Savings [Section 4] and Application u/s 4 of CPC

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   Savings [Section 4] and Application u/s 4 of CPC 

              

Meaning of Savings Clause in the Acts

 

•      “Savings” means that it saves all the rights the party previously had.

•      By virtue of Savings Clause, the earlier rights are preserved.

•      Earlier rights are those rights which were granted under the previous law.

•      Such rights are saved from being destroyed by incorporating “ Savings Clause” in the new Act.

•      Savings Clauses are introduced into the repealing Acts, in order to safeguard those rights which would have been lost, had the savings clause not been there.

•      Therefore “Savings Clause” is used to preserve from destruction certain rights, remedies or privileges already existing.

 

Savings [ Section 4]

 

•      The Savings Clause provided in Section 4 of CPC reads as under:-

“ (1) In the  absence of any specific provision to the contrary, nothing in this Code shall be deemed to limit or otherwise affect any special or local law now in force or any special jurisdiction or power conferred or any special form of procedure prescribed, by or under any other law for the time being in force.

(2) In particular and without prejudice to the generality of the proposition contained in sub-section (1) , nothing in this code shall be deemed to limit or otherwise affect any remedy which a landholder or landlord may have under any law for the time being in force for the recovery of rent of agricultural land from the produce of such land”

                                  Comments on Section 4

•      This Section provides that the Code of Civil Procedure 1908 is inapplicable where special procedure is prescribed under any local or special law.

•      At the same time, this section does not bar the applicability of the CPC in the proceedings under special or local laws, if such laws are silent about it.

•      Therefore in case where the local law does not provide any special procedure, then the provisions of the Code shall apply.

•      But in case of conflict or inconsistency between the Code and the local or special law, the special or local law shall prevail.

 

 

IN THE COURT OF CIVIL JUDGE SENIOR DIVISION, KAPURTHALA

 

  AB                                        VS.                                                 CD

       ..Plaintiff/ respondent           …Defendant/Applicant

                

                       Subject:- Application u/s 4 of CPC

Sir,

   It is most respectfully submitted as under:-

1.     That the present suit has been pending before this hon’ble Court and is fixed for today.

2.     That the plaintiff/respondent has filed this present suit for permanent injunction for restraining the defendant to recover the amount due towards the defendant/ applicant. 

3.     That the plaintiff/ respondent had taken the loan of Rs. 5,00,000/- from the defendant/applicant and executed the loan agreement the certified copy of which is attached  with the present application which is Annexure A.

4.   That para no.25 of the loan agreement contains the arbitration clause according to which all the disputes and differences between the parties shall be governed by the Arbitration and Conciliation Act, 1996. Therefore since the said proceedings are barred under Section 4 of CPC and the provisions of CPC are not applicable rather the dispute is finally covered under Arbitration and Conciliation Act 1996, the Civil proceedings in the present suit are misuse of the process of the law and cannot be allowed to be proceeded with.

               It is therefore prayed that the present application may kindly be allowed and

a. The Civil proceedings initiated by the plaintiff/respondent may  

     kindly be directed to be withdrawn by the plaintiff or alternatively

     the same may be dismissed being not maintainable;

b.   That the matter in dispute may kindly be directed to be decided in the arbitration proceedings no. ……… pending before the Arbitrator in the interest of justice and equity;

c.   To pass any other further order which this Hon’ble Court may deem fit and proper in it the interest of justice and equity.

 

 

Date:                                                                                  Applicant

Place:

                                 Through Counsel

 

                                 Name of the Advocate with Enrolment Number

                                 To be mentioned

Verification:-

Verified that the contents of my application are true and correct and nothing has been falsely stated therein.

Verified at Kapurthala

Verified on 23/01/2019                                                                 Applicant




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