relief claimed in the subsequent suit. 6. Such parties must be litigating under the same title in both the suits. For example, Dutta filed a suit against his brother-in-law, Gupta, for his share in the family property after a relative died intestate. At the same time, Gupta wanted to file a suit over the splitting of the family business between them. The second suit is not barred because the matter in the subsequent suit is not directly and substantially in issue in the previous suit. For example, there was a suit pending before the US Federal Court over the compensation amount for victims of a disaster caused by an American company in India. This does not bar a similar suit from being instituted in any court in India at the same time, as long as the Indian court has jurisdiction. For example, the victims of a road accident filed a suit against the insurance company to get the insurance money for the damaged vehicle. At the same time, a suit for compensation was instituted against the owners of the vehicle that caused the accident. The second suit is not barred by the first suit as they do not concern the same two parties.

Legal Representative “Legal Representative” means a person who in law, and for legal purposes represents the estate of a deceased person. This may include any person who intermeddles with the estate of the deceased; any person who acquires the land through the laws of succession due to the death of a party involved in a suit will also be the ‘legal representative’ for the purpose of the law. For example, Jeevan was fighting a case in the court over the title of a residential property. He died during the time the suit was still pending. In his Will, he had left the property to his wife. She is Jeevan’s Legal Representative.

Constructive Res Judicata According to this principle, if a person has established a position in a particular suit, then anything that naturally flows from that position may be construed by the courts. Therefore, the same person cannot take a conflicting position in a subsequent suit. He is barred from doing so by constructive Res Judicata. For example, in a case on revenue matters, Malik had had taken the plea that he was not a tenant on the suit land. Therefore, in any subsequent suit by a mortgagor for selling the property, it is not open for him to take up the plea that he was living on the land as a permanent tenant.

Res Judicata will be applicable if the matter in controversy might and ought to have been raised in the previous suit.

Place of Suing The Court system operates on the basis of a hierarchy, where the District Court is below the High Court. All other courts such as sessions courts and small causes courts are below the High Court. This distinction is made on the lines of pecuniary jurisdiction and territorial jurisdiction. Pecuniary jurisdiction means that the Court cannot hear any cases where the relief amount claimed is greater than the court has the power to award. Territorial jurisdiction lays down a physical boundary declaring that if a cause of action arises outside the defined physical boundary, the court does not have jurisdiction over it. Every suit shall be instituted in the Court of the lowest grade competent to hear the issue. This is with reference to the pecuniary jurisdiction of the Court.

Mesne Profits Mesne profits of property means the profits made by a person who was in wrongful possession of that property. Whatever he has actually received or might have received, together with interest calculated on it, shall be said to be mesne profits. However, he has the right to retain the profits gained by any improvements he has made to the property. It is a compensation which is penal in nature because every person is entitled to possess the property and gain profit from it. If a person is wrongfully deprived of such property then he is entitled to the property and the profit which accrued from it. The calculation of mesne profit is done by the Court. And the following principles guide the Court in determining the amount of mesne profit 1. No profit by a person in wrongful possession 2. Restoration of status before dispossession of the decree holder 3. Use to which the decree holder would have put the property if he himself was in possession. For example, Muthanna and Ramanna have a disagreement about the ownership of a Property X and the issue was taken to Court. Muthanna lives in a house built on this property and had rented out a room on the 1st floor to tenants. He also added floors to the building and now rents out the 2nd and 3rd floor as well. At the end of the trial, the Court decreed that the land belonged to Ramanna. Ramanna gets the mesne profits from the rent for the 1 stfloor room, but since Muthanna added the improvements at his own cost, the profits from the 2 nd and 3rd floor room rent will not be given to Ramanna. For example, Vandana had wrongfully usurped Poorna’s land 8 years ago and had since done extensive damage to the land, making it uncultivable. At the legal battle that ensued, the Court held that Poorna was to get mesne profits, which included restoring her to her status before Vandana wrongfully took it from her. This means that Vandana must also pay to make the land cultivable again

Representative Suits This kind of suit may be filed by one or more persons on behalf of others having the same interest in the suit. Certain conditions must be fulfilled in cases of representative suits. This includes: 1. 2. 3. 4.

Parties must be numerous They must have the same interest in the suit Permission must be granted or direction must be given by the Court Notice must be given to the parties to be represented in the suit.

This is different from Public Interest Litigation because the requirement of locus standi is more relaxed and it is not necessary for the person to have an interest in the suit if the matter in issue in the suit affects the general public.

Pleadings, Plaint and Written Statement The pleadings usually contain a short statement providing the material facts on which the party relies for his claim or defence. There are a few rules which the pleadings submitted must follow, and they are :1. The Pleadings must only state the facts and not law 2. Facts should be material facts and must not give evidence. The plaint is a document or a set of documents submitted by the plaintiff establishing her cause of action, the maintainability of the suit, and the nature of remedy that she seeks from the court.

Written Statement A written statement is the reply made by the defendant to the plaint filed by the plaintiff. When a plaint is filed, the Court examines the charge and serves a ‘summons’ on the alleged wrongdoer, the defendant. He must respond within a month or 3 months by filing a written statement in his defense. There are some very important rules concerning the manner in which the statement of defence ought to be presented. This includes: 1. All the documents supporting the defence or counterclaim must be produced 2. Any facts that the defendant considers relevant, whether new or old, must be brought up. 3. The denials and assertions must be specific, clear and explicit and must not be vague. 4. The statement must deal with every given fact, and any allegation that is not denied is taken to be admitted. For example, in the case of Bendat v. East India Company, the Court stated that the combined effect of rules 3 & 4 specifically deal with every allegation of fact and deny the same explicitly and to have the point of substance. If the denial is evasive the fact shall be taken to be admitted and no other proof is needed. It must be noted, however, that even if the defendant does not give a written statement the plaintiff will still have to prove the case. It is the Court that needs to be convinced.

Temporary and Permanent Injunction An injunction is like a spoke in the wheel. It aims to maintain the status quo and prevent any possible further injury to the plaintiff, sometimes for the duration of the trial and sometimes as a part of a permanent decree given at the conclusion of the trial. A permanent injunction restrains a party from ever doing a particular act and is granted on merits at the conclusion of the trial. A temporary injunction, on the other hand, is granted only until the disposal of the suit and it cannot be granted against the third party. This applies, for example, when the property in dispute is deteriorating or being damaged; the plaintiff can ask for a temporary injunction on the defendant’s neglect of the goods. And, for instance, if the defendant is likely to sell or transact using the property in dispute, it is necessary to get an injunction on the sale of the property. For example, suppose A and B have entered into a dispute concerning Property X and A takes the matter to Court. Upon receiving the summons, B contrives to sell the property immediately to C who wants to build a hotel on the said property. A cannot move to get a temporary injunction on C for the length of the trial because temporary injunction cannot be enforced on a third party.

Now, it would thwart the judicial process if the Court simply granted any injunction that the plaintiff prays for, so th...