Law Relating to Civil Procedure – Notes

Notes on Law Relating to Civil Procedure (CPC, 1908)

1. Introduction to Civil Procedure

Civil Procedure is the body of law dealing with methods, procedures, and practices used in civil litigation.
Governed primarily by the Code of Civil Procedure, 1908 (CPC).
CPC is a procedural (adjective) law that regulates the enforcement of rights through courts.

Aim of CPC

Consolidates and amends laws relating to civil court procedure.
Applies generally unless a special law provides otherwise.
In case of conflict:
- Special law prevails over CPC.
- CPC applies where the special law is silent.

2. Scheme of the CPC

The Code consists of:

158 Sections
Orders and Rules in Schedule I

Key Point

Sections create jurisdiction.
Orders and Rules prescribe the manner of exercising jurisdiction.
If there is a conflict, Sections prevail over Rules.

Important Terms

A. Cause of Action

Meaning:

Bundle of essential facts that give rise to a legal right to sue.
Every fact necessary for the plaintiff to prove his claim.

Essentials

Existence of a legal right.
Infringement of that right.
Gives plaintiff a right to seek relief.

Importance

Determines territorial jurisdiction under Section 20 CPC.

B. Judgment (Section 2(9))

Statement by the judge explaining grounds for a decree or order.
Contains reasons for the decision.

C. Decree (Section 2(2))

A decree is the formal expression of an adjudication that conclusively determines the rights of parties.

Essentials

Formal expression.
Conclusive determination.
Rights of parties determined.
Matter in controversy decided.
Must arise in a suit.

Types

Preliminary Decree

Further proceedings are required.

Final Decree

Completely disposes of the suit.

Partly Preliminary and Partly Final

May contain both elements.

Decree Includes

Rejection of plaint.
Determination under Section 144 (Restitution).

Decree Does Not Include

Appealable orders.
Dismissal for default.

D. Decree Holder (Section 2(3))

Person in whose favour:

A decree is passed, or
An executable order is made.

E. Judgment Debtor (Section 2(10))

Person against whom:

A decree is passed, or
An executable order is made.

F. Order (Section 2(14))

Formal expression of any decision of a civil court that is not a decree.

Difference Between Decree and Order

Decree	Order
Conclusively determines rights	May not determine rights finally
First and second appeal possible	Appeal only when specifically provided
Can be preliminary or final	Generally procedural

3. Structure of Civil Courts

Under Section 3 CPC:

Hierarchy:

High Court
District Court
Subordinate Civil Courts
Courts of Small Causes

4. Stay of Suit (Res Sub Judice) – Section 10

Meaning

A court cannot proceed with a suit if the matter is already directly and substantially in issue in a previously instituted suit between the same parties.

Purpose

Avoid conflicting judgments.
Prevent parallel litigation.

Essential Conditions

Two suits instituted at different times.
Matter in issue is directly and substantially the same.
Same parties.
Earlier suit is pending before a competent court.

Effect

Later suit is stayed.
Institution of second suit is not barred.

5. Doctrine of Res Judicata – Section 11

Meaning

A matter once finally decided cannot be re-litigated between the same parties.

Principle

“No one should be vexed twice for the same cause.”

Conditions

Matter directly and substantially in issue.
Same parties or parties claiming under them.
Former suit decided by a competent court.
Matter heard and finally decided.

Purpose

Finality in litigation.
Avoid multiplicity of suits.
Save judicial time.

Constructive Res Judicata

Any matter which ought to have been raised in the earlier suit is deemed to have been decided.

Difference Between Res Sub Judice and Res Judicata

Res Sub Judice	Res Judicata
Matter pending	Matter already decided
Section 10	Section 11
Stay of trial	Complete bar to re-trial

6. Bar to Further Suit – Section 12

A plaintiff cannot institute a fresh suit where CPC rules prohibit it.

7. Jurisdiction of Courts

Meaning

Authority of a court to hear and decide cases.

Types

A. Subject Matter Jurisdiction

Depends on nature of dispute.

B. Territorial Jurisdiction

Depends on geographical limits.

C. Pecuniary Jurisdiction

Depends on monetary value of the suit.

D. Jurisdiction over Persons

Authority over parties involved.

Section 9 – Courts to Try Civil Suits

Civil Courts can try:

All suits of civil nature,

Except:

Those expressly barred, or
Impliedly barred by statute.

8. Place of Suing (Territorial Jurisdiction)

Section 15

Every suit must be filed in the lowest competent court.

Section 16

Property-related suits must be filed where the property is situated.

Includes suits for:

Recovery of immovable property.
Partition.
Mortgage.
Rights in immovable property.
Compensation relating to immovable property.

Section 20

Other suits may be filed where:

Defendant resides, or
Defendant carries on business, or
Cause of action arises wholly or partly.

9. Set-Off, Counter Claim and Equitable Set-Off

Set-Off (Order VIII Rule 6)

Defendant adjusts a legally recoverable debt against plaintiff’s claim.

Conditions

Ascertained sum.
Legally recoverable.
Within pecuniary jurisdiction.

Counter Claim (Order VIII Rule 6A)

Independent claim by defendant against plaintiff.
Can be raised before filing defence.

Equitable Set-Off

Based on:

Justice,
Equity,
Good conscience.

Usually arises out of the same transaction.

10. Temporary Injunctions (Order XXXIX)

Temporary Injunction

Court may restrain:

Waste of property.
Damage.
Alienation.
Dispossession.

Requirements (Dalpat Kumar Case)

Prima facie case.
Irreparable injury.
Balance of convenience.

Interlocutory Orders

Temporary orders passed during pendency of suit.

Examples:

Preservation of property.
Interim sale.
Safe custody.

11. Detention, Preservation and Inspection

Court may order:

Detention.
Preservation.
Inspection.
Collection of samples.
Experiments.
Entry into property for evidence.

12. Institution of Suit (Order IV)

Suit Begins By

Presentation of a plaint in duplicate.

Plaint Must Contain

Material facts.
Cause of action.
Relief sought.
Verification by affidavit.

Important Rule

If a plaintiff omits part of his claim, he cannot later sue for the omitted portion.

13. Necessary Party and Proper Party

Necessary Party

A person:

Against whom relief is sought.
Without whom no effective decree can be passed.

Proper Party

A person:

Whose presence helps complete adjudication.
But decree can still be passed without him.

14. Mis-Joinder and Non-Joinder

Non-Joinder

Failure to include a necessary party.

Mis-Joinder

Including unnecessary parties.

Rule

Suit is generally not defeated due to:

Mis-joinder.
Non-joinder.

Exception:

Non-joinder of a necessary party.

15. Delivery of Summons (Order V)

Purpose

To notify defendant about the suit.

Copy of plaint.
Date of appearance.
Direction to file written statement.

Modes of Service

Personal service.
Registered post.
Speed post.
Courier.
Fax.
E-mail.
Substituted service (affixing notice).

16. Written Statement (Defence)

Time Limit

Within 30 days from service of summons.
Extendable up to 90 days.

Commercial Courts

Maximum 120 days.
After 120 days right is forfeited.

Requirements

Specific denial of allegations.
Documents relied upon.
Set-off and counterclaim details.

17. Appearance and Non-Appearance

Both Parties Absent

Suit dismissed.

Defendant Absent

Ex-parte proceedings.

Plaintiff Absent

Suit dismissed.

Ex-Parte Decree

Remedies Available to Defendant

Appeal.
Review.
Application to set aside decree.
Separate suit if decree obtained by fraud.

18. Discovery and Interrogatories

Discovery

Process of obtaining information from the opposite party.

Types

Discovery by interrogatories.
Discovery by documents.

Objects

Know opponent’s case.
Obtain admissions.
Narrow issues.
Reduce costs.

19. Admission

Acceptance by one party that facts stated by the other party are true.

Can occur:

In pleadings.
By answers to interrogatories.
By notice.
By agreement.

20. Issues

Meaning

Material propositions of fact or law affirmed by one party and denied by the other.

Types

Issues of Fact.
Issues of Law.

Sources for Framing Issues

Plaint.
Written statement.
Interrogatories.
Documents.
Statements of parties.
Witness examination.

Exam-Oriented Quick Revision

CPC contains 158 Sections.
Section 9 → Civil Courts’ jurisdiction.
Section 10 → Res Sub Judice (Stay of Suit).
Section 11 → Res Judicata.
Section 12 → Bar to Further Suit.
Section 15 → Lowest competent court.
Section 16 → Suits relating to immovable property.
Section 20 → Cause of action jurisdiction.
Order IV → Institution of Suit.
Order V → Summons.
Order VIII Rule 6 → Set-off.
Order VIII Rule 6A → Counterclaim.
Order XXXIX → Temporary Injunction.
Temporary injunction requires:
1. Prima facie case
2. Irreparable injury
3. Balance of convenience

These notes cover the most important concepts, definitions, case principles, and exam points from Law Relating to Civil Procedure.