This article has been written by Sai Aravind, pursuing the Certificate Course in Advanced Civil Litigation: Practice, Procedure and Drafting from LawSikho.
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The term “civil dispute” over time became comprehensive in nature. Historically there were only two broad classifications of civil and criminal. So civil is usually seen as an antonym to criminal. But later its scope increased with the addition of areas like tax, company, service law, etc. A dispute of civil nature is mostly concerned with private rights and obligations of the party. In such a civil suit, the principal question is in the determination of a civil right of the party. It is germane to note that in a dispute of civil nature, political or religious questions are not covered except if there is an issue regarding right to property or office.
Civil Procedure Code, 1908 (hereinafter referred to as “CPC”) is the statute in India which regulates the procedure for civil disputes. Unlike a criminal case, in a civil suit, the matter is taken to the concerned court by the aggrieved party himself. On which various criteria such as jurisdiction, cognizance, limitation period, etc have to be considered before approaching the court.
Different types of jurisdiction
Jurisdiction is the authority by which the court makes decisions on any issue. It is a well-settled principle that any order or decree passed by a court without jurisdiction is void and such defect in authority cannot be cured even by the consent of the parties. Section 9 of CPC empowers civil courts with jurisdiction to try all suits of civil nature on condition that their cognizance is not expressly or impliedly barred. Such place of filing the civil suit has to be based on the consideration of three types of jurisdiction. They are:
Jurisdiction as to Subject-matter
Not all civil courts can try all types of civil disputes. Some courts are specially empowered to try civil disputes of specific subject matter and such disputes cannot be tried by other normal civil courts. For example, a suit for debt relief under Recovery of Debts Due to Banks and Financial Institutions Act, 1993 cannot be filed in a civil court and it has to be filed under the tribunal constituted under the statute. Similarly, disputes covered under the Motor Vehicles Act and Consumer Protection Act have to be filed in a separate Claims tribunal and District forum constituted under the statute respectively. Even in subject-matters like matrimonial disputes and testamentary successions only the Civil judge of senior decision has jurisdiction to try. Where there is a lack of jurisdiction as to subject-matter, there is an inherent lack of jurisdiction and any order or decree passed by such a court is void.
Every civil suit has a money value which has to be determined by the Plaintiff in the plaintiff he submits. Correspondingly courts have the competency to try suits up to a particular money value this authority is known as pecuniary jurisdiction. This is given under section 6 of CPC that a court will have jurisdiction only on suits which have value within the pecuniary jurisdiction of the court. District Court, High Court and Supreme Court possess unlimited pecuniary jurisdiction. Whereas smaller courts like Munsif Court and Subordinate Court have pecuniary jurisdiction up to a value.
Courts form the highest grade to lowest grade have pecuniary jurisdiction to try a suit with the lowest suit value. This may overburden and defeat the purpose of higher courts. So, it is imperative under section 15 of CPC that a suit should be instituted in the court of lowest grade which has the competence to try it.
A High Court can act only on issues within the state it is located and a District Court acts within the district it is present. Likewise, every subordinate court possesses jurisdiction only within defined territorial limits. The court can adjudicate on a property only within its territorial limits if such property is involved in the suit.
Territorial jurisdiction is mainly required in cases involving an immovable or movable. Section 16 of CPC states that suits dealing with an immovable property such as recovery suit, partition suit, suit for foreclosure, sale or redemption in case of mortgage or charge upon immovable property, suit for determination of right or interest and suit for compensation for wrong has to be instituted where the immovable property is situated. In the case of movable property, the Plaintiff has multiple options to institute the suit. Section 19 of CPC states that the suit could be filed in the territorial limits of where the wrong was done or where the Defendant resides or carries business. This is due to the fact that movables follow the person (mobilia sequuntur personam).
Apart from this, section 19 also provides jurisdiction for suits for compensation in tortious claims where territorial jurisdiction is required. Suits can also be filed in territorial jurisdiction where the cause of action partly or wholly arises or on the place where Defendants resided or carries business by section 20 of CPC. These provisions do not give exclusivity and the suit is subject to other jurisdictions also.
Given all these options, the suit can be filed in any of the fora satisfying the condition depending on the case. But parties in their agreement may decide one court having jurisdiction to try disputes where multiple courts have jurisdiction. Such a clause is held to be valid, binding and enforceable.
Parameters to be considered when approaching a court
There are certain parameters needed to be considered before the filing of the suit. Any fault in such may result in rejection or return of plea. They are:
Cause of Action
Cause of action is the fact or combination of the fact that gives a person the right to seek judicial redress against another person. It is the foremost and important aspect of a suit. A cause of action can arise from an act, a failure to perform a duty or due to infringement of any right. Relief can be sought on multiple causes of action in a suit. Such cause of action is a basic and essential aspect of the suit. So, there must be a well-articulated cause of action in the plaint.
Limitation period is the period within which the suits have to be filed and it is governed by the Limitation Act, 1963. By this, time is saved and quick disposal of cases is ensured. A limitation period of 1 to 3 years has been prescribed for tort claims and suits for which no period of limitation has been provided elsewhere in the Act. In case of a suit by the mortgagor for the redemption or recovery of possession of the immovable property mortgaged, or in case of a mortgage for the foreclosure or suits by or on the behalf of Central Government or any State Government, the limitation period is 30 years. Suits relating to immovable property, trusts and endowments have a 3 years limitation period. Limitation period up to 12 years has been prescribed for the suits relating to accounts, contracts and declarations, suits relating to decrees and instruments and suits relating to movable property. So, any suit which has to be filed should not be past the prescribed limitation period.
Res Sub Judice and Res Judicata
The doctrine of Res Sub Judice and doctrine of Res Judicata are given under section 10 and 11 of CPC respectively. According to section 10 of CPC, no court can try a suit where the issue involved is the same issue in a suit already under trial between the same parties under the same title. Under section 11, a court cannot try a suit with the same issue and the same parties under the same title as a former suit. The difference between the two doctrines is that Res Sub Judice bars the suit which is already pending for decision in the previously instituted suit and Res Judicata bars the trial of the suit which is already decided in a former suit.
The reason behind these statutes is that there should be a conclusiveness to the judgement and litigation. Hence before the institution of any suit, there should not be former suit or suit under litigation of similar concomitants.
It should be made sure that the cognizance of the suit to be filed is not barred by the law. Suits can be barred expressly or impliedly.
Usually, matters concerning a subject for which there is a specific tribunal like Election Tribunal, Income Tax Tribunal, Industrial Tribunal, etc are expressly barred and cannot be tried under civil courts. Civil courts are also expressly barred by provisions like section 170 of the Representatives of the Peoples Act, 1951.
Certain suits are barred implicitly under general principles of law and on public policy. On general principles of law like when a remedy is specified under a statute, no other form of a remedy can be enforced in a court and an obligation created by the law cannot be overruled by the court. Suits are also implicitly barred on public policy such as a suit for recovery of costs incurred in a criminal prosecution or suit against any judge for doing his duty or suit for the enforcement of a contract hit by section 23 of Indian Contract Act, 1872.
Types of civil disputes
A panoply of matters come under the ambit of civil disputes. These can classify into 5 different types such as:
A tort is wrong done to a person which the legal right vested in another person. Section 2(m) of the Limitation Act, 1963 defines “tort” as a civil wrong which is not exclusively the breach of a contract or the breach of trust. Such wrong is redressable by an action for unliquidated damages. Torts can be mainly classified into acts affecting:
- a person such as trespass or negligence,
- the family, like wrongful death of a family,
- the reputation like libel and slander,
- the property such as trespass to land or goods, nuisance conversion
- the economic rights such as deceit, inducement of breach of contract and injurious falsehood.
Breach of contract claims
A breach of contract arises due to the non-performance of a duty undertaken by a party to contract. Unlike a tort, these claims arise due to breach of duties undertaken by the parties in the agreement. Damages are the remedy claimed mainly on breach of contract which is mostly liquidated. Examples of contract disputes are:
- Disputes between a landlord and a tenant.
- Disputes between a homeowner and building contractor for remodelling.
- Disputes over the sale of the property.
- Defective product that has been sold.
- Non-delivery of paid purchases.
- Violation of the non-compete agreement.
- Violation of the business agreement.
Property disputes are the most common form of litigation in India. Such disputes deal with property and interests lying therein. Such disputes can also arise within the blood relations on ancestral property. Examples of property disputes are:
- Partition suit among family members.
- Landlord and tenant disputes.
- Title suits for declaration of ownership.
- Disputes relating to boundary, pathway or common area.
While the previous types of disputes are legal claims, an equitable claim is a claim to the court to order a party to take some action or stop some action. Such an equitable claim may also go along with a legal claim i.e., a claim for monetary damages. So, what is sought from the court in equitable claims is an injunction which directs or restrains the party to prevent any harm. Examples to such disputes are:
- Stop a developer from building a commercial plaza in a residential area.
- Have a party cease a certain activity.
- Transfer property to the rightful owner.
- Order a repair to property that is dangerous to visitors.
- Order a change of policy or to post warning signs.
Matrimonial disputes arise based on the institution of marriage between the two parties. Family Courts constituted under the Family Courts Act, 1984 have jurisdiction to try these disputes. The remedies claimed under such dispute are:
- divorce for dissolution of marriage.
- restitution of conjugal rights.
- nullity of marriage.
- judicial separation.
- maintenance allowance by the wife from her husband.
These claims are different for marriages under different religions and they are regulated by statutes like Hindu Marriage Act, 1955, Dissolution of Muslim Marriage Act, 1939, Muslim Women (Protection of Rights on Divorce) Act 1986, the Special Marriage Act, 1954, the Divorce Act 1869, the Parsi Marriage and Divorce Act, 1936, Foreign Marriage Act, 1969, etc.
Bachhaj Nahar v. Nilima Mandal & Ors.
Pleadings generally mean Plaint or Written statement as per Rule 1 Order VI of CPC. In civil proceedings, the facts and evidence are established by the parties only through pleadings. The Supreme Court in this case enunciated the importance of pleadings. It is said that the object and purpose of pleadings and issues are to ensure that the litigants come to trial with all issues clearly defined and to prevent cases being expanded or grounds being shifted during the trial. The court also held that issues are to be identified from the pleadings by the courts to enable parties to let in evidence thereon. It is also said that no amount of evidence, if not put forward in the pleadings, can be considered to grant any relief.
Navinchandra N. Majithia v. State of Maharashtra & Ors
It was laid down that cause of action means a situation or a group of operative facts that entitles a person to maintain an action in a court or a tribunal which give rise to one or more basis for suing and entitles to obtain a remedy in court from another person. The Supreme Court further elucidated in this case that while considering the cause of action, it is the duty of the court to examine whether the institution of a plaintiff is filed with mala fide intentions to harass and pressurise the other party to achieve an ulterior goal.
Raju Ramsing Vasave v. Mahesh Deorao Bhivapurkar
In this case, the Supreme Court gave three exceptions to while applying the doctrine of Res Judicata. Such as:
- when a judgment is passed without jurisdiction.
- when the matter involves a pure question of law.
- when the judgment has been obtained by committing fraud on the court.
So, the doctrine of Res Judicata cannot be applied under section 11 of CPC if any of the above three conditions are satisfied.
In a civil dispute, the entire burden of conducting a case right from its institution vests on the aggrieved party, unlike a criminal case where the state proceeds on the behalf of the victim. This mandates a person to be wary of various factors before approaching the court. In which jurisdiction turns out to be the foremost factor while instituting a suit because any act of without proper jurisdiction is void. Cause of action is another important concept which sets apart civil suits from criminal cases. Based on it the court adjudicates the disputes. Apart from these a person instituting a suit should be aware of the kind of suit he wants to file and factors like limitation period are quintessential.
Overall civil suits are predominantly known for the time they consume. So, all things considered, Alternate Dispute Resolutions such as arbitration, negotiation, conciliation and mediation are more flexible and provide speedy access to justice. Pre-institution mediation has been made compulsory for commercial suits under section 12A of Commercial Court Act 2015 before approaching the court.
- C.K. Takwani, Civil Procedure with Limitation Act, 1963 (8th edn, EBC 2016)
- Mulla, The Code of Civil Procedure (18th edn, LexisNexis 2017)
- R.K. Bangia, Law of Torts (23rd edn, Allahabad Law Agency 2015)
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