civil procedure code,1908civil procedure code,1908

Laws can be divided into two groups – substantive and adjective or procedural law. While the former determines rights and liabilities of the parties, the latter prescribes the practice, procedure and machinery for the enforcement of these rights and liabilities. The Indian Contract Act, The Indian Penal Code, The Industrial Disputes Act are instances of substantive law; The Indian Evidence Act, Criminal Procedure Code, Civil Procedure Code, The Limitation Act are instances of procedural law.

Procedural law is an adjunct or an accessory to substantive law. The two branches are complementary to each other. The rules of procedure are intended to be a handmaid to the administration of justice and they must, therefore, be construed liberally and in such manner as to render the enforcement of substantive rights effective; so far as possible, no proceeding in a court of law should be allowed to be defeated on mere technicalities. A “hyper-technical view” should be avoided by the court.

It is procedural law which puts life into substantive law by providing a remedy and implements the well-known maxim ubi jus ibi remedium (‘where there is a right, there is a remedy’) (Ghanshyam Dass v Dominion of India AIR 1984 SC 1004). A party cannot be refused relief merely because of some mistake, negligence, inadvertence or even infraction of the rules of procedure (Jai Ram Manohar v National Building Material Supply AIR 1969 SC 1267)

A procedural law is always in aid of justice, not in contradiction or to defeat the very object which is sought to be achieved. A procedural law is always subservient to the substantive law. Nothing can be given by a procedural law what is not sought to be given by a substantive law and nothing can be taken away by the procedural law what is given by the subjective law (Saiyad Mohd. Bakar v Abdulhabib Hasan AIR 1998 SC 1624). “Procedural law is not to be a tyrant but a servant, not an obstruction but an aid to justice” (State of Punjab v Shamlal Murari AIR 1976 SC 1177).

        The code of civil procedure is an adjective law. It neither creates nor takes away any right; it is intended to regulate the procedure to be followed by the Civil Courts. The Code is designed to facilitate justice and further its end and is not a penal enactment for the punishments and penalties, not a thing designed to trip up people (Sangram Singh v Election Tribunal AIR 1955 SC 425).

The Code of Civil Procedure, 1908

The Code of Civil Procedure, 1908 came into force with effect from Jan. 1. 1909; while the Amendment Act, 1976 came into force with effect from Feb. 1, 1977. The Amendment Acts, 1999 and 2002, came into force from July 1, 2002.

The Code extends to the whole of India, except to the State of Jammu and Kashmir, and the State of Nagaland and the Tribal Areas. The Code also extends to Scheduled Areas (Sec. 1). The Code also does not exempt foreigners from its operation.

According to the preamble the object of the present Code is to consolidate and amend laws relating to the procedure of the courts of civil judicature. “It is a consolidated Code collecting all the laws relating to the procedure to be adopted by the civil courts and to bring it down to date in order that it may form a useful Code.” The Code consolidates and amends the laws relating to the procedure of the Courts of Civil Judicature. No doubt it also deals with certain substantive rights. But its essential object is to consolidate the law relating to civil procedure (Prem Lala Nahata v Chandi Prasad Sikaria AIR 2007 SC 1247).

The Code is exhaustive on the matters specifically dealt with by it. However, it is not exhaustive on the points not specifically dealt with therein (Manohar Lal v Seth Hiralal AIR 1962 SC 527). The legislature is incapable of contemplating all the possible circumstances which may arise in future litigation and consequently for providing procedure for them. With regard to those matters, the court has inherent power’ to act according to the principles of justice, equity and good conscience. The Code is not retrospective in operation.

As regards the scheme of the Code, it consists of two parts – body of the Code (158 Sections), and the Rules (51 Orders in Schedule 1). The former contains provisions of a substantive nature, which lay down the general principles and create jurisdiction, while the latter contains provisions which relate to procedure and indicate the mode in which jurisdiction created by the body of the Code has to be exercised. If the Rules are inconsistent with the Sections, the latter will prevail. The body of the Code containing Sections is fundamental and cannot be amended except by the legislature. while the Rules can be amended by the High Courts.

IMPORTANT DEFINITIONS

Sec. 2 is the definition clause in the Civil Procedure Code, 1908 which provides for the definition of certain terms subject to the condition that “unless there is anything repugnant in the subject or context. Sec. 2 (1) lays down that Code includes Rules

Decree [Sec. 2 (2)]

Sec. 2 (2) of the Code defines the term decree’ in the following words: Decree means the formal expression of an adjudication which, as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final.

Essential Elements of a Decree

  1. In order that a decision of a court may be a ‘decree’, the following elements must be present-
  2. There must be adjudication, and a formal expression of it.
  3. Such adjudication must have been given in a suit.
  4. It must have determined the rights of the parties with regard to all or any of the matters in controversy in the suit
  5. Such determination must be of a conclusive nature
  6. Adjudication-It implies a judicial determination of the matter in dispute Thus, a of appearance of parties or dismissing an appeal for want of prosecution cannot be termed as decree in as much as they do not judicially deal with the matter in dispute.

There must be a formal expression of adjudication. All the requirements of form must be complied with. Thus, if a decree is not formally drawn up in terms of the judgment, no appeal lies from that judgment. But a mis-description of a decision as an order which amounts to a decree does not make it less than a decree.

  • Suit: The adjudication must have been given in a suit. Every suit is commenced by filing a plaint in a civil court. There cannot be a decree unless the suit has been filed. However, under certain enactments, applications are treated as suits e.g. proceedings under the Indian Succession Act, the Hindu Marriage Act, the Arbitration Act (application to file an agreement to refer to arbitration).
  • Rights of parties in controversy: The word ‘right’ means substantive rights of the parties and not merely procedural rights. Thus, rights of the parties inter se relating to status, limitation, jurisdiction, frame of suit, etc. which, if decided, must have a general effect upon the proceedings in the suit, are substantive rights. An order for dismissal of a suit for default of appearance, or a mere right to sue, or a decision on an application by a person to be added as a party to the suit, are not decrees as they do not determine the rights of the parties.

The term ‘parties’ means parties to the suit (i.e. the plaintiff and the defendant), and not any other party such as stranger to the suit filing an application.

          The expression ‘matters in controversy’ refers to the subject-matter of the suit with reference to which some relief is sought. It should not be understood as relating solely to the merits of the case. It would cover any question relating to the character and status of a party suing, to the jurisdiction of the court, to the maintainability of a suit and to other preliminary matters which necessitate an adjudication before a suit is enquired into. However, the proceedings preliminary to the institution of the suit (e.g. an application to leave to contest or defend) will not be included. Interlocutory orders on matters of procedure which do not decide the substantive rights of parties are not decrees.

  •  Conclusive determination – Determination of the rights of the parties must be conclusive and not interlocutory or subject to terms and conditions. The decision must be one which is complete and final as regards the court which passes it. Where, therefore, the question sought to be adjudicated is left open, there is no decree.

An interlocutory order, which does not decide the rights of the parties finally, is not a decree, e.g. an order refusing an adjournment, an order directing assessment of mesne profits, an order granting or refusing interim relief, etc. Similarly, rejection of application for condonation of delay is not a decree.

An order may determine conclusively the rights of the parties although it may not dispose of the suit. Thus, an order dismissing an appeal summarily under O. 41, or a decision dismissing a suit for want of evidence or proof are decrees. Similarly, an order holding that the right to sue does not survive, or an order that there is no cause of action, etc. are decrees.

When a Decree is Nullity

A decree is said to be nullity if it is passed by a court having no inherent jurisdiction. Merely because a court erroneously passed a decree or there is an error while passing the decree, the decree cannot be called a nullity. The decree to be called a nullity is to understood in the sense that it is ultra vires the powers of the court passing the decree and not merely voidable decree (Sardar Pritam Singh v III Addl. District Judge, Mathura, 1995 All. C.J. 971).

Types of Decrees

According to Sec. 2(2), a decree may be preliminary or final or partly preliminary and partly final; it shall be deemed to include the rejection of a plaint and the determination of any question with Sec. 144, but shall not Include (a) any adjudication from which an appeal lies as an appeal from an order, or (b) any order of dismissal for default.

    Preliminary decreeA decree is preliminary when further proceedings have to be taken before the suit can be completely disposed of. Such a decree determines the rights of the parties with regard to some or one of the matters in controversy in the suit but does not completely dispose of the suit. In other words, a preliminary decree is only a stage in working out the rights of the parties which are to be finally adjudicated by a final decree Such decrees are passed in suits for possession and for Mesne profits, in administration suits, in pre-emption suits, in suits for dissolution of partnership, in partition suits, in mortgage suits, in suits for sale, etc. [O.20 and O.34]. The court may pass a preliminary decree in cases not covered by the provisions of Code.

There should be only one preliminary decree, but a second preliminary decree in a suit of partition is not impossible where there are facts or circumstances alleged to have come into existence after the passing of the first. In partnership suits, several preliminary decrees are usually passed.

The question whether a decision amounts to a preliminary decree or not is of great significance in view of the provisions of Sec. 97 of the Code: “Where any party aggrieved by a preliminary decree… does not appeal from such decree, he shall be precluded from disputing its correctness in any appeal which may be preferred from the final decree.”

The object of Sec. 97 is to prevent preliminary questions being raised in the form of appeal after a case has been decided on merits. Since the passing of a preliminary decree is only a stage prior to the passing of a final decree, if an appeal preferred against a preliminary decree succeeds, the final decree automatically falls to the ground for there is no preliminary decree in support of it (Sital Parshad v Kishori Lal AIR 1967 SC 1236).

Final decree – 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. While a preliminary decree ascertains what is to be done, the final decree states the result achieved by means of the preliminary decree. The preliminary decree is not dependent on the final one, but the latter is really dependent on and subordinate to the former, which is not extinguished by the passing of the final decree. Thus, in a partition suit, the preliminary decree declares the rights of the parties and the final decree divides the properties specifically be metes and bounds in terms of the rights so declared, thereby completely disposing of the suit. An executable decree is thus secured to the parties. The function of the final decree is merely to restate and apply with precision what the preliminary decree has ordained.

It may be noted that a decree may be said to be final in two ways: (1) when within the prescribed period no appeal is filed against the decree of the matter has been decided by the decree of the highest court, (ii) when the decree, so far as regards the court passing it, completely disposes of the suit (Hasham Abbas v Usman Abbas AIR 2007 SC 1077). It is in the latter sense that the words “final decree” is used in Sec. 2(2) of CPC [Bicoba v Hirabai (2008) 8 SCC 198].

In Renu Devi v Mahendra Singh (2003) 10 SCC 200, the court outlined the distinction between preliminary decree and final decree: A preliminary decree merely declares the right and shares of the parties and leaves room for some further inquiry to be held and conducted pursuant to the direction made in the preliminary decree which inquiry having been conducted and the rights of the parties finally determined a decree incorporating such determination needs to be drawn up which is the final decree.

Ordinarily, there will be only one final decree in a suit. However, where two or more causes of action are joined together, there can be more than one final decree.

Partly preliminary and partly final – Such a ‘composite decree’ is passed in certain cases viz. in a suit for possession of land and Mesne profits, the court orders possession of the land in suit in favour of the plaintiff, and directs an enquiry into profits. The first part of the decree is final as it directs delivery of possession to the plaintiff, while the second part is preliminary in as much as it directs an enquiry as to Mesne profits.

Deemed decree – By a legal fiction, certain orders and determinations are deemed to be “decrees” under the Code. For instance, the rejection of a plaint and the determination of questions under Sec. 144 (Restitution) are deemed decrees. The term “deemed” is generally used to create a statutory fiction for the purpose of extending the meaning which it does not expressly cover.

Rejection of plaint – The rejection of a plaint for non-payment of court fees shall be deemed to be a decree. However, an order returning a plaint or memorandum of appeal to be presented to the proper court is not a decree. The reason is that such order does not negative any rights of the plaintiff or appellant and is not a decision on the rights of the parties.

Appealable orders – The term ‘decree’ expressly excludes an adjudication from which an appeal lies as an appeal from an order. Thus, an order returning the plaint to be presented to the proper court or an order rejecting an application for an order to set aside ex parte decree, etc. are appealable orders and not decrees.

Dismissal for default – The definition of ‘decree’ does not include any order of ‘dismissal for default viz. for want of prosecution of suit or appeal, default for non-appearance, etc. Thus, dismissal of an appeal for default or order of dismissal of an appeal on merit while the appellant is absent is not a decree. However, ‘dismissal of an appeal on the ground of limitation’ or ‘dismissal of an appeal in limine under Order 41’ is a decree.

Decree-Holder [Sec. 2 (3)]

Sec. 2 (3) reads: ‘Decree-holder’ means any person in whose favour a decree has been passed or an order capable of execution has been made.

A decree-holder need not necessarily be the plaintiff. A decree for specific performance is capable of execution both by the plaintiff as well as by the defendant. A person who is not a party to the suit but in whose favour an order capable of execution has been passed is also a decree- holder.

Order [Sec. 2 (14)]

‘Order’ means the formal expression of any decision of a civil court which is not a decree. Thus, the adjudication of a court which is not a decree is an order. As a general rule, an order by a court of law is founded on objective consideration and as such the judicial order must contain discussion of the question at issue and the reasons which prevailed with the court to pass the order.3

Orders which amount to a decree – Order of abatement of suit, Order holding appeal not maintainable, Order discharging defendants for failure of the plaintiffs to furnish particulars (as it amounts either to rejection of a plaint or dismissal of a suit), Order dismissing a suit for non-payment of court-fee, Order dismissing cross-objection, etc.

Orders which do not amount to a decree-Order of remand, Order granting interim relief, Order refusing stay, Order overruling a plea against the maintainability of a suit, Order rejecting memorandum of appeal for default in payment of court fee, etc. Declarations on questions of limitation, jurisdiction, res judicata and maintainability of a suit which determines only the plaintiff’s right to sue do not fall within the ambit of ‘decree.” An order under Sec. 49(1) of the Land Acquisition Act, 1894 is not a decree.

Distinction between Decree and Order

The adjudication of a court of law may either be a decree or an order, and cannot be both. There are some common elements in both of them: both are ‘formal expressions’ of a decision given by court, both are adjudications of a court of law, and, both relate to matters in controversy.

The essence of distinction between a ‘decree’ and an ‘order’ seems to be in the nature of the decision, rather than in the manner or expression. The question is one of substance whether adjudication is a decree or order.

  1. A decree can only be passed in a suit which commenced by presentation of a plaint. An order may originate from a suit by presentation of a plaint or may arise from a proceeding commenced by a petition/application.
  2. A decree is an adjudication conclusively determining the rights of the parties with regard to all or any of the matters in controversy. An order may or may not finally determine such rights.
  3. A decree may be preliminary or final or partly preliminary and partly final. An order cannot be a preliminary one.
  4. Usually one decree is passed in a suit. But in case of suit or proceeding, a number of orders may be passed.
  5. Every decree is appealable, unless otherwise expressly provided. A first appeal invariably lies from a decree unless it is expressly provided viz. Sec. 96 (3) provides that no appeal shall lie from a decree passed by the court with the consent of the parties.

Every order is not appealable. Only those orders are appealable which are specified in the Code (Sec. 104 and O. 43, Rule 1).

  •  A second appeal lies to the High Court on certain grounds from the decree passed in first appeal. No second appeal lies in case of appealable orders.

Distinction between Decree, Order and Judgment

A judgment contemplates a stage prior to passing of a decree or an order, and after the pronouncement of the judgment, a decree/order shall follow. Thus, decree is the operative part of the judgment. The judgment is followed by the decree.

Judgment means the statement given by the judge of the grounds or reasons of a decree or order. It is not necessary to give a statement by the judge in a decree /order though it is necessary in a judgment.

It is not necessary that there should be a ‘formal expression’ of the order in the judgment, though it is desirable to do so. Rule 6-A of Order 20, however, enacts that the last paragraphs of the judgment should state precisely the relief granted.

The award’ of the Motor Accident Claims Tribunal does not have the status of a judgment, decree or order.

Judgment [Sec. 2 (9)]

‘Judgment’ means the statement given by the Judge of the grounds of a decree or order. ‘Judge’ means the presiding officer of a civil court [Sec. 2 (8)]. Judgment provides the reasons (or grounds) for the passing of the decree/order.

        Every judgment other than a court of small cause should contain (i) a concise statement of the case, (ii) the points for determination, (iii) the decision thereon, and (iv) the reasons for such decision. A judgment of a court of small cause may contain only point nos. (ii) and (iii).

        The sketchy orders which are not self-contained and cannot be appreciated by the appellate or revisional court without examining all the records are unsatisfactory and cannot be said to be judgment in proper sense (Gajraj Singh v Deohu, 1951 A.L.J.R.). Thus, the judgment (even of a court of small cause) must be intelligible and must show that the judge has applied his mind.

        A Judge cannot merely say “Suit decreed” or “Suit dismissed.” The whole process of reasoning has to be set out for deciding the case one way or the other. The judgment need not, however, be a decision on all the issues in a case. Thus, an order deciding a preliminary issue in a case e.g. constitutional validity of a statute is a judgement (Balraj Taneja v Sunil Madan AIR 1999 SC 3381). Conversely, an order passed by the Central Administrative Tribunal cannot be said to be a judgment, even if it has been described as such (State of T.N. v S. Thangavel AIR 1997 SC 2283).

Legal Representative’ means a person who in law represents the estate of a deceased person, and includes any person who intermeddles with the estate of the deceased, and where a party sues or is sued in a representative character the person on whom the estate devolves on the death of the party so suing or sued.

         The term denotes classes of persons on whom the status of a representative is fastened by reason of the death of a person whose estate they are held to represent. The expression ‘legal representative’ is inclusive in character, its scope is very wide and over and above a person who in law represents the estate of a deceased, it includes a person who intermeddles with the estate of the deceased and the person on whom the estate devolves on the death of the party suing or sued

          It is not necessary that the legal representatives should be in possession of any property of the deceased. All that is necessary is that he should be a person on whom the estate would devolve Further, the estate does not mean the whole of the estate. The intermeddlers represent the estate even though they are in possession of parcels of the estate of the deceased.

          The term “intermeddler” means what is known as an executor de-son fort and a person would not be an intermeddler unless he has intention to represent the estate. He is recognized as legal representative only to award relief against the estate in his hands A person who purchased property under a collusive transaction during the life-time of the deceased would not be an intermeddler and cannot be added as legal representative. An intermeddler assumes representative capacity in relation to the estate and not in assertion of a claim of right adversely to the estate.

           The person or classes of persons indicated by the expression “legal representative would depend on the context. The following persons are held to be legal representatives – executors, administrators, reversioners, Hindu coparceners, residuary legatee, and persons in de facto possession of the entire estate of the deceased. The following persons are not legal representatives – trespassers, creditors, a succeeding trustee, official assignee or receiver, persons dealing in the ordinary course of business with goods of the deceased received from another, persons who intervene merely for the purpose of preserving the goods of the deceased or providing for his funeral or for immediate necessities of his family, etc.

A true legal representative will be bound by a decree passed against the wrong legal representative if the plaintiff decree-holder has acted bona fide, the person wrongly impleaded was impleaded in a representative capacity and the decree was passed against him as representing the estate of the deceased, the plaintiff was ignorant of the facts which operate to displace the title of the supposed legal representative, and the person having the real title does not intervene during the pendency of a suit.

Mesne Profits [Sec. 2 (12)]

‘Mesne profits’ of property means those profits by which the person in wrongful possession of such property actually received or might with ordinary diligence have received therefrom, together with interest on such profits, but shall not include profits due to improvements made by person in wrongful possession.

            The right to possession is a sacred right guaranteed to all law-abiding citizens. When a person is deprived of his possession he is not only entitled to recover possession but also damages for wrongful possession by another. The Mesne profits are compensation, which is penal in nature. The object of awarding a decree for Mesne profits is to compensate the person who has been kept out of possession and deprived of enjoyment of his property. Thus, ‘wrongful’ possession of the defendant is the essence of a claim for Mesne profits.

             Mesne profits being in the nature of damages, no fixed rule governing their award and assessment in every case, can be laid down and ‘the court may mould it according to the justice of the case. In assessing the Mesne profits, usually the court will take into account what the defendant has gained or reasonably might have gained by his wrongful possession of the property, and not what the plaintiff has lost by being out of possession.

           Liability to pay mesne profits goes with the actual possession of land 1.e. person in wrongful possession and enjoyment of the immovable property is liable for mesne profits. But, where the plaintiff’s dispossession, or, his being kept out of possession can be regarded as a joint or concerted act of several persons, each of them who participates in the commission of that act would be liable for mesne profits even though he was not in actual possession and the profits were receive not by him but by some of his confederates (Lucy Kochuvareed v P. Mariappa Gounder AIR 1979 SC 1214)

           The following principles would ordinarily guide a court in determining the amount of Mesne profits: (i) no profit by a person in wrongful possession, (ii) restoration of status before dispossession of decree-holder, and (iii) use to which the decree-holder would have put the property if he himself was in possession.

           Thus, in a suit for title and possession where the land is in occupation of tenant, Mesne profits should be awarded on the basis of rent and not on the basis of the produce or value of the property. Further, a person in wrongful possession is not liable for failure to realise the highest possible rates of rent and premium, if a ‘fair’ (or reasonable) rent has been realised from the land (Secy of State v Saroj Kumar (1935) 62 IA 53]. So, when a person in wrongful possession plants indigo on the land and it is proved that a prudent agriculturist would have planted sugarcane, wheat or tobacco, the Mesne profits should be assessed on the basis of those more profitable crops (Harry Grey v Bhagumian AIR 1930 PC 82).

            Mesne profits also include the right to interest on the profits. A trespasser, whether bonafide or malafide, is liable to account for the profits which he makes and which he would have made with ordinary diligence but not the profits derived by him due to improvements effected by him eg digging a well. Mesne profits should be net profits. Thus, court may allow deductions on account of land revenue, rent, cost of cultivation and reaping. the charges of collection of rent, etc. The burden of proof of actual profits realised is on the person receiving and of profits realizable on the person claiming the same.

            Mesne profits can be claimed in respect of movable as well as immovable property. When a person takes the possession of a house wrongfully and the real owner files a suit for recovery of possession, the court may order the transfer of possession together with the rental value of accommodation, irrespective of whether the person who was in wrongful possession of property did earn rent from it. In the case of wrongful retention of shares by the share broker, would make the broker liable not only to return the shares but also to indemnify for the notional profits that could have accrued to the shareholders had the shares been transferred at the right time.

District [Sec. 2 (4)]

Sec. 2 (4) reads: ‘District’ means the local limits of the jurisdiction of a principal Civil Court of original jurisdiction, and includes the local limits of the original civil jurisdiction of a High Court.

Foreign Court/ Judgment [Sec. 2 (5)-(6)]

Sec. 2 (5) reads: ‘Foreign court’ means a court situate outside India and not established or continued by the authority of the Central Government. Thus, the courts in England, Pakistan and Privy Council are foreign courts.

Sec. 2 (6) reads: ‘Foreign judgment’ means the judgment of a foreign court.

Government Pleader [Sec. 2 (7)]

Sec. 2 (7) reads: ‘Government pleader’ includes any officer appointed by the State Government to perform all or any of the functions expressly imposed by this Code on the Government pleader and also any pleader acting under the latter’s directions.

High Court [Sec. 2 (7A)]

Sec. 2 (7A) reads: ‘High Court’ in relation to the Andaman and Nicobar Islands, means the High Court in Calcutta.

India [Sec. 2(7B)]

Sec. 2 (7B) reads: ‘India’, except in Secs. 1, 29, 43-44, 78, 79, 82, 83 and 87- A, means the territory of India excluding the State of J & K.

Judge [Sec. 2 (8)]

Sec. 2 (8) reads: ‘Judge’ means the presiding officer of a civil court.

Judgment-Debtor [Sec. 2 (10)]

Sec. 2 (10) reads: “Judgment-debtor’ means any person against whom a decree has been passed or an order capable of execution has been made. Where the decree is passed against a surety, he is a judgment-debtor. A person who is a party to the suit, but no decree has been passed against him is nor a judgment-debtor.

Movable Property [Sec. 2 (13)]

Sec. 2 (13) reads: ‘Movable property’ includes growing crops.

Pleader [Sec. 2 (15)]

Sec. 2 (15) reads: ‘Pleader’ means any person entitled to appear and plead for another in court, and includes an advocate, a vakil and an attorney of a High Court.

Prescribed [Sec. 2 (16)]

Sec. 2 (16) reads: ‘Prescribed’ means prescribed by rules.

Public Officer [Sec. 2 (17)]

Sec. 2 (17) reads: ‘Public officer’ means a person in the following categories:

  1. Every Judge.
  2. Every member of an All-India Service.
  3. Every Commissioned or Gazetted officer (while serving) in the military, naval or air force of the Union.
  4. Every officer of a court of justice whose duty it is, as such officer, to investigate/ report on any matter of law or fact, or to make, authenticate or keep any document, or to take charge or dispose of any property, or to execute any judicial process, or to administer any oath, or to interpret, or to preserve order in the court, and every person especially authorized by a court to perform any of such duties.
  5. Every person who holds any office by virtue of which he is empowered to place or keep any person in confinement
  6. Every officer of the Government whose duty is to prevent offences to give information of offences, to bring offenders to justice, or to protect public health, safety or convenience.
  7. Every officer whose duty is to take, receive, etc. any property on behalf of the Government, or to make any survey, assessment, or contract on behalf of the Government, or to execute any revenue- process, or to report any matter affecting the pecuniary interests of the Government, etc.
  8. Every officer in the service or pay of the Government, or remunerated by fees or commission for the performance of any duty.

Thus, a Minister of a State, a village Headmen, a Bench Clerk of a Civil Court, a police inspector, Provident Fund Commissioner, an I.T.O., etc. are ‘public officers’. But, a retired Government servant, a chairman of municipality, a municipal councillor, an officer of a corporation, Sarpanch of a Gram Panchayat, etc. are not public officers.

Rules [Sec. 2 (18)]

Sec. 2 (18) reads: ‘Rules’ refers to rules and forms contained in the First Schedule of the Code, or made under Sec. 122 or Sec. 125 of the Code.

Share in a Corporation [Sec. 2 (18)]

Sec. 2 (19) reads: ‘Share in a corporation’ is deemed to include stock. debenture stock, debentures or bonds.

Signed [Sec. 2 (20)]

Sec. 2 (20) reads: ‘Signed’, except in case of a judgment or a decree, includes stamped.

Other Definitions (Not provided for in the Act)

Affidavit

An ‘affidavit’ is a written statement in the name of person called the deponent, by whom it is voluntarily signed and sworn or affirmed before an authorized officer or magistrate. Every affidavit should be drawn up in the first person and should contain only the facts and not inferences.

         Ordinarily, a fact has to be proved by oral evidence. Order 19 is a sort of exception to this rule, and empowers the court to make an order that any particular fact may be proved by affidavits, subject, however, to the right of the opposite party to have the deponent produced for cross-examination. Sec. 30(c) also requires any fact to be proved by affidavit.

Cause of Action

The term ‘cause of action’ connotes all categories of facts which it is necessary (and not every piece of evidence) for the plaintiff to prove, if traversed, in order to entitle him to a decree in the suit. It is the media upon which the plaintiff asks the court to arrive at a conclusion in his favour but has no reference to the relief claimed or the defence set up (Read v Brown 1888-22 QBD, 126, State of Madras v C.P. Agencies AIR 1960 SC 1309).

       The cause of action must be antecedent to the institution of the suit, and no cause of action can be founded on any allegations made in the proceedings. However, a new claim made on a new basis constituted by new facts is also included in a cause of action (A.K. Gupta & Sons Ltd. v Damodar Valley Corpn. AIR 1967 SC 96).

Suit

A suit is a proceeding by which an individual pursues that remedy which the law affords. In every suit there must be at least one plaintiff and one defendant. Every suit must contain the ‘Cause of action’, which refers to the cause or the set of circumstances which leads up to a suit.

       The subject matter of the suit is the right or property claimed in the suit. The court adjudicates upon the right of the parties with regard to the subject matter in dispute. The relief claimed should be stated specifically in the plaint.

Plaint/ Written Statement

Every suit is to be instituted by the presentation of plaint, or in such other manner as may be prescribed. It is the pleading of the plaintiff. A plaint must contain the following particulars:

  • Name of the court.
  • Name, description and place of residence of the plaintiff.
  • Name, description and place of residence of the defendant.
  • A statement when the plaintiff or defendant is a minor or person of unsound mind.
  • Facts constituting the cause of action, and when it arose
  • Facts showing that the court has jurisdiction.
  • The relief the plaintiff claims; the plaintiff’s costs (‘Prayer clause”)
  • Any set-off or relinquishment of his claim by the plaintiff
  • Value of the subject matter of the suit for the purposes of jurisdiction and of court fees.
  • Signature and verification.

           A written statement ordinarily means a reply to the plaint filed by the plaintiff, it is the pleading of the defendant. In it, the defendant is required to deal with every material fact alleged by the plaintiff, and also state new facts in his favour or take legal objections against the plaintiff’s claim.

          The defendant must, at or before the first hearing or within such time as permitted by the court (not more than 30 days from the date of service of summons), present a written statement of his defence

Subordination of Courts (Sec. 3)

Sec. 3 lays down that, for the purposes of the Code, the District Court is subordinate to the High Court. Every Civil Court of a grade inferior to that of a District Court and every Court of Small Causes is subordinate to the High Court and District Court.

Savings (Sec. 4)

In the absence of any provision to the contrary, nothing in this Code shall be deemed to limit or otherwise affect any special or local law now in force or any special jurisdiction or power conferred, or any special form of procedure prescribed, by or under any other law for the time being in force. Nothing in this Code shall affect any remedy which a landholder or landlord may have under any law for the time being in force for the recovery of rent of agricultural land from the produce of such land (Sec. 4).

Application of Code to Revenue Courts/ Small Causes Courts

Sec. 5 provides that where any Revenue Courts are governed by the Code, in those procedural matters on which any special Act applicable to them is silent, the State Government may declare that any portions of these provisions which are not expressly made applicable by the Code shall not apply to Revenue Courts, or that they shall apply to such courts only with such modifications as the State Government may prescribe.

         A revenue court is a court having jurisdiction under any local law to entertain suits and other proceedings relating to the rent, revenue or profits of land used for agricultural purposes. It does not include a civil court having original jurisdiction under the Code to try such suits or proceedings as being suits or proceedings of a civil nature.

         Sec. 7 contains provisions relating to Provincial Small Causes Courts; Sec. 8 relates to Presidency Small Causes Courts.

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