C IV IV IL IL P R O CE C E D UR U R E C O DE DE & L A W OF L I MI MITA TA TI TION ON Paper – 5 Paper – 5 SEMESTER – SEMESTER – 5 5th CNLU, Patna
Dr. ANSHUMAN Advocate, Patna High Court Member, Bihar State Law Commission Guest Faculty, Chanakya National Law University Guest Faculty, State Judicial Academy, Bihar & Jharkhand Standing Counsel, Contact detail detail :- 9431045259; 9334525365 E-mail-id – E-mail-id –
[email protected] [email protected] 1
Syllabus :- C.P.C. & Law of Limitation
A short historical survey of the conception of civil procedure in India before the advent of British. Provisions of the code of civil procedure with regard to suits, their institution, pleadings, plaint, appearance and examination examination,, judgment, decree decree and execution. Pursue civil litigation through the appellate courts Examining the corrective steps in Civil Proceedings. 1
Syllabus :- C.P.C. & Law of Limitation
Appellate litigation strategies and choice of grounds for appeal Revision litigation strategies and choice of grounds for revision petition Rules of C.P.C. Practice Relevant part of Civil court & High Court Civil Rules –
Drafting exercise (Major part of course) deal d eal with the Law of Limitation Throughout the course Law of Limitation, Court Fee Act, Suit Valuation Act applicable to Civil proceedings 1
Syllabus :- C.P.C. & Law of Limitation
Execution of Decree
Different orders of court & procedures laid down for it including use of Code of Civil Procedure under different statute. Practical Problems including Ratio & Obiter Searching
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D et ai l L e c t u r e Pl an f o r C o d e o f C i v i l P r o c ed u r e,1908 & L i m i t at i o n A c t Sl. No.
Lecture Number
Name of Act/ Topic
Remark
1.
3-5 lectures
A short Historical survey
Civil Procedure prior to
of the conception of Civil British Period Procedure in India before the advent of British. 2.
40-45 lectures
Structuring of CPC &
Definitions(S.2),
Provisions of the Code of Jurisdictions (S.6,15-21 & Civil Procedure with
9), Stay of suits (s.10),
regard to suits, their
Resjudicata (S.11-13),
institution, pleadings,
S.89 & O1 to O.20
plaint, W.S., appearance and examination, evidence, hearing & judgment. 3.
7-10 Lectures
Pursue civil litigation
S. 95- 104, O41, 42 & 43
through the first appellate courts 4.
5-10 Lectures
Examining the corrective/ incidental steps in Civil Proceedings at original, appellate & execution level. 1
O22, 23, 39, 40 etc.
D et ai l L e c t u r e Pl an f o r C o d e o f C i v i l P r o c ed u r e,1908 & L i m i t at i o n A c t Sl. No.
Lecture Number
Name of Act/ Topic
Remark
5.
3-5 lectures
2nd Appellate
Sec.100 &
litigation strategies Substantial and choice of
question of Law
grounds for appeal 6.
3- 5 Lectures
Revision, Review & 113, 114 & 115 Reference
O 47……..
litigation strategies and choice of grounds 7.
3-5 lectures
Execution
S. ….. & O21
Proceedings 8.
3-7 lectures
Rules of C.P.C.
Civil Court Rules
Practice – Relevant High Court Civil part of Civil court Rules & High Court Civil Rules 1
D et ai l L e c t u r e Pl an f o r C o d e o f C i v i l P r o c ed u r e,1908 & L i m i t at i o n A c t Sl. No.
Lecture Number
Name of Act/ Topic
Remark
9.
10-15 Classes
Law of Limitation,
Limitation Act, 1963
Court Fee Act, Suit
Court Fee Act,
Valuation Act
Suit Valuation Act,
applicable to Civil proceedings 10.
Through out lectures Drafting exercise
Fundamental of
(Major part of
Pleadings,
course) deal with
interlocutory
the Law of
applications,
Limitation
incidental applications
11.
Misc. Matter – If
Usability of CPC in
time permits
other laws where Civil Rights are involved.
Total Lectures
77- 107 lectures
1
submission of
Deduction of marks
project & viva
if not on time
LECTURE – I A short historical survey of the conception of civil procedure in India before the advent of British.
Hindu Jurisprudence or Legal System (Vyavahara Dharmasastra) is embedded in Dharma as propounded in Vedas, Puranas & Smritis. It is difficult to define Dharma but it has been explained to mean that :It helps the upliftment and ensure the welfare of living beings (Mahabharata)
It constitutes all affairs in the worlds (Taittiriya Samhita)
Dharma is the highest good. (Jaimini)
It sustains and ensure progress and welfare of all in this world and eternal bliss (Moksha). (Madhavacharya) Legal & Constitution History of India Vol.I by M.Rama Jois
What do you mean by CPC i.e.Code of Civil Procedure
Code of Civil Procedure means “ Vyavahara Prakria Sanhita” Etymologically Vyavahara means Vi + ava + hara
Various + doubts + removing
Removing of various doubts 1
Origin of “Vyavahara” The Ancient Hindu Jurists put emphasis on the causes for dispute i.e. the evil action as said by them. The said evil action they divided into three broad categories, 1. From mind, 2. From speech and 3. From the body. Mind the instigator :- The sin takes its origin in mind in three ways 1. Coveting the property of others. 2. Thinking what is undesirable, and 3. Adherence to evil doctrines. All the three resulted in following heads The evil verbal actions, 4. Speaking untruth, 5. Attacking another in abusive or stronger language, 6. Carrying tales against others, and 7. Talking ill of others. The wicked bodily actions, 8. Taking what is not given, 9. Injuring living being, and 10. illicit intercourse.
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Classification of “Vyavahara”
Under ancient Hindu Text Vayahara has been classified into two broad categories:-
One arising out of Wealth
Second arising out of Violence
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Vyavahara arising out of Wealth
1. Money Lending 2. Deposit 3. Invalid Gift 4. Partnership 5. Non payment of wages 6. Disobedience of Contract 7. Boundary Disputes 8. Sale without ownership 9. Revocation of Sale 10. Breach of Agreement 11. Law between Husband & Wife 12. Theft 13. Law of Inheritance 14. Gambling with dice 1
Vyavahara arising out of Violence
1. Vakparushya (Defamation) 2. Dandaparushya (Assault, causing etc.) 3. Sahasa( include robbery, dacoity, murder etc.) 4. Strisangrahana (Adultery & Rape) 1
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Vyavahara as Legal Proceeding
The Hindu jurists not only developed substantive law applicable to Hindus but also formulated side by side the adjective/ procedural law for the enforcement of substantive law. Vyavahara was invented to protect people and to ensure rule of Dharma (law). It is a method developed by the jurists for enforcement of substantive law 1
Administration of Justice Justice through Courts (Nayalaya Nayayaha)
Highest Court presided by King or Chief Justice at Capital City (Presently Supreme Court of India & High Court) Lower Courts under Royal Authority, at town and city, and (presently Civil Courts & Tribunals) People’s Court (Courts under Panchayati Raj Act)
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Highest Court
Sasita is the highest court presided by King himself or in his absence by the chief Justice at Capital City. If a party was not satisfied with the decision given by any court or tribunal including “kula”( Gathering of family Council). Court Hall is known as “Dharmadhikaran”( Hall of Justice) Ashtami (8th day) & Chaturdasi (14th day) of every fortnight in the full moon and no moon were to be holiday for King’s Court. A third part of the day omitting the first eight part (1/8 th part = 1 & ½ hour) i.e. about 7.30 a.m. to 12 noon. The Chief Justice used to preside in the absence of King. The king used to take assistance by experts. Opinion of Judges to be adhered during trial. Assistance by Marchent King’s Court can be assisted by learned Scholars (Amicus Curiae) 1 Smriti law and customary law binding on the king.
Lower Courts under Royal Authority
Pratistiha – A court which is established at a particular village or town presided by the Judge appointed by King. Apratistiha – A mobile court, moving from village to village presided by the judge appointed by King. Mudrita – A court appointed by the King and authorised to use Royal Seal 1
People’s Court
Kula – Gathering of family councils – It is an assembly of persons belonging to the family or caste of the litigants, functioning of the panchyatdars mandali to decide dispute among those belonging to same family or caste. Shreni - Corporation of persons following the same craft, profession or trade. Gana – Assembly of persons belonging to one place but to different castes or followings different avocations. Jurisdiction:People’s Court has jurisdiction to decide all disputes except those falling under the title Sahasa. Fine and corporal punishment could only be inflicted by the King. 1
Appellate Jurisdiction
Shreni can review the decision of Kula.
Gana can review the decision of Shreni
Judges (in Pratistitha/ Apratistitha) can review the decision of Gana King is the Highest Court of Appeal can review the decision of any court and his decision is final. 1
Judicial Proceeding - (Nyaya Kramaha)
Under ancient Hindu text there are following parts in a judicial proceeding:1. Purvapakasha – Stating the case of Plaintiff (Vadin). 2. Uttara The written statement being the reply or answer given by the defendant (Prativadin).
3. Kriya – The trial of the case by the Court
4. Nirnaya – The judicial decision. 1
How to write a Plaint (Pratijna) A plaint should be :
Brief in words
Rich in contents
Unambigious
Free from confusion
Devoid of improper arguments
Capable of traversed by the defendant
Set out the prayer sought against the opponent 1
Contents of a Plaint
The country The place (village etc.) The situation (boundaries of the field etc. sketch) The Caste/ Profession of parties The name of parties The dwelling place of the parties The measurement & filed name if required The name of father and grandfather of the parties The enumeration of the former kings Injury or loss caused by the defendants Name and the thing claimed Reason why the plaintiff submitted this case Other necessary details if required 1
Procedure for acceptance of filing of a case
Before Filing any case examination of Plaintiff & Complainant was necessary :The party filing the case should be asked the following questions by the King or judges:What is your grievances? What is the injury done to you? By whom, where and at what time and why the grievance or injury complained of was caused? The answer given by the party was recorded if party is in a position to state. It is duty of judge to ascertain the facts and accept the case. 1
Characteristic of a good Plaint A Good Plaint is Free from faults of declaration Capable of proof Contains good grounds Grounds are precise Plaint is not self-contradictory
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A Plaint was fit to be rejected
If it is made out opposing the law or usage or Rajashasan and suffers from multiplicity of rights under different titles of law It is devoid of material particulars of claim viz. Value, description etc. If it does not state that opposite party has done any unlawful act or was not willing to do what was bound to do in law. If statements made in the plaint is self-contradictory so as to make out no case for the plaintiff. If grievances of the plaint is imaginary and does not disclose any injury caused to plaintiff or violation of any rule/ law 1
Service to the Defendant
The notice of summon to opposite side be served through the plaintiff if he choose to do so. The notice of summon was also through “Swapurusha” whose duty is to enforce the attendance of the opposite party at court,( presently they are known as Process servers) 1
Pratyakalita (Amendment of declaration by additional statement)
In the ancient Hindu text, there was provision for amending his declaration if he felt that he has omitted some particulars by mistake or omitted to make any allegations. But the amendment cannot be used to make out an new case. It the plaintiff forsakes his original claim and makes out entirely a new case, the Plaintiff loses his case. 1
Types of plea by Defendant
The reply filed by the defendant is Uttara (presently known as Written statement) may be of four type find:1. Satyam – Admission
2. Mithyam - Denial
3. Pratyavaskandanam – Special Plea, for ex.
This is false. I do not know at all. I was not present there at the time. I was not born at the time.
Confession & avoidance – True it is that I received, but I returned it/ obtained it as a gift.
4. Purvanyaya – Former judgment = Already decided 1
Contents of Uttara (Written Statement) The defendant should tender an answer conformable to the plaint. The characteristics of the defective Uttara (W.S.) are :
Contradictory – A reply which contains both admission and denial. Incomplete – A reply for saying “plaintiff was formerly defeated by me” Here no exact case number, in this matter or in any other matter etc. have not been described. So this statement is incomplete. Ambiguous – In stead of saying “maya dayam”{It has to be given by me}, it is stated “maya adayam”. {It has not to be given by me.} Irrelevant – In reply such a statement has come which is absolutely irrelevant to the case. Inadequate – The reply would not meet the point thoroughly stated in the Plaint 1
Appearance of Defendant
A defendant to whom notice is issued by the court and who is able to appear, must appear before the court
If defendant fails to appear, he is liable to be fined being defendent on the subject matter of the case.
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Grounds for defeat without trial
There are five grounds recognised by our ancient Hindu text (Narad Smriti) to defeat without trial:1. Anyavadi – A party who retorts to a totally different plea than one pleaded already by the plaintiff. 2. Kriyadvesi – One who shuns trial. 3. Nopasthatha – A man who fails to appear before the court. 4. Niruttara – One who have appeared before the court, fails to reply the questions asked i.e. remain silent. 5. Ahutavipalayi – The person who absconds after receiving summons. 1
Adjournments
Plaintiff can seek adjournment if he was unable to put forward his case due to incapacity or lack of courage. Defendant after appearing before the court can seek adjournment on account of fear, confusion, and other reasons.
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Appearance through Another
In the ancient text there are provisions for appearance in a case through another person named as “Niyogi”. This rule is also present in O III Rule 3 C.P.C.. Niyogi – Only a person well versed in the substantive law and procedural law is entitled to represent parties and take remuneration for his services There were provision for scale of fee payable to Niyogi & also provision for payment for misconduct by a Niyogi. 1
Payment of Court Fee
Under ancient system (Smriti): The payment of court fee had to be followed the final decision of the court. The defeated party was liable to pay the court fee. State collect court fee after final decision of the case. Under present system: The payment of court fee has used to be paid prior to admitting/ acceptance case. The plaintiff is liable to pay the court fee. State collect the court fee prior to filing of a case. 1
“Pratyakalita” Fixing burden of proof
After the defendant files his reply (Uttara) to the plaint (Pratijna) before the court, the Sabhyas (Judges) should examine the contents of the pleadings and decide:-
1.
The facts proposed to be established by the respective parties, and
2.
On which party burden of proof lies.
3.
This stage of the suit was known as “Pratyakalitapadah”
4.
The party on whom the burden of proof lies should be called upon the substantiate the whole of his declaration by adducing evidence.
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TRIAL
Trial must be open and fair For open and fair trial the king or court should do the following works: The court or king should try suits as per the substantive law. The court or king should never try cases or here the parties (when he is alone). Neither the court nor the king should conduct the trial in secret. Trial must begin with the party on whom the burden of proof lay. In general the parties themselves produce the witnesses but when the witness refuse to come, summon be given to the witnesses. Provisions for imposing penalty for failure to give evidence. Provisions for payment of subsistence allowance to witnesses. Examination of witnesses to be taken place in the open court. Every witness be put on oath.(At present system also the witness has to be take oath as per provisions of section 4 of the Indian Oaths Act 1969) Examination of witness had to be taken place by the court or King only. Party could not put question to the witnesses.
Note :- Examination in Chief of the witness and its cross examination was not peculiars to the ancient Indian Judicial System. It is characteristics of English trial, whether civil or criminal. 1
ayapa ra – u gmen
It was document of Victory or judgment It was based on evidence. Contents of Jayapatra:Brief statement of plaint and the answer, The evidence adduced by the parties, The discussion on the Pratayakalit (issues involved), The consideration of the arguments advanced by the parties, The law applicable to the case, The opinion of Sabhyas (judges) or king The decision given by the chief justice, other judges or King, and The royal Seal
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First Law Commission
First Law Commission was set up in the year 1835 for searching the establishment of uniform law through out India. By the order of the British Parliament the first law commission was established in which members were Lord Macaulay, Barrister, Chairman Clarles Hay Cameron, member
Constitution of Court after 1857
After the Revolt of 1857, a statute was passed by the British Parliament called Govt. of India Act by which the Govt. of India was transferred from East India Company to Her Majesty Queen Victoria.
In the year 1861 two acts came
High Courts Act 1861 &
Indian Council Act 1861 1
Second Law Commission
First Law Commission works under Lord Macaulay, Barrister, Chairman Clarles Hay Cameron, member
By the Second Law Commission first set of codified laws came The The The The
Code of Civil Procedure, 1859 Limitation Act, 1859 Indian Penal Code, 1860 Code of Criminal Procedure, 1861
The High Courts Act 1861 High Court at Calcutta for Bengal High Court at Bombay for Bombay High Court at Madras for Madras High Court at Allahabad established in 1866 All these High Courts were established by letters patent or Charter. They all are known as Charted High Courts.
Patna High Court established in the year 1913 1
