Civil Procedure Code

1. Question: If an appeal be dismissed for default of the appellant is then any scope for re-admission of appeal? Give your answer under order 41 rules 19 and 19A?

Answer of the question number 1: Yes, an appeal is dismissed for default of the appellant. Where the appellant was not present on the hearing of the appeal and the court dismissed the appeal. After that the appellant apply to the court for re-admission under order 41 rule19 and 19A. According to Order XLI rule 19 of Code of Civil Procedure;

“where an appeal is dismissed under rule 11, sub-rule (2), or rule 17 or rule 18, the appellant may apply to the Appellant Court for re-admission of the appeal; and where it is proved that he was prevented by any sufficient cause from appearing when the appeal was called on for hearing or from depositing the sum so required, the court shall re-admit the appeal on such terms as to costs or otherwise as thinks fit.

 The limitation act section 5 (condo nation of delay) will apply to the application under order 41 rule 19.

According to Order XLI rule 19A of Code of Civil Procedure;

“notwithstanding anything contained in rule 19 or any other law, the court may in order to avoid and expedite disposal directly re-admit without requiring the appellant to adduce evidence to satisfy it about sufficient causes as required under rule 19”.

Under Order 41 rule 19A there is no provision of payment of cost and no appeal shall be re-admitted more then once. As soon as an order under Order 41 rules 19A (i) is passed the notice shall be issued upon the respondent at the cost of appellant.

2. Question: What do you mean the term re-admission and re-hearing? Can a court directly re-hear the appeal?

Answer of the question no 2:

Re-admission- In general sense re-admission means a second or subsequent admission. Re-admission is an admission procedure followed by a person who was previously enrolled at Grand Valley and then dismissed or suspended.

Rehear-To hears again.  In according to law rehear means hear or try a court case anew.

Yes, the court directly re-hears the appeal. According to Order 41 rule 21A of the Code of Civil Procedure;

“Notwithstanding anything contained in rule 21 or any other law, 21A the court may in order to avoid delay and expedite disposal directly re-hear an appeal which is heard exparte without requiring the respondent to adduce evidence to satisfy it about sufficient causes as required under rule 21”.

Under Order 41 rule 21A the respondent may apply to the appellate court for re-hearing the appeal when the court dismissal exparte and there is clear provision for payment of cost be which shall not exceeds TK 3000. Under Order 41 rule 21A such notice shall issued upon the appellant at the cost of the respondent and no appeal shall be re-heard more than once.

3 (a) Question: Discuss the provision relating to the jurisdiction of the Small Causes Court Act?

    (b) Question: Can a Small Causes Court take cognizance of a suit concerning any act done by the government?

Answer of the question no 3 (a):  The provision relating to the jurisdiction of the Small Causes Court Act (1887) are in the following:

According to section 15 and 16 of the Causes Court Act (1887);

Cognizance of suits by Courts of Small Causes.                        

15. (1) A Court of Small Causes shall not take cognizance of the suits specified in the second schedule as suits excepted from the cognizance of a Court of Small Causes.

(2) Subject to the exceptions specified in that schedule and to the provisions of any enactment for the time being in force, all suits of a civil nature of which the value does not exceed 1[ twenty five thousand Taka] shall be cognizable by a Court of Small Causes.

(3) Subject as aforesaid, the Government may, by order in writing, direct that all suits of a civil nature of which the value does not exceed 2[thirty thousand Taka] shall be cognizable by a Court of Small Causes mentioned in the order.

             Exclusive jurisdiction of Courts of Small Causes.                     

16. Save as expressly provided by this Act or by any other enactment for the time being in force, a suit cognizable by a Court of Small Causes shall not be tried by any other Court having jurisdiction within the local limits of the jurisdiction of the Court of Small Causes by which the suit is triable.

Return of plaints in suits involving questions of title.                  

23. (1) Notwithstanding anything in the foregoing portion of this Act, when the right of a plaintiff and the relief claimed by him in a Court of Small Causes depend upon the proof or disproof of a title to immoveable property or other title which such a Court cannot finally determine, the Court may at any stage of the proceedings return the plaint to be presented to a Court having jurisdiction to determine the title.

(2) When a court returns a plaint under sub-section (1), it shall comply with the provisions of the 1[ Code of Civil Procedure,

1908, Schedule I, Order VII, rule 10]; and make such order with respect to costs as it deems just, and the Court shall, for the purposes of the 2[ Limitation Act, 1908], be deemed to have been unable to entertain the suit by reason of a cause of a nature like to that of defect of jurisdiction.

Answer of the question no (b):  No, a Small Causes Court can not take cognizance of a suit concerning any act done by the government. Because Schedule no (ii) of the Small Causes Court which contained the suit excepted from the cognizance of a Court of Small Causes. And according to second schedule clause 1;

“A suit concerning any act done or purporting to be done by or order of the (Government)”.

4. Question: Distinction between the-

(I) Revision and appeal;

(ii) Revision and review?

Answer of the question number 4(I):

Appeal: Appeal is a process of re-examination of the judgment and decree, or order or the decisions passed by the original court is a suit or in a case. The expression “appeal” has not been defined in the code, but it may be defined as “the judicial examination of the decision by a higher court of the decision of an inferior court”.

Revision: Revision is re-working and re-writing. Revision, meaning "to see again," takes place during the entire writing process as we change words, rewrite sentences, and shift paragraphs from one location to another in our essay. Revision means the action of revising, especially critical or careful examination or perusal with a view to correcting or improving.

The distinction between the appeal and revision in the following:

(a)     An appeal lies to a superior court, which may not necessary be a High Court, while a revision application under the code lies only to the High Court.

(b)     An appeal lies only from the decrees and appealable order, but a revision application lies from any decision of a court subordinate to the High Court from which no appeal lies to the High Court or to any subordinate court.

(c)     A right of appeal is a substantive right conferred by the statute, while the revisional power of the High Court is purely discretionary.

(d)     An appeal abates if the legal representatives of a deceased party are not brought on record within the prescribed period. A revision application however does not abate in such case. The High Court may at any time bring the proper parties on the record of the case.

(e)     The grounds for an appeal and revision application are also different. An appeal lies on a question of fact or law or of fact and law, while a revision application lies only on the ground of jurisdictional error.

(f)      In case of appeal the memorandum of appeal must be filed before the appellate court by the aggrieved party, but filing of an application is not necessary in case of revision.

(g)     Ordinarily appellate jurisdiction involves rehearing on question of law as well as on facts of the case whereas revisional jurisdiction involves only the question of law and this jurisdiction is never considered a rehearing.

(h)     An appeal is considered to be a consideration of the original proceeding whereas unlike appeal revisional is not the constitution of the original proceeding.

(i)       An appeal is a right based remedy and can be claimed as of right if there is statutory existence of it, where the revision is the purely discretionary remedy and cannot be claimed as of right.

Answer of the question no 4(ii):

Appeal: Appeal is a process of re-examination of the judgment and decree, or order or the decisions passed by the original court is a suit or in a case.

Review: in simple word review means to reconsider, to look again or to re-examine. In legal parlance, it is a judicial re-examination of the case by the same court and by the same judge.

The distinction between the appeal and review are in the following:

(a)   An appeal lies to the superior court, while a review lies to the same court.

(b)   An appeal heard by a different judge, while a review of a judgment involves reconsideration of the same subject matter by the same judge.

(c)    The grounds of appeal are wider than the grounds of review.

(d)    An appeal lies on a substantial question of law, while a review application does not lie.

5 (a) Question: Discuss the method of calculation court fess in a suit in which several reliefs are sought be sad of difference causes of action? Give your answer stating the provision?

   (b) Question: Is there any document exempted form payment of court fess?

   (c) Question: Make such 3 documents stated not chargeable any fess?

Answer of the question number 5(a):  In a suit which several reliefs are sought based of different cause of action the method of calculation court fess are contain section 17 (1) of the Court Fees Act 1870;

“in any suit in which two or more separate and distinct causes of action are joined and separate and distinct reliefs are sought in respect of each, the plaint or memorandum of appeal shall be chargeable with the aggregate amount of the fees with the plaints or memorandum of appeal would be chargeable under this act in separate suits instituted in respect of each such”

In a suit which several reliefs are sought based of same cause of action the method of calculation court fess are contain section 17 (2) of the Court Fees Act 1870;

“Where more reliefs than one based on the same cause of action are sought either jointly or in the alternative, the fee shall be paid according to the value of the relief in respect of which the largest fee is payable”

Answer of the question no 5 (b):  Yes, there are document exempted from payment of court fees. The list of such document contained section 19 of the Court fees Act 1870.

Answer of the question no5 (c): The name of the 3 documents stated not chargeable any fees are the following (which contained in section 19 of the Court fees Act 1870)

(1)   Written statements called for by the court after the first hearing of a suit (section 19 (III));

(2)  Written authority to an agent to distrain. (section 19 (XII));

(3)   Application for the payment of money due by Government to the applicant. (Section 19 (XX)).

6 (a) Question: What do you mean by the term “Adjournment”?

  (b) Question: Discuss the provisions relating to adjournment in an appeal in view to order XLI rule 12A of the Code of Civil Procedure?

Answer of the question number 6(a):

Adjournment: To adjourn means to suspend until a later stated time. The act of postponing to another time or place. But in eye of law adjournment means shifting of a date fixed for hearing of a suit.

According to the order XVII rule 1 of the Code of Civil Procedure “the court may if sufficient cause is shown, at any stage of the suit grant time to the parties or to any of them, and may from time to time adjourn the hearing of the suit”. In every such case the court shall fix a day for the further hearing of the suit, and may make such order as it thinks fit with respect to the costs occasioned by the adjournment.

Answer of the question no 6(b): The provision relating to adjournment in an appeal in view of order XLI rule 12A of the Code of Civil Procedure are following:

(1)   The appellate court shall not grant more then three adjournments for hearing of an appeal at the instance of either party to the appeal, and any adjournment granted to a party beyond the aforesaid limit shall make such party liable to pay such cost which shall not be less than two hundred taka and more than one thousand taka to the other party as the court may deem appropriate and determine, non-compliance with which, by the appellant shall render the appeal liable to be dismissed and, by the respondent shall render the appeal liable to he disposed of ex parte.

(2)  An appeal dismissed or disposed of ex parte under sub-rule (1) shall not be revived for hearing unless the party, for whose non-compliance the appeal was dismissed or disposed of ex parte, makes within thirty days of such dismissal or ex parte disposal, an application to the court for such revival; and upon such application being made, the court shall award such cost as shall not be less than two hundred taka and more than one thousand taka; as it may deem appropriate and determine, and the cost being deposited, the appeal shall be revived for hearing without any further proceeding; and the cost deposited in the court shall be paid by it to the other party; provided that no appeal shall be revived more than once at the instance of the same party under this rule.

(3)  The Appellate Court shall not, of its own, order any adjournment at the stage of hearing of appeal without recording reasons there for.  

Four point that are to be proved for order of temporary and permanent injunction:-

(i)                  Threat

(ii)                Primafacie title and case

(iii)               Balance of convenience and inconvenience

(iv)              Irreparable loss.

Question: What is an interlocutory order?

Answer: On the application of any party to a suit the court may pass an order which is not final order in the suit and such order is called an interlocutory order. An interlocutory order does not dispose of the suit. This type of order reserves some further question of law and of fact for determination. Before granting an of application of temporary injunction the court may also pass a order restraining the other side passing a order in an interlocutory form. This kind of order may also be term as ad interim order.

v  Alternative dispute resolution  is three kinds:

1.       Arbitration

2.       Mediation

3.       Settlement.

1. Pauper: The main them of the provision relating for the application to file a case, as a pauper to make the justice available in substance to all without any discrimination of financial status of the citizens of a country.

Order (xxxiii) rule 1 of the civil Procedure Code are defined the term pauper in the following:

A person is a “pauper” when he is not possessed in the sufficient means enable to him to pay the fess prescribed by the law for the plaint of such suit, and where no such suit is prescribed when he is not entitled property worth 5000 taka other then his necessary wearing apparel and subject matter of the suit.

2. Receiver: The term ‘Receiver’ has not been defined in the Code of Civil Procedure. According to Kerr, he is “an impartial person appointed by the court to collect and receive, pending the proceeding, the rents, issues and profit of land or personal estate, which it does not seem reasonable to the court that either party should collect or receive, or for enabling the same to be distributed among the persons entitled’.

            In other words, he is an indifferent person between the parties to a cause, appointed by the court to receive and preserve the property or fund in litigation pendente lite when it does not seem reasonable to the court that either party should hold it.

Madiation-20.

Question: 1(a). On what ground can a court permit withdraw of a suit? (Order 23 Rule10).

                        b). Shall in a fresh suit instituted on permission granted in earlier suit effect the period of                                                                                                 limitation law? (No effect. Order 23 rule 2).

                     c). Discuss the provision be calling to disposal of a suit on compromise? (Order 23 rule 3).

Question: 2a). What stapes the plaintiff takes sole defendant or on the defendant dies? (Order 22 rule 4,                           9).

                     b). How when and what ground can admit of a suit? (Order 22 rule 9a note).

Question: Distinction the provisions stating the following cases-

(a)   Order 41 Rules 19 and 21.

(b)   Order 41 Rules 19A and 21A.

Answer of the question no :- (a)

According to rule 774 Civil Rules and Orders, the application under order 41 rules 19 and 21 Civil Procedure Code (1908) are registered as miscellaneous cases. But these two rules are in differences from each other. The differences between the order 41 rules 19 and 21 are following:

(i)                  Where the appellant was not present on the hearing of the appeal and the court dismissed the appeal. After that the appellant apply to the court for re-admission under order 41 rule19.  On the other hand, the respondent is not present at the time of hearing the appeal, and the court heard exparte and given judgment against the respondent then the respondent may apply to the court for re-hearing under order 41 rule21.

(ii)                Order 41 rule 19 is applicable for the appellant; but order41 rule 21 is applicable for the respondent.

(iii)               The appellant will apply under order 41 rules 19 when the court dismissed an appeal exparte; But the respondent shall apply under order 41 rules 21, when the court hear the appeal and give the judgment against exparte.

(iv)              Under order 41 rule 19 the appellant may apply to the appellate court for re-admission of the appeal; But under order 41 rule 21 the respondent may apply to the appellate court for re-hearing of the appeal.

(v)                Under order 41 rule 19 rule 19 the order of the cost is passed against the appellant; But under order 41 rule 21 the order of the cost is passed against the respondent.

(vi)              The limitation act section 5 (condo nation of delay) will apply to order 41 rule 19; But there is no such under order 41 rule 21.

Answer of the question no: - (b)

The both rules (order 41 rules 19A and 21A) have many differences from one another. The main differences between the order 41 rules 19A and 21A are the following:

(i)                   Where the appellant was not present on the hearing of the appeal and the court dismissed the appeal. After that the appellant apply to the court for re-admission under order 41 rule19A.  On the other hand, the respondent is not present at the time of hearing the appeal, and the court heard exparte and given judgment against the respondent then the respondent may apply to the court for re-hearing under order 41 rule21A.

(ii)                Order 41 rule 19A is applicable for the appellant; but order41 rule 21a is applicable for the respondent.

(iii)               Under Order 41 rule 19A the application may apply to the appellate court for re-admission of the appeal, when the court dismissed exparte; But under Order 41 rule 21A the respondent may apply to the appellate court for re-hearing the appeal when the court dismissal exparte.

(iv)              Under   Order 41 rule 19A, the court may in order to avoid and expedite disposal directly re-admit without requiring the appellant to adduce evidence to satisfy it about sufficient causes as required under rule 19; But under Order 41 rule 21A the court may in order to avoid delay and expedite disposal directly re-hear an appeal which is heard exparte without requiring the respondent to adduce evidence to satisfy it about sufficient causes as required under rule 21A.

(v)                Under Order 41 rule 19A there is no provision of payment of cost; But under Order 41 rule 21A there is clear provision for payment of cost be which shall not exceeds TK 3000.

(vi)              As soon as an order under Order 41 rule 19A (i) is passed the notice shall be issued upon the respondent at the cost of appellant; But under Order 41 rule 21A such notice shall issued upon the appellant at the cost of the respondent.

(vii)             Under order 41 rule 19A no appeal shall be re-admitted more then once; But under rule 21A no appeal shall be re-heard more than once.

5. Question: The civil rule and order is a subordinate legislation- explains?

Answer: Yes the civil rule and order is a subordinate legislation. Because-

(i)                  The law makers i.e. the legislature has not made the rules of the civil rule and order.

(ii)                Article 107 of the constitution of Bangladesh has given the power to the Supreme Court for making rules for the purpose of regulating the practice and procedure of the subordinate courts. According Article 107, “ (1)Subject to any law made by parliament the supreme court may with the approval of the president, make rules for regulating the practice and procedure of each division of the supreme court and of any court subordinate to it. (2) The supreme may delegate any of its function under clause (1) and article 113 to a division of that court or to one or more judges”.

(iii)               According to section 122 of the Civil Procedure Code (1908), “the supreme court exercises its rule making power of all subordinate civil courts to regulate the practice and procedure”.

(iv)              According to section 123 of the Civil Procedure Code, “A committee to be called the Rule Committee, shall be constituted for the purpose referred to in section 122. Such committee shall be consist of the following person (a) three judge of the supreme court, one of whom at least has served as a district judge for 3 years; (b) tow advocate of the civil court subordinate of the high court division; (c) a judge of the civil court subordinate to the high court division. The member of such committee shall be appointed by the civil judge, who shall also nominate one of their numbers to be president.

(v)                According to section 124 the Rule Committee shall make a report to the Supreme Court on any proposal to annul, after or add to the rule in the 1^st schedule or to make new rules, and before making any rules under section 122 the Supreme Court shall take such report into consideration.  

So we can say that the civil rule and order is a subordinate legislation.

6. Question: Define the term “Daily cause list”? What are the particulars to the examine by the Sheristadar on receipt on the plaint?

Answer: Daily cause list: A Daily cause list is to be prepared in a prescribed form and shall be posted in some conspicuous part of every court house for the information of the parties, their Advocates and the public. Cases and appeals shall be shown in the order in which they appear in the Dairy. Execution and Miscellancous may be shown either in the same list or separately.

The list shall prepare and posted not later than 1 PM on the working day preceding that to which the list relates. For the purposes of this list the case is sufficiently indicated by its number, years and class.

For example: Pre Misc (class) --------214(number) -------2005(year).

Lecturer_ Shibli Sir