History of law in India

Law in India has evolved from religious prescription to the current constitutional and legal system we have today, traversing through secular legal systems and the common law.

India has a recorded legal history starting from the Vedic ages and some sort of civil law system may have been in place during the Bronze Age and the Indus Valley civilization. Law as a matter of religious prescriptions and philosophical discourse has an illustrious history in India. Emanating from the Vedas, the Upanishads and other religious texts, it was a fertile field enriched by practitioners from different Hindu philosophical schools and later by Jains and Buddhists.

Secular law in India varied widely from region to region and from ruler to ruler. Court systems for civil and criminal matters were essential features of many ruling dynasties of ancient India. Excellent secular court systems existed under the Mauryas (321-185 BCE) and the Mughals (16th – 19th centuries) with the latter giving way to the current common law system.

Law in British-ruled India

The common law system – a system of law based on recorded judicial precedents- came to India with the British East India Company.  The company was granted charter by King George I in 1726 to establish “Mayor’s Courts” in Madras, Bombay and Calcutta (now Chennai, Mumbai and Kolkata respectively). Judicial functions of the company expanded substantially after its victory in Battle of Plassey and by 1772 company’s courts expanded out from the three major cities. In the process, the company slowly replaced the existing Mughal legal system in those parts.

Following the First War of Independence in 1857, the control of company territories in India passed to the British Crown. Being part of the empire saw the next big shift in the Indian legal system. Supreme courts were established replacing the existing mayoral courts. These courts were converted to the first High Courts through letters of patents authorized by the Indian High Courts Act passed by the British parliament in 1862. Superintendence of lower courts and enrolment of law practitioners were deputed to the respective high courts.

During the Raj, the Privy Council acted as the highest court of appeal. Cases before the council were adjudicated by the law lords of the House of Lords. The state sued and was sued in the name of the British sovereign in her capacity as Empress of India.

During the shift from Mughal legal system, the advocates under that regimen, “vakils”, too followed suit, though they mostly continued their earlier role as client representatives. The doors of the newly created Supreme Courts were barred to Indian practitioners as right of audience was limited to members of English, Irish and Scottish professional bodies. Subsequent rules and statutes culminating in the Legal Practitioners Act of 1846 which opened up the profession regardless of nationality or religion.

Coding of law also began in earnest with the forming of the first Law Commission. Under the stewardship of its chairman, Thomas Babington Macaulay, the Indian Penal Code was drafted, enacted and brought into force by 1862. The Code of Criminal Procedure was also drafted by the same commission. Host of other statutes and codes like Evidence Act (1872) and Contracts Act (1872).

Law after Independence

At the dawn of independence, the parliament of independent India was the forge where a document that will guide the young nation was being crafted. It will fall on the keen legal mind of B. R. Ambedkar to formulate a constitution for the newly independent nation. The Indian Bar had a role in the Independence movement that can hardly be overstated – that the tallest leaders of the movement across the political spectrum were lawyers is ample proof. The new nation saw its first leader in Jawaharlal Nehru, and a paternal figure in M. K. Gandhi, both exemplary lawyers. Perhaps it is the consequent understanding of law and its relation to society that prompted the founding fathers to devote the energy required to form a Constitution of unprecedented magnitude in both scope and length.

The Constitution of India is the guiding light in all matters executive, legislative and judicial in the country. It is extensive and aims to be sensitive. The Constitution turned the direction of system originally introduced for perpetuation of colonial and imperial interests in India, firmly in the direction of social welfare. The Constitution explicitly and through judicial interpretation seeks to empower the weakest members of the society.

India has an organic law as consequence of common law system. Through judicial pronouncements and legislative action, this has been fine-tuned for Indian conditions. The Indian legal system’s move towards a social justice paradigm, though undertook independently, can be seen to mirror the changes in other territories with common law system.

From an artifice of the colonial masters, the Indian legal system has evolved as an essential ingredient of the world’s largest democracy and a crucial front in the battle to secure constitutional rights for every citizen.

Civil Court Pleadings in India | CPC

How to file a civil case as par Civil procedure code in India as been explained in detail here Where to file the case, Institution of Suits, Section 16 of CPC, Filing of Money suits

General Principles of Institution of Suits

Share on facebookShare on twitterShare on emailShare on printMore Sharing Services

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.

2. 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.

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.

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 situated.

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 tortuous 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.

source by : http://goo.gl/krEZPC