Subject: Law of Civil Procedure I

Topic: Assignment on ‘‘Institution of Suits’’

Submitted to Submitted by
Dr. Borhan Uddin Khan Nusrat Jahan Ayshi

Professor 3rd Year (2021-2022)

Department of Law Roll: 95 (49th Batch)

University of Dhaka Department of Law

University o Dhaka
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Table of Contents

a. Preface………………………………………………………………….3
b. Introduction…………………………………………………………....4
c. Preliminary Provisions………………………………………….……4
d. Jurisdictional Foundation………………………………...……..…..5
e. Place of Suing and Court Competence……………………...….….7
f. Institution of Suit……………………………………………....…......9
g. Service of Summons and Appearance………………….………....13
h. Pleadings and Counterclaims……………………….…………..…18
i. Discovery and Admissions………………………………………....22
j. Documents, Issues and Evidence……………………..……...……24
k. Adjournments and Hearing……………………………..…….……27
l. Judgment and Decree…………………………………..…………..30
m. Inherent and Corrective Powers of Courts………………..….....32
n. Scope and Procedural Abuse…………………………….…..……33
o. Conclusion……………………………………………………...…...34
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Preface
The Code of Civil Procedure, 1908 (Act No. V of 1908), is a foundational statute governing
civil litigation procedures in Bangladesh. It came into force on January 1, 1909 and was later
amended (Act No. XX of 2017). The Act is referred to as a “Code” due to its comprehensive
codification. It consists of 158 sections and 51 orders, which are primarily procedural in
nature but also include certain substantive elements, particularly Sections 96, 97, and 113,
which deal with appeals and references, making the Code both procedural and partially
substantive in scope. The Code is considered a “living law” by virtue of Article 149 of the
Constitution, which preserves the continuance existing laws made before independence
unless amended or repealed. Section 151 of the Code preserves the inherent powers of Civil
Courts, allowing them to act ex debito justitiae (“as a debt of justice”) to prevent abuse of
process and to ensure justice. Furthermore, Section 122 empowers the High Court Division to
make procedural rules, exercising concurrent authority over civil procedure. While the Code
is largely exhaustive in the matters it addresses, it operates in conjunction with the Civil
Courts Act, 1887, particularly under Sections 3 and 18 to 22, which define the classes of civil
courts, their ordinary jurisdiction and the appeal structure. In essence, resolving civil disputes
under the Code may sometimes feel like "finding a needle in a haystack" - challenging but
never impossible; meaning, no matter how complex the problem is, the solution can always
be found within the Code.
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Introduction

The institution of suits is the first and most essential step in the process of civil litigation. It
refers to the formal process through which a person approaches a civil court for legal remedy
when their civil rights are violated. In Bangladesh, the rules and procedures for instituting a
suit are governed by the Code of Civil Procedure, 1908, mainly through Sections 3, 6 to 35B
and Orders 1 to 20 of the First Schedule. These provisions deal with who can file a suit,
against whom it can be filed, in which court it should be filed and how the case will proceed.
Matters like parties to a suit, framing of suits, pleadings, summons and hearings are all part of
this process. To support these procedures, the Civil Courts Act, 1887, especially Sections 3
and sections 18 to 22 help to define the classes and jurisdiction of Civil Courts. Moreover, the
inherent powers of the Court under Section 151 of the CPC allow the Court to take necessary
steps to prevent injustice or abuse of process, even in situations where the Code is silent.

I. Preliminary Provisions
The preliminary provisions lay the foundation for understanding how the Code of Civil
Procedure, 1908 (CPC), functions in regulating civil litigation. Sections 1 to 5 of the CPC and
Section 3 of the Civil Courts Act, 1887 are crucial to this part, as they define the basic
structure, applicability, and functioning of Civil Courts in Bangladesh.

 Section 1 of declares the short title, extent and commencement of the Code. Though
originally applicable to British India, the Code continues to apply in Bangladesh
under Article 149 of the Constitution, which preserves pre-independence laws.
 Section 2 provides definitions of key legal terms such as “decree, judgment, order,
Government Pleader, legal representative, public officer” all of which are essential for
interpreting the rest of the Code accurately.
 Section 3 establishes the subordination of Courts and determines the hierarchy and
supervisory control within the civil judiciary.
 Section 4 preserves the applicability of special or local laws where they are not
inconsistent with the CPC, ensuring harmony among overlapping legal provisions.
 Section 5 bars appeals from certain orders unless specifically allowed, which narrows
the scope for unnecessary delays and helps in speedy disposal.

In conjunction with these provisions, Section 3 of the Civil Courts Act, 1887 outlines the
classes of Civil Courts in Bangladesh: District Judges, Additional District Judges, Joint
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District Judges, Senior Assistant Judge and Assistant Judges. This classification is
fundamental for establishing jurisdictional authority in instituting suits and appeals.

II. Jurisdictional Foundation

The concept of „„jurisdiction‟‟ is fundamental to civil litigation. It refers to the legal authority
of a Court to hear and decide a case. The jurisdictional foundation of civil suits in Bangladesh
is primarily governed by Sections 6 to 14 of the Code of Civil Procedure, 1908, along with
Sections 18 to 22 of the Civil Courts Act, 1887. These provisions ensure that suits are filed
in the appropriate Court, both in terms of subject matter and territorial jurisdiction.

A. Statutory Basis under CPC, 1908

 Section 6: Bars any suit from being tried by a Civil Court unless it is of a civil nature
and not expressly or impliedly barred by law.
 Sections 7 to 9: Establish the pecuniary jurisdiction of Courts and affirm the general
right to file civil suits unless barred.
 Section 10: Introduces res sub judice, prohibiting Courts from trying suits already
pending in another court of competent jurisdiction.
 Section 11: Codifies the principle of res judicata, preventing the re-litigation of
matters already settled between the same parties.
 Sections 12–14: Deal with procedural safeguards such as bar against challenging
court acts and the presumption regarding foreign judgments.

Case Laws under Section-9:

1. Bangladesh Vs. Abdul Jalil, 41 DLR (1989) 267

 Unless barred by express or implied law, a civil Court has jurisdiction to try
all civil matters.

2. Jahangir Hossain Vs. Abdul Haque, 43 DLR (1991) 354

 Suit for wrongful dismissal held maintainable as civil right was involved.
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Case Laws under Section-10:

1. Abdul Mannan Vs. Bangladesh, 48 DLR (1996) 169

 Suit stayed under Section 10 as another suit between the same parties on the
same matter was pending in a competent Court.

2. Md. Ruhul Amin Vs. Shahidul Islam, 53 DLR (2001) 331

 Purpose of Section 10 is to avoid parallel litigation and conflicting decisions.

Case Laws under Section-11:

1. Abdul Kader Vs. Md. Abdul Jalil, 45 DLR (1993) 478

 A matter finally decided in an earlier suit could not be reopened in a fresh suit.

2. Bangladesh Vs. Mofizuddin, 47 DLR (1995) 270

 The doctrine applies not only to issues actually decided but also to those that
might have been raised earlier.

B. Classification and Jurisdiction under Civil Courts Act, 1887

Section 3: Specifies the classes of Civil Courts in Bangladesh:

1. District Judge
2. Additional District Judge
3. Joint District Judge
4. Senior Assistant Judge
5. Assistant Judge

Section 19: Defines the „ordinary pecuniary jurisdiction‟ of lower Courts:

 Senior Assistant Judge: Suits up to Tk. 25 lakh

 Assistant Judge: Suits up to Tk. 15 lakh
 The District Judge is empowered to transfer suits that fall outside the Court's
jurisdiction.

Section 20: Appeals from District Judges and Additional District Judges lie to the High Court
Division, unless barred.
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Section 21: Appeals from lower Courts are governed by value and Court level:

I. Appeals from Joint District Judge:

 To District Judge if suit value is up to Tk. 5 crore

 To High Court Division if more than Tk. 5 crore

II. Appeals from Senior Assistant/Assistant Judges lie to the District Judge
III. Delegation of appeals to Additional or Joint District Judges is possible by government
notification.

Section 22: The District Judge has the power to transfer pending appeals to subordinate
courts under his control, such as Joint District Judges.

 Together, the CPC and the Civil Courts Act provide a clear and hierarchical
structure of jurisdiction, ensuring:

 Cases are filed in the correct forum

 Appeals follow a proper channel
 Efficient allocation and transfer of cases.

III. Place of Suing and Court Competence

Statutory Basis under CPC, 1908

Section 15: Specifies that every suit shall be instituted in the court within the local limits of
whose jurisdiction:

 The defendant resides, or

 The cause of action, wholly or in part, arises.

Section 16: Deals with the place of suing in matters related to contracts. It dictates that the
suit should be filed in the Court where the contract was performed or where the defendant
resides.
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Section 17: Relates to suits for immovable property that the suit must be filed in the Court
within the local limits of the jurisdiction where the property is situated.

Section 18: Provides rules for suits against a corporation, where the suit may be instituted at
the place where the corporation has its principal office or its registered office.

Section 19: In cases involving joint defendants, the suit can be filed in any Court within
whose jurisdiction any one of the defendants resides, as long as the case is related to the
subject matter.

Section 20: Specifies the procedure for cases where the defendant has no fixed residence or
cannot be found. The suit can be filed where the cause of action arises.

Section 21: Deals with the power of transfer of suits from one Court to another. A higher
Court may transfer a suit to a lower Court, or vice versa, if the initial Court is found to be an
inappropriate forum for the case.

Case Law under Section-15:

Md. Mofizur Rahman Vs. Md. Sirajul Islam, 55 DLR (2003) 630
 The suit must be filed in the Court of the lowest grade competent to try it. Filing in a
higher Court when a lower court has jurisdiction is not maintainable.

Case Law under Section-16:

Bangladesh Vs. A.K. Fazlul Haque, 42 DLR (AD) 1990, 100

 Suit regarding immovable property must be instituted where the property is situated;
filing elsewhere renders the suit incompetent.

Case Laws under Section-20:

1. Hasina Begum Vs. Bangladesh, 44 DLR (1992) 530

 Suit may be instituted where defendant resides or where the cause of action arises—
either is valid. Plaintiff has a choice.
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2. Muhammad Ali Vs. Mizanur Rahman, 51 DLR (1999) 121

 Territorial jurisdiction cannot be waived unless properly raised in written statement

and at the first instance.

Case Law under Section-21:

Md. Nasir Uddin Vs. Md. Mujibur Rahman, 54 DLR (2002) 345

 If objection as to jurisdiction is not raised at the earliest possible opportunity (i.e., in

the written statement), it is deemed waived.

IV. Institution of Suit

A civil suit commences with the filing of a plaint in accordance with Section 26 of the Code
of Civil Procedure, 1908. This provision is further complemented by Orders I to IV, which
lay down detailed procedural rules regarding parties, framing of the suit, legal representation
and formal initiation.

Statutory Basis: Section 26 of CPC

Section 26 lays down that “every suit shall be instituted by the presentation of a plaint”.

Case Laws under Section-26:

1. Nur Mohammad Vs. Bangladesh, 51 DLR (1999) 38

 A suit is deemed to be instituted only when a properly framed plaint is presented

before the Court. If the plaint lacks essential details or is procedurally defective, the
institution is incomplete.
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2. Samsul Alam Vs. Bangladesh Bank, 57 DLR (2005) 492

 Merely filing a plaint is not enough; it must be admitted by the Court to constitute
proper institution of the suit. This ensures that frivolous or non-compliant filings are
filtered at the threshold.

Order I – Parties to Suit (Rules 1 to 13)

This Order identifies who may sue and who may be sued, and under what conditions multiple
parties can be joined together in a suit.

Proper Joinder of Parties (Rules 1 & 3):

Multiple persons can be joined as plaintiffs or defendants if the right to relief arises from the
same act or transaction and common legal issues are involved.

Representative Suits (Rule 8):

 Representative Suit: Enables one or more persons to sue/defend on behalf of many

with a shared interest.

When numerous persons share a common interest, a few can sue or defend on behalf of all,
with Court permission. This rule is essential in public interest and group litigation.

Misjoinder and Non-joinder (Rule 9):

 Misjoinder: Incorrect inclusion of a party not necessary to the suit.

 Non-joinder: Failure to include a necessary party, which may be grounds for
dismissal.

Rule 9: Suit not defeated for misjoinder or non-joinder unless it's of a necessary party.

 A suit shall not fail merely because of the wrong inclusion or omission of parties.
 However, the absence of a necessary party (someone without whom no effective
judgment can be passed) may be fatal.

Addition or Removal of Parties (Rule 10):

The Court can add or strike out parties at any stage to ensure complete justice.
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Objections (Rule 13):

 Any objection as to misjoinder or non-joinder must be raised at the earliest
opportunity, failing which the right to object may be lost.
 These rules ensure that the right parties are before the court and that
procedural defects do not obstruct substantive justice.

Case Laws

1. Syed Afsaruddin Vs. Afsaruddin Ahmed, 45 DLR (AD) 1993, 27

 Representative suits must reflect genuine common interest; misuse leads to dismissal.

2. Mahbubur Rahman Vs. Bangladesh, 49 DLR (1997) 282

 Non-joinder of necessary parties is fatal; suit may be dismissed.

Order II – Frame of Suit (Rules 1 to 7)

Whole Claim to be Included (Rule 2)

 A plaintiff must include the entire claim related to a cause of action.

 If any part is omitted without the Court‟s leave, it cannot be raised later.

Bar to Omissions (Order II, Rule 2): Forbids future suits on omitted parts of a claim from
the same cause of action.

Joinder of Causes of Action (Rule 3):

Multiple claims may be combined in one suit against the same defendant if they are
compatible and do not prejudice the case.

Objections to Misjoinder (Rule 7):

Such objections must be timely. The court may still proceed and grant relief as it sees fit.
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Case Laws:

1. Md. Moksed Ali Vs. Abdul Hamid, 43 DLR (1991) 118

 Partial omission of cause of action bars future suits under Order II Rule 2.

2. Shamsuddin Vs. Jabbar Ali, 50 DLR (1998) 9

 Joinder of causes must not cause inconvenience or prejudice to defendant.

Order III – Recognized Agents and Pleaders (Rules 1 to 9)

This Order addresses who may represent the parties in a civil suit.

Representation (Rules 1 & 2):

Parties may appear through recognized agents or pleaders (lawyers), except where personal
presence is mandatory.

Pleader Appointment (Rule 4):

A pleader must be appointed by a vakalatnama (written authority signed by the party).

Court Control (Rules 7 to 9):

The Court can require personal appearance of a party and may act against pleaders in cases of
misconduct or unauthorized actions.

Case Laws:

1. Md. Abdul Hye Vs. Md. Golam Kibria, 49 DLR (1997) 272

 Unauthorized appearance by pleader invalidates proceeding.

2. Latif Vs. Hazrat Ali, 17 DLR (1965) 632

 A vakalatnama is a legal necessity for appearance by pleader.

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Order IV – Institution of Suits (Rules 1 & 2)

This is the concluding procedural step to begin a suit formally.

Rule 1 – Filing of Plaint:

 The plaintiff must file a plaint along with a list of documents, affidavit and Court fee.
 The plaint must be complete in form and content to be accepted by the Court.

Rule 2 – Registering the Suit:

Once the plaint is admitted, the suit is entered into the court‟s register and steps are taken for
issuance of summons to the defendant.

Case Laws:

1. Nur Mohammad Vs. Bangladesh, 51 DLR (1999) 38

 Suit begins only after the plaint is properly scrutinized and admitted.

2. Kaiser Ahmed Vs. Government of Bangladesh, 54 DLR (2002) 224

 Court emphasized need for proper compliance before registering a suit.

V. Service of Summons and Appearance

After a suit is properly instituted, the next essential step is to inform the defendant through
summons, so they may appear and answer the claim. Sections 27 to 29 and Orders V, IX and
X lay down the detailed framework for the issue of summons, modes of service and
consequences for non-appearance.
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Statutory Basis: Sections 27–29 of the CPC

Section 27 – Summons to Defendant: When a suit is instituted, summons shall be issued to
the defendant to appear and answer the claim.

Section 28 – Service of Foreign Summons: Enables reciprocal arrangements for service of

summons between Bangladesh and foreign territories.

Section 29 – Service by Court of Another Jurisdiction: Permits a summons to be served

through another Court having jurisdiction, particularly useful in inter-district cases.

Case Law under Section-27:

Bangladesh Vs. Shafiuddin Ahmed, 34 DLR (AD) 1982, 222

 Service must strictly follow procedural rules and ex parte decrees passed without
valid service under Section 27 are liable to be set aside.

Case Law under Section-28::

Abdul Kuddus Vs. Rabeya Khatun, 48 DLR (1996) 312

 Where a party resided abroad, the Court clarified that service under Section 28 must
follow prescribed channels (e.g., through diplomatic means or postal treaty). Improper
foreign service renders the summons defective.

Order V – Issue and Service of Summons (Rules 1 to 30)

Issue of Summons (Rules 1–2):

 Rule 1: Summons is issued upon admission of plaint, requiring the defendant to
appear and file a written statement.
 Rule 2: Summons must be signed and sealed by the judge or officer of the Court.

Modes of Service (Rules 9–17):

 Rule 9: Service is to be made by a Court Officer or by registered post with
acknowledgment due.
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 Rule 12: Service on an adult male member of the family may be allowed when the
defendant is absent.
 Rule 17: When personal service is not possible, the affixation method (posting on the
house or place of business) is allowed.

Substituted Service (Rule 20):

If ordinary methods fail, the Court may order newspaper publication or other methods to
serve summons. This is typically used in cases where the defendant is evading service or
untraceable.

Proof and Endorsement (Rules 18–19):

The person serving must endorse the facts and method of service on the summons itself,
which helps the court verify proper service.

Service on Corporations (Rule 25):

Summons can be served on a director, manager, or secretary, ensuring accountability in
business-related disputes.

Case Laws:

1. Bangladesh Vs. Shafiuddin Ahmed, 34 DLR (AD) 1982, 222

 Substituted service requires proof that ordinary service failed.

2. Mahmudul Hasan Vs. Abdul Latif, 46 DLR (1994) 251

 Valid service must follow procedures; otherwise, ex parte decree is void.

Order IX – Appearance of Parties and Consequences of Non-

Appearance (Rules 1 to 14)
This Order deals with what happens after the summons is served and the hearing date arrives.

Rule 1: Both parties must appear on the date fixed by the Court.
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Rule 3: If neither party appears, the suit may be dismissed.

Rule 5:
If, after summons has been issued, the plaintiff fails to take necessary steps (like payment of
process fee or providing address for service), the suit can be dismissed.

Rule 6:

If the defendant, despite proper service of summons, does not appear on the date fixed, the
court may proceed ex parte and hear the suit in the defendant‟s absence. The defendant can
later apply to set aside the ex parte decree under Rule 13 or under Rule 13A in some cases.

Rule 9:
If the suit is dismissed for default, the plaintiff may apply for restoration by showing
sufficient cause.

Rule 9A: Setting Aside Dismissal of Suit without Showing Cause

This rule allows a plaintiff to set aside a dismissal order under Rules 2 or 3 without showing
cause for non-appearance.

 The plaintiff must file an application within 30 days from the date of dismissal.
 The Court may restore the suit without requiring any explanation, but only once.
 The Court may impose a maximum cost of 1,000 Taka.
 This provision speeds up restoration and limits abuse by restricting it to a one-time
remedy.

Rule 13:
A defendant may apply to set aside an ex parte decree by proving non-service or other just
cause.

Rule 13A – Setting Aside Ex Parte Decree without Showing Cause

This rule allows a defendant to set aside an ex parte decree (passed under Rule 6) without
showing cause for non-appearance.

 Application must be made within 30 days of the ex parte decree.

 The Court may grant the application without needing a reason, but again, only once.
 The Court may impose a cost not exceeding 3,000 Taka.
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 This offers a one-time remedy without the burden of proving "sufficient cause" as
required under Rule 13.

Case Laws:
1. Abdul Majid Vs. Abdul Karim, 47 DLR (1995) 214

 Sufficient cause must be shown for restoration of suit after dismissal.

2. Kazi Nazrul Islam Vs. Abdul Khalek, 58 DLR (2006) 109

 Defendant may set aside ex parte decree by showing procedural irregularities.

Order X – Examination of Parties by the Court

This order allows the Court to directly examine parties to narrow down the matters in dispute.

Rule 1:
The Court may ask parties to admit or deny factual allegations in pleadings.

Rule 2:
Enables the Court to examine parties orally to clarify disputed facts.

Rule 3:
If a party refuses to answer Court questions, adverse inferences may be drawn.

Rule 4:
Admissions or denials made during examination can be recorded and relied upon.

Case Laws:
1. Md. Akram Hossain Vs. Hasina Akter, 13 BLC (2008) 105

 Order X empowers Court to narrow issues by examining parties.

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2. Jalil Vs. Selina Begum, 45 DLR (1993) 337

 Oral examination helps resolve preliminary disputes before evidence.

 The provisions under Sections 27–29 and Orders V, IX, and X ensure that:
 Summons are properly and fairly served,
 Both parties are aware and able to participate,
 Non-appearance is addressed with both remedial and penal options,
 Courts facilitate the narrowing down of issues from the very first hearing.

VI. Pleadings and Counterclaims

Order VI – Pleadings Generally

Rule 1: Pleadings include a plaint or a written statement.

Rule 2: Parties must state only facts they rely on, not evidence.

Rule 4: Allegations of fraud, misrepresentation, etc. must be specifically stated which are
the particulars.

Rule 6: Pleading conditions precedent; performance is presumed unless denied.

Rule 7: Parties cannot contradict earlier pleadings unless permitted.

Rule 15: Every pleading must be signed and verified by the party or authorized person.

Rule 16: The Court can strike out any part of a pleading that:
 is scandalous, frivolous, or vexatious;
 may prejudice or delay the fair trial;
 is otherwise an abuse of process.

Rule 17: Amendment of pleadings:

 Courts may allow amendment of pleadings at any stage of the proceedings.
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 Amendments should be allowed when they are necessary for determining the real
question in controversy.
 Amendments may be refused if they cause injustice or delay.

Case Laws:
1. Md. Jahangir Alam Vs. Nurjahan Begum, 55 DLR (2003) 593

 Allegations like fraud must be clearly pleaded with particulars.

2. Mizanur Rahman Vs. Shahida Begum, 52 DLR (2000) 72

 Amendment of pleadings allowed to resolve actual controversies.

Order VII – Plaint

Rule 1: Lists all essential elements of a plaint, such as:

 name, description, and address of the parties;

 facts showing cause of action;
 jurisdictional basis;
 relief sought;
 valuation and court fee.

Rule 6: Suits barred by limitation must state grounds for exemption.

Rule 11: Rejection of plaint on grounds like:

 absence of cause of action;

 undervaluation or insufficient court fee;
 barred by law;
 non-compliance with legal form.

Rule 13: Rejection of a plaint doesn‟t prevent filing of a fresh suit, if allowed by law.

Rule 14: Production of documents:

 Plaintiff must submit the documents relied upon in the plaint.

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 Copies must also be served to the opposite party.

Case Laws:
1. Shamsuddin Vs. Arfan Ali, 12 BLC (2007) 23

 Plaint with no cause of action is liable to be rejected under Rule 11.

2. Abdul Jalil Vs. Rokeya Khatun, 43 DLR (1991) 401

 Incorrect valuation can be corrected if made in good faith.

Order VIII – Written Statement, Set-off, and Counter-claim

This order governs the defendant's written response and additional claims.

Rule 1:

Defendant must file a written statement within the prescribed time (usually 30 days,
extendable to 90 days).

Rule 2 to 5:

Defendant must specifically deny allegations, and state material facts of defence.

Rule 5: Allegations not specifically denied are deemed admitted.

Rule 6: Set-off:

 A defendant may claim set-off if the plaintiff owes him a legally recoverable debt;
 Applies to money suits where both parties are in the same capacity.
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Counter-claim (Rules 6A to 6G)

 Rule 6A: Defendant can file a counter-claim for a cause of action arising before or
after filing the suit but before submission of the defence.
 Rule 6B to 6D: Plaintiff must reply to counter-claim; Court may refuse to entertain
counter-claim if inappropriate.
 Rule 6E: Counter-claim can proceed even if original suit is dismissed.
 Rule 6G: Counter-claims must be valued and proper Court fee must be paid.
 Rule 7: Defendant can raise new defences arising after the suit.

Rule 10:
If the defendant fails to file a written statement, the court may pronounce ex parte judgment.

Case Laws:

1. National Bank Ltd Vs. Md. Shamsuddin, 60 DLR (2008) 394

 Counterclaims can survive even if the main suit is dismissed.

2. Fazlul Karim Vs. Eastern Bank Ltd., 52 DLR (2000) 177

 Vague denials in written statement amount to admission.

 The combined effect of Orders VI, VII, and VIII is to ensure:

 Proper structure and content of pleadings;

 Timely and specific replies to prevent unnecessary issues;
 Judicial control to correct or remove defective or abusive pleadings;
 Opportunities for defendants to raise legitimate claims via set-off and counter-
claim.
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VII. Discovery and Admissions

Order XI – Discovery and Inspection

This order governs the disclosure of documents and the inspection of those documents by the
opposing party.

Rule 1 – Production of documents:

A party must, at the outset, disclose and list all documents they intend to use in the case.

Rule 2 – List of documents:

Both parties are required to provide a list of all documents they rely upon in the case.

Rule 3 – Inspection of documents:

The opposite party is allowed to inspect the documents listed.

Rule 4 – Failure to comply:

If a party refuses to provide documents, the court may impose penalties, including refusing to
admit the documents in evidence.

Rule 6 – Request for discovery:

A party can request the other to discover and produce documents.

Rule 8 – Discovery orders:

The Court can order the production of documents at any stage of proceedings.

Rule 14 – Inspection:

Upon an order of the Court, a party must permit the opposing party to inspect any document
within a reasonable time.

Case Laws:
1. Shamim Ara Vs. Bangladesh, 53 DLR (2001) 273

 Discovery obligations ensure fairness and prevent surprise at trial.

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2. Rafiqul Islam Vs. Md. Harun, 50 DLR (1998) 421

 Failure to allow inspection may result in rejection of document.

Order XII – Admissions

Rule 1 – Admissions of facts:

A party must admit facts that are clearly true. Failure to admit can lead to a cost penalty.

Rule 2 – Admission of documents:

A party must admit the authenticity of any documents that are produced.

Rule 3 – Request for admissions:

A party may serve a written request to the other party to admit facts or documents.

Rule 4 – Effect of admissions:

If an admission is made, the Court may treat it as conclusive evidence, significantly reducing
the scope of the dispute.

Rule 5 – Withdrawal of admissions:

The Court may allow a party to withdraw an admission if it finds that the withdrawal will
serve justice and does not prejudice the other party.

Rule 6 – Failure to admit:

A party‟s refusal to admit relevant facts or documents without a valid reason may lead to
them bearing the costs of proving those facts.

Rule 9 – Costs:

Party giving notice of admitting or producing unnecessary documents shall bear the cost.
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Case Laws:

1. BEPZA Vs. Eastern Bank Ltd., 19 BLC (AD) 2014) 103

 Admitted facts require no further proof under Rule 6.

2. Sadia Khan Vs. Md. Ali Hossain, 56 DLR (2004) 328

 Refusal to admit relevant facts or documents may lead to cost orders.

VIII. Documents, Issues, and Evidence

Relevant Sections of the Code of Civil Procedure, 1908

 Section 31 – Summoning and Attendance of Witnesses: Empowers the Court to
summon witnesses whose presence is necessary for just decision-making.
 Section 32 – Penalty for Default: Provides authority to impose penalties—such as
fines or arrest—on witnesses who fail to obey summons without valid excuse.

Order XIII – Production, Impounding, and Return of Documents

Rule 1:
Parties must produce all documentary evidence during the first hearing unless directed
otherwise.

Rule 2:

Documents not produced on time may be disallowed unless special permission is granted.

Rule 3:

Irrelevant or inadmissible documents may be rejected by the Court.

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Rule 4 & 5:

Discuss the endorsement and document numbering for proper recordkeeping.

Rule 7:

Admitted documents must be marked and officially recorded.

Rule 9:

Parties may apply for the return of their documents once the case concludes, subject to the
Court‟s discretion.

Case Laws:
1. Aminul Haque Vs. Ruhul Amin, 48 DLR (1996) 313

 Untimely production of documents requires special leave.

2. State Vs. Hamidul Islam, 44 DLR (1992) 123

 Improperly produced documents may be rejected outright.

Order XIV – Settlement of Issues

Rule 1:

The Court frames issues based on pleadings and documents submitted by both parties.

Rule 1(5):

Clarifies that issues are those propositions of fact or law affirmed by one side and denied by
the other.

Rule 2:

All material issues must be decided unless a single question of law can dispose of the suit.
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Rule 3:

The Court uses pleadings, documents, and party statements to determine the issues.

Rule 5:

The Court may examine parties, documents, or witnesses to help frame accurate and
comprehensive issues.

Case Laws:
1. Mizanur Rahman Vs. Shahidul Islam, 43 DLR (1991) 576

 Court must frame material issues both of law and fact.

2. Rokeya Begum Vs. Bangladesh, 51 DLR (1999) 225

 Framing of issues must be based on both pleadings and documents.

Order XV – Disposal of the Suit at the First Hearing

Rule 1:

If the parties are not at issue on any point, the court can decide the case immediately.

Rule 2:

If the defendant does not submit a written statement or appear, the Court may proceed ex
parte.

Rule 4:

The suit may be dismissed or decreed based on party admissions or absence of real dispute.
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Order XVI – Summoning and Attendance of Witnesses

Rule 1: Parties must provide a list of witnesses they intend to call.

Rule 2: Summons may be issued to witnesses upon application and payment of costs.

Rule 10: A party failing to deposit witness expenses may face cancellation of summons.

Rules 12–15: Enable the Court to compel attendance through fines or warrants if witnesses
fail to appear without cause.

Case Laws:

1. Nazmul Haque Vs. Md. Abdul Kader, 55 DLR (2003) 239

 Court can dispose of the suit at first hearing if there is no factual dispute.

2. Sundarban Courier Vs. United Trading, 57 DLR (2005) 214

 Admission of claim entitles the plaintiff to decree under Rule 1.

IX. Adjournments and Hearing

Order XVII – Adjournments

Rule 1 – Granting Time and Adjournments
 The Court may, if sufficient cause is shown, grant time to parties or adjourn hearings.
 It must record reasons and can impose costs.
 Courts are discouraged from granting more than three adjournments to a party during
the hearing of a suit.
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Rule 2 – Proceeding in Absence

If a party fails to appear on the adjourned date, but evidence from that party was previously
recorded, the court may proceed and pronounce judgment.

Rule 3 – Default Due to Party’s Negligence

If a party‟s failure to proceed is due to negligence, the court may proceed to decide the case
or pass suitable orders, including dismissal.

Case Laws:
1. Kazi Enayet Hossain Vs. Bangladesh Bank, 57 DLR (2005) 550

 No more than three adjournments unless compelling reason shown.

2. Shahidul Islam Vs. Monir Hossain, 59 DLR (2007) 328

 Frequent adjournments delay justice and may be penalized.

Order XVIII – Hearing of the Suit and Examination of Witnesses

Rule 1 – Right to Begin

The plaintiff normally has the right to begin unless the burden of proof lies on the defendant.

Rules 2 to 4 – Witness Examination and Filing of Evidence

 Rule 2: Parties must state the issues they will address.

 Rule 3: Court may regulate the order of witnesses.
 Rule 4: Examination-in-chief of a witness shall be by affidavit; cross-examination
and re-examination are conducted in open court.

Rule 5 – Memorandum of Evidence

The judge must record a memorandum of the evidence given in Court.

Rule 8 – Memorandum Signed by Judge: Must be signed and form part of the
record.
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Rule 10 – Adjournment for Recording Evidence

Court may adjourn a hearing if it finds it necessary to complete examination or hearing.

Rule 13 – Recall of Witnesses

Court may recall any witness at any stage if necessary in the interest of justice.

Case Laws:
1. Selina Hossain Vs. Most. Jahanara Begum, 60 DLR (2008) 502

 Evidence in chief must be submitted via affidavit; cross-exam orally.

2. Nurul Haque Vs. Abdul Bari, 49 DLR (1997) 300

 Proper documentation of evidence is part of fair trial process.

Order XIX – Affidavits

Rule 1 – Evidence by Affidavit
Court may permit evidence on specific facts to be given by affidavit, especially for formal or
uncontested matters.

Rule 2 – Cross-Examination on Affidavit

Opposing party may request that the deponent be summoned for cross-examination.

Rule 3 – Form of Affidavit

Affidavits must contain only facts within the deponent‟s personal knowledge or state the
source of such facts.

Case Laws:
1. Dr. Nurul Islam Vs. Dr. Kabir Ahmed, 44 DLR (1992) 382

 Affidavits are valid only for matters within deponent‟s knowledge.

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2. Bangladesh Vs. Sufia Khatun, 46 DLR (1994) 555

 Right to demand cross-examination on affidavit must be respected.

X. Judgment and Decree

Section 2 of the Code of Civil Procedure, 1908 defines „Decree‟ in sub-section (2) and
„Judgment‟ in sub-section ( 9) respectively.

 Decree: Formal expression of adjudication.

 Judgment: The statement given by the Judge of the grounds of a decree or order.

Sections 33 to 35B of the Code of Civil Procedure and Order XX specifically address the
structure, delivery, and consequences of judgments and decrees.

Relevant Sections (CPC, 1908)

Section 33 – Judgment and Decree: After hearing, the Court must pronounce judgment,
followed by preparation of the decree in accordance.

Section 34 – Interest: Allows the Court to award interest on debts or damages, from cause of
action to decree and post-decree.

Section 35 – Costs: Costs are at the Court‟s discretion; the general rule is that the losing
party pays costs unless otherwise directed.

Section 35A – Compensatory Costs for False or Vexatious Claims: Permits awarding up
to BDT 1,000 as compensatory cost if a party makes a false or vexatious claim or defence.

Section 35B – Costs for Causing Delay: Introduced to penalize delay; empowers Courts to
impose costs for unnecessary adjournments or delays by parties.
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Order XX – Judgment and Decree

Rule 1 – Pronouncement of Judgment

Judgment should be pronounced within 30 days of conclusion of hearing.

Rule 4 – Contents of Judgment

Must include point(s) for determination, decision thereon, and reasons.

Rule 5 – Judgment in Suits for Recovery of Money

Should specify the exact amount found due, with interest and costs.

Rule 6 – Contents of Decree

The decree must agree with the judgment and include relief granted, costs awarded, and
details required for execution.

Rule 6A & 6B – Decree for Recovery of Interest

Clarifies interest breakdown: pre-suit, pendente lite (during suit) and post-decree.

Rule 9 – Decree to be Final

Decree is final and executable unless set aside or modified by appellate or revisional Court.

Rule 11 – Judgment After Pronouncement

After pronouncement, the judgment cannot be altered except under sections 152 or 153
(correction of clerical/arithmetical errors).

Case Laws:

1. Hossain Ali Vs. Md. Anwar Hossain, 41 DLR (1989) 452

 Judgment must be reasoned, and decree must conform with it.

2. Nur Jahan Vs. Abdul Gafur, 58 DLR (2006) 33

 Judgment must be signed and delivered within the timeline in Rule 1.

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XI. Inherent and Corrective Powers of Courts

Civil Courts, while guided by express provisions of the Code of Civil Procedure, also retain
certain powers to ensure justice is not defeated by procedural gaps or technicalities. These
powers are addressed in Sections 151 to 153 of the CPC.

Relevant Sections (CPC, 1908)

Section 151 – Inherent Powers of Court: This section allows the Court to pass any order
necessary to meet the ends of justice or to prevent abuse of the process of the Court.

Commonly invoked for:

 Staying proceedings
 Recalling orders obtained through fraud
 Consolidating suits
 Granting interim relief (where not explicitly covered)

Section 152 – Amendment of Judgments, Decrees or Orders

 Empowers the Court to correct clerical or arithmetical mistakes or errors arising from
accidental slips or omissions in judgments, decrees, or orders.
 Can be exercised on application or suo moto.

Section 153 – General Power to Amend

 Allows amendment of any defect or error in any proceeding in a suit at any stage to
determine the real question in controversy.
 Ensures that technical irregularities do not frustrate substantive justice.

 In brief:
 These provisions act as a corrective mechanism to maintain judicial flexibility.
 Section 151 fills the gaps left by procedural rules
 Sections 152 and 153 protect litigants from suffering due to technical or
accidental errors.
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XII. Scope and Procedural Abuse

The mentioned procedures are the fundamental steps under the Code of Civil Procedure,
1908, through which a civil suit is finally instituted. Though it may seem that person whose
right has been infringed, can file a suit by following the process step by step, the practical
situations are far away from the text of theory. People are expert in finding the loopholes in
laws which they use to satisfy their unreasonable interest and this kind of manipulation of the
legal process is referred to as procedural abuse, ultimately leading to denial of justice. The
following provisions are the possible scopes that are used for abusing process:

i. Adjournments (Order XVII):

While Courts can grant adjournments for valid reasons (e.g., witness unavailability), this
provision can be misused to delay proceedings. Litigants might repeatedly seek adjournments
to postpone hearings, giving them an unfair advantage or simply prolonging the case
unnecessarily, adding to Court backlogs.

ii. Amendment of Pleadings (Order VI, Rule 17):

Amendments are important for correcting errors or oversights in initial filings, ensuring that
the real issues of the dispute are properly addressed. However, they can be abused to
introduce entirely new claims or defences late in the process. This can disrupt the trial
schedule, require the opposing party to revise their strategy and lead to unfair prejudice.

iii. Counterclaims (Order VIII, Rule 6A):

While counterclaims allow defendants to assert their own claims within the existing suit,
there's potential for abuse. A defendant might file a frivolous counterclaim primarily to gain
leverage, delay the original suit or harass the plaintiff, rather than to genuinely seek redress.

The Code has safeguards against abuse, but their effectiveness depends on consistent judicial
application.
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Conclusion
The Code of Civil Procedure, 1908, alongside the Civil Courts Act, 1887, forms the backbone
of civil litigation in Bangladesh. Through a structured framework of preliminary provisions,
jurisdictional foundations and institutional procedures, the Code ensures a fair and orderly
resolution of civil disputes. The process begins with the institution of suits, guided by specific
rules on parties, framing of the suit and the filing of the plaint. Each step—whether it
involves service of summons, appearance, pleadings or the examination of parties, aims to
maintain justice while following procedural integrity. The Code ensures that litigants can
seek redress in an efficient and transparent manner. The Courts also have inherent powers
under Section 151 to act when the Code does not give specific guidance, so that justice is not
denied due to technicalities. In simple terms, the Code of Civil Procedure is like a legal
roadmap. It may seem complex, but it always leads toward one goal: resolving disputes
fairly, efficiently and legally. It ensures that everyone—rich or poor, powerful or weak—gets
an equal chance to be heard and to get justice.