4) Civil Procedure Code: Salient Features

The law can be broadly classified as –

1. Substantive Law, and

2. Procedural Law.

The Substantive Law, whether it is based on statute law or common law, defines

what facts are constituting a fact or liability.[1] To say, in other words, the
Substantive law defines various principles regarding the rights and liabilities.
(Example: The Indian Penal Code, 1860 which describes various offenses
punishable under Criminal acts).

On the contrary, the Procedural law or adjective law, on the other hand,

prescribes the procedure and machinery for the enforcement of those rights and
liabilities. To say, in other words, the procedural law is concerned with
enforcement of those rights and liabilities determined in accordance with the rules
of the substantive law.[2] (Example: The Code of Civil Procedure 1908, The Code of
Criminal Procedure, 1973 etc).

The Law regulating the procedure to be followed in civil court is governed by the
Civil Procedure Code and this Civil Procedure Code is one of the most important
branches of the procedural law.

As we all know, “Ignorance of law is not a defense” and every Indian should
know the laws of this nation.

CPC is a territorial law. It extends to whole of India except –

1. The State of Jammu and Kashmir

2. The State of Nagaland and the tribal areas

It also gives a provision that the concerned state government may extend the
provisions of the Civil Procedure Code by notifying in the Official Gazette.[10] The
code can be extended to the whole state or any part of the state using this
provision.

 The Civil Procedure Code made the procedure to be followed in the Civil

Courts very simple and effective. Enforcement of rights, liabilities and
obligations of the citizens are dealt by this code. To say, in other words,
the Civil Procedure Code provides the mechanism for enforcement of
rights and liabilities.
  The Civil Procedure Code is a general law and will not affect local or
special laws which are already in force. In case of any conflict with local
or special laws, the local or special law will prevail over the Civil
Procedure Code. In case, if the local or special law is silent about any
particular issue, then the Civil Procedure Code will apply.

 The Civil Procedure Code has been amended several times to meet the

needs and requirements which are dynamic and changing from time to
time. Between 1909 to 1976, the Code has been amended for more than
30 times.

The Amendments of 1999 and 2002 brought in many changes to the procedure to
be followed.

2. Res Judicata As Defined Under Code of Civil Procedure, 1908

Section 11 of the Code of Civil Procedure embodies the doctrine of res judicata
or the rule of conclusiveness of a judgement,

as to the points decided either of fact, or of law, or of fact and law, in every
subsequent suit between the same parties. It enacts that once a matter is
finally decided by a competent court, no party can be permitted to reopen it in
a subsequent litigation. In the absence of such a rule there will be no end to
litigation and the parties would be put to constant trouble, harassment and
expenses. The doctrine has been explained in the simplest possible manner by
Das Gupta, J., the principle of Res Judicata is based on the need of giving a
finality to the judicial decisions. What it says is that once a res judicata, it
shall not be adjudged again. Primarily it applies as between past litigation and
future litigation. When a matter- whether on a question of fact or a question of
law has been decided between two parties in one suit or proceeding and the
decision is final, either because no appeal was taken to a higher court or
because the appeal was dismissed, or no appeal lies, neither party will be
allowed in a future suit or proceeding between the same parties to canvas the
matter again.

Section 11 of the Code of Civil Procedure, 1908 defines Res Judicata as:

No Court shall try any suit or issue in which the matter directly and
substantially in issue has been directly and substantially in issue in a former
suit between the same parties, or between parties under whom they or any of
them claim, litigating under the same title, in a Court competent to try such
subsequent suit or the suit in which such issue has been subsequently raised,
and has been heard and finally decided by such Court.

Explanation I: The expression "former suit" shall denote a suit which has been
decided prior to the suit in question whether or not it was instituted prior
thereto.
Explanation II. For the purposes of this section, the competence of a Court
shall be determined irrespective of any provisions as to a right of appeal from
the decision of such Court.

Explanation III. The matter above referred to must in the former suit have been
alleged by one party and either denied or admitted, expressly or impliedly, by
the other.

Explanation IV. Any matter which might and ought to have been made ground
of defence or attack in such former suit shall be deemed to have been a matter
directly and substantially in issue in such suit.

Explanation V. Any relief claimed in the plaint, which is not expressly granted
by the decree, shall, for the purposes of this section, be deemed to have been
refused.

Explanation VI. Where persons litigate bona fide in respect of public right or of
a private right claimed in common for themselves and others, all persons
interested in such right shall, for the purposes of this section, be deemed to
claim under the persons so litigating.

Explanation VII. The provisions of this section shall apply to a proceeding for
the execution of a decree and reference in this section to any suit, issue or
former suit shall be construed as references, respectively, to proceedings for
the execution of the decree, question arising in such proceeding and a former
proceeding for the execution of that decree.

Explanation VIII. An issue heard and finally decided by a Court of limited

jurisdiction, competent to decide such issue, shall operate as res judicata in as
subsequent suit, notwithstanding that such Court of limited jurisdiction was
not competent to try such subsequent suit or the suit in which such issue has
been subsequently raised.

3. Res sub judice

One of the Yardsticks of Assessing the Functioning of the courts is to
assess the ‘Judicial Efficiency’. The Judicial Efficiency is not only
dependent on the working of the judges and the courts, rather it
depends more on the right implementation of the ‘common law rules’
and doctrines, which are there to increase the pace of getting the
justice in the court, i.e., increasing the judicial Efficiency. Two of Such
Doctrines are:- Doctrine of Res Sub judice and Res Judicata.
Res Sub Judice

in Latin means ‘under judgment’. It denotes that a matter or case is

being considered by court or judge. When two or more cases are filed
between the same parties on the same subject matter, the competent
court has power to stay proceedings. However, the doctrine of res sub
judice means stay of suit. The Civil Procedure Code provides rules for
the civil court in respect of the doctrine of res sub judice . This rule
applies to trial of a suit not the institution thereo.

The doctrine of res sub judice aims to prevent courts of concurrent

jurisdiction from simultaneously entertaining and adjudicating upon
two parallel litigations with respect to the same cause of action, same
subject matter and same relief claimed.

Section 10: Stay of Suit

"No Court shall proceed with the trial of any suit in which the matter
in issue is also directly and substantially in issue in a previously
instituted suit between the same parties, or between parties under
whom they or any of them claim litigating under the same title where
such suit is pending in the same or any other Court in India having
jurisdiction to grant the relief claimed, or in any Court beyond the
limits of India established or continued by the Central Government
and having like jurisdiction, or before the Supreme Court".

Explanation- The pendency of a suit in a foreign Court does not

preclude the Courts in India from trying a suit founded on the same
cause of action.

The object of the of the section is to protect a person from a

multiplicity of proceedings and to avoid a conflict of decisions. It also
protects the litigant people from unnecessary harassment

Conditions to be complied with before the application of the

principle:

1. There must be two suits one previously instituted and the

other subsequently instituted.
2. The matter in issue in the subsequent suit must be directly
and substantially in issue in the previous suit.
3. Both the suits must be between the same parties or their
representatives.
4. The previously instituted suit must be pending in the same
court in which the subsequent suit is brought or in any
other court in Bangladesh or in any court beyond the limits
of Bangladesh established or continued by the Government
or before the Supreme Court.
 5. The Court in which the previous suit is instituted must
have jurisdiction to grant the relief claimed in the
subsequent suit.
6. Such parties must be litigating under the same title in both
the suits.

If these conditions are fulfilled, the subsequent suit must be stayed by

the court where it is pending. It must be remembered that the
institution of the subsequent suit is not ‘barred’ but its ‘trial’ only. The
final decision of the former suit shall operate as res judicata in the
subsequent suit.

This Doctrine cannot be applied when the point at issues are distinct
and different, or even where there are some issues in common and
others are different issues. It is also not applicable between the suits
where although the parties are same, the issues are not the same

OR

3 .Doctrine of Res Sub-Judice

Section 10 deals with Doctrine of Res Sub-Judice. ‘Res’ means

matter or litigation and Sub-Judice means pending (under
judgment). Conjoining the two, it implies that the rule of Res Sub-
Judice relates to a matter which is pending judicial enquiry. In
other words, this rule applies where a matter is already pending
before a competent court for the purpose of adjudication Section 10
of CPC deals with the stay of civil suits.

Stay of Suit

No Court shall proceed with the trial of any suit in which the matter
in issue is also directly and substantially in issue in a previously
instituted suit between the same parties, or between parties under
whom they or any of them claim litigating under the same title
where such suit is pending in the same or any other Court in India
having jurisdiction to grant the relief claimed, or in any Court
beyond the limits of India established or continued by the Central
Government and having like jurisdiction, or before the Supreme
Court.[1] The ingredients of Section 10 are as follows:-

1. Court shall proceed with the trial of any suit :- It is such court where
subsequent litigation has been instituted and not the court which
has taken the adjudication for previous litigation. Technically
speaking, section 10 applies to those litigations which come within
the ambit of section 9 read with section 26(2) of the Code. The term
‘trial’ in this sense implies to all the proceedings of a civil suit. So,
the subsequent litigation needs to be stayed notwithstanding the
stage at which it is.

It were intended to bar the separate trial of any suit in which the
matter in issue was also directly and substantially in issue in a
previously instituted suit between the same parties. But these
words do not apply to the simultaneous hearing of a late and earlier
suit after the consolidation of the two. Suit with the meaning of
section 10 includes a pending appeal [2] and even if second appeal is
lying undecided it is a previously instituted suit for the purposes of
the section.[3]

2. Matter directly and substantially in issue :- It means the rights

litigated between the parties i.e. the facts on which the right is
claimed and the law applicable to the determination of that issue.
The words “matter in issue” used in Section 10 do not mean that
entire subject-matter of the subsequent suit and the previous suit
must be the same. These words mean all disputed material
questions in the subsequent suit which are directly and
substantially in question in the previous suit.

‘Matter in issue’ with respect to the Evidence Act, 1872 is of two

types:-

 Matter directly and substantially in issue:-‘directly’

means
immediately, without intervention. ‘Substantially’ implies
essentially or materially.
 Matter collaterally and incidentally in issue

3. Same Parties:- The previously instituted suit must have been a

suit between the same parties or between the parties under whom
they or any of them is claiming. Party is a person whose name
appears on the record at the time of the decision.

4. Same title:- It means same capacity. Title refers to the capacity or

interest of a party that is to say whether he sues or is sued for
himself in his own interest or for himself as representing the
interest of another.

5. Previously instituted suit must be pending :- The previously

instituted suit between the parties must be a pending one: (a) in the
same Court in which the subsequent suit is brought, or (b) in any
Court in India, or (c) in any Court beyond the limits of India
established or constituted by the Central Government, or (d) before
the Supreme Court[4].

Illstrations

 ‘A’ an agent of ‘S’ at Jaipur agreed to sell S’s goods in

Bangalore. ‘A’ the agent files suit for balance of accounts in
Bangalore. ‘S’ sues the agent ‘A’ for accounts and his
negligence in Jaipur; while case is pending in Bangalore. In
this case, Jaipur Court is precluded from conducting trial
and can petition Bangalore Court to direct stay of
proceedings against Jaipur Court.
 ‘A’ and ‘B’ entered into contract for the sale of machine. ‘A’
first filed a suit against ‘B’ at court Bombay, demanding
recovery of the entire amount paid. Subsequently, ‘B’ filed a
suit against ‘A’ at court Delhi demanding Rs.18, 000 as
outstanding balance. In A’s suit, ‘B’ took the defence that
since both the suits are on similar issues, A’s suit should be
stayed. However, court Delhi held that since A’s suit is the
first suit and the subsequent suit had issues similar to the
first suit, it is the subsequent suit that is liable to be stayed.

Nature and Scope:

Section 10 declares that no Court should proceed with the trial of

any suit in which the matter in issue is directly and substantially in
issue in a previously instituted suit between the same parties and
the Court before which the previously instituted suit is pending is
competent to grant the relief sought. [5]

The Rule applies to trial of a suit and not the institution thereof. It
also does not preclude a Court from passing interim orders, such
as, grant of injunction or stay, appointment of receiver [6]. It,
however, applies to appeals[7] and revisions.[8]

Object

The object of the rule contained in Section 10 is to prevent courts of

concurrent jurisdiction from simultaneously entertaining and
adjudicating upon two parallel litigations in respect of the same
cause of action, the same subject-matter and the same relief. The
policy of law is to confine a plaintiff to one litigation, thus obviating
the possibility of two contradictory verdicts by one and the same
court in respect of the same relief.
 4. Rules of Framing Civil Suit.

ORDER II RULE 1, 2, 3, 4, 5,6, 7 OF CODE OF CIVIL PROCEDURE

1908

Rule 1 Order II of Code of Civil Procedure 1908 "Frame of suit"

Every suit shall as far as practicable be framed so as to afford ground for final
decision upon the subjects in dispute and to prevent further litigation
concerning them.

Rule 2 Order II of Code of Civil Procedure 1908 "Suit to include the whole
claim"

(1) Every suit shall include the whole of the claim which the plaintiff is entitled
to make in respect of the cause of action; but a plaintiff may relinquish any
portion of his claim in order to bring the suit within the jurisdiction of any
Court.

(2) Relinquishment of part of claim- Where a plaintiff omits to sue in respect of,
or internationally relinquishes, any portion of his claim, he shall not afterwards
sue in respect of the portion so omitted or relinquished.

(3) Omission to sue for one of several reliefs- A person entitled to more than
one relief in respect of the same cause of action may sue for all or any of such
reliefs; but if he omits, except with the leave of the Court, to sue for all such
reliefs, he shall not afterwards sue for any relief so omitted.

Explanation- For the purposes of this rule an obligation and a collateral

security for its performance and successive claims arising under the same
obligation shall be deemed respectively to constitute but one cause of action.

Illustration

A lets a house to B at a yearly of rent Rs. 1200. The rent for the whole of the,
years 1905, 1906 and 1907 is due and unpaid. A sues B in 1908 only for the
rent due for 1906. A shall not afterwards sue B for the rent due for 1905 or
1907.

Rule 3 Order II of Code of Civil Procedure 1908 "Joinder of causes of

action"

(1) Save as otherwise provided, a plaintiff may unite in the same suit several
causes of action against the same defendant, or the same defendants jointly;
and any plaintiffs having causes of action in which they are jointly interested
against the same defendant or the same defendants jointly may unite such
causes of action in the same suit.

(2) Where causes of action are united, the jurisdiction of the Court as regards
the suit shall depend on the amount or value of the aggregate subject-matters
at the date of instituting the suit.

Rule 4 Order II of Code of Civil Procedure 1908 "Only certain claims to be

joined for recovery of immovable property"
No cause of action shall, unless with the leave of the Court, be joined with a
suit for the recovery of immovable property, except-

(a) claims for mesne profits or arrear of rent in respect of the property claimed
or any part thereof;

(b) claims for damages for breach of any contract under which the property or
any part thereof is hold; and

(c) claims in which the relief sought is based on the same cause of action:

Provided that nothing in this rule shall be deemed to prevent any party in a
suit for foreclosure or redemption from asking to be put into possession of the
mortgaged property.

Rule 5 Order II of Code of Civil Procedure 1908 "Claims by or against

executor, administrator or heir"

No claim by or against an executor, administrator or heir, as such, shall be

joined with claims by or against him personally, unless the mentioned claims
are alleged to arise with reference to the estate in respect of which the plaintiff
or defendant sues or is sued as executor, administrator or heir, or are such as
he was entitled to, or liable for, jointly with the deceased person whom he
represents.

Rule 6 Order II of Code of Civil Procedure 1908 "Power of Court to order

separate trials"

Where it appears to the Court that the joinder of causes of action in one suit
may embarrass or delay the trial or is otherwise inconvenient, the Court may
order separate trials or make such other order as may be expedient in the
interests of justice.

Rule 7 Order I of Code of Civil Procedure 1908 "Objections as to

misjoinder"

All objections on the ground of misjoinder of causes of action shall be taken at

the earliest possible opportunity and, in all cases where issues are settled, at
or before such settlement unless the ground of objection has subsequently
arisen, and any such objection not so taken shall be deemed to have been
waived.

5. .Service of Summons after framing of suits

What are Summons? Introduction –

A summon is a legal document that is issued by a Court on a person

involved in a legal proceeding. When a legal action is taken against a
person or when any person is required to appear in the court as a
witness in a proceeding, to call upon such person and ensure his
presence on the given date of the proceeding, summons are served.
A summon is served when a suit has been initiated by the plaintiff
against the defendant, the court directs to issue summons to the
defendant as this ensures a fair trail. If the summons are not duly served
then no action can be taken against the defendant.

If on serving of the summon and the person against whom it had been
issued does not appear in the court then this will be taken as a
Contempt of Court and shall be punished accordingly.

ORDER V RULE 1, 2, 3, 4, 5 OF CODE OF CIVIL PROCEDURE 1908

Rule 1 Order V of Code of Civil Procedure 1908 "Summons"

(1) When a suit has been duly instituted a summons may be issued to the
defendant to appear and answer the claim on a day to be therein specified :

Provided that no such summons shall be issued when .the defendant has
appeared at the presentation of the plaint and admitted the plaintiff's claim :

Provided further that where a summons has been issued, the Court may direct
the defendant to file the written statement of his defence, if any, on the date of
his appearance and cause an entry to be made to that effect in the summons.

(2) A defendant to whom a summons has been issued under sub-rule (1) may
appear-

(a) in person, or
(b) by a pleader duly instructed and able to answer all material questions
relating to the suit, or
(c) by a pleader accompanied by some person able to answer all such
questions.

(3) Every such summons shall be signed by the Judge or such officer as he
appoints, and shall be sealed with the seal of the Court.

Rule 2 Order V of Code of Civil Procedure 1908 "Copy or statement

annexed to summons"

Every summons shall be accompanied by a copy of the plaint or, if so

permitted, by a concise statement.

Rule 3 Order V of Code of Civil Procedure 1908 "Court may order

defendant or plaintiff to appear in person"

(1) Where the Court sees reason to require the personal appearance of the
defendant, the summons shall order him to appear in person in Court on the
day therein specified.

(2) Where the Court sees reason to require the personal appearance of the
plaintiff on the same day, it shall make an order for such appearance.

Rule 4 Order V of Code of Civil Procedure 1908 "No party to be ordered to

appear in person unless resident within certain limits"

No party shall be ordered to appear in person unless he resides-

(a) within the local limits of the Court's ordinary original jurisdiction, or

(b) without such limits but at place less than fifty or (where there is railway or
steamer communication or other established public conveyance for five-sixths
of the distance between the place where he resides and the place where the
Court is situate) less than two hundred miles distance from the court-house.

Rule 5 Order V of Code of Civil Procedure 1908 "Summons to be either to

settle issues or for final disposal"

The Court shall determine, at the time of issuing the summons, whether it
shall be for the settlement of issues only, or for the final disposal of the suit;
and the summons shall contain a direction accordingly :

Provided that, in every suit heard by a Court of Small Causes, the summons
shall be for the final disposal of the suit.

6. Affidavit

What Is An Affidavit?

An affidavit is a sworn statement of facts by a person who knows that such facts
and circumstances have taken place. The person who makes such statement and
signs it is known as a deponent. An affidavit is a written document signed by the
deponent, confirming that the contents of the affidavit are true and correct to his
knowledge and he has concealed nothing material therefrom. It is duly attested/
affirmed by the Notary or Oath Commissioner. Such Notary/ Oath Commissioners
are appointed by the Court of Law. The duty of the Notary/ Oath Commissioners is
to ensure that the signature of the deponent are not forged. Hence, the deponent
himself needs to be present before the Notary/ Oath Commissioner during the
attestation of the affidavit.

The affidavit must be paragraphed and numbered. The person making the affidavit
(the deponent) must sign the bottom of each page in the presence of an authorized
person, such as a lawyer. Further, the affidavit must contain the full name,
address, occupation and signature of the person (deponent) making such affidavit
and the date & place where such affidavit is made. The affidavit must contain facts
and circumstances known to a person and must not set out the opinions and
beliefs of the deponent. Further, one should avoid referring to facts that are based
on information received from others (known as hearsay evidence).  However, if the
person is giving evidence as an expert; for instance, a psychologist or licensed
valuer, then his opinion might be stated in the affidavit.
The the law pertaining to affidavits is covered under Section 139 and Order XIX of
Code of Civil Procedure, 1908 . Order XIX of Code of Civil Procedure, 1908
empowers the Court to order at any point of time, any particular fact or facts to be
proved by affidavit. But the Court shall not make such order, where it appears to
the Court that either party desires the production of a witness for cross-
examination and that such witness can be produced.

7. Judgment: Sec-2(9)

“Judgment” means the statement given by a judge of the grounds of a decree or

order.

The essential element of a judgment is that there should be a statement for the
grounds of decision.

As the Supreme Court in BalrajTaneja V. Sunil Madan, AIR 1999 SC 3381

held, a Judge cannot merely say “Suit Dismissed” or “Suit Decreed”. The whole
process of reasoning has to be set out for deciding the case one way or the
other.

So, Every Judgment other than that of a Court of Small Cause should contain

1. A concise statement of the case,

2. The points for determination,

3. The decision thereon, and

4. The reason for such decision.

A judgment of a Court of Small Cause may contain only point (2) and (3).

DECREE: SEC-2(2);

Means the formal expression of an adjudication which,

So far as regards the Court expressing it,

Conclusively determines the rights of the parties,

With regards to all or any of the matters in controversy in the suit,

And may be either preliminary or final.

MEANING: Defined under Section 2(2) of the civil procedure code, a decree is a
formal expression which provides the determination of the interests of both the
parties in a conclusive manner with regards to any of the controversial matters
or concerns of the particular civil suit. A decree may include rejection of a
plaint or determination of any question under section 144, but it does not
include the following: any adjudication from which an appeal lies as an appeal
from an order any order of dismissal for default. To understand the concept of
a decree, we must view it as a subset of judgment. It is the decision arrived at
by the judge after hearing the merits on both sides of the case, and also the
expression of the same. A decree forms the latter part of a judgment and is
extracted from the same by a decree clerk after obtaining the basic results of
the case. Interestingly, the date of the decree is the date of the judgment for
facilitating the process of execution and for the benefit of the jud

9. Set-Off

 Definition:

Where in a suit by the plaintiff for recovery of money and the defendant

finds that he also has a claim of some amount against the plaintiff what
he do is  he can claim a set-off in respect of the said amount. This right
of the defendant to claim set off has been recognized under Order 8,
Rule 6 of the Code.

 Set-off is related to debts. It is the reciprocal claim made by the

defendant. Set-off can be used only under the suit for recovery of money.
This can be better under by an example. Suppose, A files a suit against B
claiming that the latter is Rs.20,000 due to him. Now, B also has a claim
against A that he is Rs.10,000 in debt to the former, i.e., A is Rs.10,000
in debt of B. Here, both are mutually indebted to each other, and they
both have to pay off the debts due to each other. Instead of filing a fresh
suit altogether, B files a set-off claim along with the written statement in
response to the plaint filed by A.

Set-off is dealt under Order VIII Rule 6, and it says that such written
statement along with a set-off should be considered by the Court as
much as plaint because it too has a subject matter that is in dispute.
However, there certain conditions that have to be met for filing a set-off
by the defendant. They are:

 The suit initiated must be for recovery of money. So, set-off can be

filed only in money suits.

 The defendant must claim only the amount that he has already lent
to the plaintiff. The defendant cannot claim the money he has not
already lent. It means the money should be ascertained.

 The ascertained money should be legally recoverable by the

defendant from the plaintiff. It should not be barred by any laws of
limitation.

 The recoverable money by the defendant should be defendant or

defendants if there are many, and in the same way, it should be
recovered from the plaintiff or plaintiffs if there are many.
  The set-off should be filed only in the court which has financial
jurisdiction.

Effects:

When a defendant claims set-off, he is put in the position of the plaintiff

as regards the amount claimed by him. Where the plaintiff
doesn’t appear and his suit is dismissed or he withdraws, it does not
affect the claim for a set-off by the defendant and a decree may be
passed in his favor if he is able to prove his claim.

Illustrations:

 X sues Y on a bill of exchange. Y alleges that X has wrongfully neglected

to insure Y’s goods and is liable to him in compensation which he claims
to set-off. The amount not being ascertained cannot be set-off.
 P sues Q on a bill of exchange for Rs. 1500. Q holds a judgment against P
for Rs. 1,000. The two claims being both definite, it may be set-off.

10. Provisions relating to appeal and Powers of Appellate

Court

Meaning of appeal

The term ‘appeal’ nowhere has been defined under the CPC. The Black’s Law
Dictionary, while construing the concept of ‘appeal’ in its most original and natural
sense, explains it as “the complaint to a superior court for an injustice done or
error committed by an inferior one, whose judgment or decision the Court above is
called upon to correct or reverse. It is the removal of a cause from a Court of
inferior jurisdiction to one of superior jurisdiction, for the purpose of obtaining a
review and retrial”. 

ANALYSIS OF GENERAL PROVISIONS RELATING TO

APPEAL
Section 107 and 108 are the General Provisions relating to appeal.

Section 107 reads as follows:

(1) Subject to such conditions and limitations as may be prescribed, an Appellate Court shall
have power

(a) To determine a case finally;

(b) To remand a case

(c) To frame issues and refer them for trial;

(d) To take additional evidence or to require such evidence to be taken.

(2) Subject as aforesaid, the Appellate Court shall have the same powers and shall perform
as nearly as may be the same duties as are conferred and imposed by this Code on courts
of original jurisdiction in respect of suits instituted therein.[1]

* Section 107 (1)(a) and Rule 24 of Order 41 enables the appellate court to dispose of a
case finally where the evidence on record is sufficient.

* Section 107(1)(b) deals with the power of remand [ Send back].

Rule 23 of Order 41 states that where the court from whose decree an appeal is preferred
has disposed of the suit upon a preliminary point and the decree is reversed in appeal, the
Appellate Court may, if it thinks fit, by order remand the case, and may further direct
what issue or issues shall be tried in the case so remanded, and shall send a copy of its
judgment and order to the court from whose decree the appeal is preferred, with directions
to re-admit the suit under its original number in the register of civil suits, and proceed to
determine the suit; and the evidence (if any) recorded during the original trial shall,
subject to all just exceptions, be evidence during the trial after remand.

Rule 23 A as inserted by the Amendment Act, 1976 enables the Appellate Court to remand
a case where the lower court has decided on merits but the appellate court considers such
remand in the interest of the justice.

CONDITIONS FOR ORDERING REMAND:

1. The suit must have been disposed of by the trial court on a preliminary point.
2. The decree under appeal must have been reversed.
3. Other Grounds (Rule 23 A): Rule 23 A of Order 41 enables the Appellate Court to
remand a case where the lower court has decided on merits but the appellate court
considers such remand in the interest of the justice.

* Section 107(1)(c) and Rule 25-26 gives appellate court the power to frame issues and
refer them for trial.

Where the lower court has omitted to frame any issue or try any issue or to determine any
question of fact which is important for the right decision, then the Appellate court may
frame issues and refer them for trial to the lower court and shall direct the court to take
the additional evidence required. The lower court shall try such issues and shall return
the evidence and the findings within the time fixed by the Appellate court.

*Section 107(1)(d) is an exception to the general rule which empowers an appellate court to
take additional evidence or require such evidence to be taken subject to the conditions laid
down in Rule 27 of Order 41.

CIRCUMSTANCES FOR ADDITIONAL EVIDENCE:

1. Improper refusal of lower court to admit evidence.

2. Discovery of new evidence.
3. Requirement by Appellate court.

* Rule 33 of Order 41 empowers an Appellate court to modify decree.

DUTIES OF APPELLATE COURT:

1. Duty to decide appeal finally.
2. Duty not to interfere with decree for technical errors.
3. Duty to re-appreciate evidence.
4. Duty to record reasons etc…

Section 108 of Code of Civil Procedure reads as follows:

Procedure in appeals from appellate decrees and orders.- The provisions of this Part
relating to appeals from original decrees shall, so far as may be, apply to appeals—

(a) from appellate decrees, and

(b) from orders made under this Code or under any special or local law in which a different
procedure is not provided.[2]

Section 107 prescribes the powers of an appellate Court:

 To remand a case;
 To frame issues & refer them for trial;
 Reappraisal of evidence when a finding of fact is challenged before it;
 To summon witnesses;
 Can reverse inference of lower Court, if not justified;
 Appreciation of evidence.

Duties of an appellate court

 The appellate Court has a duty to analyze the factual position in the
background of principles of law involved and then decide the appeal.
 To provide cogent reasons for setting aside a judgment of an inferior
Court. 
 To delve into the question of limitation under Section 3(1) of the
Limitation Act.
  To decide the appeal in compliance with the scope & powers conferred
on it under Section 96 r/w O.XLI, R.31 of the CPC.
 Appeal Revision

An appeal lies to a Superior Court A revision to High Court is available

from every original decree unless only in those cases and against such
expressly barred. orders where no appeal lies.

A right of appeal is one of substantive There is no such right of revision

nature conferred by the statute. because revisional power is purely
discretionary.

An appellate jurisdiction can be The revisional jurisdiction can be

exercised only through a exercised suo motu as well.
memorandum of appeal filed before
the Appellate Court by the aggrieved
party and cannot be exercised suo
motu.

An application for appeal is An application for revision is

maintainable on legal grants as well as maintainable on the ground of
on question of fact. jurisdictional error.

An appeal abates if the legal A revision may not abate and the High
representative of the deceased are not Court has a right to bring the proper
brought on record within the time parties before the Court at any time.
allowed by law.

A Court of appeal can, in the exercise The High Court or the revisional Court
of its powers, set aside the findings of cannot, in the exercise of its revisional
facts of subordinate Courts. powers, set aside the findings of facts
of subordinate Courts.

11.. Nature, Scope & Scheme of CPC

a)  Civil Procedure Court: Meaning and Object

The Law relating to the practices and procedure to be followed in the Civil Courts
is regulated by the Code of Civil Procedure, 1908. The word CODE means ‘a
systematic collection of statutes,  body of laws so arranged as to avoid
inconsistency and overlapping‘.

The main object of this civil procedure code is to consolidate and amend the laws
relating to the procedure and practices followed in the Civil Courts in India. As
such, it was enshrined in the preamble of the code that it was enacted to
consolidate and amend the laws relating to the procedure to be followed in the civil
courts having civil jurisdiction in India. The Civil Procedure Code regulates
every action in civil courts and the parties before it till the execution of the
degree and order.

The Aim of the Procedural law is to implement the principles of Substantive law.

[5] This Code ensures fair justice by enforcing the rights and liabilities.

b)  Extent and Application

The Civil Procedure Code was passed in 1908 and came into force from 1st
January 1909. The Code is applicable to the whole country except –

1. The State of Jammu and Kashmir

2. The state of Nagaland and the tribal areas[6]

There is also a provision that the concerned state governments may make the
provisions of this code applicable to the whole or part of the State of Nagaland or
such tribal areas by notification in the official gazette.

This code is applicable in the scheduled areas of the erstwhile State of Madras
(Lakshadweep), the East Godavari, West Godavari and Visakhapatnam agencies
(Now in Andhra Pradesh State).

2. Civil Procedure Code: Scope

The Code is exhaustive on the matters directly dealt by it but it is comprehensive

in other issues. The framers of the code could not foresee the possible
circumstances which may arise in the future litigations and could not provide
the procedure for such situations. Hence the framers of the code (legislature)
provided inherent powers to the court to meet such circumstances (where the code
could not provide a procedure) according to the principles of natural justice,
equity and good conscience.

As this Code is a general procedural law, it does not contradict with the local or
special law in force. In the event of any conflict between the civil procedure
code and the special law, the special law will prevail over the civil procedure
code. In case the local or general law is silent on any matter, then the
provisions of the civil procedure code will prevail.[7]

3)  Civil Procedure Code: Scheme

The Code has two parts and they are –

1. The Body of the Code

2.  The Schedule
The Body of the Code has 12 parts containing 158 sections.[8] The Schedule is
the second part containing orders and rules.

The Body of the Code lays down general principles relating to Power of the
court, and in the case of the second part, that is, the Schedule provides for the
procedures, methods and manners in which the jurisdiction of the court may be
exercised.

In fact, there were five schedules when this code was enacted. Later the Schedules
II, III, IV and V were repealed by the subsequent amendments of the code. The

 The first schedule which is the only schedule to the code now has 51

orders. Each order contains rules that vary in numbers from order to
order. There are eight appendices giving model formats (Forms), such as –

 Pleadings (Plaint and Written Statement formats)

 Process formats
 Discovery, Inspection and Admission
 Decrees
 Execution
 Supplemental Proceedings
 Appeal, Reference and Reviews
 Miscellaneous

 The various High Courts are empowered to alter or add any rules in
the schedules under Section 122 to 127, 129, 130 and 131 and such
new rules should not be inconsistent with the provisions of the body of
the code.[9]
 The Provisions of the Body of the code can be amended only by the
legislature and the Courts can not alter or amend the body of the code.