Definitions of CPC 1908 with complete commentary on the definition of District, Foreign Court, Foreign Judgment, Government Pleader, High Court , India, Judge and Judgment.

  

                                            DISTRICT [ SECTION 2(4)]

"DISTRICT" means the local limits of the jurisdiction of a principal Civil Court of Original jurisdiction ( hereinafter called a " District Court" and included the local limits of the Ordinary original civil jurisdiction of a High Court.

                                                                Comments

 Ordinary Original Civil Jurisdiction of a High Court:- It means the power of a High Court to hear disputes in the First instance, not by way of appeal. It extends to the following:-

a. Matters of admiralty,will, marriage, divorce, company law and contempt of court.

b. Disputes relating to the election of members of Parliament and State Legislatures.

c. Regarding revenue matters or an act ordered or done in revenue collection.

d. Enforcement of fundamental rights of citizens.

e. Cases ordered to be transferred from a subordinate court involving the interpretation of the constitution to its own file.

f. The four High Courts ( i.e. Calcutta, Bombay, Madras High Courts also had original criminal jurisdiction. This was fully abolished by Cr.P.C. 1973).

                                                            FOREIGN COURT [ SECTION 2(5)]

According to the definition of the term " Foreign Court" means a Court situate outside India and not established or continued by the authority of the Central Government.

                                                               Comments

Ingredients:- The definition provides that to be termed as a foreign Court there must be two ingredients:-

1. Such Court must be situated outside the Indian Territory; and

2. It should not have been established or continued by the Central Government.

   In view of this definition, all Courts in England, Scotland, Ceylon, Burma, Pakistan and those of the Privy Council are foreign Courts.

                       FOREIGN JUDGMENT: [SECTION 2(6)]

“FOREIGN JUDGMENT” means judgment of a Foreign Court.

                              Comments

The important date to determine whether the judgment is of a foreign court or not is the date of the judgment and not the date when it is sought to be executed.

Thus, a judgment of a court which was a foreign court at the time of its pronouncement would not cease to be a foreign judgment by reason of the fact that subsequently the foreign territory has become a part of the Union of India. On the other hand, an order which was made ad which was passed by a tribunal which was domestic at the date of its making and which could at that date have been enforced by an Indian Court, does not lose its efficacy by reason of the partition. [Kishori Lal vs. Shanti Devi AIR 1953 SC 441 at p.442]

                              Lecture No. 4 on The Code of Civil Procedure, 1908. 

                                                   

                               

                      GOVERNMENT PLEADER: [SECTION 2(7)]

“ GOVERNMENT PLEADER” includes any officer appointed by the State Government to perform all or any of the functions expressly imposed by this code on the Government Pleader and also any pleader acting under the directions of the Government Pleader.

                                     Comments

1.   The definition of the Government Pleader is inclusive definition.

2.   A Government Pleader is an officer who is authorised to act for the Government in respect of any judicial proceeding, wherein the Government is a party.

3.   Whether the Government is a petitioner/plaintiff or impleaded as one of the defendants, the Government Pleader participates in the proceedings before a Court to present the case of the Government. He makes appearances in the court of law on behalf of the Government.

4.   He makes applications on behalf of the Government. He prepares and file in the Court written submissions and the necessary replies on behalf of the Government.

5.   He argues the matter before the court on behalf of the Government and answers the queries of the court raised in the course of hearing.

6.   He is the agent of the Government for the purpose of receiving processes against the Government issued by such Court.

    In this manner, a Government Pleader represents the Government before the Court in legal proceedings.

                                        Lecture No.5

                                    

                       High COURT: [SECTION 2(7A)]

“HIGH COURT” in relation to the Andaman and Nicobar Islands mean the High Courts in Calcutta.

                                Comments

1.   This definition was inserted by Act no. 2 of 1951 w.e.f. 01/04/1951.

2.   A High Court has been established in each State as per the mandate of Article 214 of the constitution of India.

3.   The High Court stands at the head of judiciary in the State.

4.   High Court is a Court of Record and possesses all powers of such a Court including the power to punish for its contempt. [Article 215 of the Constitution of India].

5.   High can issue directions, orders or writs for enforcement of Fundamental Rights and for any other purpose. [Article 226 of the constitution of India].

6.   High Courts have the power of superintendence over all Courts and tribunals throughout the territory in relation to which it exercise the Jurisdiction. [Article 227 of the Constitution of India.

7.   The District Court, every Civil Court and every Small Causes Courts are subordinate to the High Court. [Section 3 of the Code].

8.   Any Court may state a case and refer the same for the opinion of the High Court, and the High Court may make such order thereon as it thinks fit. [Section 113 of CPC].

9.   The High Court may call for the record of a case which has been decided by any of its subordinate court and in which no appeal lies, and may make appropriate orders, if such subordinate court appears to have overstepped its jurisdiction or failed to exercise its jurisdiction, or illegally exercised its jurisdiction[Section 115 of CPC]

10.               High Courts may make rules regulating their own procedure and the procedure of the Civil Courts under their superintendent. [Section 122 of CPC].

11.               High Courts have power to make rules as to their original civil procedure. [Section 129 of CPC].

12.               High Courts may also make rules as to the matters other than procedure.

                             INDIA [SECTION 2(7B)]

“ India” except in Section 1, 29, 43 ,44,44A, 78, 79,82, 83 and 87A means the territory of India excluding the State of Jammu and Kashmir.

Section 2(8):- “JUDGE” means the presiding officer of a Civil Court.

Section 2(9):- “ JUDGMENT” means the statement given by the judge on the grounds of a decree or order.

                                     Lecture No.6  

             

                                            COMMENTS

REQUIREMENTS OF A JUDGMENT:- Order XX, Rule 4(2) of the Code of Civil Procedure 1908 requires that every judgment shall contain:-

1.   A concise statement of the case.

2.   The points for determination i.e. issues in disputes which are to be adjudicated upon;

3.   The decision of the case on such issues; and

4.   The reasons for such decision.

However, the provisions of Order XX Rule 4(1) grants some exemptions to the Small Caused Court and directs that that Judgment of Small Causes Court need not to contain more than the points for determination and the decision thereon.

In Cellular Operators Association of India VS, Union of India 2003(3) SCC 186 the Supreme Court held that the judgment must contain concise statement of the case, points of decision, reasons for decision after discussion but if no reason is assigned , then such judgment will be liable to be set aside.

Judgment in rem and Judgment in personam : Ordinarily a Judgment binds only the parties to the suit. Such judgment is known as judgment in personam. But certain judgments bind all men and not only the parties to the suit. Such judgments are known as Judgment in rem. Thus, the judgment can be classified into two categories:-

1.   Judgment in rem; and

2.   Judgment in personam.

1.   Judgment in rem :  Certain judgments which are conclusive not only against the parties to the suit but also against the whole world are called “Judgment in rem”. These judgments are pronounced upon status of a subject matter and hence they are conclusive even against a stranger. For example:- Final judgment of a Court of matrimonial status of the parties or final judgment of court of insolvency jurisdiction declaring a party to be insolvent are judgment in rem.

    Under Indian Evidence Act, 1872 the judgment in rem has been provided in Section 41. This Section refers to final judgment, Order or decree of a competent court, in exercise of probate, matrimonial, admiralty or insolvency jurisdiction, which: i. confers upon any person any legal character, or II. Takes away from any person any legal character, or iii. Which declares any person to be entitled to any such character, or IV. Which declares any person to be entitled to any specific thing; not as against any specified person but absolutely. Such judgment are conclusive as against alien as to the matters actually decided therein and hence as judgment in rem.

  Judgment in rem is, in fact an exception from the general rule that a judgment binds only the impleaded parties and not others.

2.   Judgment in Personam : Where the litigation was between two parites for example between “ Plaintiff A” and “ Defendant B” in which a judgment is passed, then such judgment shall be binding on “ Plaintiff A” and “ Defendant- B” only. Any third party who was not joined as a party to litigation, is not bound by such judgment. The judgment which bind only the parties to it are known as judgment in personam.

Judgment Per incuriam:- The term “ incuria” means carelessness when the court gives a decision in ignorance of a statute or a rule having statutory effect, then such a decision is called per incuriam. It is quite possible that a law or a rule could not be brought to the notice of the court. As such, the court was unaware of that law or rule at the time of passing of the judgment. The judgment is thus passed without considering the statute and therefore it is inconsistent with the provisions of law.

Had the attention of the court be drawn towards the provision of law, and then the judgment would have been different. A judgment which is given in ignorance of some provision of the law is known as “Judgment per incuriam”.

A judgment per incuriam has no binding force. In fact, a precedent loses its authority if it is rendered in ignorance of a statute or of a rule having the force of statute.

The Bombay High Court in “Mohammad Bilal Haniff Shaikh Vs. A.N.Roy, Commissioner of Police, Brihan Mumbai 2006(4) Mh.L.J. 371 Bom.HC” held that the judgment is per incuriam if it is in ignorance of a statute or authority.

Judgment Sub Silentio: - “Sub Silentio” means not fully argued. If an order of the court is silent on a particular point in issue, such point is said to have passed sub silentio. The reason for sub silentio is that such point was not argued by the counsel and hence it has not been addressed by the court its order. If the counsel would have argued that particular point, the decision might have been in favour of the other party. A precedent sub silentio is not authoritative.

The Bombay High Court in “Mohammad Bilal Haniff Shaikh Vs. A.N.Roy, Commissioner of Police, Brihan Mumbai 2006(4) Mh.L.J. 371 Bom.HC” held that the judgment is sub silentio when a particular point of law involved in the decision is not presented to the court and not perceived by the court as well.

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