Write short notes on the following topics Code of Civil Procedure

Write short notes on the following topics:

1. Decree and order:
2. Mesne Profits
3. Judgment debtor
4. Legal Representative
5. Cause of action
6. Res judicata:
7. Res Subjudice:
8. Substituted Service:
9. Pleadings
10. Amendment of pleadings;
11. Rejection of plaint
12. Set off
13. Ex-parte decree:
14. Issue
15. Local Investigation
16. Attachment before judgment
17. Receiver
18. Mandatory injunction
19. Inherent Power

1. Decree and order:

Generally, the final order of a suit is called a decree. According to section 2(2) of the Code of Civil Procedure, decree means the formal expression of an adjudication, which conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit. Decree determines the rights of the parties. Therefore, the order in which the rights of the parties are not determined, are not called a decree. Plaint is to be filed before the court to institute a suit. The defendant files a written statement after the filing of the plaint. Later, after completing several steps, the suit is prepared for hearing. The orders given by the court is those steps are not called decree. The order which conclusively disposes and determines the rights of the parties, are called decree.

Essential elements:

The following elements are required to be a decree:

✓Decree is the formal expression of an adjudication

✓Decree determines the rights of the parties conclusively

✓ To be a decree, the suit is to be instituted by the presentation of a plaint.

Example: A creates a sale deed of a land with B. Later, A files a suit against B for the performance of that contract. After the conclusion of the trial, the court holds that, B shall deliver the land to A as per the sale deed. The decision of the court is called a decree.

Classification of Decree:

• Preliminary decree:

A decree is preliminary when further proceedings have to be taken before the suit has been completely disposed of.

Final decree:

A decree is final when such adjudication completely disposes of the suit.

The difference between decree and order is given below:

Definition:

The conclusive order of the suit is called a decree. Decree means the formal expression of an adjudication which conclusively determines the rights of the parties with regard to any matters of the controversy.

On the other hand, order means the formal expression of an adjudication which is not a decree. The decision of a court during the pendency of a suit is called an order.

Section:

Section 2(2) defines decree.

Section 2(14) defines order.

Plaint and application:

Decree is pronounced when the suit is filed by the presentation of a plaint. Order is given in a suit which is filed by an application.

Appeal

Except some exceptions, according to section 96, every decree is appealable.

But, no order is appealable unless those are mentioned in order 43 of the Code of Civil Procedure.

Classification

Decree is of two kinds: Preliminary and final.

Orders may be divided into: appealable orders, non-appealable orders etc.

Determining the rights:

Decree conclusively determines the rights of the parties. But an order may or may not determine the right of the parties conclusively.

Partial decision:

A decree may be preliminary.

An order may not be preliminary.

On the basis of pronouncing judgment:

A decree or order is pronounced based on the judgment.

In terms of numbering:

Generally, there is one single decree for one case. But, in a suit, there may be several orders.

2. Mesne Profits

According to s.2(12) of the Code of Civil Procedure, an profit gained by a person in wrongful possession of such property which he actually received or might with ordinary diligence have received with interest, is called mesne profits.

Mesne profit means the profit which were payable to the plaintiff but the defendant did not provide him that. Mesne profit includes all kinds of interest from that property.

However, there is no hard and fast rule to recover the interest. According to s. 34 the court may order to pay interest at any rate.

Example: Rahim unlawfully possesses the land of Karim for 10 years. Some mango trees raise in that land and Rahim gains profit of 50000 taka by selling mangoes. The 50000 taka and its profit with interest is called mesne profit.

Profit that are not mesne profit:

If any unlawful possessor gains any profit by improvement of the property, it shall not be regarded mesne profit. In mesne profit, the plaintiff must prove that the defendant was in unlawful possession of the property. According to s. 64 of the Non-Agricultural Tenancy Act, development means any act which increases the value of the land and makes the land usable.

3.Judgment debtor

According to s. 2(10) of the Code of Civil Procedure, judgment-debtor means any person against whom a decree has been passed or an order capable of execution has been made. A person who is a party to the suit, but no decree has been passed against him, cannot be held to be a judgment debtor.

4. Legal Representative

S. 2(11) of the Code of Civil Procedure defines legal representative. A person who in law represents the estate of a deceased person, and any person who intermeddles with the estate of a deceased and where a party sues or is sued in a representative character, the person on whom the estate devolves on the death of the party so suing or sue, is called the legal representative. Three kinds of persons are recognized as legal representatives under this section:

The person who in law represents the estate of a deceased person, The person who intermeddles with the estate of a deceased person, The person who sues or is sued in a representative character of a deceased person.

5. Cause of action

Cause of action means the detailed reason upon which the plaintiff or the applicant claims his remedy. Therefore, the reasons for which a suit is to be filed are called cause of action. The grounds of a case of the plaintiff on which the plaintiff wants the court to give judgment, are called cause of action. It is mentionable that, if there is no cause of action in a plaint, it is to be rejected under rule 11(a) of order 7 of the Code of Civil Procedure.

6. Res judicata:

The Latin word res means matter and judicata means already decided. So res judicata means matter already decided. S.11 of the Code of Civil Procedure discusses with this doctrine. If any suit already decided by a competent court, and later another suit on the same subject-matter and between the same parties, is filed, the court shall not try the later suit, this principle is called res judicata. Therefore, a suit already decided cannot be revived again. Therefore, where the trial has once been made, if again it is instituted, the doctrine of res judicata shall be applied. The court in Alom vs. Salimullah Chowdhury, 10 MLR (AD) 90 has decided that s.11 of the Code of Civil Procedure bars to try a suit twice.

7. Res Subjudice 

 Situations when a pending civil suit can be stayed: The following conditions are to be fulfilled to stay a suit u/s. 10 of the Code of Civil Procedure:

1. Two suits:

There shall two suits one of which shall be previously instituted and the other shall be subsequently instituted.

2. Facts in issue:

The subject-matter of the previously and subsequently instituted suits shall be the same.

3. Same jurisdiction:

The court in which the first suit has been filed shall have the jurisdiction to give relief in the subsequent suit.

4. Same parties:

The parties of both the suits shall be the same.

5. Suit on same title:

The parties sue on the same title.

6. Suit pending in a court:

The previous suit is pending before a competent Bangladeshi or a foreign cour testablished by the Govt. In Md. Baker Siddique vs. Tamizuddin Khan, 27 BLD 57, it was held that, if the above mentioned conditions are not fulfilled, the court shall not order to stay a suit under section 10 of the Code of Civil Procedure. However, if the conditions are fulfilled, the court may order to stay the suit. In Ayat Ali Bhuiya vs, Janata Bank, 40 DLR 56, the court held that, if the court fails to file a suit u/s. 10 of the Code of Civil Procedure, it can order for stay u/s 151 of the Code. If the above mentioned conditions are fulfilled, the civil court may stay the subsequent suit.

8. Substituted Service:

In accordance with Order-5, Rule-20 (1) of the Code of Civil Procedure, where the court reasonably believes that the defendant is keeping himself hiding in order to avoid the summons, or for any other reason the summons is not being issued normally, in that case, the court will order the issuance of a copy of the public notice in any public place of the court and the place where the defendant resides or does any work for business or works for personal gain.

According to Order-5, Rule-20 (1A) of the Code of Civil Procedure, Court can order the issue of summons by publishing the notice in the newspaper. However, the publication of the newspaper must be in the place of residence of the defendant or in the place of conducting business.

9. Pleadings

Pleadings is an important rule of the Code of Civil Procedure. Order 6 of the Code of Civil Procedure deals the provisions of pleadings. Plaint and written statements are called the pleadings. In every suit of civil nature, the plaintiff must present his plaint mentioning the cause of action with necessary explanation. On the other hand, the defendant must provide written statement in reply of the plaint. Therefore, pleadings is formed with the plaint and the written statement. Rules 2, 4, 6, 7, 9, 10, 11, 12 of Order 6 of the Code of Civil Procedure describe the important aspects of pleadings. The important elements of pleadings are mentioned below.

1. Pleadings will contain only brief descriptions of important events. (Rule-2. Order-6)

2. There will be no evidence at Pleadings. (Rule-2, Order-6)

3. No evidence to support a claim is admissible, unless the matter is mentioned in the pleadings. (Rule-6, Order-6).

4. At pleadings, the date, amount of money and numbers will be written or published in figures. (Rule-2, Order-6)

5. Where the statement of a document is important, its significance should be described as briefly as possible in the pleadings.

6. Pleadings shall include verification. (Rule-15, Order-6)

7. Pleadings must be signed by the party concerned or his representative and lawyer. (Rule-14, Order-6)

8. Where a party relies on misrepresentation, fraud, breach of trust, unlawful influence, etc., it is only necessary to raise a complaint, not a detailed description. ( Rule-4, Order 6)

Therefore, in pleading, the plaintiff seeks the judgment of the court on the basis of all the basic information, all the information must be mentioned in the plaintiff's plea and similarly the defendant will mention his position in his reply.

10. Amendment of pleadings;

After filing the plaint or written statement, if it is required to amend or change those, an application for amendment is to be made. It is called the amendment of pleadings.

Amendment of pleadings means, to add, strike out, deduction or changes of any necessary information of a pleadings. Amendment in a plaint or written statement may be required for various reasons. For example- during the filing of the plaint any matter was not known, but for the proper disposal of the trial such matter would have been mentioned. If the matter is not mentioned, no evidence can be given in trial as those are outside the ambit of the plaint or written statement. The established principle is that, the matter which is not mentioned in the plaint, no evidence can be given in support of that, as the other party cannot know his position about the matter. The provision for amendment has been given so that, the parties do not face such difficulties. Rule 17 of order 6 provides, the plaint or written statement can be amended, if the real matter of controversy between the parties are to be determined.

However, at first, the real matter of controversy are to be identified and then it shall be decided as to whether the application for amendment shall be granted or not.

When and on what cause a plaint may be amended?

Rule 17 of order 6 has provided that, the application for amendment can be made at any stage. Therefore, an application for amendment of pleading can be made during the pendency of the suit, after the end of examination of witness, at the stage of hearing argument and even at the day fixed for declaration of judgment. Generally, pleadings cannot be amended after the pronouncement of the judgment. However, when an appeal against the judgment is filed, the application for amendment of pleadings can be made, because, appeal is the continuation of the main suit. in Radha Krishna vs. Dwaraka Das, 36 DLR (AD) 253, Guru Mia vs Shamsul Islam, 9 MLX 338, Keramot All vs Yunus Ali, 15 DLR (SC) 120, the court has held that an application for amendment of pleadings can be made at or before the judgment of a suit, or at the appellate or revisional court.

11. Rejection of plaint

According to rule 11 of order 7, court shall reject the plaint on the following 4 grounds:

(a) where it does not disclose a cause of action.

(b) where the relief claimed is undervalued, and the plaintiff, on being required by the Court to correct the valuation within a time to be fixed by the Court, fails to do so.

(c) where the relief claimed is properly valued, but the plaint is written upon paper insufficiently stamped, and the plaintiff, on being required by the Court to supply the requisite stamp-paper within a time to be fixed by the Court, fails to do so.

(d) where the suit appears from the statement in the plaint to be barred by any law.

If the provision of rule-9(1A) is breached, court also may reject the plaint. According to this role, the copy of summons and plaint should be served to each of the defendants and the service fee is to be paid. But, if service charge is not paid within a fixed period, the plaint shall be rejected. Rule 9(1A) has been substituted by the Kolkata High Court in 1928. Although rule 9(1A) has not been added in the Code of Civil Procedure of Bangladesh, it must be followed. Because, the Appellate Division has declared that the amendments made by the Kolkata High Court before 1947 are the parts of Bangladeshi law. Court may reject the plaint under section 151 for ends of justice.

12. Set off

When the plaintiff files a suit against the defendant for recovery of money, the defendant may make a written application to reconcile the plaintiff's claim with the defendant's claim on the day of the first hearing. In the case of set-off case, not only the plaintiff owes money to the defendant, but also the defendant owes money to the plaintiff. However, in this case, the claim of the defendant must be equal to or less than the claim of the plaintiff. In the case of set-off cases, the amount of money must be fixed, the money must be legally recoverable and the money claimed must be within the pecuniary jurisdiction of the court. Pursuant to Rule 6 (1) of Order-8 of the Code of Civil Procedure, if the plaintiff seeks to settle the claim against the defendant with the money due from the plaintiff in the case filed for claim of payment and the amount due is not beyond the jurisdiction of the court, and both parties fall into the same category, the defendant shall be able to submit a written statement detailing the amount owed to him.

The following conditions must be met for Set off.

1. The lawsuit must be about recovery of money.

2. In case of money claimed, the details must be as follows: It must be a fixed amount. The amount of money will be legally collectible. It must be recoverable by the defendant or defendants (if any). The amount mentioned must be within the limits of the pecuniary jurisdiction of the court in question.

When to set off can be claimed:

According to Rule 6 (1) of Order-8 of the Code of Civil Procedure, the respondent can make a written application for the set off on the day of the first hearing. Such excuses cannot be made without the permission of the court after the first hearing.

13. Ex-parte decree:

Ex-parte decree means that the case is to be settled after hearing the plaintiff. The decree in which the court provides decree by only hearing one party, is called an ex-parte decree. Ex-parte decree refers to the decree, which is provided in the absence of the defendant. That is, the decree provided in favor of the plaintiff in the absence of the defendant is called an ex-parte decree.

According to rule-6 of order-9 of the Code of Civil Procedure, where at the day of hearing of the case, the plaintiff is present, and the defendant is absent, and if it is proved that the summons were issued as usual on the defendant, court may pronounce a decree in the absence of the defendant, which is called an ex parte decree.

Who can apply for setting aside an exparte decree?

A defendant can apply under rule 6 of order 9 of the code of civil procedure for setting aside an exparte-decree.

When can a court can set aside an ex-parte decree?

Defendant can apply within 30 days (as per article 164 of the Limitation Act) to the decreeing court for setting aside of an exparte decree in accordance with Rule 13 of Order-9 of the Code of Civil Procedure.

In this case, if the defendant can convince the court that he has not been summoned as usual or that he could not appear in court on the day of hearing of the case for any other reasonable cause, the court will order setting of the exparte decree and fix a date for trial.

Appropriate reason is a matter of information that is judged by the situation or event.

Directly setting aside ex-parte decree:

In accordance with Rule 13A of Order-9 of the Code of Civil Procedure, the defendant may apply for directly setting aside of the ex-parte decree. In case of directly setting aside, the following conditions have to be fulfilled:

a) The application has to be made within 30 days.

B) There must have an affidavit with the application.

C) Notice has to be given to the other party as per order 9, rule-14.

The court may directly order the setting aside of the ex-parte decree and order the defendant to pay a cost not exceeding tk.3000. Direct setting aside order shall not be made more than once. There is no need to present evidence to prove the reason for the defendant's absence to satisfy the court.

14. Issue

According to order 14, rule 1 of the Code of Civil Procedure, issues arise when a material proposition of fact or law is affirmed by one party and denied by the other. Material propositions are those propositions of law or fact which a plaintiff must allege in order to show a right to sue or a defendant must allege in order to constitute his defence.

Each material proposition affirmed by one party and denied by the other shall form the subject of a distinct issue. Issues are of two kinds: (a) issues of fact, (b) issues of law. According to order 14, rule 2 of the Code of Civil Procedure, where issues both of law and of fact arise in the same suit, and the Court is of opinion that the case or any part thereof may be disposed of on the issues of law only, it shall try those issues first, and for that purpose may, if it thinks fit, postpone the settlement of the issues of fact until after the issues of law have been determined.

Issues shall be framed within 15 days from the first hearing of the suit or the filing of the written statement whichever is later (rule 1, order 14). According to order 14, rule 3, the Court may frame the issues from all or any of the following materials:-

(a) allegations made on oath by the parties, or by any persons present on their behalf, or made by the pleaders of such parties; Materials from which issues may be framed;

(b) allegations made in the pleadings or in answers to interrogatories delivered in the suit;

(c) the contents of documents produced by either party.

According to order 14, rule 5 of the Code of Civil Procedure-

(1) The Court may at any time before passing a decree amend the issues or frame additional issues on such terms as it thinks fit, and all such amendments or additional issues as may be necessary for determining the matters in controversy between the parties shall be so made or framed. 

(2) The Court may also, at any time before passing a decree, strike out any issues that appear to it to be wrongly framed or introduced.

15. Local Investigation 

According to rule 9 of order 25, in any suit in which the Court deems a local investigation to be requisite or proper for the purpose of elucidating any matter in dispute, or of ascertaining the market value of any property, or the amount or any mesne profits or damages or annual net profits, the Court may issue a commission to such person as it thinks fit directing him to make such investigation and to report thereon to the Court (within such time not exceeding three months as may be fixed by the Court. Provided that the Court may, on the prayer of the Commissioner and on sufficient cause being shown, extend the time.

16. Attachment before judgment

According to rule 1 of order 38, it has been clearly mentioned that, in the suits in clause (a) to (d) of section 16, (a) sulit for recovery of immoveable property, (b) suit for partition, (c) suit for foreclosure and redemption, and (d) suit for determination of any other right to immoveable property no order of arrest before judgment can be made. But, nowhere in rule 5 to 13 of order 38 of the Code, it has been mentioned that in which suits an order of attachment before judgment can be made. But, if we scrutinize rule 1 of order 38, it is found that if the defendant tries to dispose or transfer the disputed property, the court can order the arrest of the defendant.

What conditions are to be fulfilled for obtaining an order of attachment?

According to rule 5 of order 38, the following conditions are to be fulfilled for an order of attachment:

Where, at any stage of a suit, the Court is satisfied, by affidavit or otherwise, that the defendant, with intend to obstruct or delay the execution of any decree that may be passed against him

(a) is about to dispose of the whole or any part of his property, or

(b) is about to remove the whole or any part of his property from the local limits of the jurisdiction of the Court, the Court may direct the defendant, within a time to be fixed by it, either to furnish security, in such sum as may be specified in the order, to produce and place at the disposal of the Court, when required, the said property or the value of the same, or such portion thereof as may be sufficient to satisfy the decree, or to appear and show cause why he should not furnish security. If the defendant does not furnish security, his property shall be attached. However, if he later furnished security, the order of attachment may be revoked.

17. Receiver

The "receiver" is a person who is an officer appointed by the court to look after the property under trial. Subject to the provisions of Section 51 of the Code of Civil Procedure, 1908, if deemed appropriate and convenient, an order may be issued for the appointment of a "receiver on the application of the Decree-holder. The court exercises this special power vested in it in issuing decrees. The order appointing the receiver is subject to the discretionary power or discretion of the court.

When a receiver is appointed?

In cases where it is necessary to appoint a receiver for proper management or preservation or collection or maintenance of any property, the court shall appoint a receiver as the recipient of such property if it deems fit and convenient. The receiver is appointed to protect the subject-matter of the case from any harm and to protect the rights of the parties. After considering the circumstances of the case, the court will exercise this special power to appoint the receiver on the basis of the basic principles of the law with utmost caution. The procedure for appointment of receivers is clearly instructed in sub-rule (1) of rule 1 of order no. 40 of the Code of Civil Procedure, 1908. Sub-rule (1) of this rule specifically states that the court may, if it deems fit and convenient, issue an order and take the following measures, if the court deems it just and convenient:

✓ appoint a receiver of any property, whether before or after decree, 

✓remove any person from the possession or custody of the property,

✓commit the same to the possession, custody or management of the receiver, 

✓and confer upon the receiver all such powers, as to bringing and defending suits and for the realization, management, protection, preservation and improvement of the property, the collection of the rents and profits thereof, the application and disposal of such rents and profits, and the execution of documents as the owner himself has, or such of those powers as the Court thinks fit.

18. Mandatory injunction

The provisions of mandatory injunction has been laid down in section 55 of the Specific Relief Act, 1877. When, to prevent the breach of an obligation, it is necessary to compel the performance of certain acts which the Court is capable of enforcing, the Court may in its discretion grant an injunction to prevent the breach complained of, and also to compel performance of the requisite acts. Such injunction is called mandatory injunction. Mandatory injunction is an equitable relief. Sometimes, it is found that the parties of the suit try to change the nature of the suit property by construction of a building or a wall. In such case court grants mandatory injunction. Such injunction becomes mandatory for the parties. In 35 DLR 43, it has been held that in order to ensure justice, court may order such injunction by invoking its inherent power. Mandatory injunction is granted as a temporary relief to bring the disputed property in its previous stage.

19. Inherent Power

Civil courts should invoke inherent powers in order to for the ends of justice or to prevent abuse of the process of the Court. Because, there is a principle- actus curiae neminem gravabit- meaning 'any act of court cannot infringe any legal right of any person.

Based on such principle, it has been held that if any party is aggrieved by any process of the court, he must have a relief. In the same way, any party of the suit may be guilty of the abuse of the process of the court, for example, any party may obtain any advantage by fraud. 'Inherent power of the court' means the application of special jurisdiction of a court to conduct its judicial proceedings equitably. Courts use their inherent power only for ensuring justice. According to section 151 of the Code, inherent power can be used in 2 cases:

1. Exercise of inherent power in the interest of justice,

2. To prevent abuse of the process of the Court.

Exercise of inherent power in the interest of justice:

Every civil court may exercise inherent power in the interest of justice under section 151. The matter is discussed briefly:

✓To adjourn the case:

In case it is not possible to stay the case filed on the same subject-matter under Section 10 of the Code of Civil Procedure, then the subsequent case can be adjourned under Section 151.

✓Granting temporary injunction:

When it is not possible to grant a temporary injunction in accordance with Rule 1 or 2 of Order 39 of the Code of Civil Procedure, a temporary injunction can be granted by exercising inherent powers.

✓Set aside an exparte decree:

If the plaintiff has fraudulently obtained an exparte decree, then the respondent can apply under section 151 to set aside the decree.

✓Restitution:

If a suit is to be dismissed by the court, an order cannot be made under section 144 for restitution. In such case the court may order the restitution by exercising the powers vested in it under section 151.

✓In case of hearing:

The court decides whether two of the suits or appeals will be heard together or separately.

✓Every case must end:

The principle of justice is to complete the judicial process of each case. But in many cases when the decision is complicated by the law or due to legal ambiguity, the court can dispose of the case by exercising its inherent power.

✓To amend or cancel own decision:

In addition to the provisions of section 152 of the Code of Civil Procedure, the court may also cancel or amend its own order under section 151.

To prevent abuse of the process of the court:

Section 151 of the Code of Civil Procedure, 1908, has adopted provisions relating to the inherent power of the court and its interpretation. This section states that-nothing in this Code shall be deemed to limit or otherwise affect the inherent power of the Court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the Court.

Courts have been created for the noble purpose of establishing a justice. It is pertinent to note that all possible rules relating to the manner in which civil cases are to be conducted and adjudicated have been incorporated in the Code of Civil Procedure. But in reality, there are situations that lawmakers could not even think of when making laws. For all these reasons, the section states that the court may, in its own discretion, make any order for justice. After all, lawmakers were probably aware of the flaws and limitations of the Code of Civil Procedure. That is why the court has been given inherent powers under Section 151 of the Code of Civil Procedure so that the court can administer justice. So, we can say that section 151 of the Code of Civil Procedure has given a huge power to the court. The court has the power to make any order as per its inherent power to administer justice or to prevent abuse of power.

YouTube video on Write short notes on the following topics Code of Civil Procedure