Basics of Civil Procedure Code

Basics of Civil Procedure CodePrint this

Table of Contents

Introduction.. 3

Suits – Institution, Place of institution and Parties to the suit.. 5

Jurisdiction. 5

Parties to a suit 6

Joinder of Parties. 6

Representative Suits. 7

Place of Suing. 8

RES JUDICATA AND RES SUB JUDICE.. 13

Res Sub Judice. 13

Res Judicata. 13

On Pleadings, Plaints And Written Statements. 15

Amendment of Plaint 17

Summons. 18

Appearance and Non-Appearance of Parties. 18

Set-off and Counter Claim.. 19

Settlement of Disputes Outside Court.. 21

compromise of suits. 21

First Hearing.. 23

Interim orders

Table of Cases1. Abdul Hamid v. Abdul Majid, (1988) 2 SCC 575.2. Commercial Aviation & Travel Co. v. Vimla Pannalal, AIR 1988 SC 1636.3. F.C.I. v. Yadav, (1982) 2 SCC 499.4. Ganga Bai v. Vijay Kumar, (1974) 2 SCC 393.5. Gounder v. Gounder, AIR 1955 Mad 281.6. Hira Lal . Kali Nath, AIR 1962 SC 199.7. Ishwar Singh v. Kuldip Singh, 1995 Supp (1) SCC 179.8. Kalyan Singh v. Chhoti, (1990) 1 SCC 266.9. Kiran Singh v. Chaman Paswan, AIR 1954 SC 340

10.  Kisandas v. Vithoba, (1909) 11 Bom L R 1042.

11.  Manoharlal v. State of Maharashtra, (1971) 2 SCC 119 (124-125).

12.  Mohinder Singh v. Data Ram, AIR 1972 SC 1048.

13.  P.M.A. Metropolitan v. M.M Marthoma, AIR 1995 SC 2001.

14.  Prabodh Verma v. State of U.P., (1984) 4 SCC 251.

15.  Prithvichand v. Shinde, (1993) 3 SCC 271.

16.  Raman v. Arunachalam, AIR 1936 Ran. 335.

17.  Ramaseshayya v. Ramayya, AIR 1957 AO 964 at 965.

18.  State of Gujrat v. Jaipal Singh, (1994) 2 Guj LH 403.

19.  State of Punjab v. Shamlal Murarari, (1976) 1 SCC 719.

20.  Sudhansu v. State, AIR 1972 Cal. 320.

21.  Sushil Kjumar v. Gobind Ram, (1990) 1 SCC 193.

22.  Virendra v. Vinayak, (1999) 1 SCC 47.

Introduction

The concept of rule of law entails that not only must the law be applied to its logical conclusion in every possible case, but also that substantive justice must be done in every possible case. Thus while the law itself is divided into two separate branches, being substantive law and procedural law, the ends of the two stands of law are fundamentally different.

While the end of substantive law is to lay down the rights and liabilities of parties, the end of procedural law is to ensure effective access to the substantive law. Thus, while the laws of procedure are very important, in that the lack of these laws would result, in the denial of access to the rights derived from substantive laws, the laws of procedure are also in some ways subservient to the substantive laws. Furthermore, it is clear from this very rudimentary understanding itself that the laws of procedure being facilitative must be used in that role alone and must not be propelled to a position where the stick application of the laws of procedure in fact being detrimental rather than facilitative of the process of determining and achieving legally guaranteed rights.[1]

To quote the words of Krishna Iyer, J. in State of Punjab v. Shamlal Murarari[2]:

“We must always remember that processual law is not to be a tyranny but a servant, not an obstruction but an aid to justice. It has been wisely observed that procedural prescriptions are the handmaiden and not the mistress, a lubricant and not a resistant in the administration of justice……After all the courts are to do justice and to wreck this end product of technicalities”

Thus the logical question that arises and that must be answered is not as to the role of the code of civil procedure, but as to whether the code is actually framed in such a way as to achieve that desired end.

The researcher seeks to demonstrate in the course of this project, through a detailed study of the process through which the CPC works, that at each stage, the code is designed in such a manner as to ensure that the end product of the application of the code is the achievement of substantive justice. Furthermore, the paper will also show, that the judiciary has further interpreted the various provisions of the code liberally to achieve this very end.The gigantic nature of the code and the specificity of its application makes it impossible for the researcher to undertake a detailed study of the code, but the paper will certainly look at a vast array of illustrations to demonstrate the conclusion reasonably convincingly.

Research methodology

HYPOTHESIS

The hypothesis of this paper is that the Code of Civil procedure acts as a lubricant and not a resistant in the administration of justice.

RESEARCH QUESTIONS

Whether the rights of the parties get crystallised on the date of institution of suit? Whether courts take cognizance of the subsequent events? When can the pleadings be amended to incorporate subsequent events? Whether no relief should be refused to the plaintiff by reason of any subsequent

event if at the date of the institution of the suit, he has a substantive right? What would be the relevant subsequent events? At what stage of the proceedings can the courts take cognizance of the subsequent

events?

SCOPE AND FOCUS

The issues involved in the case were whether High Court in revision was bound to take cognizance of subsequent events and whether remittal of whole case by the appellate authority where a finding on a specific point was required was illegal. However the focus of the Supreme Court was only on the issue as to whether the High Court is bound to take cognizance of the subsequent events.  The researcher in this project too limits his focus to that issue alone.

STYLE OF WRITING

The paper is analytical and descriptive in nature and follows a uniform method of citations which are through footnotes.

SOURCES OF DATA

The project has been written with the help of secondary sources i.e. articles, books, cases and web pages.

MODE OF CITATION

The standard NLSIU mode of citation has been followed in this project.

Chapter 1

Suits – Institution, Place of institution and Parties to the suitThe following section seeks to study aspects such as jurisdiction of civil courts, parties to a suit, institution of a suit, place of institution etc. to try and establish that the Code of Civil Procedure acts as a lubricant in the administration of justice and facilitates the achievement of substantive justice.

Jurisdiction

The basis of all remedies is the existence of a right. This of course is derived from the exalted common law principle of ubi jus ibi remedium. This principle literally means, “where there is a right, there is a remedy”. All litigation clearly is therefore for the enforcement of rights. For the enforcement of these rights, there is a necessity for the filing of a suit before a civil court.   It is the filing of these suits and the subsequent proceedings thereunder that form the crux of the Code of Civil Procedure. At the very outset it is the CPC that gives every person who has a right of civil nature to file a suit before a civil court. The right to file a suit of civil nature before a court is granted under section 9 of the CPC. This right is subject only to the right expressly or impliedly being taken away by another statute.[3] The right to file a suit, that is in effect the jurisdiction of every court to look into a matter of civil nature is a right that has been upheld in a large number of cases and the courts have gone so far as to recognize that there need not be any authority of law for the maintainability of the suit, the mere fact of there being no express bar against the maintaining of such a suit being sufficient ground to believe that the courts had jurisdiction to look into the matter.[4]

The doctrine of section 9 was best explained in the case of P.M.A. Metropolitan v. M.M Marthoma[5] where the Supreme Court stated:

“The expansive nature of the section is demonstrated by the use of phraseology both positive and negative. The earlier opens the door widely and the latter debars entry only those who have been expressly or impliedly debarred. The two explanations, bring out clearly the legislative intention of extending the operation of the section to religious matters where right to property or office is involved irrespective of whether any fee is attached to the office or not. …It is structured on the basic principle of civilized jurisprudence that absence of machinery for enforcement of rights makes the rights nugatory.”

This read along with the wide nature of the access makes it clear that the CPC intends that as many litigants as possible to access the courts, which is the start of the process of doing substantive justice, since a rigid process at this level would perhaps end up causing a situation where litigants with substantive rights would be turned away at the doors of the court due to lack of jurisdiction. Thus right from the very star of proceeding, which depends on the courts having jurisdiction, it is clear that the CPC seeks to keep the requirements for the litigant to seek justice at a low threshold. This makes it clear that the purpose or the general tenor of the code is towards enabling as many litigants as possible to seek substantive justice.

Parties to a suit

The most crucial element of any suit would clearly be the parties to the suit. The paper will now seek to study as who may file a suit and what parties the suit must be filed against and the consequences of not complying with the procedure strictly. And through

this analysis demonstrate that the CPC has several provisions, which facilitate the better delivery of substantive justice. Order 1 deals with the subject of parties to the suit and lays down inter alia provisions with respect to joinder, misjoinder and non-joinder of parties.

Joinder of Parties

Per say, if one refers to section 9, which grants jurisdiction to the courts, it becomes clear that any person who has a grievance of civil nature can approach the court with a plaint. A plaint is in effect a complaint made o the court seeking civil remedy. Therefore per say the person who is aggrieved by a particular matter must file a suit in that regard.

However, clearly not every grievance would be restricted between two parties. There might be cases where there are two or more people who are jointly affected by the same action of the same person or the same set of persons. It these cases, if the common place view of the aggrieved person having the right to approach the court is taken, then it would amount to a multiplicity of litigation. Furthermore, even if the parties actually wanted to start the process of litigation together, perhaps for easier management of the litigation process, perhaps, to reduce he net quantum of court fees payable, then that might not be possible. Further, if there is a case where several plaintiffs seek to file suits for the same matter against a common defendant, then it would jeopardize the defendant’s chances so far as being able of counter all the litigation is concerned. As a consequence, what would be ideal is a situation where parties with a common grievance could be joined in a single suit. In this regard it is submitted that the CPC has provisions that enable the process of joinder of both the plaintiffs and the defendants. While Order 1 Rule 1 deals with the joinder of plaintiffs, Order 1 rule 3 deals with joinder of defendants.

In this regard, the requirements for joinder of plaintiffs are that: (1) the right to relief alleged to exist in each plaintiff arises out of the same act or transaction. (2) the case is such that if the two plaintiffs brought separate suits common questions of law or fact would arise. Clearly both requirements have to be fulfilled.[6] Again for the joinder of defendants while the second requirement is the same, the first requirement is that the right to relief alleged to exist against them must arise out of the same act or transaction.

All suits must be towards a necessary party. However, there might also be private parties who should ideally be made a party to the suit. A necessary party is one whose presence is indispensable to the constitution of the suit, against whom the relief is sought and without whom, no effective order can be passed.[7] A proper party is one in whose absence an effective order can be passed, but whose presence is necessary for complete and final decision on the question involved in the proceeding.[8] This distinction between necessary parties and proper parties is particularly significant in the context of the consequence of non-joinder or misjoinder of parties. Where a person, who is a necessary or proper party to the suit has not been joined as a party to the suit, the it would be a case of non-joinder of parties. Conversely, if two or more parties are joined as plaintiffs or defendants in a suit in contravention of Order 1 Rule 1 and 3 respectively, and they are

neither necessary nor proper parties, then it would be a case of misjoinder of parties.  This has been laid down under Order 1 Rule 9. What is significant however, is the fact that there has been consistent interpretation of the rule to mean that a suit will not be dismissed on the mere ground that there has been misjoinder or non-joinder of parties. Thus if a wrong party has been added to the suit or a proper party has been left out, that would not be ground to dismiss the suit entirely. It would however lead to a situation where complying with the other rules under Order 1, the parties would have to be added to the suit.

This is a clear indication of the fact that the CPC is not meant to be used as a code where the mere non-compliance with a procedural requirement would take away fro the party that has approached the court the right to seek substantive justice. Thus where a party has failed to add a party to the suit and he is a proper party, then the tenor of the CPC ensures that he is deprived of his right to have his case heard on merits due to a mere procedural lapse.

On the other hand, the interpretation of the code is also that where a necessary party to the d\suit has been left out of the suit, then the suit would be liable to be dismissed on that ground. In the view of the researcher, this again is done to further the cause of substantive justice. This is because of the fact that the laws of procedure must not only seek to make the process of seeking justice easier for the plaintiffs, but also ensure that the defendants are not deprived of access to the same system. The necessary party in a way is the crux of the suit. It cannot be filed without putting his interest in a prejudicial position. Now, if there is a situation of non-joinder where the necessary party has not been made a party to the suit, then it would lead to a situation, where the necessary party who interests stand to be worst affected does not have access to put forward his point of view. Under such circumstances, the dismissal of the suit ensures that the interests of this person are protected. Thus both the position with respect to not dismissing suits for mere non-joinder or misjoinder of parties and the dismissal of the suit for the non-joinder of a necessary party are in the nature of provisions, which seek to do substantive justice. This is another illustration of what this paper seeks to establish.

Representative Suits

As a general rule, all persons involved in a suit must be joined as parties to the suit, so that the matter involved in the suit that be decided upon by the court with finality and there is not repeated litigation over the same questions of fact and law. Order 1 Rule 8 of the CPC, which deals with the concept of representative suits, is an exception to this general rule. Several commentators have compared the concept of representative suits to the concept of public interest litigation under the Constitution. The definition of representative suit is that it is a suit filed by a person or a group of persons on behalf of themselves and others having the same interest in the suit.

The concept of the representative suit is basically this. Where there is a matter which affects a large number of people such that they are all affected in the same prejudicial manner, and they can all have a common interest from the matter under which they can

all go individually to the court, then due to the fact that such a large number of persons are affected and the fact that a large number of them might not be in a position to approach the court, the courts permit a person or a group of persons to represent the larger group so that the matter can be decided at a single stroke and at the same time no one goes unheard due to the fact that all the affected parties are represented in the suit. For instance, if there is a case of an institution, which is creating a nuisance in a locality, and this nuisance affects a large number of persons, then it would not be necessary for all of them to file separate suits against the institution causing the nuisance. On the other hand any one of them could represent the views of all of them and the suit could be maintained.

For such a suit to be filed certain conditions must exist[9]

1. The parties must be numerous.2. They must have the same interest in the suit.3. Notice must be issued to the parties whom is is proposed to represent in the suit.4. The permission of the court must have been granted or the court must have given

direction.

The object underlying this provision is really to facilitate the decisions of questions in which a large number of people are interested without recourse to the ordinary procedure[10]. Order 1 Rule 8 has therefore been framed in order to save time and expense to ensure a single comprehensive trial of questions in which numerous parties are interested and to avoid harassment to parties by a multiplicity of suits.[11] Clearly if the concept of representative suits, which is definitely an enabling provision had not been there it would have caused not only hardships to the plaintiffs but also to the defendants who would then have to defend their case against each of the several parties involved. This provision ensures that that is reduced as well. Thus it might convincingly be said that this provision is one that tries and promotes the smooth movement of litigation as well as the end of substantive justice.

Place of Suing

Sections 15 –20 lay down the guidelines as to the forum at which each suit can be filed depending on the nature and the contents of the suit, while section 21 and the newly added 21A as inserted in the 1976 amendment deal with the question of objections to jurisdiction.

Section 15 brings in the concept of pecuniary jurisdiction into the CPC. The sections lays down that every suit must be tried in the lowest grade competent to try it. The object of the provision is reasonably straightforward and twofold. One the one hand the provision ensures that courts of a higher grade do not get overburdened with a large number of cases. Second, it makes it much more convenient to parties and witnesses who may be examined in such suits. This is because of the fact that which the lowest grade o court competent to try the matter namely the court of the Magistrate of first division might be present in a small town of a taluka, the court of next higher jurisdiction might only be at

the taluk headquarters. A suit filed in this court would make it difficult for the parties and the witnesses to travel great distances each time to give evidence in such cases. This of course is prejudicial to the interests of doing substantive justice.

This raises two questions that are of crucial importance. Firstly, what happens, if the plaintiff approaches a court of a higher grade than the lowest one competent to try the suit and secondly, as what would happen if the valuation of the suit has not been done properly, so as to approach a different forum from the one meant to try the case. As for the first question, it is submitted that in keeping with the general tenor of the CPC, any lapse as to pecuniary jurisdiction, in approaching a court of higher jurisdiction, would not give good ground for the court to dismiss the case. It would still have to look into the matter on merits and give its decision. It is merely an irregularity covered under section 99 of the code and the court of higher jurisdiction should still give its decision on the matter.[12]

As to the second question, it is accepted judicial interpretation that the court should normally accept the value of the suit as the plaintiff claims. However, if the court discovers that the suit has been intentionally overvalued or undervalued so as to approach a different court from the one that has the pecuniary jurisdiction in the matter then the court should return the plaint to be filed in the appropriate court. However, this can be done only where there was the possibility of objectively determining the value of the suit by the plaintiff, who instead chose to give a totally arbitrary value to the suit.[13]

Under other circumstances however the court is expected to not throw out the suit on the basis of a mere technicality and instead look into the case on merits[14] Thus these provisions are clearly in the nature of facilitating the furtherance of substantive justice and not procedural rigidity.

Sections 16-19 discuss suits with respect to moveable and immoveable property and the jurisdiction of courts on territorial basis. While the first three of these sections discuss suits with respect to immoveable property, section 19 discusses jurisdiction of courts in suits with respect to moveable property.

Reading sections 16 –18 together, one might come to the conclusion, that the suit with respect to immoveable property must be filed either at the court within the jurisdiction of which the immoveable property is located. This is fairly simple to comprehend and apply. The problem however, arises where the property is situated within the jurisdiction of more than one court.

This is a situation, which has great potential to cause confusion and result in considerable amount of litigation merely to determine the right forum to approach to get the relief based on merits. This process itself would take such a long time as to affect the substantive interest that the plaintiff could get from the suit. As a consequence section 17 of the code specifically provides that where the property is situated such that I falls under the jurisdiction of more than one court, any one of the courts would have the jurisdiction to try the case.

There is a further confusion that may arise in cases where there is uncertainty as which court has the jurisdiction over the matter. Thus there might be years of litigation just to determine as to which of several courts has jurisdiction over a given matter. This process again would affect the giving of substantive justice. As a consequence, the CPC has another provision, which says that if there is uncertainty as to which of several courts has the jurisdiction to decide a particular case, then if the court is convinced of this uncertainty any one of the several courts may try the case. This is provided for under section 18 of the code.

Section 19 on the other hand deals with the jurisdiction of courts with respect to matters of moveable property, tortious wrongs committed against the person etc. In these cases as per section 19 the suit must be filed either at the place where the wrong is committed or at the place where the defendant resides, carries on business or personally works for gain. The logic behind this is fairly simple. The plaintiff must ensure that the defendant has adequate opportunity to present his side of the case. Substantive justice lies in allowing both sides to have equal opportunity to present their case and not put one of the parties at inconvenience  at the whims or fancies of the other party. Thus the plaintiff must only be allowed to file the cliam at the place where the act occurred with respect to which both parties are equally placed or at the place where the defendant resides or works for gain. This is only done so that the plaintiff cannot take advantage of the fact that he is filing the plaint and file it in a far off place, which will make it economically unviable for the defendant to attend himself or adduce witnesses or other evidence in his support.

Again under section 20 which provides for a situation not contemplated under any of the previous sections, the place of the institution of the suit must be

(1)   Where the cause of action partly or wholly arose; or

(2)   Where the defendant resides, or carries on business or personally works for gain; or

(3)   Where there are two or more defendants, at the place where any one of the defendants resides, or carries on business or personally works for gain, provided that (1) either he leave of the court is obtained or (2) the defendants who do not reside, or carry on business or personally work for gain at that place acquiesce in such institution.

Again the logic behind this section is the same as the logic behind the previous section. To quote the words of the Supreme Court:

“Section 20 has been designed to secure that justice might be brought as near as possible to every man’s hearthstone and that the defendant should not be put to trouble and expense of traveling long distances in order to defend himself in cases in which he may be involved.”

This demonstrates very well the intent of the CPC as being one that seeks to ensure that suits are decided on merits of fact and law and not on mere procedural manipulation.

In this regard it is important to also study the provisions with respect to objections to jurisdiction. It is an accepted position of law that where a decision was reached by a court that did not have the competence to look into the matter, that is to say a court without jurisdiction, the decree of the court is a nullity.[15] Furthermore, it is an established position of law, that jurisdiction can neither be taken away nor conferred on a court by mutual consent of the parties.[16] However, this rule has been relaxed under the CPC and does not apply to territorial or pecuniary jurisdiction inasmuch as objections to such jurisdiction are regarded by the court as merely technical and unless the objection is raised at the earliest possible opportunity, they will not be entertained in the appeal or revision for the first time.[17]

As per the law now, under section 21(1) of the cpc no objections as to the place of suing will be allowed by an appellate or provisional authority unless the following three conditions are all fulfilled.

1. The objection was taken in the court of first instance;2. It was taken at the earliest possible opportunity and in cases where the issues have

been settled, at or before the settlement of issues; and3. There has been a consequent failure of justice.

It is submitted that the three prerequisites for taking the plea of lack of jurisdiction makes it obvious that the aim of the CPC is not to ensure procedural compliance but to ensure substantive justice. Clearly, the mere fact that the court lacked territorial jurisdiction would not put it in a position where it could not determine the matter effectively on merits. However if the lack of jurisdiction had related to subject matter then the same cannot be said. However, in the case of territorial and pecuniary jurisdiction the CPC has provided that only if there has been a consequent failure of justice from the wrong exercise of jurisdiction will they courts entertain a plea of lack of jurisdiction. The very fact that this has been made a prerequisite shows that the CPC envisages a situation where, substantive justice must not be undone due to mere procedural irregularity.[18]

Clearly, therefore the object of section 21 is to protect honest litigants and to avoid harassment to plaintiffs who have bona fide and in good faith initiated proceedings in a court which has later been found wanting of jurisdiction. The fact that defendant had not raised the objection early enough or before the framing of the issues would be a clear indication of the fact that the defendant intended to go through with the merits of the case at that stage and the raising of the plea of lack of jurisdiction would therefore merely be a delaying process in the system, unless there has been a failure of justice.

In addition to the protection to the honest litigant under section 21 is the protection under section 21 A which says that no substantive suit can be filed to set aside a decree of a court on an objection as to the place of filing.

These two provisions in the opinion o the researcher are the strongest indicators of the tenor of the CPC in the direction of putting substance over form.

Chapter 2

RES JUDICATA AND RES SUB JUDICEThe following section seeks to study the concepts of Res Judicata and Res Sub Judice and seek to show that the existence and the application of these provisions would aid in the furtherance of substantive justice.

Sections 10 and 11 of the CPC deal respectively with the doctrines of res sub judice and res judicata. Both these are provisions that seek to ensure that there is no multiplicity litigation on the same matter and thus in do justice in that they seek to ensure that persons are nto put through the torment of litigation for the same matter over and over again.

Res Sub Judice

Section 10 deals with the doctrine of res sub judice and declares that no court should proceed with the trial of any suit in which the matter in issue is directly and substantially in issue in a previously instituted suit between the same parties and the court before which the previously instituted suit is pending is competent to grant the relief. Clearly the aim of the section is to ensure that courts of concurrent jurisdiction do not simultaneously entertain and adjudicate upon two parallel litigations in respect of the same cause of action, the same subject matter and the same relief. Te policy of the law is to confine a plaintiff to one litigation, thus obliviating  the possibility of two contradictory verdicts by one and the same court in respect of the same matter.

What the section therefore aims to do is to ensure that the litigants as well as witnesses are not inconvenienced by the process of litigation having over and over again to decide the same matter. Furthermore, differing decisions by two courts of equal competence would only result in further confusion and more litigation, which is undesirable.

Res Judicata

Section 11 of the CPC deals with the concept of res judicata, or the rule of conclusiveness of a judgment as to the points earlier decided either of fact or law or of fact and law, in every subsequent suit between the same parties. The principle of res judicata essentially lays down that once a matter of law or of fact or mixed issue of law and fact has been decided between two parties on a given set of facts, the same two parties cannot have another litigation between them to determine the same issues of law or fact. In the absence of such a rule there would be no end to litigation and the parties would be put to constant trouble harassment and expense.[19]

The concept of res judicata essentially ensures that once a party has been through the trouble of adducing evidence and presenting his side of the arguments once, he should not be forced t do it again, as if it were open to re-challenge the same point again and

again, the losing party each time to ensure that the decree of the court did not really hurt his interests would re-litigate the same point thus ensuring that the wheels of justice can never take a complete turn and thus that substantive justice inn the form of real relieves are never made available to the other party.

Chapter 3

On Pleadings, Plaints And Written StatementsThe following section seeks to study the plaints and written submissions, their contents, and particulars and seek to show that the existence and the application of these provisions would aid in the furtherance of substantive justice.

Order 6 deals with pleadings in general, dealing with inter alia the definition of pleadings, the fundamental principles of pleading[20] and the necessary particulars required to be supplied in the pleadings.[21] The order also deals with amendments to pleadings.[22]

A pleading is defined as a plaint or a written statement.[23] According to Mogha[24] “pleadings are statements in writing drawn up and filed by each party to a case, stating what his contentions will be at the trial and giving all such details as his opponent may require to prepare his case in answer.”

As is apparent from the definition of the pleadings the only possible pleadings are the plaint and the written statement.  Neither the meaning of plain nor that of written submission is mentioned in the CPC, however these are the two documents upon which the whole institution and the progress of the trial hinge.  While Order 7 deals with the particulars of the plaint, order 8 deals with the particulars of the written statement.

Prima facie it is apparent that the requirement of having a pleading is to facilitate a process by which both parties are aware of what the issue that needs to be sorted out is[25]. Therefore the party cannot be caught by surprise at the time of hearing. Furthermore it is essential to know the case of the other side to be able to effectively prepare fore for one’s own case. Therefore at the very out set it can be said that the requirement of having to file pleadings facilitates the better administration of substantive justice.

To quote the view of the Supreme Court from the case of Virendra v. Vinayak,[26]

“The object of the rule is twofold. First is to afford the other side intimation regarding the particular facts of the case so that they may be met by the other side. Second is to enable the court to determine what really is the issue between the parties.”

The significance or the importance of pleadings can be better understood through at least a rudimentary understanding of what the contents or the particulars of the plaint and written statement are meant to be.

Before going into these details however, it is crucial to analyze what the requirements of a pleading in general as envisaged by the CPC are.

From a reading of Rule 2(1) certain principles as to pleadings emerge:[27]

1. the pleadings should be of facts and not law.2. the facts should be material facts3. the pleadings should not state the evidence.4. the facts should be state in a concise form.

In this regard it must be mentioned that all facts are of two types facta probanda (facts that are to be proved) and facta probantia (facts by means of which they are to be proved). It is submitted that the only facts to be included in the pleading are the facta probanda and not the facta probantia. In this regard, it is submitted that the particulars that the CPC has laid down makes it apparent that the CPC intends that the process of communication of the details of the suit to be such that it does not involve very convoluted matters so as to ensure that the other party can fathom as to what the opponent party is seeking to establish so that the defence that is prepared can be of suitable nature. Furthermore it is mandated that all the material particulars must be provided so that the other party knows fully well what all it has to counter.  This rule it has been held is not of mere technicality but is significant, in that if material fact is omitted then it cannot be adduced before the court later. This again is clearly in furtherance of doing substantive justice, so that parties do not hide facts during the pleadings and later use them on an unprepared opposition in the trial.

Having seen the general provisions with respect to pleadings, it becomes essential to see the particulars to be mentioned in the case of plaints and written submissions. Rules 1-8 of order 7 lay down the particulars that must be present in every plaint. Amongst these the most important are the parties to the suit, the cause of action, the jurisdiction of the court, valuation of the suit and any limitations that might be there apart from the relief sought. If one analyses the need for these requirements, certain things become obvious. Firstly, the cause of action and the reason thereof must be mentioned. This again like has been explained in the general principles is so that the opposite party knows exactly what to address and in what manner. Further, this is the basis apart from the written statement for the court to determine the issues involved in the matter. Furthermore, it is important to note that the requirement of disclosing the cause of action is crucial as non disclosure of the cause of action is good ground for the court to reject the plaint[28].  Further with respect to the relief claimed the same argument as to the importance to doing substantive justice can be extended.

Secondly with respect to the jurisdiction, limitation, valuation etc., one might say that these are provisions which are present to Assisi the court, so as to ensure that the process

of litigation goes on smoothly and in a speedy manner by ensuring that the court need not waste its valuable time on deciding these trivial issues and can in stead concentrate on doing substantive justice. Furthermore, the aspect of speed itself can be used as an example to show that the CPC seeks to ensure that the litigants have access to justice as justice delayed would amount in several cases to no justice given at all.[29]

Thus in all one might make the assertion that through trying to make the process faster, what is sought to be done and achieved is the achievement of substantive justice.

Again if one looks at the written statement, it is defined as ‘a term of specific connotation ordinarily signifying a reply to the plaint filed by the plaintiff.’[30] In other words, a written statement is the pleading of the defendant wherein he deals with every material fact alleged in the plaint and also states any new facts in his favour or takes legal objections against the claim of the plaintiff.[31] The written statement is supposed to a precise and detailed reply to the averments of the plaintiff and is supposed to be accompanied by all the relevant documents. Again here the requirement of the defendant giving a detailed version of the events is crucial as it enables the plaintiff to be ready to counter any of his arguments in the court of law.

Amendment of Plaint

As already stated the pleading of the party is supposed to contain all the material facts and necessary particulars and the grounds of his case cannot be outside these grounds. Therefore it is important that every fact that the party seeks to use must be a part of his pleading. There might be situations where the party had not done this at the time of the original filing of the pleading, but sought to do so later. In these cases there would be a need to amend the pleading. The question is as to when the amendment of the pleading must be permitted.

Order 6 Rule 17 and 18 deal with the issue of amendment of pleadings. Rule 17 reads as follows: “The court may at any stage of the proceedings allow either party to alter or amend his pleadings in such a manner and on such terms as may be just, and all such amendments shall be made as necessary for the purpose of  determining the real questions in controversy between the parties’

The aim of the court is to try the case on its merits and ensure that the rule of justice prevails. For this the need is for the true facts of the case to be placed before the court so that the court has access to all the relevant information in coming to its decision. Therefore it is essential in several cases to allow parties to amend their places. Clearly the law that is laid down in this matter as laid down in the case of Kisandas v. Vithoba[32] is that for a court to grant permission for a party to amend his pleading two conditions have to be satisfied:

1. That no injustice must be done to the other side.2. That the amendment must be necessary for the purpose of determining the real

question in controversy between the parties.

Clearly the first requirement as laid down in this code as an interpretation of the CPC makes it amply clear that while the courts have wide discretion in allowing parties to amend their pleadings, such pleadings must not be at the cost of doing injustice to the other party. Thus the court must balance the interests of the parties in their pursuit of doing justice. Clearly this is an indication of the fact that the purpose of the CPC is to ensure the delivery of justice. Furthermore, the requirement of relevance of the amendment to the larger issue to be decided is a provision aimed at expediting the process of litigation and this again must be seen as facilitating the process of doing justice.

Summons

When the plaintiff files a suit, the defendant has to be informed of the fact that he suit has been filed against him, and that therefore he has to appear before the court to defend it. The intimation which is sent to the defendant by the court is technically known as the summons. The Dictionary of English Law defines summons as ‘a document issued from the office of a court of justice, calling upon the person to whom it is directed to attend before a judge or an officer of the court for a certain purpose. ‘[33]

The contents and the manner of issuing of summons is discussed under Order 5 and section 27 of the CPC. The Order and the rules thereunder specify that when summons are issued to any person, except for under certain circumstance the person to whom the summons is issued must appear either in person or through a pleader before the court. Furthermore, an elaborate procedure has been laid down with respect to the methodology that must be followed in serving the summons to the defendants in each case.

Clearly the purpose of the summons is twofold. One to let the other party know that there are proceedings that have been instituted against them in the court and second to ensure the attendance of the other party. Both these requirements are crucial since non achievement of any one of these two objectives would result in a situation where the suit cannot progress at all as the basis of the progress of the suit is the existence of contradictory views on a point between two parties. Further if the defendant is not even aware of the fact that proceedings are initiate against him then he would have no chance of refuting any allegations, which would amount to passing a decision without a hearing.

Appearance and Non-Appearance of Parties

The appearance of parties is crucial to the progress of the suits. Substantive justice demands that if the matter is decided on merits, then the parties must be given the best possible chance of making their case, which depends on the appearance of parties. This however, is subject to them knowing of the existence of such proceedings, which is done through the process of issuing summons, after which the parties are expected to come and present their case on the appointed date.

Order 9 deals with the appearance and non-appearance of parties and the consequences of such actions. Rule 1 of this Order requires that the parties to the suit shall be present at the time when the defendant is supposed to appear as per the summons. Rule 12 holds that where, a plaintiff or a defendant has been asked to appear and he does not appear, or does not subsequently show good cause for not appearing, in the case of a plaintiff, the suit shall be dismissed, while in the case of the defendant the suit shall be decided ex parte.

While the rule with respect to appearance seems rather strict, it must be mentioned that the judicial interpretation in this regard is that the parties must be given a few chances before they are either placed ex parte or the suit is dismissed. Furthermore, where the suit is dismissed, the plaintiff is not entitled to file a suit on the same cause of action, but may apply for the setting aside of the dismissal of the suit. For this of course sufficient cause has to be shown for the non appearance. However judicial interpretation in this regard has been that where sufficient cause has been shown, the reopening of the case is mandatory, but where it is not shown, the reopening of the case is not ruled out, but left to the discretion of the court.[34]

The court in these cases looks at whether the plaintiff or the defendant had the honest  intention to appear but could not do so or failed to do so for some other reason which might not convince the court of sufficient reason, but might still show the court, that the party intended to come.

The provisions with respect to appearance clearly show, that the code intends that the proceedings must go on speedily with the parties present at all times when they are required to be present, while at the same time being sensitive to the fact that there might be genuine reasons for the parties not being able to appear and under such circumstances not penalizing them.

Set-off and Counter Claim

The concept of set-off is enunciated under Order 8 Rule 6 of the CPC. Set-off means a claim set up against another. It is therefore a cross-claim which partly offsets the claim of the plaintiff. Where there is a situation where the plaintiff has filed a suit for the recovery of a certain sum of money from the defendant and the defendant finds justice in the claim of the plaintiff, but at the same time believes that he has a demand of his own amounting to at most as much as the demand of the plaintiff, then the defendant can file for a set-off to counter-balance the two debts. It is therefore a reciprocal acquittal of debts between the two parties. The set-off might be a legal set-off or an equitable set-off, but in either case the principle remains the same.

The object of this provision is fairly obvious. It seeks to prevent a multiplicity of litigation between the same two parties as to ascertainable claims through deciding them in the same suit and adjusting their claims so as to ensure that either their respective claims are written off or that if the claim of the plaintiff is more than that of the defendant, the excess amount is paid by the defendant to the plaintiff.

Thus what the provision relating to set-off does is make the two parties argue their counter-claims in the same suit and thus effectively counter-balance their interests to speedily dispose of the case while at the same time doing justice to the interests of both parties.

A counter claim on the other hand may be defined as a claim made by the defendant in a suit against the plaintiff. [35] This means that in the written submissions of the defendant, in addition to seeking the claim of a set-off the defendant may actually go ahead and a make a claim of his own, which is in the nature of a plain against the plaintiff. Thus what the counter-claim effectively is is a cross-suit in the same suit.

A counter-claim will only arise in such cases where it was open to the defendant to file a separate suit in this regard in a competent court. Thus in effect the end that a counter-claim achieves is the joining together of two separate suits between the same parties and decide the matter finally between them.

This again achieves the dual mission of reducing the amount of litigation, which speeds up the entire litigation process as well as addressing all legal issues between the parties in the same trial which further adds to the process of expedition.

Set-offs and counter-claims can thus be said to be fine examples of the manner in which the CPC provides for speedy and effective justice dispensation.

Chapter 4

Settlement of Disputes Outside CourtThe matter of settlement of disputes outside court is one in which two aspects need to be addressed. First is as to the new Section 89 which was added by the amendment of 1999 and the second is as to compromise of suits.

Section 89 of the CPC provides that where it appears to the court that there exist elements of a settlement which may be acceptable to the parties, the court shall formulate the terms of the settlement and give them to the parties for their observations, and refer the same to

1. arbitration;2. conciliation;3. judicial settlement including settlement through Lok Adalat;4. mediation.

The new section was added to the CPC based on the recommendations of the Law Commission of India and the Malimath Committee. The object behind the amendment was that the aim of the court was to try and ensure at first that the matter was amicably resolved between the two parties contesting against each other. For this the process of alternate dispute resolution is the ideal process. First of all this helps because there is a

possibility that a settlement may be reached such that both the parties are satisfied with the result. Furthermore, the process of alternate dispute resolution is not as time consuming as the procedure through the normal court mechanism and therefore this provision is another one which speeds up the process and well as lightens the burden on the courts. Therefore, it can be concluded quite convincingly that this is another provision of the CPC which is facilitative of the cause of doing substantive justice.

compromise of suits

Under Order 23 rules 3, 3A and 3B, after the institution of the suit, it is open to the parties to compromise, adjust or settle it by an agreement or compromise, then general principle emerging from the rules being that all matter which can be decided in a civil suit can also be decided by means of a compromise.[36]

Rule 3 of Order 23 lays down that (1) where a court is satisfied that a suit has been adjusted wholly or party by any lawful agreement in writing and signed by the parties; or (2) where the defendant satisfies the plaintiff in respect of the subject matter of the suit, the court shall record such agreement, compromise or satisfaction and pass a compromise decree accordingly.

Clearly at the very outset, the fact that it is open to the parties to come to a compromise outside of court is a provision that can only be in the nature of facilitating justice. At the same time the permitting parties to compromise outside of court, gives rise to the chances of duress or forced compromises, or illegal agreements in the form of compromises. That is where the other provision with respect to compromise decree being that the court must take notice and approve of such a compromise agreement comes in. Where the court takes notice of the agreement itself, if there has been any duress the court will be able to see it and will rectify the situation and therefore all compromise agreements arrived at will be just agreements.

This is a clear proof of the nature of the CPC as being a code that seeks to promote the smooth movement of the wheels of justice.

Chapter 5

First HearingThis section of the paper will discuss two elements namely framing of issues and interrogatories and through these demonstrate that the CPC aids in the smooth administration of justice

Framing of Issues

The first hearing of a suit is the day on which the court goes into the pleadings of the parties in order to understand their contentions. The day on which the issues in the suit are framed by the court is the day of the first hearing. There are two important orders in the CPC which deal with this process of framing of issues. These are order 10 and order 14.

Order 10 provides hat the court shall at the first hearing of the suit , ascertain from each of the parties or his pleader whether he admits or denies the allegations made in the plaint or in the written statement , if any of the opposite party.  Further rule 2 of the same order provides that the court must have an oral examination of all the parties to the suit in order to determine the matters which are at the centre of the controversy, which has prompted the filing of the suit.

The court can through this process determine the precise position of law and facts on the matter that the parties seek to contest and based on this frame the issues that are to be addressed in the litigation.

An issue is fundamentally a point that is argued by one party, which is denied by the other, and therefore lies at the heart of the conflict between them. The issues are culled out by the court based on the plaint and the written submissions of the parties. Any averment as to a material fact or proposition that is made by the plaintiff in the plaint but denied in the written statement would form the subject matter of a distinct issue. Issues therefore can be issues of fact, issues of law or mixed issues of fact and law.[37] The significance that the process of framing of issues has is immense on the hearing and the decision of the case. It is only on issues framed that the court will proceed with the, matter and not on the basis of the pleadings of the parties. Furthermore, once a court frames an issue, it cannot decide not to adjudicate on that matter. framing of issues is to happen under Order 14 of the CPC.

Thus the issues that are framed have great significance. Firstly they ensure that right at the outset that the hearing stage has a set of parameters within which it proceeds. Further it ensures that the parties do not unnecessarily spend large amounts of times arguing points that there is no conflict on. Further it ensures that that the hearing has a focus. Also it ensures that the parties cannot later spring a surprise on the other party through arguing something new.

To quote from the case of State of Gujrat v. Jaipal Singh,,[38]

”It is hardly required to be told that the issues are the backbone of a suit. They are the lamp-post which enlightens the parties to the proceedings, the trial court and even the appellate court – as to what is the controversy, what is the evidence and where lies the way to truth and justice.”

Discovery, Inspection And Production Of Documents

The court has to rely on certain documents in order to firstly frame issues and later to decide during the trial stage. These documents which can be produced by either party contain are used as evidence of the claims made by either party. They contain the basis on which each party makes the claims. For example a sale deed will become a relevant document in a case where property is involved to show who owns the property.

The judge looks the claims made by the parties in the pleadings and then examines the documents submitted by both parties to cull out the real controversy between the parties. Once the judge has examined the documents he can frame issues which will decide the way the trial shall proceed. Order 11 deals with discovery and inspection of documents.

Discovery can be through two ways:

Interrogatories Documents

Interrogatories means asking questions thoroughly.  It is a method where a party is allowed to put questions to his adversary. The object of this is twofold[39];

To know the nature of the opponents’ case To  support his own case

Here again we can see that the CPC has been drafted with the principles of obtaining in mind first and foremost. It is important in the interests of having a fair trial that each party know what the other’s case is so that they can prepare their own case to either defend against or bring an action against the other party. Hence by making the case of each party clearly visible and hence helping the other party to understand what it has to do in order to make it successful.

Moreover under rules 15-19 documents can be inspected. Thus a party can inspect the documents in the other party’s possession. This allows each party to be even better prepared as they have a direct knowledge of the basis of the other party’s case.

chapter 6Interim Orders

Interim means “in the mean time” or “temporary”. Interim orders are those orders of the court which are passed in the pendency of the suit which do not finally determine the rights and liabilities of the parties. Section 94(e) says, after the suit is instituted and before it is finally disposed off the court may make interim orders as may appear just and convenient. Hence these orders are inherently meant to serve the interests of justice. Whenever the court feels that a party is not co operating with the other and not complying with the provisions of the code or not aiding the court in discovering the truth, then the court can pass orders either compelling that party to perform an action or desist from

doing something. Also apart from this it can lay down orders to describe which way the case should progress.

Under the code various kinds of interim orders are provided for. However due to a lack of space and the scope of the project, the researcher shall only look at injunctions and how the CPC has been geared for providing a just method of approaching the problem as well as seeking justice which the ultimate of the courts and the substantive laws.

Injunctions

Every court is constituted for the purpose of administering justice among parties and, therefore, must be deemed to posses all the powers as may be necessary to full and complete justice to the parties before it. Now in certain situations interim relief may be essential in providing justice and so courts are empowered to grant such interim relief in the interests of justice. An injunction is a judicial process whereby a party is required to refrain from doing any particular act[40]. The primary purpose of granting such a relief is the preservation of property till the legal disputes over it are settled. The object of making an order regarding interim relief is to work out a workable formula to the extent called for by the demands of the situation, keeping in mind the pros and cons of the matter and striking a delicate balance between two conflicting interests i.e. injury and prejudice, likely to be caused to the plaintiff if the order is refused and that caused to the defendant if it is granted[41].

The grounds for an application for injunction themselves show that the interests of justice are the guiding principles of granting injunctions. Order 39 deals with injunctions and section 94(e) clearly show that the major considerations which govern the injunctions is to see if injustice shall be done to any side if the order is passed or not.

Firstly a prima facie case has to exist in order for the court to pass an injunction order.

Irreparable injury will occur to the applicant if the injunction is not given. If the court believes that without the passing of this order an injury or injustice shall occur which can’t be compensated by costs.

Most importantly the court looks at the “balance of convenience”, which means that only if the pros of granting the injunction outweigh those of not passing it shall the court agree to pass the order for injunction.

Hence these provisions prove to a large extent that the provisions of the code as regards interim orders are set in a framework whereby they seek justice first and foremost and then look at compliance. They are drafted to ensure that the interests of justice are served and not just that the course of the suit runs in accordance with the provisions of the code. It is expected and required of the courts to consider the facts of each case carefully and then using the principles described decide on granting the injunction. This is a clear case

of being guided by the principles of justice rather that looking only at the procedural considerations.

Chapter 7Trial

After the plaint and written statements have been presented in court and issues framed by it; the proceedings are at a stage where parties know what facts and documents need to be proved by them. Many aspects of procedural relaxation are seen in this context.

Parties to the suit have to present in court a list of witnesses whom they propose to call, either to give evidence or to produce documents and to obtain summonses for their attendance in court. The object underlying sub-rule 1 is to give notice to a party about the witnesses which his adversary seeks to examine in the case. This gives the party an opportunity to know the nature of evidence he is required to meet. What is interesting in the context of this paper is that the legislature has not put a total prohibition on a party to produce witnesses for proof of his case. However, when he seeks the assistance of the court, he has to furnish reasons why an application has not been filed within the prescribed time limit. Sub-rule 3 empowers the court to permit a party to call any witnesses whose name has not been furnished in the list under sub-rule 1.

Failure to comply with summons.

The court has power to enforce the attendance of any person to whom a summons has been issued; and for that purpose, may (a) issue a warrant for his arrest, (b) attach and sell his property; (c) impose a fine upon him, not exceeding five thousand rupees; and (d) order him to furnish security for his appearance and in default, commit him to the civil prison. It is the duty of the court to enforce the attendance of persons summoned by the parties; by coercive means if necessary. All that a litigant can do in regard to a person over whom he has no control is to request him to attend court. The said person may, either on account of his preoccupation, or on account of his disinclination to take the trouble to attend court, refuse the litigant. In such cases, the coercive machinery built into the Code, is extremely useful to courts.

Adjournments

A party to a suit may ask for an adjournment of the matter. Normally, the grant or refusal of adjournment is at the discretion of the courts. An adjournment may be granted inter alia on grounds of sickness of the party or his advocate; non-service of summons. Adjournment may be refused on the basis of unreasonable conduct of the party or his advocate such as refusal to examine/cross-examine a witness present in court.

Hence during the trial stage also the CPC always holds the substantive rights of people paramount.

Conclusion

The CPC is an immensely skillfully drafted piece of legislation which incorporates almost every conceivable situation which may come before the courts as regards procedure. From a mistake in filing to any errors which may occur on the part of the parties at any stage of the proceeding. The CPC is drafted in a framework which allows the courts to ensure that if reasonable grounds exist for any situation which might occur the code makes sure that the substantive rights of the parties are not compromised in the interests of procedural requirements.

The Supreme Court has clearly stated in a number of decisions that the procedural law is always in aid of justice, not in contradiction or to defeat the very object of what it seeks to achieve. It has said repeatedly that a “constricted” or “hyper-technical” view should be avoided.

By examining the various stages and the processes of the code and the provisions prescribed therein the researcher has come to the conclusion that at every stage of the proceedings, from institution of the suit right through to the trial, there are enough safeguards in the Code itself to ensure that the ultimate aim of justice is served. In case of errors the code has enough provisions which allow the parties to rectify their positions. Besides this at every stage the code ensures that the interests of justice are not sacrificed for the sake of procedural requirements.

Bibliography

Books

Justice C.K.Takwani, Civil Procedure, 5th edn., Eastern Book Company, Lucknow, 2003., Civil Procedure, 5th edn., Eastern Book Company, Lucknow, 2003.

Solil Paul, Anupam Srivastava, Mulla The Code of Civil Procedure, 16th edn., Vol 1, Butterworths, New Delhi, 2002.

Sudipto Sarkar, VR. Manohar Edt., Sarkar On Civil Procedure Code, 10th edn., Vol.1, Wadwa Company, Nagpur, 2002.

[1] This view was echoed by the Hon’ble Supreme Court in the case of Manoharlal v. State of Maharashtra, (1971) 2 SCC 119 (124-125).

[2] State of Punjab v. Shamlal Murarari, (1976) 1 SCC 719.