Trial of Civil Suits And
Criminal Cases
justice Mohammad Hamidul
TRIAL OF CIVIL SUITS
Contents
Jurisdiction of civil courts 1-8 Pecuniary Jurisdiction and Territorial Jurisdiction of civil courts Legal Jurisdiction-Section 9 of the Code Suits of Civil nature Right to property, right to office
Jurisdiction barred expressly
Construction of exclusion or ouster clause Jurisdiction barred impliedly
of suits 9-15 Section 10 of the Code
Analogous and simultaneous trial
CHAPTER- HI
The principle of Res Judicata Section of the Code
Conditions for the application of the principle Res Judicata
CHAPTER-
Institution of suits 24-30
Particulars of the plaint
Examination of the plaint
Return of plaint, Order VII rule 10
Rejection of the Order rule
Rejection of plaint under section 151 of the Code
ix
Summons 31-39
Service of summons
Personal service
Service upon an agent
Service upon an adult male member
Service by affixing copy of the summons
Service by registered post
Substituted service
Proof of service
Rules 19 and 19A
Parties to the suit 40-44 Necessary
Transposition of parties
Written statement 45-46
Filing of Written Order VIA of the Code
Pre-trial Order X of the Code
Section - 89 C
Amendment of pleadings 47-52 Amendment of pleadings, Order VI the Code
Amendment of the written statement
Allowing amendment
Issues 53-55
Framing of Issues, Order XTV of the Code
Order XTV and Order XX
CHAPTER- X
Non-appearance of the parties Dismissal of the suit for non-appearance of the plaintiff, Rules and 8 of Order IX
9
Rule 9A
Relief under section for restoration of a suit dismissed for default
Non-appearance of the exparte decree
Exparte decree - remedy under rale
Sufficient cause
Relief under section for setting aside an exparte decree
Proviso to rule
Limitation for filing a miscellaneous case under rule
Rule 13A
Adjournments 66-67 Rule 1 (3), Order
Sub-rule (4)
(7)
Examination of witnesses and recording of evidence 68-81
Order of the Code and other relevant provisions
Examination of witnesses and recording of evidence
of witnesses
of witnesses
Other matters relating to examination of witnesses and recording of evidence
Proof of documents and marking of exhibits
Pronouncement of Judgment 82-89
Order XX and other relevant provisions
Assessment of the evidence on record, Burden of proof
Compensatory cost 90-91
CHAPTER- XV
Execution of decrees
Order XXI and the relevant rules
Powers of the executing court
Stay of execution case
Enforcement of decrees for specific performance of restitution of conjugal rights and for injunction, rule 32
Attachment of immovable property and objection to such rules 54-58
Sale of immovable property in execution of a decree, rules and
Setting aside of sale, rules 89-91.
Rules 100- 103
Commissions and Local inspection 105-116
Commission to examine witnesses
Commission for local investigation
Commission to effect partition
Commission to examine accounts
Local inspection under rule 7 of Order XXXJX
CHAPTER-
Interlocutory matters 117-137 Attachment before judgment, Order XXXVIII, rules 5 and 6
Some instances where the Superior Courts found the order of attachment before judgment not proper
Temporary injunction, Order XXXLX
Prima facie arguable case
Irreparable loss
Balance of convenience and inconvenience Temporary injunction - development work and public duties of any department
Injunction against co-sharer
Injunction in a suit for partition restraining a co-sharer from making any construction
Injunction to stay execution
Mandatory ad-interim injunction under section
Disobedience of an order of injunction
Issuance of temporary injunction when the maintainability of the suit is questioned
Rule A of Order XXXJX
Appointment receivers, Order XL
Appointment of receiver in a suit for partition
Appointment of receiver in a partnership suit
Inherent power of the court
Applicability of section 151 of the Code
Maintainability of suits 143-166
Maintainability of suits in respect of a deed or a decree
Maintainability of filed under section 9 of the Specific Relief Act
Maintainability of suits for declaration of title to immovable property
Maintainability of suits against
Maintainability of partition suits
Question of maintainability raised at the interlocutory stage
Question of maintainability on the ground of defect of parties
Question of maintainability on the ground incompetency of the person who filed the suit Question of maintainability as regards locus standi, legal right or status.
Maintainability of suits for permanent injunction
Maintainability of Small Cause Court Suits
Maintainability of suits of Family Courts
Appeals 167-176
Appeals from decrees, section 96 of the Code and Order XLI
Powers of the Appellate section 107 of the Code
To determine the case finally
Remanding a suit
Taking of additional evidence
Stay of proceedings and executions, Order XLI rule 5
Appeals from Orders
Section 104 and Order of the Code
XXI
Revision 177-180
Section the Code
Powers of the revisional court
Limitation for filing of a revisional application
(2) of section
Trial of Family Courts Suits 181-188 Jurisdiction of the Family Courts
Institution of suits
xiv
Pre-trial proceeding and
Recording of evidence
Enforcement of decrees of the Family Courts
Interim Orders
Application and non-application of certain laws
cases 189-207 Right of pre-emption under section 96 of the State Acquisition and Tenancy Act
Who can file an application for pre-emption
Splitting up of jama
Application of the principle of waiver, acquiescence and estoppel
Doctrine of partial pre-emption
Conversion of an application for pre-emption
Meaning of 'date of knowledge'
Determination of the status of the petitioner and the purchaser
Nature of the land transferred
Addition of party
Status of the co-petitioner
Final order
Application of Order JX Rule 9 and Rule 13 of the Code
Trial Procedure of the Small Cause Courts Suits 208-209
CHAPTER-XXV
Problems relating to suits for specific performance of contract 210-215 Granting of solatium
Disputed question of title
Application of section 27(b) of the Specific Relief Act
Compliance with provisions of certain laws
XV
The Limitation Act 216-248
Some important problems relating to different provisions of The Limitation Act
Section 3
Section 5
Section 5 and 29
Section 6, 8 and Article 44
Section 14
Section 14 and section 29
Section 18
Section 22(1)
Section 28, Articles 142, 144, 149 Extinguishment of right to property and Establishment of right to property by adverse possession
Adverse possession against co-sharers of joint properties
Application of Articles 142 and 144
Application of Article 149
When continuous and uninterrupted possession does not confer title
Establishment of right to property on the basis of an invalid document
Application of Article 120
Articles 182 of The Limitation Act and section 48 of the Code of Civil Procedure
n
TRIAL OF Criminal Cases
Contents
General Principles 251-256 Innocence of the accused
Defence taken by the accused persons
Benefit of doubt
Mens rea or motive
CHAPTER-
Initiation of Criminal cases 257-270
Complaint case
case Case)
case (FIR Case)
First Information Report (FIR)
GD. Entry and FIR
Unnatural death cases
Place of Inquiry and Trial 271-281
Jurisdiction of Criminal Courts
Sections -183, 188
Search and Seizure 282-286
Section 103 the Code
Use of the evidence of the seizure list witnesses
Detention and Remand 287-290
Arrest
Detention and Remand
Taking of Cognizance 291-296
Principles of taking of cognizance
Naraji Petition
Trial Procedure 297-301
Trial in Absentia
Section 205C
Section 205CC
Section 205D
Hearing under section
CHAPTER-
Framing of Charge 302-340
Principles to be followed at the time of charge
Alteration of the charge Use of sections and 149 of the Penal Code in framing charge
Framing of charge regarding offences of culpable homicide amounting to murder and not amounting to murder Framing of charge regarding offences of hurt and grievous hurt
Framing of charge under section and 412 Penal Code
Framing of Charge under sections 406 and 420 of the Penal Code
Framing of charge and holding of trial of offences under Madak Niantran Ain
Charge under sections 25B and 25C of the Special Powers Act
Charge under section of the Arms Act
Discharge of the accused
Discharge under section and of proceeding under section
Application of sections 247and 249 of the Code 341-348 Application of section 247
Application of section 249
CHAPTER- X
Summary Trial 349-351 Sections 260 - 265 of the Code
CHAPTER- XI
Recording of evidence and Use of evidence 352-360 Mode of taking and recording evidence in inquires and trial
Order of examination of witnesses
Number of witnesses
Leading questions
Cross-examination
Re-examination and recall
CHAPTER-
Assessment of Evidence 361-376
Use of FIR in evidence
Use of statements of witnesses recorded under section 161 of code
Use of confessional statement recorded under section 164 in evidence
Use of statement of a witness recorded under section 164 in evidence
Use of extra-judicial confession in evidence
Use of dying declaration in evidence
Use of medical evidence
Conflict between inquest report and post mortem report
Use of report of an expert in evidence
xix
Assessment of oral evidence
Evidence of a child witness
Evidence of a dumb witness
Evidence of related and interested witnesses
Evidence of a chance witness
Evidence of hostile witnesses
Evidence of the accused and the approver
Examination of the accused under section 342 Effect of improper examination and under section 342
Use and evidentiary value of a statement under section 342
Judgment 377-383
Hearing of arguments
Delivery of judgment
Operative part of the judgment
Appeal & Revision
Appeal
Procedure of hearing appeal
Appeal by a fugitive
Summary disposal of appeal
Appeal against acquittal
Appeal inadequacy of sentence
Disposal of appeals
Retrial
Withdrawal of appeals
Abatement of appeals under section
Revision
XX
CHAPTER-XV
The Children 1974
Problems regarding trial, conviction, sentence of a child accused
Ascertainment of the age of the accused
Conviction and sentence of a child Section and 52 of the Act
CHAPTER- XVI
Miscellaneous 403-431
Postponement and adjournment of proceedings, section 344
Compounding of offences under section 345
Previous acquittal or section 403
Withdrawal from prosecution under section 494
Granting of bail under the Penal Code
Granting of bail under other Penal Laws
Cancellation of bail
Bail under section 498
Disposal of properties under sections
XXI