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CIVIL LAW SYSTEM SUBSTANTIVE & PROCEDURAL ASPECTS
1. Introduction
Civii law is the law of the state, iaw of the land, law of the iawyers and law courts. In measuring civil liability the law attaches more importance to the principal of compensation than to that of fault. The civil iaw baring few exceptions takes no account of character of the offender or motive for the same. It also does not take account of probable or intended consequences but only of the consequences, which actually ensue. 1 The word civil is derived from ‘jus civile' of roman. The law is not a scattered mass isolated decisions or directives coming in piecemeal in the sovereign, it is intended to be an organic whole.2 The Civil Law thus deals with civil or private rights with remedy as contrasted with criminal laws where the state is involved. Civil Law is that body or branch of laws which every particular nation or state or city has established peculiarly for itself. The objective of civil law is to decide civil liability for an act or omission. Such liability is in various forms iike damages, specific performance, compensation and various other segments like property iaw, intellectual property law, civil aspects of the marital law etc.
2. JURISDICTION OF COURTS
The word jurisdiction is used in various contexts. It means legal authority, extent of power and limitation on such powers. It is a term of comprehensive import embarrassing every kind of judicial action. It means power and authority of the court to hear and determine a judicial proceeding and power to render particular judgement in question. In other words it is the right and power of the court to adjudicate the subject matter in a given case.
The jurisdiction is basically of 3 types. (a) Pecuniary (b) Territorial (c) As to subject matter The first and fundamental rule governing jurisdiction is that suit shall be instituted in the court of lowest grade competent to try it. In a case before Gujarat High Court a Panchayat employee challenged his suspension order by filing a suit in Civil Judge (J. D.). Under Section 32 of Bombay Civil Courts Act the jurisdiction of civii courts is not excluded. It was held that the suit was properly filed.**9 The pecuniary jurisdiction of a court depends on valuation of subject matter. Such valuation is made in accordance with the provisions of suit valuation Act. The pecuniaryjurisdiction of various courts is as under in State of Gujarat:
TYPE OF COURT JURISDICTION upto Rs.5,000/- Small Causes Court upto Rs.50,000/-Junior Division
Rs.50,000/- upto any amount for Senior Division
The rules governing territorial jurisdictions of the courts have been summarised below.
- The suits relating to recovery of immovable property or the sale or foreclosure or for determination of any right relating to immovable property should be instituted in the court within whose jurisdiction the property is situated. Where the property is situated within jurisdiction of different courts it can be instituted in any of the courts. Hence if properties are located within jurisdiction of 2 courts suit can be instituted in any of the court. The suits for compensation for wrong to person or movables can be instituted at the place where the wrong was done or defendant resides and carries on business.** The suit shall be instituted where the defendant resides or carries on business or where the cause of action, wholly or in part arises. The jurisdiction of court in matter of contract will depend on citus of the contract and connecting factor. Cause of action means every fact if traversed would be necessary for the plaintiff to prove in order to support his right to a judgement. It means a bundle of facte which taken together, gives plaintiff right to relief.** Lack of territorial or pecuniary jurisdiction is one of the most common defence raised by the defendants. Sometimes it is raised as a preliminary issue, with a view to prevent the court from assuming the jurisdiction. It is provided that the objection as to place of suing is not to be allowed unless such objection was taken in the court of first instance at the earliest possible opportunity and unless there is consequential failure of justice. The Supreme Court has held that objections as to territoriai jurisdiction can not be entertained before appellate court in absence of evidence of failure ofjustice.**! 5
3 ALL CIVIL SUITS TO BE TRIED BY CIVIL COURTS
The Civil Procedure Code stipulates that the courts shaii have jurisdiction to try all suits of a civil nature excepting suits of which cognizance is either expressly or impliedly barred. The onus of proving that the court does not have jurisdiction lies on the party who disputes the jurisdiction. The jurisdiction is decided by averments in the plaint and not on defence. The exclusion of jurisdiction of civil courts should not be readily inferred. It must be either explicitly expressed or clearly implied. 16 Whenever a right not existing earlier is created by a statute and the statute itself provides machinery for enforcement of right, here both the right and remedy are creation of statute and hencejurisdiction of civil courts is impliedly barred. Some examples where the jurisdiction of civil court is barred are narrated beiow:- Motor Vehicles Act. Special tribunal has the jurisdiction.
however the question is one purely of law and it relates to the jurisdiction of the court sanctioning something which is illegal, by resort to the rule of resjudicate a party affected by the decision will not be precluded from challenging the validity of the order.”**21 The principle of resjudicata applies only under following circumstances: (i) The matter directly and substantially in issue has been directly and substantially in issue in a formal suit between same parties or between whom they claim litigation under the same title. (ii) The matter is in the court competent to try such subsequent suite or the suits in which such issue has been subsequently raised and has been heard and finally decided. The word former suit means suit decided prior, irrespective of the date of institution. The competence of the court shall be determined irrespective of provisions as to right of appeal. The matter must be decided on merits i.e. the issue was alleged by one party and denied by the other. Any relief, which might and ought to have been made, ground of defence, is deemed to be pleaded. Any reliefs, which are not expressly granted, is deemed to be refused. The litigation has to be bonaflde, Provisions apply to execution of decree. Only issues heard, and finally decided are covered by the principal of resjudicata. The principal of resjudicata is one of convenience and not one of absolute justice and it should not be unduly conditioned and qualified bytechnical interpretations. Principle of resjudicata would come into play only when or matter directly and substantially in issue in the formal suit has been heard and finally decided on merits. If an erroneous decision has become final it will operate as resjudicata. The word ‘bar to suite' refers to express provisions of certain laws under which jurisdiction of civil courts is exclusively debarred. The specific statutes like MRTP Act, Administrative Tribunals Act, Railway Claims Tribunal Act etc creates special forum that has been vested with exclusive power and the jurisdiction to decide the matters. In such cases the jurisdiction of civil cases is exclusively barred.
5. TERRITORIAL JURISDICTION AND PLACE OF SUING The purpose of territorial jurisdiction is to ensure smooth and speedy trial of ttie matter with least inconvenience to the affected parties. Hence the suit can not be filed at any place depending on wish of the party. The court concern should have territorial jurisdiction. The territorial jurisdiction is conferred on a court by following factors:- (i) By virtue of the fact of residence of the defendant (ii) By virtue of location ofsubject matter within jurisdiction ofthe court. (iii) By virtue of cause of action arising within jurisdiction ofsuch court. The inherent lack ofjurisdiction can not be cured even by consent of parties, which means if the court does not have any jurisdiction at all, the parties can not subsequently confer it by an agreement. 6. PLAINT
The entire legal machinery under the Civil Law is set in motion by filing of plaint and hence plaint is the actual starting point of all pleadings in a case. Though the law has not laid down any tight jacket formats for plaints, its minimum contents have been prescribed.**23 The plaint shall contain the following particulars (i) Name of the court in which suit is to be filed. (ii) Name, description and place of residence of the plaintiff. (iii) Name, description and place of residence of the defendant so far it can be ascertained. (iv) Where the plaintiff or defendant is a minor or person of unsound mind statement to that effect. (v) Facts constituting the cause of action and when it arose. (vi) Fact showing that the court hasjurisdiction. (vii) Relief which the plaintiff claims. (viii) Where plaintiff has allowed a set off or relinquishes a portion of his claim, the amountso allowed for relinquishment. (ix) Statement of the value of the subject matter of the suit for purpose of jurisdiction and court fees. The court has power to reject the plaint on following grounds:
(i) Where it does not disclose the cause of action (ii) Where the relief claimed is under valued and plaintiff fails to correct the valuation within the time fixed. (iii) Ifthe relief is properly valued but insufficient court fee stamp is paid and the plaintiff fails to make good such amount. (iv) Where the suit appears to be time barred, from the statements in the plaint. (v) When the plaint does not disclose any cause of action.
It is not necessary to allege in the pleading the facts which the law' presumes in his favour. The pleading shall contain and contain only a statement in concise form of material facts on which the party pleading relies for his claim or defence, as the case may be, but not the evidence by which they are to be proved. Any condition precedent to the performance or occurrence of which is intended to be distinctly specified in the pleading, shall be mentioned.
7. NECESSARY PARTIES TO THE SUIT The Civil Procedure Code stipulates that the following persons may be joined as plaintiff: (a) Any right to relief in respect of or arising out of the same act or transaction or series of acts or transactions is alleged to exist in such persons, whether jointly, severally or in alternative. (b) If such persons brought separate suit common question of law or fact will arise.**
The following persons may be joined as defendants: (a) Any right to relief in respect of or arising out of the same act or transaction or series of acts or transactions is alleged to exist against such persons whetherjointly, severally or in the alternative and (b) If separate suits were brought against such persons, any common question of law or fact will arise.
summons may be issued to defendant to appear and answer the claim. Defendant to whom a summons has been issued may appear in person or by a pleader duly instructed or by a pleader accompanied by some person who is able to answer all questions. To expedite the filing of reply and adjudication of claim, the court may direct filing of written statement on date of appearance and issue suitable summons for that purpose. Failure to do so may result in Ex-parte judgement under order 8, rule 10. The provisions of substituted service have to be resorted when the summons is not served by normal process through the court bailiff. Where the court is satisfied that there is reason to believe that the defendant is keeping out of the way for purpose of avoiding sen/ice or that for any others reason the summons can not be served in ordinary way the court shall order summons to be served by affixing copy thereof in conspicuous part of the house. ** To expedite service of summons one more provision is relating to substituted service under which the court orders service by an advertisement in a newspaper, the newspaper shall be a daily newspaper circulating in the locality in which the defendant last resided or carried on business or personally worked for gain.**
Delay in service of summons is identified as one of the major reasons for delay in judicial proceedings. To avoid the delay, service of summons can be made simultaneously by registered post and also by normal court process. While allowing additional service is at the discretion of the court, but court can refuse the permission only if it considers it unnecessary to allow the same in circumstances of the case. **
9. APPEARANCE OP PARTIES The scheme of Civil Procedure Code envisages that, as far as practicable and possible the proceedings should not be conducted to the detriment of a party in his absence. At the same time, it can not be a party’s privilege not to appear and delay the proceedings.
On the day fixed in the summons the defendant is required to appear and answer and the parties shall attend the court unless the hearing is adjourned to a future day fixed by the court, if the defendant is absent court may proceed exparte. Where on the day so fixed it is found that summons has not been served upon defendant is consequence of failure of plaintiff to pay the court fee or postal charges the court may dismiss the suit. Where neither the plaintiff nor the Defendant appears the court may dismiss the suit. Such dismissal does not bar fresh suit in respect of same cause of action. **
If the defendant appears and plaintiff does not appear and the defendant does not admit the plaintiff’s claim wholly or partly, court shall pass order dismissing the suit. It defendant appears and admits part or whole of the claim the decree will be passed
accordingly. It is a serious matter to dismiss the plaintiffs suit without hearing him and that course ought not to be adopted unless the court is satisfied that justice so requires.** If the plaintiff shows sufficient cause reopening of the matter is mandatory. What is sufficient cause depends upon facts and circumstances of each case and the court should adopt liberal and generous construction which will advance cause ofjustice and hence restoration shall ordinarily not be denied.**
