Introduction to CPC 1908 CIVIL PROCEDURE CODE 1908

Introduction to CPC 1908

CIVIL PROCEDURE CODE, 1908 • Scheme of the Act: - It consolidates the law relating to procedure of Civil Courts. • It has 158 sections in the first part (the main part) and 51 ORDERS in the second part containing Rules and 8 appendices. • The Sections contain the fundamental principles, and thus create jurisdiction hence a substantive law whereas the Rules deal with the detailed procedure as to how the jurisdiction should be exercised.

Jurisdiction of the Civil Courts q Jurisdiction is the basic authority of the Court by which it adjudicates the disputes brought before it. q jurisdiction is of various types such as 1. Pecuniary 2. Territorial 3. of the given subject matter q. Basic Structure of Civil Courts 1 Civil Judge (Junior Dn. ) 2. Civil Judge (Senior Dn. ) 3. District Judge 4. High Court 5. Supreme Court q There are some other designated courts created both under the CPC and outside the Code, Small causes courts are created under CPC. Other courts are created by various special Acts through which the jurisdiction of the civil courts relating to some specified subject matters becomes barred and these adjudicatory bodies acquire jurisdiction e. g. Family Courts, Labour Courts and Tribunals, Administrative Tribunals, Electricity Tribunals, MACT. q All Civil claims and proceedings are required to be filed in the lowest competent courts.

S. 11: Res - Judicata- A suit or an issue decided by a Competent Court cannot be reopened and re-adjudicated in a subsequent suit between the same parties or parties claiming through them, in another Court or the same Court. The matter should be directly and substantially issue, in the former suit,

o. Suits to be filed: ● (S. 15)- in the Court of lowest grade competent to try. ● (S. 16)- if relating to immovable property, where the property is situated, or where the defendant resides or works for gain. If the property is situated within jurisdiction of different Courts, in any of those Courts, or Where cause of action / part arises.

Parties to Suits • Plaintiff is the person who files the suit seeking relief against some person or set of persons. • Defendant or defendants are the persons against when the suit is filed and relief sought. • In some cases certain parties against whom no actual relief is claimed are shown as “Proforma defendants” since those parties are otherwise necessary to be impleaded or joined in the proceeding.

Institution of Suits • Filed by presentation of plaint in Court. • Plaint to contain all facts alleged by plaintiff and the relief prayed for by him. • Plaint is to be filed along with the prescribed Court Fees, wherever applicable. • After preliminary scrutiny, the Court orders issuance of summons upon the defendant, if the plaint is in order.

Issuance & Services of Summons • Additional copies of the plaint are filed by the plaintiff in Court. • Additional copied are served upon the defendant by various means such as through Court staff personally, by Registered post, through Courier or by E-mail. • Purpose of service is to inform the defendants about the suit being filed, and the allegations against them. • Some times summons are served by pasting or publication in the newspaper when defendant is not available. • Refusal to accept service amounts to good service. • Service of summons is the stage when it becomes the defendants responsibility to appear and contest the case.

Appearance & Non- Appearance of parties • After service of summons the defendant is expected to appear and file his written statement on the fixed date. If defendant appears and contests, the case proceed according to Law. • If defendant dose not contest, the case is heard exparte. • If plaintiff himself does not appear, the case is dismissed for default. • Order of exparte hearing or dismissal for default are revocable.

Inspection and Production of documents • In a contested case the documentary evidence of both sides is vital. • Either side can have the documents relied upon by the other side to be produced in Court. • He can then inspect those documents and if necessary, challenge the same in Court.

Affidavits • Affidavits are the statements given by the parties on oath before authorized persons in or outside the Court. • Such persons are generally lawyers em- powered by the State and Central Government to attest the affidavits. They are known as “Oath Commissioners” or “Notaries”. • Affidavits can also be sworn by the parties in the Court to support the statements made by them in their pleadings and other applications.

Temporary injunctions & Interlocutory Orders • During pendancy of suit a Civil Court is competent to grant a Temporary injunction or pass such interlocutory order as is necessary for the ends of justice. • The temporary injunction is an order by which any or all parties may be restrained from doing any act or directed to do any act, normally during pendancy of the suit. • Normally an injunction is granted after notifying the other party in the suit, but in an emergency it may be granted without notice or ex parte. • For disobedience of an other of injunction, guilty party may be detained in Civil prison.

Withdrawal & Compromise of Suits • A plaintiff is at liberty to withdraw his suit against any defendant(s) or give up his claim. • Some times suits can be withdrawn with liberty to file a fresh one if there is any formal defect which otherwise cannot be rectified while it remains pending. • A suit can also be withdrawn on compromise between the parties if the terms of compromise are otherwise not unlawful. • The compromise decree can however not be challenged later own by either party on the ground of its being illegal.

First & Second Appeal • Appeal is the proceeding which a losing party normally files in The Superior Court after the suit is decided against him by the Trial Court. • Original decrees and certain orders can be appealed against. • A compromise decree between the same parties can however not be appealed against. • In first appeal the findings of the Trial Court both on points of law and facts can be challenged. • However in the second appeal (before the High Court) only points of law can be challenged.

Reference, Review & Revision • When any substantive question of law arises, or where the legality or constutionalty of any law or enactment is doubtful, a subordinate court can refer the matter for consideration of the High Court. It is known as “Reference”. • Similarly the trial Court can “Review” the propriety of its own judgment if any party applies for doing so within 30 days of the original judgment. • Revision: - Any party can approach the Superior Court (generally High Court) against an order of the Lower Court on the ground of its Jurisdictional irregularity within 90 days. • The Superior Court in deciding such application exercises its power of “Revision”.

Execution • Execution means implementation or forced compliance of any decree or judgment by the original trial Court. • The party in whose favour the order was passed applies for execution if the other party dose not comply with the order or decree passed again him, within the prescribed time. • In exercise its power of execution, the Court can adopt various means. • Some such means are : 1. 2. 3. 4. Taking forcible possession of immovable property ; Attachment of movable property; Attachment of money such as salaries, bank accounts etc. ; Detention of the defaulting party in civil prison etc. ;