Last updated: December 6th, 2018 10:03 PM

Code of Civil Procedure

The Black’s Law Dictionary defines a Civil Procedure as “A body of law concerned with the methods, procedures and practices used in civil litigation.” The Code of Civil Procedure is established in view of regulating the procedures followed by the civil courts. It is intended to formulate the appropriate jurisdictions and indicate the mode of implementing the same. This article is a detailed outlook on the various facets of the concept.

Objective

The Code of Civil Procedure seeks to consolidate and amend the regulations pertaining to the procedure of the courts of Civil Jurisdiction. The Code doesn’t affect any special or local laws and doesn’t supersede any special jurisdiction, power or a special form of procedure prescribed by or under any of the prevailing laws.

Hierarchy of Civil Courts

The laws pertaining to the Civil Procedure Code provides that with respect to this provision, the District Court is subordinate to the High Court and every Civil Court is graded inferior to that of a District Court. Courts of small causes are subordinate to the High Court and District Court. Hierarchy of Courts

Jurisdiction of Civil Courts

Jurisdictions, as people in legal circles would be aware of, is the authority by which a court determines matters that are brought before it for adjudication. The limit of such authority is imposed by a charter, statue or a commission. In the absence of such defined limits, the jurisdiction is unlimited. There are four kinds of limitations on the jurisdiction of a civil court, which is elucidated below:

Jurisdiction Over the Subject Matter

The jurisdiction to try relevant subject matters by certain courts are limited by the statue.

Jurisdiction Over Territory

Every court is vested with a territorial limit as allotted by the Government, thereby enabling it to try matters falling within its jurisdictional purview.

Jurisdiction Over Persons

People of all nationalities are under the jurisdiction of the Civil Courts of the country, with the exception of a foreign state.

Pecuniary Jurisdiction

The option of pecuniary jurisdiction empowers the court to hear matters based on the valuation of the case. The rules pertaining to this provision varies in accordance with the different states.

Jurisdiction of Civil Courts

Jurisdictions, as people in legal circles would be aware of, is the authority by which a court determines matters that are brought before it for adjudication. The limit of such authority is imposed by a charter, statue or a commission. In the absence of such defined limits, the jurisdiction is unlimited. There are four kinds of limitations on the jurisdiction of a civil court, which is elucidated below:

Jurisdiction Over the Subject Matter

The jurisdiction to try relevant subject matters by certain courts are limited by a statue.

Jurisdiction Over Territory

Every court is vested with a territorial limit as allotted by the Government, thereby enabling it to try matters falling within its jurisdictional purview.

Jurisdiction Over Persons

People of all nationalities are under the jurisdiction of the Civil Courts of the country, with the exception of a foreign state.

Pecuniary Jurisdiction

The option of pecuniary jurisdiction empowers the court to hear matters based on the valuation of the case. The rules pertaining to this provision varies in accordance with the different states.

Other Jurisdictions

• Original Jurisdiction –where a court tries and determines the suit before filing it.
• Appellate Jurisdiction –where a court hears appeals against the decisions or decrees passed by the subordinate courts.
• Original and appellate jurisdiction – where the Supreme Court, the High Courts and the District Courts have both original and appellate jurisdiction in various matters.

Hearing of Civil Suits

The laws pertaining to Civil Procedure Code entitles the Courts to try all suits of a civil nature, except the ones wherein the cognizance is either expressly or impliedly barred. A suit is expressly barred if a legislation expressly states so and is impliedly barred if a statue creates new rights or liability and prescribes a particular tribunal or forum for its assertion. Rights created by a statue and a special tribunal or forum is provided for its assertion and enforcement, and the ordinary Civil Court does not hold jurisdictional rights for such disputes.

Stay of Suites

Section 10 of the Code of Criminal Procedure prohibits any Court from processing the trial of any suit wherein the subject matter is directly and substantially proportional to a previously instituted suit between the same parties if such a case is pending in any of the Indian Courts. However, if the suit is under pendency in a foreign court, the Courts in India may go on and try a suit under the same cause of action.

Conditions for Stay of Suites

• Two suits are initiated at different times.
• The matter in issue in the later suit should be directly and substantially proportional to the earlier suit.
• The suit should be identical between the same parties.
• The earlier suit is still under process in any of the Indian courts.

Institution of Suits

The following property-related suits must be instituted in the Civil Court of the respective jurisdiction:

• Recovery of immovable property with or without rent or profits.
• Partition of immovable property.
• Foreclosure of sale or redemption in the event of a mortgage or charge upon immovable property.
• Compensation for wrong to immovable property.
• For the recovery of movable property actually distrait or attachment.

Uncertainty in Jurisdictional Limits

In case of any uncertainty in the jurisdictional powers of two or more courts with respect to a location of an immovable property, any of the courts may proceed to entertain the suit by recording a statement that substantiates the ground for such alleged uncertainty.

Wrong Done to the Person or Movable Property

If a suit is made for compensating the wrong done to a person or movable property within the local confines of the jurisdiction of one court; and the defendant resides, pursues business or personally works for gain within the local confines of the jurisdiction of another court, the suit may be instituted at the option of the plaintiff in either of the courts. Plaintiff: A person who files a lawful case against another.

Detection, Preservation or Inspection of Subject Matter

The Court is empowered to make an order for the detention, preservation or inspection of any property which is the subject-matter of the particular suit. For this purpose, it may:

• Authorize any person to enter any land or building possessed by any other party to such suit.
• Authorize the acceptance of any samples or the conduct of an observation or experiment which may be essential or expedient for obtaining the complete information or evidence.

The Defendants Responsibility

After the institution of a suit, the Court summons the defendant to make an appearance before the court so as to answer the claim and file a written statement of defense (if required) within thirty days from the date of issue of summons. Any delays in doing so could be condoned up to 90 days for reasons to be recorded in writing. The defendant may either choose to appear in person or by a duly instructed pleader (who can be accompanied by another person) to meet the above-mentioned legal obligations. On the other hand, the defendant cannot exercise the latter option if the court decides on making an order for his/her personal appearance. The Court is not entitled to dismiss the suit in default if it hasn’t fixed any dates for the appearance.

Particulars of the Statement

Apart from the grounds of defense, the particulars of set-off must be provided in a written statement including any rights of counterclaim. A plea of set-off is made if the defendant needs to recover any sum of money from the plaintiff.

Consequences of Non-Appearance

The following would be the consequences of non-appearance of either of the parties to the suit. The consequences vary with the scenarios:

• If both the parties fail to make an appearance when the suit is filed, the Court will decree the dismissal of the suit.
• If the defendant is absent despite the issue of summons, the court may proceed ex-parte.
• If the defendant reports that he/she hasn’t received any summons, the Court would order the issuance of the second summons.
• If the summon is not served on the defendant without according him/her with the required time to appear, the Plaintiff would be forced to bear the cost of adjournment.
• If the hearing of the suit is adjourned ex-parte and the defendant makes an appearance within such hearing and assigns a good cause for the previous non-appearance, the defendant would be heard in answer to the suit on such terms as to cost or otherwise.

Ex-parte – derived from a Latin word, the term Ex-parte refers to “for one party.” In this context, ex-parte is the decision of a court which favours a single party.

Motion Against Ex-Parte

A Defendant is vested with the following options if an ex-parte decree is passed against him:

• Filing an appeal against the ex-parte decree under Section 96 of the Civil Procedure Code.
• Filing an application for review of the judgement.
• Filing an application for setting aside an ex-parte decree.
• Filing a suit for setting aside an ex-parte decree obtained by fraud. No suit shall be filed for non-service of summons.

Discovery by Interrogations

Parties to a suit, by leave of the court, are entitled to deliver written interrogations for the examination of the opposite parties. However, the provision is not extended in the following contexts:

• For discovering facts which are exclusively connected with the evidence of the adversary’s case or title.
• For deriving any confidential communication between the adversary and the council.
• For obtaining disclosures that are detrimental to public interests.
• Interrogatories of a ‘fishing’ nature.

Fishing nature: Refers to the interrogations which aren’t related to some definite or existing state of circumstances but are resorted to in a speculative manner.

Discovery by Documents

The documents which are linked to the matters in issue in the possession or power of an adversary can be inspected through the discovery of documents. For this purpose, any party may apply to the Court for an order demanding the other party to make a discovery on oath the documents which are possessed by the latter. The party can defy the discretion of production of documents on the basis of the following grounds:

• If it discloses a party’s evidence.
• If it enjoys a legal professional privilege.
• If it is detrimental to the interest of the public.
• If the party isn’t in possession of the document.

Issues

Issues under this provision occur when a material proposition of fact or law is affirmed by one party and denied by the other. It is classified into issues of fact and issues of law. It is incumbent on the court to frame the relevant issues for determining the case at the initial hearing of the suit after reading the plant and the mission statement and after ascertaining and examining the parties (if necessary) with respect to the material propositions of law and facts. If the Court considers that the suit can be disposed of solely on the issues of law, it shall try such issues first and delay the framing of other issues until after the determination of the issue. Issues must be framed on the material proportions of fact or law which could be gathered from the following:

• Allegations made in the plaint and written statement.
• Allegations made by the parties/persons present on behalf of their pleaders on oath.
• Allegations in response to the interrogatories.
• Contents of documents produced by the parties.
• Statements made by parties or their representatives when examined.
• By examining a witness or any documents ordered to be produced.

Affidavit

An Affidavit is a written statement of the deponent on oath affirmed before any Court, magistrate or an Oath Commissioner appointed by the Court or before the Notary Public. An Affidavit can be filed under the following circumstances:

• The Court has, either on its own motion or on an application of any party, ordered for the validation of facts by affidavits.
• The Court has ordered the affidavit of any witness to be recited at the hearing, barring a few occasions.
• The evidence of a witness could be given on affidavit, but the court may discreet the deponent to attend the court for cross-examination unless he/she is exempted from personal appearance.

Judgment Norms

The Court, after hearing the case, may pronounce its judgement in an open court either at the conclusion of the hearing or on some future dates as determined by the court. If the judgments aren’t made on the date of hearing, the Court must ensure the pronouncement of the same within 30 days of the date of conclusion of the original hearing. The judgement so issued must be accompanied by the date and signature of the judge. Once signed, it cannot be modified except as provided under Section 152 or on review.

Suits by or Against Minors

A minor can approach the Court for a suit if he/she is represented by a person who is known as the next friend of the minor. The latter should have attained majority and must be of a sound mind. If a suit is instituted by the next friend, the defendant may make a plea for the plaint to be taken off the file, with costs to be borne by the pleader or another person by whom it was presented. On the other hand, if a suit is filed against a minor in the Court, the jurisdictional body will appoint a proper person as the guardian for the suit of such minor. A person appointed for this purpose must ceaselessly commit to the cause throughout the proceedings of the suit, except if the appointment is terminated by retirement or death. Also read about: The Criminal Procedure Code: Criminal Courts