(Some of the important provisions)
The Code of Civil Procedure consolidates and amends the law relating to the procedure of the Courts of Civil jurisdiction. The Code of Civil Procedure is an adjective law it neither creates not takes away any right. It is intended to regulate the procedure to be followed by Civil Courts. It came into force on 15th March, 1909. The Act extends to whole of India except the State of Jammu & Kashmir; the State of Nagaland & tribal areas.
The term ‘decree’ is defined under section 2(2). Decree means a formal expression of an adjudication which, so far 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. A decree may be either preliminary or final.
Essential elements of decree:-
- There must be adjudication.
- It should determine the rights of the parties with regard to all or any of the matters in controversy in the suit.
- The above mentioned determination must be of a conclusive nature.
- Adjudication must me by a formal expression.
The term order is defined under section 2(14). It states order to be a formal expression of decision of a Court and which is not a decree.
The main differences between a decree and an order are:-
|Points of Difference.||Decree||Order|
|When passed||Decree can be passed only in a suit which has originated by presentation of a complaint.||Order can be passed in a suit which is originated either from a complaint, application or petition.|
|Right||Decree contains a conclusive determination of a right.||Order may or may not determine a right.|
|Appeal||A second appeal may lie against a decree to a High Court on certain grounds.||There is no second appeal in case of a order.|
DOCTRINE OF SUB-JUDICE.
Section 10 of Code of Civil Procedure, 1908, contains provisions relating to Stay of Suits i.e. Res Sub-Judice.
According to this section, no Court shall proceed with the trial of any suit in which the matter in question is the same, directly and substantially, and is related to some previously instituted suit between the same parties under the same title.
In simple words, if a suit is pending in one Court then, any other Court cannot take the same suit in which the matter is same and the parties, too are same.
Essential conditions for stay of suits:
- There shall be two suits instituted at two different times.
- The matter in issue in the later suit should be directly and substantially in issue in the earlier suit.
- Such earlier suit should be between the same parties.
- The earlier suit shall be pending either in the same Court or in any other competent Court but not before a Foreign Court.
The main objective of Section 10 is to prevent the multiplicity of proceedings with regard to the same subject matter and avoid contradictory judgment being given by the Courts.
The provisions regarding Res-Judicata are mentioned in Section 11 of the Code.
No court shall try the trial of any suit in which the matter in question is the same, directly and substantially, and is related to some previously instituted suit between the same parties under the same title, which has been raised and been heard and finally decided by such Court.
In simple words, once a matter is finally decided by a competent Court, no party can be permitted to reopen it in a subsequent litigation.
Essential conditions of res-judicata:
- The matter must be directly and substantially in issue in two suits.
- The prior suit must be between same parties.
- The suit must be litigated under the same title.
- The Court which determined the earlier suit must be competent to try the latter suit.
- The question in the latter suit must be same as in the earlier suit.
The two main differences between Res Sub-Judice and Res-Judicata are:
|Points of Difference.||Res sub-judice||Res judicata|
|When applied||Res sub-judice applies to matter pending trail.||Res judicata applies to a matter adjudicated upon.|
|Bar||Res sub-judice bars the trail of a suit of pending suit.||Res judicata bars the trail of a suit or an issue which has been decided in a former suit.|
The right to appeal is not a natural or inherent right attached to litigation. This right is given by the statute. There are four kinds of Appeals provided under the Civil Procedure Code, 1908:
- Appeals from original decrees.
- Second Appeals.
- Appeals from orders.
- Appeals to the Supreme Court.
As per section 100, an appeal lies to High Court from every decree passed in appeal by any subordinate Court, if the High Court is satisfied that the case involves a substantial question of law.
REFERENCE, REVIEW & REVISION
Reference to High Court (Section 113)
This section states that, at any time before judgment, the Court in which a suit has been constituted can refer the case for opinion of the High Court and the High Court in turn may make such order as it deems fit.
REVIEW (Section 114)
If any person considers himself aggrieved by a decree or order, he/she may apply for a review of Judgment to the Court which initially passed the decree or the order. The aggrieved person can apply for review because of any of the following grounds as mentioned in Order 47 Rule 1:
- Discovery of new and important evidence or matter which was not within the knowledge of the applicant or the same could not be produced at the time when the decree was passed or order made, or
- On account of some mistake or error, or
- For any other sufficient reason.
REVISION (Section 115)
The High Court has the power to call for the record of any case which has been decided by any Court and is subordinate to the High Court.
The High Court also can call for records by any subordinate Court if:
- If the Court has exercised jurisdiction which was not vested in it, or
- The Court has failed to exercise the jurisdiction which was vested in it, or
- If the Court has acted illegally or with material irregularity.
EX PARTE DECREE
Order 9, Rule 3, states that, when the suit is called for hearing and neither of the parties appear before the Court, the Court may order the suit to be dismissed.
There are three possible situations, they are as follows:-
- When the plaintiff appears but the defendant does not appear in the Court, despite of been served a summons.
In such a case, the Court may proceed against the defendant ex parte. However, if the summons is not served in a proper manner to the defendant, the Court may order to issue a second summons. If sufficient time is not given to the defendant by the Court then the hearing shall be postponed to a further date.
- When defendant appears but the plaintiff is absent.
In this case, the Court shall make an order of the suit being dismissed as the plaintiff is absent and that it is his (plaintiff) default. However, if the defendant admits the claim of the plaintiff or a part thereof, the Court shall pass a decree in favor of the plaintiff in accordance and shall dismiss the suit to the extent of the remainder.
- When one or more of the several plaintiffs do not appear.
If one or several plaintiffs are absent, the Court may allow the suit to proceed in the same way as if all the plaintiffs were present, or make any other order as it deems fit.
On the other side, if one or several defendants do not appear, the Court shall proceed with the suit, and at the time of announcing judgment, make such order as it thinks fit with respect to the defendants who did not appear.
JURISDICTION OF CIVIL COURTS.
Jurisdiction means the authority through which a court entertain suits, appeals and applications, and through which the court administers justice according to the provisions of the law.
Jurisdiction of the Civil Court may be categorized as follows –
- Territorial or Local Jurisdiction
- Pecuniary Jurisdiction
- Jurisdiction over subject matter
- Original and Appellate Jurisdiction
- TERRITORIAL OR LOCAL JURISDICTION.
Every Court has a territorial limit beyond which it cannot exercise its power. This limit is based on the territory which is called territorial jurisdiction. Example: The district judge at East Kanpur can exercise his powers only within the district of East Kanpur.
He cannot exercise his powers in any other district. In the same way, the High Courts will exercise the powers within the state in which it is situated and the neighboring Union Territories attached with the same High Court.
- PECUNIARY JURISDICTION.
Pecuniary means “involving money”.
All Civil Courts, according to their assigned grades, have limitation to try suits and entertain the appeals for the value of money not exceeding some stipulated amount.
Unlimited pecuniary jurisdiction are enjoyed by The High Courts and the Court of Sessions.
Senior Civil Judges have jurisdiction of cases wherein the matter is of Rs. 10,00,000. Whereas, Junior Civil Judges have pecuniary jurisdiction of Rs. 3,00,000.
- JURISDICTION OVER SUBJECT MATTER:
There are certain Civil Courts established to try cases or suits of particular nature.
Example: The Small Cases Courts can try only non-contentious cases, like suits relating to promissory notes, bills etc.
- Similarly, there are Labor Courts and Industrial tribunals which have jurisdiction to try suits related to industrial and labor disputes only.
- There are also Administrative tribunals to try only the matters relating to Government employees. These tribunals do not work as proper Courts but they have been conferred judicial powers to try the matters and enforce necessary order.
- ORIGINAL AND APPELLATE JURISDICTION:
The Court in which the suit is filed for the first time and the Court having jurisdiction to try original suit (initial suit regarding the subject matter) such jurisdiction is called original jurisdiction.
Once the case is decided, the aggrieved party has a right to prefer an appeal in the appropriate court. Such jurisdiction of the court to hear the appeal is called Appellate Jurisdiction.
The Supreme Court, High Court and District Courts have both original and appellate jurisdiction and can hear both appeals as well as original suits.
The Code of Civil Procedure, 1908 provides a simple and clear procedure that is to be followed by Civil Courts, to enable them to deliver an impartial and unbiased justice.
The Code incorporates the provisions for inherent powers. When the Code does not consist a particular grant or relief. If there is no legislation, the court has the power to, in the interest of justice exercise the discretionary power by acting beyond the powers conferred on them. Such are called the Inherent powers of the Court.
The Code of Civil Procedure is one of the important branches of procedural law and it is the one which regulates the procedure followed by Civil Courts in India. Although it may have some limitations, but it is still efficient, simple, clear and enables the courts to deliver impartial justice.