Dr. Khakare Vikas

Code of Civil Procedure 1908

miscellaneousDr. Khakare Vikas

Asso. Prof.Narayanrao Chavan Law College, Nanded,

India

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•INTEREST IN SUIT•COST OF SUIT

•PERSONS EXEMPTED FROM APPEARANCE IN THE COURT.

•CAVEAT•INHERENT POWERS OF COURT

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INTEREST [Section 34]

• Where and in so far as a decree is for the payment of money, the Court may, in the decree, order interest at such rate as the Court deems reasonable to be paid on the principal sum adjudged.

• Interest means a charge or money paid by the barrower. Court may award interest on principal amount where a decree is for payment of money. Such interest may be in addition to interest adjudged.

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• Interest may be payable:a. From date of suit to date of decree. (interest

pendent lite.)b. From date of decree to the date of payment.c. From any earlier date as the Court thinks fit.

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• Rate of interest:• The rate of interest is at the discretion of the Court.• If there is an agreement between parties as to rate of

interest, Court shall consider it.• From the date of suit i.e. interest pendent lite, the rate of

interest should not be more than six per cent per annum.• If transaction between parties is commercial one, rate of

interest may be more than six per cent but not to exceed contracted interest, if there is no contractual rate, the rate at which moneys are lent or advanced by nationalised Banks in relation to commercial transactions.

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COST [Section 35, 35A, 35B, Order XX A]

• ‘Cost’ means ‘cost of suit/litigation’. • Cost is ‘statutory allowance’ which a winning party is entitled to get

from the losing party to reimburse him for expenses incurred in defending or prosecuting the proceeding.

• A ‘cost’ is certified, itemized statement of the amount of the expenses incurred in bringing or defending a lawsuit. After judgment, decree is prepared which is accompanied with ‘bill of cost’ i.e. statement of expenses incurred by parties.

• ‘Cost’ is not a penalty or punishment to the losing party/litigant.

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• ‘Cost of litigation’ is at discretion of the Court. There is no hard and fast rule for cost. But it should be founded on some legal principle. Court has to consider facts and circumstances of the case, length of litigation, conduct of parties, nature of dispute etc for awarding cost.

• Generally cost shall follow the event which means the winning party or successful party shall get cost or the losing party shall bear the cost. But it is not always necessarily depends upon who wing or who lose the case. A winning party may or may not get cost and losing party may or may not liable for cost.

• Where suit is “decreed with cost”, defendant has to pay cost to plaintiff. Where suit is “rejected/dismissed with cost”, plaintiff has to pay cost to defendant. And where there is “no order as to cost” or “parties to bear cost”, neither party has to pay cost to other party.

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Types of cost• General cost: Object of general cost is to secure litigant the expenses

incurred for litigation. The Court shall have full power to determine by whom or out of what property and to what extent such costs are to be paid.

• Compensatory cost: Court may allow compensatory costs in respect of false or vexatious claims or defences. Court if it so thinks fit, may, after recording its reasons for holding such claim or defence to be false or vexatious, make an order for the payment to the object or by the party by whom such claim or defence has been put forward, of cost by way of compensation.[ Section 35A]

• Cost for causing delay: A court may allow cost for causing delay if, on day fixed for hearing, a party to suit fails to take steps which he is required to take OR obtains an adjournment for taking such steps or producing evidence.

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• Miscellaneous cost: A Court may grant miscellaneous cost for certain items as under:

a. Expenditure incurred for the giving of any notice required to be given by law before the institution of the suit;

b. Expenditure incurred on any notice which, though not required to be given by law, has been given by any party to the suit to any other party before the institution of the suit;

c. Expenditure incurred on the typing, writing or printing of pleadings filed by any party;

d. Charges paid by a party for inspection of the records of the Court for the purposes of the suit;

e. Expenditure incurred by a party for producing witnesses, even though not summoned through Court, and

f. In the case of appeals, charges incurred by a party for obtaining any copies of judgments and decrees which are required to be filed along with the memorandum of appeal.[ Order XX A]

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EXEMPTION FROM APPEARANCE

• Section 132, 133 provide for exemption of certain person from personal appearance in the Court.

• Women who, according to the customs and manners of the country, ought not to be compelled to appear in public shall be exempt from personal appearance in Court.[ Section 132]

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• The following persons shall be entitled to exemption from personal appearance in Court, namely[ Section 133]

i. The President of India;ii. The Vice-President of India;iii. The Speaker of the House of the People;iv. The Ministers of the Union;v. The Judges of the Supreme Court;vi. The Governors of States and the administrators of Union Territories;vii. The Speakers of the State Legislative Assemblies;viii. The Chairman of the State Legislative Councils;ix. The Ministers of States;x. The Judges of the High Courts; andxi. The persons to whom section 87B applies.

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• EXEMPTION FOR CIVIL PROCESS Section 135 and 135A

• No Judge, Magistrate or other judicial officer shall be liable to arrest under civil process while going to, presiding in, or returning from his Court.

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• Exemption of members of legislative bodies from arrest and detention under civil process:[ Section 135A]

a. If he is a member of:• i.Either House of Parliament, or • ii.The legislative Assembly or Legislative Council of a State, or • iii.A Legislative Assembly of a Union territory, during the

continuance of any meeting of such House of Parliament or, as the case may be, of the Legislative Assembly or the Legislative Council;

b. If he is a member of any committee of: • i.Either House of Parliament, or • ii.The Legislative Assembly of a State or Union territory, or • iii.The Legislative council of a State, during the continuance of any

meeting of such committee;

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c. If he is a member of: • i.Either House of Parliament, or • ii.A Legislative Assembly or Legislative Council of a State having

both such Houses, during the continuance of a joint sitting, meeting, conference or joint committee of the Houses of Parliament or Houses of the State Legislature, as the case may be, and during the forty days before and after such meeting, sitting or conference.

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CAVEAT section 148 A

• ‘Caveat’ means a warning or proviso of specific stipulation, condition or limitation.

• It is a notice to person or public or Court.• Section 148A prescribes procedure for making application for

caveat. Person making caveat application is known as ‘caveator’ and person against whom it is made is known as ‘caveatee’.

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• Object of caveat :- • Some time it is possible that a person may file an application

or institute suit and pray Court to allow a relief against respondent or defendant that too before appearance of such respondent or defendant. It is possible that Court may consider urgency and circumstances of the case and pass ex-parte order without any information to opponent.

• This passing of order by Court in the absence of opponent could be prevented by making application by the person against whom there is possibility of ex-parte order.

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• Right to lodge a caveat:• Where an application is expected to be made, or has been

made, in a suit or proceedings instituted, or about to be instituted, in a Court, any person claiming a right to appear before the Court on the hearing of such application may lodge a caveat in respect thereof.

• Who can file caveat:• Application for caveat can be filed by a person who is

expecting that an application, suit or proceeding is likely to be filed against him. And he has a right to appear before Court where such application, suit or proceeding will be filed.

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• Where to file caveat:• Caveator shall file caveat petition in the Court/Courts where

an application is likely to be filed against him. • Procedure:• Caveator can file caveat petition. Where caveator has filed

caveat, he shall serve a notice of the caveat by registered post acknowledgement due on the person by whom the application has been or is expected to be, made.

• Where any application is filed in any suit or proceeding, the Court shall serve a notice of the application on the caveator.

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• Effect of caveat:• Where a caveat is filed, Court shall not pass any ex-

parte order against caveator. Court shall not pass any order unless notice to caveator is issued.

• Duration of caveat:• Effect of caveat is valid for a period for ninety days

from the date of its filing. Period may be extended if before expiry of ninety days caveator file another caveat petition in the Court.

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INHERENT POWERS OF COURTSection 151

• Saving of inherent powers of Court:• 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.

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• The Code of Civil Procedure is not exhaustive. It does not contain rules of procedure for all times to come. There may be absence of express provision for all inconveniences which are indefinite in nature and that may happen. Sometime rules of procedure may be abused or may be used as a formality. This would obstruct and not facilitate administration of justice.

• The Court has inherent powers to act according to justice, equity and good conscience, but it cannot override the express provisions of law. [ Naresh Mohan v. Brij Mohan, AIR 1938 PC 48; M/s Ramchand & Sons Sugar Mills Pvt. Ltd. Barabanki v. Kanhaya lal Bhargava, AIR 1966 SC 1899]

• Court can use its inherent powers where cases and circumstances which are not covered by the express provisions of the statutes wherein justice has to be done.[ AIR 1918 Mad 580.]

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• When Court can use inherent powers:• Inherent powers of Court should not be used in routine

process. It is to be used in exceptional circumstances where Code of Civil Procedure does not prescribe any procedure. Inherent powers of Court can be used in the interest of justice.

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• Examples Where Court can use Inherent Powers

• To consolidate suits and appeals;• To stay cross suits on grounds of convenience;• To ascertain whether proper parties are before Court;• To enquire whether plaintiff can sue as an adult;• To consider application of third person to be added as party to suit;• To stay the drawing up of the Court’s own orders or to suspend

their operation;• To apply res-judicata to cases not falling under section 11;• To add a party;• To punish summarily for contempt of Court;

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---• To order joint trial;• To set aside an order brought about by fraud practices in the Court;• To stay proceeding pursuant to its own order in view of an intended

appeal;• To restrain by injunction a person from proceeding with a suit in

another Court;• To stay suit not covered under section 10;• To grant injunction not covered under Order 39;• To reconstruct its record where it is lost or destroyed;• To enforce undertaking given by party;• To extend time for payment of cost.

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Thank you