網頁圖片
PDF
ePub 版

I viloo. $47.49th!, The Burina Courts Act, 1975:

4. Save as provided in the second
Saving of certain Acts affect-

paragraph of section 3, nothing herein con-
ing Central Provinces, Burma,
Panjáb and Oudh.

tained shall be deemed to affect the following

enactments (namely) : The Central Provinces Courts Act, 1865:

1990

[merged small][ocr errors]

The Panjáb Courts Act, 1877:
The Oudh Civil Courts Act, 1879:

or any law heretofore or hereafter passed under the Indian Councils
Act, 1861, by a Governor or a Lieutenant-Governor in Council, prescribing a
special procedure for suits between landholders and their tenants or agents,

or any law heretofore or hereafter passed under the Indian Councils 2402666.cóAct, 1861, by a Governor or a Lieutenant-Governor in Council, providing

for the partition of immoveable property.

And where under any of the said Acts concurrent civil jurisdiction is
given to the Commissioner and the Deputy Commissioner, the Local Govern-
ment may declare which of such officers shall for the purposes of this Code
be deemed to be the District Court.
4A. (1) Where any Revenue Courts are governed by the provisions of

the Code of Civil Procedure in those matters
Power to modify the Code in

of procedure upon which any special enactits application to Revenue Courts.

ment applicable to them is silent, the Local
Government, with the previous sanction of the Governor General in
Council, may, by notification in the official Gazette, declare that any portions
of those provisions shall not apply to those Courts, or shall only apply to
them with such modifications as the Local Government, with the sanction
aforesaid, may prescribe.

(2) Revenue Court' in sub-section (1) means a Court having
jurisdiction under any local law to entertain suits relating to the rent,
revenue or profits of land used for agricultural purposes, but does not
include a Civil Court having original jurisdiction under this Code to try
such suits as being suits of a civil nature of which its cognizance is not
barred by any enactment for the time being in force.
5. The chapters and sections of this Code specified in the second sche-

dule hereto annexed extend (so far as they
Sections extending to Provin-

are applicable) to Courts of Small Causes cial Small Cause Courts.

constituted under Act No. XI. of 1865(a), and to all other Courts (other than the Courts of Small Causes in the towns

of Calcutta, Madras and Bombay) exercising the jurisdiction of a Court of Xv (120.20 Small Causes. The other chapters and sections of this Code do not extend

to such Courts.

S. 4 A. is inserted by S. 3 of Act VII. of 1888.1.3.
S. 5 (a).–The reference must now be taken as made to Act IX. of 1887. See S. 2 of that

یک دو ۔

Act.

IR XT1/89 52 ulosch

2 viloo 5476

Such I.

Saving of jurisdiction and pro

6. Nothing in this Code affects the cedure

jurisdiction or procedure (a) of Military Courts of Re

(a) of Military Courts of Request ; 44*45* Vr.c 88 89 145-153 quest; sisch.

XT/41 & XT1/42 () (repealed by Act VIII. of 1887);

(c) of Village Munsifs or Village Panchá(c) of Village Munsifs and Village Panchayats in Madras;

yats under the provisions of the Madras Code; or

(d) of the body the of noi sitting Soox they sa (d) of Recorder of Rangoon as an Insolvent Court is Rangoon Maulmain, PT sitting as Insolvent Court.

Akyab-or Basseing under Hi Statale 1112 V.21.
or shall operate to give any Court jurisdiction over suits of which the
amount or value of the subject matter exceeds the pecuniary limits (if any)
of its ordinary jurisdiction.

7. With respect to
(a) the jurisdiction exercised by certain jágírdárs and other authori-

ties invested with powers under the proviSaving of certain Bombay laws.

sions of Bombay Regulation XIII. of 1830 and Act No. XV. of 1810 in the cases therein mentioned, and

(6) cases of the nature defined in the enactments specified in the third schedule hereto annexed,

the procedure in such cases and in the appeals to the Civil Courts allowed therein, shall be according to the rules laid down in this Code, except where those rules are inconsistent with any specific provisions contained in the enactments mentioned or referred to in this section. 8. Save as provided in sections 3, 25, 86, 223, 225, 385, and chapter

XXXIX, and by the Presidency Small Cause Presidency Small Cause

Courts Act, 1882, this Code shall not extend Courts.

to any suit or proceeding in any Court of Small Causes established in the towns of Calcutta, Madras and Bombay.

9. This Code is divided into ten Parts Division of Code.

as follows: The first Part :

Suits in General. The second Part:

Incidental Proceedings. The third Part:

Suits in particular Cases. The fourth Part:

Provisional Remedies. The fifth Part:

Special Proceedings. The sixth Part:

Appeals. The seventh Part:

Reference to and Revision by the

High Court. The eighth Part :

Review of Judgment. The ninth Part:

Special Rules relating to the Char

tered High Courts. The tenth Part :

Certain Miscellaneous Matters.
S. 8 is printed as aineaded by S. 3 of Act XV. of 1882 and S. 4 of Act VII. of 1888.

Su vil 88 2.4

PART 1.

Of Suits in General.

CHAPTER I.

OF THE JURISDICTION OF THE COURTS AND Res Judlicata.

10. No person shall, by reason of his No person exempt from juris- descent or place of birth, be in any civil prodiction by reason of descent or place of birth.

ceeding exempted from the jurisdiction of any

of the Courts.
11. The Courts shall (subject to the provisions herein contained) have

jurisdiction to try all suits of a civil nature Courts to try all civil suits un. excepting suits of which their cognizance is less specially barred.

barred by any enactment for the time being

in force. Explanation. A suit in which the right to property or to an office is coptested is a suit of a civil nature, notwithstanding that such right may depend entirely on the decision of questions as to religious rites or ceremonies. 12. Except where a suit has been stayed under section 20, the Court

shall not try any suit in which the matter in Pending suits.

issue is also directly and substantially in issue in a previously instituted suit for the same relief between the same parties, or between parties under whom they or any of them claim, pending in the same

[ocr errors]

S. 11.-See S. 21 of Reg. II. of 1827 as to caste questions, Act XXIII. of 1871 as to pen. sions, Act X. of 1876 apd Bom. Act V. of 1879 as to Land Revenue, and Bom. Act III. of 1876 as to Watans.

A village priest can maintain a suit against a yajman who has employed another priest, and recover the amount of the fee which would properly be payable to him if he had been employed. I. L, R., III. Bom., 9.

A suit to vindicate a right not to an office but to a mere dignity unconnected with any fees, profits or emoluments, is not maintainable. I. L. R., II. Bom., 476 ; 1b., X. ib., 233 ; Ib., VII. Mad., 91. But soe contra I. L. R., XV. Calc., 159.

A claim to certain pecuniary benefits and payments in kind, which a plaintiff alleges him. self to be entitled to receive from the defendants in respect of the performance of certain roligious services, is a claim which the Courts of Justice are bound to entertain; and if, in order to determine the plaintiff's right to such benefits, it becomes necessary to determine incidentally the right to perform the services, the Courts must try and must decide that right. I. L. R., II. Mad., 62.

Suits as to religious rites or ceremonies, which involve no question of the right to property or to an office, are not suits of a civil nature, within the jurisdiction of the Civil Courts. A suit therefore by the plaintiff's, as members of the committoe of management of a lindu temple, to compel the hereditary priests of the temple to take out certain ornaments from the treasury of the committee and to place them on the image of the god on high days and holidays will not lie. I. L. R., V. Bom., 80.

or any other Court, whether superior or inferior, in British India having jurisdiction to grant such relief, or in any Court beyond the limits of British India established by the Governor General in Council and having like jurisdiction, or before Her Majesty in Council.

Explanation. The pendency of a suit in a foreign Court does not preclude the Courts in British India from trying a suit founded on the same cause of action, 13. No Court shall try any suit or issue in which the matter Res judicata.

directly. and substantially in issue

has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a Court of jurisdiction competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and

has been heard and finally decided by such Court.

S. 13.-d plaint under Bom. Act III. of 1876 having been rejected by a Mamlatdar, a suit under S. 9. of Act I. of 1877 was held barred. P. J., 1892, p. 160.

As to res judicata in applications for execution, see I. L. R., VI. Bom., 54; Ib., IX. ib., 458; L. R., XI. I. A., 181; P. J., 1887, p. 91.

The Court trying the former suit must have been one competent to try the suit with conclusive effect. I. L. R., IX. Bom., 75. See also L. R., XII. I. A., 23. A foreign competent Court is within the words of the soction. P. J., 1889, p. 166.

An incidental finding on a question of title in a case not admitting of further appeal is not res judicata as to that point in a future suit. I. L. R., VII. Bom., 464. See also Ib., IV. Mad., 134.

A suit for arrears of the same allowance which was refused in a former suit cannot be main. tained. Though the precise thing claimed is different, the jural question between the parties is the same as before. P. J., 1884, p. 31.

A suit to recover a share by partition is not barred by a suit to recover certain property on the allegation that there had been a partition. I. L. R., V. Bom., 589.

A suit in which the plaintiff elected to sue the defendants as principals bars a second suit on the same contract in which the same defendants are charged as responsible agents under a trade usage. I. L. R., I. Bom., 87.

When a decision on a particular issue is appealed against, the decision ceases to be res judicata, and if the Appellate Court disposes of the case on other grounds, the decision on that issue is no bar to a future suit. I. L. R., VI. Bom., 110; Ib., VII. Calc., 381.

It is not sufficient to constitute res judicata that the matter has been determined upon ; it must appear that it was controverted as well as determined upon. Langmead vs. Maple, XVIII. C. B., N. S., 255; Jenkins vs. Robertson, L. R., I. Sc. Ap., 122.

A plaintiff's claim is rejected on account of reason ‘A’ produced by the defendant. The Court further expresses the opinion that reason 'B' produced by the defendant is not good. The decision as to reason 'B' is not res judicata. P. J., 1884, p. 23. It is different when the claim is awarded. Jomtits mo. Atobortom, bo. Por, I. So, topo, 19. Of. W. H. H. A. 844.

A mortgagor's acts prior to the mortgage bind the mortgagee; but a decree in a suit filed by the mortgagor after the mortgage would not be binding on the mortgageo unless he were acting as the agent of the mortgagee. I. L. R., V. Bom., 496.

As to the binding nature on the family of suits brought by tho manager of a Hindu family, see I. L. R., VII. Bom., 467.

A question as to the status of a family, tried and determined, is binding on the parties in subsequent suits. P. J., 1888, p. 53.

By the general law, where a material issue has been tried and determined between the same parties in a proper suit as to the status of one of them in relation to the other, it cannot be again tried in another suit between them. L. R., II. I. A., 283.

The erroneous decision by a competent tribunal of a question of law directly or substantially in issue between the parties to a suit does not prevent a Court from deciding the same

Explanation 1.- The mattter above referred to must in the former suit have been alleged by one party and either denied or admitted, expressly or impliedly, by the other.

Explanation II.-Any matter which might and ought to have been made ground of defence or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit.

Explanation III.-Any relief claimed in the plaint, which is not expressly granted by the decree, shall, for the purpose of this section, be deemed to have been refused.

Explanation IV.-A decision is final within the meaning of this section when it is such as the Court making it could not alter (except on review) on the application of either party or reconsider of its own motion. A decision liable to appeal may be final within the meaning of this section until the appeal is made.

Explanation V.—Where persons litigate bonâ fiile in respect of a private right claimed in common for themselves and others, all persons interested in such right shall, for the purpose of this section, be deemed to claim under the persons so litigating.

Explanation VI.—Where a foreign judgment is relied on, the production of the judgment duly authenticated is presumptive evidence that the Court which made it had competent jurisdiction, unless the contrary appear on the record ; but such presumption may be removed by proving the want of jurisdiction.

When foreign judgment no bar 14. No foreign judgment shall operate to suit in British India.

as a bar to a suit in British India(a) if it has not been given on the merits of the case :

(b) if it appears on the face of the proceedings to be founded on an incorrect view of international law or of any law in force in British India :

(c) if it is in the opinion of the Court before which it is produced contrary to natural justice :

(d) if it has been obtained by fraud :

(e) if it sustains a claim founded on a breach of any law in force in British India.

Where a suit is instituted in British India on the judgment of any foreign Court in Asia or Africa except a Court of Record established by Letters Patent of Her Majesty or any predecessor of Her Majesty or a Supreme Consular Court established by an Order of Her Majesty in Council, the Court in which the suit is instituted shall not be precluded from inquiry into the merits of the case in which the judgment was passed. question arising between the same parties in a subsequent suit according to law. I. L, R., V. Mad., 304. S. 14.-See I. L. R., VII. Calc.,

82. The second paragraph is added by S. 5 of Act VII. of 1888 with reference to the con. flicting rulings, reported at I. L. R., VI. Bom., 292, and Ib., VI. Mad., 191, as to suits in British India on judgments of foreign Courts, and is “designed to remove one of the objec. tions to such suits being maintainable.” G. of I. 1888, Part V., p. 28.

« 上一頁繼續 »