Formal Legal System: Based on the laws, rules, procedures, traditions, and trappings of the former

colonial power (except for personal law, which is governed by the religious laws of the disputing parties);

Less Formal Legal System/Informal: Based on traditional justice mechanisms.

What is civil law?
Civil coming from “civis” (latin) = subject/citizen.
When any law regulates the rights between subject and subject (civis vs civis), then it is civil law. Civil law
– A law that governs relationships between individuals and defines their legal rights.
Criminal law is = state (civitas) vs civis
Though it has some vested rights, like right of appeal/revision or giving evidence, these are not vested
rights.
Right vs Civil Rights:
"Rights" refer to the entitlements that individuals have by virtue of being human, while "civil rights" are
legal protections that are granted by law to individuals to ensure that they are not discriminated against
based on certain characteristics such as race, gender, religion, or disability.

Civil rights are personal rights that are guaranteed and protected by the BD Constitution and state laws
enacted by the parliament. Civil rights include protection from unlawful discrimination.

On the other hand, rights are inherent entitlements for being human. These rights are not granted by law
but are considered universal and inalienable. Examples of rights include the right to life, liberty, and the
pursuit of happiness, freedom of speech, and freedom of religion.

Civil liberties are freedoms guaranteed to you by the Constitution to protect you from tyranny. For
example, to freedom of speech. Civil rights, in contrast, are the legal rights detailed in national laws and
statutes that protect you from discrimination. An example of a civil right is the right to be free from
employment discrimination based on a protected factor.
Procedural vs Substantive Law:
Defines, creates, or confers substantive legal rights or legal status and obligations and defines the nature
and extent of legal duties of individuals;
Prescribes the procedure, practice, and machinery of enforcing those rights and liabilities by a court of law
or other recognized and properly constituted tribunal. It is concerned with the procedural steps of bringing
a case to the court, from the initial filing of it to the final judgment – ensuring the fair and just administration
of legal proceedings. *Initial fling, pre-trial, trial, appeal, and others + post-trail procedures*.
Procedure as defined in Wharton’s Law Lexicon: means the mode in which successive steps in litigation
are taken.
Lord Penzance (Kendall v Hamilton 1879 4 AC 504 at 525): “The procedure is but the machinery of the
law, after all the channel and means whereby law is administered and justice reached. It strangely departs
from its proper office when, in place of facilitating, it is permitted to obstruct, and even extinguish, legal
rights and is thus made to govern where it ought to sub-serve.”
SL is dependent upon the PL quality for its efficacy. Needs to be inexpensive, simple, and expeditious. Is
an accessory to SL and is complementary, and interdependent with significant interplay to hide the
differences --- puts life into SL by providing a remedy and implementing ubi jus ibi remedium.

History of CPC:
All laws relating to civil procedure were codified by this act, an act of the parliament, and thus it is called
a code.
Code: The systematic collection of laws of a similar subject matter. It means the collection of all laws
relating to a particular subject and bringing them down to date so that they may form a useful code
applicable to the present circumstances. The law should be ascertained from the code, not from the
preceding act.
So, it is an act to amend and consolidate the laws (too many laws were present) relating to civil procedure.
The purpose of this Act was:

• Ensuring fair trial for a litigant as per the principles of natural justice;
• Expediating the disposal for not delaying justice;
• The procedure should not be complicated;
• Should, as far as possible, ensure a fair deal to the poorer section of the society;

Litigation: The dictionary meaning of litigation is the process of bringing or defending a claim, right, etc,
before a court of law, e.g.,
i) running the risk of litigation;
ii) litigation cost; and
iii) procedure.

Merriam Webster: the act, process, or practice of settling a dispute in a court of law;
Black's Law: A judicial controversy or a contest in a court of justice, for the purpose of enforcing a right.

Is the court exhaustive?

Gokul v Padmanund ILR 29 Cal 707 (PC): Yes, for the matters it specifically deals with.

But not for the matters it doesn’t specifically deal with; and there can be unimaginable circumstances in the
future that cannot be contemplated now. So, section 151 gives the court inherent power. Power to act = ex
debito justitiae = to do the real and substantive justice and secure ends of justice:

• any order and any measures

• based on the principles of justice, equity, rationality, and good conscience;
Section 151: 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:
1. the ends of justice or
2. to prevent abuse of the process of the Court.
Section 4(1): Without specific provisions to the contrary, this Code shan’t be deemed to limit or otherwise
affect any special 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.
It allows the special law to prevail concerning civil suits and matters. So, it is not exhaustive yet again.

Not to take a “hypertechnical” view?

The purpose of this code is to facilitate justice and further its ends and not a penal enactment to punish and
hand down penalties or trip up people So, there is always scope to ensure justice to both sides by;

• Leaving out too technical constructions;

• Scope to have room for reasonable elasticity;
Ganesh Trading Company vs Moji Ram (1978) SCC 91: Liberal interpretations are encouraged and
technical objections (HV) cannot defy substantial justice. – it is a humanist rule.
The term "hypertechnical view" refers to an overly strict or literal interpretation of the law or legal
provisions, especially in the context of procedural rules and pleadings. The court criticized the
hypertechnical view taken by the lower court, emphasizing that rules of procedure are intended to facilitate
the administration of justice and should not be applied in a manner that obstructs the resolution of disputes.
The term "hypertechnical view" is often used to caution against an excessively rigid or formalistic approach
to legal interpretation, particularly when it hinders the substantive merits of a case or the interests of justice.
However, in this case, HC interpreted the nonexistence of a person named "Jai Jai Ram Manohar Lal" as a
non-justiciable matter. The High Court took a hypertechnical view, holding that the Trial Court could not
allow an amendment to the plaint, Order 6 Rule 17, due to the nonexistence of the said person.
The Trial Court, and the High Court, in revision, refused to allow the amendment mainly on the ground that
it would amount to the introduction of a new time-barred cause of action. The decision was based on the
following considerations:
1. Interpreting the Provisions Literally;
2. Adherence to Procedural Law;
3. A New Cause of Action would be introduced: not permissible under the CPC.
Saiyad Mohd. Bakar vs Abdulhabib Hasan (1998) SCC 343: “PL is always in aid of justice not in
contradiction or to defeat the very object it seeks to achieve. Always subservient to substantive law – cannot
give what the SL doesn’t and cannot take away what the SL gives.”
Lord Denning in Jones vs National Coal Board (1957) QB 55: “It is all very well to paint justice blind but
she does better without a bandage around her eyes. She should be blind indeed to favor or prejudice, but
clear to see which way lies the truth.”
Written Statement, Rule 1 of Order 8: "shall not be later than ninety days" but the consequences flowing
from non-extension of time are not specifically provided for though they may be read by necessary
implication. Merely, because a provision of law is couched in a negative language implying mandatory
character, the same is not without exceptions. The courts, when called upon to interpret the nature of the
provision, may, keeping in view the entire context in which the provision came to be enacted, hold the same
to be directory though worded in the negative form.
 Interpretations of the Code:
PL is intended to be a handmaid to the administration of justice and thus shall be construed liberally. The
purpose is to render the enforcement of SR effective. So, no one shall be refused relief merely for some
mistakes, negligence, inadvertence, or even infraction of PL.
Shall not be equated to a game of chess rather than a mere formality with a juristic principle behind it - no
proceeding in a court of law shall be allowed to be defeated on mere technicalities.
State of Panjab vs Shamlal Murari (1976) SCC 719: not to be tyrant, but a servant, not an obstruction,
mistress, or resistant but aid, handmaid, and lubricant in the administration of justice. If non-compliance
will thwart fair hearing to prejudice doing of justice = mandatory to follow the rule. But if it is possible to
correct it without any injury to a just disposal of the case, the regulatory requirement shall not be enthroned
to a dominant desideratum. Courts are to do justice, not to wreck the end product of technicalities.

Principle of Natural Justice:

Lord Esher M.R. has defined it as the natural sense of what is right and wrong. Article 27 and 31, 32 of the
Constitution has strengthened the concept of natural justice.
The principles of natural justice, also known as procedural fairness, are fundamental legal principles that
govern the decision-making process of courts, tribunals, and other administrative bodies. Based on the
concepts of fairness, reasonableness, equity, and equality, and designed to ensure that individuals are treated
fairly and justly in legal proceedings. The following key elements of it:

• Right to a Fair Hearing: Before an independent and unbiased tribunal. This includes the right to be
heard, the right to present evidence and arguments, and the right to cross-examine witnesses.
• Rule Against Bias: This principle requires that the decision-maker be impartial and unbiased and
that they do not have any personal or financial interest in the outcome of the case. This includes
both actual bias and the appearance of bias.
• Right to Reasons: This principle requires that the decision-maker (i) provide reasons for their
decision, so that the parties to the proceeding can (ii) understand the basis for the decision and be
satisfied if it is fair, and if necessary, challenge it on (ii) appeal or revision.
• Procedural Fairness: This principle requires that the decision-making process be fair and
transparent and that all parties be given a reasonable opportunity to present their case and respond
to the case against them.
Purpose of the principle:
1. To provide equal opportunity of being heard.
2. Concept of Fairness.
3. To fulfil the gaps and loopholes of the law.
4. To protect the Fundamental Rights.
5. Basic features of the Constitution.
6. No miscarriage of Justice.
 Rules of Natural Justice (English law recognizes two principles and others):
1. Nemo Judex In Causa Sua: “No one should be a judge in his own case” because it leads to rule of
biases.
Type of Bias:

• Personal Bias.
• Pecuniary Bias.
• Subject matter Bias.
• Departmental Bias.
• Policy notion Bias.
• Bias on the account of obstinacy.
2. Audi Alteram Partem: It simply includes 3 Latin word which basically means that no person can be
condemned or punished by the court without having a fair opportunity of being heard.
Elements:

• Issuance of notice;
• Right to present the case and evidence - hearing;
• Right to Cross-Examination;
• Right of Legal representative;
Exclusion of natural justice (exceptions to the rule of natural justice)
1. Exclusion by statutory provisions.
2. Exclusion by the constitutional provisions.
3. Exclusion in case of legislative act.
4. Exclusion in public interest.
5. Exclusion in case of the need for prompt action or in emergency or necessity.
6. Exclusion on the ground of impracticability.
7. Exclusion in case of confidentiality.
8. Exclusion in cases of academic adjudication.
9. Exclusion when no right of the person is infringed.
10. Exclusion in the cases of interim prevention action.
11. Exclusion in case of fraud.

Civil vs Criminal Litigation:

[Link] of the Dispute:

• Civil litigation deals with private disputes and seeks remedies for civil wrongs.
• Criminal litigation involves the state prosecuting individuals for criminal offenses.

2. Parties Involved:

• In civil litigation, the parties are private individuals or entities.

• In criminal litigation, the state (government) is one of the parties.
3. Objective:

• Civil litigation seeks compensation or other civil remedies.

• Criminal litigation seeks punishment and societal protection.

4. Burden of Proof:

• The burden of proof is lower in civil cases (preponderance of the evidence) than in criminal cases
(beyond a reasonable doubt).

5. Outcome:

• Typically, a judgment in favor of the plaintiff, which may include monetary damages, injunctive
relief, or other remedies.
• A verdict of guilty or not guilty, and if the defendant is found guilty, the court will impose a
sentence, which may include fines, probation, or imprisonment.

Trial System
The system of Justice - the nature of its judiciary, the structure of its courts, the system of trial, the laws
and principles followed are of a common law nature. The Procedural Law i.e., CPC mainly dominates the
whole procedure of litigation.
Adversary or Accusatorial system of trial: A legal system used in common law countries where two
advocates represent their parties' case or position before an impartial person or group of people, usually
a judge or jury who attempt to determine the truth and pass judgment accordingly.

• The court act as a referee between the parties.

• The whole process is a contest between two parties.
• In this process court takes a non-partisan role.

Peter Murphy in his Practical Guide to Evidence recounts an instructive example. A frustrated judge in an
English (adversarial) court finally asked a barrister after witnesses had produced conflicting accounts, "Am
I never to hear the truth?" "No, my lord, merely the evidence", replied counsel.

Inquisitorial: The court inquiries into the disputes between parties irrespective of what the parties
submit for determination. The court is actively involved in proof of facts and holds its own inquiry
into the disputes between the parties. So, it is expensive.

Adversarial System Inquisitorial System

Truth by open competition between the Truth by extensive investigation and examination
prosecution and the defence. of all evidence.
 Parties determine witnesses and the nature of the The conduct of the trial is in the hands of the court.
evidence they give. The court oversees the process The judge determines what witnesses to call & and
by which evidence is given. the order of hearing them.
Precedents by higher courts are binding on lower Little use of judicial precedent meaning the Judges
courts. are free to decide each case independently by the
relevant statutes.
The role of lawyers is active. The role of lawyers is passive.
Judgment depends on the hearing, evidence, or The judge plays an active role in inquiry,
based on examination & and cross-examination. investigation, questioning, and hearing the parties
directly.
The role of the judges is merely passive in nature. The role of the judges is very active.
Case management does not depend upon the Case management depends upon the judges so the
judges so the judge's contribution is very low for judge's contribution is very high for the disposal of
the disposal of any case – the lawyers have any case - judges fix the term for the disposal of
unfettered opportunity for the case management. any case.
All references are presented by the respective References are also presented by the judge & and
lawyers of both the parties. they play an active role.
The hearing, evidence, or examination & and Documents and information about the real facts
cross-examination done by the lawyer get priority. get priority.

No effective case management as the judges Effective as the judges sit with the parties and can
cannot exchange views with the parties for making exchange views for taking any decision for speedy
any decision. So, no initiative can be taken for disposal of any case.
speedy disposal of any case.
Judges have discretionary power based on the Judges have wide discretionary power.
evidence.
Repeated time petition (a common practice) is The judge plays an active role in deciding the time
permitted and a delay occurs in disposal. petition and may honor or reject the time petition.

Pros and Cons of Adversarial System:

Advantages of the Adversarial System:
1. Presumption of Innocence: Individuals accused are presumed innocent until proven guilty, a fundamental
principle protecting individual rights.
2. Burden of Proof: In the adversarial system, the prosecution must prove guilt beyond a reasonable doubt,
emphasizing a fair outcome and placing responsibility on the government.
3. Checks and Balances: Two opposing sides present cases to an impartial judge or jury, serving as a checks-
and-balances system to prevent abuse of power and expose errors or biases.
4. Transparency: Both sides must disclose evidence, preventing trial surprises and ensuring fairness by
providing equal access to relevant information.
5. Expert Witnesses: The system allows for expert witnesses in technical cases, aiding the understanding of
complex evidence for the judge or jury.
6. Competitive Motivation: The adversarial nature motivates attorneys to be diligent, promoting thorough
preparation, research, and presentation for a more just legal process.
7. Legal Safeguards: Individuals have rights, including remaining silent, having an attorney, and
confronting witnesses, protecting against potential government abuses of power.
8. Accountability: Both sides actively advocate, increasing the likelihood of challenging and correcting
errors or misconduct, and maintaining the integrity of the legal process.
9. Flexible and Adaptable: Applicable to various legal cases, the system accommodates issues from criminal
trials to civil disputes, showcasing flexibility.
10. Public Trust: Emphasizing fairness and due process, the adversarial system helps maintain public trust,
enhancing the perception of justice being served through both sides presenting their case.
Concerns with the Adversarial System:
1. Emphasis on Winning over Truth: Criticism arises as the adversarial system often prioritizes winning
cases through legal tactics, potentially neglecting the pursuit of objective truth.
2. Resource Disparities: Wealthier parties gain advantages, affording high-priced legal representation and
resources, creating unequal access to justice, disadvantaging less affluent individuals or organizations.
3. Complex and Lengthy Proceedings: Adversarial trials are criticized for being complex, lengthy, and
expensive, potentially causing delays in justice and frustrating both plaintiffs and defendants.
4. Ineffective Representation: Some defendants lack competent legal representation due to overburdened
public defenders, underfunded legal aid, or inexperienced attorneys, leading to potential miscarriages of
justice.
5. Stress and Hostility: The confrontational nature of the adversarial process creates emotional stress and
hostility, particularly challenging for vulnerable individuals involved, including witnesses, victims, and
defendants.
6. Delay in Justice: Thorough investigation and legal maneuvering contribute to significant delays in
resolving legal matters, hindering the timely delivery of justice.
7. Complexity for Laypersons: The adversarial system's reliance on legal procedures, rules of evidence, and
complex terminology makes it challenging for laypersons to navigate and represent themselves effectively
in court.
8. Potential for Manipulation: Critics argue that skilled attorneys can manipulate the adversarial system for
favorable outcomes, potentially undermining the integrity of the legal process.
9. Focus on Punishment: In criminal cases, the adversarial system's emphasis on punishment may neglect
rehabilitation and restorative justice principles, potentially perpetuating a cycle of crime.
10. Inflexibility in Certain Cases: The adversarial system's confrontational nature may not be well-suited
for collaborative approaches needed in family law matters or complex civil cases.
11. Public Perception: The adversarial system's emphasis on winning and aggressive tactics may lead to
public perception of hostility, potentially eroding trust in the legal system.
Pros and Cons of Inquisitorial System:
Advantages of the Inquisitorial System:
1. Truth-seeking: The primary goal is to uncover the truth, involving judges and investigators actively in
evidence gathering, witness questioning, and fact examination for a just outcome.
2. Reduced emphasis on winning: Prioritizes finding the truth and achieving a just resolution, reducing the
incentive for aggressive tactics or manipulation by attorneys.
3. Efficiency: Judges play a central role in case management, directing investigations, controlling
proceedings, and ensuring timely progress, potentially reducing case backlog and delays.
4. Resource equality: Mitigates resource disparities seen in the adversarial system by having judges conduct
investigations, leveling the playing field for parties with different financial resources.
5. Less reliance on legal technicalities: Less emphasis on complex legal procedures and technicalities,
making the legal process more accessible and understandable for individuals without legal training.
6. Standardized procedures: Follows standardized procedures and protocols, providing consistency and
predictability in legal proceedings, contributing to legal certainty and fairness.
7. Comprehensive investigation: Judges and investigators have the authority and responsibility for thorough
investigations, resulting in a more comprehensive examination of evidence and a deeper understanding of
the facts.
8. Avoidance of manipulation: Active judicial oversight reduces room for manipulation or abuse of the
legal process by either party, enhancing the integrity of the proceedings.
9. Accessibility: More accessible to individuals without legal representation or those who cannot afford
private attorneys, as judges take a more active role in guiding the process, ensuring the protection of
individuals' rights.
10. Legal uniformity: Promotes legal uniformity and consistency, with judges interpreting and applying the
law consistently across cases.
11. Preventative measures: Inquisitorial judges can take preventative measures, such as issuing injunctions
or protective orders, to safeguard the rights of the parties involved.
12. Restorative justice: Some inquisitorial systems incorporate principles of restorative justice, focusing on
repairing harm and reconciling parties rather than just punishing offenders.
Concerns with the Inquisitorial System:
1. Potential for bias: The active judge's role in investigating cases may lead to concerns about bias or lack
of impartiality due to preconceived notions or leanings.
2. Limited adversarial testing: Involves less adversarial testing compared to the adversarial system,
potentially leading to incomplete examination of evidence and a risk of miscarriages of justice.
3. Reduced role for defense lawyers: In some versions, defense lawyers have a more limited role, creating
a power imbalance and potentially leading to inadequate defense for the accused.
4. Lack of transparency: Often occurs behind closed doors, raising concerns about the integrity of the
proceedings due to limited public scrutiny.
5. Risk of overreach: The proactive role of judges in gathering evidence and questioning witnesses may
lead to judicial overreach or abuse of power, given their significant influence over the investigation and
proceedings.
6. Complex procedures: Involves complex and bureaucratic procedures, challenging for individuals without
legal training, potentially hindering access to justice.
7. Slower pace: While designed to uncover the truth, the inquisitorial system can result in slower-paced
proceedings due to thorough investigations and judges' involvement in case management.
8. Limited legal protections: Provides fewer legal safeguards and protections for the accused, such as the
right to remain silent, the right to a jury trial, or the right to confront witnesses.
9. Potential for inefficiency: While aiming for efficiency, the inquisitorial system can become inefficient if
judges are overwhelmed with caseloads or if investigations become overly complex.
10. Limited innovation: Critics argue that the inquisitorial system may be less adaptable and innovative
than the adversarial system, which relies on competition between opposing parties to drive legal
developments.
11. Potential for coercion: In some instances, may be more susceptible to coercive practices, as judges and
investigators have substantial authority in conducting interrogations and gathering evidence.
12. Incompatibility with legal traditions: This may not align with the legal traditions and values of some
countries, which may prefer the adversarial system's emphasis on individual rights and due process.

Changes in the Civil Justice System in England:

The Civil Litigation Reform, 1999 - The 1999 Woolf Reforms

In 1994, the Lord Chancellor set up the Woolf Inquiry to look at ways of improving the speed and
accessibility of civil proceedings and reducing their cost. The interim report published in 1995:
“The key problems facing civil justice today are cost, delay, and complexity. These three are interrelated
and occur from the uncontrolled nature of the litigation process. For not having judicial responsibility for
managing individual cases or overall administration of the civil courts. These interrelated and
interdependent problems need the same sorts of solutions.”
Lord Woolf also noted: Without effective judicial control, AP is likely to encourage an adversarial culture
making the litigation process a battlefield without any rules. In this environment, questions of expense,
delay, compromise, and fairness have only a low priority often resulting in an excessive, disproportionate,
and unpredictable expense and unreasonable delay. (Access to Justice, Interim Report of Lord Woolf, 1995)

The Woolf reforms, introduced in 1998, were a set of changes to the civil litigation process in
England and Wales aimed at reducing costs, delay, and complexity, as well as promoting a less
adversarial approach to dispute resolution. These reforms were part of a broader effort to
modernize the civil justice system and make it more accessible to the general public.
Key aspects of the Woolf reforms include:
1. Pre-action protocols: These protocols encourage early settlement and less adversarial behavior between
parties by setting down pre-court procedures and requiring claimants to provide details of their claims and
defendants to respond within a specified time frame;
2. Alternative dispute resolution (ADR): The reforms promote the use of ADR methods, such as mediation
and arbitration, to help resolve disputes without going to court;
3. Case management: Emphasizing active case management by judges to ensure that cases are dealt with
expeditiously and at proportionate cost, and to encourage the use of alternative dispute resolution (ADR)
methods such as mediation and arbitration;
4. Costs and accessibility: The reforms aim to make litigation more affordable for the general public and
reduce the overall cost of civil proceedings by promoting the use of ADR and streamlining court
procedures;
5. Simplification and speed: The reforms seek to make the litigation process less complex and time-
consuming, leading to swifter justice and more predictable dispute resolution;
6. Civil Procedure Rules 1998: The reforms led to the creation of the Civil Procedure Rules of 1998, which
govern the practice and procedure of the Court of Appeal (Civil Division) and set out the framework for
the conduct of civil litigation.

Stages in a civil Proceeding:

1) Pre-proceeding/trial stage:

• Institution of Suit/ Issue of Plaint – Section 26 + Order 4 (1), 6 and 7

• Issue process, Service of Summons – Section 27-32 + Order 5
• Return of Summons/ Filing Written Statement - Order: VIII, Rule: I. + Order 6
• Alternative Dispute Resolution (ADR) – Sections 89A-89E (89B: mediation)
• First Hearing – Rule 1 of Order X
• Framing of Issues – Order 14: Rules 1-6
• Section 30 Steps:
1. Examination of Parties (Order 10)
2. Discovery and Inspection of Documents (Order 11)
3. Admission (Order 12)
4. Production, Impounding, and Return of Documents (Order 13)
5. Commission (Section 75 + order 26 (9))
6. Prevention and Inspection (Order 39(7))
• Settling of Date for hearing: Order 14 (11)

2. Trial Stage - Order: XVIII Rule: I

• Peremptory Hearing (P.H.) – Opening the case;

• Examination-in-Chief, Cross and Re-Examination;
• Producing Evidence in the Support of the Case;
 • Summing Up/Closing Speech/ Argument: Order XVIII R-2 and Part XIII of the Civil Suit
Instruction Manual
• Judgement (Within 7 days – Order 20), Decree and Order;

3. Post-Trial Stage:

• Execution;
• Appeal, Review, Revision

Section 9 – Subject matter or subjective jurisdiction;

Section 9 of the CPC: The Court shall (subject to the provisions herein contained) have jurisdiction to try
all suits of a civil nature except suits of which their cognizance is either expressly or impliedly barred.

Explanation. A suit in which the right to property or to an office is contested is a suit of a civil nature,
notwithstanding that such right may depend entirely on the decision of questions as to religious rites or
ceremonies.

SCN means a suit that is presented before a CC for adjudication of a civil matter, more specifically the
rights of property or office.

The rational basis of Section 9:

The maxim "ubi jus ibi remedium"(where ever there is a right there is a remedy); it is a fundamental
principle of law. Any person having a right has a corresponding remedy to institute suits in a court unless
the jurisdiction of the court is barred.

Bars upon Jurisdiction of Civil Courts - Under the Code of Civil Procedure:
1. Absolute Bars:
a) Res Sub Judice U/S 10
b) Res Judicata U/S 11
c) Questions to be determined by Court Executing Decree U/S 47
d) Restitution U/S 144
e) Suit to include the whole Claims U/O 2, Rule 2
f) Decree against plaintiff by default Bars fresh Suit U/O 9, rule 9
g) An Insolvent Person is barred from filing a suit U/O 22, rule 9
h) Withdraw of suit or abandonment of part of claim U/O 23 Rule
2. Conditional Bars:
a) Suit by Allien U/S 83
b) Suit by Foreign States U/S 84
3. Special Bar:
Suit for Breach of Trust U/S 92:

4. Other Bars:
i) Criminal matters; ii) Revenue Matters; iii) Family matters; iv) Act of state; v) Public Policy; vi) Special
tribunals
In the landmark case, Shankar Narayan Potti v K Sreedevi, (1998) 3 SCC 751 the apex court held that "it
is obvious that in all type of civil dispute civil courts have inherited jurisdiction as per section 9 of the CPC
unless a part of Jurisdiction is carved out from such jurisdiction, expressly or by necessary implication by
any statutory provision conferred on any other tribunal or authority."
Two conditions to be fulfilled to exert jurisdiction:

• Civil Nature
• Cognizance is not barred, impliedly or expressly
The word "civil" has not been defined in the Code. But according to the dictionary meaning, it pertains to
private rights and remedies of a citizen as distinguished from criminal, political, etc. The word "nature" has
been defined as "the fundamental qualities of a person or thing; identity or essential character; sort, kind,
character". Thus, a suit is of a civil nature if the principal question therein relates to the determination of a
civil right and enforcement thereof.
A civil action may be defined as a proceeding between two parties for the redressal, determination, or
implementation of private rights.
The private rights and obligations of citizens are covered under the expression "suit of civil mature." If the
requirements are satisfied for a particular case, no court can deny examining the matter in concern.
Widening the ambit of the section by use of the word shall
Jurisdiction:
In the world of law, the first point that an attorney is supposed to prove is that the court that has been
approached by him has the jurisdiction to try the suit. Came from the Latin phrase "juris" which translates
to "law" and "dicere" meaning "to speak”. Can be defined as "the power of a court to decide a case or to
issue a decree. " Power to try the suit + and pass orders or decrees in relation to it = Jurisdiction.
The Calcutta High Court in Hriday Nath Roy v. Akhil Chandra Roy: Jurisdiction is power of the court to
hear and determine a cause, to adjudicate and exercise judicial powers in relation to it." It demarcated three
different categories of jurisdictions:
1. Subject matter jurisdiction: SM = main or the fundamental matter of a particular nature which is under
question - whether the court has the authority to try the subject matter in question. Can try matters of a
certain nature.
2. Pecuniary jurisdiction: Pecuniary implies "related to capital". Refers to a certain monetary value. It has
certain financial limitations. To help the higher courts from getting burdened.
3. Territorial jurisdiction/local: lays down the geographical limits of a court's authority. Not authorized to
try matters which exist beyond their respective territorial limit.
An order passed by a court lacking jurisdiction is nullified and is unenforceable by law.

Expressly or impliedly barred:

A suit barred by an enactment for the time being in force is said to be expressly barred. A competent
legislature can bar the jurisdiction of civil courts concerning a particular class of suits of a civil nature,
provided that it does not contravene any provision of the Constitution. So, matters falling under CrPC,
Income Tax Tribunal, Election Tribunal, Labor Tribunal are expressly barred.
But if the remedy provided by a statute is not adequate and all questions cannot be decided by a special, the
jurisdiction of a civil court is not barred. Similarly, when a court of limited jurisdiction prima
facie and incidentally states something, the jurisdiction of a civil court to finally, decide the time is not
ousted.
Suits impliedly barred by general principles of law. Where the statute provides a specific remedy, it deprives
the person of a remedy of any other form. Where an Act creates an obligation and enforces its performance
in a specified manner, that performance cannot be enforced in any other manner. It, therefore, denies a
person who requires a remedy of any different form than is given by statute.

Certain suits, being of a civil nature barred from the cognizance on the grounds of public policy. The
rationale: a court ought not to countenance matters that are injurious to and against the public weal.

• No suit shall lie for recovery of costs incurred in a criminal prosecution or for enforcement or
• A right upon a contract hit by Section 23 of the Contract Act, I872, or
• Against any judge for acts done in the course of his duties.
Political questions belong to the domain of public administrative law and are outside the jurisdiction of
civil courts. A civil court has no jurisdiction to adjudicate disputes of a political nature.
Raja Ram Kumar Bhargava v. Union of India, the Supreme Court set down certain important considerations
for the determination of implied exclusion of the Civil Court's jurisdiction. They are:
1. Whether a right, not pre-existing in common law has been created by a statute.
2. That statute itself provided machinery for the enforcement of that right.
3. Both rights and remedies have been created at once.
4. A finality is intended to be the result of the statutory proceedings.
The general rule: presumption would be made in favor of CC’s jurisdiction, whereas exclusion is an
exception. So, it has to be done expressly or indicating an inevitable/necessary implication of ousting it. If
doubts regarding the ousting, shall be interpreted to maintain the jurisdiction.
Relevant rights under Section:
Right to property" means and includes movable, immovable, intellectual, inheritable property and property
that arise out of any contract, agreement, litigation, or out of any other civil rights.
As opposed to, "right to office means a right to hold a position and exercise the power of that position. It
could be a job post, a religious, or any secular post.
In what has spurred controversy and debate: A civil suit shall not adjudicate on a political or religious
question. However, if the moot question in a suit relates to property and certain ancillary questions involving
caste or religion a decision relating to caste or religious rites shall not terminate the suit from being one of
civil nature. The courts have the jurisdiction to decide on such cases, to adjudicate on the more important
question which is civil.
Analysis of Section 9 of CPC
Scope: a party wishing to challenge the competence of the court, then it must prove it with relevant
authorities as to why that is the case and why such claims are not accepted on a prima facie perusal of facts.
Even with non-competence - may still exercise jurisdiction if statutory bodies or tribunals have heard cases
beyond their jurisdiction.
Two essential prerequisites need to be fulfilled before the hearing of the suit. Firstly, there must be a "cause
of action." Secondly, there needs to be an inherent right of the plaintiff to sue the defendant.
Limitations concerning the exclusion of jurisdiction:
When expressly or impliedly barred - has the jurisdiction to adjudicate whether the provisions of the act
and rules enumerated thereunder have or have not been complied with if the order is in contradiction to the
law, mala fide, ultra vires, perverse, arbitrary, 'purported', or is in contradiction to the principles of natural
justice, is based on "no evidence" rule and so forth.
The Privy Council in Secretary of State v. Mask and Co.: The court further enunciated that civil courts have
the jurisdiction to examine cases that may not have observed the fundamental principles of the judicial
process.
In State of A.P v. Majeta Laxmikanth Rao, the Supreme Court: the court after being convinced of the
reasons needs to ponder on whether the statute prohibiting the jurisdiction allows for an alternative remedy.
The civil court's jurisdiction cannot be obliterated if no alternative remedy is stated.
Justice Subba Rao, J. in the leading case of Radha Kishan v. Ludhiana Municipality: A suit in a civil court
will always question the order of a tribunal created by statute, even if its order is, expressly or by necessary
implication, made final if the said tribunal abuses its power or does not act under the act but in violation of
its provisions."
Justice Hidayatulla, in the case of Dhulabhai v. State of M.P, enumerated certain principles concerning the
exclusion of jurisdiction of civil courts.
1. If provisions of a particular Act have not been adhered to or the fundamental principles of judicial
procedure have not been complied with by a statutory tribunal, the CC has jurisdiction
2. When no definite exclusion exists, scrutiny of the remedies and scheme of a particular act to glean the
intent becomes essential and the result of the probe may be decisive. Whether the statute enumerates any
special rights or liabilities and provides for its determination by the constituted tribunals and whether the
remedies related to actions in civil courts are stipulated by the said statute or not.
3. A civil suit cannot be brought forth before the court if the directions of the authorities are deemed final
and an explicit prohibition is enumerated in the Act.
The principles enumerated are essential in deciding the exactitude of the assessment of orders under axing
statutes.

Section 9 of the CPC: The higher courts of this subcontinent have expounded the same view in numerous
decisions – shall have the jurisdiction to try all suits of a civil nature.

• Right to property or office is contested – suits of a civil nature;

• But it shall not be a purely religious matter – religious rites or ceremonies.
“Religious honor” cannot be the subject matter, but for declaration of the right to religious office in a temple,
or for honor, privileges, or remuneration attached to that office is a suit of civil nature.
Right to Property: All sorts of property – moveable, immovable, patent rights, copyrights, trademarks, rights
of franchises, etc. via wide interpretations.
Right to Office: Both religious and secular offices. But in a suit regarding the declaration of rights to any
office to stand, there must be duties, which have to be enforceable by law/customs, attached to that office.
69 DLR (HCD) 183: If not expressly or impliedly barred, a court is bound to entertain it.
Expressly Barred Jurisdictions: Usually via specific laws providing for courts of tribunals to try specific
cases – Family Courts – exclusive jurisdiction to entertain, try, and dispose of any suit relating to, or arising
out of, all or any of the following matters, namely:
(a) dissolution of marriage; (b) restitution of conjugal rights; (c) dower; (d) maintenance; (e) guardianship
and custody of children.
Expressly Barred:
However, the exclusion of jurisdiction shall not be readily inferred. Why? It is said that if anyone says that
a CC doesn’t have jurisdiction, then the person saying this has to prove it. The SC is very liberal regarding
the jurisdiction of CC; so, ousting by the mere reading of the ousting clause may not be ousting
ultimately/exclusively.
So, it is established that the ouster clause must be strictly construed and to determine the ousting, the
considerations are:

• The scheme and purpose of that statute;

• Language of the statute;
Also, check if certain rights and obligations have been created under a statute and a forum to decide
those/the disputes regarding those as such special authority ousts jurisdiction.
Only offering certain remedies doesn’t signify ousting. Moreover, if there is doubt regarding ousting – then
it is taken as not ousted.
Moreover, 39 DLR (AD) 1: A CC has inherent jurisdiction to examine if it has jurisdiction or to what extent
it has been ousted.
So, here, a CC can still check if it is really a family matter or, a matter of a contract or money, or anything
else – if it is really barred by the ouster clause.
1 BLC (AD) 67: A wife exercised talaq-i-tawfiz; the only son residing with the mother with an agreement
to visit the father 2 hours (3 days)/weekly. But the mother didn’t uphold it and the father sued for a
mandatory injunction.

• An application (R11, O7) for rejection marking it as a matter of custody needing a FC;
• The AD: no issue of guardianship or custody but rather of an injunction;
• So, no reason to think that it requires a FC.
Or if the special law, though ousts the CC, but doesn’t have the power to provide the relief asked for, a CC
can still step in.
54 DLR (HCD) 467: Suit for a declaration for damages and promotion along with a money decree. The
defendant, govt., applied for rejection (R11, O7) as the subject matter jurisdiction belongs to the
Administrative Tribunal.
HCD decided that an AT cannot offer damages for a tort, so it belongs to a CC.
It is never totally barred – as only a CC as per 54 DLR (HCD) 46:

• Can examine if the rules of law were properly followed as specified in the special law;
• Can examine if abused its power;
• Can examine if it has taken bonafide or malafide decisions;
• Can examine if any special court has applied the principles of natural justice;
• If it has applied rules of equity, and good conscience properly;
If the statutes give finality to the orders passed – it usually ousts, but a CC still has the power to see if the
forum acted without jurisdiction/beyond or in access to it.
43 DLR (AD) 60: a village court passed a decision by showing the appointment of two members by the P
even though he hadn’t nominated one. – So, the constitution of VC was not as per the law.
But cannot decide whether the decision was erroneous or not.
It cannot also have jurisdiction over any executive action but can decide if the executive authority acted
within the authority of the law.
Impliedly Barred:
41 DLR 197: When the rights and obligations have been created under a statute and a forum to decide
those/the disputes regarding those as such special authority without any exclusion clause – impliedly.
The party is bound to follow such other forums.
Election-related disputes by the election tribunal, or the Somobaya Samity Ain, 2001.

Section 21: Objection at the earliest possible opportunity – at max, before the settlement of issues: and not
afterward in appeal or revision unless the court permits to prevent failure of justice.
Jurisdiction (pecuniary and territorial) wrong, and no objection in the trial court, the decision will not be
changed in appeal or revision – no scope for any sort of objection.
Section 99: No decree to be reversed or modified for error or irregularity not affecting merits or jurisdiction
– not for mere
The exception to section 21/99 is SUBJECT MATTER jurisdiction.
1. But you file a case of dower in a CC, it is a case of subject matter jurisdiction. So, a complaint can be
received at any moment for subject matter jurisdiction.
2. Suits of insolvency issues – DJ – but if heard by the JDJ, then it is a case of subject matter jurisdiction –
so, an objection is taken at any moment.
Gopal Krishna vs Abdul Kader 35 DLR:
Jurisdiction (pecuniary and territorial) is wrong, and no objection in the trial court, the decision will not be
changed in appeal or revision.

• So, a subject matter-related objection is not barred u/s 99.

• But for the other two sorts of jurisdiction, the court will not interfere unless an issue of merit is
raised.
Not civil nature:

• Suits involving principally caste questions;

• Suits involving purely religious rites or ceremonies;
• Suits for upholding mere dignity or honour;
• Suits for recovery of voluntary payments or offerings;
• Suits against expulsions from caste, etc.

Justiciability and Non-Justiciability:

Justiciable dispute – A dispute growing out of an actual case or controversy and that is capable of settlement
by legal methods. ... Original jurisdiction – The authority of a court to hear a case “in the first instance.”
In civil suits, justiciability refers to whether a case is suitable for courts to hear/adjudicate and decide on
the merits. If a case is justiciable, it means that it is capable of being decided by a court. On the other hand,
if a case is non-justiciable, the court cannot hear it. The court first examines the justiciability of a case
before agreeing to hear it. This preliminary review applies several tests based on judicial doctrines,
including the plaintiff, the adversity between the parties, the substance of the issues in the case, and the
timing of the case. For a case to be heard, it must survive this review.
Several factors determine whether a case is justiciable or not. These include…. Additionally, the concepts
undergirding the constitutional factors for justiciability and standing generally serve to determine whether
a case is justiciable or not.
Justiciability rulings usually arise either when a court does not have the power to hear the case under the
Constitution or it is imprudent to exercise judicial power. Typically, the determination of these issues is all
up to the discretion of the court which is adjudicating the issue.
A court determines if a case is non-justiciable by examining several factors based on judicial/legal
doctrines. The doctrines have both constitutional and prudential components.
At their simplest, the tests concern:
(1) the plaintiff,
(2) the adversity between the parties,
(3) the substance of the issues in the case, and
(4) the timing of the case.

1. Advisory Opinion: A court must not offer an advisory opinion, which is a nonbinding interpretation
of a legal question. National courts may only adjudicate an actual controversy.
2. Standing to sue: The plaintiff must have standing to sue, meaning they must have suffered actual
harm by the defendant, and the harm must be redressable. The person bringing the lawsuit must
have a sufficient stake or interest in the outcome of the case. Only a person with a direct and tangible
interest in the matter is allowed to approach the court.
 3. Adversity of the Parties on legal rights and obligations - the legal relationship of the parties: The
case must have two genuinely adverse parties because a court's function is to resolve disputes.
There needs to be a dispute between private parties concerning their legal rights and obligations.
The parties cannot be fictitious or collusive.
4. Ripeness: A claim is ripe when the facts of the case have matured into an actual controversy. A
case is not ripe if the harm to the plaintiff has not yet occurred or the dispute is hypothetical.
5. Mootness: If a case is moot, (a claim is moot if the relevant issues have already been resolved and
if the court's decision would no longer have a practical impact on the parties), the court no longer
has the power to entertain the legal claims and must dismiss the complaint.
6. Political Question Doctrine: Some matters are considered non-justiciable because they involve
political questions that are better suited for resolution by the political branches of government rather
than the judiciary.
7. Inherent Limitations: Cases that involve inherent limitations in the judicial process, such as the
inability to provide adequate resolution or the belief that the court cannot offer a final
determination.
8. Legal Issues: The court's role in justiciable cases is to interpret and apply the law to the facts of the
case, providing a legal remedy if appropriate.
9. Discretionary Remedies: Courts may decline to hear a case if providing a remedy involves
discretionary powers that the court is not willing to exercise.
10. Alternative Dispute Resolution (ADR): Justiciability considerations may also arise when parties
have agreed to resolve their disputes through alternative means such as arbitration or mediation.
Courts may enforce arbitration agreements and stay proceedings if the matter is subject to
arbitration.
11. Statutory Bar: If a statute expressly bars judicial review of a particular matter, it may be considered
non-justiciable.

Ganesh Trading Company vs. Moji Ram: HC interpreted the nonexistence of a person named "Jai Jai Ram
Manohar Lal" as a non-justiciable matter. The view of the High Court was not upheld by the appellate court.
Flast v. Cohen (1968): A landmark case in the United States that addressed the issue of standing for
justiciability - the most complex justiciability doctrine. The case involved the question of whether taxpayers
had standing to challenge the constitutionality of federal expenditures under the Establishment Clause of
the First Amendment.

Warth v. Seldin, 422 U.S. 490: When the ripeness doctrine holds that a case is justiciable if “the harm
asserted has matured sufficiently to warrant judicial intervention.”

A few examples of justiciable issues:

• Property Disputes, Personal Injury Claims, Family Law Matters, Tort Claims, Etc.
• Breach of Contract: by failing to fulfill its contractual obligations, and a party seeks damages for
the breach.
• Constitutional Challenges: A legal challenge to the constitutionality of a government law or action,
such as claiming that a statute violates the freedom of speech guaranteed by the Constitution.

Fundamental rights, enshrined in Part III of the BD Constitution, are considered justiciable (44, 102) -
enforced and adjudicated by the courts. An aggrieved - to the High Court Division for the enforcement. The
HCD has the power to issue directions, orders, or writs for the enforcement of any of the Fundamental
Rights. UDHR, ICCPR.

A few examples of non-justiciable issues:

• A dispute over the President's decision to enter into a treaty with a foreign country. Courts may
consider this a political question and decline to intervene.
• A legal challenge to a law that was proposed but not yet enacted. If the law hasn't been passed and
there is no concrete harm, the court might consider the issue hypothetical and non-justiciable.
• Challenging the President's decision to grant a pardon. Courts may be reluctant to review or
interfere with the President's exercise of the pardon power.
• Arbitration agreements render the agreed disputes non-justiciable.

The Directive Principles are non-justiciable in nature. They were made non-justiciable because they tried
to establish economic and social democracy in the country. The progressive implementation concept was
put in UDHR, ICESCR.

The differences:
The difference between the two lies in whether the case meets the requirements set by the Constitution and
judicial doctrines.
It's important to note that the concept of justiciability is context-specific, and the principles may vary based
on the nature of the dispute and the legal framework involved. Parties seeking to initiate civil suits in BD
should consult with legal professionals to ensure that their case is justiciable and that they meet the
necessary legal requirements.