1CIVIL PROCEDURE CODE & LAW OF LIMITATIONPaper 5SEMESTER 5th CNLU, PatnaDr. ANSHUMANAdvocate, Patna High Court Member, Bihar State Law CommissionGuest Faculty, Chanakya National Law University Guest Faculty, State Judicial Academy, Bihar & Jharkhand Standing Counsel, Contact detail :- 9431045259; 9334525365 E-mail-id adv.anshuman@gmail.com

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1Syllabus :- C.P.C. & Law of LimitationA short historical survey of the conception of civil procedure in India before the advent of British.

Provisions of the code of civil procedure with regard to suits, their institution, pleadings, plaint, appearance and examination, judgment, decree and execution.

Pursue civil litigation through the appellate courts

Examining the corrective steps in Civil Proceedings.

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1Syllabus :- C.P.C. & Law of Limitation

Appellate litigation strategies and choice of grounds for appeal

Revision litigation strategies and choice of grounds for revision petition

Rules of C.P.C. Practice Relevant part of Civil court & High Court Civil Rules

Drafting exercise (Major part of course) deal with the Law of Limitation Throughout the course

Law of Limitation, Court Fee Act, Suit Valuation Act applicable to Civil proceedings

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1Syllabus :- C.P.C. & Law of LimitationExecution of Decree

Different orders of court & procedures laid down for it including use of Code of Civil Procedure under different statute.

Practical Problems including Ratio & Obiter Searching

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Detail Lecture Plan for Code of Civil Procedure,1908 & Limitation Act

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Sl. No.Lecture NumberName of Act/ TopicRemark1.3-5 lecturesA short Historical survey of the conception of Civil Procedure in India before the advent of British. Civil Procedure prior to British Period2.40-45 lecturesStructuring of CPC & Provisions of the Code of Civil Procedure with regard to suits, their institution, pleadings, plaint, W.S., appearance and examination, evidence, hearing & judgment.Definitions(S.2), Jurisdictions (S.6,15-21 & 9), Stay of suits (s.10), Resjudicata (S.11-13), S.89 & O1 to O.203.7-10 LecturesPursue civil litigation through the first appellate courts S. 95- 104, O41, 42 & 434.5-10 LecturesExamining the corrective/ incidental steps in Civil Proceedings at original, appellate & execution level. O22, 23, 39, 40 etc.

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Detail Lecture Plan for Code of Civil Procedure,1908 & Limitation Act

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Sl. No.Lecture NumberName of Act/ TopicRemark5.3-5 lectures2nd Appellate litigation strategies and choice of grounds for appeal Sec.100 & Substantial question of Law6.3- 5 LecturesRevision, Review & Reference litigation strategies and choice of grounds 113, 114 & 115O 47..7.3-5 lecturesExecution Proceedings S. .. & O218.3-7 lecturesRules of C.P.C. Practice Relevant part of Civil court & High Court Civil RulesCivil Court RulesHigh Court Civil Rules

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Detail Lecture Plan for Code of Civil Procedure,1908 & Limitation Act

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Sl. No.Lecture NumberName of Act/ TopicRemark9.10-15 ClassesLaw of Limitation, Court Fee Act, Suit Valuation Act applicable to Civil proceedings Limitation Act, 1963Court Fee Act,Suit Valuation Act,10.Through out lectures Drafting exercise (Major part of course) deal with the Law of Limitation Fundamental of Pleadings, interlocutory applications, incidental applications 11.Misc. Matter If time permitsUsability of CPC in other laws where Civil Rights are involved.Total Lectures77- 107 lecturessubmission of project & viva Deduction of marks if not on time

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LECTURE I A short historical survey of the conception of civil procedure in India before the advent of British.Hindu Jurisprudence or Legal System (Vyavahara Dharmasastra) is embedded in Dharma as propounded in Vedas, Puranas & Smritis.

It is difficult to define Dharma but it has been explained to mean that :-It helps the upliftment and ensure the welfare of living beings (Mahabharata)

It constitutes all affairs in the worlds (Taittiriya Samhita)

Dharma is the highest good. (Jaimini)

It sustains and ensure progress and welfare of all in this world and eternal bliss (Moksha). (Madhavacharya) Legal & Constitution History of India Vol.I by M.Rama Jois

1What do you mean by CPC i.e.Code of Civil ProcedureCode of Civil Procedure means

Vyavahara Prakria Sanhita

Etymologically Vyavahara means

Vi + ava + hara

Various + doubts + removing

Removing of various doubts

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1Origin of VyavaharaThe Ancient Hindu Jurists put emphasis on the causes for dispute i.e. the evil action as said by them. The said evil action they divided into three broad categories,1. From mind, 2. From speech and 3. From the body. Mind the instigator :- The sin takes its origin in mind in three ways1. Coveting the property of others.2. Thinking what is undesirable, and3. Adherence to evil doctrines. All the three resulted in following headsThe evil verbal actions,4. Speaking untruth,5. Attacking another in abusive or stronger language,6. Carrying tales against others, and 7. Talking ill of others.The wicked bodily actions,8. Taking what is not given,9. Injuring living being, and10. illicit intercourse.

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1Classification of Vyavahara

Under ancient Hindu Text Vayahara has been classified into two broad categories:-

One arising out of Wealth

Second arising out of Violence

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1Vyavahara arising out of Wealth1.Money Lending2.Deposit3.Invalid Gift4.Partnership5.Non payment of wages6.Disobedience of Contract7. Boundary Disputes8.Sale without ownership9.Revocation of Sale10.Breach of Agreement11.Law between Husband & Wife12.Theft13.Law of Inheritance 14.Gambling with dice

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1Vyavahara arising out of Violence1.Vakparushya (Defamation)

2.Dandaparushya (Assault, causing hurt etc.)

3.Sahasa( include robbery, dacoity, murder etc.)

4.Strisangrahana (Adultery & Rape)

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1Vyavahara as Legal ProceedingThe Hindu jurists not only developed substantive law applicable to Hindus but also formulated side by side the adjective/ procedural law for the enforcement of substantive law.

Vyavahara was invented to protect people and to ensure rule of Dharma (law).

It is a method developed by the jurists for enforcement of substantive law

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1Administration of JusticeJustice through Courts (Nayalaya Nayayaha)Highest Court presided by King or Chief Justice at Capital City (Presently Supreme Court of India & High Court)

Lower Courts under Royal Authority, at town and city, and (presently Civil Courts & Tribunals)

Peoples Court (Courts under Panchayati Raj Act)

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1Highest CourtSasita is the highest court presided by King himself or in his absence by the chief Justice at Capital City.

If a party was not satisfied with the decision given by any court or tribunal including kula( Gathering of family Council).

Court Hall is known as Dharmadhikaran( Hall of Justice)

Ashtami (8th day) & Chaturdasi (14th day) of every fortnight in the full moon and no moon were to be holiday for Kings Court.

A third part of the day omitting the first eight part (1/8th part = 1 & hour) i.e. about 7.30 a.m. to 12 noon.

The Chief Justice used to preside in the absence of King.The king used to take assistance by experts.

Opinion of Judges to be adhered during trial.Assistance by Marchent

Kings Court can be assisted by learned Scholars (Amicus Curiae)Smriti law and customary law binding on the king.

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1Lower Courts under Royal Authority Pratistiha A court which is established at a particular village or town presided by the Judge appointed by King.

Apratistiha A mobile court, moving from village to village presided by the judge appointed by King.

Mudrita A court appointed by the King and authorised to use Royal Seal

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1Peoples CourtKula Gathering of family councils It is an assembly of persons belonging to the family or caste of the litigants, functioning of the panchyatdars mandali to decide dispute among those belonging to same family or caste.

Shreni -Corporation of persons following the same craft, profession or trade.

Gana Assembly of persons belonging to one place but to different castes or followings different avocations.Jurisdiction:-

Peoples Court has jurisdiction to decide all disputes except those falling under the title Sahasa. Fine and corporal punishment could only be inflicted by the King.

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1Appellate Jurisdiction

Shreni can review the decision of Kula.

Gana can review the decision of Shreni Judges (in Pratistitha/ Apratistitha) can review the decision of Gana

King is the Highest Court of Appeal can review the decision of any court and his decision is final.

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1Judicial Proceeding - (Nyaya Kramaha)Under ancient Hindu text there are following parts in a judicial proceeding:-

1.Purvapakasha Stating the case of Plaintiff (Vadin).

2. Uttara -The written statement being the reply or answer given by the defendant (Prativadin).

3. Kriya The trial of the case by the Court 4. Nirnaya The judicial decision.

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1How to write a Plaint (Pratijna)A plaint should be :-Brief in words

Rich in contents

Unambigious

Free from confusion

Devoid of improper arguments

Capable of traversed by the defendant

Set out the prayer sought against the opponent

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1Contents of a PlaintThe countryThe place (village etc.)The situation (boundaries of the field etc. sketch)The Caste/ Profession of partiesThe name of parties The dwelling place of the partiesThe measurement & filed name if requiredThe name of father and grandfather of the partiesThe enumeration of the former kingsInjury or loss caused by the defendantsName and the thing claimedReason why the plaintiff submitted this caseOther necessary details if required

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1Procedure for acceptance of filing of a caseBefore Filing any case examination of Plaintiff & Complainant was necessary :- The party filing the case should be asked the following questions by the King or judges:-

What is your grievances?What is the injury done to you?By whom, where and at what time and why the grievance or injury complained of was caused?

The answer given by the party was recorded if party is in a position to state.

It is duty of judge to ascertain the facts and accept the case.

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1Characteristic of a good PlaintA Good Plaint is Free from faults of declarationCapable of proofContains good groundsGrounds are precisePlaint is not self-contradictory

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1A Plaint was fit to be rejectedIf it is made out opposing the law or usage or Rajashasan and suffers from multiplicity of rights under different titles of law

It is devoid of material particulars of claim viz. Value, description etc.

If it does not state that opposite party has done any unlawful act or was not willing to do what was bound to do in law.

If statements made in the plaint is self-contradictory so as to make out no case for the plaintiff.

If grievances of the plaint is imaginary and does not disclose any injury caused to plaintiff or violation of any rule/ law

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1Service to the DefendantThe notice of summon to opposite side be served through the plaintiff if he choose to do so.

The notice of summon was also through Swapurusha whose duty is to enforce the attendance of the opposite party at court,( presently they are known as Process servers)

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1Pratyakalita (Amendment of declaration by additional statement)In the ancient Hindu text, there was provision for amending his declaration if he felt that he has omitted some particulars by mistake or omitted to make any allegations.

But the amendment cannot be used to make out an new case.

It the plaintiff forsakes his original claim and makes out entirely a new case, the Plaintiff loses his case.

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1Types of plea by DefendantThe reply filed by the defendant is Uttara (presently known as Written statement) may be of four type find:-1.Satyam Admission

2.Mithyam -DenialThis is false.I do not know at all.I was not present there at the time.I was not born at the time.

3.Pratyavaskandanam Special Plea, for ex.Confession & avoidance True it is that I received, but I returned it/ obtained it as a gift.

4.Purvanyaya Former judgment = Already decided

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1Contents of Uttara (Written Statement)The defendant should tender an answer conformable to the plaint.The characteristics of the defective Uttara (W.S.) are :-

Contradictory A reply which contains both admission and denial.

Incomplete A reply for saying plaintiff was formerly defeated by meHere no exact case number, in this matter or in any other matter etc. have not been described. So this statement is incomplete.

Ambiguous In stead of saying maya dayam{It has to be given by me}, it is stated maya adayam. {It has not to be given by me.}

Irrelevant In reply such a statement has come which is absolutely irrelevant to the case.

Inadequate The reply would not meet the point thoroughly stated in the Plaint

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1Appearance of Defendant A defendant to whom notice is issued by the court and who is able to appear, must appear before the court

If defendant fails to appear, he is liable to be fined being defendent on the subject matter of the case.

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1Grounds for defeat without trialThere are five grounds recognised by our ancient Hindu text (Narad Smriti) to defeat without trial:-

1.Anyavadi A party who retorts to a totally different plea than one pleaded already by the plaintiff.

2.Kriyadvesi One who shuns trial.

3. Nopasthatha A man who fails to appear before the court.

4.Niruttara One who have appeared before the court, fails to reply the questions asked i.e. remain silent.

5.Ahutavipalayi The person who absconds after receiving summons.

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1AdjournmentsPlaintiff can seek adjournment if he was unable to put forward his case due to incapacity or lack of courage.

Defendant after appearing before the court can seek adjournment on account of fear, confusion, and other reasons.

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1Appearance through AnotherIn the ancient text there are provisions for appearance in a case through another person named as Niyogi. This rule is also present in O III Rule 3 C.P.C..

Niyogi Only a person well versed in the substantive law and procedural law is entitled to represent parties and take remuneration for his services

There were provision for scale of fee payable to Niyogi & also provision for payment for misconduct by a Niyogi.

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1Payment of Court FeeUnder ancient system (Smriti):The payment of court fee had to be followed the final decision of the court.The defeated party was liable to pay the court fee.State collect court fee after final decision of the case.

Under present system:The payment of court fee has used to be paid prior to admitting/ acceptance case.The plaintiff is liable to pay the court fee.State collect the court fee prior to filing of a case.

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1PratyakalitaFixing burden of proofAfter the defendant files his reply (Uttara) to the plaint (Pratijna) before the court, the Sabhyas (Judges) should examine the contents of the pleadings and decide:-

1.The facts proposed to be established by the respective parties, and

2.On which party burden of proof lies.

3.This stage of the suit was known as Pratyakalitapadah

4.The party on whom the burden of proof lies should be called upon the substantiate the whole of his declaration by adducing evidence.

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1TRIALTrial must be open and fairFor open and fair trial the king or court should do the following works:-The court or king should try suits as per the substantive law.The court or king should never try cases or here the parties (when he is alone).Neither the court nor the king should conduct the trial in secret.Trial must begin with the party on whom the burden of proof lay.In general the parties themselves produce the witnesses but when the witness refuse to come, summon be given to the witnesses.Provisions for imposing penalty for failure to give evidence.Provisions for payment of subsistence allowance to witnesses.Examination of witnesses to be taken place in the open court.Every witness be put on oath.(At present system also the witness has to be take oath as per provisions of section 4 of the Indian Oaths Act 1969)Examination of witness had to be taken place by the court or King only. Party could not put question to the witnesses.Note :- Examination in Chief of the witness and its cross examination was not peculiars to the ancient Indian Judicial System. It is characteristics of English trial, whether civil or criminal.

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1Jayapatra Judgment It was document of Victory or judgmentIt was based on evidence.Contents of Jayapatra:-Brief statement of plaint and the answer,The evidence adduced by the parties,The discussion on the Pratayakalit (issues involved),The consideration of the arguments advanced by the parties,The law applicable to the case,The opinion of Sabhyas (judges) or kingThe decision given by the chief justice, other judges or King, andThe royal Seal

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First Law Commission First Law Commission was set up in the year 1835 for searching the establishment of uniform law through out India. By the order of the British Parliament the first law commission was established in which members wereLord Macaulay, Barrister, ChairmanClarles Hay Cameron, member

1Constitution of Court after 1857After the Revolt of 1857, a statute was passed by the British Parliament called Govt. of India Act by which the Govt. of India was transferred from East India Company to Her Majesty Queen Victoria.

In the year 1861 two acts came

High Courts Act 1861 &

Indian Council Act 1861

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Second Law Commission First Law Commission works underLord Macaulay, Barrister, ChairmanClarles Hay Cameron, memberBy the Second Law Commission first set of codified laws came The Code of Civil Procedure, 1859The Limitation Act, 1859The Indian Penal Code, 1860The Code of Criminal Procedure, 1861

1The High Courts Act 1861High Court at Calcutta for BengalHigh Court at Bombay for BombayHigh Court at Madras for MadrasHigh Court at Allahabad established in 1866All these High Courts were established by letters patent or Charter. They all are known as Charted High Courts.

Patna High Court established in the year 1913

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1Under Indian Council Act 1861Following courts were established

Presidency Small Clauses CourtsProvincial Small Clauses CourtsDistrict CourtsSubordinate judges CourtsMunsiffs Court

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