CS EXECUTIVE CS NAINA JINDAL

Lesson23

Civil Procedure Code, 1908

Introduction Civil Procedure Code is the general law relating to civil suits.
The Code consists of two divisions. The first division, containing 158 Section, is
the substantive law i.e., the law which determines the rights and obligation of the
parties to a dispute. The second division, containing 51 Orders, each of which
contains several Rules, is the procedural law i.e., the law which prescribes the
procedure for the enforcement of rights and obligation of the parties to the
disputes.
The first division, containing substantive law, can be amended only be the
Parliament whereas the second division, containing procedural law, can be
amended only by the High Courts.
Concept of The term „decree‟ has been defined u/s 2(2) of Civil Procedure Code, 1908. It
Decree means the formal expression of an adjudication which conclusively determines
the rights of the parties with regard to all or any of the matter in controversy in
the suit.
A decree may be either preliminary or final. A decree is preliminary when a
further procedure has to be taken before the suit can be completely disposed off.
It is final when such adjudication completely disposes of the suit.
It may be noted that the term „decree‟ doesn‟t include the following:
 Any adjudication from which an appeal lies as an appeal from an order.
Any order or decision of the dismissal of the suit for default.
Concept of The term „Order‟ has been defined u/s 2 (14) of the Civil Procedure Code. It
Order means the formal expression of any decision of the Civil Court which is not a
decree.
Concept of The term judgment has bee defined u/s 2 (9) of the Civil Procedure Code. It
Judgement means the statement given by the Judge on the grounds of a Decree or Order.
Thus a judgment sets out the ground and the reason for the Judge to have
arrived at the decision.
Difference  A Decree adjudicates and conclusively determines the rights of the
between parties, whereas an Order doesn‟t do so.
Decree and  A Decree is always appealable unless prohibited by the law, whereas an
Order Order is not appealable unless permitted by the law.
 Law may provide even for second appeal in case of Decree, whereas
second appeal is not possible in the case of an Order.
A Decree may be final or preliminary whereas an Order can‟t be preliminary and
it is always final.
Appearance When a suit is filed by the plaintiff, a summon is issued to the defendant to
of Parties appear on a particular date fixed by the court. The defendant is further directed
[Order 9] through the summon to file the written statement (reply) to the suit filed by a
plaintiff.
On the date of hearing by the court, both the plaintiffs as well as the defendant
are required to present themselves before the court. If the plaintiff doesn‟t
appear on the date of the hearing, then the court may either dismiss the suit for
default o decide it ex – parte on the merit of the case. If the defendant doesn‟t
appear on the date of hearing, the court may either adjourn the hearing or
decide it ex – parte on the merits of the case.
The ex – parte order or the order relating to the dismissal of the suit can be set
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aside provided the plaintiff or the defendant, as the case may be, gives a
sufficient reason for his non-appearance on the date of hearing.
Place of Every suit shall be instituted in the court of lowest grade.
Filing of
Suit
[Section 15]
[Section 16] Suits regarding immovable property are instituted in the court within whose
jurisdiction, the Immovable property is situated.
[Section 17] Where immovable property is situated in the jurisdiction of different courts, the
suit may be filed in any of such courts.
[Section 18] Where there is apparent uncertainty regarding the jurisdiction of the court, the
suit may be filed in any of such courts.
[Section 19] Suit with regards to the compensation for wrongs done to the persons or suit
pertaining to movable property can be filed in the court having the jurisdiction
over the place where the wrong was committed or where the defendant resides.
[Section 20]  Where above section i.e., Section 16, 17, 18 and 19 are not applicable,
such suits may be filed in the court having jurisdiction over the place
where the defendant resides or where the cause of action has arisen.
 For instance, A resides at Shimla, B at Calcutta and C at Delhi. A, B and
C being together at Varanasi; B and C make a joint promissory note
payable on demand , and deliver it to A. A may sue B and C at Varanasi,
where cause of action arose. He may also sue them at Calcutta where B
resides or at Delhi where C resides, but in each cases, if the non-
resident defendant objects, the suit can‟t be proceeded without the leave
of the Court.
 Section 20 further provides that in the case of a Company, the suit may
be filed at any of the following places:
 Place where the Principal office or the Head office of the Company is
situated.
 Place where the cause of action has arisen, subject to the condition that
the company has a Branch office at such place.
Important In the leading case of Hakam Singh v. Gammon (India) Limited, the Supreme
Point Court held that the parties, by an agreement, can not confer jurisdiction on a
Court which it doesn‟t possess under the law. However, the parties can agree
that only a particular Court will try a suit, where the two courts have jurisdiction
to try a suit.
Doctrine of Section 10 of the Civil Procedure Code provides the doctrine of res sub-judice or
Res Sub- the rule with regard to stay of suit where things are under consideration by court.
Judice It provides that no court shall proceed with the trial of any suit in which the mater
[Section 10] in issue is also directly and substantially in issue in a previously instituting suit
between the same parties where such suit is pending in the same or any other
court in India. However, the pendency of a Suit in Foreign Court doesn‟t bat the
courts in India from trying a suit founded on the same cause of action.
For the application of the doctrine of res sub-judice, the following conditions
must be satisfied:
 A previously instituted suit is pending in a Court;
 The matter in issue in second suit is also directly and substantially the
same as in the previous suit;
 The previously instituted suit is still pending in same court or any other
court in India;
 The parties in two suits are same; and
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 The court in which previous suit is pending has the jurisdiction to try such
suit.

 Section 10 is enacted to prevent courts of concurrent jurisdiction from

simultaneously trying two parallel suits in respect of same matter in
issue.
 A suit was instituted by the plaintiff company alleging infringement by the
defendant company by using trade name o medicine and selling the
same in wrapper and carton of identical design with same color
combination etc. as that of plaintiff company.
 A subsequent suit was instituted in different court by the defendant
company against the plaintiff company with the same allegation. The
Court held that subsequent suit should be stayed as simultaneous trial of
the suits in different courts might result in conflicting decisions as issue
involved in two suits was totally identical.
[Wings Pharmaceuticals v. Swan Pharmaceuticals]
Doctrine of  The doctrine of res-judicata or the Rule of conclusiveness of judgments
Res- is explained in Section 11 of the Civil Procedure Code. It provides that
Judicata once the matter is finally decided by a competent court, no party can be
[Section 11] permitted to re-open it in subsequent litigation. The principle underlines
that no one shall be vexed twice for the same cause. It prevents two
different decrees on he same subject.
To apply this doctrine, the following condition must be fulfilled:
 The matters in both the former and the latter suits should be directly and
substantially the same.
 The former suit should have been decided;
 parties in two suit are same; and
 The court which determines the earlier suit must be competent to decide
it.

 The application of this doctrine is based on the public policy so that the
patties would not be harassed again and again on the same issue
already decided. The court‟s time will also not get vested on matter
already decided.
 It may be noted the Sect. 11 will not be applicable in those
circumstances where the first suit have been dismissed on technical
ground and has not been decided on merit of the case.
Concept of  Order 8, Rule 6 deals with set off which is a reciprocal acquittal of debts
Set off between the plaintiff and he defendant. It has the effect of extinguishing
the plaintiff‟s climbs to the extent of the amount claimed by the
defendant.

Where in a suit for the recovery of money, the defendant‟s claims to set off
against the plaintiff‟s demand, any ascertained sum of money legally
recoverable by him from the plaintiff, the defendant may present a written
statement containing the particulars of the debt sought to be set off.
Concept of This is not a concept of CPC deals with the concept of equitable set off. Where
Equitable the defendant claims set off in respect of an unascertained sum of money,
Set off where the claim arises of the same transaction, and then such set off is known
as equitable set off. Generally, the suits emerge from cross demands in the
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same transaction and this doctrine is intended to save the defendant from
having to take recourse to a separate cross suit.
Concept of Order 8, Rule 6A of Civil Procedure Code deals with the Rule of Counter claim.
counter This Rule permits the defendant to set up the claim as a counter to the claim of
claim the plaintiff, which arose between the parties. This rule is applicable in the
interest of public policy so as to minimize litigation between the parties which
could have been filed by the defendant separately.
Reference A reference can be made by a lower court to the higher court where the question
[Section of law is involved in the suit and the lower court has a reasonable doubt about
113] such question of law. The application for reference can be made by any of the
parties to the suit. Further the lower court may also, on its own, refer the mater
to the higher court.
The purpose of Sec. 113 is to enable the sub-ordinate courts to obtain, in non-
appealable cases, the opinion of High Court on questions of law for doing justice
to the parties.
Review Section 114 of the Civil Procedure Code provides for the review of the case i.e.,
[Section the reconsideration of the decision given by a court.
114] The application for review can be filed where no appeal could be preferred
against the order of the court and also in those cases where the person
concerned doesn‟t want o prefer such an appeal, though such an appeal is
maintainable.
It may be noted that application to review has to be filled before the same court
which has given the decision. It may further be noted that a court can exercise
the power of review only if it is specifically authorized to exercise such power
under some law.
Revision A petition of revision can be made before the High Court when the subordinate
[Section Court:
115]  Exercises a jurisdiction not vested in it by law;
 Fails to exercise jurisdiction vested in it by law or
Acted in the exercise of jurisdiction with material irregularity
Appeals Appeal is an application by which a party requests an appellate court to set
aside or modify the decision of the subordinate court.
The Civil Procedure Code provides for following four kinds of appeals:
Appeals Appeals from original decrees may be preferred from any decree, passed by any
from court exercising original jurisdiction, to the court authorized the hear appeals
original from the decision of such courts on point of law as well as on points of facts. In
decrees this case, there is always a right to appeal, until unless there is a specific
prohibition to such a right.
Second Second appeals lies to the High Court from any decree passed in appeal by any
appeals court subordinate to the High Court, if the High Court is satisfied that the case
involves a substantial question of law.
Appeals In general, appeals against the order are not allowed. However, if it is
against the specifically permitted under the provisions of law, appeal can be filed against the
orders order on ground of defects or irregularity of law.
Appeal to An Appeal can be filed to the Supreme Court in respect of those decrees which
Supreme have been passed by High Court in their original jurisdiction.
Courts
Injunction An injunction is a judicial process by which one, that has invaded or threatened
to invade the rights of another, is restrained form continuing or commencing
such wrongful acts. This is a preventive relief granted as discretion of court.
An Injunction may be a temporary or a perpetual Injunction. Temporary
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Injunction is regulated by Order 39 of Civil Procedure Code whereas Perpetual

Injunction is regulated by Section 38 of Specific Relief Act, 1963.
A temporary injunction is such as is to continue until a specified time or until the
further orders of the court. It may be granted at any stage of the suit.
A perpetual injunction can only be granted by a decree made under hearing and
upon the merits of the case. In case of a perpetual injunction the defendant is
permanently restrained from doing any act which is against the right of the
plaintiff.
Summary Order 37 of Civil Procedure Code provides for a summary procedure in respect
Procedure of certain suits.
The essence of the summary suit is that the defendant is not, as in an ordinary
suit entitled to
defend the suit. The object underlying the summary procedure is to
prevent unreasonable
obstructions by defendant who has no defence.
Summary suit can be filed in the following cases:
 Suits relating to Promissory Notes, Bill of Exchange Cheques,
Hundis.
 Suit in which the plaintiff seeks only to recover a debt.
In summary suit, the defendant is not entitled to defend the suit until he enters
appearance and makes an application for leave to defend the suit, within 10
days from the date of summons leave to defend may be granted to him
unconditionally or upon such terms and conditions as the courts thinks fit.
However, leave to defend the suit shall not b granted in the following cases:
 Where the defence of the defendant is frivolous or vexations.
 Where part of the amount claimed by the plaintiff and accepted by the
defendant has not been deposited by the defendant in the court.
Suits by or Order 32 of Civil Procedure Code deals with the provision relating to suits by or
against against minor. The basic rule as regard suits by or against minor is that the law
minor protects minors against their immaturity and inexperience and also against the
matured and experienced person. Every suit by a minor shall be instituted in his
name by a person who in such suit shall be
Called the next friend of the minor. Where a suit is instituted by minor without the
next friend, then the defendant may apply for dismissal of the suit. Where the
defendant is a minor, the court shall appoint a proper person to be a guardian for
the suit of such minor.
A minor plaintiff, on attaining majority, shall elect whether he will or will not
proceed with the suit. Where he elects to proceed with the suit, he shall apply for
an order discharging the next friend and for leave to proceed in his own name.
Where he elects to abundant the suit, he shall apply for an order to dismiss the
suit, on repayment of the costs incurred by the defendant.
Section 12 Section 12 of Civil Procedure Code provides that abatement of suit or its
dismissal, for not bringing the legal representative on record, bars further suit.