Introductory of Code of Civil Procedure, 1908

By Mahamud Wazed
Synopsis

1. Introduction

2. Civil procedure & its brief history

3. General concept of Procedural Law and Substantive Law

3.1. Substantive Law

3.2. Procedural or Adjective Law

4. Whether the Code of Civil Procedure is exhaustive?

5. Nature of Civil proceedings

a. adversarial process

b. Expression of civil proceedings

c. Regulations

d. Nature of civil suit

6. Suit

a) General Civil Suit

b) Special Civil Suit

7. Miscellaneous Case

a) Independent Misc. Case

b) Dependant Misc. case

8. Civil liability

9. Civil Law & Criminal Law

10. Court

11. Fact

12. Evidence
13. Document

14. Facts in issue

15. Relevant

16. Parties

17. Plaintiff

18. Defendant

19. Proforma defendant

20. Minors and Civil Actions

21. Mesne profits

22. Cause of Action

23. Code of Civil Procedure at a Glance

1. Introduction
A law practitioner should know the following matter; What is law? Where is law? How to find
out the law? Where you should go to find out the better remedy? How to read the law? Law
should be read repeatedly. How to apply the law? And in order to practice the civil matter, a law
practitioner should go through the following laws:
1. The Code of Civil Procedure.
2. Civil Rules and Orders.
3. Civil Suits Instruction Manual.
4. The Civil Court Act.
5. The Court Fees Act.
6. The Suit Valuation Act.

2. Civil procedure & its brief history

Law of civil procedure consists of the rules by which courts conduct civil trials. “Civil trials”
concern the judicial resolution of claims by one individual or group against another and are to be
distinguished from “criminal trials,” in which the state prosecutes an individual for violation of
criminal law. Civil procedure is the body of law that sets out the rules and standards that courts
follow when adjudicating civil lawsuits (as opposed to procedures in criminal law matters). Prior
to 1859, there was no uniform law of civil procedure. The Civil Procedure was first introduced in
1859. It was substituted by another Code enacted in 1877. The Code enacted in 1877 was
replaced by the Code enacted in 1882 and this code was also substituted by the present code in
1908.

3. General concept of Procedural Law and Substantive Law

Laws can be divided into two groups. Following these—Substantive Law and Procedural or
Adjective Law.

3.1. Substantive Law

The function of substantive Law is to define, create or confer substantive legal rights or legal
status or to impose and define the nature and extent of legal duties.

Example: i). Penal Law;

ii). Law of Contract;

iii). Law of Property; etc.

3.2. Procedural or Adjective Law

The Function of procedural law is to provide the machinery or the manner in which the legal
rights or status and legal duties may be enforced or recognized by a court of law or other
recognized or properly constituted tribunal.
Example: i). Civil Procedure Code;
ii). Criminal Procedure Code; etc.
The distinction between the substantive and procedural law is not an always easy and clear-cut.
The same law may be procedural as well as substantive.
Example: Evidence Act; etc.

4. Whether the Code of Civil Procedure is exhaustive?

It is necessarily assumes that the Code of Civil Procedure is not exhaustive. Section 151 of the Code of
Civil Procedure is relevant in this connection. S. 151 stated that, Nothing in this Code shall be deemed to
limit or otherwise affect the inherent power of the Court to make such orders as may be necessary for
the ends of justice or to prevent abuse of the process of the Court. But this Code is to be treated all
complete of itself and exhaustive of the matters dealt with therein.1 The Code binds all courts so far as it
goes and is exhaustive with regard to matters specifically dealt with by it.2

5. Nature of Civil proceedings

a. adversarial process

1
Gokul Vs. Padman, ILR 29 Cal. 707(PC)
2
Hukum Chand Vs. Kamalananda, ILR 33 Cal. 927.
The civil litigation process in Bangladesh is essentially, adversarial or accusatorial in nature meaning that
the whole process is a contest between two parties. Here two parties mean Plaintiff and Defendant. In
this process of civil litigation the court has non partisan role.

b. Expression of civil proceedings

The expression ‘Civil Proceeding’ covers all proceedings in which a party asserts civil rights conferred by
a civil law. Civil justice consists in the enforcement of civil rights while criminal justice consists in the
punishment of wrongdoers.

c. Regulations

All civil proceedings in Bangladesh are regulated under the Code of Civil Procedure, 1908, unless
otherwise excluded. Apart from this code there are more laws involved with the civil proceedings, such
as Civil Suits Instruction Manual, Civil Rules and Orders.

d. Nature of civil suit

Suit of civil nature means a suit where right to property or office is contested.

6. Suit

The case which is presented by submitting plaint before a competent civil court is called suit. ‘Suit’
ordinarily means ‘a civil proceeding instituted by presentation of a plaint. Thus every suit is commenced
by a plaint.3 And when there is no civil suit there no decree.4 Suit may be catagoriesed into two:

a) General Civil Suit; The suits regarding right to property or office, which is in civil nature and has to
file in civil court, these are general suit. e.g. Suit for declaration of title, permanent injunction, etc.

b) Special Civil Suit; e.g. Artha Rin Adalat Case, Matromonial Cases, Administrative Tribunal Cases,
Writ Petitions, except writ of Haveous Corpus, etc.

Special Civil Court will prevail over theGeneral Civil Court. Purely religious matter cannot be tried by the
civil Court but the when the religious matter relates with post, then the Civil Court may entertain the
suit.

7. Miscellaneous Case

3
Jagdishwar Shahi Vs. Surjan Singh Pal, AIR 1977 All 554, Venkata Vs. Venkata (1899) 22 Mad. 256, Vpadhya Vs.
Persidh Singh (1896) 23 Cal. 723; Ram Kirpal Vs. Rup Kuari (1884) 6 All. 269, 274, 11 I.A. 37; Hansraj Vs. Dehradun
Electric Tram way Co. Ltd. 54 All 1067 (PC)
4
Minakshi Vs. Subranranaya, (1888) 11 Mad 26, 35, 14 I.A. 160; Datta Apparad Machale Vs. Digambar Govinda
Shendge (1968) A. Bom. 391, 70 Bom. L.R 86.
The case which is instituted to a competent court of jurisdiction by filing an application is called a
Miscellaneous Case. CRO vol.1, R. 774.Misc. case may file by way of petition or application. It also may
be catagorised into two:

a) Independent Misc. Case

Independent Misc. Case as good as suit; e.g. Sec 24 of NAT Act, Sec 96 of SAT Act.

b) Dependant Misc. case

It is also called off suit. This type of misc. case originated from other suit.e.g. staty of suit, abatment of
suit, etc.

8. Civil liability

Civil liability gives a person rights to obtain redress from another person e.g. the ability to sue for
damages for personal injury. There is also the right to obtain an injunction. For there to be an award of
damages, the injured party has to have suffered an actual loss, be it personal injury, damage to
property, or financial loss. The burden of proof is "the balance of probability" which is much lower than
for criminal matters.

9. Civil Law & Criminal Law

Definition

Civil law deals with the disputes between individuals, organizations, or between the two, in which
compensation is awarded to the victim. Criminal law is the body of law that deals with crime and the
legal punishment of criminal offenses.

Purpose

To deal with the disputes between individuals, organizations, or between the two, in which
compensation is awarded to the victim.

To maintain the stability of the state and society by punishing offenders and deterring them and
others from offending.

Case filed by

Private party

Government

Dicision

Defendant can be found liable or not liable, defendant is convicted if guilty and acquitted if not
guilty.
Standard of proof

Claimant must produce evidence beyond the balance of probabilities.

"Beyond a reasonable doubt".

Burden of proof

Claimant must give proof however, the burden may shift to the defendant in situations of Res Ipsa
Loquitur (The thing speaks for itself). "Innocent until proven guilty": The prosecution must prove
defendant guilty.

Type of remedy

Compensation (usually financial) for injuries or damages, or an injunction in nuisance.

A guilty accused is subject to Custodial (imprisonment) or Non-custodial punishment (fines or

community service). In exceptional cases, the death penalty.

10. Court

“Court” includes all Judges and Magistrates and all persons, except arbitrators, legally authorized to
take evidence.5

11. Fact

“Fact” means and includes6

1) anything, state of things, or relation of things capable of being perceived by the senses,
2) any mental condition of which any person is conscious.

12. Evidence

“Evidence” means and includes7

1) all statements which the Court permits or requires to be made before it by witnesses, in relation
to matters of fact under inquiry; such statements are called oral evidence;
2) all documents produced for the inspection of the Court, such documents are called
documentary evidence
13. Document

5
S. 3 of the Evidence Act, 1908
6
Ibid
7
Ibid
“Document” means any matter expressed or described upon any substance by means of letters, figures
or marks, or by more than one of those means, intended to be used, or which may be used, for the
purpose of recording that matter.8

Illustrations
A writing is a document;

Words printed lithographed or photographed are documents;

A map or plan is a document;

An inscription on a metal plate or stone is a document;

A Caricature is a document.

14. Facts in issue

The expression “facts in issue” means and includes any fact from which, either by itself or in connection
with other facts, the existence, non-existence nature or extent of any right, liability, or disability,
asserted or denied in any suit or proceeding, necessarily follows.

15. Relevant

One fact is said to be relevant to another when the one is connected with the other in any of the ways
referred to in the provisions of this Act relating to the relevancy of facts.

16. Parties

Civil lawsuit involves disputes between two individuals, groups or corporations/organizations are called
Parties. The terms “parties” means parties to the suit i.e., the plaintiff and defendant.9 Thus an
application by a third party, who is stranger to a suit, is not a party.

17. Plaintiff

The party who initiates a lawsuit by filing a complaint with the clerk of the court against the
defendant(s) demanding damages, performance and/or court determination of rights.

18. Defendant

The person defending or denying; the party against whom relief or recovery is sought in an action or
suit, or the accused in a criminal case.

In every legal action, whether civil or criminal, there are two sides. The person suing is the plaintiff and
the person against whom the suit is brought is the defendant. In some instances, there may be more
than one plaintiff or defendant.

8
S. 3 of the Evidence Act, 1908
9
Kanji Itirgibhal Vs. Jivaray Dharamshi, AIR 1976 Gaj 152; Venkata Reddy Vs. Pethi Reddy, AIR 1963 (SC) 992.
19. Proforma defendant

A proforma defendant is a defendant named as a matter of formality, who typically has no direct
responsibility for the harm alleged, but shares an interest with other defendants, such as being a co-
owner of property or successor in interest. For example, a co-owner named on a deed or an heir who
inherits property may be named as a pro forma defendant.

20. Minors and Civil Actions

Minors (under 18) cannot sue nor be sued directly. Thus, minor must have a representative called a next
friend who will take civil case to court on minor’s behalf. As well, if minor is sued, court will appoint an
adult, usually parent, to act as litigation guardian (guardian ad litem).

21. Mesne profits

Mesne profits may be defined as the profits or other pecuniary benefits, which one who disposes the
true owner receives between dispossesion and the restoration of possession.Therefore mesne profits
corresponds to the profits which the person in wrongful possession is receiving or might receive with
due diligence for the wrongful occupation of property. Mesne profits are defined under Code of Civil
Procedure as follows:

“Mesne profits” of property means those profits which the person in wrongful possession of such
property actually received or might with the ordinary diligence have received therefrom, together with
interest on such profits but shall not include profits due to improvement made by the person in
wrongful possession.10

From the analysis of the above stated definition on can conclude that “Mesne profits” are the profits,
which the person in unlawful possession actually earned or might have earned with the ordinary
diligence. According to Section 2(12) a person becomes entitled to mesne profits only when he has right
to obtain possession but another person whose occupation is unauthorized keeps him deprived of that
possession. The first and foremost condition for awarding mesne profits is unlawful possession of the
occupant of the property. The section further provides that Mesne profits also include interest on such
profits. However it explicitly excludes any profit earned due to improvement in the property made by
the person in unlawful possession of such property.

In another word “when damages are claimed in respect of wrongful occupation of immovable property
on the basis of the loss caused by the wrongful possession of the trespasser to the person entitled to the
possession of the immovable property, these damages are called mesne profits”. In order to get mesne
profit, the plaintiff must prove that he is the owner of the property11 and the defendant is in the
wrongful possession thereof.

10
R. 2(12) of the CPC, 1908
11
Khuda Baksha Vs. Municipal committee, 1992 SCMR 941.
22. Cause of action

Cause of action means every fact which it would be necessary for the plaintiff to prove, if traversed, in
order to support his right to the judgment of the court.12 However after arising cause of action, the
victim will make him prepare to go to civil court for filing a plaint. Unless, the victime has any specific
cause of action, he cannot file any suit in a civil court. A plaint shall be rejected where it does not
disclose any cause of action.13

23. Code of Civil Procedure at a Glance

1. The Code of Civil Procedure enacted in 1908

2. This Act may be cited as the Code of Civil Procedure, 1908.
3. It shall come into force on the first day of January, 1909.
4. It extends to the whole of Bangladesh.
5. It has total 11 parts, Sections 155, Orders 50, rules almost 600.
6. Pecuniary Jurisdiction: S. 6
7. Courts to try all civil suits unless barred: S. 9
8. Stay of suit: S. 10
9. Res Judicata: S.11
10. Court in which suits to be instituted: S.15
11. General power of transfer and withdrawal of the suit: S. 24
12. Institution of suits: S. 26
13. Transfer of decree: S. 39
14. Court by which decree may be executed: S.38
15. Arrest and detention :S. 55
16. Property liable to attachment and sale in execution of decree: S.60
17. Appeal from original decree: S. 96
18. Orders from which appeal lies: S.104
19. Powers of Appellate Court: S. 107
20. Reference of High Court Division: S. 113
21. Review : S. 114
22. Revision: S. 115
23. Power of Supreme Court to make rules: S. 122
24. Exemption of certain women from personal appearance: S.132
25. Exemption of members of legislative bodies from arrest and detention under civil process: S.
135A
26. Application for restitution: S.144
27. Inherent powers of Court : S.151
28. Amendment of judgments, decrees or orders: S.152
29. Parties to suits: Or. 1
30. Frame of suit: Or. 2

12
State of Madras Vs. C.P. Agencies. AIR 1960 SC 1309; A.K. Gupta & Sons Ltd. Vs. Damodar Vallery Corpn
AIR 1967 (SC) 96, Ganesh Trading Co. Vs. Moji Ram (1978) 2 SCC 91; AIR 1978 (SC) 484. A.B.C. Laminart (p)
Ltd. Vs. A.P. Agencies, (1989) 2 SCC 163; Bloom Dekor Ltd. Vs. Subhash Himattas Descai, (1994) 6 SCC 322, p-
328, Alchemist Ltd Vs. State Bank of Sikkim, (2007) 11 SCC 335; AIR 2007 SC 1812; Laxman Prasad Vs. Prodigy
Electornics Ltd. (2008) 1 SCC 618.
13
Or. 7, R-11 of the CPC, 1908
31. Institution of suits: Or. 4
32. Issue of summons: Or. 5
33. Pleadings: Or. 6
34. Plaint: Or. 7
35. Written Statement: Or. 8
36. Appearance & nonappearance: Or. 9
37. Adjournment: Or. 17
38. Affidavits: Or. 19
39. Judgment & Decree: Or. 20
40. Execution of decree & orders: Or.21
41. Death, Marriage& Insolvency of parties: Or. 22
42. Suits by Paupers: Or. 23
43. Interpleader : Or. 35
44. Arrest & Detention before judgment: Or. 38
45. Temporary injunction & Interlocutory order: Or. 39
46. Appoinment of receiver: Or. 40
47. Appeals from original decree: Or. 41
48. Appeals from order: Or. 43
49. Reference: Or. 46
50. Review: Or. 47
51. Small Causes Courts: Or. 50
52. Bail in CPC: R. 18, Or. 16
53. Misc. Case : CRO vol.1, R.774, Total 74 kinds of this case.
54. Execution court cannot go beyond decree but it is possible only the following grounds:If the
decree is illegal or fraud, If the decree passed against deed person.
55. Cognizance taken in Civil suit : S. 9
56. Civil nature suit: right to property and right to office
57. In partion suit: 2 decree, a) preliminary & b) final decree.
58. The decision of temporary injunction is an order but decision of perpetual injunction is decree.
59. The sections are the main part of the Code.
60. If the plaintiff dies, he is to be substituted: R. 3, Or.22
61. Rejection of plaint: R. 11, Or. 7
62. Return of plaint: R. 10, Or.7
63. Set off : R.6 , Or. 8
64. No appeal from decree of : compromise, under section 9 of the SR Act, 1877 and Small Causes
Court.
65. Verification of Plaint: R. 6 Or. 15
66. Misjoinder and nonjoinder: R. 9, Or.1
67. Frame of suit: R. 1, Or.2
68. Appointment of pleader: R. 4, Or. 3
69. Suit to be commenced by plaint: R. 1, Or. 4
70. Verification of pleadings: R. 15, Or. 6
71. Striking out pleadings: R. 16, Or. 6
72. Amendment of pleadings: R. 17, Or. 6
73. Schedule 1 of the Court Fees Act, 1870: Ad valorem Court Fees
74. Schedule 2 of the Court Fees Act, 1870: Fixed Court Fees.
75. Ad valorem Court Fees in money suit 2.5% but not execeeding 50,000 tk.
76. In other cases court fees 2% but not execeeding 40,000 tk.
77. Plaint & written statement required verification