Code of Civil Procedure
1. Civil Procedure falls in the concurrent list. States can make
amendments.
2. The use of term code is a mere nomenclature which can not negate
the basic fact that as per the long title and Section 1(1), CPC is an
Act.
3. Theoretically, code means an assemblage of rules.
4. Section 2(1)
5. Section 2(18): Rules means rules and forms in I Schedule and rules
made under section 122 and 125
Rule Making Power of HC
1. Part X, Sections 121-131
2. As per section 122, the HC may make rules to amend, alter, annul the
rules contained in the first schedule for civil courts.
Structure of CPC
1. 158 Sections divided in XI Parts.
2. I Schedule: 51 Orders
3. Appendix: Forms
3. This bifurcation was done to bring flexibility in the procedure.
Applicability of CPC
1. As per section 129, the HC in exercise of its original jurisdiction may
make rules for its own procedure.
Preamble
1. To consolidate and amend.
2. Exhaustive law for the subject covered by it.
3. Amending Act: Consolidated with certain changes. It implies that the
previous law will not be applied as it is.
Section 1
1. 1(1)Short Title: CPC, 1908.
2. 1(2)Date of Commencement: 01.01.1909.
3. 1(3) Territorial Extent: Except Nagaland and Tribal Areas of Assam
Major Amendments in CPC
1. 1859, 1877 and 1908 (Act no. 5)
2. 1996, then as per Malimath Committee (1999 and 2002 Amendment)
3. 2015 Amendment: Commercial Courts Act, 2105
Retrospective Application
1. Dayawati Vs. Inderjeet, 1966 SC: The law affecting procedure is
generally retrospective. It means that they would also apply to the
pending proceedings. There is no inherent right in procedure.
2. However, the right to appeal is a vested right accruing to the party on
the date of institution of suit and can’t be taken away retrospectively.
3. The procedure of the day applies generally.
4. 10th November Special class on this topic.
Written Statement: Order 8
Rule 3: Denial To be Specific
Not sufficient to generally deny the grounds alleged by the plaintiff
The defendant must specifically deal with each allegation truth of
which he denies
Except for damages
Rule 4: Evasive Denial
When an allegation of fact is denied
It should not be done evasively
Should answer the point in substance
Thus, if it is alleged that he received a certain sum of money, it shall
not be sufficient to deny that he received that particular amount, but
he must deny that he received that sum or any part thereof, or else set
out how much he received.
Rule 5: Specific Denial
Every allegation of fact in the plaint
If not denied specifically or by necessary implication
Shall be deemed to be admitted except against persons under
disability
But in its discretion, the court may require the fact to be proved
otherwise than on admission r/w Section 58 of the Evidence Act.
Where the defendant has not filed his pleading, the court may
pronounce judgment on the basis of plaint, except for person
under disability
Court shall have due regard to the fact if he could engage a pleader
Decree shall be drawn up
If you don’t admit due to want of knowledge:-
Set-off
The reason why a set-off has been provided for under the CPC is to
avoid multiplicity of proceedings, and to enable the civil court to
make a final determination on the lis between the parties.
Rule 6
In a suit for recovery of money
Set-off must be of ascertained amount of money
Illustration e: A sues B for compensation on account of trespass. B
hold a promissory note for Rs. 1,000 from A and claims to set-off that
amount against any sum that A may recover in the suit. B may do so,
for, as soon as A recovers, both amount become ascertained.
The amount must be legally recoverable.
The amount should be recoverable by all the defendants
The amount should be recoverable against all the plaintiffs
Both the parties should fill the same character as they do in plaintiff’s
suit.
At the first hearing of the suit the defendant may file a written
statement claiming set-off
Effect of Set-off
The written statement shall have same effect as a plaint in a cross-
suit. (Thus court fee will have to be paid)
So as to enable the court to pass judgement on the original claim as
well as the set-off.
But it shall not affect the lien of the pleader on any amount awarded
as cost.
Doctrine of Relation-Back
For the purpose of Section 3(2)(b) of Limitation Act, set-off relates
back to the date of filing of the plaint.
This means that the set-off would be deemed to be filed on the date
the plaint was filed.
Example: Do again
01.01.2015: Barred
01.06.2015
01.12.2015
Filed suit on 01.02.2018
If the other party files a WS and Set-off on 01.02.2019
The set-off would relate back to the date of filing of the Plaint and thus
the limitation would be calculated from that date.
