Case Flow Chart:

Case Flow Chart:

 Litigation: Litigation means legal actions and all the Proceedings there of.


 Case: Case is a General term, which is a mechanism  for taking legal Action. Case includes suit and Miscellaneous Case. All Suit are case, but all cases  are not essentially suit.


 Suit of civil nature means a Suit where right to property or right to office is contented.


 Civil Court has got the jurisdiction to take cognizance of suit of civil nature and try it.


 Suit: The case which is presented by Submitted Plaint before a Competent Civil Court is Called Suit.


 Miscellaneous case: The case which is Instituted to a competent court of jurisdiction by filing an application is called Miscellaneous Case.


 Special Civil Court: Special Civil Court will prevail Over the  general Civil Court  purely religious matter cannot be tried by the Civil Court. but when the religious matter Relates with Post, then the Civil Court may entertain the suit.

Question: Appeal, Revision, Review and Reference:

Question: Appeal, Revision, Review and Reference:

Appeal:

Apple is a expansion of a suit and a right given by law. A person aggrieved by an original decree passed by a Court. The person may file an appeal in an proper Court of appeal. Under  section 96 of the code of civil procedure normally only  parties of the original suit may file an appeal but There may be a cases when a person who was not a party in the original suit may file an appeal against a decree if he is affected by that Decree.

Powers of the Appellate  court under  section 107 of the code.

1. The Appellate court Shall have power to determine a case finally.

2. The Appellate court Shall have power to remand a case.

3. The Appellate court Shall have power to  frame issues and refer them for trial; and

4. The Appellate court Shall have power to take additional Evidence Or require Such evidence to be taken.

In addition, the Appellate court Shall have same Powers and shall perform on court of Original Jurisdiction in respect of Suits instituted there in

To determine the case finally:

 The Appellate Court Shall make every try to decide the case Finally on  merit taking into  consideration the evidence on record, The Appellate Court empowered to  Consider all  questions of law and fact and decide the case Finally. However it can decide a question of law even though it was not raised in the trial Court.

Remanding a Suit:

An appeal may be remanded when a suit is disposed of upon a preliminary point. The Appellate court may remand the suit and It may also direct What issue or issues Shall be tried in the Suit remanded.

if the disposal of the suit by the trial Court is on a preliminary point, Only then Remand can be Ordered.

Remand is deprecated by the Superior Courts. If the evidence on record is Sufficient for the Appellate Court to finally decided the questions raised in the appeal. There is no scope of remanding a suit.

Taking of additional evidence:

Only under the following circumstances The Appellate court may allow  such evidence  to be produced.

1. when the trial court has refused to allow an evidence which should have been allowed/admitted or

2. when the Appellate court itself requires any document to be produced.

3. If a party files any application for taking additional evidence, the Appellate court  is required to consider.

i. Whether the party had a chance to produce such evidence in the trial Court.

ii. whether there is any relevant statement in the Pleadings of the parties.

iii. Whether the trial  Court refused  to admit  that evidence without any valid reasons.

Stay of Proceedings and of executions:

Filing of an appeal is not sufficient to stay the Proceedings pending before the Lower court.

1. If the Appellate court is satisfied that loss may result to the party unless the Order is made.

2.  The Application has been made without any unreasonable delay.

3. Security has been given by the applicant for  due performance of the decree.

4. A Order of Stay may be passed.

Where There is no appeal There is a Revision.

Revision: section 115 of the code:

Revision means reconsideration, reappraisal, re-appreciation, revaluation of the order of the court. It Relates to questions  of law.

An aggrieved  party may file a revision against a decree or order that has been passed by the court of district judge, Additional district judge or against a decree passed by court of joint District judge, senior Assistant judge or Assistant judge to the High Court.

An aggrieved party may file a revision against an  order which has been passed  by a court of joint District judge, senior Assistant Judge or Assistant judge from which no Appeal lies.

The Court may call for the record If The  record has committed any error of law resulting in an error in such decree or Order Causing failure of Justice.

A court  of  Additional  District  Judge shall have all the powers of the district judge in respect of a revision transferred to it by the District Judge.

A Revision against an Order of the District Judge or Additional District judge shall be before the High Court Division where the high court division grants leave for such Revision.

Power’s of  the Revision Court:

A revision court may exercise its  power:-

1. when there is an error of  law of the.  And The error of law caused failure of justice.

2. When  the procedure followed by the lower court was not legal.

3. When the lower Court acted without jurisdiction.

4. When the lower court acted illegally.

5. When there is Misreading of evidence, Non-Consideration of any legal evidence. 

Limitation for filing of a Revision  application:

There is no period of limitation for filing a revision Application. However The  established principal is that such an application is to be filed within ninety days. It is also  settled that in a suitable Case.

When a revision is a filed before a District judge.  Limitation for filing Revision shall be  (thirty) 30 days because the period of limitation for filing an appeal before the District Judge is  30 (thirty)  days.

Distinction between appeal and revision:

1. The scope of appeal is wider then revision.

2. Appeal is a expansion of Suit. Appeal may be  filed challenging  the question of law and facts. On the other hand, Revision lies only in the law point. Revision court will see whether the court below Committed an error of law causing failure of Justice.

3. All decree are appealable save three decree such as 

i. Decree passed on Compromise.

ii. Decree passed under section 9 of S.R Act and

iii. The Small Cause Court Act, 1887.

iv. All Orders are emendable except Order Listed Out as appealable Order under Order 43 Rule 1 and Section 104 of CPC.

v. Where There is no appeal, There is Revision.

Review: The relevant provision are section:114,  Order 47  Rule: 1 to 9 of the CPC.

Any person is aggrieved by a Decree or Order.  The person may apply for a review against the decree or the order. And The Court may make such order as The Court thinks fit.

Reference: The Relevant  provisions are  section 113 Order: 46 Rule: 1 to 7,  CPC  Any Court may state a case and refer the same for the opinion of the High Court Division and The High Court Division may make such order as  the court thinks fit.

Difference between Appeal and Revision:

1. An appeal lies to the Superior Court, while a  review lies to same Court.

2. Review of a Judgement involves of the same subject matter by the same Judge. While Appeal is heard by a different Judge.

3. The ground of appeal are wider than the grounds of Review.

4. The power of Appellate court is wider than court of Review.

5. Where There is Appeal, There is no Review.

Consequence of Appearance and Non- appearance of parties ?

Question: Consequence of Appearance and Non- appearance of parties ?

And:

Order: 9 Rule: 1

Parties appear on day fixed in Summons for  defendant to appear and answer. The parties shall be in attendance at the court house in person or by their respective Advocate and then the suit shall be heard unless the  hearing is  adjourned to a future day fixed by the court.

Order 9 Rule 2 , 3 and 4

Rule: 2 

Dismissal of Suit where Summons not Served in Consequence of Plaintiff’s failure to pay Costs:

Suit shall be dismissed for default due to non-payment of postal code or Court fees for the service of summons.

Rule: 3  Suit may be dismissed for non-appearance of the parties on the date of final hearing.

Rule: 4  Remedies for setting aside :

1. Party may file fresh suit.

2. party may file an application which will be treated as miscellaneous Case.

 Remedy

party may do Revision against  judgement of miscellaneous case. It is a  remedy against judgement of miscellaneous case. 

Rule: 5

Where Plaintiff fails for one month to apply for fresh summons after  summons returned unserved.

 The court shall make an Order that the Suit be dismissed against defendant unless the plaintiff has satisfied the court that 

He  has failed to discover the defendants residence after his best try or

Such defendant is avoiding service of process, or

There is any other sufficient cause for  extending the time of  service of process.

The Plaintiff  may bring a fresh suit in such case- Subject to the law of limitation.

Order:9 Rule:8

Suit shall be dismissed for non-appearance of the plaintiff at the time of final hearing. But Decree may be passed in absence of the Plaintiff. When the defendant admit plaintiff claim.

Remedies for dismissal of suit:

Rule: 9  Plaintiff shall not do a fresh suit, of the same cause of action. Where a suit is the wholly or partly dismissed under  rule 8 for not appearance before the court. But he may apply for set aside the dismissal decision if he satisfies  the court for his Non- appearance. Then the Court shall make an order  to set aside the dismissal decision. But such order shall not be made unless notice of the application has been served  on the opposite party.

Order: 9 Rule: 9A

 The Court may set aside the suit dismissal without any evidence to satisfy the court about sufficient causes  but The plaintiff shall pay such cost not exceeding One thousand take The dismissal shall not be set aside under the rule 8 unless an application is  make with to the court within thirty days of the dismissed date by the Plaintiff and also such dismissal shall not be set aside more than once under  Rule: 9A.

The court is made setting aside Ex-parte dismissal and The Court shall notice to the defendant.

Order: 9 Rule: 10 

Where There are more plaintiffs than one and one or more of them appear in the court and the other Plaintiff do not appear. The court may be procee the suit as if  all the plaintiff has appeared.

Order: 9 Rule: 11 

Where  there are more defendants than one and one or more of them appear in the court and the other defendants do not appear in the court. The court shall make such order as if all the defendants had  appeared at the time of  pronouncing judgement.

Order: 9 Rule: 12 

If court has been ordered to appear a plaintiff or defendant in person. But the Plaintiff or dependent fail to appear and also fail to show sufficient Cause to the satisfaction of the court. In such case The case of Plaintiff’s shall be dismissed and The case of Differential shall be Ex-parte.

Order:9 Rule: 6,7, 13A and 13.

Order:9 Rule: 6

Suit shall be disposed of Ex-party for Non- appearance of the defendants at the time of final hearing.

when the Summons was not  duly served. The court shall direct a Second Summons  to be issued and  Summons served on the defendant.

 When Summons served, but not in due time The Court shall postpone the hearing of the suit to a future day. The court shall give notice of such day to the defendant.

When  the Plaintiff’s default that Summons  was not duly served, The Court shall order the Plaintiff’s to pay the costs made by the postponement.

Order:9 Rule: 7 

Where The court has adjourned the hearing of The Suit Ex-parte. and The defendent appears and  puts good cause for his previous Non-appearance. The court be heard in  answer to the suit as if he had  appeared on the day fixed for his appearance.

Remedies against Ex-Parte Decree:

There are the five Remedies against Ex-Parte Decree.

1. Setting aside Ex-Parte Decree under order 9, Rule 13A.

2. Miscellaneous case under the order 9, Rule 13.

3. Appeal under section 96 of CPC.

4. Revision under section 114 of the CPC.

5. Independent suit if the Ex-Parte decree was obtained by practicing  fraud under the section 42/39 of  the Specific Relief Act, 1877.

 Remedies against judgement and order of miscellaneous case is Revision or Appeal if The Mise case is allowed.

 Order:9 Rule:13

Setting aside decree  Ex-Parte against defendants:

A decree is passed Ex-Parte  against a defendant. The Defendant may apply to the court to set aside The Decree and if he satisfied the court that the Summons  was not duly served  or that he was  prevented from  appearing before the court. The court may make an Order setting aside  the decree. And The Court shall fix a date for the preceding with the suit.

Order:9 Rule:13A

 The court may set aside the decree without evidence to satisfy about the sufficient cause. But the defendant shall pay such cost not exceeding  three thousand take.

The decree shall not be set aside unless an application is made with affidavit  within thirty Days by the defendant.

Provided that The decree shall not be set aside more than once.

The court shall send a notice at the cost of the  defendant upon the Plaintiff’s.

Order:9 Rule:14

 Therefore Decree shall not be set aside on any such application as aforesaid unless notice has been served on the Opposite Party.

Order:9 Rule:15

Where the dismissal of a suit is set aside under rule 4 or rule 9 or a degree is  set aside  under  rule 13.

The suit shall proceed from the stage where The suit was before the making of the order  of dismiss or passing of the Ex-Parte Decree.

Discuss the salient feature of the execution of Decree ?

Question: Discuss the salient feature of the execution of  Decree ?

And: Execution of Decree and Orders (section 36  to 74 and order 21 of the code of civil procedure, 1908.

It has been said that in India, Pakistan and Bangladesh, the difficulties of Litigant begins when he was obtained  a Decree.

 A Decree Holder  puts it in execution to get the benefit of the decree. The unsuccessful party goes  to the  Appeal court  or Revision for doing set aside or modified the degree of the court. The decree is to be executed unless and until the Decree is get to the bottom of in the decree passed by the Higher Court.

Court competent to execute the degree:

Section: 38 A decree may be executed either by the court which passed it or by the court to which it is sent for execution.

Section: 38-46 and order 21 rule 3-9 deal with transfer of decree, mode of transfer and function of the transferee court.

 A Decree may be   transferred by the court passed the Decree.

1. The court may be transferred to the same district court (Rule 5) or  in  other District court (Rule 5) or High Court Division (Rule 9).  

2. The code is sending a degree to another code for execution.

3. The court shall send a copy of the decree.

4. The court shall send a certificate that the decree remains unsatisfied.

5. The court shall send a copy of the Order for Execution.

 Limit of  time for execution (Section:48)

A Lower Court can be executed within 3 years in case of without registration the decree or order.

If The Decree or Order  would be registered in such case Six years. On the other side A High Court can be Executed within 12 years. under  Article 183 of the limitation Act.

Functions of the executing Court:

Court executing the decree cannot question the Legality  of a Decree but The execution court can arise the following question by  way of exception.

1.  The court Can be any objection on the question that the court passed the decree. The Court  had no jurisdiction to pass it.

2. The question of territorial or pecuniary Jurisdiction does not arise when  the decree is to be Executed by the same Court Which passed the decree. But if the decree be insufficiency the executive Court. 

because the decree was passed again the Dead Men. The execution court may question on it.

3. When the degree is ambiguity. The execution Court may interpret the degree. The executing Court competent to the conduct the decree and it just/ Proper meaning.

Mode of Execution: 

The mode of execution of Decree depends on the nature of a Decree.

The Decree may be of;

1. For recovery of money.

2. For specific performance of contract. Or

3. For recovery of  specific  Immovable property or

4. For  restitution of conjugal rights etc.

section 30 to 36 deal with the mode of execution of each of the above Decree.

Execution  case has to  file in a prescribed from [Order 21 Rule 10 (2)]  

1. Notice does not require to issue to the judgement debtor. if the Execution case is made with 2 years from the date of degree.

2. Notice is required if it is made legal representative.

Arrest and Detention:

The remedy of arrest and detention in Civil prison is available only against the judgement-debtor in a money Decree.

A notice is to be issued to show Cause before arresting him. The procedure laid down in under section 37-40 are to be followed.

A decree is Executable in the manner and the procedure as laid down in Order 21 of the code of civil procedure.

However A decree passed in a suit for specific performance of contract or for restitution of conjugal rights or for injunction cannot be executed like other degree but can be enforced in the manner in rule 32 of Order 21. A Simple declaratory decree also may not be Executable.

An executable decree is executed by filing an application for executive. order 21 Rule 10 to 19. If There is any Bona fide mistake. The court may allow the defects to be corrected and if after giving an opportunity to  correct the defects but the decree holder fails. The Execution  application may be rejected.

Powers of Executing Court:

An executing code is to execute the decree as it stands. There is no power of executing Court to go beyond, but the degree may refuse to execute, if the decree is a passed again dead  man or passed by the court having no Jurisdiction.

Stay of Execution case: 

An execution case may be stayed for a reasonable time upon Showing Sufficient Cause. The principal have been mentioned in the chapter on appeals. The power given is discretionary.

This rule applies  when judgement debtor files a subsequent suit  challenging the Validity of the degree but This rule will not apply when a third  party files a Suit against the decree holder. The power is to be executed Judiciously.

Intervention of third party in a civil proceeding, order 21 rule 58, 89 to  91, 101-103

Rule: 58 
if  Third person Property is wrongly attested in execution of a Decree Property.  The third person may file miscellaneous case under order 21 rule 58 for releasing the attachment Order.

Rules 89 to 91:
Decree holder or buyer has affected by auctions sale. Decree holder or buyer may set aside the auction Sale Calling those Provisions.


Rules: 100-103
আইনকে নিজের হাতে না নেওয়া, যদি অন্য ব‍্যক্তি  দখলে থাকলে । V.V. Important.

If a person other than the judgement debtor is dispossessed of an Immovable property by the decree holder. The person may file an application Under Rule 100 for the possession of such Property before the court after receiving  Such an application,
The court shall fix a day for investigating the matter and the could shall issue summons upon the person against whom the application has been made. If The Court is satisfied on  investigation that the application was in position on his own account. The possession shall be Restored to the applicant. There is no scope of considering whether he has any title to the property. Any person transferee from the judgement debtor can not get any relief under this Rule. Moreover such relief also cannot be given by Calling  inherent power of the Court.

A party filed a suit under the rule 103 for  establishment of his right to the present possession of the property and The party’s made a prayer for holding back the direction given under  Rule 101 to restore possession to the person  dispossessed as a result of execution of a Decree.

A mandatory provision under sub-rule (2) of  rule 100 is that
Any order can not be passed without issuing a notice upon the party against whom the application is made. only after  appearance of that party and after hearing him and Considering the evidence produced by him, an Order  shall be passed.

(যদি ক্রেতা  স্থাবর সম্পত্তি দখলে না থাকে, অন্য ব্যক্তির স্থাবর সম্পত্তি দখলে থাকে। তখন ক্রেতা  নিজের দখলে নেওয়ার জন্য দখলদার ব্যক্তিকে আক্রমণ করলে। তখন দখল ব্যক্তি মামলা করতে পারবে।)

Techniques of Cross Examination both in civil Suits and criminal case:

Techniques of Cross Examination both in civil Suits and criminal case:

Introduction: cross examination is a great art. It cannot be gained over night or a day. It is required regular deep hard-working practice. Our Apex court said in it’s judgment that cross examination is the greatest legal Enquiry even invented for discovery of Truth. Therefore it is said to find out the truth or falsity in a case where the evidence play vital role. The greatest significance of cross examination is that where the statement of witness is not tested by  cross examination. The statement cannot be admissible in evidence against a party.

The Evidence Act 1872 has given some rules to do cross examination of witness in Chapter 7.

Section 137 said that the Examination of the witness by the adverse party is called his course examination.

Section 138 provides that cross examination must related to relevant facts a person Summoned to prosuce a document does not become a witness. And he cannot be cross examined until and unless he is called as a witness. Witness to Character may be Cross-Examined.

Section 143: leading question can be asked.

Section 145: A witness may be Cross-examined for his previous statement.

Section 161: if any person of the code of civil procedure can be denied  in such cases.

Section 146 to 105 have given enough power to the cross examiner in finding out the truth by  way of cross examination.

A witness may be asked questions:

1. To test his honesty.

2. To discover who is he and what is his position in life.

3. To shake his credit by injuring character.

4. To break down the evidence in chief or where this  is not possible.

5. To weaken its Impact that he was lying.

6. To being new evidence to light which contradicts the evidence in Chief.

7. To destroy the witness Reliability.

This may be done even with an expert witness. For example, Once I Opened my Cross Examination of medical expert with the question.

What is a phylogenic Granuloma? He didn’t know the answer and tried to fudge/ Poppycock it. Which didn’t really help him.

General rules of cross examination:

Evidence is not Challenged in cross examination. The evidence is taken to be a accepted by the other side. so it is necessary to cross examine a witness on all the material facts which are Disputed.

Questions in cross examination must either be relevant to the issue in hand or the witness credit.

Hostile witness can be cross examined by the party who called him as witness  as per section 154 of the 1872 Act.

In order to conduct cross-examination the lawyer must study the relevant very carefully. A lawyer Who is well known with the whole facts of the case,

 he could be able to fight his adversary with confidence.

The lawyer should have taken down a note when The examination in chif goes on making important point in his  forever. The note will be very helpful at the time of cross examination of witness.

There are the some rule to be the follow in cross examination which may be called Golden rule of cross Examination.

If a beginner follow the rule it will not be difficult for  him to conduct cross examination in an effective manner. 

The rule or stated as under

1. Be brief as you can.

2. Stop when you get what you want.

3. Use reading question.

4. keep  dismay secret.

5. Never jump back  in alarm do not know the answer.

6. Do not ask questions to which you do not know the answer.

7. Never ask why and How.

8. Do not even into the argument with a witness.

9. Cross on previous statement.

10. Cross confidently and Courageously.

11. Watch cross at  court house and learn some technique to cross expert witness.

For Cross- Examination of Doctor a lawyer need to acquire some knowledge on Medical jurisdiction.

Cross-Examination is the most effective weapon Provided by the law against the opposite party.

To state the truth before the court and exposed false  Hood of a witness who is a lie.

It is  very difficult to handle this weapon. It is a double edged sword.

knowledge on general Rules of evidence as well as a special Rules of evidence.

To become a good trial lawyer one must be well conversant as to the general rule of evidence.

1. Evidence Act, 1872.

2. Special Rules of evidence in Chapter 41 of the code of criminal procedure  section 509 to 512.

3. The Bankers Books Evidence Act, 1891.

4. The commercial document Evidence Act, 1939.

5. Family court Ordinance 1985.

6. The state Acquisition and Tenancy Act 1950 of section 144A.

Technique of proving document Evidence:

Instrument which is defined in section 3 of this Act.

Instrument means a non testamentary instrument. Instrument means document A civil case regarding  dispute of title may be prima facie by the adducing documentary evidence like deed. legal instruments evidences all rights, title and interest in people.

Non-testamentary instrument like sale deed, mortgage deed,  gift deed etc are the Covered in the definition.

PW=Plaintiff of witness.

PW=Prosecution witness.

DW=Defendant witness.

 DW=Defends witness.

CW= Court witness.

OPW= Opposite Parties witness.

Document exhibited by the plaintiff be marked as Ex 1,2,3

Document exhibited by the Defendant be marked as Ex A,B,C

Same Nature’s of documents be marked as Ext 1 series, A series.

Material Ext : i, ii, iii, ETC.

Conclusion: Cross-examinationr needs/requires the nature gifts. The natural talent is not the sufficient by itself. it has to be developed by the master full knowledge of the subject matter  itself and by carefully the principals relating to  cross examination.