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CIVIL PROCEDURE CODE & LAW

OF LIMITATION
Paper 5
SEMESTER 5
th

CNLU, Patna


Dr. ANSHUMAN
Advocate, Patna High Court
Member, Bihar State Law Commission
Guest Faculty, Chanakya National Law University
Guest Faculty, State Judicial Academy, Bihar & Jharkhand
Standing Counsel,

Contact detail :- 9431045259; 9334525365
E-mail-id adv.anshuman@gmail.com
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Syllabus :- C.P.C. & Law of Limitation
A short historical survey of the conception of
civil procedure in India before the advent of
British.

Provisions of the code of civil procedure with
regard to suits, their institution, pleadings,
plaint, appearance and examination,
judgment, decree and execution.

Pursue civil litigation through the appellate
courts

Examining the corrective steps in Civil
Proceedings.



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Syllabus :- C.P.C. & Law of Limitation

Appellate litigation strategies and choice of grounds
for appeal

Revision litigation strategies and choice of grounds
for revision petition

Rules of C.P.C. Practice Relevant part of Civil court
& High Court Civil Rules

Drafting exercise (Major part of course) deal with
the Law of Limitation Throughout the course

Law of Limitation, Court Fee Act, Suit Valuation Act
applicable to Civil proceedings

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Syllabus :- C.P.C. & Law of Limitation
Execution of Decree

Different orders of court &
procedures laid down for it including
use of Code of Civil Procedure under
different statute.

Practical Problems including Ratio &
Obiter Searching

Detail Lecture Plan for Code of Civil
Procedure,1908 & Limitation Act

Sl. No. Lecture Number Name of Act/ Topic Remark
1. 3-5 lectures A short Historical survey
of the conception of Civil
Procedure in India before
the advent of British.
Civil Procedure prior to
British Period
2. 40-45 lectures Structuring of CPC &
Provisions of the Code of
Civil Procedure with
regard to suits, their
institution, pleadings,
plaint, W.S., appearance
and examination,
evidence, hearing &
judgment.
Definitions(S.2),
Jurisdictions (S.6,15-21 &
9), Stay of suits (s.10),
Resjudicata (S.11-13),
S.89 & O1 to O.20
3. 7-10 Lectures Pursue civil litigation
through the first
appellate courts
S. 95- 104, O41, 42 & 43
4. 5-10 Lectures Examining the
corrective/ incidental
steps in Civil Proceedings
at original, appellate &
execution level.
O22, 23, 39, 40 etc.
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Detail Lecture Plan for Code of Civil
Procedure,1908 & Limitation Act

Sl. No. Lecture Number Name of Act/ Topic Remark
5. 3-5 lectures 2
nd
Appellate
litigation strategies
and choice of
grounds for appeal
Sec.100 &
Substantial
question of Law
6. 3- 5 Lectures Revision, Review &
Reference
litigation strategies
and choice of
grounds
113, 114 & 115
O 47..
7. 3-5 lectures Execution
Proceedings
S. .. & O21
8. 3-7 lectures Rules of C.P.C.
Practice Relevant
part of Civil court
& High Court Civil
Rules
Civil Court Rules
High Court Civil
Rules
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Detail Lecture Plan for Code of Civil
Procedure,1908 & Limitation Act

Sl. No. Lecture Number Name of Act/ Topic Remark
9. 10-15 Classes Law of Limitation,
Court Fee Act, Suit
Valuation Act
applicable to Civil
proceedings
Limitation Act, 1963
Court Fee Act,
Suit Valuation Act,
10. Through out lectures Drafting exercise
(Major part of
course) deal with
the Law of
Limitation
Fundamental of
Pleadings,
interlocutory
applications,
incidental
applications
11. Misc. Matter If
time permits
Usability of CPC in
other laws where
Civil Rights are
involved.
Total Lectures 77- 107 lectures submission of
project & viva
Deduction of marks
if not on time
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LECTURE I
A short historical survey of the conception of civil
procedure in India before the advent of British.

Hindu Jurisprudence or Legal System (Vyavahara
Dharmasastra) is embedded in Dharma as propounded in
Vedas, Puranas & Smritis.

It is difficult to define Dharma but it has been explained to
mean that :-
It helps the upliftment and ensure the welfare of living
beings (Mahabharata)

It constitutes all affairs in the worlds (Taittiriya Samhita)

Dharma is the highest good. (Jaimini)

It sustains and ensure progress and welfare of all in this
world and eternal bliss (Moksha). (Madhavacharya)

Legal & Constitution History of India Vol.I by M.Rama Jois

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What do you mean by CPC
i.e.Code of Civil Procedure
Code of Civil Procedure means

Vyavahara Prakria Sanhita

Etymologically Vyavahara means

Vi + ava + hara

Various + doubts + removing

Removing of various doubts


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Origin of Vyavahara
The Ancient Hindu Jurists put emphasis on the causes for
dispute i.e. the evil action as said by them. The said evil action
they divided into three broad categories,
1. From mind, 2. From speech and 3. From the body.
Mind the instigator :- The sin takes its origin in mind in three
ways
1. Coveting the property of others.
2. Thinking what is undesirable, and
3. Adherence to evil doctrines. All the three resulted in following
heads
The evil verbal actions,
4. Speaking untruth,
5. Attacking another in abusive or stronger language,
6. Carrying tales against others, and
7. Talking ill of others.
The wicked bodily actions,
8. Taking what is not given,
9. Injuring living being, and
10. illicit intercourse.

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Classification of Vyavahara

Under ancient Hindu Text Vayahara has
been classified into two broad categories:-

One arising out of Wealth

Second arising out of Violence
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Vyavahara arising out of Wealth
1. Money Lending
2. Deposit
3. Invalid Gift
4. Partnership
5. Non payment of wages
6. Disobedience of Contract
7. Boundary Disputes
8. Sale without ownership
9. Revocation of Sale
10. Breach of Agreement
11. Law between Husband & Wife
12. Theft
13. Law of Inheritance
14. Gambling with dice
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Vyavahara arising out of Violence
1. Vakparushya (Defamation)

2. Dandaparushya (Assault, causing hurt
etc.)

3. Sahasa( include robbery, dacoity,
murder etc.)

4. Strisangrahana (Adultery & Rape)
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Vyavahara as Legal Proceeding
The Hindu jurists not only developed
substantive law applicable to Hindus but
also formulated side by side the adjective/
procedural law for the enforcement of
substantive law.

Vyavahara was invented to protect people
and to ensure rule of Dharma (law).

It is a method developed by the jurists for
enforcement of substantive law
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Administration of Justice
Justice through Courts
(Nayalaya Nayayaha)
Highest Court presided by King or Chief Justice at
Capital City (Presently Supreme Court of India &
High Court)

Lower Courts under Royal Authority, at town and
city, and (presently Civil Courts & Tribunals)

Peoples Court (Courts under Panchayati Raj Act)

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Highest Court
Sasita is the highest court presided by King himself or in his
absence by the chief Justice at Capital City.

If a party was not satisfied with the decision given by any court or
tribunal including kula( Gathering of family Council).

Court Hall is known as Dharmadhikaran( Hall of Justice)

Ashtami (8
th
day) & Chaturdasi (14
th
day) of every fortnight in the
full moon and no moon were to be holiday for Kings Court.

A third part of the day omitting the first eight part (1/8
th
part = 1
& hour) i.e. about 7.30 a.m. to 12 noon.

The Chief Justice used to preside in the absence of King.
The king used to take assistance by experts.

Opinion of Judges to be adhered during trial.
Assistance by Marchent

Kings Court can be assisted by learned Scholars (Amicus Curiae)
Smriti law and customary law binding on the king.
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Lower Courts under Royal
Authority
Pratistiha A court which is established at
a particular village or town presided by the
Judge appointed by King.

Apratistiha A mobile court, moving from
village to village presided by the judge
appointed by King.

Mudrita A court appointed by the King
and authorised to use Royal Seal
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Peoples Court
Kula Gathering of family councils It is an assembly
of persons belonging to the family or caste of the
litigants, functioning of the panchyatdars mandali to
decide dispute among those belonging to same family
or caste.

Shreni - Corporation of persons following the same
craft, profession or trade.

Gana Assembly of persons belonging to one place but
to different castes or followings different avocations.
Jurisdiction:-

Peoples Court has jurisdiction to decide all disputes
except those falling under the title Sahasa. Fine and
corporal punishment could only be inflicted by the King.
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Appellate Jurisdiction

Shreni can review the decision of Kula.

Gana can review the decision of Shreni

Judges (in Pratistitha/ Apratistitha) can
review the decision of Gana

King is the Highest Court of Appeal can
review the decision of any court and his
decision is final.


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Judicial Proceeding - (Nyaya Kramaha)
Under ancient Hindu text there are following
parts in a judicial proceeding:-

1. Purvapakasha Stating the case of
Plaintiff (Vadin).

2. Uttara - The written statement being
the reply or answer given by the defendant
(Prativadin).

3. Kriya The trial of the case by the Court

4. Nirnaya The judicial decision.
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How to write a Plaint (Pratijna)
A plaint should be :-
Brief in words

Rich in contents

Unambigious

Free from confusion

Devoid of improper arguments

Capable of traversed by the defendant

Set out the prayer sought against the opponent
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Contents of a Plaint
The country
The place (village etc.)
The situation (boundaries of the field etc. sketch)
The Caste/ Profession of parties
The name of parties
The dwelling place of the parties
The measurement & filed name if required
The name of father and grandfather of the parties
The enumeration of the former kings
Injury or loss caused by the defendants
Name and the thing claimed
Reason why the plaintiff submitted this case
Other necessary details if required
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Procedure for acceptance of
filing of a case
Before Filing any case examination of Plaintiff &
Complainant was necessary :-
The party filing the case should be asked the
following questions by the King or judges:-

What is your grievances?
What is the injury done to you?
By whom, where and at what time and why the
grievance or injury complained of was caused?

The answer given by the party was recorded if party
is in a position to state.

It is duty of judge to ascertain the facts and accept
the case.
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Characteristic of a good Plaint
A Good Plaint is
Free from faults of declaration
Capable of proof
Contains good grounds
Grounds are precise
Plaint is not self-contradictory
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A Plaint was fit to be rejected
If it is made out opposing the law or usage or
Rajashasan and suffers from multiplicity of rights under
different titles of law

It is devoid of material particulars of claim viz. Value,
description etc.

If it does not state that opposite party has done any
unlawful act or was not willing to do what was bound
to do in law.

If statements made in the plaint is self-contradictory so
as to make out no case for the plaintiff.

If grievances of the plaint is imaginary and does not
disclose any injury caused to plaintiff or violation of any
rule/ law
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Service to the Defendant
The notice of summon to opposite side be
served through the plaintiff if he choose to
do so.

The notice of summon was also through
Swapurusha whose duty is to enforce the
attendance of the opposite party at court,(
presently they are known as Process
servers)
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Pratyakalita (Amendment of declaration by
additional statement)
In the ancient Hindu text, there was provision for
amending his declaration if he felt that he has
omitted some particulars by mistake or omitted
to make any allegations.

But the amendment cannot be used to make out
an new case.

It the plaintiff forsakes his original claim and
makes out entirely a new case, the Plaintiff loses
his case.

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Types of plea by Defendant
The reply filed by the defendant is Uttara
(presently known as Written statement) may be
of four type find:-
1. Satyam Admission

2. Mithyam - Denial
This is false.
I do not know at all.
I was not present there at the time.
I was not born at the time.

3. Pratyavaskandanam Special Plea, for ex.
Confession & avoidance True it is that I received, but I
returned it/ obtained it as a gift.

4. Purvanyaya Former judgment =
Already decided
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Contents of Uttara (Written Statement)
The defendant should tender an answer conformable to the
plaint.
The characteristics of the defective Uttara (W.S.) are :-

Contradictory A reply which contains both admission and
denial.

Incomplete A reply for saying plaintiff was formerly
defeated by me
Here no exact case number, in this matter or in any other
matter etc. have not been described. So this statement is
incomplete.

Ambiguous In stead of saying maya dayam{It has to be
given by me}, it is stated maya adayam. {It
has not to be given by me.}

Irrelevant In reply such a statement has come which is
absolutely irrelevant to the case.

Inadequate The reply would not meet the point thoroughly
stated in the Plaint
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Appearance of Defendant
A defendant to whom notice is issued by
the court and who is able to appear, must
appear before the court


If defendant fails to appear, he is liable to
be fined being defendent on the subject
matter of the case.
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Grounds for defeat without trial
There are five grounds recognised by our ancient
Hindu text (Narad Smriti) to defeat without trial:-

1. Anyavadi A party who retorts to a totally
different plea than one pleaded already by the
plaintiff.

2. Kriyadvesi One who shuns trial.

3. Nopasthatha A man who fails to appear
before the court.

4. Niruttara One who have appeared before
the court, fails to reply the questions
asked i.e. remain silent.

5. Ahutavipalayi The person who absconds
after receiving summons.
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Adjournments
Plaintiff can seek adjournment if he was
unable to put forward his case due to
incapacity or lack of courage.

Defendant after appearing before the court
can seek adjournment on account of fear,
confusion, and other reasons.
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Appearance through Another

In the ancient text there are provisions for
appearance in a case through another
person named as Niyogi. This rule is also
present in O III Rule 3 C.P.C..

Niyogi Only a person well versed in the
substantive law and procedural law is
entitled to represent parties and take
remuneration for his services

There were provision for scale of fee
payable to Niyogi & also provision for
payment for misconduct by a Niyogi.
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Payment of Court Fee
Under ancient system (Smriti):
The payment of court fee had to be followed
the final decision of the court.
The defeated party was liable to pay the court
fee.
State collect court fee after final decision of the
case.

Under present system:
The payment of court fee has used to be paid
prior to admitting/ acceptance case.
The plaintiff is liable to pay the court fee.
State collect the court fee prior to filing of a
case.
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Pratyakalita
Fixing burden of proof
After the defendant files his reply (Uttara) to the plaint
(Pratijna) before the court, the Sabhyas (Judges) should
examine the contents of the pleadings and decide:-

1. The facts proposed to be established by the respective
parties, and

2. On which party burden of proof lies.

3. This stage of the suit was known as
Pratyakalitapadah

4. The party on whom the burden of proof lies should be
called upon the substantiate the whole of his
declaration by adducing evidence.
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TRIAL
Trial must be open and fair
For open and fair trial the king or court should do the following
works:-
The court or king should try suits as per the substantive law.
The court or king should never try cases or here the parties
(when he is alone).
Neither the court nor the king should conduct the trial in
secret.
Trial must begin with the party on whom the burden of proof
lay.
In general the parties themselves produce the witnesses but
when the witness refuse to come, summon be given to the
witnesses.
Provisions for imposing penalty for failure to give evidence.
Provisions for payment of subsistence allowance to witnesses.
Examination of witnesses to be taken place in the open court.
Every witness be put on oath.(At present system also the
witness has to be take oath as per provisions of section 4 of the
Indian Oaths Act 1969)
Examination of witness had to be taken place by the court or
King only. Party could not put question to the witnesses.
Note :- Examination in Chief of the witness and its cross examination was not peculiars to the
ancient Indian Judicial System. It is characteristics of English trial, whether civil or criminal.


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Jayapatra Judgment

It was document of Victory or judgment
It was based on evidence.
Contents of Jayapatra:-
Brief statement of plaint and the answer,
The evidence adduced by the parties,
The discussion on the Pratayakalit (issues involved),
The consideration of the arguments advanced by
the parties,
The law applicable to the case,
The opinion of Sabhyas (judges) or king
The decision given by the chief justice, other judges
or King, and
The royal Seal
First Law Commission
First Law Commission was set up in
the year 1835 for searching the
establishment of uniform law through
out India. By the order of the British
Parliament the first law commission
was established in which members
were
Lord Macaulay, Barrister, Chairman
Clarles Hay Cameron, member


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Constitution of Court after 1857
After the Revolt of 1857, a statute was
passed by the British Parliament called
Govt. of India Act by which the Govt. of
India was transferred from East India
Company to Her Majesty Queen Victoria.

In the year 1861 two acts came

High Courts Act 1861 &

Indian Council Act 1861
Second Law Commission
First Law Commission works under
Lord Macaulay, Barrister, Chairman
Clarles Hay Cameron, member
By the Second Law Commission
first set of codified laws came
The Code of Civil Procedure, 1859
The Limitation Act, 1859
The Indian Penal Code, 1860
The Code of Criminal Procedure, 1861


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The High Courts Act 1861
High Court at Calcutta for Bengal
High Court at Bombay for Bombay
High Court at Madras for Madras
High Court at Allahabad established in 1866
All these High Courts were established by
letters patent or Charter. They all are
known as Charted High Courts.

Patna High Court established in the year
1913

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Under Indian Council Act 1861
Following courts were established

Presidency Small Clauses Courts
Provincial Small Clauses Courts
District Courts
Subordinate judges Courts
Munsiffs Court