The Civil Law is indubitably and certainly the most important branch of law for every constitutional country. The Civil Law consists of a body of rules, procedures, regulations and judicial precedents that helps in resolving the various non-criminal disputes. These disputes are either between individuals or organizations and can be on a variety of problems like ordinary issues, private matters, marriage conflicts etc. Saral Kanoon being one of the top law firms in Mumbai provides a complete gamut of legal services and expert counsel regarding the civil law India.

What is the Period of Limitation for a Suit for Possession of Immovable Property?

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Article 64: (Arts. 142 & 144 of the Act of 1908):

The period of limitation for a suit for possession of immovable property based on previous possession and not on title, when the plaintiff while in possession of the property has been dispossessed is twelve years and the period of limitation begins to run from the date of dispossession.

In Naran Bahara v. Mohan Majhi, (AIR 1985 Ori. 40), it has been held that under the Limitation Act, 1963, all suits for possession of immovable property have been brought under two categories namely, (i) suits based on the right of previous possession and not on proprietary title and II the suits-based on proprietary title. The first class of suits will attract Article 64 and the suits based on title will be governed by Article 65 and the time under Article 64 runs from the date when the possession of the defendant becomes adverse. The suit under Art. 64 must be brought within 12 years of the date of dispossession.

The burden of proving date of dispossession is on the plaintiff who, in order to succeed, must prove that dispossession was not prior to 12 years of the date of filing of the suit.

In Chapsibhai v. Purushottam, (AIR 1964 Bom. 287), it has been held that under Article 64 the plaintiff need not prove ownership and it is enough if he proves possession within 12 years.

Article 64 is restricted to the suits for possession or dispossession or discontinuous of possession. In order to bring a suit within the purview of the Art. 64, it must be shown that the suit is in form as well as in substance based on the allegation of the plaintiff having been in possession and having subsequently lost the possession either by dispossession or by discontinuance.

In Bhusan Lai v. Suresh, (AIR 1987 All. 25), it has been held that Art. 64 does not apply to any suit which in form or in substance is a suit for possession based on title. It is restricted to suits based only on possession.

In Taja Bibi v. Ghulam Mohammed, (AIR 1961 J&K 82), it has been held that the plaintiff cannot succeed under Art. 64 unless he makes out not only that he has possessory title over the property but also that he was in possession within 12 years next prior to the filing or the institution of the suit. He is bound to prove that he or his predecessor-in-interest was in possession within the period of 12 years next prior to the commencement of the suit and failing this he is out of cause.

In Seshrao v. Jashwant, (AIR 1969 Bom. 429), it has been held that when the lessee is and after his death his heirs are entitled to be in judicial possession even after the expiry of the lease, the heirs of the lessor cannot dispossess them forcibly. In such a case, the heirs of lessee can file a suit for possession within 12 years of such dispossession and to such suit Art. 64 is attracted.

Possession is the visible possibility of exercising physical control over a thing with the intention of doing so, either against all worlds or against all the world except certain persons. Possession may take various forms. In Gunwant Lai v. State, (AIR 1972 SC 1756), it has been held that there are two varieties of possession—

(i) Actual or real possession; and (ii) constructive possession. Therefore, possession need not be physical possession but can be constructive having power and control over the thing.

In V. Satyanarayana v. Manumayamma, (AIR 1967 SC 174), the Supreme Court has held that for the purpose of Art. 64, the possession is either actual possession or possession through a tenant who may have paid either voluntarily or through the decree of the Court to a person claiming possessory title.

In Manhoo Lai v. Malloo, (AIR 1964 All. 213), it has been held that possession may be acquired by force or by anyone who has no title. So, the animus needed for possession is present even when somebody takes forcible possession with the intention to exercise physical power over it.

In Asha Ram v. Ram Chandra, (AIR 1939 All. 161), it has been held that actual user without animus possidendi is no possession under the law. So, mere tethering or grazing cattle or storing logs or manure by one person on the land of another is not possession of such land.

In order to attract Art. 64, the plaintiff filing a suit for recovery of possession on the basis of his previous possession has to prove that while in possession he has been dispossessed. The expression ‘Dispossession’ applies when a person comes in and drives out another from possession. It imports ouster; a driving out of possession against the will of person in actual possession. Dispossession implies some amount of force or fraud. In Lakshminarayan v. Vithaldas, (AIR 1962 MP 31), it has been held that there can be no dispossession unless there is a termination of the previous possession of a person followed by actual possession by another. So, unless a person takes possession of the another there can be no dispossession by that person.

Art. 64 signifies the relief for possession on dispossession and not discontinuous of possession by the plaintiff accompanied by possession of another. The term ‘discontinuance’ implies a voluntary act and abandonment of possession followed by the actual possession of another.

In a case falling under Art. 64, the plaintiff must at the outset show that he had been in possession within 12 years before suit, and cannot rest merely on a proof of title. When a plaintiff sues for possession on the basis of dispossession, the burden lies on him to show that the date of his dispossession or discontinuance of possession was within 12 years of the suit. Basing adverse possession as the root of title of a suit for title may be filed and it will be governed by Art. 64 of the Limitation Act, 1963. In a suit under Art. 64, it is not for the defendant to raise and prove adverse possession in order to show that the suit is time barred and it is the plaintiff who has to prove possession and dispossession within a period of 12 years prior to the suit.

Under the Art. 64, the limitation starts from the date of dispossession of the suit and land the onus is upon the plaintiff to prove that he was dispossessed within a period of 12 years from the date of commencement of the suit for recovery of possession.

If the original owner does not come forward and assent his title by process of law within the period of limitation, his right is extinguished and the person in possession acquires absolute title.

What are the remedies against an ex parte decree?

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Where the plaintiff appears but the defendant does not appear in the court when the suit is called out for hearing, and if the defendant has been duly served, the court is empowered to hear the suit ex parte, i.e., in the absence of the defendant, and pass a decree against the defendant. Thus, an ex parte decree is a decree passed by the court in the absence of the defendant. See, Order 9 Rule 11 of the Civil Procedure Code (CPC).

Following remedies are available to the defendant against whom an ex parte decree has been passed:

(1) Under the provisions of Order 9 Rule 13 of the CPC, where a decree is passed ex parteagainst a defendant, he may apply to the Court by which the decree was passed for an order to set it aside. In such a situation, if the defendant satisfies the Court that the summons was not duly served, or that he was prevented by any sufficient cause from appearing when the suit was called on for hearing, the Court shall make an order setting aside the decree as against him upon such terms as to costs, payment into Court or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit.

(2) The defendant may file an appeal against such ex parte decree under Section 96(2) of the CPC.

(3) Alternatively, if no such appeal is available against such decree, the defendant may file a revision against such ex parte decree under the provisions of Section 115 of the CPC.

(4) Under Order 47 Rule 1 of the CPC, the defendant may apply for review, subject to the conditions mentioned therein.

(5) If the ex parte decree has been obtained by the plaintiff by fraud, the defendant may also have the option / remedy of filing a regular suit to set aside such ex parte decree. It should be noted that, ordinarily, a suit to set aside an ex parte decree cannot be filed. However, if such decree was obtained by the plaintiff by fraud, a suit may be maintainable to set aside such decree.

STAGES OF CIVIL SUIT

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Normally a civil suit has to travel through 17 main stages from institution of the suit till its judgment, they are as under :-

Sr.StageProvisionTimeOption
1Institution of SuitOrder 4, 6 and 7
2Issue of SummonsOrder 530M
3Filing of Written StatementOrder 830M
4Examination of PartiesOrder 1010D
5Settlement of DesputeSection 8915M
6Discovery & InspectionOrder 1130M
7AdmissionOrder 1215M
8Production of DocumentsOrder 1307D
9Framing of IssuesOrder 1415M
10List of WitnessOrder 1615M
11Summons to WitnessesOrder 16 R 1 (4)05M
12Settling DateOrder 1607M
13Evidence of PartiesOrder 18 R 4

r/w Order 17

—-M
14Exhibiting of DocumentsOrder 18 R 4 (1)

Proviso

07D
15Cross-exam by partiesOrder 18 R 4 (2)—-M
16ArgumentsOrder 18 R 2 (3A)—-D
17JudgmentOrder 2030M

 

Out of these 17 main stages the amended code does not speak about any time limit for Examination of Parties – Order 10, Settlement of Disputes – Section 89, Production of Documents – Order 13, Exhibiting of Documents – Order 18 R 4 (1) proviso and Arguments – Order 18 R 2 (3A), but in the rest of the provisions the amended code has given time limits in the provisions itself and we cannot ignore them so easily and without any rare and exceptional circumstances.

Hon’ble Apex Court in case of Salem Bar cited supra has given a landmark in each of the provision.  In the light of this judgment every thing was set right.  Till the preparation of this paper Hon’ble Apex Court, High courts of various states including Hon’ble Bombay High Court has delivered judgments in respect of all the 17 stages as mentioned above.

Now once a party has filed the suit then he has to comply all the provisions one by one within the stipulated time. If the table shown as above is effectively implemented then no prejudice is likely to be caused to either of the parties and it will be a milestone in disposing off the civil suit in a stipulated time and that too within the framework of law, respecting the intention of the legislature. Now it is for us to decide whether to follow the provisions or the practice while interpreting and implementing the provisions of amended code.

In the amended code most of the provisions contains time limits for a particular stage.  Maximum of the provisions are mandatory in nature and in very few of them the discretion lies with the court.

  1. Plaintiff has to file the plaint complying the provisions in all respect as contemplated under Order 4 r/w Order 6 and 7 of the code.
  2. Plaintiff  has to issue summons within 30 days from the institution of suit.
  3. After the service of summons defendant has to file his written statement within 30 days from the receipt of summons as per Order 8 R 1 of the code
  4. No further time exceeding 90 days after date of service of summons be extended for filing written statement as per proviso to Order 8 R 1 of the code.
  5. Within 10 days from the filing of written statement court has to examine the parties so as to explore the possibilities of compromise in between the parties and to refer the matter of settlement under section 89 of the code.
  6. If parties fail to compromise the matter then court has to keep the matter for discovery and inspection  within the time span of           7 – 10 – 10 – 3 days,  as per Order 11 of the code.
  7. Then to adjourn the matter for admission within the time span of  15 days as per Order 12 of the code.
  8. Then parties have to file the original documents prior to framing of issues within the time span of  7 days, as per Order 13 of the code.
  9. Court has to frame the issues within 15 days as per Order 14 of the code.
  10. Parties have to file the list of witnesses within 15 days from the date of framing of issues as per Order 16 of the code.
  11. Plaintiff has to issue summons to the witnesses either for adducing evidence or for production of documents within 5 days of filing of list as per Order 16 R 1 (4) of the code.
  12. Parties have to settle the date of evidence as per Order 16 of the code.
  13. Plaintiff has to file the affidavits of all his witnesses within 3 adjournments as per Order 18 R 4 r/w Order 17 of the code.
  14. Court has to exhibit the documents considering their proof and admissibility with a reasoned order as per proviso to Order 18 R 4 (1) of the code.
  15. Cross examination of the plaintiff and his witnesses on day to day until all the witnesses in attendance have been examined as per Order 18 R 4 (2) r/w Order 17 R 2 (a) of the code.
  16. Defendant has to issue summons to the witnesses either for adducing evidence or for production of documents as per Order 16 R 1 (4) of the code.
  17. Defendant  has to file the affidavits of all his witnesses within 3 adjournments as per Order 18 R 4 r/w Order 17 of the code.
  18. Court has to exhibit the documents considering their proof and admissibility with a reasoned order as per proviso to Order 18 R 4 (1) of the code.
  19. Cross examination of the defendant and his witnesses on day to day until all the witnesses in attendance have been examined as per Order 18 R 4 (2) r/w Order 17 R 2 (a) of the code.
  20. Parties have to conclude their arguments within 15 days from the completion of their respective evidence as per Order 18 R 2 (3A) of the code.
  21. Court has to delivered judgment forthwith or on or before 30 days and not exceeding 60 days from the date of conclusion of the arguments as per Order 20 R 1 of the code.

Hierarchy of Civil Courts in India and General Principles of Institution of Suits

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Hierarchy of Civil Courts in India 

General Principles of Institution of Suits                Courts are there to settle the disputes between individual persons and to declare and establish their rights regarding the matters in dispute. So whenever persons fail to solve a dispute among themselves, they can approach the Court by filing a suit. It is called institution of suit.

 

There are various categories of Courts. All categories can be classified under Courts of First instance and appellate Courts. As per Section 15 of Civil Procedure Code every suit shall be instituted in the Court of the lowest grade competent to try it. Every Court has specific pecuniary and territorial jurisdiction. So we cannot file suits as per our convenience. Rules regarding filing of suits are guided by various provisions of Civil Procedure Code. Now let us have a look at those provisions.

  1. Where to file the case:
    Before filing a suit one should know where or before which Court the suit has to be filed. It is called place of suing. Place of suing is subjected to two limitations:
    (1) territorial jurisdiction of the Court; and
    (2) pecuniary jurisdiction of the Court, Territorial jurisdiction depends upon the nature of the suit, i.e. subject matter of the dispute. Depending upon the nature of subject matter, suits are divided into 3 categories. They are-
    # Suits relating to immovable property.
    # Suits relating to compensation for wrongs to person and movables.
    # Other suits.

    In case of Suits relating to immovable property:- As a general rule suits relating to immovable property shall be filed in the Court within the local limits of whose territorial jurisdiction the property is situate, In other words, where the property in dispute is situated.

    Section 16 of the Civil Procedure Code is as follows:
    “Suits to be instituted where subject matter situate:­ Subject to the pecuniary and other limitations prescribed by any law, suits-
    (a) for the recovery of immovable property with or without rent or profits.
    (b) for the partition of immovable property.
    ( c) for the foreclosure, sale or redemption in the case of a mortgage of or charge upon immovable property.
    (d) for the determination of any other right to or interest in immovable property.
    (e) for compensation for wrong to immovable property.
    (f) for the recovery of immovable property actually under distraint or attachment,

    shall be instituted in the Court within the local limits of whose jurisdiction the property is situate:
    Provided that a suit to obtain relief respecting, or compensation for wrong to, immovable property held by or on behalf of the defendant may, where the relief sought can be entirely obtained through his personal obedience, be instituted either in the Court within the local limits of whose jurisdiction the property is situate, or in the Court within the local limits of whose jurisdiction the defendant actually and voluntarily resides, or carries on business, or personally works for gain.”

    Here it should be noted that the pecuniary jurisdiction of Courts differ from State to State.

    There is yet another limitation regarding the filing of suits on immovable property. It is clear from the proviso to Section 16. The proviso relates to the suits for compensation in relation to immovable property held by or on behalf of defendant and where the relief sought can be entirely obtained through his personal obedience. That means, the relief for compensation is independent of its own and has nothing to do with other relief’s regarding immovable property referred to in clauses (a) to (d) of Section 16.

    3. Property at distant places:- 1, 2, 3, 4 are brothers. They are living at different places like A and B. They are having their immovable ancestral properties at A, B and C. 1 prefers to file a suit for partition against 2, 3 and 4. He can file the suit at A, B or C i.e where a portion of the property is situate. But in such cases, the entire suit claim has to be taken into consideration for purpose of payment of court fee and pecuniary jurisdiction. In the above example, no doubt the suit for partition can be filed at A provided the total value of property situated at A, B and C is less than rupees one lakh. This is so because only Junior Civil Judge Court is located at A. If the total value of the entire property is more than rupees one lakh the suit cannot be filed at A. The suit can be filed at B,, or at C where Senior Civil Judge are located. It is clear from the wording of Section 17 of Civil Procedure Code which runs as follows :

    Suits for immovable property situate within jurisdiction of different courts:- Where a suit is to obtain relief respecting, or compensation for wrong to, immovable property situate within the jurisdiction of different courts, the suit may be instituted in any court within the local limits of whose jurisdiction any portion of the property is situate:

    Provided that, in respect of the value of the subject-matter of the suit, the entire claim is cognizable by such court. ‘

    4. Suits for compensation for wrongs to persons or movables:— As far as suits relating to immovable properties and the relief is by way of compensation, suit can be filed at two places
    (1) where the defendant resides or

    (2) where the wrong was done to the movables. The same will apply to the suits for compensation for wrongs to persons. Section 19 of Civil Procedure Code reads as under:

    Suits for compensation for wrongs to person or movables:­ Where a suit is for compensation for :\Tong done to the person or to movable property, if the wrong was done within the local limits of the jurisdiction of one court and the defendant resides, or carries on business or personally works for gain, within the local limits of the jurisdiction of another court, the suit may be institute at the option of the plaintiff in either of the said courts.

    To put it differently, this section corresponds to suits for damages or compensation in relation to persons or movable property. Suits involving tortious liability are covered by this section. We are aware that Tort is a civil wrong for which the relief lies by way of claiming unliquidated damages. Nuisance, negligence, defamation, accident, trespass etc. come under tortious liability. In such cases the two options where to file the suit are where the defendant resides or carries on business or work for gain or where the tortious act takes place. It is for the plaintiff to choose either of those places. Of course, this section is also subjected to pecuniary jurisdiction.

    5. Filing of suits in other cases:- As far as other suits not covered under Sections 16, 17 and 19 of Civil Procedure Code, the suits have to be filed where the defendant resides or cause of action wholly or in part arises. Money suits are the best example to understand the position easily. ‘A’ borrowed Rs. 20,000/- from ‘B’. ‘A’ resides at Guntur and ‘B’ resides at Mangalagiri. Pronote was executed at Mangalagiri. ‘B’ can file a suit against ‘A’ for recovery of amount either at Mangalagiri or at Guntur. Ifthe amount borrowed is above rupees one lakh, the suit should be filed only at sub-court, Guntur.. There is one more thing to be kept in mind which is very important. The word ‘where defendant resides’ means, where he actually resides at the time of filing of the suit. For example, ‘A’ and ‘B’ are residents of Guntur. ‘A’ borrowed some amount from ‘B’ at Guntur. Subsequently, ‘A’ shifted his family to Nellore. ‘B’ shifted his family to Hyderabad. ‘B’ can institute a suit against ‘A’ at Guntur or at Nellore. Section 20 of Civil Procedure Code is as under:

    Other suits to be instituted where the defendant resides or cause of action arises:- Subject to the limitations aforesaid, every suit shall be instituted in a court within the local limits of whose jurisdiction-
    (a) the defendant, or each of the defendants where there are more than one, at the time of the commencement of the suit, actually and voluntarily resides, or carries on business, or personally works for gain; or
    (b) any of the defendants, where there are more than one, at the time of the commencement of the suit, actually and voluntarily resides, or carries on business or personally works for gain, provided that in such case either the leave of the court is given, or the defendants who do not reside, or carry on business, or personally works for gain, as aforesaid, acquiesce in such institution; or
    (c) the cause of action, wholly or in part, arises.

    Explanation:– A Corporation shall be deemed to carry on business at its sole or principal office in India or in respect of any cause 0 action arising at any place where it has also a subordinate office, at such place.

  2. A reading of Clause (a) and (b) requires some careful examination.

    Where there is only one defei1dant, there is no problem. But where there are more defendants than one, where to file the suit? In such a case, different suits have to be filed where each of the defendant resides. Such a thing is not advisable because it is a very costly affair that leads to conflicting judgments. The only alternative is to file a suit where cause of action for the suit arises. This is the best suitable method. Even if there are ten defendants and are residing at 10 different places, a single suit can be filed against all of them where the cause of action arises.

    But in some cases, the place where cause of action arises may be far away from where the plaintiff resides. One of the defendants may be residing very close to the plaintiff. In such a case, what is the option for the plaintiff? Clause (b) of Section 20 gives the answer. In such a case, the plaintiff can file a single suit where anyone of the defendants resides. But either the other defendants should not oppose the same or the court must give pem1ission to the plaintiff for so instituting the suit.

    Finally a few words about cause of action. Cause of action is not an isolated one, nor a single instance. A number of circumstances and instances constitute cause of action. That means cause of action may arise at more than one place. That is to say arise wholly or in part. It is clear from Clause (c) of Section 20, that suits covered under Section 20 can be filed where cause of action arises wholly or in part. Promissory note transferred for valid consideration is best example.

    So far we have discussed in detail various aspects regarding place of suing.

  3. The whole discussion may be summarized as under:
    1) Regarding suits relating to immovable property, place of cause of action is immaterial. Place of residence of defendants and plaintiff is immaterial. Where the property is situate, there the suit should be filed. This is the most fundamental principle.

    2) Where the immovable property is situated at different places and within the territorial jurisdiction of different Courts, there also place of cause of action is immaterial. Place of residence of plaintiff or defendant is also immaterial. Suit can be filed where any portion of the immovable property situates.

    3) As far as suits regarding compensation for wrong to immovable property held by defendant, the place of residence of plaintiff is immaterial. Suits can be filed where the defendant resides, or wrong was done in relation to immovable property.

    4) In case of suits involving tortious liability claiming compensation for wrongs to person or movables, the place of residence of plaintiff is immaterial. The suit can be filed where the defendant resides or where the wrong was done to the person or movable property (cause of action).

    5) Regarding other suits, the place of residence of plaintiff is immaterial. Suits can be filed where the defendant resides or cause of action arose wholly or in part. Where there are more than one defendant, and are residing at different places, different suits have to be filed at different places where defendants reside. As it is very costly and not convenient, suit can be filed where anyone of the defendants resides, with the leave of the court or if the other defendants do not object.

    6) All the above suits are subjected to pecuniary jurisdiction of the Court.
    If we carefully observe, in all cases, the place of residence or where the plaintiff is residing is immaterial. No suit can be filed exclusively on the basis of place of residence of plaintiff. The reason is obvious. Plaintiff is the person who files the suit and drags the defendant to court. If he is allowed to file the suit as he pleases, he may take advantage of it and may harass the defendant by simply filing suits within the local jurisdiction of court where he resides.

    By now it is clear where to institute a suit. Next question is who are the parties to the suit. In other Words, who can file a suit and against whom.