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Necessary Party And Proper Party in CPC:
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To File WRIT in Delhi High Court
Courts are there to settle the disputes between individual
persons and to declare and establish their rights regarding the matters in
dispute. So whenever persons fail to solve a dispute among themselves, they can
approach the Court by filing a suit. It is called institution of suit.
There are various categories of Courts. All categories can be classified under Courts of First instance and appellate Courts. As per Section 15 of Civil Procedure Code every suit shall be instituted in the Court of the lowest grade competent to try it. Every Court has specific pecuniary and territorial jurisdiction. So we cannot file suits as per our convenience. Rules regarding filing of suits are guided by various provisions of Civil Procedure Code. Now let us have a look at those provisions.
1. Where to file the case:
Before filing a suit one should know where or before which Court the suit has to be filed. It is called place of suing. Place of suing is subjected to two limitations:
(1) territorial jurisdiction of the Court; and
(2) pecuniary jurisdiction of the Court, Territorial jurisdiction depends upon the nature of the suit, i.e. subject matter of the dispute. Depending upon the nature of subject matter, suits are divided into 3 categories. They are-
# Suits relating to immovable property.
# Suits relating to compensation for wrongs to person and movables.
# Other suits.
2. In case of Suits relating to immovable property:- As a general rule suits relating to immovable property shall be filed in the Court within the local limits of whose territorial jurisdiction the property is situate, In other words, where the property in dispute is situated.
Section 16 of the Civil Procedure Code is as follows:
"Suits to be instituted where subject matter situate: Subject to the pecuniary and other limitations prescribed by any law, suits-
(a) for the recovery of immovable property with or without rent or profits.
(b) for the partition of immovable property.
( c) for the foreclosure, sale or redemption in the case of a mortgage of or charge upon immovable property.
(d) for the determination of any other right to or interest in immovable property.
(e) for compensation for wrong to immovable property.
(f) for the recovery of immovable property actually under distraint or attachment,
shall be instituted in the Court within the local limits of whose jurisdiction the property is situate:
Provided that a suit to obtain relief respecting, or compensation for wrong to, immovable property held by or on behalf of the defendant may, where the relief sought can be entirely obtained through his personal obedience, be instituted either in the Court within the local limits of whose jurisdiction the property is situate, or in the Court within the local limits of whose jurisdiction the defendant actually and voluntarily resides, or carries on business, or personally works for gain."
Here it should be noted that the pecuniary jurisdiction of Courts differ from State to State.
There is yet another limitation regarding the filing of suits on immovable property. It is clear from the proviso to Section 16. The proviso relates to the suits for compensation in relation to immovable property held by or on behalf of defendant and where the relief sought can be entirely obtained through his personal obedience. That means, the relief for compensation is independent of its own and has nothing to do with other relief's regarding immovable property referred to in clauses (a) to (d) of Section 16.
3. Property at distant places:- 1, 2, 3, 4 are brothers. They are living at different places like A and B. They are having their immovable ancestral properties at A, B and C. 1 prefers to file a suit for partition against 2, 3 and 4. He can file the suit at A, B or C i.e where a portion of the property is situate. But in such cases, the entire suit claim has to be taken into consideration for purpose of payment of court fee and pecuniary jurisdiction. In the above example, no doubt the suit for partition can be filed at A provided the total value of property situated at A, B and C is less than rupees one lakh. This is so because only Junior Civil Judge Court is located at A. If the total value of the entire property is more than rupees one lakh the suit cannot be filed at A. The suit can be filed at B,, or at C where Senior Civil Judge are located. It is clear from the wording of Section 17 of Civil Procedure Code which runs as follows :
Suits for immovable property situate within jurisdiction of different courts:- Where a suit is to obtain relief respecting, or compensation for wrong to, immovable property situate within the jurisdiction of different courts, the suit may be instituted in any court within the local limits of whose jurisdiction any portion of the property is situate:
Provided that, in respect of the value of the subject-matter of the suit, the entire claim is cognizable by such court. '
4. Suits for compensation for wrongs to persons or movables:-- As far as suits relating to immovable properties and the relief is by way of compensation, suit can be filed at two places
(1) where the defendant resides or
(2) where the wrong was done to the movables. The same will apply to the suits for compensation for wrongs to persons. Section 19 of Civil Procedure Code reads as under:
Suits for compensation for wrongs to person or movables: Where a suit is for compensation for :\Tong done to the person or to movable property, if the wrong was done within the local limits of the jurisdiction of one court and the defendant resides, or carries on business or personally works for gain, within the local limits of the jurisdiction of another court, the suit may be institute at the option of the plaintiff in either of the said courts.
To put it differently, this section corresponds to suits for damages or compensation in relation to persons or movable property. Suits involving tortious liability are covered by this section. We are aware that Tort is a civil wrong for which the relief lies by way of claiming unliquidated damages. Nuisance, negligence, defamation, accident, trespass etc. come under tortious liability. In such cases the two options where to file the suit are where the defendant resides or carries on business or work for gain or where the tortious act takes place. It is for the plaintiff to choose either of those places. Of course, this section is also subjected to pecuniary jurisdiction.
5. Filing of suits in other cases:- As far as other suits not covered under Sections 16, 17 and 19 of Civil Procedure Code, the suits have to be filed where the defendant resides or cause of action wholly or in part arises. Money suits are the best example to understand the position easily. 'A' borrowed Rs. 20,000/- from 'B'. 'A' resides at Guntur and 'B' resides at Mangalagiri. Pronote was executed at Mangalagiri. 'B' can file a suit against 'A' for recovery of amount either at Mangalagiri or at Guntur. Ifthe amount borrowed is above rupees one lakh, the suit should be filed only at sub-court, Guntur.. There is one more thing to be kept in mind which is very important. The word 'where defendant resides' means, where he actually resides at the time of filing of the suit. For example, 'A' and 'B' are residents of Guntur. 'A' borrowed some amount from 'B' at Guntur. Subsequently, 'A' shifted his family to Nellore. 'B' shifted his family to Hyderabad. 'B' can institute a suit against 'A' at Guntur or at Nellore. Section 20 of Civil Procedure Code is as under:
Other suits to be instituted where the defendant resides or cause of action arises:- Subject to the limitations aforesaid, every suit shall be instituted in a court within the local limits of whose jurisdiction-
(a) the defendant, or each of the defendants where there are more than one, at the time of the commencement of the suit, actually and voluntarily resides, or carries on business, or personally works for gain; or
(b) any of the defendants, where there are more than one, at the time of the commencement of the suit, actually and voluntarily resides, or carries on business or personally works for gain, provided that in such case either the leave of the court is given, or the defendants who do not reside, or carry on business, or personally works for gain, as aforesaid, acquiesce in such institution; or
(c) the cause of action, wholly or in part, arises.
Explanation:- A Corporation shall be deemed to carry on business at its sole or principal office in India or in respect of any cause 0 action arising at any place where it has also a subordinate office, at such place.
A reading of Clause (a) and (b) requires some careful examination.
Where there is only one defei1dant, there is no problem. But where there are more defendants than one, where to file the suit? In such a case, different suits have to be filed where each of the defendant resides. Such a thing is not advisable because it is a very costly affair that leads to conflicting judgments. The only alternative is to file a suit where cause of action for the suit arises. This is the best suitable method. Even if there are ten defendants and are residing at 10 different places, a single suit can be filed against all of them where the cause of action arises.
But in some cases, the place where cause of action arises may be far away from where the plaintiff resides. One of the defendants may be residing very close to the plaintiff. In such a case, what is the option for the plaintiff? Clause (b) of Section 20 gives the answer. In such a case, the plaintiff can file a single suit where anyone of the defendants resides. But either the other defendants should not oppose the same or the court must give pem1ission to the plaintiff for so instituting the suit.
Finally a few words about cause of action. Cause of action is not an isolated one, nor a single instance. A number of circumstances and instances constitute cause of action. That means cause of action may arise at more than one place. That is to say arise wholly or in part. It is clear from Clause (c) of Section 20, that suits covered under Section 20 can be filed where cause of action arises wholly or in part. Promissory note transferred for valid consideration is best example.
So far we have discussed in detail various aspects regarding place of suing.
The whole discussion may be summarized as under:
1) Regarding suits relating to immovable property, place of cause of action is immaterial. Place of residence of defendants and plaintiff is immaterial. Where the property is situate, there the suit should be filed. This is the most fundamental principle.
2) Where the immovable property is situated at different places and within the territorial jurisdiction of different Courts, there also place of cause of action is immaterial. Place of residence of plaintiff or defendant is also immaterial. Suit can be filed where any portion of the immovable property situates.
3) As far as suits regarding compensation for wrong to immovable property held by defendant, the place of residence of plaintiff is immaterial. Suits can be filed where the defendant resides, or wrong was done in relation to immovable property.
4) In case of suits involving tortious liability claiming compensation for wrongs to person or movables, the place of residence of plaintiff is immaterial. The suit can be filed where the defendant resides or where the wrong was done to the person or movable property (cause of action).
5) Regarding other suits, the place of residence of plaintiff is immaterial. Suits can be filed where the defendant resides or cause of action arose wholly or in part. Where there are more than one defendant, and are residing at different places, different suits have to be filed at different places where defendants reside. As it is very costly and not convenient, suit can be filed where anyone of the defendants resides, with the leave of the court or if the other defendants do not object.
6) All the above suits are subjected to pecuniary jurisdiction of the Court.
If we carefully observe, in all cases, the place of residence or where the plaintiff is residing is immaterial. No suit can be filed exclusively on the basis of place of residence of plaintiff. The reason is obvious. Plaintiff is the person who files the suit and drags the defendant to court. If he is allowed to file the suit as he pleases, he may take advantage of it and may harass the defendant by simply filing suits within the local jurisdiction of court where he resides.
By now it is clear where to institute a suit. Next question is who are the parties to the suit. In other Words, who can file a suit and against whom.
Jurisdiction of Civil Court Under Civil Procedure Code:
Jurisdiction (from the Latin ius, iuris meaning law and dicere meaning to speak) is the practical authority granted to a formally constituted legal body or to a political leader to deal with and make pronouncements on legal matters and, by implication, to administer justice within a defined area of responsibility. The term is also used to denote the geographical area or subject-matter to which such authority applies.
Analysis of Order 33 of the Civil Procedure Code. 1908:
The notion of justice evokes the rule of law and it refers to the resolution of conflicts by institutions that make laws and by those that enforce it. Justice implies fairness and the implicit recognition of the principle of equability.
(Section 148A of the Civil Procedure Code, 1908) A Caveat is a Latin term which means, 'let a person beware' originated in the mid 16th century. In law, it may be understood as a notice, especially in probate, that certain actions may not be taken without informing the person who gave the notice. It may simply be understood as a warning. In the Civil Procedure Code of 1908 (hereinafter, the Code) it was inserted under section 148A by the recommendations of the Law Commission of India's 54th Report and was inserted by the CPC (Amendment) Act 104 of 1976.
Institution of Suit and its Essentials:
The basic aim of a legal system of a country is to impose duty to respect the legal rights conferred upon the members of the society. The person making a breach of that duty is said to have done the wrongful act.
Order 37, CPC, Summary Suits:
Civil litigation, especially recovery suits generally termed to be a long drawn battle and regarded as something best avoided, is not so. The general belief that by filing a recovery Suit against a Debtor will go on for years at large, is not so, if one knows the real scope of Order 37 of the Civil Procedure Code, 1908.
Restitution W.r.t. to Civil Procedure Code 1908:
The expression restitution has not been defined in the code, but it is “an act of restoring a thing to its proper owner.” Restitution means restoring of anything unjustly taken from another. It provides for putting a party in possession of land, tenement or property, who had been unlawfully dispossessed, deprived or disseised of it.
Delay defeats Justice: A study of provisions of Civil Procedure Code and Limitation Act:
In the system of justice provision, it is very important that a person gets justice and on time. Indian legal mechanism is particularly infamous for this particular aspect of delay in justice provision which ultimately defeats if not fully, atleast partially the purpose of the whole trial
Mediation in Civil Proceedings:
In civil proceedings, the Court must refer the parties for mediation on appropriate stage. The success of any of the modes of Alternative Dispute Resolution mechanism is subject to the selection of appropriate cases and its reference on suitable stage.
Jurisdiction of Civil Court and Place of Suing:
The fundamental principle of English Law that wherever there is a right, there is a remedy, has been adopted by the Indian legal system. It means, whenever the rights of a person is infringed or curtailed or the person is stopped by anyone in enjoying the rights so guaranteed to him, there must be some judicial forum having authority to adjudicate on the matter and the rights so guaranteed should be restored or compensated as per the case.
Attachment of Property Under Execution Proceedings:
Every civil suit is accompanied by three stages which starts from the initiation or institution of suit, adjudication of suit and finally the implementation of the litigation. The implementation of the litigation is the step in which the results of the adjudication are put into action, hence this stage is known as the execution.
Res Judicata in India:
Res Judicata is a phrase which has been evolved from a Latin maxim, which stand for ‘the thing has been judged', meaning there by that the issue before the court has already been decided by another court, between the same parties. Therefore, the court will dismiss the case before it as being useless. Res Judicata as a concept is applicable both in case of Civil as well as Criminal legal system.
Reference, Revision And Review:
In India, there are three tiers Judiciary i.e. District Courts, High Courts and hon’ble Supreme Court of India. The appeal, review and revision lies in all the three Courts depending on which Court’s Order is being challenged.
Judgment - Decree in India - Court Order:
The judgment forms the concluding part of the civil suit and it determines the rights and liabilities of the parties. Basically judgment is followed by a decree which is its operating part.
Award of cost under Code of Civil Procedure:
According to Black’s Law Dictionary “costs is a pecuniary allowance made to the successful party for his expenses in prosecuting or defending a suit or a distinct proceeding with a suit”.
Development of Adalat System during the time of Warren Hastings:
Warren Hastings hence proceeded to make major changes in the administration of justice. This paper work views the various reforms made by Warren Hastings during his time in India. This administration of justice maybe studied in four stages.
The judicial system in the country is almost on the verge of collapse. Our judicial system is creaking under the weight of arrears.
Suits by indigent person:
Order XXXIII relates to be filled by the indigent persons. An indigent person is defined in explanation one to Rule 1 according to which is a person is an indigent person if he is not possessed of sufficient means other than property exempted from attachment in execution of the degree, to enable him to pay prescribed fees.
Condonation of Delay and Law of limitation:
Law of limitation- The Code of Civil Procedure confers a right to appeal, but does not prescribe a period of limitation for filing an appeal. The Limitation Act, 1963, however, provides the period of filing up appeals. It states that the appeals against a decree or order can be filed in a High Court within ninety days and in any other court in thirty days from the date of the decree or order appealed against.
Amendment to Pleadings and the approach of the Judiciary:
Order VI Rule 17 reads as under - Amendment of pleadings - The Court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties
Inherent Power of the Court to Grant Restitution:
The Expression restitution has not been defined in the Code of Civil Procedure, but it is an act of restoring a thing to its proper owner. In other words, restitution means restoring to a party the benefit which the other party has received under a decree subsequently held to be wrong.
Power of Indian courts to issue Garnishee Order:
The word 'Garnish' is derived from an old French word 'garnir' which means to warn or to prepare . It is to serve an heir with notice i.e. to warn of certain debts that must be paid before the person is entitled to receive property as an heir.
Understanding of the term Decree, Order, Judgment and Mesne Profit:
A decree is preliminary when further proceedings have to be taken before the suit can be completely disposed of. It is final when such adjudications completely disposes of the suit. It may be partly preliminary and partly final.
Compromise Decree: A Detailed Overview:
Compromise of suit: Where it is proved to the satisfaction of the court that a suit has been adjusted wholly or in part by any lawful agreement or compromise, in writing and signed by the parties or where the defendant satisfies the plaintiff in respect of the whole or any part of the subject-matter of the suit.
Res Sub Judice, Res Judicata and Constructive Res Judicata:
Section 10: Stay of Suit - "No Court shall proceed with the trial of any suit in which the matter in issue is also directly and substantially in issue in a previously instituted suit between the same parties, or between parties under whom they or any of them claim litigating under the same title where such suit is pending in the same or any other Court in India having jurisdiction to grant the relief claimed, or in any Court beyond the limits of India established or continued by the Central Government and having like jurisdiction, or before the Supreme Court".
Power of Indian courts to issue Garnishee Order:
Garnishee means a judgment-debtor's debtor . He is a person or institution that is indebted to another whose property has been subject to garnishment. He is a person who is liable to pay a debt to a judgment debtor or to deliver any movable property to him.
Whether Caveat Application is legally permissible to be filed under section 148(a) of CPC:
Whether in a criminal proceeding a Caveat Application is legally permissible to be filed as provided under section 148 (a) of the code of civil procedure, 1908?
Section 89 of CPC- A Critical Analysis:
In every civilized society there are two sets of laws that govern the lives of citizens– (i) substantive laws and (ii) procedural laws. While the substantive laws determine the rights and obligations of citizens, procedural laws provide for the framework for enforcement of the same.
Section 151 CPC, Discretionary powers a Judge:
The scope of Section 151 CPC has been explained by the Supreme Court in the case K.K. Velusamy v. N. Palanisamy
Compromise Decree: A Detailed Overview:
Decree means the formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit.
Procedure to Investigate suits by or against Government:
Section 79 to 82 and Order XXVII of the Civil Procedure Code, 1908 deal with procedure for investigation of suits by or against the government and public officers.
Salem Advocates Bar Association v. Union of India:
The present case Salem Advocate Bar Association v. Union of India is basically an aftermath of the original case Salem Advocates Bar Association, Tamil Nadu. v. Union of India.
Necessary Party And Proper Party in CPC
Inherent Jurisdiction of Civil Courts in India:
Jurisdiction means the power and authority conferred by law upon a court, judge or tribunal to decide the disputes and make judgments/orders authorised by law.
Legality of Foreign Judgments:
Binding nature of the foreign judgments i.e. judgments given by the courts in foreign countries and the scope and object of section 13 of C.P.C.
An analysis on Order XII Rule 6 of C.P.C, 1908:
In case of Dinesh Kumar Singhania v. Calcutta Stock Exchange Association Limited the Court observed that- From a perusal of the provisions under Order XII Rule 6 of the Code, it appears that the scope of the rule is that in a case where admission of fact has been made by either of the parties in pleadings whether orally or in writing, or otherwise, the judgment to the extent of admission can be given by the Court on its own motion or on the application of any party.
Award of Cost
The scope of the research is to analyze the Section 35,35A and 35B Order 20 and to see at what different stages the cost can be awarded. Thus the scope of this research is limited to Section 35 of Civil Procedure Code.
Scope of Mamlatdar Court Act,1906:
This article gives a clear description of the scope and object of Mamlatdar court act and jurisdiction of the court as well as functions and power of Mamlatdar Court
Withdrawal and Transfer of Suits:
Constitution has established institutions to take care of any disputes that arise in the society; one such institution is the Code of Civil Procedure, 1908. Civil procedure is the set of directions that one must follow when they turn towards the justice system in order to settle a dispute that is not criminal in nature.
Non-joinder of Parties in Civil Suits:
The presence of opposing parties is one of the essential requirements of any civil suit. But all parties are not necessary for the suit to be adjudicated upon. Therefore, necessary and non-necessary parties have to be distinguished between.
Framing of Issues:
When one party affirms and other party denies a material proposition of fact or law, then only issues arise. If there is no specific denial, the question of framing issue does not, generally, arise. Material propositions are those propositions of law or fact.
Privileged Documents under CPC An analytical insight:
A privilege may not be a right, but, under the constitution of the country, I do not gather that any broad distinction is drawn between the rights and the privileges that were enjoyed and that were taken away.
The Inherent Powers of the Court
The abuse of the process of the court must be prevented by court as an inherent duty of the court. The Code of Civil Procedure is not exhaustive.
Summoning of Defendant:
As per section 27 of the CPC, if the suit is properly instituted then the court may issue summons to defendant to appear and answer the claim in the manner as prescribed.
Lok Adalats And Permanent Lok Adalats:
ADR has been an integral part of our historical past. Like the zero, the concept of Lok Adalat (Peoples' Court) is an innovative Indian contribution to the world jurisprudence.
Legislation & Common Law : Indian Legal System:
Legislation, also known as statutory law, is the basic structure of present legal system of India. Statutory laws are based on the statutes enacted and imposed by the legislature. A statute is a formal act of the Legislature in written form.
Limitations in CPC-Execution of Foreign Judgments in India:
Limitations in The Civil Procedure Code With Respect to Execution of Foreign Judgments in India
Cross Examination In Case of Injunction Suits - CPC:
Cross Examination In Case of Injunction Suits, Injunctions are governed by Sections 37, 38, 39 to Section 42 of Specific Relief Act.
Judicial System Before 1947
The British ruled India for a period of almost about 190 years. Yet, the English set up a poor copy of the British judicial system as Indian judicial system.
Privileges and Immunities In Suits of The State
Every problem has its own remedy. For the purpose of actions of the administration, these remedies help in preventing the recurrence the extraordinary legal remedies that is available to the individual against the illegal of an illegality.
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