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CIVIL PROCEDURE

CODE

M. S. RAMA RAO B.Sc., M.A., M.L.

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CIVIL PROCEDURE CODE

[with Amendments of 1999 & 2002]

By M. S. RAMA RAO B.Sc.,M.A.,M.L

Text and Reference Books :

Mulla Civil Procedure Code

Sarkar : Code of Civil Procedure

Mulla : Key to Indian Practice C. P. C.

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C ONTENTS

Chapters Introduction & Question Bank

**1. Suits of a Civil Nature 7

2. Res Subjudice & Res Judicata** 1 .Res subjudice (Stay of suit) 10
   2. Res Judicata
   3. Constructive
   4. Res Judicata & estoppel
3. Suits against the Govt. 15 4. Indigent Person
   1. Informa pauperis
   2. Papuper Appeals 5. Preliminary Topics 18
   3. Pleadings a) Plaint b) Written Statements 2.Parties to suit 4 Framing of Suit and procedure 5 Summons – issue and delivery
   4. 1 Recording of evidence 5 a) Suit by Minor Non appearance of parties 6 Setting aside exparte decree .Suit dismissed for default
4. Court appoint of Guardian
5. Death of a party
6. Transfer of suit
7. "Cost follow the event"
8. Rateable distribution
9. Subsistence allowance 12.1 **Out of court settlement
10. Temporary injunction** 39 7. Attachment & Arrest 41
11. Grounds for attachment &..

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Properties exempted 36

2. Arrest & Procedure to arrest 8. Commissions 43 9. Receiver 44 10. Judgment decree and order 45
3. Judgment & decree
4. Order
5. Order & decree 11. General 47
6. Substituted Service
7. Remand
8. Restitution
9. Caveat
10. Representative Suit
11. Next friend
12. Legal Representative
13. Interrogatories 9 Foreign Judgment
14. Public Nuisance
15. Mesne Profits
16. Garnishee
17. Precept
18. Inter-pleader Suit 12. Reference, Review & Revision 55
19. Reference
20. Review
21. Revision. 13.Appeal to Supreme Court 57 14. Miscellaneous 58
22. Abatement of Suit
23. Withdrawal
24. Consent-decree
25. Compensatory Costs
26. Place of suing
27. Parties to Suit

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10 .(1) Discuss the doctrine of Restitution. (2) Write a note on interpleader suit. 11 Explain how appeals are made to the Supreme Court from Civil Proceedings 12 Detail the provisions relating to the place of suing and joinder of parties. 2.Explain Alternate Dispute Resolution [Out of Court Settlement] 3 Explain:(i) Res subjudice (ii) Constructive Res judicata . (iii) Caveat (iv) Remand (v) Next friend (vi) Garnishee (vii) Precept (viii) Consent-decree. 14 Write Short notes on : • (i) Public Nuisance (ii) Mense Profits (iii) Interrogatories (iv) Substituted service (v) Representative suit (vi) Legal Representative (vii) Abatement of suit (viii) Withdrawal of the suit, (ix) Compensatory costs.

15. What is a Plaint? What are its contents? When is it rejected or returned.
16. What defenses can be taken in written Statements.
17. Detail the procedure to be followed for issue and service of summons under C P C 1999.

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CHAPTER 1

SUITS O F A CI VI L NATURE

Ch.1 Suit of a Civil Nature: Civil Suits are divided into : i) Suits of a civil nature and ii) Suits not of a civil nature. The Civil courts have jurisdiction to try suits of a Civil nature. They have no jurisdiction to try suits not of a Civil-nature. This principle is laid down in Sn.9 of C.RC. It says that the Civil Courts have jurisdiction to try all suits of a Civil nature excepting those that are expressly or impliedly barred. The C.P.C. 1976 has added two explanations. i) A suit in which the right to property or to an office is contested, is a suit of a Civil nature, even though such a right is connected with a religious right or with religious ceremony, ii) It is immaterial whether or not any fees had been attached to an office or such an office was attached to a particular place or not, Eg.: i) Suits of Civil nature: Matters relating to Easement, Adoption, Marriage, title to property, to run a customary bull race,, right to burial. ii) Suits not of a civil nature: Suit for claiming dakshina for worship at a temple by the pujari (worshipper), political questions etc. Suits expressly barred: Remedy of a workman against termination order, is barred as the remedy is in the Industrial Disputes Act. Suits dealing with Act of State & public policy are barred. The cardinal rule is therefore that the Civil Courts can entertain only suits of a civil nature. But, vexed problems do come before the courts with mixed rights civil & religious. The courts are guided by certain procedural principles in such circumstances. i) If the main question or the only question is in respect of caste or religious right or ceremonies it is not of a civil nature but, if the religious right is only a subsidiary question, then it is of a civil nature. Further, if

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1. Right of an elected person to act as such
2. Right to vote or stand for election
3. Suit for dissolution of marriage
4. Right of a club or Association member to continue as member
5. Suit for rent contribution, mesne profits, etc.

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CHAPTER 2

RES SUBJUDICE & RES JUDICATA

Ch. 2.1 Res-Subjudice: Sn .10 CP.C. This means 'a right under judicial consideration'. In order to prevent courts of concurrent jurisdiction from simultaneously trying two parallel suits in respect of the same matter in issue, provisions are made in Sn.10 C.P.C. Such a matter is said to be 'Res Subjudice' if the matter previously instituted is pending in another court of competent jurisdiction. What is barred is the second suit instituted. The second court should not proceed with the trial of the suit if: i) The matter in issue is also directly and substantially in issue in a previously instituted suit between the same parties. ii) The previously instituted suit must be (a) in the same court in which the second, suit is brought or (b) in any other court original or appellate. iii) The previously instituted case must be pending in any of the courts as above or Supreme Court competent to grant the relief. E.g.: B residing in Calcutta, has an agent A at Mysore to sell goods. A sues B in Mysore for balance due on account. During the pendency of the suit B institutes a suit against A, in Calcutta. The Calcutta court must not proceed as the matter is re-subjudice in Mysore Court. The suit must be stayed. Exception: If a suit is pending in a Foreign Court, the suit is not barred in India and hence, a suit may be filed. The provisions in Sn 10 are mandatory. It also applies to proceedings under Art 226 of the Constitution. Ch.2.2. Res Judicata : Sn. 11 C.P.C. Res Judicata means 'right decided’. This means 'the matter is adjudicated' and hence, the competent court has already decided the matter. The rule is that the second trial should be barred to prevent multiplicity of proceedings. This rule was laid down in the Duchess of Kingstone's case by Sir William de Gray, Judge. However, several conditions are to be fulfilled to bar the jurisdiction of the second court. Conditions i) The matter directly & substantially in issue in the subsequent

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iv) Relief, if not, granted in earlier suit shall be constructed as rejected. Amendments of C.P.C. 1976. i) To avoid multiplicity of proceedings it is provided that the District court may try the suit or transfer it to a court with competent jurisdiction if the court finds that the case involves a question which a court of limited jurisdiction would be incompetent to try. ii) Before the new C.P.C. under res judicata the successful party was barred in respect of adverse findings of the court. Now, it is not barred, and he may file an appeal against such adverse findings. iii) The doctrine is now extended to independent proceedings and also to execution proceedings. Ch.2-3. Constructive res judicata. According to Sn.ll, Explanation iv: a matter may be actually or constructively in issue. Matters may be directly in issue. These are clear from the pleadings in the plaint and the written statement. However, there may be matters 'might have been' or 'ought to have been' made by the parties (the plaintiff in his averment or the defendant in his written statement). If the parties have failed in the previous suit to bring out these, then under the rule of res judicata, the matter is deemed to have been in issue directly and substantially, and it is also deemed to have been heard and decided. The result is that in such cases, the suit is barred under res Judicata. Eg.: A sues B to recover certain property belonging to the estate of C. The ground was that C & D were brothers; on the death of C, the property came to me survivor D and that D had adopted 'A'. D, died and the property had come to B. A claimed as adopted son. The suit was dismissed as adoption was not proved. Later A sued B alleging that he was a 'bandhu' of C and hence was entitled. This is barred by constructive res Judicata. B ought to have pleaded that he was a 'bandhu' in the earlier suit. Suit dismissed Ch. 2.4. Res judicata and estoppel Distinguished: Though res judicata is sometimes treated as part of the doctrine of estoppel, still they are essentially different. Res judicata Estoppel

1. Res judicata under Sn.ll, is Estoppel as per Sn.115 of based on public policy. It is the Evidence Act is by essentially procedural. Based conduct of parties, or on "Nemo dabet bix vexari" (No agreement or estoppel in

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one should be vexed twice) to pais. put an end to litigous tendency. This is essentially a What is barred in the second suit rule of evidence. It is on the same cause of action based on the rule that if

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CHAPTER 3

SUITS AGAINST GOVT.

Ch.3 Sns 79 & 80 Suits against Government Suits may be (i) General or (ii) of a particular kind. In respect of suits in general it is not necessary to give notice to the defendant before filing a civil suit. However, in respect of suits against the Government, it is essential that notice under Sn. 80 C.P.C. must be served. The object is to provide an opportunity to the Govt. to reconsider the legal position, and to amend or settle the claim without any litigation. The Central Government shall be called the Union of India and the State Government shall be called the State, e.g. state of Karnataka for the purpose of serving notice. Period of notice: Two months Notice is essential, as per sn. In respect of suits, against the Central Government notice must be given to the Secretary to the Government. (If it relates to the rail- way, notice must be given to the General Manager of the railways). In respect of suits against State the cause of action Govern- ment notice must be given to the Secretary to that Govt. or the Collector of the District, as the case may be. The notice must be in writing, state the name and description and place of residence of the plaintiff and also the relief which he claims. In case of a public officer, notice under Sn.80 must be delivered to him or left at this office. Plaint The plaint shall contain a statement stating that notice under Sn.80 has been so delivered or left in the office of the person so concerned. If notice has not been so served, then the suit is to be dismissed. The new C.P.C. Sn.80(2) provides that when a suit to obtain an urgent or immediate relief is to be filed then no notice is necessary if the court so permits. The court in such circumstances shall give the Govt. or the Officer, reasonable opportunity of showing cause. The court also, decides whether there is urgency or not. No suit under Sn.80 shall be dismissed merely on technical grounds of error or defect in the notice. If there is no urgency to grant relief, the Court returns the plaint for presentation after giving notice .It must identify the cause of action and reliefs claimed, in the notice and in the plaint.

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CHAPTER 4

INDIGENT PERSON

Ch. 4.1 Informa Pauperis (Suits by indigent person) Provisions are made in C.P.C. to enable a pauper to file a suit subject to certain conditions. 0.33rr. 1 to 16 provide for this. A person is a pauper when he is not possessed of sufficient means to pay the court fee to institute a suit. Where no such fee is prescribed, the person is a pauper when his entire property is below Rs.1000/- value excluding his necessary wearing apparel and of course the matter of the suit. Suit 0.33 provides for the procedure to file a suit informa pauperis. Every application for leave (permission) to sue informa pauperis must contain the particulars as required in a plaint. Also a schedule of any movable or immovable property with estimated value should be annexed. The plaint should be duly signed and verified. Presentation The application should be presented to the Court by the appli- cant or agent capable of answering material questions put to him by the court. Examination The applicant is examined, if the application is proper and duly presented and if the court thinks fit to examine. The examination relates to the merits of the claim and property of the applicant. Rejection The court rejects the application: i) If it is not framed and presented in the prescribed manner. I ii) If the applicant is newfound to be a pauper. iii) If the applicant has fraudulently disposed of his property within two months next before instituting the suit. iv) If there is no cause of action. v) If there is a transfer of interest in the subject matter of the proposed suit, to some other person. Hearing If there is no reason to reject the application, the court shall fix a day for receiving the evidence by the applicant to prove his pauper- ism. Evidence to disprove pauperism may be allowed. (Notice to the

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CHAPTER 5

PRELIMINARY TOPICS

Ch. 5.1. Pleadings : i) Pleadings are statements in writing drawn up and filed by each party to a case, stating what his contentions will be at the trial, and giving all such details as his opponent to know, in order to prepare his case in answer (P.C. Mogha). There are two pleadings : The 'Plaint' & the 'Written Statement'. The C.P.C. defines pleadings (O.VI R.2) Every pleading shall contain, and contain only a statement in a concise form of the material facts, on which the party pleading relies for his claim or defense, as the case may be, but not the evidence by which they are to be proved. According to Sri. P.C Mogha : Drafting of pleading is an art, it requires a good knowledge of law and the skill of sorting out material facts from the whole bundle of facts and circumstances brought to the knowledge of the Advocate. ii) Essentials : a) Every pleading must state facts and not law : Eg : The deft, is in possession of the mortgaged property and 'is liable to render accounts of income and expenditure'. (There is a statutory duty and hence, need not be pleaded) b) Pleadings should have only material facts The party must plead all material facts on which he intends to rely and must plead material facts only. These are 'facta probenda' (Facts to be proved).

1. In a claim on a Promissory note, it is unnecessary to plead, that money was given because of the honesty of the promisor.
2. In denying, the receipt of any money taken as a loan, it is unnecessary to plead that the defendant is a very rich man and that he had never taken any loan from any body. c) Pleadings should not contain the evidence, but only facts : Eg: An Insurance company was defending the claims made by a party. The term of the policy was that it would become void if the insurer-died by his own hand'. In the written statement the Company had stated that policy

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holder was a moody fellow, that he had bought a pistol from a shop a few days before his death and that he had also written to his wife that he would kill himself. The court held that all this was evidence and hence should not be included in the pleadings (Written Statement). It was sufficient to say that "the policy holder died by his own hand". d) Facts must be pleaded with simplicity, brevity and precision. This rule is more easily said than done. As P.C. Mogha, points out, precision and brevity can be attained by experience and careful observation.

1. Simple words and short sentences should be used. Facts must be stated plainly and with precision. Use of pronouns must be avoided. The said defendant or the said plaintiff may be used often to avoid ambiguity. Similarly 'the said deed', the First-schedule property' etc may be used.
2. Dates, sums, numbers must be expressed in figures.
3. Chronological order must be followed.
4. Legal effects of documents must be briefly stated, without reproducing the document or quoting from it.
5. Intention, malice, knowledge etc., must be stated as a fact without setting out the circumstances.
6. The pleading should be signed by the parties and his advocates. It shall be verified at the foot to testify the sanctity of the fact stated.

Ch. 5.1.1. Plaint (0.7, R.1) CP.C. The plaint is the foundation of the Civil Case. Before drafting it 4 essentials are to be noted 1) Period of limitation (ii) Pecuniary or territorial jurisdiction of the court (iii) Statutory formalities before filing a suit (iv) Impleading all necessary parties. Contents :

1. Headings : The name of the Court (Space for fixing Court - fee - stamps)
2. Title : Description of Plaintiff and Defendant
3. Body : States the material facts divided into paragraphs and numbered consecutively.
4. Relief - Claims or Amounts sued for
5. Valuation, court fee - paid
6. Jurisdiction of court, within period of limitation, etc..