Midsemester Syllabus
20 marks
Numbers numbers numbers:
- 6 chartered HCs
- 19 of NGT, 13 of COPRA and 22 of Administrative Tribunals Act: powers same as that of civil
court but not governed by CPC
- Section 34 of Specific Relief Act: defines declaratory suit
- Article 54 of Limitation Act
- Several schedules
- First column for type of suit
- Second column for period of limitation
- Third column for starting point of limitation
HC CAN BE APPROACHED IN PLACE OF A CIVIL COURT IF THE CASE INVOLVES A
DISPUTED QUESITON OF LAW
Jurisdiction decided by Special Statute will take Presidence over CPC
City Civil Court: cannot go over 10 lakhs
When date mutually decided- question purely of law
If pleading, maintainability is a mixed question of law and fact: the court will frame preliminary issues and
allow the Party to adduce evidence
If maintainability question of law: can decided at the very beginning
If maintainability is mixed question of law and fact: have to frame preliminary issues to decide
Limitation Act: does not extinguish the right but only bars the remedy
Three Schedules: Suit, Application and Appeal/Revision
Section 3: when the suit has been instituted beyond limitation period, it has to be mandatorily dismissed
Section 5: Condonation of Delay in application, revision or appeal
Section 14: When pursuing in wrong forum , considerable time is wasted, the time spent in wrong forum
will not be calculated. NECESSARY FOR INTIIAL FORUM TO LACK JURISDICTION AND NOT
JURISDICTIONAL ERROR
Commercial Courts Act:
- Summary judgment
- Verification and affidavit
- 22 types of disputes classified as ‘commercial’ disputes
- Section 12A: Pre Institutional Mediation
- 3+2 months
- Case management: propose timelines
- Mandatory Timeline
Evidence Act: Section 5-55
NO EVIDENTIAL FACTS IN PLEADING
- Facts in Issue: basic subject matter
- Relevant Facts: those which are logically connected to the facts in issue and required to prove the
main facts
- Evidence will be used in trial stage only
Issues: Evidence is regulated with regards to issues
WHEN PLAINT CAN BE A MIXED QUESTION OF LAW AND FACT:
- When there has been no date decided in the agreement for Limitation Period to start from.
- Court will have to frame preliminary issues
Plaint must comprise of Material Facts and Material Particulars
Material facts are primary facts and those which are essential to establish the cause of action
Cause of Action: bundle of facts that plaintiff is required to prove to win the case
- Some remedy and right P has
- Some wrongful act R has conducted
- Some damage caused to P
- P has to establish DIRECT LINK between R’s action and P’s damage
Order 6, Rule 2 stipulates that material facts should be distinguished from Evidential Facts
Interlocutory Applications arising out of Miscellaneous Proceedings are Supplemental Reliefs
First Appeal can deal with both law and facts whereas Second Appeal is for Questions of Law only
Elements of Plaint
- Parties
- Necessary
- Proper
- Non-joinder of necessary party
- But no effect in case of non joinder of other parties
- Misjoinder
- Joinder of Defendants
- Same cause of action
- Subsequent suit would be barred by res judicata or sub judice
- Jurisdiction
- Cause of Action
- Bundle of facts
- Relief
Material Facts
Decrees from Plaint
Orders can be from Appeal, Suit, Complaint etc
MAIN PETITION: OKAY
ANY SORT OF ANCILLARY PETITION: MISCELLANEOUS PETITION
For eg: main petition is for title suit. Ancillary proceeding is recovery of possession
SUPPLEMENTAL PROCEEDINGS [INTERLOCUTORY APPLICATIONS]
- Injunction
- Receiver
- In case of businesses, to handle the day to day of the business
- COURT APPOINTED
- Commissioner
- To calculate the partition by metes and bounds
- COURT APPOINTED
Civil Suit is a special kind of proceeding whose procedure is governed by CPC
WRIT PETITION NOT GOVERNED BY CPC
Injunction: Restricts right to transfer (similar to Lis Pendens concept)
Ex Parte Relief: Review and Appeal
Because whenever, merits decided, its a decree and therefore appealable
Review- by same court
- Allowed when when?
- In case of ex parte decree
- Setting aside would mean restoration
Revision
- By higher court for PROCEDURAL ISSUES
- Say grant or rejection of application to amend pleadings
Appeal
- Permitted in ex parte also
Restoration of Suit: Order 9
When dismissal is set aside
- jurisdiction
- decree
- classes of decrees
- orders
- order and decree distinction
- decree holder
- judgment debtor
foreign court
foreign judgment
when the foreign judgment shall not be conclusive
section 13
legal representative
mesne profits
stay of suit
- section 10
- section 11
constructive resjudicata11[4]
amendment to pleading[ order 6 rule 17]
suit by indigent person[ order 33, rule 1,2,5,8, 9, 15, 15a].
Ex parte order 9 rule 1,2,3,13
- Features of commercial courts
- Limitation Act features
Revision
Appeal
Remand
Fresh Application
Mixed Question of Law and Fact
Hierarchy of Civil Courts
Framing of Issues
Lack of Jurisdiction and Jurisdictional Error
Section 9 CPC
Section 99 CPC
District court has appellate and original jurisdiction
Dividing the rights into substantive rights and procedural rights
Sub Judice does not apply for application, complaint, etc
Ex Parte Decree: Review and Appeal
Munsif courts, small causes court, civil courts and civil judge’s are exampls of courts of original jurisdiction
Appealable Orders Decree Not Decree
Arbitration agreement, refusal to Dismissal of Appeal as Time Refusal or Grant of Amendment
start arbitral proceedings , award Barred to Plead (remember Leave of
from a special case Court is pre-requisite)
Basically grounds of Order 7
Rule 11(d) Refusal to Grant Amendment:
no APPEAL BUT
REVISIONAL
APPLICATION ALLOWED
Revisional Court: take into
account cogent reasons because
this is discretionary power of
lower court. Revisional Court
will only consider the application
for amendment to pleading and
will not go into the facts of the
cases
Remand by Appellate Court to Rejection of Plaint for non Application for Probate
Trial Court for FRESH payment of court fees {Limited jurisdiction]
ADJUDICATION
As as it is on technical grounds
Award from a special case, filing Dismissal of suit for want of Order admitting second appeal
or refusing to file arbitration proof
agreement, staying or refusal to
stay legal proceedings
Dismissal of Second Appeal
Dismissal due to
Abetment of suit
CONSENT DECREE IS A
DEEMED DECREE
LEAVE OF COURT:
- Raising relinquished portion of claim
- Amendment to pleading
Remedies in case of Ex Parte Decree:
- Review
- Appeal
What is Civil Suit:
- Does not involve public policy, or politics and is not criminal
Constructive Res Judicata is related to issues
Order 2 Rule 2
Order 33: Indigent Persons
Payment of court fees deferred
Not able to pay court fees
Lacks sufficient means
Schedule of moveable and immoveable properties
Court will allot legal counsel
Restoration of Suit under Order 9:
- The court sets aside order of dismissal
Ex Parte Decree | Exception to Res Judicata
- Order 9, rule 6
- Discretionary power
- Either plaintiff not appearing or defendant not appearing
- Admission
- Remedy :
- Appeal
- Trial has to start de novo if the ex parte decree has been set aside (APPEAL)
- Evidence can be re-introduced
- Evidence cannot be continued to be used against the other party
- If ex parte decree has been set aside, then
- Rule 13: Remedy against Ex Parte Decree is statutory right and cannot be
foregone by means of entering a Compromise Decree
-
Review
- From same court who passed the decree
- Revision
- By different court
EXCEPTIONS TO RES JUDICATA
- Fresh suit filed upon setting aside of Ex Parte Decree (de novo trial)
EXCEPTIONS TO RES SUB-JUDICE
SLP cannot be grounds for stay on further proceedings of trial court
Joinder of Parties - Order I
Mis Joinder: person involved has not been made a party to the suit
Non-Joinder
Rule for Joinder of Defendants:
- Right to relief alleged to exist must arise from same act or transaction
- Case is of such character that is a separate suit is brought there will be common questions of
law or fact and will be hit by res sub judice or res judicata
- Non Joinder can be fatal
Amendment to Pleading
- Leave/ Permission of Court
- Seven reasons for not granting amendment to pleading
- Discretionary power of the court
