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A Glimpse of the Code of Civil Procedure, 1908

The Code of Civil Procedure, 1908 is an act relating to the procedure of the Courts of Civil Judicature. It has 158 sections which are found in Preliminary and other XI Parts. It also has one Schedule. The First Schedule has LI (51) Orders and each of these Orders have several Rules in them. [Section 60 to 63 (relating to Attachment) read with Order XXI- Execution of Decrees and Orders and Order XXVI- Commissions (Rules 1 to 18) shall be discussed in another article.]

Order V – Issue and Service of Summons

When a suit has been duly instituted a summons may be issued to the defendant to appear and answer the claim on a specified day. But when the defendant has appeared at the presentation of the plaint and admitted the plaintiff's claim then no such summons shall be issued. Court may direct the defendant to file the written statement of his defense, if any, on the date of his appearance. A defendant may appear— (a) in person, or (b) by a pleader duly instructed and able to answer all material questions relating to the suit, or (c) by a pleader accompanied by some person able to answer all such questions. Every summons shall be signed by the Judge or appointed officer, and shall be sealed with the seal of the Court. Every summons shall be accompanied by a copy of the plaint or a concise statement. Court may by order require the personal appearance of the defendant and the plaintiff on the same day. No party to be ordered to appear in person unless he resides within the local limits of the Court's ordinary original jurisdiction or beyond such limit but less than fifty miles or less than two hundred miles where five-sixths of the distance between the place where he resides and the place where the Court is situate there is established public conveyance. Court may issue summons either for the settlement of issues or for final disposal of the suit but Court of Small Causes may issue summons only for final disposal of the suit. Keeping in mind the current business of the Court, the place of residence of the defendant, time required for service of summons and sufficient time to enable the defendant to appear and answer, the day for appearance is fixed. The summons to appeal and answer shall order the defendant to produce all documents in his possession relied on by him. Where the summons is for the final disposal of the suit, the defendant is directed to produce all witnesses upon whose evidence he intends to relay in support of his case. Where the defendant or his agent empowered to accept the service of the summons resides within the jurisdiction of the Court in which the suit is instituted the summons shall be delivered or sent to the proper officer to be served by him or one of his subordinates. Service of the summons shall be made by delivering or tendering a copy thereof duly signed and sealed. Where there is more than one defendant service of summons shall be made on each of them and if it is practicable service shall be made on the defendant in person, unless agent is empowered to accept service. In a suit relating to any business/work against a person who does not reside within the local limits of the jurisdiction of the Court, service of summons is proper when made on any manager/agent, who, at the time of service, personally carries on such business/work for such person within such limits. Where in a suit to obtain relief/compensation in respect of immovable property, service cannot be made on the defendant in person, and there is no agent empowered to accept the service, it may be made on any agent of the defendant in charge of the property. Service may be made on an adult member of defendant's family where the defendant is absent from his residence and within a reasonable time he is not likely to be found and where he has no agent empowered to accept service thereof. However a servant is not regarded as a member of the family. The serving officer shall require the signature of the person to whom the copy is so delivered. Where the defendant/his agent/other person refuses to sign the acknowledgement, or where the serving officer, after using all due and reasonable diligence, cannot find the defendant, and there is no likelihood of his being found at the residence within a reasonable time and there is no agent empowered to accept service of the summons on his behalf, nor any other person on whom service can be made, the serving officer shall affix a copy of the summons on the outer door or some other conspicuous part of the house in which the defendant ordinarily resides or carries on business or personally works for gain and thereafter return the original to the Court with a report stating that he has so affixed the copy, the circumstances under which he did so, and the name and address of the person by whom the house was identified and in whose presence the copy was affixed. The serving officer in all cases in which the summons has been served shall endorse/annex to the original summons, a return stating the time and the manner in which the summons was served, and the name and address of the person (if any) identifying the person served and witnessing the delivery of the summons. Where a summons is severed by affixture and if the return has not been verified by the affidavit of the serving officer the Court shall, and if it has been so verified, the Court may examine the serving officer on oath and may make further enquiry and shall either declare that the summons has been duly served or order such service. The Court shall if considers it necessary in addition to personal service also direct the summons to be served by registered post, acknowledgement due, addressed to the defendant/his agent empowered to accept the service, at the place where the defendant/his agent, actually and voluntarily resides or carries on business or personally works for gain. When an acknowledgement signed by the defendant/his agent is received by the Court or the postal article containing the summons is received back by the Court with an endorsement made by a postal employee to the effect that the defendant/his agent had refused to take delivery of the postal article containing the summons the Court shall declare that the summons had been duly served on the defendant : Where the summons was properly addressed, prepaid and duly sent by registered post, acknowledgement due, the Court shall declare that the summons had been duly served on the defendant even if the acknowledgement having lost or mislaid, or for other reason, has been received by the Court within thirty days from the date of the issue of the summons. Where the Court is satisfied that the defendant is avoiding service, or that for any other reason the summons cannot be served in the ordinary way the Court shall order the summons to be served by affixing a copy thereof in some conspicuous place in the Court-house, and also upon some conspicuous part of the house in which the defendant is known to have last resided or carried on business or personally worked for gain. Where 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 is last known to have actually and voluntarily resided, carried on business or personally worked for gain. Service substituted by order of the Court shall be as effectual as if it had been made on the defendant personally and shall fix such time for the appearance of the defendant as the case may require. A summons may be sent by the Court either by one of its officers or by post to any Court, other than a High Court, having jurisdiction in the place where the defendant resides. But where it relates to presidency towns of Calcutta, Madras and Bombay it shall be sent to the Court of Small Causes within whose jurisdiction it is to be served. On receipt of a summons the Court shall proceed as if it had been issued the summons and shall then return the summons to the Court of issue together with the record of its proceedings. Where the defendant is confined in a prison, the summons shall be delivered/sent by post or otherwise to the officer in charge of the prison for service on the defendant. Where defendant resides out of India and has no agent the summons shall be sent to him by post, if there is postal communication between the places. Where defendant resides in Bangladesh/Pakistan the summons may be sent for service to any Court (other than a High Court) in that country having jurisdiction in the place where the defendant resides: Where any such defendant is a public officer in Bangladesh/ Pakistan not being a defense personnel the summons may be sent for service on the defendant, to notified authority in that country. Where a Political Agent has been appointed, or a Court has been established in any foreign territory in which the defendant resides or caries on business than the summons may be sent to such Political Agent or Court, by post, or through the Ministry of External Affairs and if the Political Agent or Court returns the summons with endorsement of service than such endorsement shall be treated as evidence of service. Similarly Central Government may notify some officer of foreign Government to whom summons may be sent through the Ministry of External Affairs and served on the defendant. When the officer returns the summons with endorsement of service than such endorsement shall be treated as evidence of service. Where the defendant is a public officer other than a defense/railway officer the Court may send it for service on the defendant to the head of the office in which he is employed. Where the defendant is a defense officer, the Court shall send the summons for service to his commanding officer. Where a summons is sent to an officer in charge of prison, head of office or commanding officer he shall be bound to serve it and to return it under his signature, with the written acknowledgement of the defendant and such signature shall be deemed to be evidence of service. Where it is impossible to serve a full statement of such cause and of the steps taken to procure service, and such statement shall be deemed to be evidence of non-service. The Court may substitute for a summons a letter signed by the Judge or appointed officer where the defendant is of a rank entitling him to such mark of consideration. Such letter shall contain all the particulars of a summons and shall be treated as a summons. A letter so substituted may be sent to the defendant by spot or by a special messenger and where the defendant has an agent empowered to accept service; the letter may be delivered or sent to such agent [Order V Rules 1 to 30]

Order XVI – Summoning and attendance of witnesses

By the appointed date the parties shall present in Court a list of witnesses whom they propose to call to give evidence/produce documents and obtain summonses to such person for their attendance in Court. A party shall file an application stating the purpose for which the witness is proposed to be summoned. The Court recording reasons may permit a party to call by summoning or otherwise, any witness whose names are not mentioned in the list of witnesses if such party shows sufficient cause for omission to mention the name of such witness in the said list. Summonses may be obtained by the parties on an application to the Court/appointed officer. A party to the suit may without applying for summons bring any witness to give evidence or to produce documents. A party applying for a summons shall, before the summons is granted and within a fixed period pay into Court a sum of money which is sufficient to defray the travelling and other expenses of the person summoned and for one day's attendance. Where the person summoned to give evidence is an expert, Court may allow reasonable remuneration for the time occupied both in giving evidence and in performing any work of an expert necessary for the case. Where the summons is served directly by the party on a witness, the expenses shall be paid to the witness by the party or his agent. The sum so paid into Court shall be given to the person summoned if it can be served personally at the time of service of summons. Where Court/appointed officer finds that the sum paid into Court is not sufficient to cover such expenses/reasonable remuneration, the Court may direct further sum to be paid to the person summoned and in case of default in payment, may order such sum to be levied by attachment and sale of the movable property of the party or the Court may discharge the person summoned without requiring him to give evidence; or may both order such levy and discharge such person. Similarly expenses of witnesses detained for more than one day may be collected or attached. Every summons shall specify the purpose, time and place at which he is required to attend and any particular document, which the person summoned is called on to produce, shall be described in the summons with reasonable accuracy. When a person is summoned to produce a document, but not required to give evidence, and he causes such document to be produced instead of attending personally it shall be deemed that he has complied with the summons. Court has power to require persons present in Court to give evidence or produce document then and there in his possession or power. Court may on application permit a party to affect service of summons and deliver them on such person for service. The service of such summons shall be effected by or on his behalf duly signed and sealed by the Judge/appointed officer and the service shall be treated as if it is served by a serving officer. If such summons is refused or if the person served refuses to sign and acknowledgement of service or it cannot be served personally Court shall on application re-issue such summons to be served by the Court. Where summons is served by a party he shall not be required to pay the fees chargeable for service of summons. Every summons under this Order shall be served in the same manner as a summons to a defendant and the rules in Order V as to proof of service shall apply. Service shall be made sufficient time before the time specified in the summons for the attendance to allow him a reasonable time for preparation and for travelling to the place at which his attendance is required. Where a person fails to attend/produce document in compliance with summons, the Court shall examine on oath the serving officer/party/his agent if the certificate of the serving officer has not been verified by affidavit or may also examine on oath if the certificate is verified by affidavit. Where the Court has reasonable believe that such evidence/production is material and that such person has failed to attend/produce the document in compliance with summons or has intentionally avoided service, Court may issue a proclamation requiring him to attend to give evidence/produce the document at the specified time and place and a copy of such proclamation shall be affixed on the outer door or other conspicuous part of the house in which he ordinarily resides. At the time of issuing such proclamation or afterwards, the Court may issue a warrant with/without bail, for the arrest of such person, and may make an order for the attachment of his property not exceeding the amount of the costs of attachment and of any fine which may be imposed. The Court having regard to condition in life of the person and circumstances of the case may impose a fine not exceeding five hundred rupees where such person fails to appear or appears but fails so to satisfy the Court and may order attachment/sale of his property for the purpose of satisfying all costs and fine to such attachment. Where he pays the Costs and fine the Court shall order the property to be released from attachment. The provisions of attachment and sale of property shall be deemed to apply to any attachment and sale under this Order as if the person whose property is attached were a judgment-debtor. Court may cause a person who is not called as witness by a party to the suit to be summoned as a witness to give evidence/to produce any document in his possession on an appointed day and may examine him as a witness or require him to produce such document. Whoever is summoned to appear and give evidence in a suit shall attend at specified time and place and whoever is summoned to produce document shall attend to produce/cause it to be produced, at specified time and place. Unless Court otherwise directs a person who is summoned shall attend at each hearing until the suit has been disposed of. The person summoned is to furnish security to attend at the next or any other hearing or until the suit is disposed of and, in default of his furnishing such security, Court may order him to be detained in the civil prison. Where a witness, arrested under a warrant is brought before the Court in custody, cannot give evidence or produce document owing to absence of parties Court may release him on reasonable bail or other security for his appearance at specified time and place and, in default of his giving such bail or security, may order him to be detained in the civil prison. No witness shall be ordered to attend in person unless he resides within local limits of the Court or less than one hundred kilometers or five hundred kilometer where five-sixths of the distance between the resident and Court there is railway or steamer or other established public conveyance available. But where transport by air is available between the two places and the witness is paid the fare by air, he may be ordered to attend in person. Where any party to a suit present in Court refuses to give evidence/to produce any document then and there in his possession or power, the Court may pronounce judgment/order against him. Where a party to a suit is required to give evidence/to produce a document, the provisions as to witnesses shall apply to him. [Order XVI Rules 1 to 21]

Order XIX – Affidavits

When there is sufficient reason Court may order that (i) any particular fact(s) may be proved by affidavit or (ii) on some reasonable conditions set by the Court, the affidavit of any witness may be read at the hearing. But where party desires and can produce a witness for cross-examination then no such order shall be made to give the evidence of such witness by affidavit. Though evidence may be given by affidavit, but the Court may order the attendance in Court for cross examination of the deponent unless the deponent is exempted from personal appearance in Court. Affidavits shall be confined to facts which the deponent is able to prove by his own knowledge but after stating ground, statements of his belief may be admitted on interlocutory applications. The costs of every affidavit which shall unnecessarily set forth matters of hearsay or argumentative matter, or unless the Court otherwise directs, copies/extracts from document shall be paid by the party filing the same. [Order XIX Rule 1, 2 and 3]

Order XLVII – Review

Any person being aggrieved by i) a decree/order from which an appeal is allowed but not preferred, or where no appeal is allowed or ii) by a decision on a reference from a Court of Small Causes, may apply for a review of judgment to the Court which passed the decree/order. Review may be made only when the discovery of new and important matter/evidence which was not within his knowledge or could not be produced by him at the time when the decree/order was passed, or on account of some mistake apparent from record or for any other sufficient reason. Even if there is pendency of an appeal by other party a person who is not appealing may apply for a review of judgment except where the ground of such appeal is common to the ground of review or when he being respondent can present to the Appellate Court the case on which he applies for the review. Court may grant review or reject where there is no sufficient ground. Before granting review the Court shall give previous notice to the opposite party to enable him to appear and be heard in support of the decree/order and see that whether the alleged discovery of new and important matter/evidence etc is proved. The Judge(s) who passed the decree/order and continues to the Court and is not precluded by absence for a period of six months such Judge(s) or any of them shall hear the review application, and no other Judge(s) of the Court shall hear the same. Where two or more judges are equally divided the review application is rejected otherwise the decision of majority prevails. Order rejecting review is not appealable but an order granting review may be objected by an appeal. Where the application has been rejected for non appearance and on application sufficient cause for non appearance is proved then after giving notice to opposite party the Court may restore the application to the file and appoint a day for hearing. When an application for review is granted, a note thereof shall be made in the register. No application to review an order made on an application for a review shall be entertained. [Order XLVII Rule 1 to 9]

kiritynandi on July 11 2015 13:09:41

Very much enlightening. Sir, it would be more helpful for us it you make a notes of allied acts vis a vis its applicability in IT works. Sir, I mean to say e.g. which Rules of CPC are relevant to which sections of IT Act. Say, for service of notice which Rules of CPC are necessary to know etc.
Further, when I am studying Transfer of Property Act it comes to mind why should I study TP Act for working in IT Dept and what are its relevance? A comparative notes can be made by one who has command over both the Acts and in my knowledge it could be none other than you. Thank You, Sir.

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