Civil Procedure Code(CPC) carries 10 marks as per the latest Bar Exam syllabus.
Initiation of civil proceedings (includes jurisdiction and pleadings)
The Code of Civil Procedure (CPC) lays down the detailed procedure for determination of disputes by courts of law. In general, the Code of Civil Procedure is applicable to all civil disputes (that is, private disputes, which are not criminal). The only instances where it does not apply are:
Where the parties agree to privately resolve the dispute through contract, such as by arbitration.
Where an independent tribunal has been established and the jurisdiction of civil courts is excluded. For example matters pertaining to the terms of service of government servants, income tax or regulatory matters are decided by dedicated tribunals established under other legislations (such as the Income Tax Act Appellate Tribunal under the Income Tax Act).
Where a particular legislation provides jurisdiction to another forum. E.g. the jurisdiction for winding up of a company’s affairs usually vests in the High Court. The CPC is an extremely detailed statute and commentaries on the CPC run into several thousands of pages – that kind of study, however, is not important from the perspective of the All India Bar Exam.
Our scope is limited in this chapter – to help you gain familiarity with the various concepts and procedural details used in the bare act. For this purpose, you should remember that the CPC is different from other legislations, in the sense that in addition to the statutory provisions under various ‘sections’, it also contains ‘orders’ explaining details of specific aspects. For those who wish to gain familiarity with the subject, the trick is to initially develop an ability to correlate the various sections with corresponding orders in the bare act to gain a holistic understanding of the relevant concept.
In this chapter on CPC, we will take you through the various stages of a civil case – after the audio visual lectures for each stage, you will then have to attempt various practice questions. This should help you in understanding the concepts you learn and familiarize you with the provisions of the bare act which pertain to those concepts.
You will also be able to build confidence in using the bare act to look up the answers to a variety of questions. For further practice, you may also practice questions in separate exercises and practice tests which we will upload on the platform from time to time. Let’s begin with the first step you can take, when a dispute of a civil nature comes into existence.
Step 1 – Filing a case in a court
A civil case (called a suit) may be filed in case of a dispute between two parties – say, when there is a
dispute over performance of a contract, or for payment of money. It is commenced by filing a plaint.
The specific event which entitles you to file a suit is known as a ‘cause of action’ – e.g. the time from which one party alleges that some action was to be performed by another party (but was not performed) or the time from when payment was due (but not paid). The time period within which a case may be filed should be within the Limitation Act (discussed separately).
In which court should you file a suit?
Every suit that you file will have a monetary value. How is the monetary value of a suit determined?
The monetary value of a suit is determined as per the principles mentioned under the Suits Valuation Act, 1887 (not relevant to be discussed in more detail).
Courts have jurisdiction depending on the monetary value of a suit. For example, the District Court in a particular district may only accept cases above INR 1 lakh. Suits having a lower monetary value may have to be filed in courts of civil judges (junior division) or courts of Small Causes. This monetary limit specifies the ‘pecuniary jurisdiction’ of a court. Pecuniary jurisdiction based on monetary value differs from state to state. The pecuniary limits of courts in Maharashtra may be different from limits in West Bengal.
A suit must be filed in the lowest court that is competent to try it. For example, if a suit of value lower than Rupees 1,00,000 can be tried in a court of civil judge (junior division), then it cannot be filed before the district court or the high court.
Where should the Court be located? (Sections 16 – 20)
There should be some relation between the court where the suit is filed and the place where the dispute arose. This concept is understood as the territorial jurisdiction of a court.
Step 2: Completion of pleadings
A suit is commenced by filing a plaint. A plaint should be filed in the appropriate civil court as per the principles discussed above. The defendant files a response to the plaint in the form of a ‘written statement’. The plaint and the written statement are referred to as the pleadings. Section 26 and Orders VI-VIII deal with pleadings.
Interim Relief, Hearing and Attendance of Parties
Understanding Interim Relief
The final determination of a suit by the civil court can take a long while, often a few years. Therefore, filing of a suit is often accompanied by applications for interim relief, which claim temporary remedies or they request the court to order one of the parties to preserve the status quo. For example, imagine a situation where a particular piece of land is to be sold, the ownership of which is disputed between A and B.
The court may pass an interim order preventing sale of the land pending final determination of the suit, or it could order that sale proceeds be received in an independent account operated under directions of the court (which is not within the reach of either A or B). Interim injunctions are governed by Order 39 of the CPC and Sections 36-42 of the Specific Relief Act, 1963. Ordinarily, an injunction is issued after hearing the defendant – however, the court has powers to issue injunctions without granting a hearing in exceptional cases. An order of injunction passed without hearing the defendant is known as an ex parte ad interim injunction.
Step 2: Hearing and attendance of parties
Part A: Attendance of parties and witnesses (Sections 27-32, CPC)
When a plaint is filed, the court issues an instrument called a ‘summons’ to the defendant informing him to be present before it on a particular date. A summons may also be issued to witnesses to present themselves before the court. [See Order 16 for details of summons for attendance of witnesses]
The defendant has a right to be heard by the court. Hearing the defendant will also help the court to decide the issues in dispute more effectively. In many cases, defendants abuse this right and remain outside the court’s jurisdiction to delay or frustrate legal proceedings, which can cause additional difficulties in the determination of the suit.
If the court is of the opinion that the defendant may travel outside its jurisdiction to avoid or obstruct legal proceedings, it may issue a warrant of arrest to produce him before the court and explain why he should not be required to furnish security for the claim against him, pending determination of the suit by the court. If the court is not satisfied by his explanation, the defendant will be required to furnish security before being released.
Similarly, if the court suspects that any property in dispute may be transferred by the defendant to defeat or frustrate legal proceedings, it may order the defendant to explain why he should not furnish security for the value of the claim. If it is not satisfied, it may ask the defendant to furnish adequate security, or it may even order attachment of the defendant’s property. [See Order 38 of the CPC for details of powers of a court relating to arrest and attachment prior to judgment]
Part B: Framing of issues at the first hearing
Once the filing of the pleadings is complete, the parties must appear before the court on the date of hearing. It is important for the parties to appear before the court (in person or through authorized representatives) on the date of hearing, absence can have serious consequences – the suit may be dismissed if the plaintiff himself is absent, or it may be decided on its merits without hearing the defendant (i.e. ex parte) if the defendant is absent. In case of dismissal or ex parte decision there are limited remedies available to the aggrieved party. [See Order 9 for more details]
As the case proceeds, the court may grant additional time upon request to a party (called an adjournment. An adjournment is available for under exceptional circumstances and only a limited number of times as per the CPC, although in reality this provision is not strictly followed by the courts. See Order 17 for more details]
Part C: Taking evidence to determine the issues
At the first hearing, the court frames ‘issues’ on the points on which, according to the court, differences exist between the parties. The court may frame both ‘issues of fact’ and ‘issues of law’. For details on how issues must be framed see Order 2 of the CPC. Facts which are relevant to decide the issues may be established through several ways:
By providing evidence
For example, the court may orally examine the parties present before it [See Order 10 of the CPC for more details on examination of parties]. In the event a party or a witness cannot be personally examined inside the courtroom, the court can issue an ‘interrogatory’, essentially containing questions to which answers can be given in writing.
The party to which the interrogatory is issued is not required to be personally present before the court to provide answers. [See Order 11 of the CPC for more details]. Where one of the parties relies on a particular document which has not been furnished to the other party, the court may issue notice for its inspection by the other party. [See Order 11 of the CPC for more details] (Discussed in greater detail under the chapter on Evidence Act).
By admissions – An admission is made when a party acknowledges that a particular fact alleged by the other party is true. It may be made by specifically accepting or by not rebutting.
For example, if a defendant does not specifically deny a particular allegation made in a plaint in his written statement, he is considered to have admitted its truth. This is an example of where an admission is implied by law. The form in which admissions should be made in civil cases is also provided in Order 12 of CPC. (Discussed in greater detail under the chapter on Evidence Act)
By affidavit. For more details on the matters and procedure for proving matters through affidavits, see Order 19 of CPC. The court has wide powers to enable it to understand and determine the points that are disputed. In certain cases, the court may be required to make a technical finding – e.g. determining the exact boundary of a particular piece of land, making a partition, examination of accounts, etc. In such cases, it can issue a commission for the determination of such technical matters. [See Section 75 and Order 11 of the CPC for more details]
Step 3 – Decisions/ reliefs that can be ordered by a court – decrees and orders
The final determination of a suit is usually in the form of a ‘decree’. A decree may be preliminary or final. For certain suits, the court may pass a preliminary decree. E.g. a preliminary decree is always passed in a suit for foreclosure of a mortgage (foreclosure is discussed in Transfer of Property).
The suit is disposed of after a final decree. E.g. In a suit filed by A against B for breach of contract to construct a building, if the court finds that there has been a breach by B, it may issue a decree stating that B is liable to pay compensation to A of, say Rs,. 10,000 for the breach. A decree may be accompanied by various other ‘orders’ – which typically contain other reliefs for parties. For example, if B was found to be interfering with other potential contractors to whom A was considering transferring the work (due to the breach), the Court could issue an order restraining B from meddling or interfering with any such discussions by A.
Let’s take the example of a suit filed by Deep against Shekhar pertaining to the declaration of title (i.e. ownership) over a piece of land in New Delhi. If the court determines that Deep is the owner of the property, it may issue a decree to such effect, accompanied with an order of ‘permanent injunction’ against Shekhar.
This order of permanent injunction will restrain Shekhar from interfering with Deep’s rights of ownership over the land. An order may also be passed with respect to an interim application – for example, before the court decided the suit between Deep and Shekhar, it could have passed an order of temporary injunction (of course, if an application to that effect had been filed by a party) to preserve status quo. If Deep was then in possession of the property, it could have ordered that Deep continues to hold the property final determination of the suit. This order may be ‘vacated’, that is, revoked subsequently, if the court determines that Shekhar is the owner of the property, or it could be made ‘permanent’, if the court finds that Deep is the owner.
Step 4 – Actions that can be taken against various decisions of a court
A party has various options available against a decision of the court, as explained below: (there could be a button which plays this commentary on foreclosure – ‘Foreclosure’ is a term related to mortgage of property. Assume that a person obtains a loan from a bank after mortgaging his property in favour of the bank, as a security. If he defaults on the loan, the bank will have the right to sell his property and recover the amount of the loan. In case he defaults, before the bank can sell the property, it will have to apply to a court for an order preventing the homeowner from repaying the loan and reclaiming his property – this is known as ‘foreclosure’. More details are covered in the Transfer of Property Act.)
Certain orders of the court are appealable. These are listed in Order 43 of the CPC. In such cases, the party can directly file an appeal before the higher court against the order, even though the suit has not been disposed of finally by the lower court. For orders that are not expressly listed down as appealable under Order 43, a petition for revision may be filed in the superior court. However, it is on the discretion of the superior court to entertain a revision petition. On the other hand, decrees are by definition appealable, that is, a party has a statutory right to appeal before a higher court against a decree of a lower court.
A review petition can also be filed (in which case the same court which issued the decision will look into it, instead of a higher court). However, the scope of a review petition is severely restricted – it can be entertained only to correct extremely obvious mistakes or errors, or new material which could not have been discovered earlier by the parties even by exercising due diligence (See Order 47 of the CPC for the scope).
Step 5 – Enforcing decisions of a court
A decision of a court may be declaratory, i.e. that it may, for example declare X to be the owner of a piece of property. It may command a person to pay something monetary – e.g. in the form of compensation, damages, to return someone else’s money which was retained, to pay a fair amount for services received, etc. or it may require the person to restrain himself from performing certain actions. It could require him to vacate a particular piece of land and not to interfere with its use by the person who occupies the land lawfully. In certain cases, it may direct a person to specifically perform a particular action. These reliefs flow from the CPC and another statute called the Specific Relief Act (which will be discussed later).
In case a party does not obey the directions of the court – the decree and orders of the court will have to be ‘enforced’. Enforcement of court orders is known as ‘execution’ – it is probably the single topic that has the largest number of provisions devoted to it – Sections 36 – 74 and Order 21 of the CPC deal with execution. Depending on the type of decree, execution is may involve attachment of property (which includes immovable property such as land, or movable property such as jewellery and other possessions, shares, money in bank accounts, etc.). Let’s take a few practice questions to understand the execution in greater detail.
Tentative Topics- Attachment, sale (possible only on notice), arrest (when arrest not permissible), mode of attachment of immovable, movable property, execution outside India, limitation for execution, time from which execution proceeding can be filed, minimum time limit (in case of government) where no execution is permitted, court before which execution application can be filed, etc.
CPC (Advanced) – Topics on which conceptual practice questions (1-4 max. per topic) should be framed
- Relationship between sections and orders
- Rules made by High Courts
- Res judicata, stay
- Summoning and attendance of witnesses
- Suits against minors
- Suits against corporations and firms
- Suits against government or public officers
- Suits against naval or military men
- Suits against minors, persons of unsound mind and indigent persons
- Interpleader suit
- Summary suit
- Frame question on exemption from personal appearance
- Question on Letter of Request (s. 76)
- Question on Section 81 – personal attendance and attachment not necessary for public servant
- Frame questions on ‘definitions’, the day the CPC came into force
- 1 question on enlargement of time
- 1 question on Inherent powers
- Appointment of receivers
- Appeals from original decrees
- Public nuisance
- 1-2 questions on costs
- Alternative dispute resolution
- Specific performance
- Basics of limitation
1.) If A resides in Mumbai and B resides in Pune, and B wants to file a suit disputing ownership of A over a house located in Mumbai (immovable property), where should it be filed? Where would you file if the house was located in Bhopal?
A.) Pune, Pune
B.) Mumbai, Mumbai
C.) Mumbai, Bhopal
D.) Pune, Bhopal
2.) If A resides in Mumbai and B resides in Pune, where should B file a suit if the subject matter relates to movable property, e.g. antique furniture or jewellery?
C.) Pune or Mumbai, at the option of A
D.) Pune or Mumbai, at the option of B
3.) If A resides in Mumbai and B resides in Pune, where should B file the suit if the dispute relates to payment for the performance of certain services (that is, neither immovable nor movable property)?
C.) Pune or Mumbai, at the option of A
D.) Pune or Mumbai, at the option of B
4.) If A owns a plot of land on a highway which spans across two districts, and hence falls within the jurisdiction of two courts, where should a suit with respect to a dispute pertaining to the plot of land be filed?
A.) District where A resides
B.) District where B resides
C.) Courts of the district where the suit is filed first
D.) Courts of any of the two districts in which the property lies
1.) In a plaint, the facts should be proved by?
B.) Oral Evidence
C.) Documentary Evidence
2.)Within how many days must a written statement be filed?
3.) The court can extend the time to file a written statement up to a maximum of:
A.) 90 days from the date of service of summons on the defendant
B.) 30 month from the date of service of summons on the defendant
C.) 60 days from the date of service of summons on the defendant
D.) 120 days from the date of service of summons on the defendant
4.) The instrument issued by a court upon filing of a plaint, requiring the defendant to appear in the court to answer the claim is called?
5.)Summons can be issued to:
D.) Defendant and witnesses
6.) Which of these are processes to ensure appearance in a court?
- Summons II. Warrant III. Interrogatory IV. Commission V. Affidavit
A.) I and II only
B.) I, II, III and IV
C.) I, II and V
D.) All of the above
7.) The format in which pleadings must be drafted are mentioned in:
A.) Annexure A of the Code of Civil Procedure (CPC)
B.) Order VI of the CPC
C.) Order VII of the CPC
D.) Order VIII of the CPC
8.) In a written statement, what among the following is true regarding denial of facts alleged in the plain by the other party?
A.) The defendant may general deny the alleged facts
B.) The defendant must specifically deny each and every alleged fact
C.) The defendant may not deny any allegation in the written statement but later in the hearings
D.) The defendant must provide an evidence supporting every denial made in the written statement
9.)A owes a sum of Rs. 5000 to a partnership firm of B & C. B pays all his liabilities and retires as a partner. A sues C for recovery of Rs. 8000 due in his personal character. Which of these are claims are available to C in the written statement?
A.) He is not required to mention any sum at all
B.) He must file a separate suit for recovery of Rs. 5000 owed to the partnership and not include it in this pleading
C.) He must make file a separate interim application to combine his claim of the debt of Rs. 5000 in this suit
D.) He may ask the debt of Rs. 5000 to be set-off in the written statement
10.) Who must sign a pleading for it to be valid and enforceable,?
A.) Party alone
B.) Party or his attorney or advocate
C.) Party or his authorized signatory
D.) Attorney or the advocate representing the party alone
11.) Which of these is false about a pleading?
A.) Must contain facts only
B.) Must contain facts and supporting evidence
C.) Must contain numerals in words
D.) Must be accompanied by an affidavit
12.) Which of these is not allowed under the CPC?
A.) Striking out of pleadings by the Court
B.) Striking out of pleadings by parties
C.) Amendment of pleadings
D.) Subsequent pleadings
1.)An interim injunction can be issued:
A.) To prevent wastage or damage of property which is in dispute
B.) To prevent the defendant from transferring the property with the intention of defrauding his creditors
C.) To prevent the defendant from dispossessing the plaintiff of the property or causing other injury to the plaintiff by dealing with the property in any manner
D.) All of the above reasons
2.) In the event of a breach of an order for injunction by the defendant, the court may
A.) Order the property of the defendant to be attached
B.) Order the detention of the defendant in a civil prison
C.) Issue a proclamation for the defendant
D.) Both a and b
3.) The maximum period of detention in civil prison prescribed under the CPC for breach of an order of temporary injunction is:
A.) 1 month
B.) 3 months
C.) 6 months
D.) 1 year
4.) The maximum period of validity of an order of attachment for breach of an order of temporary injunction is:
A.) 1 year
B.) 1 month
C.) 6 months
D.) 3 months
5.) In case the breach by the defendant of an order of temporary injunction continues even after the maximum duration (that is permissible under law) of the attachment order has passed, the available remedy is:
A.) Sale of the attached property
B.) Sending to rigourous imprisonment
C.) Judicial custody
6.)An ad interim ex parte injunction may be granted:
A.) As per discretion of the court
B.) Where the court is of the opinion that the object of granting the injunction would be defeated by delay
C.) Where both parties agree
D.) Only in cases where the subject matter of the suit is a perishable commodity
7.) 1. Which of the statements below are true?
- Temporary injunctions are governed by CPC
- Perpetual injunctions are governed by CPC
III. Temporary injunctions are only governed by Specific Relief Act
- Perpetual injunctions are governed by Specific Relief Act
A.) II and III
B.) I, II, III and IV
C.) I and IV
D.) I, II and IV
1.) If it suspects that disputed property may be alienated or that the defendant may escape its limits, a civil court can exercise certain powers to protect the claim. Which of these is not within the ambit of such powers?
A.) The power to order attachment of immovable property
B.) The power to order the defendant to furnish security
C.) The power to order the defendant to show cause why he should not furnish security
D.) The power to order the defendant to offer agricultural produce as security
2.)As per the CPC, which of the following courts cannot attach immovable property pending judgment:
A.) High Court
B.) City Civil Court
C.) Small Causes Court
D.) District Court
3.)Pending determination of a suit, if a Small Causes Court suspects the defendant to move out of its jurisdiction or to alienate disputed property:
A.) Issue a warrant of arrest requiring the defendant to show cause why he should not furnish security
B.) Attach all kinds of property
C.) Attach any property except immovable property
D.) Both a and c
4.) The process of attachment of property (for the purpose of security) before passing a judgment:
A.) Is identical to the process of attachment at the time of execution for decree
B.) Largely similar, but differs in minor respects
C.) Is entirely different from the process of attachment at the time of execution for decree
D.) None of the above
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