Contents

INTRODUCTION......................................................................................................................2

JURISDICTION.........................................................................................................................8

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 INTRODUCTION

Substantive law- determines rights and liabilities of parties.

Adjective or procedural law- prescribes the practice, procedure and machinery for the
enforcement of those rights and liabilities.

Procedure must be simple, expeditious and inexpensive. It is procedural law which puts life
into substantive law by providing a remedy and implements the wel1-known maxim ubi jus
ibi remedium.

History

 The first uniform Code of Civil Procedure was enacted in 1859 but had some defects.
 In 1908, the Code of Civil Procedure was enacted and later amended in 1951 and
1956. It functioned well but had some flaws. The Law Commission proposed
changes, and the government decided to amend the code based on those
recommendations –
1. Fair trial based on natural justice,
2. Timely resolution, and
3. Accessible procedures for disadvantaged individuals.
 Some of the important changes made by the Amendment Act, 1976 are as under:
1. Enhanced the effectiveness of res judicata,
2. Transfer proceedings, (from one HC to other given to SC)
3. Protect salaried employees, (from attachment)
4. Ease notice requirements, (under sec. 80 to Govt. or Public officer)
5. Limit appeals and revision,
6. Expedite WS and Docs filings,
7. Introduce special procedures for family matters, (Order 32A)
8. Abolish certain decrees (preliminary and final),
9. Expand summary trials, and
10. Aid the disadvantaged.
 The 1976 amendments were inadequate, leading to the appointment of the Justice
Malimath Committee. Based on its recommendations, the Code was further amended
in 1999 and 2002 for speedy disposal of civil cases.

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 1. Time limit prescribed for issuing of summons, filing of WS, AoP, production of
documents, examination of witnesses, pronouncement of judgments, preparation
of decree, etc.,
2. Outside court settlement
3. Adjournments number restricted
4. Recording of evidence by the Court Commissioner
5. Time limit for oral arguments
6. Filing of appeal in the court which passed the decree.
7. appeal where the decree is not drawn up
8. First Appeal, Second Appeal, Letters Patent Appeal and Revision has been
curtailed.

The Code of Civil Procedure (Amendment) Act, 2002 received the assent of the President on
23 May 2002 and came into force on 1 July 2002.

Prem Lala Nahata v. Chandi Prasad Sikarial - the Code consolidates and amends the laws
relating to the procedure of the Courts of Civil Judicature.

Saiyad Mohd. Bakar v. Abduihabib Hasan, (1998) - A procedural law is always in aid of
justice, not in contradiction or to defeat the very object which is sought to be achieved.

 Scope: Code Not Exhaustive – Section 151- For ends of justice.

 Interpretation – must be construed liberally, no hypertechnical view
 158 sections; and (First) Schedule, containing 51 Orders and Rules.

Sections –

 provisions of a substantive nature,

 general principles of jurisdiction,
 fundamental and cannot be amended except by the legislature.

Orders –

 Procedure and the method, manner and mode in which the jurisdiction may be
exercised,
 Can be amended by High Courts.

The sections and the rules must be read together and harmoniously construed, if inconsistent,
former will prevail.

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DECREE – SECTION 2(2)

Elements:

1. There must be an adjudication;

2. Such adjudication must have been done in a suit;
3. It must have determined the rights of the parties with regard to all or any of the
matters in controversy in the suit;
4. Such determination must be of a conclusive nature; and
5. There must be a formal expression of such adjudication.

Adjudication- A judicial determination of the matter in dispute.

Suit- In Hansraj Gupta v. Official Liquidators of The Dehra Dun-Mussoorie Electric

Tramway Co. Ltd, defined the term, as a civil proceeding instituted by the presentation of a
plaint. (emphasis)

Rights of parties in controversy – Substantive rights like - status, limitation, jurisdiction,

frame of suit, accounts, etc.

Test - Whether the decision is final and conclusive in essence and substance. If it is, it is a
decree, if not, it is not a decree.

Shankar v. Chandrakant - A preliminary decree declares the rights and liabilities of parties,
but the final outcome is determined in further proceedings. After additional inquiries, a final
decree is passed, fully determining the parties' rights. A final decree becomes final when the
time for appeal expires or when the court passing the decree has completely disposed of the
matter. It is in the latter sense that the word 'decree' is used in Section 2(2) of the CPC.

Preliminary decree- Decides the rights of the parties but does not completely dispose of the
suit.

This can be passed in:

1. Suits for possession and mesne profits Order 20, R. 12

2. Administration suits Order 20, R. 13
3. Suits for pre- emption Order 20, R. 14
4. Suits for dissolution of partnership Order 20, R. 15
5. Suits for dissolution of accounts between principal and agent Order 20, R. 16
6. Suits for partition and separate possession Order 20, R. 18
7. Suits for foreclosure of a mortgage Order 34, Rr. 2-3
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 8. Suits for sale of mortgaged property Order 34, Rr. 4-5
9. Suits for redemption of a mortgage Order 34, Rr. 7-8

More than 1 preliminary decree allowed? Phool chand v. Gopal Lal, wherein it has been
observed that there is nothing in the Code of Civil Procedure which prohibits passing of more
than one preliminary decree, if circumstances justify the same and it may be necessary to do
so. But the above observations are restricted to partition suits.

Partly preliminary and partly final decree –

e.g., in a suit for possession of immovable property with mesne profits, where the court:

(a) decrees possession of the property; and

(b) directs an enquiry into the mesne profits.

The former part of the decree is final, while the latter part is only preliminary because the
final decree for mesne profits can be drawn only after enquiry, and the amount due is
ascertained.

Decree and deemed decree: Distinction - An adjudication not fulfilling the requisites of
Section 2(2) of the Code cannot be said to be a decree. By a legal fiction, certain orders and
determinations are deemed to be "decrees" under the Code.

e.g., Determination of questions under Section 144 (Restitution) are deemed decrees.
Similarly, adjudications under Order 21 Rule 58, as also under Order 21 Rule 98 or 100.

 Section 2(2) of the Code specifically provides that rejection of a plaint shall be
deemed to be a decree.
 Section 144 deals with restitution and determination of a question under that section,
and is included in the definition of "decree" for the purpose of giving a right of appeal
but not all orders are decrees under 144.
 A decision under Section 47 (Execution) is not a decree and consequently is not
appealable as a decree.

JUDGMENT

"Judgment" means the statement given by a judge of the grounds of a decree or order. It is
prior stage of decree. After the pronouncement of the judgment, a decree shall follow

Elements:

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 (i) a concise statement of the case;
(ii) the points for determination;
(iii) the decision thereon; and
(iv) the reasons for such decision.

Supreme Court in Balraj Taneja v. Sunil Madan, a judge cannot merely say "Suit decreed"
or “Suit dismissed”. The whole process of reasoning has to be set out for deciding the case.

Rule 6-A of Order 20 as inserted by the Amendment Act of 1976, enacts that the last
paragraph of the judgment should state precisely the relief granted.

It is not necessary for a judge to give a statement in a decree though it is necessary in a

judgment

ORDER

"Order" means the formal expression of any decision of a civil court which is not a decree.

The adjudication of a court of law may either be (a) a decree, or (b) an order; and cannot be
both.

Distinction between decree and order

(i) Decree passed only in a suit initiated by a plaint. An order may originate from a
suit by presentation of a plaint or may arise from a proceeding commenced by a
petition or an application.
(ii) Decree settles parties' rights; order may not.
(iii) Decree can be preliminary or final, but order cannot be Preliminary.
(iv) One suit has one decree, but it can have multiple orders.
(v) Decree is appealable, not all orders.
(vi) Second Appeal possible for decree, not appealable orders.

DECREE-HOLDER means any person in whose favour a decree has been passed or an
order capable of execution has been made.

JUDGMENT-DEBTOR means any person against whom a decree has been passed, or an
order capable of execution has been made.

FOREIGN COURT means a court situate outside India and not established or continued by
the authority of the Central Government.

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LEGAL REPRESENTATIVE means a person who in law represents the estate of a
deceased person.

MESNE PROFITS of property mean those profits which the person in wrongful possession
of such property actually received or might with ordinary diligence have received therefrom,
together with interest on such profits, but shall not include profits due to improvements made
by the person in wrongful possession.

The test to ascertain mesne profits is not what the plaintiff has lost by being out of possession
but what the defendant gained or might reasonably and with ordinary prudence have gained
by such wrongful possession.

CAUSE OF ACTION may be described as "a bundle of essential facts, which it is necessary
for the plaintiff to prove before he can succeed".

"CAVEAT" is an official request that a court should not take a particular action without
issuing notice to the party lodging the caveat and without affording an opportunity of hearing
him.

PLAINT is a statement of claim, a document, or a memorial by the presentation of which a

suit is instituted.

WRITTEN STATEMENT may be defined as a reply of a defendant to the plaint filed by a

plaintiff.

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 JURISDICTION

Meaning - The word jurisdiction) is derived from Latin terms "juris" and "dicto" which
means I speak by the law". Jurisdiction of a court means the extent of the authority of a court
to administer justice prescribed with reference to the subject-matter, pecuniary value and
local limits.

Jurisdiction and consent - A.R. Antulay v. R.S. Nayak, Mukharji, J. (as he then was) stated,
"This Court, by its directions, could not confer jurisdiction on the High Court of Bombay to
try any case for which it did not possess...”

 A decree passed by a court without jurisdiction is a coram non judice.

 Kiran Singh v. Chaman Paswani, the Supreme Court observed: "It is a fundamental
principle well-established that a decree passed by a court without jurisdiction is a
nullity, and that its invalidity could be set up whenever and wherever it is sought to be
enforced or relied upon, even at the stage of execution and even in collateral
proceedings.”
 Ityavira Mathai Mathai v. Varkey Varkey, it was contended that the decree passed by the
court was a nulity since the suit was time barred. Negativing that contention, the
Supreme Court observed: "If the suit was barred by time and yet, the court decreed it, the
court would be committing an illegality and therefore the aggrieved party would be
entitled to have the decree set aside by preferring an appeal against it.”
 What is the distinction between absence of jurisdiction and erroneous or irregular
exercise thereof? After the landmark decision in Anisminic Ltd. v. Foreign
Compensation Commission, the legal position is considerably changed. It virtually
assimilated the distinction between lack of jurisdiction and erroneous exercise thereof.
As observed in M.L. Sethi v. R.P. Kapur, the difference between jurisdictional error and
error of law within jurisdiction has been reduced almost toa vanishing point. Every error
of law is a jurisdictional error.
 Full Bench of the Allahabad High Court in Ananti v. Chhann and approved by the
Supreme Court in Topandas v. Gorakhram , AIR 1964, lay down the correct law on the
point: The plaintiff chooses his forum and files his suit. If he establishes the correctness
of his facts he will get his relief from the forum chosen. If ... he frames his suit in a
manner not warranted by the facts, and goes for his relief to a court which cannot grant
him relief on the true facts, he will have his suit dismissed. Then there will be no
question of returning the plaint for presentation to the proper court, for the plaint, as
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 framed, would not justify the other kind of court to grant him the relief..If it is found, on
a trial on the merits so far as this issue of jurisdiction goes, that the facts alleged by the
plaintiff are not true and the facts alleged by the defendants are true, and that the case is
not cognizable by the court, there will be two kinds of orders to be passed. If the
jurisdiction is only one relating to territorial limits or pecuniary limits, the plaint will be
ordered to be returned for presentation to the proper court. If, on the other hand, it is
found that, having regard to the nature of the suit, it is not cognizable by the class of
court to which the court belongs, the plaintiff's suit will have to be dismissed in its
entirety.”

Kinds of Jurisdiction

1. Civil and criminal jurisdiction

2. Territorial or local jurisdiction
3. Pecuniary jurisdiction – amount or value of subject matter
4. Jurisdiction as to subject-matter
5. Original and appellate jurisdiction
6. Exclusive and concurrent jurisdiction
7. General and special jurisdiction
8. Legal and equitable jurisdiction - Courts in India are courts of both, law and equity.
9. Municipal and foreign jurisdiction
10. Expounding and expanding jurisdiction - Expounding jurisdiction means to define,
clarify and explain jurisdiction. Expanding jurisdiction means to expand, enlarge or
extend the jurisdiction.

Jurisdiction of Civil Courts – Section -9

 Two conditions are fulfilled:

1. The suit must be of a civil nature; and
2. The cognizance of such a suit should not have been expressly or impliedly
barred.
 The expression "suit of a civil nature" will cover private rights and obligations of a
citizen. Political and religious questions are not covered by that expression.
 Concept of jurisdiction of civil courts under Section 9, is explained in Most Rev.
P.M.A. Metropolitan v. Marthoma, - “…Each word and expression casts an
obligation on the Court to exercise jurisdiction for enforcement of right. The word

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 'shall' makes it mandatory. No Court can refuse to entertain a suit if it is of the
description mentioned in the section….”
 Every presumption should be made in favour of the jurisdiction of a civil court and
the provision of exclusion of jurisdiction of a court must be strictly construed.
 It is well-settled that it is for the party who seeks to oust the jurisdiction of a civil
court to establish it.
 Firm Seth Radha Kishan v. Administrator, Municipal Committee, Ludhiana - The
mere conferment of special jurisdiction on a tribunal in respect of the said matter does
not in itself exclude the jurisdiction of civil courts. The statute may specifically
provide for ousting the jurisdiction of civil courts; even if there was no such specific
exclusion, if it creates a liability not existing before and gives a special and particular
remedy for the aggrieved party, the remedy provided by it must be followed. The
same principle would apply if the statute had provided for the particular forum in
which the remedy could be had. Even in such cases, the civil court's jurisdiction is not
completely ousted. A suit in a civil court will always lie to question the order of a
tribunal created by a statute, even if its order is, expressly or by necessary implication,
made final, if the said tribunal abuses its power or does not act under the Act but in
violation of its provisions.
 Dhulabhai v. State of M.P. Hidayatullah, C.J. summarised the principles relating to
the exclusion of jurisdiction of civil courts. Premier Automobiles v. Kamlekar
Shantaram and Rajasthan SRTC v. Krishna Kant- jurisdiction of a civil court in
relation to industrial disputes.
 From various decisions of the Supreme Court, the following general principles
relating to jurisdiction of a civil court emerge:

1. A civil court has jurisdiction to try all 5. Every court has inherent power to decide
suits of a civil nature unless their the question of its own jurisdiction.
cognizance is barred either expressly or 6. Jurisdiction of a court depends upon the
impliedly. averments made in a plaint and not upon
2. Consent can neither confer nor take away the defence in a written statement.
jurisdiction of a court. 7. For deciding jurisdiction of a court, the
3. A decree passed by a court without substance of a matter and not its form is
jurisdiction is a nullity and the validity important.
thereof can be challenged at any stage of 8. Every presumption should be made in
the proceedings, in execution proceedings favour of jurisdiction of a civil Court.
or even in collateral proceedings. 9. A statute ousting jurisdiction of a court
4. There is a distinction between want of must be strictly construed.
jurisdiction and irregular exercise thereof.
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10. Burden of proof of exclusion of provisions of an Act have been complied
jurisdiction of a court is on the party who with or whether an order was passed
asserts it. dehors the provisions of law.
11. Even where jurisdiction of a civil court is
barred, it can still decide whether the

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