Legal Language and

Legal Writing

Arvind Nath Tripathi

DSNLU
Civil Procedure Code
 The Civil Procedure Code (C.P.C.) regulate the functioning
of Civil courts.
 It lays down the:
- Procedure of filing the civil case.
- Powers of court to pass various orders.
- Court fees and stamps involved in filing of case.
- Rights of the parties to case (plaintiff & defendant)
- Jurisdiction & parameters of civil courts functioning.
- Specific rules for proceedings of a case.
- Right of Appeals, review or reference.
Jurisdiction Of Civil Court Under
Civil Procedure Code, 1908
 The word Jurisdiction is derived from Latin terms
“juris” and “dicto” which means “I speak by the
law”.
 Power or authority of the court of law to hear and
determine a cause or matter.
 It is the power to entertain,deal with and decide a
suit,an action,petition or other proceeding.
 Consent can neither confer nor take away
jurisdiction of acourt.
 Jurisdiction
 Jurisdiction means the authority by which a court
has to decide matters that are brought before it
for adjudication. The limit of this authority is
imposed by Act, statute or rule. If no such limit is
imposed or defined that the jurisdiction is said to
be unlimited.
 Kind of Jurisdiction
 Territorial or local jurisdiction
 Pecuniary jurisdiction
 Subject-matter jurisdiction
 Original and appellate jurisdiction
 Every presumption should be made in favour of
jurisdiction of a civil court.
 Burden of proof of exclusion of a court is on the
party who asserts it.
 Kind of Jurisdiction
 Jurisdiction may be further classified:
 Original jurisdiction
 Appellate jurisdiction

 Criminal and appellate jurisdiction- Supreme
Court, High Courts and District courts have both
original and appellate jurisdiction in various
matter.
 Decree
 As per Section 2(2), a decree is the formal expression of an adjudication which,
so far as regards the Court expressing it, conclusively determines the rights of
the parties with regard to all or any of the matters in controversy in the suit. It
can be final or preliminary.

 From the above definition we can see the following essential elements of a
decree -

 1. There must be an adjudication - Adjudication means Judicial

Determination of the matter in dispute. In other words, the court must have
applied its mind on the facts of the case to resolve the matter in dispute. For
example, dismissing a suite because of default in appearance of the plaintiff is
not a decree. But dismissing a suite on merits of the case would be a decree.

 2. There must be a suit - Decree can only be given in relation to a suit.

Although CPC does not define what suit means, in Hansraj vs Dehradun
Mussoorie Tramways Co. Ltd. AIR 1933, the Privy Council defined the term suit
as "a civil proceeding instituted by the presentation of a plaint".
 Decree
 3. Rights of the parties - The adjudication must be about any or all of the
matters in controversy in the suit. The word right means substantive rights and
not merely procedural rights.

 4. Conclusive Determination - The determination of the right must be

conclusive. This means that the court will not entertain any argument to
change the decision. I.e. as far as the court is concerned, the matter in issue
stands resolved. For example, an order striking out defence of a tenant under a
relevant Rent Act, or an order refusing an adjournment is not a decree as they
do not determine the right of a party conclusively. On the other hand, out of
several properties in issue in a suit, the court may make a conclusive
determination about the ownership of a particular property. Such a conclusive
determination would be a decree even though it does not dispose off the suit
completely.

 5. Formal expression - To be a decree, the court must formally express its

decision in the manner provided by law. A mere comment of the judge cannot
be a decree.
 Kinds of Decree

 Preliminary - Where an adjudication decides the rights of the parties

with regard to all or any of the matters in controversy in the suit but
does not completely dispose of the suit, it is a preliminary decree. It is
passed when the court needs to adjudicate upon some matters before
proceeding to adjudicate upon the rest.
 In Shankar vs Chandrakant SCC 1995, SC stated that a preliminary
decree is one which declares the rights and liabilities of the parties
leaving the actual result to be worked out in further proceedings.
 CPC provides for passing a preliminary decrees in several suits such as -
suit for possession and mesne profits, administration suit, suits for pre-
emption, dissolution of partnership, suits relating to mortgage. In
Narayanan vs Laxmi Narayan AIR 1953, it was held that the list given in
CPC is not exhaustive and a court may pass a preliminary decree in
cases not expressly provided for in the code.

 Final - When the decree disposes of the suit completely, so far as the
court passing it is concerned, it is a final decree. A final decree settles
all the issues and controversies in the suit.
 Kinds of Decree

 Party preliminary and partly final - When a decree resolves some issues
but leaves the rest open for further decision, such a decree is partly
final and party preliminary. For example, in a suit for possession of
immovable property with mesne profits, where the court decrees
possession of the property and directs an enquiry into the mesne
profits, the former part of the decree is final but the latter part is
preliminary.

 Deemed Decree - The word "deemed" usually implies a fiction

whereby a thing is assumed to be something that it is ordinarily not. In
this case, an adjudication that does not fulfill the requisites of S. 2 (2)
cannot be said to be a decree. However, certain orders and
determinations are deemed to be decrees under the code. For example,
rejection of a plaint and the determination of questions under S. 144
(Restitution) are deemed decrees.
 Order S. 2(14)
 Order
 As per Section 2 (14), The formal expression of any
decision of a civil court which is not a Decree is Order.
 Judgement
 As per Section 2 (9), "judgment" means the statement
given by the judge of the grounds of a decree or order.
Every judgment should contain - a concise statement
of the case, the points for determination, the decision
thereon, the reasons for the decision.
 Jurisdiction
 9. Courts to try all civil suits unless barred .- The
Courts shall (subject to the provisions herein
contained) have jurisdiction to try all Suits of a civil
nature excepting suits of which their cognizance is
either expressly or impliedly barred.
 Res judicata
 11. Res judicata— No Court shall try any suit or issue in
which the matter directly and substantially in issue has
been directly and substantially in issue in a former suit
between the same parties, or between parties under
whom they or any of them claim, litigating under the
same title, in a Court competent to try such
subsequent suit or the suit in which such issue has
been subsequently raised, and has been heard and
finally decided by such Court.
The pre-requisites which are necessary for
Res Judicata are:
 1) There must be a final judgment;
2) The judgment must be on the merits;
3) The claims must be the same in the first and second
suits;
4) The parties in the second action must be the same
as those in the first, or have been represented by a
party to the prior action.
 Res judicata
 Section 11 contains the rule of conclusiveness of the judgment
which is based partly on the maxim of Roman jurisprudence
“interest reipublicae ut sit finis litium” (it concerns the State
that there be an end to law suits) and partly on the maxim
“nemo debet bis vexari pro una et eadem causa” (no man
should be vexed twice over for the same cause). The section
does not affect the jurisdiction of the court but operates as a bar
to the trial of the suit or issue, if the matter in the suit was
directly and substantially in issue (and finally decided) in the
previous suit between the same parties litigating under the same
title in a court, competent to try the subsequent suit in which
such issue has been raised. “Res judicata pro veritate accipitur” (a
thing adjudged must be taken as truth) is the full maxim which
has, over the years, shrunk to mere “ res judicata”. (Vide: Kunjan
Nair Sivaraman Nair v. Narayanan Nair (2004) 3 SCC 277).
Hindu Minority and Guardianship
Act, 1956
 Natural guardians of a Hindu minor.- The natural
guardians of a Hindu, minor, in respect of the minor's
person as well as in respect of the minor's property
(excluding his or her undivided interest in joint family
property), are- (a) in the case of a boy or an unmarried girl-
the father, and after him, the mother: provided that the
custody of a minor who has not completed the age of five
years shall ordinarily be with the mother; (b) in the case of
an illegitimate boy or an illegitimate unmarried girl-the
mother, and after her, the father; (c) in the case of a
married girl-the husband; Provided that no person shall be
entitled to act as the natural guardian of a minor under the
provisions of this section-
 Constitution of India
 The term “State” is defined under Article 12 of Part
III (Fundamental Rights) of the Constitution of
India. It states that: In this Part, unless the context
otherwise requires, “the State” includes the
Government and Parliament of India and the
Government and the Legislature of each States and
all local or other authorities within the territory
of India or under the control of the Government of
India.
 Ex officio
 Ex officio is a Latin terms meaning “by right of office”
or “by virtue of one’s office or position”. Ex officio
members of boards and committees are persons who
are members by virtue of some other office or position
that they hold.
 bona fide
 bona fide - Literally, it means “in good faith”. “Bona fide” or
genuinely. It conveys absence of intent to deceive. It refers to
honest intention. Bona fide is a mental state negativating
dishonesty and has no relation to negligence or want of care. It
only means negation of fraud or dishonesty and a real genuine
transaction.
 Although the meaning of good faith may vary in the context of
different statutes, subjects and situations, honest intention free
from taint or fraud or fraudulent design is a constant element of
its connotation [Brijendra Singh v. State of UP AIR 1981 SC
636]. The essence of “good faith” is honesty. It precludes
pretence or lack of fairness and uprightness [Sardar Gur Iqbal
Singh v. CIT [1992] 197 ITR 269 (All.)].
 bona fide
 Section 3(22) of the General Clauses Act defines
‘good faith’ as “a thing shall be deemed to be done in
‘good faith’ where it is in fact done honestly, whether
it is done negligently or not”.