TEXTBOOK ON CIVIL PROCEDURE MD. ABDUL HALIM Se Tee SC eeTea Ply Pee coneNovember, 2009 February, 2011 January, 2019 Eleventh Edition : August, 2019 Twelfth Edition : November, 2020 Thirteenth Edition : January, 2021 ISBN : 978-984-95005-3-7 Price : Tk. 650.00 only Cover Design : Sojoni Art Publications First Edition Second EditionCONTENTS PART-A Chapter-I CODE OF CIVIL PROCEDURE: MEANING, NATURE AND OBJECT 15-39 Meaning of Civil Procedure 15 Substantive law and procedural law 15 No vested right on the procedural law . 16 No presumption against retrospective operation 16 Nature of procedural law 16 Nature of CPC \7 Scope and applicability of CPC 18 Is CPC an Act of parliament? 19 Is CPC a Code? 19 Mere irregularity in the procedure of the Code 22 Discretionary power 22 Is the Code exhaustive? 23 Power of civil and criminal courts compared 24 History of the Code 24 First Code in India: The Code of 1859 25 Second Code in India: The Code of 1877 25 Third Code in India: The Code of 1882 25 Fourth Code in India: The Coe of 1908: Present Code 26 Arrangement of the Code 27 Sections and Rules in CPC 27 Extent of High Court Division’s power to make rules 2 Letters Patent Jurisprudence of Rules: Divergence and Advantages 29 The Rule Committee 30. Composition of the Rule Committee 30 Chapter-II SUBORDINATE CIVIL COURTS AND THEIR POWERS AND JURISDICTIONS 3140 Diagram of civil courts 31 Introduction 31 Subordinate civil courts 32 Different classes of civil courts 32 Jurisdiction of civil courts 33 Territorial Jurisdiction Subject matter JurisdictionPecuniary Jurisdiction Original and Appellate Jurisdiction Appeals- Wherefrom and to which Court Administrative or transferred jurisdiction Jurisdiction to transfer or withdraw cases The Court of the District Judge 36 The Court of the Additional District Judge 37 The Court of the Joint District Judge 38 The Court of the Senior Assistant Judge 38 The Court of the Assistant Judge 39 Jurisdictional conditions under CPC 39 Court to try all civil suits unless barred Saving of special procedure Stay of suits Res Judicata Courts in which suit to be instituted Suits to be instituted where subject matter situate General rules on jurisdiction 40 Chapter-II TERMS DEFINED AND EXPLAINED 41-64 Suits of Civil Nature 41 Decree 42 -Elements of a decree 42 -What a decree shall include 44 -Preliminary and final decree 44 -Partly preliminary and partly final decree 46 Order 47 -Distinction between orders and decree 47 Similarities between decree and orders 47 Mesne Profits 48 -Nature 48 -Principles 48 Object of Mesne profit 49 Against whom msne profit can be claimed 49 -Assessment 50 Test 7 50 -Interest 50Pleader Interpleader Suit Conditions of interpleader suit -Exceptions to interpleader suit -Plaint in interpleader suit Pauper Suit -Conditions of pauper suit -Rejection of pauper application -Dispaupering -Costs where pauper succeeds -Procedure where pauper fails Suits involving substantial question as to interpretation of Constitutional Law Representative Suit -Essentials of representative suit -Purpose of representative suit Cause of Action Suits to be filed in court where cause of action arises -Joinder of causes of action Objections with regard to misjoinder Set Off -lilustration Conditions of set-off -Distinction between set-off and counter claim Legal Representative Exparte Decree -Conditions of exparte decree -Setting aside exparte decree -Effect of exparte decree -Remedies to defendent of exparte decree Local Investigation Conditions of local investigation Chapter-IV CIVIL PROCEEDINGS: VARIOUS STAGES Nature of a Civil Proceeding 5966 Stages in a Civil Proceeding Pre-Proceeding Stage 67 Proceeding Stage 67 Issue of plaint Issue of process Service of summons Return of summons and filing of written statement Alternative Dispute Resolution (ADR) First hearing Framing of Issues Settling of date for Hearing (SD) Trial Stage 7 Opening of the case Peremptory hearing and examination in chief Cross examination and re-examination Argument Judgment 75 Pronouncement of judgment Decree or order Enforcement and Execution of Decree 75 Application Hearing ' Show cause notice for execution Procedure after notice Mode of execution Chapter-V PARTIES TO A CIVIL SUIT 77-82 Types of parties to suit 71 Parties to a civil suit 7 Joinder of parties 77 Joinder of defendants 77 Necessary and proper parties 78 Misjoinder of parties 78 Misjoinder or non-joinder of plaintiff's 79 Misjoinder or nonjoinder of defendants 79 Effect of misjoinder or non-joinder of parties 79 Objection as to misjoinder of nonjoinder of parties 79 Misjoinder of causes of action aa Joinder of causes of action and jurisdiction of court Joinder of causes of action with regard to immovableproperty Exceptions Striking out or addition of parties Court may strike out or add parties Consequences of addition Chapter-VI INSTITUTION OF CIVIL SUITS Where to be instituted? How to institute? Objection with regard to jurisdiction Institution of a civil suit In which court a suit relating to immovable property is to be instituted Provisions of section 20 Suit for damages for tortuous activity of a Government employee Chapter-VII PLEADINGS IN CIVIL SUITS Pleadings . Object of pleadings Plaint Ingredients of plaint Ingredients of written statement Rejection and return of plaint Rejection of plaint Remedies against rejection of plaint Rejection of plaint and return of plaint Amendment of plaint ‘Amendment after judgment When will court refuse to allow amendment ‘Amendment of pleadings Conditions of amendment of pleadings Chapter-VIT WRITTEN STATEMENT, SET-OFF AND + COUNTR-CLAIM Introduction Ingredients of a written statement Set-off Illustration Conditions of set-off Effect of set-offLegal set-off Equitable set-off Distinction between legal set-off and equitab! -« Counter-claim by defendant ndequitable set-off oe Distinction between set-off and counter-claim 100 Chapter-IX ISSUE AND SERVICE OF SUMMONS 101-108 Summons: meaning TOL Issue of summons 101 Essentials of summons 101 Object of service of summons 101 Mode of service of summons 102 Personal service of summons 102 Service by affixation 103 Service by post 104 Service by courier service 104 Service by email 105 Substituted service 105 Method of substituted service 105 Effect of substituted service 106 Where service substituted, time for appeatance 106 Service in special cases 106 Service of summons where the defendant resides within jurisdiction of the another court 107 Service of summons outside Bangladesh 107 Onus as to proof of due service of summons 107 Service where defendant resides out of Bangladesh and has no agent 108 Service of summons when completed 108 Consequence of not serving summons within time 108 Chapter-X RES SUB JUDICE AND RES JUDICATA 109-114 Res sub-judice: stay of suit 109 Conditions of res sub-judice 109 Object of stay of suit 110 Test of stay of suit 110 Res judicata a Object of res judicata i a Conditions of res judicata . a 112 Illustration of res judicata - 113 Res judicata and judicial precedentRes judicata and estoppel Types of res judicata oa Whether exparte decree works as res judicata Chapter-XI TRANSFER OF CIVIL SUITS Two types of transfer General power of transfer -Grounds of transfer -Principles of transfer -Transfer to which court ~Section 24 Special power of transfer -Application -Conditions of transfer -To which court to transfer Chapter-X11 CIVIL APPEAL Appeal General rules as to appeal Civil appeal in diagram Power of appellate court Provisions of appeal in CPC Provisions of appeal in Civil Courts Act Appeal against preliminary decree Appeal against exparte decree No appeal against consent decree Procedure of appeal Form of appeal Who can prefer appeal Appeal against orders Chapter-XIIT CIVIL REVISION Nature of civil revision Conditions of civil revision -Revisional power of the HCD -Revisional power of the District Judge -Second revision to the HCD -Dual forum of revision from the same decree -Nirmol Chandra Datta v Anser Ahmed Jyosna Ara Amin « 113 114 114 15-118 115 115 115 115 16 116 117 117 118 118 119-126 119 119 120 121 121 121 122 122 123 123 123 124 124 127-138 127 127 128 128 129 130 130 131-Khurshed Ali v Hashem Ali 133 -Appellate Division's view 134 -Problem with the Appellate Division's view 135 Distinction between appeal and revision 136 Reference 136 Review 137 Remedies against interlocutory order 137 Chapter-XIV INHERENT POWERS OF THE CIVIL COURTS 139- 144 Introduction 139 Section 151 139 Reasoning of inherent power 139 Nature of inherent power 141 Instances of inherent power 141 Where inherent power cannot be exercised 141 . The Code recognises the distinction between a proceeding commenced by an application and a proceeding commenced by a plaint. A proceeding commenced by an application is not suit and cannot have a decree. Determination of the rights of the parties: The adjudication must determine the rights of the parties with regard to all or any of the matters in controversy. The term “determination of the rights of the parties” refers to the substantive rights of the parties with regard to the matters of the case and not to other matters of the dispute which are ancillary to the subject matter of the suit. For example, a question relating to the jurisdiction 3 Venkata Chandrappa v Venkatarama Reddi LR 22 Mad. 256.Terms Defined and Explained tation or other preliminary points, if decided in favour of the plaintiff, would not determing the rights of the parties in relation to the ‘suit. The expression “matters in controversy in the suit” connotes matters as have been brought up for adjudication by the ings. a ae Adjudication: The adjudication Must be conclusive. An order can be a decree only if it conclusively determines the rights of the parties completely and finally. An order is not a decree When it merely determines an incidental question. Incidental order directing an inquiry regarding mesne profits, for appointing a receiver, granting an injunction etc. are not decisions which conclusively determines the rights of the parties. of the court or limi (iy) What a Decree shall include? Section 2(2) also specifies that a decree shall include- (a) Rejection ofa plaint; and (b) determination of any question with regard to an application for restoration under section 144 of the Code. What a Decree shall not include? Section 2(2) specifies that a decree shall not include- (c) any adjudication from which an appeal lies as an appeal from an order, or (d) any order of dismissal for default. Preliminary and Final Decree The explanation given in section 2(2) specifies four types of decrees: (i) final decree; and (ii) preliminary decree; again (i) partly final decree; and (ii) partly preliminary decree. Again, a closer look to the whole sub-section 2(2) reveal that the Code recognises the following types of decrees: (1) Preliminary Decree; (2) Final Decree; (3) Partly preliminary decree;Textbook on Civil Procedure 45 (4) Partly final decree; (5) order rejecting a plaint; and (6) determination of a question within section 144. Decree in Appeal: A decree passed in appeal is really a decree in the suit, for, an appeal is only a continuation of the suit. Consent Decree: A compromise or a consent decree is a decree within the meaning of this sub-section. The basis of compromise is the contract entered into between the parties, but once a decree based on compromise has been made, the compromise merges into it and it operates as a decreet. Preliminary and Final Decree: A decree is preliminary when further proceedings have to be taken before the suit can be completely disposed of. It is final when such adjudication completely disposes of the suit. In other words, 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 stay its hand, for the time being, until it is in a position to pass a final decree in the suit. The Code provides for the passing of preliminary decrees in the following classes of cases: Serial No. | Order __| Rule subject matter 1 20 12 Suits for possession and for rent or mesne profit. 2 30 |__| Administration suits 3 20 14 Suits for pre-emption. _| 4 20 15 Suits for dissolution of partnership. | 5 20 16 Suits for accounts between rincipal and agent. 6 20 18 Suits for partition and separate possession. 4 Fakir Panda v Puni Devi (1974) 40 Cut. L.T. 118346 Terms Defined and Explained 34 2,3 34 4,5 9 [34 17,8 There is a difference of opinion as to’ whether the list ig exhaustive of the cases in which a preliminary decree can be passed. In an earlier case of the Calcutta High Court it was held that except in cases expressly provided for in the Code no preliminary decree can be passed. A later case of the same High Court held that the list is not exhaustive. The Bombay High Court also has held to the same effect®. Decree partly preliminary and partly final: A decree may be partly preliminary and partly final. Thus, where in a suit for possession of immovable property with mesne profit, the court- (a) decrees the possession of the property, and (b) directs an enquiry into the mesne profits, the portion (a) is final decree and the portion (0) is a preliminary decree. Similarly, a direction in the final decree leaving distribution of assets undisposed of is in essence a preliminary decree and the decree is partly final and partly preliminary. More lucidly, a plaintiff may join two claims for possession and mesne profits in one suit. When a decree is made for possession, that portion of the decree is final; and when a decree is made for mesne profit, it is only preliminary, because the final decree for mesne profit cannot be made unless the amount due is found upon further inquiry. Therefore, further proceedings have to be taken for ascertaining the amount due for mesne profit, before the claim for mesne profits can be completely disposed of. In such a suit, although one decree is made, it is partly preliminary and partly final’. —e. 5 AIR 1919 Cal 361 (362). § AIR 1921 Bom 220 (222). 7 Satish Chandra v Sarat Kamini (1929) Cal 383. Suits for foreclosure of a mortgage Suits for sale of mortgaged roperty._ Suits for redemption of mortgage. olaTextbook on Civil Procedure 47 . Order Section 2(14) defines ‘order’ to be a formal expression of any decision of a Civil Court which is not a decree. Distinction between Decree and Order The adjudication of a court of law may be divided into two classes, namely: (i) decrees; and (ii) orders. All decrees are orders and not all orders are decrees. Whether an order is a decree within the meaning of section 2 of the Code depends upon its nature and contents. The definition of ‘decree’ is not intended to include an interlocutory decision in ordinary suits, upon each and every point in controversy between the parties. Both decree and order are formal expression of decision of a civil court. Therefore, the presence or absence of a formal expression cannot be the true criterion of the difference between a decree and an order. Reading the two definitions together, the essence of the distinction seems to lie in the nature of the decision- whether it is an adjudication of a particular kind or not- rather than in the manner of its expression. Thus the main distinction between the two is that a decree conclusively determines the rights between the parties with regard to all or any of the matters in controversy whereas an order does not do so. Similarities between Order and Decree: “@ Both are decisions given by a civil court, (ii) Both are given in matters of controversy between parties, (iii) | Both are formal expressions of a decision. Distinctions between Order and Decree: i) _ A decree is only passed in a suit which has commenced by presentation of a plaint. On the other hand, an order may originate from a suit by presentati i a ee y Presentation of a plaint or48 Terms Defined and Explained (ii) A decree is an adjudication which conclusive} determines the rights of the parties with regard to all or any of the matter in controversy. On the other hand, an order may or may not finally determine such rights, (iii) A decree may be preliminary or final, or Partly preliminary and partly final. An order, on the other hand, cannot be preliminary or partly final. (iv) Except in certain suits, where two decrees, one preliminary and one final are passed, in every suit there can be only one decree. However, ina suit there may be a number of orders passed by the court. (vy) Every decree is usually appealable unless otherwise provided whereas an order may not be appealable. Orders are therefore divided into (i) appealable; and (ii) non-appealable orders. Mesne Profits Section 2(12) defines that “mesne profits” of property means those profits which the person in wrongful possession of such Property actually received or might with ordinary diligence have teceived therefrom together with interest on such profits but shall not include profits due to improvements made by the person in wrongful possession. Nature: “Mesne profits” are in the nature of compensation or damages which the court may mould according to the justice of the case. A person wrongfully kept out of Possession is entitled to recover not only the profits which the defendant could have made while in Possession but also the loss that the plaintiff has sustained by the withholding of the Possession. Principles: The Principles upon which the court should on to determine the mesne profit are now settled. They are asTextbook on Civil Procedure 49 (i) The possession which has been wrongfully retained should not be a source of profit to the wrongful possessor. (ii) The wrongful possessor should be made to pay to the rightful owner any profit which he has made or could with reasonable diligence have made. (ii) The court should restore the status before the dispossession of the decree-holder. In determining the question of mesne profit the court should aim at doing justice between the parties having regard to all the circumstances of the case, the object being to see that the person wrongfully kept out of possession is put in the same position financially as if right had been done. Object of Mesne Profit: The object of awarding a decree for mesne profits is to compensate the person who has been kept out of the possession and deprived of enjoyment of his property even though he was entitled to possession thereof. Against whom mesne profit can be claimed: Wrongful possession by a defendant is the essence of a claim for mesne profits and the very foundation of a decree therefore. Thus a person in wrongful possession and enjoyment of immovable property is the one against whom claim for mesne profit can be made. Mesne profit cannot be claimed when there is no wrongful possession. For instance, the possession of a co-sharer can never be wrongful within the meaning of section 2(12) as he has a right and interest in every inch of the undivided property. Therefore, one co- sharer cannot claim mesne profit against the other, on the ground that the latter was in wrongful possession (Shambhu Dayal Khetan v Motilal Muraka AIR 1980 Pat 106). Where a party to a suit claims mesne profit, he is in the position of a plaintiff and if he adduces no evidence at all, no mesne profits can be awarded to him (Ramakka v Negasami_ AIR 1925 Mad 145).50 Terms Defined and Explained Where the plaintiff is dispossessed by several Persons, every one of them would be liable to pay mesne profits to the Plaintify, In such a case the court may hold all the trespassers Jointly and severely liable, leaving them to have their respective ‘Tights adjusted in a separate suit for contribution; or may ascertain ang apportion the liability of each of them Assessment: Mesne profits being in the nature of damages, no invariable rule governing their award and assessment in every case can be laid down and the court may mould it according to the justice of the case. In assessing the mesne profit, usually the court will take into account what the defendant has gained or reasonably might have gained by his wrongful possession of the property. Test: The test to ascertain mesne profit is not what the plaintiff has lost by being out of possession but what the defendant gained or might reasonably and with ordinary prudence have gained by such a wrongful possession. Interest: The definition of ‘mesne profit’ as contained in section 2(12) includes not only the profits of immovable property but also interest on such profits. Since interest is an integral part of mesne profit, it has to be allowed in the computation of mesne profit itself. The rate of interest is at the discretion of the court. Pleader Section 2(15) of the Code of Civil Procedure defines ‘pleader’ as any Person entitled to appear and plead for another in Court. Who is entitled to appear and Plead for another in court? This has not been explained anywhere in law. Normally an advocate enrolled under the Bangladesh Legal Practitioners and Bar Council Order and Rules, 1972 is entitied to appear and plead before any court. Thus an advocate is necessarily @ Pleader but can any other person be a pleader? Karlier there was Provision in sub-section 2(15) that a pleader would include an advocate, a vakil and an attorney of a High Court. Vakil, Mukiiter and attomey8- ae § To learn more about these Bangladesh, Chapter X1V, terms please see author's Legal System ofTextbook on Civil Procedure 51 these terms being almost obsolete and irrelevant in our legal system, have been deleted from this sub-section in 1973. Article 19 of the Bangladesh Legal Practitioners and Bar Council Order, 1972 provides that no person shall be entitled to practise the profession of law unless he is an advocate. This article also provides that an advocate shall be entitled as of right to practise throughout Bangladesh and to appear and plead before any court, tribunal or revenue authority in Bangladesh. Thus it is clear that no one other than an advocate can be a pleader. Interpleader Suit Section 88 and Order XXXV of CPC deals with interpleader suit. Where X is under a liability for any debt, sum of money, or other property, claimed adversely by A or B or more, and he desires protection against a wrong payment or delivery, he can file ‘a suit under section 88. The only way, in fact, in which he can protect himself is by filing such a suit; otherwise, if he litigates with the claimant separately, he would have to pay the costs of the successful claimant. A suit under this section is called an interpleader suit because the plaintiff is really not interested in the matter, but only the defendants interplead as to their claims. In each of the defendants so interpleading is virtually in the position of a plaintiff and his claim will be governed by the rules of the Limitation Act. In other words, an interpleader suit is one in which the real dispute is between the defendants only and the defendants interplead, that is to say, plead against each other instead of pleading the plaintiff as in an ordinary suit. The primary object of filing an interpleader suit is to have the claims of rival defendants adjudicated. Conditions of Interpleader Suit: (i) In an interpleader suit the plaintiff must not himself dispute the debt or claim the property; in other words, he must not have any interest in the suit other than for charges or cost. (ii) Claims must be bonafide and adverse to one another among the defendants. In other words, the defendantsi 52 Terms Defined and Explained must claim the money OF property adversely to one another from the plaintiff. (iii) Claims must be with reference to the same subject-matter. In other words, the rival claims must be with reference to the same debt, sum of money or other property but not necessarily to the same extent. (iv) The plaintiff must be ready to pay or deliver the property to the nghtful owner. Exception to Interpleader Suit: The proviso to section 88 of the CPC states that where any suit is pending in which the rights of all parties can properly be decided, no such suit of interpleader shall be instituted. Plaint in Interpleader Suit: In every suit of interpleader the plaint shall, in addition to other statements necessary for plaint, state- (a) that the plaintiff claims no interest in the subject-matter in dispute other than for charges or costs; (b) that claims made by the defendants severally; and (c) that there is no collusion between the plaintiff and any of the defendants (Or. 35, R.1). Pauper Suit Order 33 deals with the provisions of pauper suits. Rule 1 of Order 33 prescribes that any suit may be instituted by a pauper. And therefore, a suit instituted by a pauper is called pauper suit. However, the question is- who is a pauper? The answer has been given in the explanation of Rule 1. It states that a person is a pauper- a) when he is not possessed of sufficient means to enable . him to pay the prescribed court fee for the suit; or (ii) where no such court fee is prescribed, when he is not entitled to property worth Taka five thousand other than ie nesearaly wearing-apparel and the subject-matter ofTextbook on Civil Procedure 53 Thus the object of a pauper suit is to enable a person i ! w peor we Eee fee aes for instituting a suit. aiiauen pe it by a pauper plaintiff, the court has in power to allow the defendant to defend in forma pice (Doorga v Nittokally, 1LR § Cal 819). The provision of pauper suit has been almost obsolete in Bangladesh’. This is because the average cost of litigation, in view of lengthy and cumbersome procedure, is so high that the question of only court fee is not a factor to a litigant. Conditions of a Pauper Suit: The conditions and procedure of a paupel been detailed in Rules 2-8 of Order 33. They are as follows: (i) In a pauper suit there must be a separate pauper application along with the plaint (Rule 2). This application is to obtain the leave of the court to sue in forma pauperies. (ii) The pauper appl movable or immovable p' applicant. (iii) The usual ru the application to th from appearing in the court, he (Rule 3). pauperism of the applicant or (iv) The court may examine the it may order that the applicant be examined by a commission (Rule 4). 1 application have ication shall contain a schedule of any roperty belonging to the le is that the applicant himself shall present e court; however, if he is exempted may present it by an agent Rejection of a Pauper Application: . Rule 5 specifies that a pauper application may be rejected on any of the following grounds: . ; (i) where the applicant is not framed and presented in the manner prescribed by rules 2 and 3, or 9 Mahmudul Islam, The Law of Civil Procedure, Dhaka: Mollick Brothers, 2006, p. 1419