Jurisdiction

Even courts derive their power to interpret the law and impart justice from a higher
law. In this case, the Constitution of India gives powers to the Central Government
to enact a procedural statute such as the Civil Procedure Code which lays down the
limits of the jurisdiction of various courts.

Jurisdiction may be defined as the power or authority of a court to hear and

determine a cause and to exercise any judicial power in relation to it.

Thus, if a court passes an order on a case that is outside its jurisdiction, the order is
void and need not be heeded by the party. Similarly, where a court has jurisdiction,
the parties do not have any power to take away the same by virtue of an agreement.

The way a civil case precedes is that a matter is first brought to the court by one of
the parties and the court examines the claim being made. Upon deciding whether it
is a just claim, a notice is served upon the alleged wrong-doer; the court sets the
process of adjudication in motion.

What are the special features of Civil Procedure?

(a) Any private party may file a civil suit against another private party. In a
criminal court proceeding, the prosecution, which is the State’s counsel, levels the
charges.

(b) Also, in a criminal proceeding, the burden of proving that the crime was
committed by the defendant lies on the prosecution. The defendant only has to
ensure that the evidence brought forward is not enough to find him guilty.

(c) In a civil case, if the plaintiff establishes that it is more likely that the offence
was committed than not, a notion is known as ‘preponderance of probability’, the
burden of proof will shift to the defendant.

A civil offence may concern issues such as property disputes, matrimonial disputes
and most economic offences.
 Suit and Adjudication
The word suit has been defined by the courts. The word ‘suit’ means a civil
proceeding instituted when a person, known as the plaintiff, presents a written
statement known as aplaint to the court. It is brought against the defendant, and
when there is no civil suit there is no decree.

When the court makes a determination on judicial grounds on the matter that
was brought up in the dispute, it is known as adjudication. This means, that
when a court considers the issues at hand, using well-developed judicial principles,
and makes a decision regarding the dispute, it has done its job.

When a suit is brought to the court, the court takes steps to hear both sides of the
dispute, and then after examining the evidence adjudicates upon the dispute.
A decree is passed by the court after adjudicating upon the matter or all the matters
raised in the suit; this decree directs the losing party to take the necessary action
for the winning party.

Decree, Judgement and Order

A Court may pass an adjudication relating to certain matters in a suit or all the
matters in the suit.

There are basically three types of decrees:

1. Preliminary decree
2. Final decree
3. Partly preliminary and partly final.

Preliminary decree
When a Court’s adjudication decides the rights of the parties with regard to all or
any of the matters in controversy in the suit but does not completely dispose of the
suit, it is a preliminary decree.
A preliminary decree is passed in those cases in which the Court has first to
adjudicate upon the rights of the parties and has then to remain inactive until it is in
a position to pass a final decree. In the case of an appeal against a preliminary
decree, the final decree automatically falls for there is no preliminary decree
thereafter in support of it.

For example, a wife sues her husband for maintenance. In the course of making a determination,
the court must also decide whether she gets maintenance during the time the trial is taking place.
This would amount to a preliminary decree.

Final decree
A decree may be said to be final in two ways, when there has been no appeal filed
against the decree or when the matter has been decided by the highest Court, or
when the Court passing it completely disposes of the suit.

A final decree is one which completely disposes of the suit and finally settles all
the questions in controversy between the parties and nothing further remains to be
decided thereafter. Ordinarily there will be only one final decree in the suit.
However, where two or more causes of action are joined together there can be
more than one final decree.

For example, in a suit for the title of a particular property, when the court decides who has the
title of the property it is the final decree in the suit.

Partly preliminary and partly final

A decree may be partly preliminary and partly final and this may be explained by
way of example.

For example, here, two brothers argue over who inherits the family property from
their late father. This property is currently leased out to a family. While the
determination of who gets the property is the subject of the final decree, the
determination of who gets the profits that accrue from the lease rent being paid
during the length of the trial, is a matter of partly preliminary and partly final
decree.

For example, Santosh and Mohan were fruit wholesalers who received a large contingent of
fruits by delivery. Once there arose a dispute as to who owned the fruit contingent after it had
been delivered. A plaint was presented and the court began to look into the matter. However, the
fruits were perishables and could not have withstood the duration of the trial. When the plaintiff
pointed this out, the court ordered that the defendant must sell off the fruits, but an account of
the cost and profits must be kept. Is this a final decree by the court?

No, this is not a final decree as it does not determine the issue of the ownership of the fruits.
Since that was the matter which was brought before the courts, and it has not been determined,
this is not a final decree.

Ex-parte Decree
An ex parte decree is a decree passed in the absence of the defendant. Such a
decree is neither null and void nor inoperative but is merely voidable and until it is
annulled, it has all the force of a valid decree.

Remedies in case of ex parte: The procedure prescribed for an ex parte decree

goes against the principle of granting everyone a fair hearing. Thus, there are many
provisions for the defendant to apply for setting aside the ex parte decree.

He can apply under Order 9, Rule 13 by proving that he could not attend court
due to either of the following grounds:

(1) the summons was not served properly, or that

(2) he was prevented by any sufficient cause from appearing when the suit was
called for hearing.

For example, in a suit where the decree was passed against both the defendants, but only one
had received the summons and was present in Court, the Court set aside the decree of the party
who was not present. It was held that the decree was still valid against the attending party.
 Judgement
Judgement means the statement given by the Judge on the grounds of a decree or
order. The essential element of a judgment is that there should be a statement of
the grounds of the decision. Every judgment must contain:

1. A concise statement of the case

2. The points for determination – the decision thereon
3. The reasons for such acquisition.

A judgment can be distinguished from a decree in the sense that a judgment means
the statement given by the Judge of the grounds of a decree or order. A judgment
contemplates a state prior to the passing of a decree or an order, and after the
pronouncement of a judgment, a decree shall follow.

Order
An order means ‘the formal expression of any decision of a civil court which is not
a decree’. A judicial order must contain the discussion of the question at issue and
the reasons which prevailed with the Court to pass the order. The distinction may
be drawn between a decree and order on the following grounds

1. A decree can only be passed in the suit which commenced by the

presentation of a plaint. An order may arise from a petition or application.
2. A decree conclusively determines the rights of the parties however an
order may not finally determine such rights.
3. There cannot be a preliminary order.
4. In certain suit is one preliminary decree and the other final decree may be
passed, however, a number of orders may be passed in the same suit.
5. Every decree is appealable but every order is not unless specified.
 Sub Judice
There are some suits that are barred from being filed in a Court, for reasons apart
from the Court’s lack of jurisdiction.

The Court can proceed with the trial of any suit if the subject matter of the suit is
already in issue in a previously instituted suit between the same parties. This is
subject to the fact that the Court in which the previous suit is pending is competent
to grant the relief claimed.

For example, Kumar instituted a suit against Akshara for divorce on grounds of
mental cruelty. Akshara filed a suit against Kumar at the same time for custody of
their child. The subsequent suit is not barred by sub judice because it is not the
same subject matter being adjudicated upon in the second suit.

For example, Trina instituted a suit against Munni for recovery of some property.
While the suit was still pending in court, Trina instituted another suit against
Munni for the profits from the property during the pendency of the suit. This
subsequent suit is barred by sub judice as it relates to the same property.

Res Judicata
Section 11 bars a suit where the matter has already been adjudicated upon in a
previous suit. It bars the trial of a suit or an issue in which the matter directly and
substantially in issue has already been adjudicated upon in the previous suit.

The object of Section 10 is to prevent the courts 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 the law is to confine the plaintiff to one litigation process, thus
negating the possibility of two contradictory verdicts on the same matter. It intends
to protect the person from multiplicity of proceedings and avoid a conflict of
decisions.

Certain conditions must be fulfilled for the application of this section. These are:

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 where
the subsequent suit is brought in or in any other Court in India or any
other Court beyond the limits of India established or continued by the
Central 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.

For example, Dutta filed a suit against his brother-in-law, Gupta, for his share in the family
property after a relative died intestate. At the same time, Gupta wanted to file a suit over the
splitting of the family business between them. The second suit is not barred because the matter in
the subsequent suit is not directly and substantially in issue in the previous suit.

For example, there was a suit pending before the US Federal Court over the compensation
amount for victims of a disaster caused by an American company in India. This does not bar a
similar suit from being instituted in any court in India at the same time, as long as the Indian
court has jurisdiction.

For example, the victims of a road accident filed a suit against the insurance company to get the
insurance money for the damaged vehicle. At the same time, a suit for compensation was
instituted against the owners of the vehicle that caused the accident. The second suit is not
barred by the first suit as they do not concern the same two parties.

Legal Representative
“Legal Representative” means a person who in law, and for legal purposes
represents the estate of a deceased person. This may include any person who
intermeddles with the estate of the deceased; any person who acquires the land
through the laws of succession due to the death of a party involved in a suit will
also be the ‘legal representative’ for the purpose of the law.

For example, Jeevan was fighting a case in the court over the title of a residential property. He
died during the time the suit was still pending. In his Will, he had left the property to his wife.
She is Jeevan’s Legal Representative.
 Constructive Res Judicata
According to this principle, if a person has established a position in a particular
suit, then anything that naturally flows from that position may be construed by the
courts. Therefore, the same person cannot take a conflicting position in a
subsequent suit. He is barred from doing so by constructive Res Judicata.

For example, in a case on revenue matters, Malik had had taken the plea that he was not a
tenant on the suit land. Therefore, in any subsequent suit by a mortgagor for selling the property,
it is not open for him to take up the plea that he was living on the land as a permanent tenant.

Res Judicata will be applicable if the matter in controversy might and ought to
have been raised in the previous suit.

Place of Suing
The Court system operates on the basis of a hierarchy, where the District Court is
below the High Court. All other courts such as sessions courts and small causes
courts are below the High Court.

This distinction is made on the lines of pecuniary jurisdiction and territorial

jurisdiction. Pecuniary jurisdiction means that the Court cannot hear any cases
where the relief amount claimed is greater than the court has the power to award.
Territorial jurisdiction lays down a physical boundary declaring that if a cause of
action arises outside the defined physical boundary, the court does not have
jurisdiction over it.

Every suit shall be instituted in the Court of the lowest grade competent to hear the
issue. This is with reference to the pecuniary jurisdiction of the Court.
 Mesne Profits
Mesne profits of property means the profits made by a person who was in
wrongful possession of that property. Whatever he has actually received or might
have received, together with interest calculated on it, shall be said to be mesne
profits. However, he has the right to retain the profits gained by any improvements
he has made to the property.

It is a compensation which is penal in nature because every person is entitled to

possess the property and gain profit from it. If a person is wrongfully deprived of
such property then he is entitled to the property and the profit which accrued from
it. The calculation of mesne profit is done by the Court. And the following
principles guide the Court in determining the amount of mesne profit

1. No profit by a person in wrongful possession

2. Restoration of status before dispossession of the decree holder
3. Use to which the decree holder would have put the property if he himself
was in possession.

For example, Muthanna and Ramanna have a disagreement about the ownership of a Property X
and the issue was taken to Court. Muthanna lives in a house built on this property and had
rented out a room on the 1st floor to tenants. He also added floors to the building and now rents
out the 2nd and 3rd floor as well. At the end of the trial, the Court decreed that the land
belonged to Ramanna. Ramanna gets the mesne profits from the rent for the 1 stfloor room, but
since Muthanna added the improvements at his own cost, the profits from the 2 nd and 3rd floor
room rent will not be given to Ramanna.

For example, Vandana had wrongfully usurped Poorna’s land 8 years ago and had since done
extensive damage to the land, making it uncultivable. At the legal battle that ensued, the Court
held that Poorna was to get mesne profits, which included restoring her to her status before
Vandana wrongfully took it from her. This means that Vandana must also pay to make the land
cultivable again
 Representative Suits
This kind of suit may be filed by one or more persons on behalf of others having
the same interest in the suit. Certain conditions must be fulfilled in cases of
representative suits. This includes:

1. Parties must be numerous

2. They must have the same interest in the suit
3. Permission must be granted or direction must be given by the Court
4. Notice must be given to the parties to be represented in the suit.

This is different from Public Interest Litigation because the requirement of locus
standi is more relaxed and it is not necessary for the person to have an interest in
the suit if the matter in issue in the suit affects the general public.

Pleadings, Plaint and Written Statement

The pleadings usually contain a short statement providing the material facts on
which the party relies for his claim or defence. There are a few rules which the
pleadings submitted must follow, and they are :-

1. The Pleadings must only state the facts and not law
2. Facts should be material facts and must not give evidence.

The plaint is a document or a set of documents submitted by the plaintiff

establishing her cause of action, the maintainability of the suit, and the nature of
remedy that she seeks from the court.
 Written Statement
A written statement is the reply made by the defendant to the plaint filed by the
plaintiff. When a plaint is filed, the Court examines the charge and serves a
‘summons’ on the alleged wrongdoer, the defendant. He must respond within a
month or 3 months by filing a written statement in his defense.

There are some very important rules concerning the manner in which the statement
of defence ought to be presented. This includes:

1. All the documents supporting the defence or counterclaim must be

produced
2. Any facts that the defendant considers relevant, whether new or old, must
be brought up.
3. The denials and assertions must be specific, clear and explicit and must
not be vague.
4. The statement must deal with every given fact, and any allegation that is
not denied is taken to be admitted.

For example, in the case of Bendat v. East India Company, the Court stated that the combined
effect of rules 3 & 4 specifically deal with every allegation of fact and deny the same explicitly
and to have the point of substance. If the denial is evasive the fact shall be taken to be admitted
and no other proof is needed.

It must be noted, however, that even if the defendant does not give a written statement the
plaintiff will still have to prove the case. It is the Court that needs to be convinced.
 Temporary and Permanent Injunction
An injunction is like a spoke in the wheel. It aims to maintain the status quo and
prevent any possible further injury to the plaintiff, sometimes for the duration of
the trial and sometimes as a part of a permanent decree given at the conclusion of
the trial. A permanent injunction restrains a party from ever doing a particular act
and is granted on merits at the conclusion of the trial.

A temporary injunction, on the other hand, is granted only until the disposal of the
suit and it cannot be granted against the third party. This applies, for example,
when the property in dispute is deteriorating or being damaged; the plaintiff can
ask for a temporary injunction on the defendant’s neglect of the goods. And, for
instance, if the defendant is likely to sell or transact using the property in dispute, it
is necessary to get an injunction on the sale of the property.

For example, suppose A and B have entered into a dispute concerning Property X and A takes
the matter to Court. Upon receiving the summons, B contrives to sell the property immediately to
C who wants to build a hotel on the said property. A cannot move to get a temporary injunction
on C for the length of the trial because temporary injunction cannot be enforced on a third party.

Now, it would thwart the judicial process if the Court simply granted any
injunction that the plaintiff prays for, so there are certain requirements that need to
be taken care of before the Court will consider granting an injunction. The plaintiff
must show that:

(a) On the face of the facts presented, the plaintiff is more likely to win the case.
He must establish a prima facie case in his favour.

(b) Between himself and the defendant, the balance of convenience tilts towards
him.

(c) Irreparable injury would result from not granting the injunction which would
not be recoverable through compensation.

Permanent Injunction may be a mandatory direction or an order to abstain, made at

the end of the trial when the Court has decided and decreed upon the rights of the
parties and the steps to be taken to grant relief to the winning party.
 Stay
A suit is stayed when another suit directly or substantially regarding the same subject
matter and involving the same parties, or under the same title has already been instituted
in any other Court in the country. This is done in order to prevent conflicting judgements
and to save on precious time.

For example, A gives Y, an aspiring builder, a promissory note stating that he will pay him Rs.
1,25,000 at the end of one year to invest in his building business. Y enters into contracts with
architects and agents to help his business grow. At the end of the year, Y does not receive the
money and falls short of the payment of Rs. 1,25,000 he needs to make to an architect, X, who
sues him. Y, in turn, sues A. A asks for a stay on the suit as another suit is already pending in
Court regarding the same subject matter.

This is not a valid application because the rights and obligations arise out of two distinct,
separate contracts.

The parties in both the cases are not the same. Therefore, an application for stay of this suit
would not be valid.

Remand
As discussed before, the hierarchy of the Courts plays a big role in the various
mechanisms used to keep a check on the system and preserve the interests of
justice.

In this instance, if a subordinate court has disposed the case on a preliminary point
or has dismissed the case or if the final decree is reversed by the higher court, the
higher court will remand the case back to the subordinate court.
 First and Second Appeal
In order to safeguard citizens from the possible loopholes in the judicial process
and to give the losing party an opportunity to be heard by a reviewing body, there
is a provision for appeal in our judicial system. An appeal is always made to a
higher authority, a reviewing body which will look into the matter on certain points
and decide whether the adjudication previously made should be reversed or
modified or retained. A person may appeal if he is aggrieved by the decision of the
court, but there is no guarantee that his appeal will be allowed.

While an appeal may be a vital part of the judicial process, it is difficult to know
till when the recursive appeal process may continue. An appeal sometimes causes
inevitable delays in the delivery of justice, but at other times, it provides a much-
needed intervention in order to reverse or modify a wrong decision.

An appeal is the judicial review of the decision of a lower Court by a higher Court.
The higher Court will re-examine the case and the lower Court’s judgement and
base its own order on this examination.

The three basic elements of an appeal are:

1. A decision
2. An aggrieved person
3. A reviewing body.

It is not an inherent or natural right. An appeal may do three things:

1. Reverse the order

2. Modify the order
3. Dismiss the order

The characteristics of a first appeal may be listed as follows:

1. First appeal applies against the decree passed by the Court exercising
original jurisdiction.
2. First appeal may be filed in a superior Court which may or may not be the
High Court.
3. First appeal may be made on a question of fact, law or a mixed question.
4. Letters patent appeal may lie against the judgment of a single Judge to a
division bench.
It may be distinguished from a second appeal in the following ways:

1. A second appeal lies against the decree of the first appeal

2. A second appeal may be made only to the High Court
3. The only grounds for a second appeal is that there is a substantial question
of law.
4. There is no letters patent appeal in second appeal.

For example, Mani and Ratna were in a dispute over a contractual obligation and Mani lost the
case at the High Court appeal. He went to the Supreme Court on second appeal and said that he
had never signed the contract, introducing an issue about the facts. It will not be an admissible
issue.

These restrictions exist on the second appeal because allowing new facts to be
introduced, or new arguments to be raised would undermine the previous judicial
processes. Therefore, the only grounds for a second appeal is a question where the
law is in question.
 Reference, Review and Revision
A hierarchy exists between the courts in matters of jurisdiction and position of law.
For instance, the higher the court, greater is the ambit of jurisdiction. And the
interpretation given to a law by a higher court becomes binding on the lower court.

Therefore, when a lower court has a doubt over a question of law, it may refer the
same to the High Court for an opinion.

Reference
A subordinate Court may state a case and refer it to the High Court for an opinion
if there is a doubt over a question of law. The conditions for the use of review may
be listed as follows

1. It must be a pending suit or appeal in which the decree is not subject to

appeal or a pending proceeding in execution of such decree
2. A question of law or usage having force of law must arise
3. The Court must have a doubt as to a question of law.

A question of law is of two types:

1. When there are doubts about the validity of the Act/ordinance/regulation

itself – as to whether it is compatible with the Constitution of India, and
does not violate or take away any of the rights guaranteed under the
Constitution or any other law. There may also be other questions that
amount to those dealing with the law.
2. Other questions

The other questions may include whether a law is applicable, or it is an ultra

vires application of the law, or it may be a question of whether the law is being
implemented in the right manner.

Review
If there is a glaring omission or mistake or error by the judiciary, a review can be
adopted in the case of such manifest error on the face of judgment. The review is at
the discretion of the Court and is not a right of the party.

The judiciary may decide to review a case if

 1. a party has tried to appeal a decree, but has not been allowed to do, or
where the appeal has been dismissed because it is barred by time, or the
decree was passed by an incompetent court.
2. an appeal was allowed but not preferred. There is, however, no bar on the
right to appeal. But where an appeal is preferred before a review the
review is not permitted.

But if the review is taken at the initial stage, then the appeal is allowed. If the
review is granted and the order or decree is reversed, the appeal will lapse and vice
versa.

For example, the Kukrejas lost a case and decided to appeal it, but the Court told him that he
would not be allowed to. They may apply to the Court for review of the matter.

Revision
The High Court may decide to revise any decisions taken by the lower courts under
certain circumstances.The Code, under S. 115, empowers the High Court to
entertain revision in any case decided in a subordinate Court.

The High Court may call for records of any case decided by a subordinate Court –
if there is no provision for appeal:

1. Exercised jurisdiction not vested by law, to go ultra vires their powers.

2. Failed to exercise jurisdiction so vested, to go infra vires their powers.
3. Acted in exercise of its jurisdiction illegally or partook in irregular
activity.

However, this provision is only applicable where the order, if made in favour of
the revisioner, would have finally disposed of the suit. Therefore, in the following
cases, revision is not possible:

1. In a suit for stay of proceedings.

2. In a case which has provision for higher appeal.
3. any order made or deciding an issue in the course of the suit.

For example, in a suit for divorce, the husband is troubled by the court’s order on maintenance
and seeks to get the judgement revised to that extent. This is an order made in the course of
deciding the suit, and therefore, no such revision will be possible.