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CIVIL PROCEDURE CODE ANSWERS:

ANSWER 1

PLEADINGS:

Pleadings form the foundation for any case in the court of law. It is a statement in writing filed by
the counsel of plaintiff stating his contentions on the case, on the basis of which the defendant shall
file the written statement defending himself and explaining why the plaintiff‘s contentions should
not prevail. Sometimes the plaintiff, having filed his plaint, may, with the leave of the court, file a
statement or the court may require him to file a written statement. In such cases, the written
statement forms part of the plaintiff‘s pleadings. Similarly, there are cases in which the defendant
having filed his written statement may, with the leave of the court, file an additional written
statement or the Court may require him to do so. In such cases the additional written statement also
forms part of the defendant‘s pleadings.[1] This is the first stage of a suit. Code of Civil Procedure
(CPC) in order 6, Rule 1 defines pleadings as a written statement or a plaint. The plaintiff‘s written
statement and the defendant‘s additional written statement are termed supplemental pleadings.

Pleadings are those materials or essential facts which are necessary to be averred in order to put
forward a cause or to establish a defence in a judicial proceeding. It is the backbone of the suit
upon which the entire edifice of the suit rests. It includes allegations and counter allegations made
by one party and denied by the other.

Rules to be followed while drafting of pleadings:

1. Pleading should contain the facts but no law should be applied in pleadings. Only the court
has the power to apply the law on the basis of fact stated in the Pleadings. In the case
of Gouri Dutt Ganesh Lal Firm v. Madho Prasad,1 honorable court stated that Pleadings
should be defined in four words – ―Plead Facts, not laws‖.

2. Pleadings should contain material facts. Parties should avoid using immaterial or irrelevant
facts in the Pleadings. In the case of Virender Nath v. Satpal Singh2, the court stated that
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material facts are those facts which helps Plaintiff to define his cause of action or defendant
to strong his defense.

3. Parties should not give the evidence in the pleadings from which facts are proved.

4. Pleadings should contain the material facts in the brief form. Parties should avoid using
irrelevant or immaterial statements while drafting the Plaint.

Firm v. Madho Prasad, it was held that the law of pleading may be tersely summarized in four
words; ―Plead facts not law.‖

In Ram Prasad v. State of M.P., it was held that a mixed question of law and fact, however, should
be specifically pleaded. Again in Union of India v. Sita Ram Jaiswal, the Court held that a point of
law which is required to be substantiated by facts should be pleaded with necessary facts.

Pleadings should not state the evidence:

It is third fundamental rule of pleadings. It says that pleadings should contain a statement of
material facts on which the party relies but not the evidence by which those facts are to be proved.
The facts are of two types:-

(a) Facta probanda- the facts required to be proved (material facts); and

(b) Facta probantia- the facts by means of which they are to be proved (particulars or evidence).

The facts in pleadings should be stated in a concise form:

It is the fourth and last fundamental rule of pleadings. It says that the statements in pleadings
should be stated in a concise and in brief form. In Virendra Kashinath v. Vinayak N. Joshi, The
words ―in a concise form‖ are definitely suggestive of the fact that brevity should be adhered to
while drafting pleadings
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Amendment of Pleadings:

Amendment is the formal revision or addition or alteration or modification of the pleadings.

Provisions for the amendment of pleadings are intended for promoting the ends of justice and not
for defeating them. Rules 17 and 18 of Order VI of Code of Civil Procedure, 1908 deals with
provisions regarding amendment of pleadings and failure to amend after order respectively. Rule
17 of the Code of Civil Procedure, 1908 provides that, ―The Court may at any stage of the
proceedings allow either party to alter or amend his pleadings in such manner and on such terms as
may be just, and all such amendments shall be made as may be necessary for the purpose of
determining the real questions in controversy between the parties.

Amendment of Pleadings when granted:

In the case of Kishan Das Vithoba Bachelor, the court stated that there are two necessary
conditions to be satisfied before granting leave for amendment of pleadings:

1. This grant of leave should not leads to the injustice to other party.

2. This Amendment of pleadings is necessary for determining the real question of

controversy between parties.

In the case of Rajkumar Gurawara (Dead) Thr. L.Rs. vs S.K. Sarawagi And Co. Pvt. Ltd. And
Anr, the honorable Supreme Court stated certain conditions when amendments of Pleadings can be
allowed they are:

 When nature of the case will change by allowing application for amendment of appeal

 When a new cause of action arise by allowing application of an amendment

 When Amendments of Pleadings defeats the law of limitation.

Other points on which Amendments of Pleadings is granted:

 When the application of amendment is filed to avoid multiplicity of suits.

 When parties in the plaint or written statements wrongfully described.

 When the plaintiff omits to add some properties to the plaint.

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Amendment of pleadings when refused:

:- Amendment of pleadings can be refused in many circumstances. Following are the situations or
circumstances when amendment of pleadings can be refused by the Court:-

1. Application of amendment of Pleadings is rejected by the court when this amendment is

not necessary for determining the real question of controversy between parties.

2. Application of amendment of pleadings is rejected when it leads to the introduction of a

totally new case. In the case of the Modi Spg. Mills v. Ladha Ram & sons7 Supreme Court
held that ― the defendant cannot be allowed to change completely the case made in certain
paragraphs of the written statement and substitute an entirely different and new case‖.

3. When the Plaintiff or defendant is negligent

4. When proposed alteration or modification is unjust

5. Application for Amendments of Pleadings is refused when it violates the legal rights or
cause injustice to the other party

6. Leave to amend is refused when it leads to the needless complications in the case.

7. Leave to amend is refused when there has been excessive delay by the parties in filing the
suit.

8. Application of Amendment is refused when it changes the nature of the disputes

9. The court will not grant application of amendment of pleadings if it is made with mala fide
intention.

10. Where several opportunities are given to parties to apply for amendment of pleadings. But
they failed to make an application.
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Order VI Rule 18 Civil Procedure:

Failure to amend after order : If a party who has obtained an order for leave to amend does not
amend accordingly within the time limited for that purpose by the order, or if no time is thereby
limited then within fourteen days from the date of the order, he shall not be permitted to amend
after the expiration of such limited time as aforesaid or of such fourteen days, as the case may be,
unless the time is extended by the Court.

Order VI rule 18 states that when a party had application for amendment and it is allowed by the
court through an order. But the party does not amend it within the time prescribed in the order or if
no time is prescribed, within the fourteen days from issuance of order then the party will be not
permitted to amend.

Conclusion:

Pleadings are the backbone of legal profession. It is the foundation stone on which case of a party
stands. The case of a party must be set out in the pleadings. Pleadings do not only define the issues
between the parties for the final decision of the court at the trial, they manifest and exert their
importance throughout the whole process of the litigation. Pleadings provide a guide for the proper
mode of trial. They demonstrate upon which party the burden of proof lies, and who has the right to
open the case. They also determine the range of admissible evidence which the parties should
adduce at the trial. They also lay down limit on the relief that can be granted by the Court.

Four fundamental rules of pleading are;

(1) Pleadings should state facts and not law;

(2) The facts stated in pleadings should be material facts;

(3) Pleadings should not state the evidence; and

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(4) The facts in pleadings should be stated in a concise form. The main points to be considered
before a party is allowed to amend his pleading are: firstly, whether the amendment is necessary
for the determination of the real question in controversy; and secondly, can the amendment be
allowed without injustice to the other side.
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ANSWER 2

APPEARANCE OF PARTIES:

The word ―appearance‖ under civil cases has a well-known meaning. It means the appearance of
the party to the suit before a court of law. The appearance can be by the party in person or through
his advocate or through any person along with the advocate of the party.

The mere presence of the party before the court of law is not what the word ―Appearance‖ under
the Order IX of the CPC,1908 means. But the word ―appearance‖ under CPC means the
appearance made by the pleader who is able to answer all the material questions which are relevant
to the judicial proceedings in question before the court of law in a duly prescribed and recognized
manner and on the date allotted by the court to each party unless the court has adjourned the
proceedings of the case to some other day.

Appearance and non-appearance of the parties in a civil suit is the important factor upon which the
fate of any case depends. A mere non-appearance of a party in front of the court on a determined
day may result in an adverse decision with respect to the non-appearing party. The general
provisions contained in the Civil Procedure Code of 1908 is based on the principle that no
proceedings which are detrimental to the interest of any of the parties to the suit shall be conducted
in the court of law. It is the duty of the parties to the suit to show up before the court of law on a due
date which has been fixed by the court. In case of non-appearance of any of the parties to the suit,
the judgement of the court may turn in favour of the party appearing in front of the court. However,
in situations where a suit is determined irrespective of the fact that any of the parties to the suit are
absent on the due date.

Rule 1 of Order IX is related to the appearance of the parties on the date of first hearing of the case.
It declares the mandatory presence of the parties before the court of law on the day fixed by the
court under the summon issued on the defendant.

According to Rule 2 of the Order IX, the failure on the part of the plaintiff to submit any processing
fee determined by the court of law on any stipulated date. Then such a failure would result in the
dismissal of the suit by the court. However, no such dismissal to the case can be made where the
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defendant in person or through his agent attend the proceedings of the court and answers all the
material questions possessed by the court.

Where neither party appears:

Rule 3 and Rule 4 of Order IX of Civil Procedure Code, 1908 deals with the cases where neither of
the parties in a case appears before the court of law on the date fixed by the court of law. In such a
case, the suit shall be dismissed by the court and according to Rule 4, the plaintiff can file a new
suit in the court of law if he is able to satisfy the court that there was a sufficient cause for his
non-appearance in court.

In Damu Diga v. Vakrya Nathu, the plaintiff sued the defendants, D1 and D2. on the date fixed by
the court for appearance of the parties to the suit only D2 appeared in the court. The subordinate
court erred while passing the order of dismissal of the case. However in an appeal against the
decision of the court. It was held that the present case comes under the purview of Rule 4 of Order
IX of CPC and court should take into consideration the fact that not only the plaintiff in the case
was absent from the proceedings. But, defendant number 1 was also absent and the according to
Rule 4, the court must allow the plaintiff to apply for an order setting aside the dismissal of the case
by the court.

Where only the defendant appears:

Rule 8 of the Order IX of the CPC talks about the legal consequences of the non-appearance of the
plaintiff and the appearance of the defendant in the court of law. According to the rule, in a case
where the defendant makes an appearance in the court of law on the due date and the plaintiff
remains absent from the proceedings. The court shall make an order of dismissal of the case unless
the defendant admits a claim or parts thereof as in such a case the court can pass a decree against
the defendant upon such admission or where only the part of the claim is admitted. If the case of
the plaintiff has been dismissed by the court under Order IX of the CPC then the plaintiff has two
options to revive his case in the court of law. Which are as follows:

Plaintiff can file a fresh suit in the court of law if the same has not been barred by law in force; or
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The plaintiff can file a petition under Rule 4 of Order IX of Civil Procedure Code, 1908.
According to Rule 4 of the Order where a case has been dismissed in pursuance of Rule 2 or Rule
3 of the Order IX then the plaintiff can apply for an order for the dismissal of the case by the court.

In the case of The Secretary, Department of Horticulture, Chandigarh and Anr. Vs. Raghu Raj, the
court held that the plaintiff should not suffer because of the non-appearance of the council
appointed by him with good faith that he will make an appearance without any reasonable cause in
the court of law whenever the plaintiff is called for in the court. As such non-appearance by the
counsel representing the plaintiff without any reasonable cause is not only unprofessional and
unfair to the plaintiff but is also unfair and discourteous towards the court of law. And so the
plaintiff should not suffer because of the fault of the counsel he has hired in good faith.

Where only the plaintiff appears:

Where the plaintiff appears and the defendant doesnot appears, the plaintiff has to prove service of
summons on the defendant. If the service is proved the court may proceed ex partee decree
against the defendant.

Where a summons is not served:

Rule 6 of Order IX, when the plaintiff is present but the defendant is absent on the date of
peremptory hearing on a prescribed date. According to Rule 6 of Order IX, when the plaintiff is
present but the defendant is absent on the date of peremptory hearing on a prescribed date of
hearing then the court takes the decision about the consequence of such non-appearance with
respect to the status of summon which is served to the parties in the case by the court of law.
Following are the consequences of non-appearance of the defendant and the appearance of the
plaintiff with respect to varying statuses of the summon which is served:

In the case where the summon is duly served the court can declare that the suit shall be heard
ex-parte;

In the case where the summon is not duly served then, the court can order the issue of a second
summon and that the same to be served to the defendant;
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When the summon is served to the defendant but the sufficient time was not given to him to make
an appearance in the court of law and answer the material questions in the case on the day fixed by
the court. The court shall postpone and fix the hearing of the case to some other day which shall be
notified to the defendant;

When in a case the delay in issuance to the defendant is caused due to the fault of the plaintiff, the
court may order the plaintiff to pay the costs occasioned by the delay in the proceedings.

Ex parte decree:

Rule 6(1)(a) of Order IX of the Civil Procedure Code empowers the court to pass any judgement
ex parte in case the defendant party in a case absents himself from the proceedings on the due date
fixed by the court of law which has been informed to him by the summon duly served on him of the
case. An Ex parte decree is neither void nor inoperative but it is voidable at the option of one party
which may seek the order of annulment of the decree.

CONCLUSION:

The concept of appearance and non-appearance of the parties in the civil suit is the basic concept
on which the ultimate fate of each and every case depends upon. On one hand, the courts are free to
dismiss any case in the case of non-appearance of any party to the suit which is also the need of the
hour keeping in view a large number of cases which are pending in the courts. But at the same
time, the courts are bound to continue the proceedings even in the cases where the non-appearance
of any party is due to any special circumstances established by such a party. This is important in
order to uphold the ultimate objective of every judicial system which is the welfare and creation of
an egalitarian society.
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ANSWER 3

Article 300 of the Indian Constitution empowers the Indian government to sue any person or be
sued by any person under the name of the Union. Similarly, State governments can sue or be sued
by any legal person uunder the name of the Union.

This provision creates a substantive right of filing a suit on the government by the persons who are
aggrieved by an action of the government or vice versa. This is a substantive provision and its
purpose is to only create a right. It does not explain the procedure that needs to be followed to sue
the government.

The procedure to sue is a matter of procedural or adjective law and hence, Sections 79 to 82 read
with Order XXVII explains the procedure to sue or be sued by the government in detail. These
procedures explain and answer severral essential questions which are a sine qua non in a civil suit
such as when the cause of action arises in a suit by or against the government and how the suit is to
be instituted.

Procedure to file a suit against Government:

Under the Civil Procedure Code, the subject of suits by or against public officers in their official
capacity has been recognized under Section 79, Section 80 and Order 27 of CPC. Firstly, it should
be understood that Section 79 of CPC is a procedural provision and hence, it does not deal with
rights and liabilities enforceable by or against the government. But at the same time, it declares a
mode of the procedure when the cause of action arises. On the other hand, Section-80 of CPC is not
a procedural provision but a substantive one, the rules involved in it and working of Section 80 will
be discussed further. Lastly, Order 27, includes under its ambit various rules and subjects like that
of recognized agents, attorney general and the procedure to be followed while the suit is being filed
by or against the government or public officers in their official capacity. This article tries to
analyze the three sections in detail and provide an overview of the same in a clear-cut way.
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Section 79- This Section defines the concept of suits by or against the government: Whenever a
case is filed against a government or if it is filed by the government, the plaintiff and the defendant
who will be named in the case will be as provided under:

. Whenever the case is instituted by or against the central government, the Union of India will be
represented as the required plaintiff or defendant respectively.

. Whenever the suit is filed by or against the state government, the state government will be
required to act as the plaintiff or the defendant.

Analysis of Procedure under Section 79:

Section 79 is a replication of the provision contained in Article 300 of the Constitution. It states
that if a suit has to be filed either by the government or against the government, the title of the
plaintiff and the parties who shall be impleaded as defendant shall be the ‗Union of India‘, if the
suit is by or against Central Government and ‗State‘, if the suit is by or against State Government.

In Santhanand v. Basu-devanand, the court commented on Section 79 of CPC and said that it lays
down the procedure for the institution of the suit but does not establish any rights or liabilities on
the government. However, a simple reading of the provision clarifies that the section does not
mention any procedure as to the commencement of the proceedings or how the cause of action
arises. It only mentions the necessary parties in a suit involving the government or a public officer.

In Jehangir Cursetji v. Secy. of State for India, the Bombay High court observed that this provision
does not provide the cause of action but only mentions the manner of proceeding after the cause of
action has arisen. The procedure to be followed in a suit involving government has been explained
and evolved by the judiciary through several leading cases.

If the court within whose local jurisdiction the cause of action arose is not competent to hear the
case, the suit cannot be filed before such court. The court further held that expressions used in the
CPC such as ‗reside, dwell or carry on business‘ do not apply to suits involving government
instrumentalities.
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Moreover, if the suit is by or against the railway, the procedure to be followed was explained in
R.C. Jall v. Union of India. In this case, the apex court observed that if a rail authority is
maintained by the Central or State government, a suit can be filed by or against the government
itself and rail administration is not required to be impleaded as a party.

In the present case, the central government sued the appellant for collection of access charges not
paid by the appellants and the court held that railway administration need not be the plaintiff and
the suit filed by the government is admissible.

Notice under Section 80:

A legal notice is an instrument served by the aggrieved party upon the other party intimating it that
certain legal right of the aggrieved party has been infringed by the acts of the adverse party
because of which the aggrieved person seeks to take legal action against the other party unless the
violation can be remedied before the suit is instituted.

There are several forms of a legal notice. The purpose of legal notice is to intimate the opposite
party that a legal suit might be instituted against him and to allow him an opportunity to make right
any wrong that he has committed. A legal proceeding is time-consuming and costly and therefore,
service of notice assists to resolve the case before the proceeding commences.

The notice under Section 80 is called a statutory notice because it is a statutory mandate under
Section 80 to issue a notice to the government or the public officer against whom a case is filed.
The primary reason for a notice under Section 80 is to save the time and expense of the government
and litigants. The provision lays down the manner in which the notice has to be issued and served.

The manner can be enlisted for easy understanding as follows:

1. Notice must be issued two months prior to the date of institution of the suit.

2. Notice must be in writing.

3. Notice must be either delivered through registered post or left at the office of the Secretary
to the Central or State Government.
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4. Notice must be delivered or left at the office of the General Manager of Railways if the suit
is against the railway.

In general, the notice should contain the details of the plaintiff, the situation that led to the cause of
action, time of the cause of action and the claims of the plaintiff that will remedy the injury caused.
Further, in Sankar Mukherjee v. Union of India the apex court held that ―notice is required to
convey to its recipient‘s sufficient information to enable him to consider the plaintiff‘s claim‖

As aforementioned, the legal notice issued under this provision is for the benefit of the government
to allow it to resolve the dispute without expending time and money.

In Lal Chand v. Union of India, the court observed that since it is completely for the government,
the concerned government or the public officer can waive off the issuance of notice. Nevertheless,
if the notice is not duly served and the suit is filed, the government can object to it and the plaint
shall be rejected by the court.

Execution of a Decree against the Government:

The procedure to institute the suit has already been explained and all the prerequisites to the
commencement of proceedings are dealt with. After the institution of suit, the court proceedings
continue in the same manner as any other suit except the government is represented by a
government pleader.

The next procedure is the execution of a decree. Suppose the plaintiff is an individual and the suit
is against the central or state government or a public officer and the decree is pronounced in favour
of the plaintiff. The question is would the decree be executed in the same manner as other decrees.

Section 82 (1) of the Code throws light on this question and provides that a decree obtained against
a government or public officer shall be executed in accordance with the terms of Section 82 (2).
According to this provision, no suit for execution can be filed against the government for three
months from the date on which the decree was passed.
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This period to allow the government to fulfil the requirements of the decree and remedy the wrong
that it had done. If the plaintiff‘s claims remain unsatisfied for three months, the execution
application can be filed in accordance with the rules under Order XXI of the CPC.‘

CONCLUSION:

Due to widespread misuse and abuse by the Government and Public officers of this section to
dispose of litigation on grounds of technicalities, sub-section (3) to Section was inserted by the
Code of Civil Procedure (Amendment) Act, 1976. It clarifies that not suit instituted against the
Government or public officer shall be dismissed merely on the ground of error or defect in the
notice, if, in such notice, the name, description and residence of plaintiff had been so given as to
enable the authority or public officer to identify the person serving the notice and such notice has
been delivered or left the officer of authority or public officer concerned.
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ANSWER 4

SUMMARY SUITS:

Summary procedure is a legal procedure used for enforcing a right that takes effect faster and more
efficiently than ordinary methods. Its object is to summarise the procedure of suits in case the
defendant is not having any defence.

Summary suit or summary procedure is given in Order XXXVII of the Code of Civil Procedure,
1908.

Order 37 CPC is one of the best provisions in the hands of a proposed Plaintiff, wanting to
institute a Civil Suit. Broadly it states as under:
Rule 1, Sub-Rule 2 makes it applicable to all suits upon bills of exchange, hundies and promissory
notes or the ones in which a Plaintiff seeks only to recover a debt or liquidated demand in money
payable on a written contract, an enactment, where the sum to be recovered is a fixed sum of
money or in nature of any debt except penalty, a guarantee - in respect of a debt or liquidated
demand.

A summary suit can be instituted in High Courts, City Civil Courts, Courts of Small Causes and
any other court notified by the High Court. High Courts can restrict, enlarge or vary the categories
of suits to be brought under this order.

Classes of suits where summary procedure is applied:

Summary suits can be instituted in case of certain specified documents such as a bill of exchange,
hundies, and promissory notes. Summary procedure is applicable to recover a debt or liquidated
demand in money arising on a written contract, an enactment or on a guarantee.

Bill of Exchange:

A bill of exchange is a written unconditional order by one party (the drawer) to another (the
drawee) to pay a certain sum either immediately or on a fixed date for payment of goods and/or
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services received. If the sum is to be paid immediately it is called a sight bill. Term bill is the bill
of exchange where the sum is to be paid on a fixed date.

Promissory notes:

A promissory note contains an unconditional promise to pay a certain sum to the order of a
specifically named person or to bearer—that is, to any individual presenting the note. A
promissory note can be either payable on demand or at a specific time.

Hundies:

A Hundi is an unconditional order in writing made by a person directing another to pay a certain
sum of money to a person named in the order. It is a financial instrument evolved on the Indian
sub-continent and used for trade and credit purposes.

Liquidated demand in money:

Liquidated demand is a demand for a fixed sum e.g. a debt of Rs. 50. It is distinguished from a
claim of unliquidated damages, which is a subject of the discretionary assessment by the court.

Rule 2 Order XXXVII of Code of Civil Procedure 1908 "Institution of summary suits":

(1) A suit, to which this Order applies, may if the plaintiff proceed desires to desires hereunder, be
instituted by presenting a plaint which shall contain,-
(a) a specific averment to the effect that the suit is filed under this Order;
(b) that no relief, which does not fall within the ambit of this rule; has been claimed in the plaint;
and
(c) the following inscription, immediately below the number of the suit in the title of the suit,
namely :-
"(Under Order XXXVII of the Code of Civil Procedure, 1908)."
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(2) The summons of the suit shall be in Form No. 4 in Appendix B or in such other Form as may,
from time to time, be prescribed.

(3) The defendant shall not defend the suit referred to in sub-rule (1) unless he enters an
appearance and in default of his entering an appearance the allegations in the plaint shall be
deemed to be admitted and the plaintiff shall be entitled to a decree for any sum, not exceeding the
sum mentioned in the summons, together with interest at the rate specified, if any, up to the date of
the decree and such sum for costs as may be determined by the High Court from time to time by
rules made in that behalf and such decree may be executed forthwith.

Rule 3 Order XXXVII of Code of Civil Procedure 1908 "Procedure for the appearance of
defendant":

(1) In a suit to which this Order applies, the plaintiff shall, together with the summons under rule 2,
serve on the defendant a copy of the plaint and annexures thereto and the defendant may, at any
time within ten days of such service, enter an appearance either in person or by pleader and, in
either case, he shall file in Court an a address for service of notices on him.

(2) Unless otherwise ordered, all summonses, notices and other judicial processes, required to be
served on the defendant, shall be deemed to have been duly served on him if they are left at the
address given by him for such service.

(3) On the day of entering the appearance, notice of such appearance shall be given by the
defendant to the plaintiff's pleader, or, if tile plaintiff sues in person, to the plaintiff himself, either
by. notice delivered at or sent by a pre-paid letter directed to the address of the plaintiff's pleader or
of the plaintiff, as the case may be.

(4) if the defendant enters an appearance, the plaintiff shall thereafter serve on the defendant a
summons for judgment in Form No. 4A in Appendix B or such other Form as may be prescribed
from time to time, returnable not less than ten days from the date of service supported by an
affidavit verifying the cause of action and the amount claimed and stating that in his belief there is
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no defence to the suit.

(5) The defendant may, at any time within ten days from the service of such summons for
judgment, by affidavit or otherwise disclosing such facts as may be deemed sufficient to entitle
him to defend, apply on such summons for leave to defend such suit, and leave to defend may be
granted to him unconditionally or upon such terms as may appear to the Court or Judge to be just.

(6) At the hearing of such summons for judgment,-

(a) if the defendant has not applied for leave to defend, or if such application has been made and is
refused, the plaintiff shall be entitled to judgment forthwith; or
(b) if the defendant is permitted to defend as to the whole or any part of the claim, the Court or
Judge may direct him to give such security and within such time as may be fixed by the Court or
Judge and that, on failure to give such security within the time specified by the Court or Judge or to
carry out such other directions as may have been given by the Court or Judge, the plaintiff shall be
entitled to judgment forthwith.

(7) The Court or Judge may, for sufficient cause shown by the defendant, excuse the delay of the
defendant in entering an appearance or in applying for leave to defend the suit.

Decree in summary suits:

The plaintiff is entitled to a decree of a sum not exceeding the sum mentioned in plaint, together
with interest and cost in following conditions:-

1. If the defendant does not enter an appearance (ex parte decree)

2. If the defendant has not applied for leave to defend

3. If the defendant has applied for leave to defend but it is refused

4. If the leave to defend is granted then the suit proceeds as an ordinary suit and decree is
granted as per the CPC.
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Importance of Summary Suits:

The summary procedure prevents unreasonable obstructions by the defendant who has no defence.
It assists expeditious disposal of cases. Unless the defendant is able to demonstrate that he has a
substantial defence in his case, the plaintiff is entitled to a judgment forthwith. In the event of ex
parte decree in summary suit, the defendant is required to show more strict and stringent causes.
This ensures that ex parte decree is not set aside in an ordinary manner.

The summary procedure is generally resorted to in a class of cases where speedy decisions are
desirable in the interest of commercial transactions. Summary suits are easier to establish for the
plaintiff and tougher for the defendant to defend than ordinary suits. By and large, the summary
procedure ensures that the defendant does not prolong the litigation and prevent the plaintiff from
obtaining a decree by raising untenable and frivolous defences.

Difference between a summary suit and original suit:

The major difference between ordinary suits and summary suits is that in the later the defendant
will get a chance to defend himself only if leave to defend is granted.

Unlike ordinary suits, summary suits are restricted to matters related to bills of exchange,
promissory notes and contracts, enactments, guarantees of specified nature. Interestingly Res
Judicata is not applicable to summary suits, i.e. summary suits can be filed on the matter directly
and substantially in issue in a previous ordinary suit.

In summary suits in the case of non-appearance of the defendant, a decree in favour of the plaintiff
is passed easily, whilst in ordinary suits usually, multiple summonses are served and only then an
ex parte order is passed.

Therefore, in Summary, suits setting aside an ex parte decree is stricter and more stringent and
special circumstances for non-appearance need to be set out, while in ordinary suits only sufficient
cause needs to be shown.
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ANSWER 5

Limitation Act, 1963:

The word limitation itself says the meaning. The word limitation in its literal term means a
restriction or the rule or circumstances which are limited. The law of limitation has been
prescribed as the time limit which is given for different suits to the aggrieved person within which
they can approach the court for redress or justice.

The law of limitation finds its root in the maxims ―Interest Reipublicae Ut Sit Finis Litium‖ which
means that in the interest of the state as a whole there should be a limit to litigation and
―vigilantibus non dormientibus Jura subveniunt‖ which means the law will assist only those who
are vigilant with their rights and not those who sleep upon it. The law of limitation specifies the
statutory time frame within which a person may initiate a legal proceeding or a legal action can be
brought. If a suit is filed after the expiry of the time prescribed it will be barred by the Limitation.
It means that a suit brought before the Court after the expiry of the time within which a legal
proceeding should‘ve been initiated will be restricted.

The basic concept of limitation is relating to fixing or prescribing of the time period for barring
legal actions. According to Section 2 (j) of the Limitation Act, 1963, ‗period of limitation‘ means
the period of limitation prescribed for any suit, appeal or application by the Schedule, and
‗prescribed period‘ means the period of limitation computed in accordance with the provisions of
this Act.

The Law of Limitation signifies to prevent from the last date for different legal actions which can
take place against an aggrieved person and to advance the suit and seek remedy or righteous before
the court. Where a suit is initiated after the bar of limitation, it will be hit by the law of limitation.
The main and the fundamental aim of the law of limitation is to protect the lengthy process of
penalizing a person indirectly without doing any offence.

The law relating to Law of Limitation to India is the Limitation Act, 1859 and subsequently
Limitation Act, 1963 which was enacted on 5th of October, 1963 and which came into force from
1st of January, 1964 for the purpose of consolidating and amending the legal principles relating to
limitation of suits and other legal proceedings.
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The Limitation Act, 1963 does not affect the provisions provided under The Indian Contract Act,
1872. The Act is made effective for the reason that it bars the jurisdiction of the court to entertain
the actions that are frivolous and to avoid the long proceeding of the pending actions by the
complainants.

Object of the Act:

The Law of limitation prescribes a time period within which a right can be enforced in a Court of
Law. The time period for various suits has been provided in the schedule of the Act. The main
purpose of this Act is to prevent litigation from being dragged for a long time and quick disposal of
cases which leads to effective litigation. As per the Jammu and Kashmir Reorganisation Act, 2019,
provisions of the Limitation Act will now apply to the whole of India. The Limitation Act, 1963
contains provisions relating to the computation of time for the period of limitation, condonation of
delay, etc. The Limitation Act contains 32 sections and 137 articles and the articles are divided into
10 parts.

There are two Major Broad Considerations on which the Doctrine of Limitation and Prescription
are based on:

 That, the right which are not exercised for a long time are said to be as non-existence.

 That, the rights which are related to property and rights which are in general should not be
in a state of constant uncertainty, doubt and suspense.

The main object of limit in any of the legal actions which is to give effect to the maxim ‗interest
reipublicae ut sit finis litium‘ which means that if the interest of the State is required that there
should be a limit to a litigation and also to prevent any kind of disturbance or deprivation of what
may have been acquired in equity and justice or by way long enjoyment or what may have been
lost by a party‘s own inaction, negligence or laches.

The intention in accepting the concept of limitation is that ―controversies are restricted to a fixed
period of time, lest they should become immortal while men are moral.‖
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There is a limitation to litigation which interposes the statutory bar. This statutory restriction after
a certain period of time gives a status to enforce an existing right. Simply, it neither create any right
in favour of any person nor does it define or create any cause of action against the particular person
but it prescribes about the remedy. These remedy can be exercised only up to a certain period of
time and not subsequently. The main object of the statute of the Limitation Act, 1963 is more over
a preventive kind and not to interpose a statutory bar after a certain period of time and it gives a
quietus to all the suit matters to enforce an existing right.

The major purpose of the statutory of the Limitation Act, 1963 is not to destroy or infringe the
rights of an aggrieved person but to serve public in a better way and to save time. This statute is
basically founded on the public policy for fixing a life span for the legal action which are taken
place and to seek remedy in time with the purpose of general welfare. The object of providing a
legal remedy is to repair the damage which is caused by reason of legal injury.

The Salient Features are:

1. The Limitation Act contains 32 Sections and 137 Articles. The articles have been divided
into 10 parts. The first part is relating to accounts, the second part is relating to contracts,
the third part is relating to declaration, the fourth part is relating to decrees and instrument,
the fifth part is relating to immovable property, the sixth part is relating to movable
property, the seventh part is relating to torts, the eighth part is relating to trusts and trust
property, the ninth part is relating to miscellaneous matters and the last part is relating to
suits for which there is no prescribed period.

2. There is no uniform of limitation for the suits under which the classifications has been
attempted.

3. The limitation period is reduced from a period of 60 years to 30 years in the case of suit by
the mortgagor for the redemption or recovery of possession of the immovable property
mortgaged, or in case of a mortgages for the foreclosure or suits by or on the behalf of
Central Government or any State Government including the State of Jammu and Kashmir.
 SUBMITTED BY – UZAIR ULLAH KHAN

4. Whereas a longer period of 12 years has been prescribed for different kinds of suits relating
to immovable property, trusts and endowments, a period of 3 years has been prescribed for
the suits relating to accounts, contracts and declarations, suits relating to decrees and
instruments and as well as suits relating to movable property.

5. A period varying from 1 to 3 years has been prescribed for suits relating to torts and
miscellaneous matters and for suits for which no period of limitation has been provided
elsewhere in the Schedule to the Act.

6. It is to be taken as the minimum period of seven days of the Act for the appeal against the
death sentence passed by the High Court or the Court of Session in the exercise of the
original jurisdiction which has been raised to 30 days from the date of sentence given.

7. One of the main salient feature of the Limitation Act, 1963 is that it has to avoid the
illustration on the suggestion given by the Third Report of the Law Commission on the
Limitation Act of 1908 as the illustration which are given are most of the time unnecessary
and are often misleading.

8. The Limitation Act, 1963 has a very wide range considerably to include almost all the
Court proceedings. The definition of ‗application‘ has been extended to include any
petition, original or otherwise. The change in the language of Section 2 and Section 5 of the
Limitation act, 1963 includes all the petition and also application under special laws.

9. The new Act has been enlarged with the definition of ‗application‘, ‗plaintiff‘ and
‗defendant‘ as to not only include a person from whom the application. Plaintiff or
defendant as the case may be derives his title but also a person whose estate is represented
by an executor, administrator or other representatives.

10. According to Sections 86 and Section 89 of the Civil Procedure Code, it requires the
consent of the Central Government before suing foreign rulers, ambassadors and envoys.
The Limitation Act, 1963 provides that when the time obtained for obtaining such consent
shall be excluded for computing the period of limitation for filing such suits.

11. The Limitation Act, 1963 with its new law signifies that it does not make any racial or class
distinction since both Hindu and Muslim Law are now available under the law of limitation
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as per the existing statute book. In the matter of Syndicate Bank v. Prabha D. Naik, (AIR
2001 SC 1968) the Supreme Court has observed that the law of limitation under the
Limitation Act, 1963 does make any racial or class distinction while making or indulging
any law to any particular person.