Civil Code Procedure Part-3 judicial interview questions

“Actus curiae neminem gravabit” which stands for “an act of the court shall prejudice no one”. Therefore, to ensure that none of the interests of the parties to the litigation are harmed, the court may pass an interim order.

Restraining order – Injunctions

The court issues a directive order, instructing the party to persist in a specific course of action until the trial’s conclusion. Such orders may be issued when discontinuing the act would result in harm to the other party. Additionally, the court has the authority to appoint a receiver for the property.

Q. Difference between civil procedure and criminal procedure?

Ans. There is a huge difference in the burden of proof in a criminal case vs. a civil case In civil procedure for the state to win a conviction, it must prove its case beyond a reasonable doubt, for a plaintiff to succeed in a civil trial, he must only prove his case by a preponderance of the evidence, a much lower burden. For more information, please see the related links below.

Q. What is the Summary Procedure?

1. Special Procedure under Order XXXVII of the CPC

Order XXXVII of the CPC introduces a specialized procedure for the trial of specific classes of suits. These include suits involving bills of exchange and promissory notes, as well as cases where the plaintiff seeks to recover a debt or liquidated demand in money from the defendant, with or without interest. The claims must arise from a written contract, an enactment, or a guarantee related to a debt or liquidated demand. High Courts, City Civil Courts, and Courts of Small Causes exclusively handle summary suits. Other courts may conduct summary suits, subject to any restrictions imposed by the High Court.

2. Essence and Procedure of Summary Suits

In summary suits, the court does not automatically grant the defendant the usual right to defend, as in an ordinary suit. Within 10 days from the date of receiving summons, the defendant must apply for leave to defend. The court will grant leave only if the defendant’s affidavit reveals substantial facts indicating a genuine defense, preventing frivolous or vexatious defenses. If the defendant’s affidavit fails to demonstrate a valid defense, the court will deny permission, and the plaintiff will be entitled to a decree.

The primary objective of the summary procedure is to expedite case resolution and prevent unjustified delays caused by defendants employing dilatory tactics without a genuine defense. This approach ensures a more efficient and swift dispensation of justice in relevant cases.

Q. What is a Miscellaneous Appeal?

Ans. Civil Miscellaneous Appeal is an appeal from any interlocutory order passed in civil proceedings (other than final Judgment). Civil Miscellaneous Appeal arises from an appealable order either under section 104 or under Order 43,Rule1

Q. What is thedifference between dismissal in default and exparte?

Ans. When suit dismissed due to the nonappearance of the plaintiff then it is dismissal for default. And when the plaintiff appeared and defendant did not appear then it is exparte.

Q. Can departure from the pleadings be possible?

Ans. Departure from the pleadings shall only by way of amendment

Q. What was the case of Salem Bar Association and others vs. Union of India and others (2005)?

The Justice Malimath Committee deemed the amendments made in 1976 insufficient and provided specific recommendations to expedite case disposal and alleviate the burden on courts. Pursuant to these recommendations, the Amendment Acts of 1999 and 2002 brought about changes to the Code. While the Code of Civil Procedure (Amendment) Act, 1999 was not notified, certain proposed modifications from this Act were either deleted or replaced through the Code of Civil Procedure (Amendment) Act, 2002, effective from July 1, 2002. These amendments encompass the following:

Various court procedures, including the issuance of summons and the pronouncement of judgment, had time limits set.
The Code saw the addition of Section 89, enabling the resolution of disputes outside the court.
Order 17 imposes restrictions on the number of adjournments that the court can grant.
Order 26 grants Court Commissioners the authority to record evidence.
Authorities have introduced measures aimed at streamlining proceedings, including the establishment of time limits for oral arguments, allowance for written arguments, and facilitation of appeals within the court that issued the decree.

The Supreme Court in Salem Bar Association and others v. Union of India and others (2005) 6 SCC 344 has held the amendments of the 2002 Act as constitutionally valid.

Q. Discuss the amendments to the Code of Civil Procedure?

Ans. The Parliament has amended the Code vide Civil Procedure (Amendment) Act, 2002. The amendment in Code was done in 1999 also, but the said amendments were not made effective. Both the amendment acts, which became effective from 1st July 2002, taken together intend to bring in virtually certain radical changes. After a long wait and struggle, the Central Government has managed to effect some very significant and path-breaking changes in the Code aiming to simplify the procedure and reduce the delays.

Some of the main highlights of the two amendment acts are:

Institution Of Suits

The Amendment Act of 1999 made it mandatory to prove all the facts mentioned in the plaint by way of an affidavit through the insertion of a new sub-section to section 26. Therefore, at the time of the institution of a suit, now the plaint will have to be accompanied by an affidavit.

Summons To Defendants

Section 27 of the Code provides for the issue of summons to the defendants in a suit to appear and answer the claim in the suit. Earlier, the section did not provide any time limit for the plaintiff to serve the summons on the defendants. That resulted in the suits instituted decades ago being still at the preliminary stage because the plaintiffs failed to serve a summons on the defendants. The Amendment Act of 1999 addressed this loophole by stipulating that the plaintiff must serve the defendants with a summons within 30 days of instituting the suit.

Alternate Dispute Resolution

This is one of the most radical changes introduced in the Code. There was no such provision earlier. According to a newly introduced section 89, the Courts have been given the power to refer the disputes to:

a) Arbitration;

b) Conciliation;

c) Judicial settlement including settlement through Lok Adalat;

d) Mediation.

The Court will endeavor in case of such disputes to formulate the terms of settlement between the parties and will also affect a compromise as per the prescribed procedure.

No Further Appeal/No Second Appeal

The amended provision has broadened the scope of Section 100A, imposing restrictions on the right of further appeal. Under the revised provision, the restriction now applies to an appeal arising from an original order or decree, which a single Judge hears and decides.

Similarly, Section 102 has undergone an amendment to expand its scope. As a result, one cannot initiate a second appeal from any decree when the original suit involves the recovery of money up to Rs. 25,000. The previous limit of Rs. 3,000, which was applicable exclusively to suits falling under the jurisdiction of Courts of Small Causes, has been expanded.

Issue And Service of Summons

The amendments made to Order V have brought in some sweeping changes to ensure a speedy trial. According to the new provisions of Order V:

The Defendant must file the Written Statement within 30 days of receiving the summons.
The Court may, for reasons to be recorded in writing, extend the aforementioned period of 30 days to 90 days, but not beyond.
It is now mandatory for every summons to be accompanied by a copy of the plaint
One of the most important changes brought in by the recent amendments is the change in the mode of delivery of summons by the Court.

The Amendment Act of 2002 brought about a change in the process of delivering summons. Previously, only the proper officer of the court had the authority to deliver summons. However, the amendment now specifies that either the proper officer of the court or court-approved courier services can deliver summons. Additionally, the court-approved methods for delivering summons include registered post, speed post, or courier services, and the expenses for such delivery are to be borne by the plaintiff. In addition, the Court may also permit on an application of the Plaintiff, for the Plaintiff himself to effect service of summons. In other words, the serving of summons can be speeded up.

Pleadings In General

The amendment to Order VI introduces a requirement for the person verifying the pleadings to provide an affidavit supporting the pleadings. Additionally, the court will not permit any application for amendment after the commencement of the trial unless the court determines that the party could not have raised the matter before the trial began.

Number Of Adjournments Curtailed

The newly inserted provisions now provide that a Court may grant adjournments from time to time. However, the catch is that a written application is the only basis on which adjournments can be granted. Besides, the Court should not grant more than three adjournments to a party to the suit.

Written Arguments: The Amendment Act of 2002 has made provisions for the submission of written arguments in support of one’s case. Earlier, there was no such provision in the Code and it provided only for oral arguments. Now, the court allows any party to the suit to submit written arguments, in addition to oral arguments, with the court’s permission. This measure should help in saving the valuable time of the Court.

Recording of Evidence:

Another very important change in the Code is in respect of the procedure of recording of evidence, this will have wide-reaching implications. According to the new rule, recording of evidence has to be conducted in the following manner:

Examination in Chief of a witness shall be on affidavit
The Court or the appointed Commissioner will conduct the cross-examination and re-examination of such a witness.
The Court or the Commissioner will then record the evidence in writing or mechanically in the presence of the Judge or the Commissioner, as the case may be
The Commissioner has to return the evidence along with his report in writing to the concerned Court
The Commissioner must submit the report to the concerned Court within 60 days of their appointment or within any further extended time that the Court may allow, provided the Court records the reasons for such extension in writing.
Such evidence shall form part of the record of the suit.

The objective of the Commercial Courts, Commercial Division, and Commercial Appellate Division of High Courts Act, 2015, was to expedite the resolution of commercial disputes by providing a comprehensive definition of “commercial disputes.” It also introduced amendments to certain provisions of the CPC, applicable specifically to Commercial Disputes of Specified Value. These amendments take precedence over any rules of the High Court or amendments made by a State Government to the CPC.

Pre-Institution Mediation and Settlement-

The Act mandates pre-institution mediations through a Central Government-authorized Authority, except for cases requiring urgent interim relief. The pre-institution mediation process must conclude within three months, extendable by two months with parties’ consent. Time spent in mediation doesn’t count towards the Limitation Act, 1963. An agreement reached in a settlement holds the same status as an arbitral award under the Arbitration and Conciliation Act, 1996.

Overriding Effect

Section 16 of the Act clearly states that this Act will have an overriding effect on the provisions of the Code of Civil Procedure, 1908 (hereinafter ‘Code’), and its amendments. It clearly mentions that in case of conflict between any rules of the Code, rules of jurisdictional High Courts, or any state amendments made to the Code, the provisions of the Act, as it amends the Code, will prevail.

In a landmark case of Axis Bank Ltd. v. Mira Gehnani, the Bombay High Court held that amendments introduced to CPC by the Commercial Courts Act are only applicable to Commercial Disputes of a Specified Value and not Commercial Disputes not of a Specified Value such as the present suit5.

Changes made to provisions of CPC

Costs – The costs ordered by the court in relation to a suit are governed by Section 35 of CPC. The said section provided discretionary powers to the court while determining the costs. The Act has substituted the said section to provide a general rule for payment of costs by the unsuccessful party. The Court may deviate from the general rule after recording the reasons in writing. The order for costs would include fees and expenses of the witnesses, legal fees, and broadly, any fees involved in t furtherance of the proceedings. The court must also consider the conduct of parties, determining if a party has partially or wholly succeeded, assessing whether they asserted frivolous claims or counterclaims, and evaluating if they unreasonably rejected an offer for settlement.

Procedure for Summary Judgment

The Act introduces a system of “Summary Judgment” through a new Order XIII-A in the CPC. Summary judgment is given by the court without recording oral evidence in the following scenarios6:

(a) the plaintiff has no real prospect of succeeding on the claim; or

(b) the defendant has no real prospect of successfully defending the claim; or

The applicant can seek summary judgment after serving a summons on the defendant but not after the court frames issues for the suit. Order XXXVII suits do not permit the filing of summary judgment applications. The applicant can back their application with documentary evidence. In commercial disputes, the court schedules a summary judgment hearing after giving a thirty-day notice to the respondent, who must reply within thirty days of receiving the notice.

Pleadings in a commercial dispute

Order VI of CPC deals with pleadings. The form of pleadings in commercial disputes will be as per High Court Rules or Practice Directions provided for such disputes. A new Rule 15A has been inserted, which pertains to verification of pleadings in a commercial dispute, in a prescribed manner (Statement of Truth). In the absence of verification, one cannot rely upon the pleadings as evidence. The party, one of the parties to the proceedings, or any person acquainted with the facts of the case and authorized by such parties must sign an affidavit to verify every pleading. If there is an amendment to the pleading, it also requires verification.

Delay in filing written statements

1. Extension of Time Period for Filing Written Statements under CPC

The statutory limit for filing a written statement under the Civil Procedure Code (CPC) is typically 90 days. However, the Act has extended this timeframe to 120 days. Notably, the amendments made to Order V of the CPC, which deals with the issuance of summons, and Order VIII, which pertains to the filing of written statements by defendants, reflect these changes.

2. Revised Procedure for Disclosure, Discovery, and Inspection of Documents

The Commercial Courts, as per Order XI of the CPC, traditionally governed the procedure for discovering and inspecting facts through interrogatories. The Act has introduced significant modifications to this order, expanding its scope to encompass disclosure, in addition to discovery and inspection of documents.

Under the updated provisions, parties must submit a comprehensive list of all relevant documents, along with photocopies, at the time of filing the plaint or written statement. This list should specify the current possession of these documents (whether with the plaintiff, respondent, or any other party), accompanied by a sworn declaration confirming that no additional documents, beyond those filed as photocopies, are in their possession. The court strictly prohibits parties from relying on any undisclosed documents without its permission. Furthermore, the Act empowers the court to impose exemplary costs on a party that willfully, unreasonably, wrongfully, or negligently fails to disclose all pertinent documents related to the lawsuit.

Electronic records

The provisions of the Indian Evidence Act of 1872 and the Information Technology Act of 2000 have already recognized the evidentiary value of electronic records. The Act has incorporated the relevant provisions providing procedural rules in respect of the same under the new Order XI of the CPC.

Written arguments

Order XVIII of the CPC deals with the hearing of suits and examination of witnesses, including provisions related to written arguments. The Act has introduced new provisions in this Order, mandating parties to submit concise written arguments under distinct headings within four weeks of commencing oral arguments. Parties may file revised written arguments within one week of concluding the arguments. Previously, there was no stipulated time restriction for such submissions.

The Act has inserted new Rules in Order XIX of the CPC, supplementing the existing procedure concerning affidavits. Granting authority to the courts empowers them to control the evidence by deciding issues requiring evidence and determining the manner in which they record such evidence. The Commercial Courts, in particular, hold the discretion to exclude evidence that parties might have otherwise presented. They have the authorization to redact or reject any affidavits that, in their judgment, do not qualify as admissible evidence.

The time period for pronouncing judgment

Rule 1 of Order XX of the CPC mandates that the court must pronounce judgment within a maximum period of 60 days from the date of concluding hearings. The Act has set a maximum time frame of 90 days, starting from the date of concluding arguments, for the pronouncement of judgment.

Case Management hearing

For the first time in India, the Code of Civil Procedure (CPC) has incorporated a new Order, Order XV-A, introducing an international practice of case management hearings. This empowers the Court to establish a timeline and schedule dates for the proceedings of a matter.

The court must conduct the first Case Management Hearing within four weeks from the date of filing an affidavit of admission or denial of documents by all parties to the suit. The court mandates the closure of arguments within six months from the initial Case Management Hearing.

The Order expressly prohibits entertaining adjournment requests for Case Management Hearings solely based on the non-appearance of counsel. However, if the defendant makes such applications in advance, the court will accept them upon payment of costs.

Failure to comply with Case Management Hearings may lead to cost payment as a remedy, but it may also result in forfeiting the party’s right to continue the suit. In cases of willful non-appearance, the Court retains discretion to dismiss the plaint.