PRELIMINARY TOPICS
Topic
1. Pleadings
a) Plaint
b) Written Statements
2. Parties to suit
Pleading:-
i) Pleadings are statements in writing drawn up and filed by each party to a case, stating what his contentions will be at the trial, and giving all such details as his opponent to know, in order to prepare his case in answer (P.C. Mogha).
There are two pleadings : The 'Plaint' & the 'Written Statement'. The C.P.C. defines pleadings (O.VI R.2) Every pleading shall contain, and contain only a statement in a concise form of the material facts, on which the party pleading relies for his claim or defense, as the case may be, but not the evidence by which they are to be proved.
According to Sri. P.C Mogha :
Drafting of pleading is an art, it requires a good knowledge of law and the skill of sorting out material facts from the whole bundle of facts and circumstances brought to the knowledge of the Advocate.
ii) Essentials :
a) Every pleading must state facts and not law :
Eg : The deft, is in possession of the mortgaged property and 'is liable to render accounts of income and expenditure'. (There is a statutory duty and hence, need not be pleaded)
b) Pleadings should have only material facts
The party must plead all material facts on which he intends to rely and must plead material facts only. These are 'facta probenda'
(Facts to be proved).
1. In a claim on a Promissory note, it is unnecessary to plead, that money was given because of the honesty of the promisor.
2. In denying, the receipt of any money taken as a loan, it is unnecessary to plead that the defendant is a very rich man and that he had never taken any loan from any body.
c) Pleadings should not contain the evidence, but only facts :
Eg: An Insurance company was defending the claims made by a party. The term of the policy was that it would become void if the insurer-died by his own hand'. In the written statement the Company had stated that policy holder was a moody fellow, that he had bought a pistol from a shop a few days before his death and that he had also written to his wife that he would kill himself. The court held that all this was evidence and hence should not be included in the pleadings (Written Statement). It was sufficient to say that "the policy holder died by his own hand".
d) Facts must be pleaded with simplicity, brevity and precision.
This rule is more easily said than done. As P.C. Mogha, points out, precision and brevity can be attained by experience and careful observation.
1. Simple words and short sentences should be used. Facts must be stated plainly and with precision. Use of pronouns must be avoided. The said defendant or the said plaintiff may be used often to avoid ambiguity. Similarly 'the said deed', the First-schedule property' etc may be used.
2. Dates, sums, numbers must be expressed in figures.
3. Chronological order must be followed.
4. Legal effects of documents must be briefly stated, without reproducing the document or quoting from it.
5. Intention, malice, knowledge etc., must be stated as a fact without setting out the circumstances.
6. The pleading should be signed by the parties and his advocates. It shall be verified at the foot to testify the sanctity of the fact stated.
Plaint (0.7, R.1) CP.C.
The plaint is the foundation of the Civil Case. Before drafting it 4 essentials are to be noted 1) Period of limitation (ii) Pecuniary or territorial jurisdiction of the court (iii) Statutory formalities before filing a suit (iv) Impleading all necessary parties.
Contents :
1) Headings : The name of the Court (Space for fixing Court - fee - stamps)
2) Title : Description of Plaintiff and Defendant
3) Body : States the material facts divided into paragraphs and numbered consecutively.
4) Relief - Claims or Amounts sued for
5) Valuation, court fee - paid
6) Jurisdiction of court, within period of limitation, etc..
7) List of documents, annexure
8) Signature and Verification
WRITTEN STATEMENT
Defence available to defendant in a Civil Suit (Essentials of W.S.) The written statement can be conveniently divided into following heads
1. The heading and title or formal portion
2. The body of the W.S.
a) Admission and Denial part
b) Additional pleas
c) Objection in point of law
d) Special defences and avoidance Verifications
1. The heading and the title :
The heading of the W.S. should be the same as that of the plaint. Then there should be the number of the suit. Title also should be the same as that of the plaint with the difference that if there are several plaintiffs, the name of the first plaintiff should only, be written with the addition of words 'and another' or 'and others'. After the title, the person on whose behalf the W.S. is filed should be shown. In some places, the words "The defendant states as follows" are used before the various paragraphs of the W.S., but this is not necessary. The rules about signature and verification of the W.S. should be carefully observed.
2. The body of the W.S. a) Admissions and Denials :
The defendant should take each fact in the same order in which it is alleged in the plaint and it should be either admitted or denied, or when the defendant has no knowledge of it, he may refuse to admit. General denial is not sufficient. A denial may be total or partial. When the denial is total, i.e., when the defendant totally and categorically denies the allegations in the plaint, the defence is said to be in form "traverse".
i) Dilatory pleas :
. Dilatory pleas are those which merely delay trial of suit on merits. But, pleas which go to the very root of the case are called peremptory plea, or pleas in bar.
ii) Objection in point of Law :
It is an objection which a defendant takes to the legal inference which is drawn by the plaintiff in his favour in the plaint. Ordinarily this is heard and decided at the time of trial, but the court should try that objection before proceeding with trial of other issues, if the case (or any part there of) can be disposed of on the decision of such objection.
iii) Special defence :
Order 8, Rule 2 contains the rule : which says that the defendant must rise, by his pleading, all matters which show the suit not maintainable, or that the transaction is void, or voidable in point of law, and all such grounds of defence, as for instance, fraud, limitation, release, payments, performance, or facts showing illegality etc. In a suit by a firm, if the defendant wants to plead its non-maintainability on the ground of the firm's nonregistration, it will not be sufficient to say that plaint does not allege that the firm is registered.
2. Pecuniary (Sns. 6 & 15) :
The civil courts have different grades to try suits of a civil nature. Small causes courts have Jurisdiction upto a fixed amount. However, High courts, District and Civil judge courts have unlimited pecuniary jurisdiction.
3. Subject matter:
The jurisdiction in civil matters is based on the subject matter as well.
i) Generally, money suits are confined to small causes courts upto a fixed amount. Matrimonial matters are to be initiated at the District Judges court. Various acts prescribe which court has jurisdiction. ;
ii) The suit is to be instituted where subject matter i.e., immovable property is situated.The general rule is that parties cannot create or oust the jurisdiction of the courts.Suit by or against a partnership FIRM order 30 Rules 1 to 10 C.P.C. deal with provisions to file a suit by or against a firm.
Partnership firms
1. Partners may sue or be sued in the name of the firm:
According to 0.30 R.I, any two or more persons claiming (or being liable) as partners, and carrying on business in India, may sue or be sued in the name of the firm. These persons should be partners of the firm at the time of accrual of the "cause of action". Further, any party to the suit, may apply to the court for a statement of names and addresses of the persons who were partners (at that time of accrual of cause of action) in such firm and this is to be furnished by the party and verified in such manner as the court may direct. All pleadings (plaint, written statement etc) may be verified or signed by any such person (partner). The suit is not affected, if there is a minor in the firm, or one who is not capable of suing or be used.
2. Partners' name and addresses:
When the suit is filed in the name of the firm, the defendant may in writing demand the names and addresses of all the partners and the plaintiff shall furnish the same to the court. If the plaintiff fails to so furnish, the court may stay all proceedings on such terms as it may direct. However, if the names and addresses are declared, the suit shall proceed, with the partners arrayed in the plaint. The proceedings continue in the name of the firm, but the names are to be entered in the decree of the court.
3. Summons : .
Provisions are made for service of summons. If persons are named in the cause title, the summons shall be served on any partner or partners or at the place of business as directed by the court. This is good service of summons. However, if the plaintiff has knowledge, at the time of filing the suit that the partnership firm has been dissolved summons will have to be served on every such partner of the said dissolved firm. Appearance is necessary, if the person is a partner. Otherwise, he may enter appearance under protest (Rule 8), stating that he was never a partner at any material time. The court decides whether that person was a partner or not. When the partners are sued in the name of their firm, they should make appearance, in their names but subsequent proceedings shall be in the name of the firm. Death : In case of death of a partner, it is not necessary to join the legal representative. But a legal representative has a right to apply to the court to be made a party.
Suits between partners:
R.9 provides for suits between partners of the same firm. Similarly, in case of two or more common partners in two firms, suits by one firm against the other may be filed.
Suit by a minor : (0.32 Rl to 16)
A minor or infant is regarded by law as of immature intelligence and discretion. Due to want of capacity and judgment, he is disabledfrom binding himself, except for his,»,own benefit. Order 32 is therefore specially made to protect the interests of minors. These provisions apply to persons of unsound mind. The objective is to see that a minor or unsound person is represented by a qualified person, to act on his behalf.
Suit:
Every suit by a minor should be filed in his name by a "next friend", "Minor" is a person who has not completed 18 years of age, if minor's property is under charge of court of Wards Act, the minority is upto 21 years. The cause title of the suit gives the title and description. "X,
minor, by his next friend Mr.. ..... " versus AB defendant. Suit filed, without next friend should be taken off the file, on hearing the objector – defendan
Appointment:
The court has powers to appoint (Rule 3), a "Guardian" for the suit, by issuing an order made on the application of the guardian. The guardian should file an application, with an affidavit verifying that he is a fit person and has no interest in the suit adverse to the minor i.e., he would act for the benefit of the minor. The court will appoint after giving notice to Father, but if he is not alive, to the mother if both are dead, to the guardian, if any, of the minor. Guardian should give his consent for appointment. The guardian so appointed continuous until he is terminated by removal, retirement, or death. If any person is not fit to be appointed as guardian, the court may appoint an officer of the court as guardian and his expenses shall be met from the property of the minor as justice and circumstances (Rule 3).
ii) If defendant appears and plaintiff does not, the court is bound to dismiss the suit.
iii) If plaintiff appears and defendant does not, the court is authorised either to postpone the hearing or proceed exparte. The order is applicable to hearing, before the trial begins. For subsequent stages suitable provisions are made in order 17.
ii) Joinder of defendants:
The rule is that all those persons may be joined as defendants when any relief claimed by the Plaintiff, arise out of the same act or transaction, and further, when there is any common question of law or of fact.
Eg.:
a) A, a passenger in a bus belonging to B is injured by a •collision between the bus and a truck of C. A sues B & C for damages for personal injury. As the transaction is the same and there is a common question of law B & C may be sued together.
1. A & B conspire and publish a libel against C. C may sue A and B together. If the above rule is not followed it may lead to misjoinder of defendants. Misjoinder of plaintiff or misjoinder of defendants or misjoinder of cause of action will not be fatal to the suit but, the plaint may be amended, and the Court may proceed further. If a necessary party is not joined, it amounts to non-joinder of parties.
Framing of suit in civil Court [ As amended in 1999.]
i) Order 2, Rules 1 to 7 C.P.C. have provided for "Frame of suit". The rule is : every suit should be framed so as to afford ground for final decision on the subjects in dispute. The objective is to prevent further litigation. Hence, as far as possible the framing should be complete by itself. e.g. In a partition suit, the plaint should be so framed as to disclose the whole partible property.[all properties to be partitioned]
ii) The plaintiff should include the whole of his claim, to which he is entitled as regards cause of action. He may relinquish a part of his claim, in which case he is estopped from claiming it (Rule 2). Where various reliefs are available in respect of the same cause of action he may claim for a few. If he has omitted a relief, he cannot claim, except with the permission of the court.
iii) Joinder of causes of action : Rule 3 :
a) Plaintiff may unite several causes of action against the same defendant or defendants jointly.
b) Further, if plaintiffs are jointly interested in the cause of action, they may sue jointly.
iv) For recovery of immovable property The plaintiff may include with the leave of the court:
i) mesne profits or arrears of rent
ii) damages for breach of contract
iii) claims on the same cause of action.
Exception : In a suit for foreclosure or redemption the party may claim possession of mortgaged property.
v) Rule 7 : All objections for misjoinder of causes of action should be taken by the defendant at the earliest time. Otherwise it is deemed to be waiver.
Procedure:
O.IV R 1 : The plaint should be filed to the Court with a duplicate copy.
If duly instituted, a summon is issued to the defendant to appear and answer the claim. He should file the written statement of his defence, if any, within thirty days from the day of institution of the suit as may be specified therein: But no summon is issued if defendant was present at the time of filing of suit and admits the claims.
If the defendant fails to file his written statement within the 30 days, the Court in its discretion may allow to file his W S on a day not later than 30 days from date of service of summons to him.
Issue of Summons and delivery
C P C amendment 1999 has made many changes in respect of issue and delivery of summons. The objective is to minimize delay and expedite the disposal of the .case. Under rule 9 the Court may issue summons and deliver the same to the plaintiff or his agent for service. ,
it will direct the plaintiff to present as many copies of the plaint on plain paper as there are defendants within two days from the date of such order along with requisite fee for service of summons on the defendants.
It may direct the summons to be served by
(i) registered post acknowledgement due or
(ii) by speed post or
(iii) High Court approved Courier Service or
(iv) by fax massage or
(v) by Electronic Mail service [ email] or
(vi) by such other means as the High Court may prescribe by rules. The summons is addressed to the defendant, to accept the service at the place where the defendant or his agent actually and voluntarily resides or carries on business or personally works for gain. Under rule 9A the Court can , in addition to, and simultaneously with the delivery of summons for service to the plaintiff, direct that summons to be served on the defendant or his agent. Rule 14. Provides for production of document on which plaintiff sues or relies along with the plaint.He should prepare a list of all such documents and shall produce it in Court with all the documents and a copy thereof, with the plaint. But, if he does not file any such document or a copy, it will not be admitted in his evidence. Exception: documents produced for the cross examination of the plaintiffs witnesses, or, handed over to a witness merely to refresh his memory.
Rule 18. 1A deals with the duty of defendant to produce documents upon which he relies for relief He should prepare a list of all such documents and shall produce it in Court with all the documents and a copy thereof, with the plaint. But, if he does not file any such document or a copy, it will not be admitted in his evidence. Exception: documents produced for the cross examination of the defendant’s witnesses, or, handed over to a witness merely to refresh his
memory.
Order of dismissal
If plaintiff or his agent has not sent the summons within 2 days to the defendant or he has not paid the court-fee or charges, the court shall make an order that the suit be
dismissed.
Recording of Evidence Amendments 1999
One important change in the C P C amendment Act 1999 is the procedure of recording of evidence made with a view to save the time of the Court.Recording of evidence is conducted in the following manner:
A. Examination in Chief of a witness shall be on affidavit;
B. The Cross Examination and Re-Examination of such a witness will be either taken by the Court or the Commissioner appointed by it;
C. 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;
D. The Commissioner has to return the evidence along with his report in writing to the Court;
E. The report of the Commissioner has to be submitted to the Court within 60 days of such appointment or within such further extended time as the Court may permit for reasons to be recorded in writing; Such evidence shall form part of the record of the suit
Written Arguments:
In addition to this the C P C Amendment Act of 2002 has made provisions for submission of written arguments in support of the case by both the parties separately .This is in addition to oral arguments with the permission of the Court. This helps in saving the valuable time of the Court
Exparte proceedings Rule 6 :
When the suit is called on, for the "first" hearing, Rule 6 provides that if the plaintiff appears and the defendant does not appear, the court may make an order to hear exparte
1) When summons has been served on the defendant.
2) and it is proved that it is so served.
The court must be satisfied that there was due service of summons on the defendant. "Service" does not mean by Regd. post. Hence, no exparte decree is made on that basis. The court weighs the merits of the suit even in exparte proceeding. Adjourned exparte hearing (0.9 R.7) : When the hearing exparte, is adjourned to a later date, the defendant may appear and file an application with affidavit and assign "good cause" for his non-appearance on that date, The court may issue suitable directions as to costs etc. He is then entitled to defend the suit. Non appearance of plaintiff (R.8): When the defendant appears and the plaintiff does not appear, the court may dismiss the suit. However, if the defendant admits any claims, the court may pass a decree on the basis of the admission. But in respect of other claims, if any, the court dismisses such claims. In such a case, the plaintiff is barred from filing a fresh suit R-9. But, he may file an application to set aside the dismissal by showing "sufficient cause" and the court at its discretion may set aside the dismissal order and allow the party to proceed with the suit. Notice should be served on the defendant, before making such an order under R-9. In case of non attendance of one or more of several plaintiffs or defendants, the court at the instance of the plaintiffs (or defendants) appearing as the case may be, permit the suit to proceed in the same way as all were present.
Attendance in person :
R-12 provides that where the plaintiff or defendant is to appear in person as per summons and absents without sufficient cause, the suit will be dismissed as per the Rules under order 9.
Setting aside exparte decree (0.9, R.13) :
0.9, Rule 13 is wide enough to cover every application to set aside exparte decree. The grounds are that summons was not "duly served", defendant was prevented by "sufficient cause or reason" from appearing, or that there was fraud in suppressing summons.
Application :
The defendant may file an application with affidavit to the court which passed the exparte decree. The court will make an order setting aside the decree, if the defendant satisfies that the summons was not duly served or he was prevented from appearing by "sufficient cause". The court imposes such terms as to costs and fixes a day to proceed with the case.
Limitations: ;
1. The defendant should make the application, within 30 days from the date of decree, or where the summons are not duly served, the period is 30 days from the date of his knowledge of the decree.
2. No decree should be set aside without notice to the plaintiff (Rule 14).
3. If the decree is of such a nature that it cannot be set aside as against such defendant only, it may be set aside against all defendants.
4. Mere irregularity ir. the service of summons, is no ground to set aside the decree, if the defendant, had notice of the date of hearing and had sufficient time to appear.
Sufficient cause :
It is interpreted liberally to do substantial justice when there is no negligence or inaction or want of bonafides of the defendant. A finding by the court on sufficient cause is mandatory. Such a cause depends on various facts and circum-stances of the case.
Effect: The effect of setting aside the exparte decree is that the parties are restored to the position they previously held. Hence, the court* proceeds from that stage. If decree is not set aside, it will be absolute and binding.
Revision : Under Sn. 151 C.P.C. revision will lie if the conditions are satisfied.
Suit dismissed for default.
Court appointment of Guardian
Death of a party (Order 22 : Rules 1 to 12) :
Provisions have been made in 0.22 Rl to 12 C.P.C. to cases of creation, transfer or devolution of interests in pending cases. The cardinal rule is that if the right to sue survives, the death of a party (plaintiff or defendant) does not cause the suit to abate. The suit or appeal can be represented by the heirs and legal representatives. If the right to sue does not survive, the suit ends. The general rule is that death of a party, marriage or insolvency of a party to the suit, pending in the court, will not abate, if the right to sue survives.
Rule 1 : If the right to sue survives, the Suit shall not abate on the death of plaintiff or defendant.
Rule 2 : Death of one of several plaintiffs or defendants : When there are several plaintiffs or several defendants and any of them dies, and the right to sue survives, the court shall make an entry on record and the suit continues between the surviving plaintiffs alone or against surviving defendants alone.
Rule 3 : Death of sole plaintiff or one of several plaintiffs : In such a case, if the right to sue survives to the sole surviving plaintiff, or the right to sue does not survive to surviving plaintiff alone - the court, on an application made in that behalf, shall allow
the legal representatives to be made a party, and the suit proceeds. However, if no application is made within the period of limitation, the suit abates so far as that dead plaintiff is concerned. Costs, if any may be recovered by defendant from the estate of the deceased plaintiff.
Rule 4 : Death of sole defendant or one or more of
several defendants.
i) When the sole defendant dies and right survives to legal representative he may be brought on record.
ii) When one of several defendants dies, and the right to sue does not survive to defendants alone, legal representatives may be brought on record.
iii) If no application is made to bring on record, the suit abates.
iv) However, the defendant may prove his ignorance or show sufficient cause for the delay and the court with due regard to the ignorance of the defendant, may allow the legal representatives to be brought on record.
Pleaders duty : It is the duty of the pleader, appearing on behalf of the defendant to inform the court about the death of the party. The court gives notice to the other party and allows the legal Reps, to be brought on record.
Marriage of female party: Rule 7 : This will not abate the suit. Hence, it may be continued and executed against her alone. However, if the husband is liable for debts of his wife, the decree may be, executed against the husband.
Insolvency Rule 8 : Insolvency of plaintiff will not abate the suit. The official receiver may continue but if he refuses to give security, the court on an application made by the defendant dismiss the suit.
Transfer of a suit (Sns. 22-25):
Sn. 22: C.P.C.: The general principle is that the plaintiff has a right to choose his own forum. However, if the suit is one which can be instituted in two or more courts and the plaintiff has instituted in one of them, the defendant, may make an application to the appellate court, to have the suit transferred to another court. He should give notice to the plaintiff before making the application. The time of making application is at the earliest opportunity and before such settlement of issues. The appellate court shall consider the objections of the parties and examine the totality of circumstances which indicate to the balance of convenience in favour of the applicant and decides in whichcourt the suit should proceed. The application lies to the Appellate court, when several courts are under its jurisdiction. But, if those courts are subordinate to several appellate courts, application should be made to the High Court to which the appellate courts are subordinate.
Sn. 24 : General power of transfer :
The High Court or District Court on motion by any party – but with notice and after hearing the parties or suo moto, at any stage, may transfer any suit, appeal or other proceeding pending before it to any competent court to try or dispose of. It.has the powers to withdraw any suit, appeal or proceeding pending in any court subordinate to it, and may try and dispose of or may. transfer to the competent court to dispose of the same. The grounds of transfer should be sufficient and the burden is on the applicant. If he has a genuine apprehension that he would not get justice from the court, or if transfer would be "convenient" to the parties and "would be cheap" - or if the balance of convenience was in favour of transfer - the court may, if satisfied with the reasons, transfer the suit.
Sn. 25 powers of Supreme Court:
On application filed with affidavit by a party before the Supreme Court, the Court after giving notice and hearing parties may make an order for transfer, if such an order would be necessary for the ends of justice. It may transfer any suit, appeal or proceeding from a High Court or Civil Court of a State, to another High Court or Civil Court.
"Costs follow the event" - Explained
Sn. 35 C.P.C. deals with costs of suits. According to it costs of the suit and incidentals thereto are determined by the court at its discretion. It has full power to determine to what extent the costs are to be paid by whom and from what property. It may give suitable and necessary directions in this regard. A court without jurisdiction may also determine costs.
Exception :
In case the court directs that "any cost does not follow the event" it should state its reasons. Costs : Mean expenses incurred by the party/The object is not to make any gain or profit to the party. It is not a bonus. They cost in determined by the court, but is subject to the conditions and limitations of law. Cost includes incidentals e.g. arbitration referred by court. Order : Order as to costs may be "costs reserved" "costs to follow the event", "costs to abide the result" etc. The court takes into account the length of trial, nature of questions involved, conduct of parties. The principle is costs follow the event.
Scope :
1. The successful party is entitled to cost if not guilty of misconduct. For harassment exemplary costs may be levied.
2. It does not depend on who wins or loses. Many facts shape judicial verdict.
3. Cost is not equal to what a litigant may actually spend.
4. Costs are disallowed for misconduct or for frivolous and vexations suits or for loss of time of the state.
5. Under Sns. 35 A, compensatory costs for vexations or false claims may be ordered to be paid to the objector who has put forward his defence. The maximum is Rs.3000/-
Rateable distribution Sn. 73 C.P.C
Sn. 73 C.P.C. provides for rateable distribution, among decreeholders Of the Assets of the Judgement debtor, held by the court. Earlier the rule was "first come, first serve, and this had led to malpractices and scrambles. To put an end to this, Sn. 73 was made to place all decree-holders on equal footing.
The objects are (1) to prevent multiple execution proceedings and (2) to secure equitable distribution of assets. This section provides for a cheap and speedy mode of execution. It is a rule of procedure.
Essentials:
The essential conditions are as follows :
i) The assets of judgement - debtor (J.D.) must be held by the court i.e., attached by the court.
ii) The decrees obtained by two or more decree holders, should be money-decrees and should be against the same J.D.
iii) The claimant must have applied for execution to the same court and before the court received the assets. He should not have obtained satisfaction of his decree.
iv) The cost of realisation, should be deducted before rateable distribution.
Distribution of proceeds:
When the immovable property of the J.D. is sold by the court, the sale proceeds shall be applied to meet:
i) cost of making sale
ii) amounts due under the decree
iii) interest and principal on encumbrances if any
iv) rateable distribution of moneys among all the eligible decree-holders.
Restrictions :
1. The right of the Govt. is not affected by the section.
2. The sale of immovable property by the court is subject to the mortgage or change, if any, on the property and hence, the purchaser gets the property subject to the said mortgage or charge. Of course, such a mortgagee or holder of charge, may waive and agree for reteable distribution with other decree-holders.
Revision : The High Court has powers of revision when the lower court has no jurisdiction or distribution is wrong.
Subsistence allowance:
0.21, R. 39 21 has provided for execution of decrees or orders. Provisions have been made in Rules 37 to 39, for the arrest and detention of the judgment-debtor (J.D.) in execution proceedings against him, before the execution court,
On an application with affidavit filed by the decree-holder, the court instead of issuing a warrant for arrest, issue a notice to the J.D,to show cause why he should not be committed to the civil prisonNotice is not necessary if the J.D. is making plans to abscond etc. The court on inquiry may release the J.D. on security or detain in custody of officer of the court. If warrant of arrest is issued, it is addressed to an officer appointed by the judge and specifies the amount to be paid by the J.D. and is signed by the judge. No arrest is to be made if the amount is specified. Otherwise, the officer may arrest the J.D. and bring him before the court "with all convenient speed". Condition to deposit subsistence allowance : One strict rule is that the decree-holder should make the deposit of amounts as the judge thinks sufficient for the subsistence of the J.D. until the JD is brought before the court. However, if the JD is committed to the civil prison, the court fixes the monthly allowance, as per prescribed scales. The decreeholder should deposit in advance in full on the first of every month. If not paid the JD will be released. Such amounts are deemed costs in the suit Out of Court Settlement or Alternate Dispute Resolution One important change made by the C.P.C. is in introducing alternate Dispute Resolution [ Sn 89.] This is taken from the United States where it has been a success thereby reducing the delay in civil litigations. Civil Courts are given the power to refer the disputes to:
Arbitration;
Conciliation;
Judicial settlement including settlement through Lok Adalat; or
Mediation.
In case the Court prefers arbitration, it invokes the provisions of the Arbitration and Conciliation Act and advices the parties to settle as per the Act.
In case the Court finds the conciliation is suitable,it will refer the two parties to Lok Adalat, in which case Sn 20 (1) of the Legal Services Authority Act, 1987 and all other relevant provisions will apply .
In case the Court thinks that Judicial settlement is suitable, it may refer to an institution or person and such institution or person shall be deemed to be a Lok Adalat and all the provisions of the Legal Services Act 1987 will become applicable. for mediation, the Court makes a compromise between the parties and follows such procedure as may be prescribed.
Direction: C P C Amendment of O. X.1A. Direction of the Court to opt for any one mode of alternative dispute resolution —After recording the admissions and denials, the Court shall direct the parties to the suit to opt either mode of the settlement outside the Court as specified in sub-section (1) of section 89. On the option of the parties, the Court shall fix the date of appearance before such forum or authority as may be opted by the parties.
