8 Civil Court Process

Miss Juhi Gupta

1.INTRODUCTION

The civil process is provided for and governed by the Code of Civil Procedure, 1908 (hereinafter “CPC”). The substantive provisions are contained in sections and the procedural provisions are contained as rules in orders in the first schedule.

In summary, a civil proceeding takes place in the form of a suit between two parties known as the plaintiff and defendant before a civil court having jurisdiction. The suit is commenced upon the institution of a pleading known as a plaint by the plaintiff. In response, the defendant files a pleading known as a written statement. Based on the averments in both pleadings, the court frames issues which are adjudicated upon in the course of trial following which the court pronounces its judgment and passes a decree and/or order.

Stages of a Suit:

Learning outcomes:

The intended outcome of this module is to develop a general understanding:of the civil procedure of civil courts, as different from criminal court process,

the steps involved in filing a suit,

the various stages during the trial of civil process, as well as,

the remedies that can be sought and the procedures applicable after the court has pronounced its judgment.

2. JURISDICTION OF CIVIL COURTS

The jurisdiction of a civil court is decided on the basis of the case presented by the plaintiff in his plaint by looking at the substance of the matter and not the form. The plaintiff ought not to draft the plaint in such a manner so as to invest jurisdiction in a civil court which it does not possess. Every court has the inherent jurisdiction to decide whether the matter in which it is asked to exercise jurisdiction comes within its jurisdiction or not.

2.1 Suit of civil nature

Section 9, CPC, embodies the fundamental principle ubi jus ibi remedium, that wherever there is a right, there is a remedy. It stipulates that a civil court has jurisdiction to try a suit if two conditions are fulfilled: (1) The suit must be of a civil nature; and (2) The cognisance of such a suit should not be expressly or impliedly barred.

A suit is of civil nature if the principal question involved pertains to determination and enforcement of a civil right which covers private rights and obligations of a citizen. Illustrations of suits of a civil nature are suits relating to rights to property, specific reliefs, rents, damages for civil wrongs (torts) etc., and illustrations of suits not of civil nature are suits relating to principally caste questions, purely religious rites or ceremonies, expulsions from caste, upholding dignity or honour etc. A suit in which the principal question is of civil nature does not cease to be so if the adjudication incidentally involves the determination of a question which is not of civil nature.

The first explanation to the provision states that a suit in which a right to property or office is contested is a suit of civil nature notwithstanding that such rights may depend entirely on the decision on the question as to religious rites or ceremonies. The second explanation states that it is immaterial whether or not any fees or place is attached to such office.

For example, A is the head of an institution where he enjoys the privilege of being offered the sacred water and prasadam in all temples in the state. However, the new managing committee of one temple puts an end to this practice. A wants to seek redressal in a court. Such a suit is not maintainable because it is not a suit of civil nature. This is because A enjoyed a privilege, and not a right, out of respect given to him by people since he is the head of an institution. The privilege is not attached to the office he occupies. A suit to uphold dignity or honour is not a suit of civil nature. Therefore, A cannot file a civil suit under section 9 as it neither involves any right nor does it have anything of civil nature.

A suit is expressly barred when it is barred by any statute for the time being in force. Since every presumption should be made in favour of the jurisdiction of a civil court, any such provision of exclusion of jurisdiction must be strictly construed. A suit is impliedly barred when it is barred by general principles of law such as on the ground of public policy or when a statute provides for a specific remedy.

Consent can neither confer nor deprive jurisdiction. A decree passed without jurisdiction is a nullity and its validity can be challenged at any stage of the proceedings, including in execution proceedings or collateral proceedings.

2.2 Place of suing

Sections 15 to 20 regulate the forum for institution of suits. As regards pecuniary jurisdiction, section 15 states that every suit shall be instituted in the court of lowest grade competent to try it. However, a decree passed by a court of a higher grade is not without jurisdiction and will only constitute an irregularity. Sections 16 to 18 regulate territorial jurisdiction, a suit relating to immoveable property is to be filed in the court within the jurisdiction of which the property is situated. Section 19 provides that suits relating to moveable property and compensation for civil wrong (tort) can either be filed where the wrong is committed or where the defendant resides, carries on business or personally works for gain. Other suits, section 20, can be filed at the plaintiff’s option either where the cause of action arises, or where the defendant resides or carries on business or personally works for gain

3.ESSENTIALS OF A SUIT

Sections. 26-35-B and Orders 1-20 deal with the procedure relating to suits. The term “suit” has not been defined in the CPC. It refers to any proceeding by one or more persons against one or more persons in a court of law wherein the former pursues a remedy afforded by law for the redress of any injury or enforcement of a right, whether at law or in equity. A civil suit is a civil proceeding between two opposing parties, known as the plaintiff and defendant. There are four essentials of a suit: (1) Opposing parties; (2) Subject matter in dispute; (3) Cause of action; and (4) Relief. The institution of a suit is provided for in section 26 and Order 4. It is the plaintiff who institutes a suit by approaching the court and filing a suit for relief/s against the defendant claimed in a pleading known as a plaint. This is the first stage in a suit. It is responded to by the defendant in his pleading known as the written statement. This is the second stage in a suit.

3.1 Doctrines of res sub- judice and res- judicata

Section 10 embodies the doctrine of res sub judice and deals with the stay of civil suits. It prohibits a court from proceeding with the trial of any suit in which the matter in issue is directly and substantially is issue in a suit pending between the same parties before a court which is competent to grant the relief claimed. The object is to prevent courts of concurrent jurisdiction from simultaneously entertaining and adjudicating upon two parallel litigations in respect of the same cause of action, subject matter and relief. The second court, however, retains the powers to examine merits of the matter and pass interim orders.

Section 11 embodies the public policy doctrine of res judicata which lends finality to judicial decisions by preventing decisions which have attained finality in past litigation from being agitated again in subsequent litigation between the same parties. The provision can be broken down into the following elements which are also pre-conditions for the application of the doctrine:

i. The matter directly and substantially in issue in the subsequent litigation, whether on a question of fact or of law, must be the same matter which was directly and substantially in issue in the prior litigation either actually or constructively.

ii. The prior litigation must have been between the same parties or between parties under whom they or any of them claim.

iii. The parties must have been litigating under the same title in the prior litigation.

iv. The court which decided the prior litigation must be a court competent to try the subsequent litigation or the suit in which the matter is subsequently raised.

v. The matter directly and substantially in issue in the subsequent litigation must have been heard and finally decided by the court in the prior suit.

vi. The decision of the court in the prior suit must have attained finality either because no Appeal was preferred or the appeal was dismissed or no appeal lies.The doctrine rests on three maxims:

i. Nemo debet bis vexari pro una et eadem causa: No man should be vexed twice for the same cause.

ii. Interest reipublicae ut sit finis litium: It is in the interest of the State that there should be an end to litigation.

iii.  Res judicata pro veritate occipitur: A judicial decision must be accepted as correct.

For example, A sues B for damages for breach of contract. The suit is dismissed. A subsequent suit by A against B for damages for breach of the same contract is barred because A’s right to claim damages was decided in the first suit. It therefore becomes res judicata. On the other hand, A sues B for possession of certain property alleging that it came to his share on partition of joint family property. B’s contention that the partition has not taken place is upheld and the suit is dismissed. A subsequent suit by A against B for partition of the joint family property is not barred by res judicata.

Constructive res judicata prohibits a party from taking a plea which he could have taken but did not take against the same party in an earlier proceeding with reference to the same subject matter (Explanation IV to section 11). Similarly, any relief claimed in the plaint which is not expressly granted by the court shall for the purposes of section 11 be deemed to have been refused (Explanation V to section 11).

3.2 Claims

Order 2, Rule 1 provides that “as far as practicable”, a suit should be framed in a manner such that all matters in dispute between the parties should be disposed off finally. In each case the court will have to see whether it was practicable for the plaintiff to frame his suit so as to include a cause of action which he had omitted or intentionally relinquished. Order 2, Rule 2 lays down that every suit must include the whole of the claim to which the plaintiff is entitled in respect of the cause of action. Where the plaintiff omits to sue for or intentionally relinquishes any portion of his claim, he shall not afterwards be allowed to sue in respect of this portion. This is based on the cardinal principle of law that a defendant should not be vexed twice for the same cause. It is designed to counteract two evils – (i) splitting up of claims and (ii) splitting up of remedies.

The rule requires the unity of all claims based on the same cause of action in one suit. It does not contemplate unity of distinct and separate causes of action. It applies only where the plaintiff is entitled to more than one relief in respect of the same cause of action. For example, where the rent of several years is in arrears and the plaintiff claims the rent of only one year, he cannot subsequently sue for the rent of other years. Similarly, a suit for specific performance of a contract bars a subsequent suit for damages for failure to perform the contract. However, the dismissal of a suit for specific performance of a contract to transfer land is not a bar to a suit for the return of the consideration. The dismissal of a suit for enhancement of rent is not a bar to a suit for recovery of rent originally fixed.

3.3 Representative suit

A representative suit is dealt with in with Order 1, Rule 8. It is a suit filed by or against one or more persons on behalf of themselves and others having the same interest in the suit. The following conditions must be cumulatively satisfied:1

There must be numerous parties.

The parties must have the same interest in the suit i.e. community of interest. The common interest need not arise from the same cause of action or transaction.

Permission must have been granted or direction must have been given by the court. The permission can be expressed or implied and may be deduced from the proceedings.

Notice of the suit must be given by the court to all persons interested. Since any decree passed by the court will only bind parties on record, the notice provides sufficient information to all interested persons enabling them to apply to be impleaded.

For example, in TN Housing Board v TN Ganapathy,2 residential buildings were allotted by the Housing Board to the applicants who belonged to the low-income group. Once the price was settled, the Board made an excess demand. The allottees challenged the demand by filing a suit in a representative capacity. The Supreme Court held that all the allottees had the same interest and it did not matter that separate demand notices were issued against each allottee giving rise to separate causes of action.

This provision is an enabling provision and does not compel any person to represent a community of persons having the same interest if his action is otherwise maintainable without joining the rest in the suit. Explanation VI to section 11 embodies an aspect of constructive res judicata – it provides that a decree passed in a representative suit binds all persons so represented who are therefore constructively barred from re-agitating the matters directly and substantially in issue in the former suit. This is subject to the conditions of Order 1, Rule 8 being satisfied and the representative suit having been conducted bona fide and on behalf of all persons interested.

3.4 Suit by indigent persons

Order 33 provides for filing of suits by indigent persons. It allows them to prosecute suits without payment of any court fees, provided conditions stipulated are satisfied. As per Rule 1, a person is considered indigent if he does not have sufficient means to pay the court fees or where no such fees is prescribed, if he is not entitled to property worth RS. 1,000. An application seeking permission to sue in forma pauperis needs to be presented to the court and the suit commences from this moment. Upon an inquiry in which evidence and witnesses may be examined,3 permission may either be granted or rejected.4 When permission is granted, the application shall be deemed to be a plaint in the suit and shall proceed in the ordinary manner.5 The court may assign a pleader to the indigent person if he is not represented by a pleader.6 The central government or state government may also provide free legal aid and services. However, the grant of permission may be revoked in these cases – (i) When the plaintiff is guilty of vexatious or improper conduct in the course of the suit; (ii) When his means are such that he ought not to continue to sue as an indigent person; (iii) When he has entered into an agreement under which another person has obtained an interest in the subject matter of the suit.7 When permission is denied, the applicant is granted time to pay court fees.8 The order rejecting the application is appealable under Order 43 and acts as a bar to a subsequent similar application.

3.5 Pleadings

Order 6 deals with pleadings in general. The object of the plaint and written statement is to inform the opposite party of the case to be met and they are used to ascertain the real dispute between the parties and outline definite issues by narrowing the area of conflict. Rule 2(1) identifies the following fundamental principles of pleadings, applicable to both plaints and written statements:

1. Pleadings should state facts and not law. For example, the following are questions of fact which must be pleaded – existence of a custom or usage, intention, and waiver or negligence. On the other hand, a plea about maintainability of a suit raises a question of law which need not be pleaded.
2. Facts stated should be material facts: Primary facts (facta probanda) which must be proved at trial to establish the plaintiff’s cause of action or defendant’s defence. Failure to plead any such fact denies the party the opportunity to lead evidence of that fact at trial.

• Pleadings should not state evidence (facta probantia).

1. Facts should be stated in concise form i.e. with specificity and certainty.

It has been uniformly held that pleadings should be interpreted liberally and construed as a whole with attention to the substance of the matter rather than the form.

Order 7 enumerates the rules in relation to a plaint. Rules 1-8 stipulate the particulars which every plaint must contain. An indispensable particular is a cause of action without which a plaint will be rejected.10 This expression has not been defined in the CPC and can be described as a bundle of essential facts which is necessary for the plaintiff to prove in order to succeed in his suit or which give the plaintiff the right to seek relief against the defendant. It essentially constitutes the foundation of a suit. For instance, in a suit for recovery of money due under a pro-note, the following facts together constitute the cause of action: The defendant borrowed a particular sum of money from the plaintiff on a particular day and place agreeing to repay the sum together with interest. He also executed the pro-note in favour of the plaintiff which is produced along with the plaint. The plaintiff demanded the sum of money on particular day by serving notice on the defendant. The defendant has not paid the sum due. Hence the plaintiff has filed the suit to recover the sum due by the defendant under the pro-note.

The plaint must also contain a statement of the value of the subject matter of the suit for the purpose of jurisdiction and court fees.11 The court fees payable is determined according to the Court Fees Act 1870 at the time of presentation of the plaint. In the context of court fees, the Delhi High Court pronounced a landmark judgment in Delhi High Court Bar Association v Govt of NCT of Delhi12 wherein the court struck down the Court Fees (Delhi Amendment) Act,2012 as unconstitutional. The amendment increased the court fees in certain cases at an average of 10 times, and in certain cases up to 100 times. The Court held that the Act was entirely arbitrary and violative of several Fundamental Rights, imposing a clear barrier to justice to majority of society. The court fee imposed was found to be more in nature of a tax, which a state legislature did not have the competence to levy. The Court also dismissed the legislation for reflecting utter non-application of mind disregarding several thousands of precedents, Law Commission Reports, treatises and international instruments.

It is essential for the plaint to have been filed within the limitation period from the date on which the cause of action arose.13 The limitation period is governed by the Limitation Act 1963. Where the suit is barred by limitation, the plaintiff must show the ground upon which exemption from the law of limitation is claimed. The general rule laid down in article 3 of the Limitation Act is that every suit filed after the period of limitation shall be dismissed and the statute does not contain any provision for condonation of delay in filing a suit.

Every plaint must specifically state the relief claimed by the plaintiff either simply or in the alternative.14 Where the relief is founded on separate and distinct grounds, they should be stated.15 The plaintiff is entitled to claim more than one relief in respect of the same cause of action; however, if he omits to sue for any particular relief, he cannot subsequently sue for the relief omitted except with leave of the court.16 The basic rule is that rights of parties should be determined on basis of the date of filing the suit;17 however, this rule can be departed from when the court is satisfied that in light of changed circumstances from the date of institution of the suit, the original relief is required to be moulded or replaced by a new relief altogether.18

Section 27-29 read with Order 5 discuss the issuing of summons, the process by which the defendant is notified of the suit filed against him and that his presence in court is required to defend the same. Order 5 discusses the various modes of service of summons – personal or direct service,19 by court,20 by plaintiff,21 or substituted service.22

Order 8 enumerates the rules in relation to a written statement which must be filed by the defendant within 30 days from the service of summons, which can be extended up to 90 days. The defendant is required to address every material fact alleged by the plaintiff in the plaint, state any new facts in his favour, and take legal objections against any claim of the plaintiff. A denial of any allegation of fact in the plaint must be specific and not vague or evasive. Every fact, if not denied specifically or by necessary implication, or stated to be not admitted in the written statement, shall be taken to be admitted by the defendant.

3.6 Issues

Order 10 deals with the first hearing where essentially the court records admissions and denials of both parties. It is on this day when the court applies its mind to the case either for taking evidence or framing issues. The framing and settlement of issues is the third important stage in a suit and is explained in Order 14. An issue arises when a material proposition of law or fact is affirmed by one party and denied by the other.23 Issues can said to be of three types: (1) Issues of fact;24 (2) Issues of law;25 and (3) Mixed issues of law and fact. 26 The court may dispose a case or any part thereof on an issue of law only if the issue relates to the jurisdiction of the court or any prevailing legal bar to the suit.27

It is imperative for the court to apply its mind and comprehend facts before framing issues. This is because it is the issues framed and not pleadings which guide parties in adducing evidence. Therefore, the issues have a critical bearing on trial and decision. The court must decide every point on which an issue is framed even if it is not mentioned in the pleadings. Allegations made on oath by the parties, allegations made in the pleadings or in answers to interrogatories, and documents produced by the parties may be relied upon to frame issues.28 The court may take assistance of the parties as well as examine witnesses or inspect documents to frame, amend, add or remove issues.29 Omission to frame an issue constitutes a material irregularity only when it affects the disposal of the suit on merits.

Example: X files a suit against Y to recover Rs. 1 lakh on the basis of a promissory note. Y contests the suit pleading that though he did execute the promissory note, X did not lend him the money on some pretext or the other. Y therefore seeks dismissal of the suit. The court frames the following issues:

Whether the plaintiff has proved that Y has executed the promissory note in question?

Whether the plaintiff has proved that the promissory note is supported by consideration?

Whether the plaintiff is entitled to a decision in his favour?

Issue 1: This issue does not arise. An issue arises when a material proposition of law or fact is affirmed by one party and denied by the other. Here, Y has admitted that he did execute the promissory note. He has not denied X’s affirmation to this effect. Therefore, this issue needs to be removed.

Issue 2: This issue is required because Y has denied receiving consideration but it has been framed incorrectly. The issue as framed places the burden of proof on X. However, according to S.118 of the Negotiable Instruments Act, 1888, whenever a negotiable instrument (in this case the promissory note) is either admitted or proved to have been executed, it is presumed to have been executed after receiving the consideration for the purpose. Y has admitted to having executed the promissory note but has denied receiving consideration. Therefore, the legal presumption under S.118 operates in favour of X and the burden of proof is on Y to prove that he did not receive the consideration. The issue should be amended to read: Whether the defendant proves that the promissory note is not supported by consideration?Issue 3: This issue is the general issue and should be retained in the form as framed.

3.7 Procedures after settlement of issues

After the pleadings have been submitted in court, it may appear to either party that the nature of the opposite party’s case is not sufficiently disclosed in his pleading. A party is entitled to know beforehand all material facts (facta probanda) constituting the case of the opposite party and all documents in his possession or power relevant to the suit. For this purpose, the CPC provides for the following procedures:

3.7.1 Discovery and inspection, Order 11:

After the settlement of issues, a party to a suit may require information from his adversary as to facts or as to documents in possession or power of such party, relevant to the issue in the suit. Where information as to facts is required, a party is allowed to put a series of questions to his adversary known as interrogatories.30 If the judge considers the proposed questions to be proper, he will compel the other side to answer them on oath before trial. This is known as discovery of facts. Where information as to documents is required,31 the party may apply for an order compelling the other party to submit a list of relevant documents in his possession or power, and in certain circumstances, for permission to inspect and take copies of those documents.32 This is known as discovery of documents.

3.7.2 Admissions, Order 12:

Section 58 of the Indian Evidence Act declares that facts admitted need not be proved. Admissions may be made before or after the filing of the suit and the judgment and decree may be passed on such admissions.33 A party may give notice in writing that he admits the whole or any part of the case of the other side.34 After discovery and inspection, either party may call upon the other party to admit within 7 days from the date of service of notice, the genuineness of any document.35 Every document which a party is called upon to admit, if not denied specifically or by necessary implication, or stated to be not admitted in the pleading of that party or in reply to the notice to admit documents, shall be deemed to be admitted except as against a person under disability. The court may, however, in its discretion and after recording reasons, require any document so admitted to be proved otherwise than by such admission.36 The court may also call upon any party suo motu to admit any document at any stage of the proceedings.37

3.7.3 Production, impounding and return of documents, Order 13 : The plaintiff must produce in court with the plaint the documents on which he is suing the defendant and a list of documents in support of his claim.38 A summons to a defendant should contain a direction asking him to produce all the documents in his possession or power upon which he intends to rely in support of his claim.39 Parties must produce their documentary evidence on or before the settlement of issues.40 Documents admitted in evidence shall be endorsed (signed by the judge) with the number and title of the suit, name of the person producing the document, the date on which it is produced and a statement of its having been so admitted.41 Documents not admitted in evidence shall be returned to the person producing them.42 The court may, after recording reasons, reject, at any stage of the suit, any document which it considers irrelevant or inadmissible.43 The court may also for sufficient cause, direct any document, book or exhibit produced before it to be impounded and kept in the custody of an officer of the court for such period and subject to such conditions as it thinks fit.44

3.7.4 Affidavits, Order 19:

An affidavit is a declaration of facts only, made in writing and sworn before a person having authority to administer oath. It should be confined to such facts as the deponent is able to prove to his personal knowledge, except on interlocutory applications on which statements of belief may be admitted.45 The court may make an order requiring any particular fact to be proved by affidavit,46 subject to the right of the opposite party to cross-examine the deponent.47 If a party desires to controvert the averments contained in the affidavit of the opposite party, he must either file an affidavit-in-reply or cross-examine the deponent. In the absence of this, the court is entitled to arrive at its own finding.

3.8 Trial

After issues are framed, parties are in a position to know the facts and documents they need to prove. For this purpose, they may apply to the court to summon persons as witnesses. Section 30-32 and Orders 16 to 18 contain necessary provisions for summoning, attendance and examination of witnesses. Since the plaintiff has to prove his claim, he has the right to begin in the hearing unless the defendant admits facts alleged by the plaintiff and/or contends that either on point of law or on some additional facts alleged by him, the plaintiff is not entitled to any relief in which case the defendant has the right to begin.48 The party having the right to begin produces his evidence in support of issues he is bound to prove. The other party then states his case and adduces his evidence, if any, and addresses the court generally on the whole case. The party beginning may then reply generally on the whole case.49 Oral evidence may be recorded by the Court Commissioner in the form of an affidavit under Order 19 subject to the right of the opposite party to cross-examine the deponent.50 As a general rule, once hearing commences, it will be continued till final disposal.51 However, the court has the discretionary power to grant an adjournment upon the application of a party under Order 17.

4    DECISION

4.1.1 Judgment

Secrion 2 (9) defines “judgment” as the statement given by a judge of the grounds of a decree or order. Rules 1-5 of Order 20 deal with judgments. It contemplates a stage prior to the passing of a decree or order. The court shall pronounce the judgment in open court either as soon as the hearing has been completed or within 30 days from the conclusion of hearing, the period extendable to 60 days on account of exceptional or extraordinary circumstances. 52 Pronouncement of a judgment is essential for its validity. After pronouncement, copies of the judgment must be immediately made available to the parties.53

An essential element of a judgment is that there should be a statement for the grounds of the decision. Every judgment other than that of a Court of Small Causes should contain (1) Concise statement of the case; (2) Points for determination; (3) Decision thereon; and (4) Reasons for such decision.54 Where issues have been framed, the court must record its finding with reasons on each individual issue unless the finding upon any one or more of the issues is sufficient to decide the suit.55 The last paragraph of the judgment is required to precisely state the relief granted.

The adjudications of a civil court may be divided into decrees and orders.

4.1.2  Decree

Section 2 (2) defines “decree” as the formal expression of an adjudication which conclusively determines the rights of parties with regard to all or any of the matters in controversy in the suit as far as the court expressing it is concerned. The conditions to be fulfilled are:56 (1) There must have been an adjudication in a suit; (2) The adjudication must conclusively determine rights of the parties with regard to all or any of the matters in controversy; and (3) There must be a formal expression of such adjudication. The CPC requires a decree to be passed in all suits. Therefore, it is an indispensable requisite. An appeal lies against a decree, not a judgment.57 Rules 6-19 of Order 20 deal with decrees.

The decree follows and agrees with the judgment58 and must be drawn up within 15 days of the pronouncement of the judgment. 59 It can only be passed in a suit which commenced by presentation of a plaint. The party in whose favour a decree is passed is known as the decree holder60 and the opposite party is known as the judgment debtor.61 Further, every decree is appealable unless otherwise expressly provided.

Examples of decisions which are decrees include an order of abatement of suit, an order rejecting a plaint for lack of a cause of action, order refusing one of several reliefs etc. Decrees can be of three classes:

Preliminary:62 The adjudication does not completely dispose of the suit i.e., the decree is only a stage in working out the rights of the parties which are to be finally adjudicated by a final decree. Some examples of suits in which the CPC allows the passing of a preliminary decree include suits for possession and mesne profits (Order 20, Rule 12), suits for dissolution of partnership (Order 20, Rule 15) and suits for partition and separate possession (Order 20, Rule 18).

Final:63 A decree may attain finality when no appeal is filed against the decree within the prescribed period, or the matter has been decided by the decree of the highest court, or the court passing the decree completely disposes of the suit.64 For example, in a suit for recovery of money, if the amount found due to the decree holder is declared and the manner in which the amount is to be paid has also been laid down, the decree is a final decree.

Partly preliminary and party final: For example, in a suit for possession of immoveable property with mesne profits, the final decree is the decree for possession of property and the preliminary decree is the direction to conduct an enquiry into the mesne profits. This is because the final decree for mesne profits can be drawn only after enquiry and the amount due is ascertained. Therefore, even though only one decree is passed, it is partly preliminary and partly final.

The CPC has also deemed certain adjudications as decrees despite not fulfilling the aforesaid criteria by way of legal fiction. These are known as deemed decrees. For example, section 2 (2) deems the rejection of a plaint and determination of any question under section 144 as decrees.

4.1.3 Order

Section 2 (14) defines “order” as a formal expression of any decision of a civil court which is not a decree. As a general rule, an order is found on objective considerations and must contain a discussion of the question at issue and the underlying reasons. Unlike a decree, an order may originate from a suit commenced by presentation of a plaint or from a proceeding commenced by a petition or application. In addition, an order may or may not finally determine rights and is appealable only if specified to this effect in the CPC.

5 APPEALS

Unlike the right to file a suit which is an inherent right, the right to appeal requires the sanction of law. Ss. 96 to 112 and Orders 41 to 45 deal with appeals. An appeal is a continuation of the suit. An appellate court has the power to determine a case finally, remand a case, frame issues and refer them for trial, and to take additional evidence or require such evidence to be taken.65

5.1 First appeal

Sections 96-99-A read with Order 41 deal with first appeals. Section 96(1) confers the right of first appeal against every decree passed by any court exercising original jurisdiction unless otherwise expressly provided by the CPC. A first appeal is maintainable on a question of fact, or of law, or a mixed question of fact or law. The appellate court may or may not be a High Court. Although the provision does not specify locus standi, two conditions must be satisfied to file an appeal: (1) The subject matter of appeal must be a decree; and (2) The appellant must be an aggrieved person i.e., the decree must genuinely and adversely affect his interests, pecuniary or otherwise.66

Section 96 (2) gives a defendant the right to appeal against an ex parte decree. This is concurrent with the remedy of filing an application to set aside an ex parte decree and both remedies can be resorted to simultaneously. Section 96 (3) precludes an appeal against a consent decree. An aggrieved person may appeal against a preliminary decree and if he fails to do so, he loses the right to challenge it in any appeal against the final decree.67 Where any appeal against the preliminary decree is allowed and the decree is set aside, the final decree is automatically rendered ineffective since it is nothing but a machinery for implementation of the preliminary decree.

Order 41 contains stipulations governing the memorandum of appeal as regards form, content and procedure. As per article124 of the Limitation Act, an appeal against a decree or order can be filed in a High Court within 90 days and in any other court within 30 days from the date of the decree or order appealed against. Rule 3-A of Order 41 provides that any appeal filed after expiration of the limitation period needs to be accompanied by an application for condonation of delay article 5 of Limitation Act) explaining that the appellant had sufficient cause for not preferring the appeal within time.

When the trial court has decided the suit on a preliminary point and the appellate court has reversed the decree, the latter may remand the case under Rule 23 of Order 41 to the trial court to adjudicate the other issues, excluding matters (if any) decided by the appellate court. An order of remand is appealable under Order 43.

5.2  Second appeal

Sections 100-103, and sections 107-108 read with Order 42 deal with second appeals. Section 100 (1) provides that a second appeal lies against a decree passed by the first appellate court and can only be filed in a High Court on a substantial question of law. As per article 116 of the Limitation Act, the second appeal needs to be filed within 90 days from the date of the decree appealed against. The substantial question of law needs to be such as between the parties in the case as distinguished from a question of general importance. The appellant needs to precisely state the question in the memorandum of appeal. 68 If the High Court is satisfied, it shall formulate the question and hear the appeal on the question.69 The respondent (the defendant in the original suit) can argue at the hearing of the appeal that the case does not involve the substantial question of law framed by the Court. The High Court can hear the appeal on any other question not formulated if it is satisfied that the case involves such question.70

5.3 Appeals from orders

Section 104-106 and Order 43 deal with appeals from orders. Appeals can be filed only against those orders which have been made appealable by the CPC.71 The appeal lies to the court to which an appeal would lie from a decree in the suit in which the order was made.72 As per article 116 of the Limitation Act, the appeal can be filed in a High Court within 90 days and in another court within 30 days from the date of the order.

5.4  Appeals to Supreme Court

Section 109 and 112 read with Order 45 provide for appeals to the Supreme Court when the High Court certifies that the case involves a substantial question of law of general importance and is of the opinion that the question needs to be decided by the Supreme Court.73 These provisions, however, need to be read with Articles 132-136 of the Constitution.

Section113 empowers a subordinate court to refer a pending suit, appeal or proceeding before it in which the decree is not subject to an appeal to the High Court when it entertains a reasonable doubt on a question of law. Only a court can refer a case either on an application of a party or suo motu.

Section 114 read with Order 47 empowers a court to review its judgment. This power can be exercised only upon an application by an aggrieved person. The power of review cannot be A review petition is maintainable in cases where no appeal lies, an appeal lies but has not been preferred, and in decisions on reference from a Court of Small Causes.74 An application for review can be presented as long as no appeal has been preferred. A review can be sought on any of the following grounds: (1) Discovery of new and important matter or evidence; (2) Mistake or error apparent on the face of record; and (3) Any other sufficient reason.

Section 115 empowers the High Court to entertain a revision in any case decided by any subordinate court when it is satisfied that the latter has committed a jurisdictional error when no appeal (either first appeal or second appeal or appeal from an order) lies to the High Court or any subordinate court. Accordingly, the High Court is empowered to interfere upon an application or suo motu, when the lower court has (1) exercised a jurisdiction not vested in it by law; or (2) has failed to exercise a vested jurisdiction; or (3) exercised its jurisdiction illegally or with material irregularity. This power is purely discretionary and can be used to only remedy jurisdictional errors. The High Court cannot interfere with any order passed by a subordinate court if it is within its jurisdiction even if it is legally wrong. As per article 131 of the Limitation Act, a revision application needs to be filed within 90 days from the date of the decree or order sought to be revised.76

7.EXECUTION

Execution is the enforcement of decrees and orders by judicial process to enable the decree holder to realise the fruits of the decree when the judgment debtor does not comply with the decree. It is extensively dealt with in sections 36-74 read with Order 21. As per section 38, a decree may be executed either by the court which passed it or by the court to which it is transferred for execution, the latter provided for in sections 39- 45 and the corresponding rules, upon the filing of an application.

Some important general principles governing execution are: (1) As a general rule, territorial jurisdiction is a condition precedent to a court executing a decree; (2) An executing court cannot go behind a decree and question or examine its legality or correctness since an execution proceeding is collateral to the judgment; (3) An executing court can construe a decree whose terms are vague or ambiguous in order to ascertain its precise meaning; and (4) A decree which is a nullity on account of inherent lack of jurisdiction can be challenged in execution proceedings.

The period of limitation for execution of a decree is 12 years from the date of the decree under article 136 of the Limitation Act, except in case of a decree for mandatory injunction for which the limitation period is three years under article 133.

Section 51 permits the decree holder to elect the mode of execution from several options subject to conditions and limitations as may be prescribed by the CPC. The modes enumerated in the provision are:

7.1 Delivery of property

Delivery of specific movable property is governed by section 51(a) read with Order 21, Rule A decree to this effect may be executed by seizure and delivery, or detention of the judgment debtor, or attachment and sale of the property, or attachment and detention both. The property must be in the possession of the judgment debtor.

Delivery of immoveable property is dealt with in Order 21, Rules 35 and 36. Where the decree is for immoveable property in the possession of the judgment debtor or in the possession of the person bound by the decree, it can be executed by removing the judgment debtor or any person bound by the decree and by delivering possession thereof to the decree holder. If the decree holder satisfactorily establishes identity of the decretal property, the decree must be executed by the court by putting the decree holder in possession thereof. This is known as khas or actual possession.77 However, if such property is in the possession of a tenant or other person entitled to occupy the same and not bound by the decree, the delivery of property should be effected by affixing a copy of the warrant at some conspicuous place on the property and proclaiming to the occupant. This is known as symbolical or formal possession.78

7.2  Attachment and sale or by sale without attachment of property

This is governed by section 51(b). The court is competent to attach the property if it is situated within the limits of its territorial jurisdiction. An order of attachment takes effect from the moment it is brought to the notice of the court.

7.3 Arrest and detention of judgment debtor in civil prison

This is dealt with in section 51(c) subject to the proviso to section 51. These provisions are mandatory and must be strictly complied with. They are not punitive in character. The object of arrest and detention enables the decree holder to realise the fruits of the decree and at the same time, protects the judgment debtor who is not in a position to pay the dues for reasons beyond his control or is unable to pay. Therefore, mere failure to pay the amount does not justify arrest and detention of the judgment debtor inasmuch as he cannot be held to have neglected to pay the amount to the decree holder. This was explained in Jolly George Varghese v Bank of Cochin in the following manner:

“The simple default to discharge is not enough. There must be some element of bad faith beyond mere indifference to pay, some deliberate or recusant disposition in the past or, alternatively, current means to pay the decree or a substantial part of it. The provision emphasises the need to establish not mere omission to pay but an attitude of refusal on demand verging on dishonest disowning of the obligation under the decree. Here considerations of the debtor’s other pressing needs and straitened circumstances will play prominently. We would have, by this construction, sauced law with justice, harmonised section 51 with the Covenant and the Constitution.”

7.4  Appointment of receiver

This is provided for in section 51(d) and must be read with Order 40, rule 1 regarding the appointment of a receiver and his powers. This is known as equitable execution and is entirely at the discretion of the court. It cannot be claimed as of right and is therefore an exception to the general rule that the decree holder can elect the mode of execution. This is considered to be an exceptional remedy and a very strong case must be made out in support of it. The decree holder must show that there is no effective remedy for obtaining relief by the usual statutory modes of execution. The court must also be satisfied that the appointment of a receiver is likely to benefit both parties rather than a sale of attached property.

7.5 Such other manner as the nature of relief granted may require For example, a decree for payment of money may be executed by attachment and sale of property of the judgment debtor or by his detention in civil prison or by both.79 This provision however is not exhaustive and does not override other provisions of the CPC. The same remedies can be employed to execute a decree for specific performance and a decree for injunction.80 A decree for restitution of conjugal rights cannot be executed by sending the person (husband or wife, as the case may be) to civil prison and the only permissible mode is attachment of the property of the judgment debtor.81

Section 47 lays down an important principle that matters relating to execution, discharge or satisfaction of a decree arising between parties or their representatives should be determined in execution proceedings and not by a separate suit. It recognises the exclusive jurisdiction of the executing court to determine all questions relating to adjudication. The object of the provision is to prevent unnecessary litigation and therefore, must be construed liberally. Examples of questions covered by this provision are whether the decree is fully satisfied, whether the decree is executable, whether execution of the decree was postponed etc.

8. REMEDIES

8.1 Injunctions

An injunction is a remedy in the form of an order of the court addressed to a party to the suit that either prohibits him from doing or continuing to do a particular act, or orders him to carry out a certain act.

Injunctions can be preventive, prohibitive or restrictive i.e., when they prevent or restrain a party from doing something. They may also be mandatory i.e., when they compel, command or order a party to do something. An injunction can be ad interim which is granted without finally deciding an application for injunction and operates till the disposal of the application,82 or interim which is granted while deciding the main application and operates till the disposal of the suit.83

An injunction may either be permanent or temporary. A permanent or perpetual injunction restrains a party forever from doing the specified act and can only be granted on merits at the conclusion of the trial after hearing both parties. It is governed by sections 38-42 of the Specific Relief Act 1963. A temporary or interim injunction restrains a party temporarily from doing the specified act and can only be granted until the disposal of the suit or until further orders of the court. It is governed by Order 39 of the CPC and may be granted at any stage of the suit.

The primary purpose of granting interim relief is to preserve the property in dispute till the legal rights and conflicting claims of the parties before the court are adjudicated. Order 39, Rule 1 enumerates the grounds to grant a temporary injunction. The court retains the discretion to grant a temporary injunction which ought to be exercised reasonably, judiciously and on sound legal principles. The three pillars upon which every temporary injunction order rests are:84

1. Whether the plaintiff has a prima facie case?
2. Whether the plaintiff would suffer irreparable injury if his application for temporary injunction is not granted?
3. Whether the balance of convenience is in favour of the plaintiff?

Prima facie case: The court must be satisfied that the applicant has raised a bona fide dispute, that there is an arguable case for trial which needs investigation and a decision on merits, and that on the facts before the court there is a probability of the applicant being entitled to the relief claimed by him. While determining whether a prima facie case has been made out, the relevant consideration is whether on the evidence led it is possible to arrive at the conclusion in question and not whether that is the only conclusion which could be arrived at on that evidence. The court should not examine the merits of the case at this stage because it is not expected to decide the suit finally.

Irreparable injury: The applicant must satisfy the court that he will suffer irreparable injury if the injunction is not granted and that there is no other remedy open to him by which he can protect himself from the consequences of the apprehended injury. The expression “irreparable injury”, however, does not mean that there should be no possibility of repairing the injury. It only means that the injury must be a material one i.e., which cannot be adequately compensated by damages. The exposition of this principle in American Cyanamid Co. v Ethicon Ltd.85 can be broken down in the following manner:

First, the court should consider whether the plaintiff, were he to succeed at the trial, would be adequately compensated by an award of damages for the loss he would have sustained as a result of the temporary injunction not being granted in his favour i.e., by allowing the defendant to continue to do what was sought to be enjoined between the time of application and time of trial. If the award of damages is an adequate remedy and the defendant would be in a financial position to pay them, the temporary injunction will normally not be granted, however strong the plaintiff’s claim appears to be.

Second, if damages is not an adequate remedy, the court should consider the contrary hypothesis – whether the defendant, were he to succeed at the trial, would be adequately compensated by an award of damages for the loss he would have sustained as a result of the temporary injunction being granted in the plaintiff’s favour i.e., by preventing the defendant from doing what he sought to do between the time of application and time of trial. If the award of damages is an adequate remedy and the plaintiff would be in a financial position to pay them, the temporary injunction will be granted.

Balance of convenience: The court must be satisfied that the balance of convenience is in favour of the applicant i.e., that the comparative mischief, hardship or inconvenience which is likely to be caused to the applicant by refusing the injunction will be greater than that which is likely to be caused to the opposite party by granting it. In American Cyanamid Co v Ethicon Ltd,86 it was observed that the plaintiff’s need to be protected against an irreparable injury must be weighed against the corresponding need of the defendant to be protected against injury resulting from his having been prevented from exercising his own legal rights for which he could not be adequately compensated under the plaintiff’s undertaking in damages if the uncertainty were resolved in the defendant’s favour at the trial.

Examples of other remedies which can be sought:

Recovery of money

Payment of damages/compensation Specific performance of contract

Declaration of title and/or possession to the suit property Partition of suit property

Restitution of conjugal rights

Attachment and/or sale of property

9. INHERENT POWERS

Inherent powers are complementary to the powers specifically conferred on the court by the CPC which are exercised ex debito justitiae by the court to meet the ends of justice or to prevent abuse of process of the court. This is because the provisions of the statute are not exhaustive and inherent powers are required to address unforeseen circumstances. These powers are dealt with in section 148- 153-B and provide for grant and enlargement of time, making up any deficiency of court fees, amendments in judgments, decrees and orders, transfer of business and preventing abuse of process of court.

Inherent powers can only be exercised in the absence of express provisions in the CPC and in conformity with its express provisions and intentions of the legislature. The court must not misuse them to transgress or violate the CPC in any manner. They must be resorted to only in exceptional circumstances.

Section 151 is a salutary provision preserving the inherent powers to meet the ends of justice and prevent abuse of process of court. Such abuse may be committed by the court or by a party. Accordingly, this provision has been used by the court to recall its orders and rectify errors, set aside illegal orders or orders passed without jurisdiction, revive execution applications, allow amendment of pleadings, take notice of subsequent events, among many other purposes.

10. SUMMARY

In summary, the civil court process is governed by the Code of Civil Procedure, 1908, and takes place between the plaintiff and defendant before a court having civil jurisdiction. The process is initiated upon the institution of a suit of civil nature by the plaintiff seeking relief/s against the defendant. The bedrock of the process are the pleadings, namely the plaint which is filed by the plaintiff and the written statement which is filed by the defendant in response to the plaint.

Based on the averments made by both parties in their respective pleadings, the court applies its mind to the case and frames issues. The issues framed guide the parties in adducing evidence. The Code provides for several procedures after the settlement of issues which enable both parties to acquire a complete understanding of the opposite party’s case. The trial culminates in a decision. The party in whose favour the decision is pronounced is known as the decree holder, and the party against whom the decision is pronounced is known as the judgment debtor. The decree holder can ensure the enforcement of the decree through the various procedures of execution provided for in the Code. Similarly, the judgment debtor can challenge the decision through the different channels provided for in the Code.