Legum Baccalaureus (LLB) -PAPER-I: CIVIL PROCEDURE CODE 5th Semester Syllabus Short Notes
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PAPER-I
SYLLABUS
SHORT NOTES
UNIT – 1
CODIFICATION OF CIVIL PROCEDURE AND INTRODUCTION TO CPC
Codification
of Civil Procedure
-
Codification refers to the process of systematically organizing
and consolidating laws into a written legal code.
-
The Civil Procedure Code (CPC), 1908, codifies the
rules and procedures governing civil court proceedings in India. It ensures
uniformity and clarity in procedural law across all civil courts.
Historical
Background
Pre-British
Era: Civil disputes were decided based on customs,
religious laws, and local practices.
British
Period: The first uniform procedural law was introduced with
the Civil Procedure Code, 1859, applicable in Presidency Towns and Mofussil
areas (rural regions).
Several
amendments followed until the CPC, 1908, was enacted to consolidate and unify
civil procedural law in India.
Objectives
of CPC
To ensure a
fair, uniform, and effective procedure in civil litigation.
-
To simplify the process of resolving disputes.
-
To prevent delays in the administration of justice.
-
To uphold the principles of natural justice.
Structure
of CPC
The Civil
Procedure Code is divided into two main parts:
Part I:
Sections (1 to 158) – Contains general principles and procedural rules.
Part II:
The First Schedule (Order 1 to 51) – Provides detailed rules for
implementation.
Scope and
Applicability
CPC applies
to all civil proceedings in India, except for specific areas where special
enactments prevail.
It governs:
Procedures for instituting suits, Jurisdiction of civil courts, Execution of
decrees AND orders, Appeals, references, & reviews.
Exclusions:
The CPC does not apply to certain matters governed by special laws, such as
family law, arbitration, or industrial disputes.
Salient
Features
Uniform
Code: Applicable to all civil courts in India, except some
special jurisdictions.
Principle
of Natural Justice: Ensures procedural fairness (e.g., the right to be
heard).
Comprehensive
Coverage: Includes all stages of a civil suit, from
institution to execution.
Inherent
Powers: Courts have discretionary powers under Section 151
to act in the interest of justice.
Finality of
Judgment: Prevents endless litigation through doctrines like
res judicata (Section 11).
Flexibility:
Periodically amended to adapt to social and technological changes.
PRINCIPAL FEATURES OF THE CIVIL PROCEDURE CODE
The Civil
Procedure Code, 1908, governs the procedure for civil litigation in India. Its
key features are:
Uniform
Application: Applies uniformly across all civil courts in India.
Two-Part
Structure:
-
Sections (1–158): Procedural principles.
-
Orders (1–51): Rules for implementation.
Natural
Justice: Ensures fairness through proper notice, the right to
be heard, and unbiased decision-making.
Inherent
Powers: Section 151 allows courts to act in the interest of
justice when the Code is silent.
Framework
for Litigation: Covers suits, jurisdiction, pleadings, trials,
judgments, decrees, and execution.
Avoiding
Multiplicity of Litigation:
-
Res Judicata (Sec 11): Prevents re-litigation of
decided cases.
-
Res Sub Judice (Sec 10): Bars parallel proceedings.
Appeals,
Reviews, and Revisions: Provisions for correcting errors in decrees and
orders.
Jurisdiction:
Divided into territorial, pecuniary, and subject-matter jurisdiction.
Promotion
of ADR: Section 89 encourages arbitration, mediation, and
conciliation to resolve disputes.
Execution
of Decrees: Detailed mechanisms under Sections 36–74 and Order
XXI, including attachment, sale, and arrest.
Special
Provisions: Includes rules for cases involving minors, unsound
minds, government, public nuisances, and charities.
Timeliness:
Prevents frivolous and delayed suits with provisions under the Limitation Act,
1963, and Order VII Rule 11.
SUITS
A suit is a
civil proceeding initiated by filing a plaint in a court for the enforcement of
a legal right. The CPC provides a detailed framework for filing and conducting
suits.
PARTIES TO SUIT
Who Can Be
Parties:
-
Plaintiff: The person initiating the
suit.
-
Defendant: The person against whom the
suit is filed.
Types of
Parties:
-
Necessary Parties: Without
whom the suit cannot be decided.
-
Proper Parties: Their
presence is helpful for the complete adjudication of the dispute.
Provisions:
-
Order I Rule 1-3: Governs
joinder of plaintiffs and defendants.
-
Misjoinder and Nonjoinder:
Improperly joined or excluded parties may lead to dismissal under Order I Rule
9.
FRAMING OF SUIT
The framing
of a suit refers to preparing it in compliance with procedural requirements.
Essentials:
-
Cause of action.
-
Jurisdiction of the court.
-
Proper parties (necessary and proper).
Objective:
To narrow down issues for determination and avoid procedural errors.
Provisions:
Order II
Rule 1-3: Mandates that all claims arising from the same cause of action be
included to avoid multiplicity of suits.
INSTITUTION OF SUITS
The
initiation of a suit is governed by Section 26 and Order IV.
Steps to
Institute a Suit:
-
Filing a plaint in the appropriate court (Order VII).
-
Payment of court fees and compliance with procedural
requirements.
-
Issuance of summons to the defendant under Order V.
Essentials
of a Plaint:
-
Details of the plaintiff and defendant.
-
Cause of action.
-
Jurisdiction of the court.
-
Relief sought by the plaintiff.
BARS OF SUIT
Certain
provisions bar the filing or continuance of suits:
Res
Judicata (Section 11): Bars a suit on matters already decided in a previous
case.
Res Sub
Judice (Section 10): Prohibits parallel proceedings for the same matter
in different courts.
Limitation
Act, 1963: Bars suits filed beyond the prescribed time limit.
Other Bars:
-
Non-compliance with statutory requirements.
-
Misjoinder or nonjoinder of parties (Order I).
-
Failure to comply with procedural rules (e.g., Order
VII Rule 11 for rejection of plaint).
DOCTRINES OF SUB JUDICE AND RES JUDICATA
SUB JUDICE
(SECTION 10 OF CPC)
The
doctrine of Sub Judice prevents courts from trying two parallel suits on the
same subject matter between the same parties. This ensures judicial efficiency
and avoids contradictory judgments.
Essentials
of Sub Judice:
-
Two suits must involve the same matter in issue.
-
Both suits must be between the same parties or their
representatives.
-
The previously instituted suit must still be pending
in a competent court.
-
The subsequent suit is stayed, not dismissed, until
the first suit is resolved.
Purpose:
To avoid multiplicity of litigation and conflicting decisions.
Example:
If A files a property dispute against B in Court X, and later files the same
dispute in Court Y, the latter suit is stayed.
RES
JUDICATA (SECTION 11 OF CPC)
The
doctrine of Res Judicata ensures that no court will re-try a matter that has
already been finally decided by a competent court. It promotes finality in
litigation.
Essentials
of Res Judicata:
-
A previous suit must have been decided by a competent
court.
-
The matter directly and substantially in issue must be
the same.
-
The parties or their representatives must be the same
in both suits.
-
The previous decision must be final and binding.
Purpose:
To prevent re-litigation, save court time, and ensure consistency in decisions.
Example:
If A sues B for ownership of a property and loses, A cannot refile the suit
claiming the same ownership rights.
Key Case
Law: Daryao v. State of U.P. (1962) – The Supreme Court
held that Res Judicata applies even to writ petitions to prevent abuse of
judicial process.
PLACE OF SUING
The CPC
provides rules for determining the proper place where a suit can be filed. This
is essential to ensure convenience and avoid jurisdictional conflicts. The
relevant provisions are Sections 15 to 20.
Section 15:
Suits to be Filed in the Lowest Competent Court
A suit must
be filed in the court of the lowest grade that has the jurisdiction to hear it.
This ensures that higher courts are not burdened with cases that can be decided
by subordinate courts.
Section 16:
Suits Relating to Immovable Property
Suits
concerning immovable property must be instituted in the court within whose
jurisdiction the property is situated.
Exception:
If the property is situated in multiple jurisdictions, the suit can be filed in
any court having jurisdiction over a portion of the property.
Section 19:
Suits for Compensation
In suits for
compensation (e.g., defamation, personal injury), the case can be filed either:
-
Where the defendant resides or carries on business, or
-
Where the cause of action wholly or partly arises.
Section 20:
General Suits
For other
cases, suits may be filed where:
-
The defendant resides, works, or carries on business.
-
The cause of action wholly or partly arises.
TRANSFER OF SUITS
The CPC
allows for the transfer of suits to prevent injustice or inconvenience to the
parties. The relevant provisions are Sections 22 to 25.
Section 22:
Transfer When Multiple Jurisdictions Exist
If a suit
can be filed in more than one jurisdiction, the defendant can request the
transfer of the suit to a court that is more convenient.
Section 23:
Transfer Between Subordinate Courts
A District
Court can transfer suits between subordinate courts under its jurisdiction for
efficiency or convenience.
Section 24:
Power of High Court or District Court
The High
Court or District Court can transfer or withdraw a suit:
-
From one subordinate court to another.
-
From a subordinate court to itself.
Section 25:
Power of the Supreme Court
The Supreme
Court can transfer suits from one state to another if it is necessary to serve
the ends of justice.
TERRITORIAL JURISDICTION
Territorial
jurisdiction refers to the geographical area within which a court has authority
to hear and decide cases. It ensures that cases are tried in courts that have a
direct connection to the dispute.
Key
Provisions:
Section 16:
Suits related to immovable property must be filed where the property is
located.
Section 17:
If a property is located in multiple jurisdictions, the suit can be filed in
any court having jurisdiction over a portion of the property.
Section 19:
Suits for compensation (e.g., defamation or injury) can be filed where the
cause of action arises or where the defendant resides.
Section 20:
For all other cases, suits can be filed:
-
Where the defendant resides, works, or conducts
business.
-
Where the cause of action arises wholly or partly.
Purpose of
Territorial Jurisdiction:
-
To ensure convenience for parties and witnesses.
-
To avoid overburdening courts with no connection to
the dispute.
‘CAUSE OF ACTION’ AND JURISDICTIONAL BARS
CAUSE OF
ACTION (SECTION 9 OF CPC)
The term
"Cause of Action" refers to a set of facts or circumstances that
gives rise to a legal right to file a suit. It is the foundation of the suit,
without which no action can be initiated in a court.
Essentials
of Cause of Action:
-
The facts must show a violation of legal rights.
-
The defendant must have committed an act that leads to
the breach of the plaintiff’s rights.
-
The breach must have caused harm or injury to the
plaintiff.
Example:
If A is not paid the agreed amount for work completed, A has a cause of action
for the recovery of money.
JURISDICTIONAL
BARS
Jurisdiction
refers to the authority of a court to hear and decide a case. A court can only
entertain suits that fall within its jurisdiction. Jurisdiction can be limited
by:
-
Territorial Jurisdiction: Based on
the geographical area where the cause of action arose or where the defendant
resides.
-
Pecuniary Jurisdiction: Based on
the value of the claim. Courts are designated to hear cases with claims up to a
certain monetary value.
-
Subject-Matter Jurisdiction:
Courts have jurisdiction only over specific types of matters (e.g., family
courts, labor courts).
-
Jurisdictional Bar: If a
court lacks jurisdiction over the subject matter, territorial area, or monetary
value, it cannot entertain the suit. A jurisdictional bar is an objection that
challenges the court’s authority to hear the case.
SUMMONS
A summons
is a formal notice issued by the court to the defendant, informing them of the
suit filed against them and directing them to appear in court.
Essentials
of a Summons:
-
It must be in writing and signed by the court.
-
It must specify the time and place of the hearing.
-
It must inform the defendant about the nature of the
suit.
-
It should include a warning about the consequences of
non-appearance.
Types of
Summons:
-
Personal Service: Delivered directly to the defendant.
-
Substituted Service: When the defendant is not found,
the court may allow alternate methods like posting it at the defendant's last
known address.
-
Service by Publication: For persons who cannot be
located, the court may publish a notice in newspapers.
Purpose of
Summons:
-
To notify the defendant about the suit.
-
To provide the defendant an opportunity to respond.
-
To ensure fair hearing and natural justice.
SERVICE OF FOREIGN SUMMONS.
Service of foreign
summons refers to delivering a summons issued by a foreign court to a person in
India. It is governed by the provisions of Order V, Rule 25 of CPC, as well as
treaties and conventions India is a party to.
Procedure
for Service of Foreign Summons:
Court’s
Role: The foreign summons must be forwarded to an Indian
court, usually a district court, which then takes the responsibility of serving
the summons to the defendant in India.
Service
Mode: The summons may be served by the Indian court in the
same way as an Indian summons, i.e., through personal delivery or substituted
service if the defendant cannot be found.
Recognition
of Foreign Judgment: After service, if the defendant fails to appear, the
foreign court's judgment may be enforced in India under Section 13 of CPC if it
meets the necessary criteria for recognition (e.g., the foreign court was
competent, and the matter is not barred by Indian laws).
Key
Considerations:
-
Foreign summons are not automatically enforceable in
India unless recognized under Indian law.
-
India has signed several bilateral agreements for
reciprocal enforcement of judgments, such as with the United Kingdom, USA, etc.
-
Service of foreign summons does not extend the time
limits of Indian laws unless a specific agreement allows it.
UNIT – 2
PLEADINGS
Pleadings
are formal written statements filed by parties in a suit that outline the facts
and claims. They serve as a foundation for the case and provide clarity to the
other party about the allegations and defenses. Pleadings must be concise,
clear, and relevant to the issues in dispute.
CONTENTS OF PLEADINGS
The
contents of pleadings must include:
-
Plaint:
A statement of facts, claims, and relief sought by the plaintiff.
-
Written
Statement: A response from the defendant that addresses the claims and may
contain a counterclaim or set-off.
-
Set-off:
A claim made by the defendant, typically to reduce the plaintiff's claim.
-
Counterclaim:
A claim by the defendant against the plaintiff in response to the plaintiff's
claim.
-
Affidavit:
A statement of facts supported by an oath or affirmation.
-
Verification:
All pleadings should be verified by the party or their representative.
The
primary objective of pleadings is to define the issues in a case and allow the
opposing party to prepare for trial.
FORMS OF PLEADING
Pleadings
are generally presented in the following forms:
-
Plaint: The initial pleading by the
plaintiff, which starts the suit.
-
Written
Statement: The
defendant’s response to the plaint, answering the allegations and setting forth
defenses.
-
Replication: The plaintiff’s reply to the
written statement, though this is not always required.
-
Application: A pleading made to the court
asking for a specific order or relief.
-
Affidavits: Used for swearing in statements
of fact in support of pleadings.
Each
of these pleadings serves to frame the issues and set the stage for trial.
STRIKING OUT / AMENDMENT OF PLEADINGS
Pleadings
may be amended or struck out in certain situations to ensure that the trial is
based on the correct and relevant facts:
Striking
Out Pleadings:
A
pleading or any part of it may be struck out by the court if it:
-
Is
irrelevant or scandalous.
-
Is
an abuse of the process of the court.
-
Contains
unnecessary or redundant allegations.
The
court can also strike out entire pleadings or paragraphs under Order VI, Rule
16 if they are deemed inappropriate.
Amendment
of Pleadings:
A
party may apply to the court to amend their pleadings at any stage of the
proceedings under Order VI, Rule 17. Amendments can be made to:
-
Correct
errors or omissions.
-
Add
new facts or claims.
-
Remove
or modify a part of the pleading that is incorrect or irrelevant.
The
court grants amendments to ensure the suit reflects the true facts, provided it
does not cause injustice or delay the proceedings.
PLAINT (Order VII, CPC)
A
plaint is the written document in which the plaintiff sets out the facts, law,
and relief they are seeking in the suit. It is the primary document that starts
a civil suit. The plaint must contain:
-
Title: Name of the court, plaintiff,
defendant, and cause of action.
-
Jurisdiction: Statement specifying why the
particular court has jurisdiction to hear the case.
-
Facts: Detailed statement of the facts
that form the cause of action.
-
Claims/Reliefs: Specific relief or remedy sought
(e.g., damages, injunction, possession).
-
Verification: The plaint must be verified by
the plaintiff under an oath to confirm the facts are true.
The
plaint is essential because it sets the stage for the legal proceedings by
defining the issues and the specific legal relief sought.
ESSENTIALS OF PLAINT (Order VII, CPC)
A
plaint is the formal written statement by the plaintiff outlining the facts and
the legal grounds for the suit. The essential elements of a plaint are:
-
Title: The name of the court in which
the suit is filed, along with the names of the plaintiff and defendant.
-
Jurisdiction: A statement regarding the
jurisdiction of the court to hear the case.
-
Cause
of Action: A
detailed description of the facts that give rise to the claim, indicating why
the plaintiff believes they are entitled to the relief sought.
-
Reliefs
Sought: A clear
statement of the relief or remedy the plaintiff seeks, such as monetary
damages, an injunction, or possession of property.
-
Verification: The plaint must be verified by
the plaintiff, confirming the truth of the facts stated in the plaint under an
oath.
-
Date
and Signature: The
plaint must be signed by the plaintiff or their representative and dated.
A
plaint must adhere to these essentials to be considered valid for the
commencement of a suit.
RETURN OF PLAINT (Order VII, Rule 10, CPC)
Return
of plaint occurs when the court, after receiving the plaint, determines that it
is not the correct court to try the case. In such cases, the court will return
the plaint for filing in the appropriate court.
-
Grounds
for Return: The
primary reason for returning a plaint is that the court lacks jurisdiction to
entertain the case, either territorial or subject-matter jurisdiction.
-
Procedure: The court orders the return of
the plaint and directs the plaintiff to file it in the correct court. The court
may direct that the plaint be returned with the date of filing and an
endorsement of the same.
-
Consequences: The suit is considered to have
been instituted on the date of filing in the correct court.
Return
of plaint does not amount to rejection; it merely directs that the plaint be
filed in the proper jurisdiction.
REJECTION OF PLAINT (Order VII, Rule 11, CPC)
Rejection
of plaint occurs when the court finds that the plaint does not meet the legal
requirements to initiate a suit. Under Order VII, Rule 11, the court has the
power to reject a plaint on specific grounds:
-
Non-Disclosure
of Cause of Action: If the plaint does not show a cause of action, meaning
there is no legal basis for the claim.
-
Lack
of Jurisdiction: If the court lacks jurisdiction to hear the case.
-
Barred
by Law: If the suit is barred by any law (e.g., limitation period).
-
Improper
or Insufficient Plaint: If the plaint is not properly stamped or lacks
necessary documents.
If
the plaint is rejected, it cannot proceed, and the plaintiff may be allowed to
file a revised plaint if applicable.
PRODUCTION AND MARKING OF DOCUMENTS (Order XIII, CPC)
Production
and marking of documents refers to the process of submitting documentary
evidence in support of a party's case. The key points are:
-
Production
of Documents:
Parties to the suit are required to produce all documents upon which they rely
to prove their case. This is done during the pre-trial or trial stage.
-
Marking
of Documents: Once
the documents are produced in court, they must be marked for identification.
Each document is given a unique mark (e.g., Ex. A, Ex. B, etc.) by the court.
-
Admissibility
of Documents:
Documents produced in court must be authentic, relevant, and admissible. The
party relying on the document has to prove its genuineness.
-
Role
in Evidence:
Documentary evidence plays a crucial role in proving the facts and claims made
in the pleadings.
The
process ensures that all the relevant documents are before the court and can be
used in the examination of the case.
WRITTEN STATEMENT (Order VIII, CPC)
A
written statement is the defendant's formal response to the plaintiff's plaint.
It is the defendant's opportunity to deny or admit the claims made by the
plaintiff and to set forth their own defense. Key points include:
-
Contents: The written statement must
address each of the plaintiff’s allegations, either denying or admitting them.
If any allegations are not specifically denied, they are presumed to be
admitted.
-
Counter-allegations: The defendant can also introduce
new facts or claims that justify the defense.
-
Time
Limit: The written
statement must be filed within 30 days from the date of service of the summons,
though the court may grant an extension up to 90 days.
-
Oath: The written statement must be
verified by the defendant, similar to the plaint, under oath to affirm the
truth of the contents.
Failure
to file a written statement within the prescribed time could result in the
defendant losing the right to present their defense.
COUNTER CLAIM (Order VIII, Rule 6, CPC)
A
counterclaim is a claim made by the defendant against the plaintiff in the same
suit. It essentially allows the defendant to turn the tables and seek relief
from the plaintiff. Key points include:
Definition: A counterclaim is an independent
cause of action raised by the defendant, related to or arising out of the same
transaction or subject matter as the plaintiff's claim.
Procedure: The counterclaim is raised in the
written statement, and it must be treated as a separate suit in terms of
proceedings.
Jurisdiction: The court must have jurisdiction
over the counterclaim, just as it has over the plaintiff’s original claim.
Scope: The defendant may seek various
forms of relief through a counterclaim, such as monetary damages, injunctions,
or other remedies.
Effect: A counterclaim may reduce or
extinguish the plaintiff's claim if successful, and it may be heard and decided
alongside the original claim.
SET OFF (Order VIII, Rule 6, CPC)
A
set-off is a legal claim raised by the defendant to reduce or offset the
plaintiff's claim by setting up their own debt or claim against the plaintiff.
Key points include:
Definition: A set-off occurs when a defendant
claims a debt or demand from the plaintiff that is legally connected to the
plaintiff’s original claim.
Types:
-
Legal
Set-Off: Where the defendant's claim arises out of the same transaction as the
plaintiff's claim.
-
Equitable
Set-Off: Where the claims are not connected but have a sufficient relationship
in terms of equity.
Procedure: The defendant includes the
set-off in their written statement, and it must be within the scope of the
plaintiff’s suit.
Effect: The defendant can reduce or
nullify the plaintiff's claim to the extent of the set-off.
Set-off
is different from a counterclaim because it does not seek independent relief
but only reduces the plaintiff’s claim.
APPLICATION OF SEC. 89 - ADR
Section
89 of the Civil Procedure Code mandates the use of Alternative Dispute
Resolution (ADR) mechanisms in certain cases. The provision aims to encourage
settlement through arbitration, conciliation, mediation, or judicial
settlement. Key points include:
-
Reference
to ADR: The court, on its own motion or at the request of the parties, can
refer the dispute to ADR for settlement. This is commonly used in commercial
disputes or cases where parties seek an amicable resolution.
-
Modes
of ADR: The court may direct parties to engage in:
Arbitration: A neutral arbitrator resolves the
dispute.
Conciliation: A conciliator helps the parties
reach a mutually agreeable solution.
Mediation: A mediator assists in
negotiations but does not impose a solution.
Judicial
Settlement: The
judge facilitates settlement.
-
Purpose:
Section 89 seeks to reduce the burden on courts, expedite dispute resolution,
and encourage amicable settlements.
The
application of Section 89 is mandatory in certain cases but can be waived at
the discretion of the parties.
FRAMING OF ISSUES (Order XIV, CPC)
Framing
of issues is the process of identifying and outlining the key points of dispute
between the parties in a suit. These issues guide the proceedings of the case
and are formulated after the plaintiff and defendant file their pleadings. Key
points include:
Definition: Issues are questions of fact or
law that the court must decide to resolve the dispute between the parties.
Types
of Issues:
Issues
of Fact: Relating
to the facts of the case, such as whether an agreement was made or a breach
occurred.
Issues
of Law: Relating
to the application of legal principles, such as whether a contract is
enforceable under law.
Procedure: The court, after considering the
plaint and written statement, frames issues that the parties must address
during the trial.
Importance: The issues serve as the
foundation of the trial, and both parties must provide evidence to support their
positions on each issue.
Framing
of issues is a critical step in ensuring that the trial is focused and the case
is decided based on the relevant facts and law.
UNIT - 3
APPEARANCE AND EXAMINATION OF PARTIES &
ADJOURNMENTS
Appearance of
Parties: The parties involved in a
case must appear before the court when summoned. If a party fails to appear
without a valid reason, the court may proceed with the case in their absence,
subject to the applicable rules of procedure.
Examination of
Parties: After the appearance, the
court may examine the parties to understand their version of the case. This is
typically done to assist in framing issues, and it is an essential part of the
pre-trial process. A party may be required to give a statement under oath
regarding the facts of the case.
Adjournments: An adjournment refers to the postponement of a
hearing. The court may grant an adjournment at the request of any party if
there are valid reasons for it, such as the absence of a party, witness, or
necessary documents. However, adjournments are not given lightly, and repeated
adjournments may be disallowed to ensure the timely progression of the case.
EX-PARTE PROCEDURE
The Ex-parte
procedure is used when one of the parties fails to appear before the court
despite being duly served with summons. In such cases, the court may proceed
with the trial in the absence of the non-appearing party. Key points include:
Meaning: The term "ex-parte" refers to proceedings
where only one side (the appearing party) is present before the court.
Application: This procedure is typically used when the defendant
fails to appear after receiving notice, or in cases of default judgment.
Consequences: The judgment may be passed in favor of the appearing
party based on the available evidence. However, the non-appearing party can
request the court to set aside the ex-parte order, provided they show a
sufficient cause for their absence.
SUMMONING AND ATTENDANCE OF WITNESSES
Summoning of
Witnesses: The court has the power to
issue summons to witnesses who may provide essential evidence in a case. The
summons must be served on the witness in a manner prescribed by law, ensuring
that they are informed about the time, date, and place of appearance.
Attendance of
Witnesses: Once a witness has been
summoned, they are required to appear before the court to testify. If a witness
fails to appear, the party who called the witness may seek a bailable or
non-bailable warrant, depending on the importance of the witness' testimony.
Witness Fees: Witnesses are entitled to receive fees for their
attendance and any travel expenses, as prescribed by the court.
EXAMINATION
Examination refers
to the process of questioning the parties and witnesses during the trial. It is
an essential part of the fact-finding process and helps the court determine the
truth. Key points include:
Examination-in-Chief: This is the initial questioning of a witness by the
party who has called them to testify. The goal is to present evidence favorable
to that party's case.
Cross-Examination: This is the questioning of the witness by the
opposing party. The objective is to challenge the credibility of the witness
and test the veracity of their testimony.
Re-Examination: This is a further questioning of the witness by the
party who initially examined them. The purpose is to clarify any issues raised
during cross-examination.
ADMISSIONS
Meaning: An admission is a statement made by a party that
acknowledges the truth of a matter in dispute. Admissions can be made orally or
in writing and are usually made during the examination or in the pleadings.
Effect: Admissions can serve as conclusive evidence of a
fact, and the court may base its decision on them. However, a party may
withdraw or amend an admission if it can be shown that it was made
inadvertently or under duress.
Types of
Admissions:
-
Judicial
Admissions: Statements made by a
party in court that admit the truth of certain facts.
-
Extra-Judicial
Admissions: Statements made outside
of court but in the course of negotiations or dealings that may be used in
court.
Relevance: An admission is particularly significant in civil
litigation as it can simplify the proceedings by narrowing the issues in
dispute.
PRODUCTION, IMPOUNDING, RETURN OF DOCUMENTS
Production of
Documents: Parties to a suit must
produce all documents they intend to rely on during the proceedings. These
documents must be presented before the court in a manner that meets the court’s
rules and regulations. They are critical in supporting the claims made in the
pleadings.
Impounding of
Documents: If the court finds that a
document presented is not properly stamped (as per the Stamp Act), it has the
power to impound the document. The document cannot be used in court until the
deficiency is made up by the party concerned, such as paying the necessary
stamp duty.
Return of
Documents: Once a document has been
presented in the court and its purpose is fulfilled (such as after the trial or
appeal), it can be returned to the party who submitted it. This can happen
after a request is made by the party, unless the document is required for
further proceedings.
HEARING
Hearing of the
Case: The hearing is a formal
procedure where both parties present their arguments, evidence, and witness
testimony. The judge listens to the counsel, examines the evidence, and seeks
clarification on any matters before arriving at a decision.
Process: The hearing is structured, with each party
presenting their case in a specific order (plaintiff, defendant, and then
rebuttal). The court may ask questions to parties and witnesses to clarify
facts. After hearing both sides, the court deliberates and proceeds to the next
stage, such as passing a judgment.
Adjournment: During hearings, if the case cannot be completed due
to insufficient time or other reasons, it can be adjourned to a later date.
AFFIDAVIT
Definition: An affidavit is a written statement made under oath,
affirming the truth of the facts stated therein. It is a formal declaration
that the statements made are true to the best knowledge of the deponent.
Content: The affidavit must be signed by the deponent (the
person making the statement) and witnessed by a notary or authorized officer.
The document should contain facts that the deponent intends to prove in court.
Purpose: Affidavits are often used in cases where the witness
cannot be physically present or when submitting evidence such as documents,
statements, or other relevant material.
JUDGMENT AND DECREE
Judgment: A judgment is the final decision made by the court
regarding the issues in the case. It determines the rights of the parties
involved in the dispute. A judgment includes findings of fact, conclusions of
law, and the decision on the relief or remedy granted.
Decree: A decree is the formal expression of the judgment,
which signifies the final order passed by the court to resolve the dispute. It
has a binding effect on the parties. A decree can either be:
-
Preliminary: Issued before the final decision, indicating that
certain conditions must be met before a final decree is passed.
-
Final: Resolves the matter completely and is enforceable.
CONCEPTS OF JUDGMENT, DECREE, AND INTERIM ORDERS AND
STAY
Judgment: A judgment refers to the court’s reasoning and
decision on the case, addressing both facts and law. It concludes the
litigation in terms of its findings and determination.
Decree: A decree is the formal decision issued by the court
that ends the litigation, declaring the rights of the parties.
Interim Orders: These are temporary orders passed by the court
during the course of a case, usually to maintain the status quo, prevent harm,
or ensure fairness until the final judgment is delivered. Examples include
injunctions, appointment of receivers, etc.
Stay Orders: A stay order is an order by the court that suspends
or halts a particular action, such as the execution of a decree or any other
proceedings in the case. This is usually granted to prevent irreparable harm to
the parties or to maintain fairness while the case is pending.
INJUNCTIONS
Definition: An injunction is a court order that directs a party
to do or refrain from doing a particular act. It is used to prevent harm or
ensure that certain actions are not taken while the matter is under litigation.
Types of
Injunctions:
-
Temporary
Injunction: Issued during the
pendency of a case to preserve the status quo until the case is decided.
-
Permanent
Injunction: Issued after the
conclusion of the case, preventing a party from continuing certain actions or
compelling them to act in a specific way.
-
Interim
Injunction: A type of temporary
injunction granted before the main hearing, generally for an immediate need.
Purpose: The aim is to prevent injustice by prohibiting a
party from taking actions that could defeat the court’s judgment or cause
irreparable damage.
APPOINTMENT OF RECEIVERS AND COMMISSIONS
Appointment of
Receivers:
-
A receiver is a
person appointed by the court to manage and protect the property involved in a
dispute, especially when there is a likelihood of harm or destruction to the
property, or when the property is in dispute and needs administration during
the case.
-
The court
appoints a receiver to ensure the property is protected and preserved until the
case is decided.
Appointment of
Commissions:
-
A commission is a
body or individual appointed by the court to perform specific tasks or
investigations on behalf of the court.
-
The tasks could
involve collecting evidence, visiting a site, or examining a witness. This
helps the court in situations where it is difficult or impractical for the
judge to gather the evidence themselves.
COSTS
Definition: Costs in litigation refer to the legal expenses
incurred by the parties during the course of the case. This includes court
fees, lawyer’s fees, expenses related to witnesses, and other incidental
expenses.
Awarding of
Costs:
-
The court usually
orders the losing party to pay the costs incurred by the winning party, to
discourage frivolous or vexatious litigation.
-
Courts have
discretion to decide on costs based on the circumstances of the case and can
even refuse to award costs if deemed fit.
General Rule: The successful party is typically entitled to the
costs, but the court may vary this based on the conduct of the parties and
fairness.
EXECUTION
Definition: Execution is the process of enforcing a judgment or
decree passed by the court. After a decree is passed, if the judgment debtor
does not voluntarily comply, the decree holder may seek to enforce the decree
through the execution process.
Execution of
Decrees: It involves taking necessary
steps like attaching property, garnishing wages, or even arresting the debtor
to enforce the court’s order.
CONCEPT OF EXECUTION
Purpose of
Execution: Execution ensures that the
rights of the decree holder are realized. If the party against whom a decree
has been passed refuses to comply, the court can issue execution orders to
compel compliance.
Mode of
Execution:
Attachment of
Property: The property of the
judgment debtor may be attached and sold to satisfy the decree.
Arrest and
Detention: The judgment debtor may be
arrested and detained for failing to comply with the decree.
Garnishment: This involves seizing the money or assets of the
judgment debtor from third parties, like banks or employers, to satisfy the
decree.
Types of
Execution:
Preliminary
Execution: Execution to enforce a
part of the decree.
Final Execution: Execution to completely enforce the decree.
GENERAL PRINCIPLES OF EXECUTION
Principles:
-
Finality of
Decree: A decree must be final before
execution can take place.
-
Enforcement of
Civil Rights: The execution process
serves to enforce the rights of the decree holder, ensuring that the judgment
is translated into action.
-
Court’s Power
to Execute: The court has the power
to issue orders for the execution of its decrees and can take various actions
to ensure compliance.
-
Limitation for
Execution: There is a time limit for
executing a decree, usually 12 years from the date of the decree. If this
period lapses, the decree becomes unenforceable.
Obligations of
Judgment Debtor: The debtor is
legally bound to fulfill the decree. If they fail to do so, the creditor may
request the court to execute the judgment.
Modes of
Execution:
-
Physical
Execution: Direct actions like arrest
or property attachment.
-
Money
Execution: Recovering money through
garnishment or seizure of assets.
POWER OF EXECUTION
Definition: The power of execution refers to the authority
granted to courts to enforce a decree or order passed in a civil case. This
power allows courts to compel a party to comply with the judgment or face legal
consequences, such as attachment of property or arrest.
Scope of Power: Courts have the power to take various actions to
ensure compliance, such as issuing warrants, attaching properties, and ordering
arrest. The executing court ensures that the decree is implemented within the
boundaries of the law.
Judicial
Discretion: Courts have discretion in
choosing the appropriate method of execution, considering the circumstances of
the case and the nature of the decree.
POWER OF EXECUTING COURTS
Executing
Court: This is the court responsible
for the enforcement of a decree or order. It may not be the same court that
passed the original judgment, as an execution application can be made to any
court with jurisdiction over the matter.
Powers:
Issue Warrants: The executing court can issue various types of
warrants, such as arrest warrants or warrants of attachment, to enforce the
decree.
Attachment of
Property: The court has the power to
attach both movable and immovable property of the judgment debtor to satisfy
the decree.
Seizure of
Property: The court can authorize
seizure of property if necessary to implement the decree.
Enforcing
Decrees Across Jurisdictions: The
court has the power to execute decrees in different geographical jurisdictions,
provided the decree is within the court’s territorial reach.
PROCEDURE FOR EXECUTION
Step 1: Filing
of Execution Petition: After the
judgment is passed, the decree-holder must file an execution petition with the
executing court. The petition should include the decree details and the action
requested for enforcement.
Step 2:
Issuance of Execution Orders: The
executing court, after verifying the petition, will issue the necessary orders
to implement the decree. These may include attachment of property, warrants of
arrest, or other enforcement mechanisms.
Step 3: Action
on Orders: After orders are issued,
the relevant authorities (such as bailiffs or police officers) will act on
them. For example, property may be attached or sold, or the judgment debtor may
be arrested.
Step 4:
Satisfaction of Decree: The execution
process continues until the judgment debtor complies with the decree. The court
may report the case as "satisfied" once compliance is achieved.
MODES OF EXECUTION
Arrest and
Detention: If the judgment debtor
fails to pay the money or perform other duties ordered by the court, they can
be arrested and detained in prison for failing to comply with the decree.
Attachment and
Sale: The court may order the
attachment (seizure) of the debtor's property. This property is then sold to
raise money for the creditor.
Garnishment: This involves seizing the debtor’s property or
assets held by third parties (such as wages or bank accounts) to satisfy the
debt.
Execution of a
Money Decree: If the decree is for
the payment of money, the court can execute it by garnishing the debtor’s
wages, bank accounts, or seizing and selling their property.
Delivery of
Possession: In case of a decree for
possession of property, the court can issue an order to deliver the property to
the decree-holder.
ARREST AND DETENTION
Definition: Arrest and detention are powerful tools in the
execution process. If a judgment debtor willfully refuses to comply with the
decree, the executing court may order their arrest.
Procedure:
Arrest: The court issues a warrant for the debtor’s arrest.
Once arrested, the debtor may be held in detention until the debt is paid or
other compliance is made.
Conditions for
Arrest: The debtor must have the
means to pay but refuses to do so, or if the debtor is found to be avoiding the
enforcement process.
Purpose: The purpose of arrest is not punitive but to compel
the debtor to comply with the decree. Detention is used as a last resort when
other methods of execution have failed.
ATTACHMENT AND SALE
Attachment: Attachment refers to the legal process where the
court seizes the property of the judgment debtor in order to satisfy the
decree. There are two types:
-
Attachment of
Movable Property: Goods and personal
items belonging to the debtor are seized.
-
Attachment of
Immovable Property: The debtor’s real
estate (e.g., land or buildings) is attached.
Sale: After attachment, the court may order the sale of
the property to recover the debt. The sale proceeds are then used to satisfy
the creditor’s claims.
Procedure for
Sale:
-
The court issues
a proclamation of sale, notifying the debtor and the public about the property
being sold.
-
The property is
auctioned, and the highest bid is accepted.
-
The proceeds of
the sale are used to pay off the decree-holder, with any surplus returned to
the debtor.
Exemptions: Some property may be exempt from attachment, such as
property required for the debtor’s livelihood or tools of trade, depending on
the applicable law.
UNIT – 4
SUITS IN PARTICULAR CASES
Relevant
Provisions: Sections 79 to 82 of the CPC.
Nature:
-
The government may be a plaintiff or defendant in
civil suits.
-
The Union of India or the State Government must be
named as the party.
Procedure:
-
A mandatory prior notice (Section 80) must be served
to the government, giving a 2-month response period, except in urgent cases
where the court’s leave is required.
-
Public officers sued in their official capacity are
considered representatives of the government.
Purpose:
To ensure transparency and allow the government time to resolve disputes
amicably.
SUITS BY OR AGAINST GOVERNMENT
Relevant
Provisions: Sections 91 and 92 of the CPC.
Public
Nuisance (Section 91):
-
Two or more persons can jointly file a suit if a
public nuisance or wrongful act affects public rights.
-
Permission of the court is required before filing the
suit.
Public
Trusts (Section 92):
-
Concerns the administration of public trusts for
religious or charitable purposes.
-
Leave of the court or Advocate General’s consent is
necessary to initiate proceedings.
Purpose:
Protects public rights, ensures proper administration of public trusts, and
prevents misuse of public property.
SUITS RELATING TO PUBLIC MATTERS
Relevant
Provisions: Order XXXII of the CPC.
Representation:
-
A minor or person with unsound mind must sue or defend
through a guardian or "next friend."
-
The court appoints a "guardian ad litem" to
act in their best interest during the case.
Court’s
Role:
-
Ensures that decrees affecting minors or persons with
unsound minds are equitable and just.
Special
Protections:
-
The guardian cannot compromise or make decisions
against the ward’s interest without the court’s approval.
SUITS BY OR AGAINST MINORS, PERSONS WITH UNSOUND MIND,
Relevant
Provisions: Order XXXII of the Code of Civil Procedure (CPC).
Definition:
These suits involve minors (persons below 18 years) or persons legally declared
as of unsound mind who are incapable of representing themselves in legal
proceedings.
KEY FEATURES:
Representation
through a Guardian or Next Friend:
-
Minors or persons with unsound mind must sue or defend
through a "next friend" or a court-appointed "guardian ad
litem."
-
The guardian must act in the best interest of the
minor or person with unsound mind.
No
Compromise Without Court Permission:
A
compromise or settlement in such suits requires prior approval of the court.
This ensures the minor’s or ward’s rights are not compromised.
Judgment
Protection:
Any decree
passed must not harm the interest of the minor or unsound person. If such harm
is proven, the decree may be set aside.
Court’s
Duty:
The court
ensures fair representation and protects the interest of the minor or ward
throughout the proceedings.
Example:
If a minor
is involved in a property dispute, the guardian must act responsibly and seek
the court's approval before entering into any agreement.
SUITS BY INDIGENT PERSONS
Relevant
Provisions: Order XXXIII of the CPC.
Definition:
These suits are filed by persons unable to pay court fees due to financial
incapacity.
KEY
FEATURES:
Application
to Sue as an Indigent Person:
-
An application is filed showing the inability to pay
court fees.
-
The court examines the person’s financial condition,
which includes considering their property and income.
Privileges
of Indigent Persons:
-
They are exempted from paying court fees initially.
-
The case proceeds as if the fees were paid.
Withdrawal
of Indigent Status:
If the
financial condition of the plaintiff improves during the trial, the court may direct
them to pay the fees.
Rejection
of Application:
The
application may be rejected if the applicant owns sufficient property or if the
claim is frivolous or vexatious.
Example:
A person
who has no income and no assets to pay court fees files a suit for recovery of
ancestral property. After proving their indigency, the court allows them to
proceed without paying the fees.
INTERPLEADED SUITS
Relevant
Provisions: Section 88 and Order XXXV of the CPC.
Definition:
Interpleaded suits are filed when a person in possession of property or money
faces rival claims from two or more parties and does not claim ownership
themselves.
Key
Features:
Nature of
the Suit:
The
plaintiff is a neutral party holding the property or money and files the suit
to compel the claimants to settle their dispute.
Conditions:
-
The plaintiff must have no interest in the subject
matter.
-
There must be rival claimants to the property or
money.
Procedure:
The
plaintiff deposits the property or money with the court, and the claimants are
made defendants to the suit.
Court’s
Role:
The court
decides the rightful claimant after examining the case.
Example:
A bank
holding a fixed deposit faces claims from two individuals, each asserting
ownership. The bank can file an interpleader suit, deposit the amount with the
court, and let the court decide the rightful owner.
INCIDENTAL AND SUPPLEMENTARY PROCEEDINGS
Relevant
Provisions: Sections 75-78 and Orders XXXVI to XL of the CPC.
Definition:
These proceedings are supplementary in nature and aid in the smooth conduct and
fair resolution of the main suit.
Key
Features:
Commissions
(Section 75, Order XXVI):
The court
may appoint a commissioner for local inspections, recording witness testimony,
or conducting scientific investigations.
Temporary
Injunctions (Order XXXIX):
Temporary
injunctions are issued to maintain the status quo or prevent irreparable harm
to the subject matter of the suit.
Receivers
(Order XL):
A receiver
may be appointed to manage and protect the property in dispute during the
pendency of the case.
Supplementary
Orders:
Include
orders related to costs, enforcement of decrees, and protection of property.
Example:
In a
property dispute, the court may appoint a receiver to manage the disputed
property and issue a temporary injunction to prevent its sale until the case is
resolved.
APPEALS, REFERENCE, REVIEW AND REVISION
Appeals
An appeal
is a judicial process by which a higher court is invited to review the decision
of a lower court for its correctness.
Relevant
Provisions: Sections 96 to 112 and Order 41 to 45 of the CPC.
Key
Features:
-
An appeal is a statutory right.
-
The appellant must have been adversely affected by the
decision of the lower court.
-
Only questions of law or fact decided by the lower
court can be contested.
Reference
A reference
occurs when a subordinate court seeks guidance from a higher court on a
question of law during the pendency of a case.
-
Relevant Provision: Section 113, Order 46 of CPC.
-
Purpose: To clarify doubtful legal questions.
-
Scope: Can only be made for matters involving
substantial questions of law.
Review
A review
allows the court that passed the judgment to reconsider its decision on limited
grounds.
Relevant
Provision: Section 114, Order 47 of CPC.
Grounds for
Review:
Discovery
of new evidence.
Error
apparent on the face of the record.
Any other
sufficient reason.
Revision
Revision is
the power of a higher court to examine the records of a subordinate court to
correct jurisdictional errors.
Relevant
Provision: Section 115 of CPC.
Purpose: To
correct errors of jurisdiction or procedural irregularities.
APPEALS FROM ORIGINAL DECREES
Relevant
Provision: Section 96, Order 41 of CPC.
Definition:
An appeal lies to a higher court against a decree passed by a subordinate court
in the exercise of its original jurisdiction.
Grounds of
Appeal:
-
The decree is contrary to law.
-
The decision is based on insufficient evidence.
-
The lower court acted without jurisdiction.
Key Points:
-
First appeals can be on both questions of law and
fact.
-
No appeal lies against consent decrees or petty claims
unless specified otherwise.
APPEALS FROM APPELLATE DECREES
Relevant
Provision: Section 100, Order 42 of CPC.
Definition:
These are second appeals filed against the decree passed by an appellate court.
Grounds for
Second Appeal:
-
Substantial questions of law.
-
Misinterpretation of law.
Key
Features:
-
Only questions of law are entertained, not factual
issues.
APPEALS FROM ORDERS
Relevant
Provision: Section 104, Order 43 of CPC.
Definition:
Certain interlocutory orders can be appealed before a higher court.
Examples of
Appealable Orders:
-
Orders relating to stay, injunction, or appointment of
receivers.
-
Rejection of plaint or return of a plaint.
-
Setting aside an ex-parte decree.
Key Points:
Not all
orders are appealable. Only those explicitly provided under the CPC are
allowed.
GENERAL PROVISIONS RELATING TO APPEALS
Appeals to
the Supreme Court:
-
Governed by Sections 109 and 112 of CPC.
-
Must involve substantial questions of law of general
importance.
Limitation
Period for Filing Appeals:
Appeals
must be filed within the prescribed limitation period under the Limitation Act,
1963.
Procedure
for Filing Appeals:
-
The memorandum of appeal must be filed in the appropriate
court.
-
Grounds for appeal should be clearly mentioned.
Stay of
Proceedings:
The
appellate court may stay the execution of the decree during the pendency of the
appeal.
UNIT - 5
LAW OF LIMITATION
The Law of
Limitation refers to the legal framework that prescribes specific time limits
within which a person must initiate a legal action to enforce a right or seek
remedy in a court of law. This law is primarily governed by the Limitation Act,
1963 in India.
CONCEPT OF LIMITATION
-
The Law of Limitation governs the time frame within
which legal proceedings must be initiated.
-
If a case is filed after the prescribed period, it
becomes time-barred, and the court may dismiss it.
Relevant
Legislation: The Limitation Act, 1963.
Purpose:
To ensure legal certainty, avoid prolonged disputes, and promote diligent
actions.
OBJECT OF LIMITATION
-
Prevent Delayed Claims: Encourages timely enforcement
of rights and ensures claims are not unduly delayed.
-
Protects Defendants: Safeguards defendants from stale
claims where evidence might have deteriorated.
-
Public Policy: Promotes judicial efficiency and
finality in legal proceedings.
-
Certainty: Brings closure to disputes within a
reasonable period.
Case Law:
Rajender Singh v. Santa Singh (1973) – The Supreme Court emphasized the need
for limitation to avoid protracted litigation and preserve the integrity of
evidence.
GENERAL PRINCIPLES OF LIMITATION
Time-Barred
Suits:
-
No claim can be entertained after the limitation
period unless sufficient cause for delay is proven.
-
A time-barred claim extinguishes the remedy, not the
right.
Computation
of Time:
-
The limitation period begins from the date of accrual
of the cause of action.
-
The day the cause of action arises is excluded
(Section 12 of the Limitation Act).
Acknowledgment
and Part Payment:
-
Acknowledgment of debt or liability in writing
restarts the limitation period (Section 18).
-
Part payment of a debt within the limitation period
also restarts the period (Section 19).
Legal
Disability:
The
limitation period is extended if the claimant is a minor, of unsound mind, or
under other legal disabilities (Section 6).
Extension
and Condonation of Delay:
-
Courts may extend the limitation period if
"sufficient cause" is shown for the delay (Section 5).
-
Example: Delays due to illness, accidents, or
unavoidable circumstances.
Public
Interest Exception:
No
limitation applies for suits filed by the Government for the recovery of taxes
or public revenue.
Exclusion
of Time:
Certain
periods, such as time spent in obtaining certified copies or during
injunctions, are excluded (Sections 12-15).
Case Law:
Collector, Land Acquisition v. Katiji (1987) – The Supreme Court emphasized a
liberal approach in condoning delays to ensure justice.
EXTENSION
Extension
of limitation refers to situations where the prescribed limitation period can
be extended under specific circumstances as provided in the Limitation Act,
1963.
Relevant
Provision: Section 12 - Time spent in obtaining certified copies of
judgments or decrees is excluded from the limitation period.
Illustration:
If the limitation period for filing an appeal ends on 1st January 2025, and the
certified copy is obtained after 10 days, the limitation is extended by those
10 days.
Section 15:
Time during which the defendant is under legal disability (e.g., injunction or
stay) is excluded.
CONDONATION OF DELAY
Condonation
of delay allows courts to admit cases, appeals, or applications filed after the
expiration of the limitation period if sufficient reason is shown for the
delay.
Relevant
Provision: Section 5
-
Applicable to appeals and applications but not to
suits.
-
Delay is condoned if the applicant shows “sufficient
cause” for not filing within the prescribed time.
Judicial
Interpretation:
Collector,
Land Acquisition v. Katiji (1987): Courts should adopt a liberal approach to
condonation to prioritize substantial justice over procedural technicalities.
Example:
A party who
was hospitalized and unable to file an appeal within the limitation period may
have the delay condoned upon providing medical evidence.
SUFFICIENT CAUSE
Sufficient
cause is the valid reason or justification provided by the party for failing to
act within the limitation period.
Key Points:
-
The cause must be genuine, reasonable, and beyond the
control of the party.
-
It includes events such as illness, accident, or
unavoidable circumstances.
Case Law:
Balwant
Singh v. Jagdish Singh (2010): The Supreme Court clarified that mere negligence
or inaction does not constitute sufficient cause.
Illustration:
If a lawyer
representing a party passes away shortly before the limitation period expires,
this may be considered sufficient cause for delay.
COMPUTATION OF LIMITATION
Computation
of limitation refers to the method of calculating the time period prescribed
under the Limitation Act.
Relevant
Provision: Sections 12–15
Section
12(1): The day from which the period begins is excluded.
Section
12(2): Time required for obtaining certified copies is
excluded.
Section 15:
Time during which the filing of the suit is legally barred (e.g., injunction or
stay) is excluded.
Illustration:
If the
limitation begins on 1st January 2025 and the time for filing is 30 days, the
last day to file is 31st January 2025, excluding the day of the start.
Case Law:
Anwari
Basavaraj Patil v. Siddaramaiah (1993): The court held that the exclusion of
time in computation must strictly comply with the provisions of the Limitation
Act.
ACKNOWLEDGMENT AND PART -PAYMENT
Acknowledgment
and part-payment refer to actions by a debtor that can restart the limitation
period for enforcing a claim.
ACKNOWLEDGMENT
Relevant
Provision: Section 18
If a debtor
acknowledges their liability in writing before the expiration of the prescribed
limitation period, a fresh period of limitation begins from the date of
acknowledgment.
The
acknowledgment must:
-
Be in writing.
-
Be signed by the debtor or their authorized agent.
-
Relate to an existing liability.
Case Law:
Tilak Ram
v. Nathu (1967): An acknowledgment does not create a new right but revives the
existing one.
Example:
If the
limitation period for a debt ends on 31st December 2025, and the debtor
acknowledges the debt in writing on 1st July 2025, the limitation starts afresh
from 1st July 2025.
PART-PAYMENT
Relevant
Provision: Section 19
If the
debtor makes part-payment of a debt within the limitation period, a fresh
limitation period begins from the date of such payment.
The
part-payment must be:
-
Made voluntarily by the debtor.
-
Accepted by the creditor.
-
Recorded in writing or evidenced by the debtor's
acknowledgment.
Example:
If a debtor
pays part of the loan amount on 1st January 2025, a fresh limitation period
begins from this date.
LEGAL DISABILITY
Legal disability
refers to situations where the limitation period is extended due to the
inability of a person to take legal action.
Relevant
Provision: Section 6
If a person
entitled to file a suit or application is under legal disability (minority,
unsoundness of mind, etc.) at the time the right accrues, the limitation period
begins only after the disability ceases.
Exceptions:
Legal
disability does not apply if the person has a legal representative who can act
on their behalf.
Case Law:
Daya Chand
v. Raghunandan (1981): A minor’s limitation period begins from the date they
attain majority.
Example:
If a
minor's right to sue arises on 1st January 2020, and they attain majority on
1st January 2025, the limitation period will start from the latter date.
PROVISIONS OF THE LIMITATION ACT, 1963 (EXCLUDING SCHEDULE)
The
Limitation Act, 1963, contains procedural and substantive provisions ensuring
timely redressal of grievances.
Key
Provisions:
-
Section 3: A suit, appeal, or application filed beyond
the limitation period is barred, even if limitation is not pleaded as a
defense.
-
Section 5: Condonation of delay in appeals and
applications for sufficient cause.
-
Sections 12–15: Exclusions in computation of
limitation (e.g., time taken for certified copies, legal disability, stay
orders, etc.).
-
Section 27: Extinguishment of the right to property if
a suit is not filed within the prescribed time.
Objective:
-
Ensures certainty and finality in legal proceedings.
-
Encourages timely action by parties.
Judicial Interpretation:
M.P. Steel
Corporation v. CCE (2015): Limitation provisions are mandatory and cannot be
relaxed except where explicitly provided by law.
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DOWNLOAD SYLLABUS SHORT NOTES PDF of CPC:
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P-II: Public International Law
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